              Case: 16-12110      Date Filed: 07/14/2017      Page: 1 of 13


                                                                  [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 16-12110
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 5:12-cv-00149-WTH-PRL



FRANCISCO ESTRADA,

                                                                     Plaintiff-Appellant,

                                         versus

DENIS STEWART,
M.D. individually and in their official capacities, et al.,

                                                                              Defendants,

D. MONTALVO,
M.D. individually and in their official capacities,
ROBERT CARVER,
M.D. individually and in their official capacities,
E. J. CHIPI,
M.L.P. individually and in their official capacities,
HELEN FLAGG,
R.N. individually and in their official capacities,
D. B. DREW,
Warden, individually and in their official capacities, et al.,

                                                                  Defendants-Appellees.
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                           ________________________

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

                                   (July 14, 2017)

Before ED CARNES, Chief Judge, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Francisco Estrada is a federal inmate who was incarcerated at the Federal

Correctional Complex, Coleman during the period relevant to this appeal. He

suffers from numerous medical conditions, including hepatitis C and gout.

Proceeding pro se, he filed a lawsuit against members of Coleman’s medical staff

and two prison administrators, alleging that they acted with deliberate indifference

to his serious medical needs in violation of the Eighth Amendment. The district

court dismissed his fifth amended complaint with prejudice. This is his appeal.

                                          I.

      “Because this is an appeal from a Federal Rule of Civil Procedure 12(b)(6)

dismissal, we draw the facts from the [fifth] amended complaint, accepting those

facts as true and construing them in the light most favorable to the plaintiff.”

Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1263 n.2 (11th Cir. 2012).

                                          A.




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      While Estrada was incarcerated at Coleman, Robert Carver, a doctor there,

instructed him to alternate between allopurinol and colchicine when he

experienced gout attacks. A few weeks later he suffered an attack and followed

Carver’s instructions. After taking colchicine for several days, he started to

experience swelling in his abdomen and left elbow. He went to Gilbert Michel,

another member of Coleman’s medical staff, who prescribed him the antibiotic

cephalexin. Estrada’s condition worsened, and he returned to Carver and “pleaded

with [him]” for help. He alleges that Carver “ignored” his pleas, but he also states

that the day after speaking with Carver he was taken to Pasco Regional Medical

Center for a liver biopsy.

      The doctor at Pasco botched the biopsy, leaving Estrada in even worse pain.

And after he was transported back to his cell, Estrada started urinating blood.

When his cellmate showed Helen Flagg, a registered nurse working at Coleman,

Estrada’s bloody urine, she gave Estrada “some medication” and told him “to make

a sick call” the following day.

      The next day another member of the Coleman medical staff, Eduardo Chipi,

saw that Estrada was urinating blood and had him rushed to Leesburg Regional

Medical Center. There, he was diagnosed with internal bleeding, jaundice, and

damage to his liver, gall bladder, and lungs. A Leesburg doctor ordered a regimen

of follow-up care, but Carver and Chipi did not follow those instructions when


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Estrada returned to Coleman. Instead, they provided only three days of pain

medication “and then ignored Estrada’s complaint of abdominal pains.”

      For the next year, from mid-2011 to mid-2012, Estrada repeatedly requested

medical care for gout attacks and abdominal pain. He states that Carver and Chipi

ignored him, as did Coleman’s “medical administrator” D. Montalvo, but he also

states that they prescribed him generic colchicine, which Estrada found ineffective.

      Finally, about a year after the biopsy, the Coleman medical staff performed

an ultrasound and discovered a gallstone in Estrada’s abdomen. They prescribed

him probenecid, which immediately relieved his gout symptoms and lessened his

pain. Still, Estrada’s liver pain “continue[d] to disrupt his life.” And the medical

staff did not remove the gallstone, even though Chipi told him they would.

