          Case: 17-15523   Date Filed: 10/01/2018   Page: 1 of 13


                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 17-15523
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:16-cv-01483-LSC-HNJ


MATTHEW SHERMAN PHILLIPS,

                                                           Plaintiff-Appellant,

                                versus

JERRY EDWARD ROBBINS, JR., M.D.,
DR. IVAN PROVISION, M.D.,
DR. SUSSMUNE STUBBS,
MS. MCELROY,
Nurse Administrator, Limestone,
MS. SOPHIA CLEMMONS, RN,
Limestone, et al.,

                                                       Defendants-Appellees.

                      ________________________

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

                            (October 1, 2018)
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Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

       Matthew Phillips, an Alabama prisoner proceeding pro se, appeals the

district court’s sua sponte dismissal of his 42 U.S.C. § 1983 action for failure to

state a claim, pursuant to 28 U.S.C. § 1915A(b). Phillips alleged that prison

healthcare providers intentionally denied and delayed adequate treatment for his

back injury. On appeal, Phillips argues the district court’s dismissal was error.

After careful review, we affirm.

                                            I.

       According to Phillips’s amended complaint, he suffered a “shocking pain” in

his lower back and legs on April 15, 2015, while he was working in the prison’s

laundry department. Phillips fell down and was helped to the health care unit.

Nurse McIntosh listened to Phillips describe what happened and diagnosed him

with an “inflamed muscle.” She did not check his vital signs or take notes, and she

denied Phillips’s requests for pain medication, an examination by a doctor, an x-

ray, and a steroid shot. She told Phillips to buy ibuprofen from the commissary.

Phillips said he “shuffled” out of the room because “he could barely walk” and

“lack[ed] [] stability.”

       Phillips filed a grievance and received a “Sick-Call” appointment on April

27. The next day, he was told he would see another provider and get an x-ray,


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which he got on April 30. Then, on May 15, he saw Debra Means, who diagnosed

him with “damaged nerves” and prescribed Prednisone, Claritan, and Prilosec.

Although she scheduled a follow-up visit in 30 days, Phillips did not get it. The

day after he complained about not receiving the follow-up visit, he saw Dr. Ivan

Pavirov. Dr. Pavirov diagnosed Phillips with a sacroiliac joint sprain but denied

his requests for a CT or MRI scan. Phillips later found out Dr. Pavirov did not

order a follow-up and prescribed him Ibuprofen for only 10 days. He complained

and, on August 12, he was instructed to fill out another Sick-Call request.

      On September 14, Phillips complained that his August 12 Sick-Call request

hadn’t been followed through on. The next day he saw Dr. Charles Hooper. Dr.

Hooper “check[ed] [him] out thoroughly” and prescribed him Neurontin for the

nerve pain in his leg and Robaxin to relax his back muscles and ease his back pain.

On November 16, Phillips had a follow-up appointment with Dr. Hooper. Phillips

requested a CT scan, and Dr. Hooper referred him to another doctor. Although

Phillips had an appointment with a doctor on January 5, 2016, he was turned away

and sent back to his dorm by a prison official. He then had an appointment with

Dr. Jerry Robbins on January 10, where he described all his problems starting from

the initial injury in April and received several prescription medications, including

Prednisone, Mobic, and Robaxin.




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      On January 23, 2016, Phillips saw Dr. Hooper, who increased the Neurontin

dosage and discontinued Prednisone. A few weeks later, on February 12, Phillips

discovered Dr. Robbins had ended his Neurontin prescription without an

evaluation. Phillips had another Sick-Call appointment a few days later, where he

learned that Neurontin was permitted only for diabetic nerve pain. At the end of

February, after Phillips filed another grievance, Dr. Robbins ordered a CT scan. In

early March, Phillips got x-rays of his neck and back, as well as a CT scan. On

March 14, Dr. Robbins diagnosed Phillips with a bulging disc and said he would

send the scans to a surgeon to determine treatment options. A month later, Phillips

saw Dr. Robbins again. Dr. Robbins told him the surgeon, Dr. Kurt

Freudenberger, recommended an MRI and indicated Phillips suffered from a

bulging disc and “disc degeneration on both sides of his spine.”

      Phillips had an MRI a few days later and an appointment with Dr.

Freudenberger in early May. Dr. Freudenberger recommended delaying surgery in

favor of pain management, specifically epidural shots, physical therapy, and

chiropractic treatment. Phillips was also given Tramadol. On May 13, Phillips’

prescriptions for Tramadol, Robaxin, and Prednisone were discontinued. On May

16, Dr. Robbins refused Phillips’s requests to reorder Tramadol and told him he

would not order epidural shots, but agreed to order him a back brace. On or before

June 2, Dr. Robbins prescribed Cymbalta. Phillips got the back brace, something


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he had been requesting since his injury, on June 9 and an epidural shot on June 10.

On June 23, Dr. Robbins issued him a “bottom bunk profile” and a “No

Longstanding Profile.”

