                    Case: 12-11679          Date Filed: 09/14/2012   Page: 1 of 8

                                                                      [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-11679
                                         Non-Argument Calendar
                                       ________________________

                                D.C. Docket No. 1:10-cv-23529-KMM


BRUCE SIMMONS,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellant,

                                                  versus

JUAN R. MONSERRATE,
MAGGIE ROSADO,
VIVIAN BONET,
ERNESTO ALVAREZ,
JORGE PASTRANA, et al.,

llllllllllllllllllllllllllllllllllllllll                             Defendants - Appellees.

                                      ________________________

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

                                           (September 14, 2012)

Before CARNES, WILSON and FAY, Circuit Judges.

PER CURIAM:
                Case: 12-11679       Date Filed: 09/14/2012       Page: 2 of 8

       Bruce Simmons, a federal prisoner proceeding pro se, appeals from the

district court’s grant of summary judgment in favor of the eight named defendants

on his claim that the defendants were deliberately indifferent to his serious medical

needs.1 In addition, Simmons argues that his constitutional rights were violated

when his case was transferred to a different district court judge after his original

district judge—Judge Jordan—was elevated to this court. We affirm.

                                               I

       We review the district court’s grant of summary judgment de novo, viewing

the facts and making all reasonable inferences in the light most favorable to the

nonmoving party. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d

1292, 1314 (11th Cir. 2011). We affirm a district court’s grant of summary

judgment when the record shows that there is no genuine dispute as to any material

fact and that the moving party below is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

                                               II

                                               A

       The Eighth Amendment prohibition on cruel and unusual punishments

forbids prison officials from acting with a “deliberate indifference to serious

       1
         To the extent Simmons argues that the district court improperly denied his motion for
summary judgment, we are without jurisdiction to review such interlocutory orders. See T&B
Scottdale Contractors, Inc. v. United States, 815 F.2d 1425, 1427–28 (11th Cir. 1987).

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

291 (1976). Necessarily, not every claim of inadequate medical treatment rises to

the level of a constitutional violation, id. at 105, 97 S. Ct. at 291, and an

incarcerated individual must establish “more than ordinary lack of due care” to

succeed on an Eighth Amendment claim, Whitley v. Albers, 475 U.S. 312, 319, 106

S. Ct. 1078, 1084 (1986).2

       To prevail on a deliberate indifference claim, the plaintiff must show that:

(1) he had a serious medical need (the objective component), (2) the prison

officials acted with deliberate indifference to his serious medical need (the

subjective component), and (3) the injury was caused by the defendants’ wrongful

conduct. Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). The

objective component requires a plaintiff to show that his serious medical need

would pose a substantial risk of serious harm if left unattended and that the prison

officials’ response to that need was sufficiently poor to constitute “‘an unnecessary

and wanton infliction of pain.’” Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir.


       2
          The defendant prison officials argue here, like they did in the district court, that
Simmons has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a).
This failure-to-exhaust argument is based on Simmons’s untimely appeal of the denial of his
administrative grievance to the Bureau of Prisons’ Regional and Central Offices. Because the
failure to exhaust under § 1997e(a) “is an affirmative defense, not a jurisdictional limitation,”
Douglas v. Yates, 535 F.3d 1316, 1320 (11th Cir. 2008) (citing Jones v. Bock, 549 U.S. 199, 216,
127 S. Ct. 910, 921 (2007)), we choose to address to the merits of Simmons’s Eighth
Amendment claim rather than delve into the exhaustion issue, since relief is due to be denied on
the merits of the claim.

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2000) (quoting Gamble, 429 U.S. at 105–06, 97 S. Ct. at 291–92). The subjective

component requires that a plaintiff demonstrate (1) the prison officials’ subjective

knowledge of a risk of serious harm, (2) their disregard of that risk, and (3)

conduct that arises to more than gross negligence. Goebert, 510 F.3d at 1326–27.

      Delay in providing “diagnostic care and medical treatment known to be

necessary” can qualify as deliberate indifference. H.C. ex rel. Hewett v. Jarrard,

786 F.2d 1080, 1086 (11th Cir. 1986); see also Ancata v. Prison Health Servs.,

Inc., 769 F.2d 700, 704 (11th Cir. 1985) (“[I]f necessary medical treatment has

been delayed for non-medical reasons, a case of deliberate indifference has been

made out.”). That delay, however, must be “tantamount to unnecessary and

wanton infliction of pain,” and we require an inmate who alleges a delay-based

Eighth Amendment claim to “place verifying medical evidence in the record to

establish the detrimental effect of delay in medical treatment to succeed.” Hill v.

Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187–88 (11th Cir. 1994) (quotation

marks omitted), abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730, 122

S. Ct. 2508 (2002). We have found cognizable deliberate-indifference claims

when the prison officials delayed treatment for life-threatening emergencies and in

“situations where it is apparent that delay would detrimentally exacerbate the

medical problem.” Id. at 1187.

      We agree with the district court that Simmons meets the objective prong by


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showing a serious medical need—a brain mass. Simmons posits that there are

disputed issues of fact regarding the subjective component. Specifically, he

disputes whether the prison officials (1) knew that the medical treatment he

received for his brain mass was inadequate and therefore exposed him to a risk of

harm and (2) disregarded that known risk. Regarding the adequacy of Simmons’s

treatment, the record evidence shows that the brain mass has been monitored

continuously by medical staff since at least May of 2005, the time that Simmons

had an MRI. From 2005 to 2010, additional MRI and CT scans have been

performed and compared with previous documentation to discern any changes.

Medical staff evaluated Simmons’s vision, which remained unchanged, and his

headache symptoms were treated on an as-needed basis. Although Simmons

contends that the focus on controlling his symptoms exposes him to an increased

risk of blindness or death, there is simply no record medical evidence to support

this claim. See Hill, 40 F.3d at 1188.

      When Simmons was recommended for evaluation for potential surgery in

2010, Simmons was examined by three separate doctors, including an oral and

maxillofacial surgeon and a neurosurgeon. New MRI and CT scans were

performed, yet no doctor expressed an opinion that surgery was necessary.

Radiologic reports reflect that the new scans revealed no significant change to the

size or composition of the mass in the intervening period.


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      Based on the record, Simmons has not demonstrated that the prison officials

had any subjective knowledge of a risk of harm attributable to the brain mass.

Indeed, at every stage, the medical reports have suggested the opposite. At its

core, Simmons’s argument indicates a disagreement with the course of diagnosis

and treatment by his physicians. These types of decisions, however, are “a classic

example of a matter for medical judgment” that cannot serve as the basis for a

proper Eighth Amendment deliberate-indifference claim. Gamble, 429 U.S. at

107, 97 S. Ct. at 293.

      Simmons also contends that the delay in adequate medical treatment

provides a basis for his claim. He argues that his condition requires a biopsy or

surgery, and the delay in obtaining those services constitutes deliberate

indifference. Contrary to Simmons’s argument, though, no treating physician has

stated that either a biopsy or surgery is medically necessary. See Jarrard, 786 F.2d

at 1086 (“[T]he failure to provide diagnostic care and medical treatment known to

be necessary [i]s deliberate indifference.” (emphasis added)). And importantly,

Simmons has not proffered any “verifying medical evidence” to establish the

detrimental effect of a delay in medical treatment. Hill, 40 F.3d at 1188.

      Simmons fleetingly references a knee injury and trigger-finger condition in

his brief but provides no factual or legal support for an Eighth Amendment

violation based on those afflictions. From our review of the record, the prison


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officials have not been deliberately indifferent to these conditions. Regarding

Simmons’s knee injury, he has been advised multiple times that surgery is an

elective procedure, and he has been supplied with knee braces and pain medication

as needed. Regarding the trigger-finger condition, Simmons has received anti-

inflammatory injections and has undergone a surgical procedure. On these facts,

Simmons cannot succeed on his Eighth Amendment claim.

      Because there are no genuine issues of material fact and the documentary

evidence confounds any claim that the prison officials were deliberately indifferent

to Simmons’s medical needs, summary judgment in favor of the prison officials

was proper.

                                          B

      Next, Simmons argues that reassignment of his case to another district judge

upon Judge Jordan’s elevation to the Eleventh Circuit violated his due process

rights. Specifically, he contends that the timing of the grant of summary

judgment—the district court adopted the magistrate judge’s report and

recommendation one week after reassignment—shows that the court below acted

out of bias and prejudice, thereby violating his right to an impartial and

disinterested tribunal. Having presented us with no evidence of bias and no

authority prohibiting the sort of administrative reassignment that occurred here,

Simmons’s due process claim is entirely without merit.


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AFFIRMED.




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