      In addition, Estrada alleges that he obtained (through a public records

request) medical records that purport to show that he received care from Flagg and

Chipi that he never, in reality, received. Estrada complained to Coleman’s then-

warden, D.B. Drew, that the staff was fabricating records. Drew promised to

investigate, but he did not.

                                          B.

      Estrada brought this lawsuit, asserting claims for negligence, “deprivation of

constitutional rights [and] privileges,” and intentional infliction of emotional




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distress.1 After he amended his complaint twice, the defendants moved to dismiss

his second amended complaint. The district court denied in part that motion,

finding that Estrada had stated a claim under Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971),

for a violation of his Eighth Amendment right to be free from cruel and unusual

punishment.

       Even though his second amended complaint survived that motion to dismiss,

Estrada filed a third and then a fourth amended complaint. He also repeatedly filed

motions for the appointment of counsel, all of which were denied.

       After Estrada had filed his fourth amended complaint, and numerous

motions had been filed by all parties, the district court issued an “order on pending

motions.” The court stated that “[f]or purposes of judicial economy and to

hopefully provide a more coherent record for potential appeal,” it was necessary to

“start this case off with a clean slate by way of repleading.” The court required

Estrada to file a fifth amended complaint that would not contain any new claims or

defendants. Estrada did so, re-asserting his Bivens claims, and the defendants

moved to dismiss his fifth amended complaint under Federal Rule of Civil




       1
         Estrada originally named as defendants several persons who were not employees of the
federal government. Through the course of the litigation, the claims against those other
defendants were eventually dismissed, and those persons are not parties to this appeal.
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Procedure 12(b)(6). The district court granted the defendants’ motion, dismissing

the fifth amended complaint with prejudice.

                                           II.

      “We review de novo the district court’s grant of a motion to dismiss under

12(b)(6) for failure to state a claim . . . .” Butler, 685 F.3d at 1265 (11th Cir.

2012). The plaintiff’s “[f]actual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Id. “[P]ro se pleadings,” like

Estrada’s, “are held to a less strict standard than pleadings filed by lawyers and

thus are construed liberally.” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.

2008).

      Before reaching the substance of Estrada’s claims, we briefly address his

contention that the district court should have denied the defendants’ motion to

dismiss his fifth amended complaint because it had previously denied in part their

motion to dismiss his second amended complaint. “[A] court’s previous rulings

may be reconsidered as long as the case remains within the jurisdiction of the

district court.” Aldana v. Del Monte Fresh Produce N.A, Inc., 578 F.3d 1283,

1288–89 (11th Cir. 2009). As such, if a final judgment has not been issued in a

case, an earlier ruling is not binding on the district court. Id. Until the district

court’s dismissal of the fifth amended complaint, it had not issued a final judgment


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and the case was still properly within its jurisdiction. As a result, its decision with

respect to the second amended complaint did not bind it, and it was free to come to

a different conclusion with respect to the fifth amended complaint.

                                          A.

      The fifth amended complaint asserted Bivens Eighth Amendment claims

against four members of Coleman’s medical staff: Carver, Michel, Chipi, and

Flagg. “It is well settled that the deliberate indifference to serious medical needs

of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed

by the Eighth Amendment.” McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir.

1999) (quotation marks omitted). To prove that prison officials acted with

deliberate indifference, the plaintiff must show “(1) subjective knowledge of a risk

of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere

negligence.” Id. at 1255.

      “[W]hen a prison inmate has received medical care, courts hesitate to find an

Eighth Amendment violation.” Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir.

1989). “A complaint that a physician has been negligent in diagnosing or treating

a medical condition does not state a valid claim of medical mistreatment under the

Eighth Amendment.” McElligott, 182 F.3d at 1254. And the fact that a prisoner

“may have desired different modes of treatment” does not “amount to deliberate

indifference.” Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985).


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At the same time, “prison officials with knowledge of the need for care may not,

by failing to provide care, delaying care, or providing grossly inadequate care,

cause a prisoner to needlessly suffer the pain resulting from his or her illness.”

