                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUNE 16, 2008
                             No. 07-15088                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 07-00082-CV-5-MCR-MD

ENRIQUE ACOSTA,

                                                           Plaintiff-Appellant,

                                  versus

HARRELL WATTS,
Administrator of National Inmate Appeals,
UNKNOWN NAMED PERSONNEL OF THE OFFICE OF MEDICAL
DESIGNATION AND TRANSPORTATION,

                                                        Defendants-Appellees.


                       ________________________

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

                              (June 16, 2008)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Enrique Acosta appeals pro se both the dismissal sua sponte of his complaint

that Administrator Harrell Watts of the Bureau of Prisons and unknown personnel

of the Office of Medical Designation and Transportation violated his civil rights

under the Eighth Amendment and the denial of his request for appointment of

counsel. 28 U.S.C. § 1915(e)(2)(B)(ii). We affirm in part, reverse in part, and

remand.

                                I. BACKGROUND

      Acosta was involved in a car accident that caused a deformity in his elbow.

Later, while Acosta was incarcerated, the injury worsened. The prison medical

staff examined Acosta and provided medication to alleviate the pain. Acosta later

filed a petition for “informal resolution” in which he alleged that several doctors

had recommended surgery for his elbow. The medical staff referred Acosta for

examination by an orthopedic surgeon, upon approval by a prison review board.

      After several months passed, Acosta filed a petition with Warden Scott

Middlebrooks that alleged that Acosta was in “intense pain” and repeated his

request for surgical treatment. Warden Middlebrooks requested the Bureau of

Prisons approve the surgery. Acosta later filed an administrative appeal with the

regional director of the Bureau of Prisons and requested surgery. The regional

director responded that Acosta’s request was under review.



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      A panel comprised of the Regional Utilization Review Committee, Regional

Health Systems Administrator, and Regional Medical Director reviewed Acosta’s

medical file and ruled that the deformity in Acosta’s arm “require[d] extensive

surgery” and rehabilitation. The panel found that treatment should be provided at a

federal medical center and forwarded a request for Acosta’s transfer to the Office

of Medical Designation. When Acosta did not receive a response from the Office

of Medical Designation, he filed another administrative appeal.

      The Office of Medical Designation reviewed “[r]elevant portions of

[Acosta’s] medical record . . . which reveal[ed] [that he] suffer[ed] from right arm

degenerative joint disease.” The entity “determined [that Acosta’s] condition

[could] be managed conservatively” and denied the request made by the regional

medical panel to transfer Acosta to a federal medical center for surgery. Harrell

Watts, Administrator of National Inmate Appeals, denied Acosta’s appeal based on

the decision of the Office of Medical Designation.

      Acosta filed an amended complaint under Bivens v. Six Unknown Named

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

Watts and unknown named personnel of the Office of Medical Designation.

Acosta alleged that he was “suffering from an extr[e]mely painful and severe

injury/deformation” to his elbow that “require[d]” surgery and the “den[ial]” of



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and “interferen[ce]” with that medical care by Watts and unnamed personnel of the

Office of Medical Designation violated his rights under the Eighth Amendment.

Acosta alleged that the denial of surgery in spite of his persistent pain and the

“progressive deteriorating” of his arm constituted deliberate indifference to his

medical needs.

      A magistrate judge concluded that Acosta failed to state a constitutional

claim and recommended that the district court dismiss Acosta’s complaint. 28

U.S.C. § 1915(e)(2)(B)(ii). Acosta moved for appointment of counsel and objected

to the recommendation. The district court adopted the recommendation of the

magistrate judge and denied Acosta’s request for counsel as moot.

                           II. STANDARD OF REVIEW

      We review de novo a dismissal for failure to state a claim. Hughes v. Lott,

350 F.3d 1157, 1159–60 (11th Cir. 2003). We construe liberally pro se pleadings,

Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), accept allegations in the

complaint as true, and draw all reasonable inferences in favor of the plaintiff.

Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). We review the denial of

a motion for appointment of counsel for abuse of discretion. Bass v. Perrin, 170

F.3d 1312, 1319 (11th Cir. 1999).




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                                  III. DISCUSSION

      Acosta challenges the dismissal of his complaint on two grounds. First,

Acosta argues that his complaint stated a claim of deliberate indifference. Second,

he argues that the denial of his request for appointment of counsel was erroneous.

We address each issue in turn.

