                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             FEB 09, 2009
                              No. 08-13427                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 06-00189-CV-J-32-HTS

JEROME BLACKSHEAR,

                                                      Plaintiff-Appellant,

                                   versus

MRS. T. DOWLING, in her individual capacity,
W.A. HUBBARD, in his individual capacity,
P.D. KNABB, in his individual capacity,
BRUCE E. STATEN, in his individual capacity,
TRUNG VAN LE, in his individual capacity,

                                                      Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (February 9, 2009)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Jerome Blackshear, a prisoner proceeding pro se, appeals the district court’s

grant of defendants’ motion for summary judgment as to his 42 U.S.C. § 1983 civil

rights complaint alleging deliberate indifference to his serious medical needs in

violation of the Eighth Amendment proscription against cruel and unusual

punishment. On appeal, Blackshear argues a genuine factual dispute existed as to

whether he had a parasitic infestation. He presents medical records for the first

time on appeal in support of this assertion. Blackshear also argues the defendants,

with the intent of deceiving the court, knowingly withheld, concealed, and altered

medical records confirming he was diagnosed with parasites.

      We review a district court order granting summary judgment de novo,

applying the same standard as the district court. Battle v. Bd. of Regents for Ga.,

468 F.3d 755, 759 (11th Cir. 2006). “[S]ummary judgment is proper if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.” In re

Optical Technologies, Inc., 246 F.3d 1332, 1334 (11th Cir. 2001) (quotation

omitted). “[O]n a motion for summary judgment, all reasonable inferences must be

made in favor of the non-moving party.” Cuesta v. School Bd. of Miami-Dade

County, 285 F.3d 962, 970 (11th Cir. 2002). “If a reasonable jury could not find in



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favor of the nonmoving party, no genuine issue of material fact does exist; and

summary judgment is proper. A mere scintilla of evidence in support of the

nonmoving party will not suffice to overcome a motion for summary judgment.

Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004) (citation

omitted). “A party opposing a motion for summary judgment “may not rely

merely on allegations or denials in its own pleading.” Fed. R. Civ. P. 56(e)(2).

      “A successful section 1983 action requires a showing that the conduct

complained of (1) was committed by a person acting under color of state law and

(2) deprived the complainant of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Harvey v. Harvey, 949 F.2d 1127, 1130

(11th Cir. 1992).

      Although the United States Constitution does not require comfortable

prisons, neither does it permit inhumane ones. Farmer v. Brennan, 114 S. Ct.

1970, 1976 (1994). “After incarceration, only the unnecessary and wanton

infliction of pain . . . constitutes cruel and unusual punishment forbidden by the

Eighth Amendment.” Ingraham v. Wright, 97 S. Ct. 1401, 1412 (1977) (citations

and quotation omitted).

      To prove deliberate indifference, a prisoner must show (1) he had a serious

medical need (the objective component), (2) the prison official acted with



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deliberate indifference to the serious medical need (the subjective component), and

(3) as with any tort claim, the injury was caused by the defendant's wrongful

conduct. Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007). “A

medical need that is serious enough to satisfy the objective component is one that

has been diagnosed by a physician as mandating treatment or one that is so obvious

that even a lay person would easily recognize the necessity for a doctor's

attention.” Id. (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187

(11th Cir. 1994) (quotation omitted)). To defeat a prison official's motion for

summary judgment, a plaintiff must show knowledge of a serious medical risk and

disregard of that risk by conduct that is more than mere negligence. McElligott v.

Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). This can be treatment “so cursory as

to amount to no treatment at all,” id., or delay when it is apparent delay would

exacerbate the medical condition, it does so, and the delay is not medically

justified, Taylor v. Adams, 221 F.3d 1254, 1259-60 (11th Cir. 2000). A difference

in medical opinion does not constitute deliberate indifference under the Eighth

Amendment. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989).

      We may not consider new evidence furnished for the first time on appeal.

See Smith v. United States, 343 F.2d 539, 541 (5th Cir. 1965) (noting “[we] must

decline to consider the merits of issues based on new evidence furnished for the



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first time on appeal in the form of affidavits presented by the amicus”). We have

“refused to supplement the record when a party has filed supplemental material

without requesting leave of this court or has appended material to an appellate brief

without filing a motion to supplement.” Ross v. Kemp, 785 F.2d 1467, 1474-75

(11th Cir. 1986).

      We have reviewed the district court’s order, and find it comprehensively

analyzed Blackshear’s claims according to the applicable legal standards. For the

reasons the district court stated in rejecting Blackshear’s § 1983 claim, we

conclude the district court did not err in finding the defendants were not

deliberately indifferent to Blackshear’s serious medical needs, and Blackshear was

not subject to cruel and unusual punishment. Because we may not consider new

evidence furnished for the first time on appeal, we need not consider the medical

record attached to Blackshear’s reply brief. Accordingly, we affirm the district

court’s grant of summary judgment to the defendants.

      AFFIRMED.




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