McElligott, 182 F.3d at 1257.

      The claims against Michel and Flagg were properly dismissed. Taking

Estrada’s allegations as true, the care that those defendants provided was not

perfect. But, at most, it amounted to medical negligence, which is not sufficient to

rise to the level of deliberate indifference. See id. at 1254.

      The claims against Carver and Chipi, however, are another matter. In the

McElligott case the plaintiff presented evidence that he had suffered excruciating

pain, nausea, weight loss, and vomiting. Id. at 1252–53. For about six months he

had repeatedly requested medical attention, but his requests either were ignored or

the defendant doctor prescribed only an anti-gas medication that had proven

ineffective. Id. The doctor eventually prescribed another stomach medication,

which did not improve the plaintiff’s condition. Id. at 1253. Days after being

released from prison the plaintiff discovered the true cause of his symptoms when

he was diagnosed with terminal colon cancer. Id. at 1254.

      The district court granted summary judgment to the doctor in McElligott,

and this Court reversed. Id. 1256–57. We noted that the failure to diagnose the

plaintiff’s colon cancer exhibited negligence, not deliberate indifference, and


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therefore the failure to diagnose could not sustain the plaintiff’s Eighth

Amendment claim. Id. at 1256. But summary judgment was nonetheless

inappropriate because, considering that “[o]ther than tylenol and pepto-bismol, the

main medication [the plaintiff] received was an anti-gas medication,” a jury

reasonably could have found “that the medication provided to [him] was so cursory

as to amount to no care at all.” Id. at 1257. Because the doctor “knew the extent

of [the plaintiff’s] pain, knew that the course of treatment was largely ineffective,

and declined to do anything more to attempt to improve [his] condition,” the

plaintiff had created a genuine issue of material fact about whether the doctor was

deliberately indifferent to his serious medical needs. Id. at 1257–58.

       Here, Estrada alleged that after the botched biopsy he was diagnosed with

internal bleeding and other serious medical problems and that he was in extreme

pain, yet the defendants provided only three days of pain medication when he

returned to Coleman. And he alleged that for the next year he “repeatedly

submitted requests for medical attention” and “was ignored” by Carver, Chipi, and

Montalvo.2 Their only course of action for that year was to prescribe generic

colchicine, which had proved ineffective at treating his underlying condition or

relieving his pain. When those defendants did finally change course — by



       2
         Estrada’s claim against Montalvo is based on a theory of supervisory liability, and we
will address it in the next section of this opinion.
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conducting an ultrasound and prescribing probenecid — Estrada’s condition

improved “immediately.”

      Some delay in finding an effective treatment for a prisoner patient is not an

Eighth Amendment violation. Farrow v. West, 320 F.3d 1235, 1246 (11th Cir.

2003). But Estrada’s allegations amount to a claim that, like the doctor in

McElligott, Carver and Chipi “knew the extent of [Estrada’s] pain, knew that the

course of treatment was largely ineffective, and declined to do anything more to

attempt to improve [his] condition” for a prolonged period of time. 182 F.3d at

1257–58. As a result, Estrada stated a plausible claim about whether Carver and

Chipi were deliberately indifferent to his serious medical needs. See id.

                                          B.

      The fifth amended complaint also asserted Eighth Amendment claims

against Montalvo and Drew on a theory of supervisory liability. “Supervisory

liability [under Bivens] occurs either when the supervisor personally participates in

the alleged constitutional violation or when there is a causal connection between

actions of the supervising official and the alleged constitutional violation.”

Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (alteration in original).

