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                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 17-10699
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:15-cv-14105-RLR



VICENTE BRAVO,

                                                          Plaintiff-Appellant,


                                versus


JUAN LOOR-TUAREZ,
Medical Doctor,
FLORIDA HOSPITAL HEARTLAND,
FLORIDA HOSPITAL HEARTLAND MEDICAL CENTER,
ADVENTIST HEALTH SYSTEM/SUNBELT, INC.,
JOHN DOE SURGICAL DOCTORS 1-3, et al.,

                                                       Defendants-Appellees.

                     ________________________

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

                           (March 6, 2018)
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Before WILSON, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

      Vicente Bravo, proceeding pro se, appeals the district court’s sua sponte

dismissal of his 42 U.S.C. § 1983 amended complaint under 28 U.S.C.

§ 1915(e)(2)(B)(ii). First, Bravo argues that the district court erred in dismissing

his amended complaint for failure to state a claim because he raised plausible

constitutional claims of deliberate indifference to his serious medical needs.

Second, he argues that the district court abused its discretion in determining that it

had to dismiss his state law tort claims for lack of jurisdiction following the

dismissal of his related federal civil rights claim. Finally, he argues that the district

court abused its discretion in denying his motions for appointment of counsel and

for leave to conduct discovery. After careful review, we affirm in part and reverse

and remand in part.

                                           I.

      Bravo is a state prisoner at Avon Park Correctional Institution in Florida.

On November 14, 2012, Bravo became sick. On November 18, he was transported

and admitted to Heartland Hospital. A doctor at the hospital diagnosed Bravo with

a bowel obstruction and performed surgery to remove a section of his intestine on

November 19. Bravo says that he began to complain about pain in his abdomen

almost immediately after surgery and told medical staff it felt like “something was


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inside of him.” Bravo says he experienced severe pain, suffered massive weight

loss, and showed clear signs of infection in the days following his surgery. But

Bravo says his doctors waited eight days after his surgery to perform an MRI,

which “confirmed the existence of foreign objects” inside him. Bravo says his

surgeons inadvertently left surgical clips or clamps and possibly surgical gauze in

his abdomen after his first surgery. On December 1, Bravo had a second surgery,

which he says was “sole[l]y necessitated by the clips/clamps (possible surgical

gauze) left inside of Bravo” from his first surgery. Bravo says he “continues to

experience pain from the effects of these surgical implements that were left inside

of him.”

      In his amended complaint, Bravo raised a claim under 42 U.S.C. § 1983,

arguing that the ten-day delay between his surgeries constituted deliberate

indifference to a serious medical condition in violation of the Eighth Amendment.

He also raised state law claims for medical malpractice. Bravo filed a motion

requesting appointment of counsel, which the district court denied.

      A magistrate judge prepared a Report and Recommendation (“R&R”),

recommending that Bravo’s § 1983 claim be dismissed for failure to state a claim

upon which relief can be granted. The magistrate judge determined that the facts

Bravo presented showed at most negligence, not the deliberate indifference

required to state a claim under the Eighth Amendment. The magistrate judge also


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held that because the court was dismissing all of Bravo’s federal claims, the district

court lacked jurisdiction over Bravo’s state law medical malpractice claims.

      Bravo objected to the R&R. He argued he had pled enough facts to show

deliberate indifference because the medical staff unnecessarily waited ten days

before performing the second surgery to remove the metal clips left behind from

his first surgery. In addition, Bravo said the magistrate judge erred in stating that,

because Bravo had no viable federal claim, the court was precluded from

exercising supplemental jurisdiction over his state law claims. Bravo said “[t]he

court was not required to accept jurisdiction over the Plaintiff’s pendent state law

claims, but it could have.” Bravo also argued dismissal was inappropriate because

he had requested discovery and the appointment of counsel, which the court did

not provide.

      The district court adopted the R&R and dismissed Bravo’s claims. The

district court also denied Bravo’s other motions as moot. This appeal followed.

                                          II.

      We review de novo a district court’s dismissal of a § 1983 complaint for

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Leal v. Ga. Dep’t of

Corr., 254 F.3d 1276, 1278 (11th Cir. 2001) (per curiam). The Prison Litigation

Reform Act provides that any in forma pauperis action shall be dismissed if it fails

to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).


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“The language of section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of

Civil Procedure 12(b)(6),” and the same standard is used to govern dismissals

under both provisions. Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

      To survive dismissal under Rule 12(b)(6), a pleading must make a claim for

relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570, 127 S. Ct. 1955, 1974 (2007). Facially plausible claims are those that

“allow[] the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Speaker v. U.S. Dep’t of Health & Human Servs., 623

F.3d 1371, 1380 (11th Cir. 2010) (quotation omitted). Exhibits that are attached to

a pleading are considered alongside the pleading, but “when the exhibits contradict

the general and conclusory allegations of the pleading, the exhibits govern.”

Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007); see also Fed. R.