      Phillips alleged that prison healthcare providers’ failure to treat his back

injury for over a year exacerbated his injury and amounted to deliberate

indifference. He described a process in which he had to continually file grievances

to receive medical appointments and his prescribed medication. He named as

defendants: Corizon Health, Inc.; Health Service Administrators Taylor Mckleroy,

Sophia Clemmons, and Jones 1; Dr. Robbins; Nurse McIntosh; Nakteesha Dryer;

and Juan Bailey.

      As relevant to this appeal, Phillips specifically alleged that Nurse

McIntosh’s denial of his requests for an evaluation with a doctor, a “more qualified

evaluation,” x-rays, and pain medication, as well as her failure to document his

emergency, demonstrated deliberate indifference to his serious medical needs. He

alleged Dr. Robbins deliberately delayed treating Phillips’s pain for over a year

despite knowledge of his pain and his complaints that the pain medication provided

was not adequate. He also alleged Dr. Robbins’s discontinuation of pain

medication without evaluation amounted to deliberate indifference, as did Dr.

Robbins’s ignoring Phillips’s complaints that he “cannot rest well, as well as stand,


      1
          No first name was provided for Jones in the original or amended complaint.
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sit, or lie down for long periods of time.” Finally, he alleged Dr. Robbins’s

failures to provide a back brace or an extra mattress also amounted to deliberate

indifference.

      A magistrate judge issued a report and recommendation (“R&R”),

recommending the amended complaint be dismissed for failure to state a claim

pursuant to 28 U.S.C. § 1915A(a), (b)(1). Phillips filed an objection, arguing the

R&R was premature under the Federal Rules of Civil Procedure and violated the

Fourteenth Amendment because it failed to allow service and process on the

defendants and only defendants could move for dismissal. He also argued that his

amended complaint alleged enough facts to state Eighth Amendment claims. The

district court overruled the objections, adopted the R&R, and dismissed the

complaint. This appeal followed.

                                         II.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim under 28 U.S.C. § 1915A(b)(1), using the same rules that govern

dismissals under Federal Rule of Civil Procedure 12(b)(6). Leal v. Ga. Dep’t of

Corr., 254 F.3d 1276, 1278–79 (11th Cir. 2001) (per curiam). This Court liberally

construes pro se pleadings. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).

We accept allegations in a complaint as true and construe them in the light most

favorable to the plaintiff. Leib v. Hillsborough Cty. Pub. Transp. Comm’n., 558


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F.3d 1301, 1305 (11th Cir. 2009). The plaintiff’s complaint must contain “only

enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).

                                          III.

                                           A.

      Phillips first argues the R&R “is directly in conflict with” Federal Rule of

Civil Procedure 25 because the R&R concluded that certain defendants were

“dropped from the action, (due to death or exiting employment)” even though they

were public officials. It appears Phillips is challenging the R&R’s recognition that

Nurse McLin, Nurse Means, and Dr. Pavirov were not named defendants.

However, the R&R did not conclude this based on Rule 25, which governs the

substitution of parties. See Fed. R. Civ. P. 25. Instead, the R&R simply noted that

Phillips did not include these individuals in the part of his amended complaint

where he listed the defendants. It is true that several defendants named in

Phillips’s original complaint were not named in his amended complaint, including

Nurse Means, Dr. Ivan “Provision,” Dr. Sussmune Stubbs, and Dr. Hooper. To the

extent this was a mistake by Phillips, it is not one that can be fixed by a court. This

is particularly true here, as Phillips never alleged such a mistake was made in his

objections to the R&R nor asked for leave to amend his complaint again.




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                                         B.

       Phillips next argues that his amended complaint included enough facts that,

when taken as true, stated an Eighth Amendment violation.

      The Eighth Amendment forbids cruel and unusual punishment, which the

Supreme Court has interpreted to include “deliberate indifference to serious

medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285,

291 (1976). 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, he must show he had an “objectively serious medical need.” Id.

Second, he must prove 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.

      “[A] serious medical need is [] 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. at 1243 (quotation and

footnote omitted). “In either of these situations, the medical need must be one that,

if left unattended, poses a substantial risk of serious harm.” Id. (quotations omitted

and alteration adopted).




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      “Grossly incompetent or inadequate care,” “a doctor’s decision to take an

easier and less efficacious course of treatment,” as well as “[f]ailure to respond to a

known medical problem” can amount to deliberate indifference. Waldrop v.

Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). A prison official who “delay[s] the

treatment of serious medical needs, even for a period of hours,” may act with

deliberate indifference, “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,

even if it amounts to medical malpractice, does not constitute deliberate

indifference. Estelle, 429 U.S. at 105–06, 97 S. Ct. at 292. “Nor does a simple

difference in medical opinion.” Waldrop, 871 F.2d at 1033.

