                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           JAN 24, 2007
                            No. 05-16748                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                  D.C. Docket No. 04-01790-CV-RLV-1

JOHNNY WOODS,

                                                          Plaintiff-Appellant,

                                 versus

SHERIFF PHIL D. MILLER,
NANCY HARRINGTON,
M.D. SAURABH D. DESAI,


                                                       Defendants-Appellees.


                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                    _________________________

                           (January 24, 2007)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
       Johnny Woods, a Georgia state prisoner, appeals pro se the district court’s

dismissal for failing to state a claim on his 42 U.S.C. § 1983 action alleging

deliberate indifference to his known medical needs.1 On appeal he argues that the

facts as alleged in his amended complaint provided an arguable basis for a claim of

deliberate indifference to his serious medical condition. Woods alleged that he

suffered a back injury and was denied necessary medical care by the defendants, all

of which resulted in severe and prolonged pain. Upon review of the record and

Woods’s brief,2 we conclude that the district court erred by dismissing the claim

and vacate and remand.

       We review de novo a district court’s sua sponte dismissal of a complaint

pursuant to § 1915A(b)(1). Leal v. Ga. Dep’t of Corrs., 254 F.3d 1276, 1278-79

(2001) (applying the same standard of review applied to Fed.R.Civ.P. 12(b)(6)

dismissal for failure to state a claim). In reviewing whether a plaintiff has stated a

claim, we accept “the allegations in the complaint as true and constru[e] them in

the light most favorable to the plaintiff.” Behrens v. Regier, 422 F.3d 1255, 1259



       1
          Woods also alleged that defendants Dr. Desai and Nurse Harrington retaliated against
him for his grievances by repeatedly placing him in segregation. The district court dismissed
this claim, and Woods offered no argument regarding the retaliation claim in his initial brief.
We therefore consider the issue abandoned on appeal. See Access Now, Inc. v. Southwest
Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
       2
        The defendants in this case were never served as Woods’s claim was dismissed
pursuant to 28 U.S.C. § 1915A(b)(1). The defendants thus did not file an appellate brief.

                                                2
(11th Cir. 2005) (reviewing a Rule 12(b)(6) dismissal). “Pro se pleadings are held

to a less stringent standard than pleadings drafted by attorneys and will, therefore,

be liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).

      In order to state a claim for relief under § 1983, “a plaintiff must show that

he or she was deprived of a federal right by a person acting under color of state

law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Each

of the defendants appears to have worked for the state. Assuming that, the only

question is whether it is clear beyond doubt that Woods failed to state a claim of

deliberate indifference to a serious medical condition under the Eighth

Amendment.

      The Eighth Amendment prohibits only the infliction of “cruel and unusual

punishments.” U.S. Const. amend. VIII. As a result, to state a claim under the

clause, a prisoner must allege, first, a condition that constituted an objectively

“cruel and unusual deprivation,” and second, that the officials responsible for the

condition had a subjective intent to punish. Taylor v. Adams, 221 F.3d 1254, 1257

(11th Cir. 2000).

      One way for a prisoner to show an Eighth Amendment violation is by

proving that prison medical officials were deliberately indifferent to his serious

medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976).



                                           3
Such a claim has two elements. “First, the plaintiff must prove an objectively

serious medical need. Second, the plaintiff must prove that the prison official

acted with deliberate indifference to that need.” Brown v. Johnson, 387 F.3d 1344,

1351 (11th Cir. 2004). “A serious medical need is considered 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.

“To establish the second element, deliberate indifference to the serious medical

need, the prisoner must prove three facts: (1) subjective knowledge of a risk of

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

negligence.” Id.