Civ. P. 10(c). “[A] pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers and can only be

dismissed for failure to state a claim if it appears beyond doubt that the plaintiff

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

Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976) (quotations

omitted).

      The Eighth Amendment forbids cruel and unusual punishment, which the

Supreme Court has interpreted to include “deliberate indifference to serious


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medical needs of prisoners.” Id. at 104, 97 S. Ct. at 291. To prove a deliberate

indifference claim, a plaintiff must satisfy both an objective and a subjective test.

Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). First, a plaintiff must show

that he had an “objectively serious medical need.” Id. Second, a plaintiff must

prove that the defendant acted with deliberate indifference to the serious medical

need by (1) having subjective knowledge of a risk of serious harm, (2) disregarding

the risk, and (3) displaying conduct beyond mere negligence. Id. at 1243, 1245.

“Even where medical care is ultimately provided, a prison official may nonetheless

act with deliberate indifference by delaying the treatment of serious medical needs,

even for a period of hours, though the reason for the delay and the nature of the

medical need is relevant in determining what type of delay is constitutionally

intolerable.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).

However, an inadvertent or negligent failure to provide adequate medical care does

not constitute deliberate indifference. Estelle, 429 U.S. at 105–06, 97 S. Ct. at 292.

      Bravo argues that the defendants were deliberately indifferent to his serious

medical needs because they waited ten days before performing his second surgery

and did nothing to treat his pain effectively. He says his doctors knew he needed

surgery, “[y]et for reasons of convenience and for financial concerns, not medical

need, the surgery was put off for ten days.”




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      The magistrate judge found that the medical records Mr. Bravo provided

refuted the allegations in his complaint. Although we agree that the medical

records do not provide a clear understanding of what occurred, when, or why, we

do not believe the records preclude Mr. Bravo’s claims. The medical records

include post-surgical radiology reports that describe “suture materials and clips”

within Mr. Bravo’s his abdomen, which could support the version of facts as set

forth in Mr. Bravo’s complaint. The medical records, read in a certain way, may

suggest that these suture materials and clips were intentionally used inside Mr.

Bravo to repair his intestine after the blocked section was removed. But they are

not definitive.

      The records do not definitively show a second surgery on December 1. Nor

do they show that the purpose of a second surgery was to remove these suture

materials and clips. Rather, the discharge summary indicates a second laparotomy

occurred on or before November 27, to drain an abscess, which had been noted as

early as November 24. Two days in a row, the discharge summary refers to

meeting with the surgeon to discuss “possible wound closure on Friday,” perhaps

indicating that the medical team had not yet closed his surgical wound as of

November 27 and November 28. Here again, the records are not clear, but we do

not have enough information to say for certain that Mr. Bravo has not set forth

facts sufficient to make his claim plausible.


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       Finally, twice in the medical records, the doctor states: “There are opacities

in the abdomen these are believed to be suture materials and clips. No definite

surgical needle is seen.” This phrase, “no definite surgical needle is seen,” could

be an error in the transcription of the doctor’s dictated note: “no definite surgical

need is seen”—but exactly what was meant by this phrase is unclear from the face

of the record, and we certainly should not construe the records against Mr. Bravo

at this point.

       In sum, at this stage in the litigation, it is not appropriate to draw negative

inferences from the silences or ambiguities in the medical records, as the district

court did. We do not believe that the records definitively “show there was always

consideration of a second operation to close the wound,” nor can we say exactly

why or when later operations occurred. A plaintiff’s alleged facts must be taken as

true unless contradicted by exhibits, and here the medical records do not

completely refute Mr. Bravo’s claims. See Griffin, 496 F.3d at 1206. Mr. Bravo’s

allegations that he told his doctors he felt something inside of him, and that they

disregarded his complaints even though his condition was deteriorating, state a

claim for relief that is plausible on its face. Twombly, 550 U.S. at 570. Based on

the pleadings, and drawing all reasonable inferences in Bravo’s favor, it does not

“appear[] beyond doubt that [he] can prove no set of facts in support of his claim

which would entitle him to relief.” Estelle, 429 U.S. at 106, 97 S. Ct. at 292


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(quotation omitted). We therefore reverse the district court’s dismissal of Bravo’s

§ 1983 claim under 28 U.S.C. § 1915(e)(2)(B)(ii) and remand for further

proceedings.

                                          II.

      We review the district court’s decision not to exercise supplemental

jurisdiction over a state law claim for abuse of discretion. Parker v. Scrap Metal

Processors, Inc., 468 F.3d 733, 738 (11th Cir. 2006). “[T]he district court is in the

best position to weigh the competing interests . . . in deciding whether it is

appropriate to exercise supplemental jurisdiction.” Lucero v. Trosch, 121 F.3d

591, 598 (11th Cir. 1997). But a district court abuses its discretion if it applies an

incorrect legal standard. Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009).