      On appeal, Phillips only presents arguments with respect to four people:

Nurse McIntosh, Nurse Means, Dr. Pavirov, and Dr. Robbins. However, as

explained above, Nurse Means and Dr. Pavirov were not named as defendants in

Phillips’s amended complaint. Thus, we only review Phillips’s claims against

Nurse McIntosh and Dr. Robbins.

      Phillips’s allegations against Nurse McIntosh fail to show she had subjective

knowledge of a risk of serious harm and disregarded the risk. According to

Phillips’s amended complaint, Nurse McIntosh saw Phillips only once, when he


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presented to her with sudden, severe back pain. She listened to him, diagnosed an

inflamed muscle, and recommended a course of treatment in accordance with her

diagnosis. We note that Phillips’s injury was not visibly obvious—there is no

allegation, for example, that his bulging disc could be seen or felt. Similarly, his

strained posture and walk also did not obviously demonstrate to Nurse McIntosh

that her diagnosis was wrong or that a risk of serious harm was present. Nor did

the circumstances of his injury suggest anything other than sudden, severe back

pain. See Farrow, 320 F.3d at 1243 (defining a “serious medical need”). In sum,

Nurse McIntosh made a medical judgment call on the first and only time she saw

Phillips complain of back pain. Her rejection of his requests for a doctor referral, a

“more qualified evaluation,” x-rays, and pain medication were consistent with that

decision and her diagnosis and did not demonstrate deliberate indifference. See

Waldrop, 871 F.2d at 1033 (stating “a simple difference in medical opinion” does

not constitute deliberate indifference).

      Phillips also points to Nurse McIntosh’s failures to document his emergency

or check his vitals. While allegations of negligence could amount to medical

malpractice, Phillips does not allege that Nurse McIntosh’s failures significantly

delayed his treatment or contributed to the exacerbation of his injury. In fact, he

alleged that, after filing a grievance, he was examined on April 27, promised an x-

ray and another provider visit on April 28, received an x-ray on April 30, and was


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diagnosed with “damaged nerves” and prescribed pain medication on May 15.

Nurse McIntosh’s failures to document or check Phillips’s vitals, on their own, do

not suggest her examination was “so cursory as to amount to no treatment at all,”

particularly in light of his acknowledgement that she listened to him, diagnosed

him with an inflamed muscle, and suggested a course of treatment. See

McElligott, 182 F.3d at 1255 (quotation omitted). The district court thus correctly

concluded that Phillips’s amended complaint failed to state a claim against Nurse

McIntosh.

      Dr. Robbins’s alleged conduct also did not demonstrate deliberate

indifference to Phillips’s back injury and pain. Phillips alleged Dr. Robbins

deliberately delayed his treatment for over a year. But Phillips alleged he saw Dr.

Robbins the first time on January 10, 2016, nearly nine months after his back

injury. There is no allegation Dr. Robbins was responsible for this delay. See id.

And Phillips’s allegations show that after Dr. Robbins became involved, he timely

responded to Phillips’s claims of back pain. Dr. Robbins first prescribed pain

medication. When Phillips’s complaints continued, Dr. Robbins ordered a CT

scan. When that scan suggested a serious injury, Dr. Robbins sent it out for a

second opinion from Dr. Freudenberger. Dr. Robbins then followed Dr.

Freudenberger’s recommendations—getting Phillips an MRI and continuing pain

management. While Dr. Robbins refused some of Phillips’s requests in line with


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these recommendations, Dr. Robbins also prescribed other medications for

Phillips. This suggests disagreements in medical opinion, rather than deliberate

indifference. See Waldrop, 871 F.2d at 1033. And the one time Dr. Robbins

discontinued one of Phillips’s prescriptions without evaluation, Phillips got an

explanation: that medication was for management of diabetic nerve pain, a

condition Phillips did not allege he had.

      The facts alleged in his amended complaint also belie Phillips’s claim that

Dr. Robbins acted with deliberate indifference when he complained of his inability

to stand, sit, or lie down for long periods of time. Instead, Phillips’s amended

complaint shows Dr. Robbins prescribed medications and ordered tests as

necessary to address Phillips’s complaints. To the extent Phillips is alleging Dr.

Robbins’s failure to give him a “bottom bunk profile” and a “No Longstanding

Profile” until six months after his first appointment with the doctor shows

deliberate indifference, we are not persuaded. Phillips has not alleged he asked Dr.

Robbins for those recommendations earlier and was refused. Similarly, Phillips’s

complaints about not receiving a back brace are contradicted by his assertion that,

when asked on May 9 for a back brace, Dr. Robbins agreed to order one. Phillips’s

allegations do not show deliberate indifference. See id.




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       The district court did not err in dismissing Phillips’s amended complaint for

failure to state a deliberate indifference claim against Nurse McIntosh or Dr.

Robbins.2

       AFFIRMED.




       2
         In light of our conclusion, Phillips’s argument that the district court’s erroneous
dismissal violated his Fourteenth Amendment right to procedural due process also fails.
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