               A. Acosta Alleged a Claim of Deliberate Indifference
         Against Unknown Personnel of the Office of Medical Designation,
                              But Not Against Watts.

      The district court erred by dismissing Acosta’s complaint for failure to state

a claim. “The threshold of sufficiency that a complaint must meet to survive a

motion to dismiss for failure to state a claim is . . . ‘exceedingly low.’” Ancata v.

Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir. 1985) (quoting Quality

Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev., 711 F.2d 989, 995

(11th Cir. 1983)). To dismiss, it must “appear[] to a certainty, ‘that the plaintiff

can prove no set of facts in support of his claim which would entitle him to relief.’”

Id. (quoting Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984)).

      To establish a claim of deliberate indifference under the Eighth Amendment,

an inmate must allege that officials have made an “omission[] sufficiently harmful

to evidence deliberate indifference to [the inmate’s] serious medical needs.”

Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). The inmate “must



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satisfy both an objective and a subjective inquiry.” Farrow v. West, 320 F.3d

1235, 1243 (11th Cir. 2003). First, the inmate must allege that he has been

diagnosed with or obviously exhibits an objectively serious medical need that, if

not treated, “pos[es] a substantial risk of serious harm.” Id. (quoting Taylor v.

Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (internal quotation marks omitted)).

Second, the inmate must allege that the medical condition requires treatment that a

prison official has chosen to disregard. Id. at 1245.

      Acosta’s amended complaint fails to allege sufficient facts to state a claim of

deliberate indifference against Watts. Acosta alleged that Watts denied Acosta an

administrative appeal and request for surgery. The ruling by Watts establishes that

he denied Acosta’s appeal based on a clinical determination by the Office of

Medical Designation that Acosta did not require surgery. Watts cannot be held

liable for a constitutional tort when his administrative decision was grounded in a

decision made by medical personnel. See Howell v. Evans, 922 F.2d 712, 723

(“We do not dispute [the] right to rely on medical professionals for clinical

determinations.”), vacated by settlement, 931 F.2d 711 (11th Cir. 1991), reinstated

by order, 12 F.3d 190 n.* (11th Cir. 1994); see also Dolihite v. Maughon ex rel.

Videon, 74 F.3d 1027, 1054–55 (11th Cir. 1996) (awarding director of adolescent

center summary judgment on section 1983 due process complaint when director



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could “reasonably rely on” judgment of medical personnel to secure suicidal

youth’s surroundings). We affirm the dismissal of Acosta’s complaint against

Watts.

         Acosta’s complaint alleges sufficient facts to state a claim of deliberate

indifference against unknown named personnel in the Office of Medical

Designation. See Bivens, 403 U.S. at 397, 91 S. Ct. at 2005 (recognizing an action

for damages against unknown federal agents for the violation of constitutional

rights). Acosta alleged that he had a serious medical need and attached to his

complaint the ruling by regional medical experts that the deformity to his arm

“require[d] extensive surgery and post surgical rehabilitation.” Acosta also alleged

that his continued “conservative treatment” with painkillers had led to his arm

“dramatically shrinking day by day.” Acosta complained that, despite knowledge

by unnamed personnel in the Office of Medical Designation that he “suffer[ed]

from right arm degenerative joint disease,” they disregarded the opinions of the

regional medical experts and directed that Acosta “continue to [receive] . . .

conservative treatment.” Acosta argued, in effect, that this level of medical care

was “so cursory as to amount to no treatment at all,” and was sufficient to establish

a claim of deliberate indifference. Ancata, 769 F.2d at 704; see also McElligott v.

Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (decisions to take an “easier but less



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efficacious course of treatment” and to provide medical care that is “so cursory as

to amount to no treatment at all” are actionable as deliberate indifference). We

reverse the dismissal of Acosta’s complaint against the unnamed personnel of the

Office of Medical Designation.

                    B. Acosta’s Request for Counsel Was Moot.

      The district court did not err by denying Acosta’s motion for appointment of

counsel. When Acosta filed his motion, the district court had already dismissed

Acosta’s complaint, which rendered the need for counsel moot. See Connell v.

Bowen, 797 F.2d 927, 929 (11th Cir. 1986). On remand, the district court should

decide whether exceptional circumstances exist to warrant the appointment of

counsel.

                                 IV. CONCLUSION

      The dismissal of Acosta’s complaint is AFFIRMED in part, REVERSED

in part, and REMANDED for further proceedings.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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