      A district court has original jurisdiction over claims “arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. When a

district court has original jurisdiction over some claims, it “shall have

supplemental jurisdiction over all other claims that are so related to claims in the

action within such original jurisdiction that they form part of the same case or

controversy.” Id. § 1367(a). A district court “may decline to exercise

supplemental jurisdiction” over state law claims when, among other things, it has

“dismissed all claims over which it has original jurisdiction.” Id. § 1367(c)(3)

(emphasis added). “A district court therefore has the discretion to continue to


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exercise jurisdiction over state law claims in a case even after dismissing the

federal claim that created the original jurisdiction.” Pintando v. Miami-Dade

Hous. Agency, 501 F.3d 1241, 1242–43 (11th Cir. 2007) (per curiam). In deciding

whether to decline the exercise of supplemental jurisdiction, a district court should

consider factors such as “judicial economy, convenience, fairness to the parties,

and whether all the claims would be expected to be tried together” when making

the ultimate decision of whether or not to exercise supplemental jurisdiction. See

Palmer v. Hosp. Auth. of Randolph Cty., 22 F.3d 1559, 1569 (11th Cir. 1994).

       We have now reversed the district court’s dismissal of Bravo’s § 1983 claim,

and in light of that ruling, we reverse the ruling on supplemental jurisdiction as

well. Bravo’s state law claims formed part of the same case or controversy as his

federal law claims, and the district court had the power to exercise supplemental

jurisdiction over them even after dismissing the federal law claims. 1 See Pintando,

501 F.3d at 1242–43. We thus remand for the district court to consider whether

judicial economy, convenience, and fairness to the parties counsel in favor of
       1
          The magistrate judge’s R&R, which the district court adopted in full, said, “Here the
plaintiff, having failed to state a claim for relief under 42 U.S.C. § 1983[, ] cannot present his
state tort law claim.” The R&R also referred to “the absence of jurisdiction” over Bravo’s state
law claims. These are not correct statements of law. Certainly, a court may exercise its
discretion to dismiss state law claims after dismissing all federal claims, but if it does so, this
dismissal is not required due to a lack of subject matter jurisdiction over those claims. See
Carlsbad Tech., Inc. v HIF Bio, Inc., 556 U.S. 635, 640, 129 S. Ct. 1862, 1867 (2009). We also
recognize that this Court has “encouraged” the dismissal of state law claims where all federal
claims have been dismissed prior to trial, but again, the district court does retain discretion to
exercise jurisdiction over state law claims in that circumstance. Raney v. Allstate Ins. Co., 370
F.3d 1086, 1088–89 (11th Cir. 2004) (per curiam).

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exercising supplemental jurisdiction over Bravo’s state law claims, in light of the

new posture of the case. See Palmer, 22 F.3d at 1569 (noting that “whenever a

federal court has supplement jurisdiction under section 1367(a), that jurisdiction

should be exercised unless section 1367(b) or (c) applies”).

                                           III.

      We review the denial of a motion for the appointment of counsel for abuse

of discretion. See Steele v. Shah, 87 F.3d 1266, 1270–71 (11th Cir. 1996).

“Discretion means the district court has a range of choice, and that its decision will

not be disturbed as long as it stays within that range and is not influenced by any

mistake of law.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292,

1306–07 (11th Cir. 2011) (quotation omitted).

      A district court may appoint counsel for an indigent plaintiff in a civil case

but is not required to do so. See 28 U.S.C. § 1915(e)(1). “[P]risoners raising civil

rights claims, like other civil litigants, have no absolute constitutional right to

counsel.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). But the

appointment of counsel in civil cases is appropriate when there are “exceptional

circumstances, such as the presence of facts and legal issues which are so novel or

complex as to require the assistance of a trained practitioner.” Id. (quotation

omitted and alteration adopted).




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      The district court did not abuse its discretion in declining to appoint counsel

to represent Bravo. In its paperless order denying Bravo’s motion for appointment

of counsel, the district court wrote that it had “reviewed this case and finds that no

compelling circumstances require the extraordinary procedure of seeking counsel

for the plaintiff.” In his brief, Bravo acknowledged that the appointment of

counsel in his case was within the discretion of the district court and makes no

specific argument for why his case is especially complex. Indeed, in his argument

that the district court should have accepted supplemental jurisdiction over his state

law claims, Bravo said his medical malpractice claims, which arise from the same

set of operative facts, were “straightforward and simple.” We therefore conclude

that the district court did not abuse its discretion in finding that there were no

exceptional circumstances to warrant appointment of counsel. See Kilgo, 983 F.2d

at 193.

                                          IV.

      Finally, Bravo argues that the district court erred in denying his request for

leave to conduct discovery. The district court’s denial of Bravo’s request to

conduct discovery was consistent with its dismissal of his complaint. Because we

have reversed the district court’s dismissal of Bravo’s complaint, he may seek

discovery on remand, consistent with the Federal Rules of Civil Procedure.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.


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