                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 11-10926                ELEVENTH CIRCUIT
                         Non-Argument Calendar           SEPTEMBER 21, 2011
                       ________________________               JOHN LEY
                                                               CLERK
                   D.C. Docket No. 3:09-cv-01396-CLS

STEPHEN ALEXANDER,

                                                          Plaintiff - Appellant,

                                  versus

CITY OF MUSCLE SHOALS, ALABAMA,
ROBERT EVANS,
EDDIE LANG,
TOMMY SKIPWORTH,
CHARLES SOCKWELL, et al.,

                                                      Defendants - Appellees.

                      ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                           (September 21, 2011)

Before WILSON, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
      Stephen Alexander appeals the summary judgment against his complaint

that his civil rights were violated by the City of Muscle Shoals and its employees.

42 U.S.C. § 1983. Alexander argues that he was entitled to amend his complaint

to add a cause of action against the City. Alexander also argues that genuine

issues of fact exist about whether the City violated his right to due process under

the Fourteenth Amendment and whether deputies at the City jail were deliberately

indifferent to Alexander’s need for medical treatment. We affirm.

      The district court did not abuse its discretion by denying Alexander’s

motion for leave to amend his complaint. Alexander filed his motion five months

after the original deadline for the completion of discovery, two months after the

deadline had been extended twice at his request, and a month after the defendants

had moved for summary judgment. See Lowe’s Home Ctrs., Inc. v. Olin Corp.,

313 F.3d 1307, 1315 (11th Cir. 2002). Alexander also failed to establish good

cause to amend his complaint. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417,

1418 (11th Cir. 1998). Alexander sought to add a new claim that the City had

violated his right to due process under the Fourth Amendment by denying him a

probable cause hearing. Alexander proffered as good cause that his attorney had

been unaware of the difference between his rights to an initial appearance hearing

and to a hearing to determine probable cause, but a city magistrate judge, in a

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deposition, explained to the attorney more than three weeks before the revised

discovery deadline that “probable cause and initial appearance [are] two different

things.” Because Alexander failed to act diligently on that information, his

request to amend his complaint after expiration of the deadlines in the scheduling

order was not supported by good cause.

      Alexander complained that the City violated his right to due process under

the Fourteenth Amendment by failing to provide him an initial appearance

hearing, but Alexander failed to present evidence of a municipal custom or policy

of denying hearings for initial appearances. For the City to be liable, Alexander

had to establish: “(1) that his constitutional rights were violated; (2) that the [City]

had a custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the policy or custom caused the violation.”

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). This Court has not

addressed whether a detainee has a constitutional right to an initial appearance

hearing, but we need not resolve that issue because Alexander failed to prove that

the City had adopted a “custom” or a “‘permanent and well settled’ practice[],”

Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985) (quoting

Adickes v. S.H. Kress & Co., 398 U.S. 144, 167, 90 S. Ct. 1598, 1613 (1970)), of

denying detainees an initial appearance hearing. On the contrary, two magistrate

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judges, Vonda Green and Bobby Muse, testified that they conducted initial

appearance hearings routinely and that the City had a written policy requiring

magistrate judges to conduct those hearings in accordance with the Alabama Rules

of Criminal Procedure. The district court did not err by granting summary

judgment in favor of the City and against Alexander’s complaint about a violation

of due process.

      Alexander also failed to prove that deputies at the jail acted with deliberate

indifference to Alexander’s need for treatment of a staph infection on his leg.

Alexander had to establish that he had a medical need of which the deputies were

subjectively aware, but ignored based on “more than gross negligence.”

Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010). Although

Alexander complained to deputies for two days about pain in his leg that

prevented him from standing or walking, Alexander told the deputies that he was

suffering from gout and the deputies regularly administered medication to treat

that ailment. Alexander also did not prove that his need for other medical

attention was apparent to the “untrained eye” of the deputies. Youmans v.

Gagnon, 626 F.3d 557, 564 n.8 (11th Cir. 2010). Photographs taken of

Alexander’s leg depict a blister-like lesion on his leg, but Alexander did not allege

that the deputies saw the lesion or that they should have identified the lesion as a

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sign of a staph infection. It is unclear from the record that the deputies would

have seen any physical manifestation of the staph that would have made it

apparent that Alexander required medical treatment. Alexander’s doctor, who saw

Alexander twelve hours after he had been released from jail, testified that the

lesion could have developed in a matter of hours. The district court correctly

granted summary judgment in favor of the deputies on the ground of qualified

immunity.

      We AFFIRM the judgment in favor of the City and its employees.




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