      It is not clear beyond doubt that Woods has failed to allege a serious medical

need. He alleges that he suffered a back injury; that Desai and Harrington on

several occasions failed to respond to his requests for medical attention; that when

they did respond, their prescriptions were ineffective for treating the damage to his

lumbar region and sciatic nerve; that surgery was the only effective way to treat the

problem; and finally, that his medication was entirely discontinued after the

defendants incorrectly determined that he was a medical abuser. As a result of all

of this, Woods claims that he suffered severe and prolonged pain. The facts might

eventually show that Woods and the doctors merely had a difference of opinion on



                                          4
the proper course of treatment, which would not be sufficient to show an Eighth

Amendment violation. See Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.

1991) (“Nor does a simple difference in medical opinion between the prison’s

medical staff and the inmate as to the latter’s diagnosis or course of treatment

support a claim of cruel and unusual punishment”). But if proven, Woods’s

allegations would arguably show an objectively serious medical need. See Hill v.

Dekalb Rg’l Youth Det. Ctr., 40 F.3d 1176, 1187 n.21 (11th Cir. 1994) (citing

cases which may be comparable to Woods’s where serious medical need was

shown, including six-hour delay in treating serious and painful broken foot,

three-day delay in treating shoulder injury, and two-and-a-half hour delay in

treating cut over eye).

      Woods has also alleged facts that, if proven, might show deliberate

indifference on the part of Desai and Harrington An inmate may show deliberate

indifference in a number of ways: (1) actual knowledge of a serious need for

medical care, plus a failure to treat; (2) delay in treatment, potentially “even for a

period of hours”; (3) “grossly inadequate care”; (4) “a decision to take an easier but

less efficacious course of treatment”; or (5) “medical care which is so cursory as to

amount to no treatment at all.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th

Cir. 1999). Woods alleges that Desai and Harrington actually knew about his



                                            5
serious back condition (at the latest after they received the X-rays from the

hospital), and refused him treatment not for any medical reason but rather solely to

avoid tort liability and hospital bills. He has also alleged grossly inadequate care,

claiming that the prescriptions were wholly ineffective in treating his pain, and that

surgery was the only possible treatment. See id. at 1257 (prison official may not

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

These facts, if proven, may allow a jury to infer that the medical officials had penal

intent, and were not merely negligent or making a judgment call in refusing to

allow Woods to have the surgery. See id. at 1257 (“A jury could infer deliberate

indifference from the fact that Dr. Foley knew the extent of [the inmate's] pain,

knew that the course of treatment was largely ineffective, and declined to do

anything more to attempt to improve [the inmate's] condition”). We therefore

conclude that the district court erred by dismissing sua sponte the Eighth

Amendment claims against Desai and Harrington.

      Woods further alleged that Sheriff Miller was liable under a respondeat

superior theory for his acquiescence in Harrington and Desai’s acts of deliberate

indifference, and for his “failure to correct” those acts. Generally, “supervisory

officials are not liable under § 1983 for the unconstitutional acts of their

subordinates on the basis of respondeat superior or vicarious liability.” Miller v.



                                           6
King, 384 F.3d 1248, 1261 (11th Cir. 2004). Rather, a supervisor is liable under §

1983 only when (1) the supervisor personally participates in the alleged

unconstitutional conduct, or (2) there is a causal connection between the actions of

a supervising official and the alleged constitutional deprivation.” Id. One way to

show a causal connection is by proving facts that support an inference that the

supervisor directed the subordinates to act unlawfully or that the supervisor knew

that the subordinates would act unlawfully and failed to stop them from doing so.

Id.

      While Woods has not alleged that Miller personally participated in the

failure to treat, or that Miller directed Harrington and Desai to act unlawfully,

Woods has alleged that he sent a letter to Miller detailing Harrington and Desai’s

acts, that Miller knew of those acts, and that Miller did nothing to prevent the

continuation of those acts. Woods has thus alleged facts that, if proven, may state

a claim against Miller under § 1983, and the district court erred by dismissing the

claim against him.

      Taking the allegations as true, the defendants should be served and given an

opportunity to respond to Woods’s claim.



VACATED AND REMANDED.



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