      Estrada alleged that he repeatedly requested medical care from Montalvo in

addition to Carver and Chipi. It is not clear from the fifth amended complaint

whether Montalvo was in a position to directly assist Estrada, or if he was merely a


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higher-level administrator. However, reading the pleading liberally, as we must,

Estrada has alleged that Montalvo knew about Estrada’s serious medical need for

an entire year and refused to help him. Put another way, Montalvo personally

“knew the extent of [Estrada’s] pain, knew that the course of treatment was largely

ineffective, and declined to do anything more to attempt to improve [his]

condition.” See McElligott, 182 F.3d at 1257–58. As a result, Estrada has stated a

claim against Montalvo. See Gonzalez, 325 F.3d at 1234.

       As for Drew, he allegedly told Estrada that he would investigate the

fabrication of medical records, but he never did so. While fabricating records is

wrongful, Estrada did not allege that the fabricating contributed to the defendants’

“failing to provide care, delaying care, or providing grossly inadequate care.” See

McElligott, 182 F.3d at 1257. As such, Estrada has not alleged that Drew

“personally participate[d] in” or was “causal[ly] connect[ed]” to a constitutional

violation, and the claim against Drew was properly dismissed. See Gonzalez, 325

F.3d at 1234.3



       3
          Because it ruled that Estrada’s allegations did not amount to a constitutional violation,
the district court did not reach the question of whether any constitutional right that was allegedly
violated was “clearly established” at the time of the alleged violation, such that qualified
immunity would preclude liability. See Mullenix v. Luna, 577 U.S. __, 136 S. Ct. 305, 308
(2015). And in their briefs to this Court the parties do not discuss whether McElligott or any
other decision by this Court, the United States Supreme Court, or the Florida Supreme Court
“clearly established” that the alleged conduct violated Estrada’s constitutional rights. See
Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003). As a result, we will
leave that issue to be decided by the district court in the first instance, if the remaining
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                                            III.

       Estrada appears to contend that the district court should have allowed him to

amend his complaint for a sixth time to correct any deficiencies. “[W]e review a

district court’s denial of a motion to amend only for abuse of discretion . . . .”

Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). “Leave to amend a

complaint is futile” — and thus properly denied — “when the complaint as

amended would still be properly dismissed . . . .” Id. By the time his case was

dismissed with prejudice, the district court had provided him with five attempts,

after his initial complaint failed, to successfully state a claim. And Estrada did not

identify in the district court (or in his brief to this Court) how he would have

drafted his next amended complaint such that the claims properly dismissed this

time would survive the next motion to dismiss. In light of that, it was not an abuse

of discretion for the district court to conclude that it would be futile for Estrada to

amend his complaint a sixth time.

                                            IV.

       Estrada also contends that the district court erred in denying his motion for

the appointment of counsel. We “review a district court’s decision not to appoint

counsel for abuse of discretion.” Smith v. Sch. Bd., 487 F.3d 1361, 1365 (11th

Cir. 2007). “Appointment of counsel in a civil case is not a constitutional right. It

defendants — Carver, Chipi, and Montalvo — wish to press it. See Original Appalachian
Artworks, Inc. v. S. Diamond Assocs., Inc., 911 F.2d 1548, 1550 n.3 (11th Cir. 1990).
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is a privilege that is justified only by exceptional circumstances, such as where the

facts and legal issues are so novel or complex as to require the assistance of a

trained practitioner.” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990).

       Estrada’s case is straightforward: he claims that the medical care he

received was so inadequate that it violated the well-established standards of the

Eighth Amendment. The case is not “novel or complex,” and it was not an abuse

of discretion for the district court to deny his motions for the appointment of

counsel.

                                              V.

       Accordingly, we affirm the dismissal with prejudice of the claims against

Michel, Flagg, and Drew. But we reverse the dismissal of the claims against

Carver, Chipi, and Montalvo, and remand the case to the district court.4

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




       4
          We do not consider Estrada’s contention that he was denied “effective discovery.” The
district court’s Rule 12(b)(6) ruling was based solely on his pleadings, and evidence adduced
through discovery would have had no effect on the ruling. See Chudasama v. Mazda Motor
Corp., 123 F.3d 1353, 1367 (11th Cir. 1997).

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