                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-16134                ELEVENTH CIRCUIT
                                                            SEPTEMBER 23, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                   D. C. Docket No. 06-00407-CV-OC-10GRJ

EUGENE A. FISCHER,
                                                              Plaintiff-Appellant,

                                         versus

FEDERAL BUREAU OF PRISONS,
as an Agency of the United States
Department of Justice, et al.,
                                                                     Defendants,

MARK WINSTON TIDWELL, MD,
individually and as an employee of the
Federal Bureau of Prisons,
                                                             Defendant-Appellee.

                          ________________________

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

                              (September 23, 2009)

Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
       Eugene A. Fischer, a federal prisoner proceeding pro se, appeals the district

court’s dispositive order granting summary judgment to Dr. Mark Winston

Tidwell, in his civil rights action, brought under Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 91 S. Ct. 1999 (1971).1 Specifically, Fischer

alleged Dr. Tidwell acted with deliberate indifference in treating his enlarged

prostate condition while he was imprisoned at the United States Penitentiary in

Coleman, Florida (USP Coleman), where Dr. Tidwell worked as the medical

director. On appeal, Fischer argues the district court erred in granting summary

judgment to Dr. Tidwell because he demonstrated the existence of genuine issues

of fact with regard to the deliberate indifference claim.

       In Bivens, the Supreme Court held a plaintiff may bring certain causes of

action for damages against a federal officer based on a violation of constitutional

rights. Bivens, 91 S. Ct. at 2005. The Supreme Court has extended Bivens and

inferred a cause of action against prison officials for violating a prisoner’s Eighth

Amendment right to adequate medical care. Carlson v. Green, 100 S. Ct. 1468,

1474 (1980). The Eighth Amendment is violated when there is deliberate



       1
         Fischer does not appeal, and thus has abandoned, any challenge to the district court’s
dismissal of additional parties, including the Federal Bureau of Prisons and Warden Tracy Johns,
and claims, under the Federal Tort Claims Act, 28 U.S.C. § 1346, and 42 U.S.C. § 1983, that he
originally included in this civil rights suit. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005).

                                               2
indifference to a prisoner’s serious medical needs. Estelle v. Gamble, 97 S. Ct.

285, 291 (1976).

      In order to prove a claim of deliberate indifference, the plaintiff must show:

(1) he had a serious medical need (the objective component); (2) the prison official

acted with deliberate indifference to that serious medical need (the subjective

component); and (3) the official’s wrongful conduct caused the injury. Goebert v.

Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007). To satisfy the subjective

component, the plaintiff must prove the prison official subjectively knew of a risk

of serious harm, the official disregarded that risk, and the official’s conduct was

more than gross negligence. Id. at 1326-27. Courts are competent to decide as a

matter of law whether a plaintiff has met this “difficult burden.” West v. Tillman,

496 F.3d 1321, 1327 (11th Cir. 2007) (internal quotation marks and emphasis

omitted).

      Deliberate indifference may be shown where there is “[g]rossly incompetent

or inadequate care,” see Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989),

the official refuses to provide medical care he knows is necessary, see Ancata v.

Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985), or the official

delays in providing necessary diagnostic care or medical treatment for non-medical

reasons, see H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086 (11th Cir. 1986). But



                                           3
see Harris v. Coweta County, 21 F.3d 388, 393-94 (11th Cir. 1994) (noting a delay

in providing treatment may be constitutionally tolerable, depending on the “nature

of the medical need and the reason for the delay”). Mere inadvertence, negligence,

or medical malpractice does not rise to the level of deliberate indifference, Estelle,

97 S. Ct. at 292, “[n]or does a simple difference in medical opinion,” Waldrop, 871

F.2d at 1033.

      In this case, evidence showed Fischer suffered from an enlarged prostate and

chronic blood clotting in his right leg. Dr. Tidwell began treating Fischer at USP

Coleman in 2003 by prescribing medication to prevent blood clotting and

monitoring the effect of that medication on him. In June 2004, Dr. Tidwell sent

Fischer to a consultation with a urologist, who inserted a catheter and

recommended prostate reduction surgery following a prostate biopsy to rule out

prostate cancer. Upon Fischer’s return to USP Coleman, Dr. Tidwell removed the

catheter to reduce the risk of an infection and ordered a prostate biopsy, which had

to be scheduled after Fischer had been taken off of the medication used to treat his

blood clotting condition. The urologist completed the prostate biopsy in October

2004 and prison personnel received the results, which showed no indication of

cancer, in November 2004.




                                           4
       Ten days later, Fischer came to the prison medical clinic twice complaining

of weakness, blood in his urine, and tenderness of his abdomen, and Dr. Tidwell

ordered, over the telephone, that he be taken to the hospital emergency room.

There, Fischer was diagnosed with renal failure, sepsis, and retroperitoneal

bleeding due to thin blood, and he was hospitalized for about four weeks. Upon

his return to prison, Dr. Tidwell continued treating Fischer, and about a month

later, in January 2005, a urologist performed prostate reduction surgery on Fischer.

Fischer submitted a brief opinion letter from an outside urologist, Dr. Jay

Copeland, who opined that Dr. Tidwell was negligent in treating Fischer and

delaying routine prostate reduction surgery.

       After de novo review, viewing all evidence and reasonable factual inferences

in the light most favorable to Fischer, see Turnes v. AmSouth Bank, N.A., 36 F.3d

1057, 1060 (11th Cir. 1994), we conclude the district court did not err in granting

summary judgment to Dr. Tidwell on Fischer’s deliberate indifference claim.2 The

evidence in the record indicates Dr. Tidwell exercised his medical judgment in

treating and monitoring Fischer’s prostate condition. Evidence of potential error in



       2
         We note that Fischer has waived any claim related to the blood clotting in his leg
because he did not address that issue in response to Dr. Tidwell’s motion for summary judgment.
See Transamerica Leasing, Inc. v. Inst. of London Underwriters, 267 F.3d 1303, 1308 n.1 (11th
Cir. 2001). We also decline to address the exhibits Fischer attached to his brief because they are
not part of the record. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 609-610 (11th Cir. 1991).

                                                5
Dr. Tidwell’s medical judgment, or a difference in medical opinion from another

doctor, did not create a genuine issue of material fact because it did not

demonstrate action beyond gross negligence. See Goebert, 510 F.3d at 1327; see

also Waldrop, 871 F.2d at 1033. Accordingly, we affirm the district court’s grant

of summary judgment to Dr. Tidwell.

      AFFIRMED.




                                           6
