         Case: 12-16181   Date Filed: 06/05/2014   Page: 1 of 12


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-16181
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 7:11-cv-00088-HL



ARNOLD JOHNSON,

                                                          Plaintiff-Appellant,

                                versus

CO II BOYD,
LIEUTENANT JOHNSON,
WIZA,
JONES,
HOWELL,
YANCEY,
WESTON,

                                                      Defendants-Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Georgia
                    ________________________

                            (June 5, 2014)
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Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

       The District Court dismissed the pro se complaint Arnold Johnson, a state

prison inmate, brought under 42 U.S.C. § 1983 on the ground that the complaint

failed sufficiently to allege a violation of his Eighth Amendment rights. 1 Johnson

appeals the ruling as well as the court’s denial of his request for leave to amend.

We find no error in the court’s dismissal of the complaint for failure to state a

claim, but remand the case with instructions that the court grant Arnold leave to

amend.


                                             I.

       We review a grant of a motion to dismiss for failure to state a claim de novo,

“accepting the allegations in the complaint as true and construing them in the light

most favorable to the plaintiff.” Spain v. Brown & Williamson Tobacco Corp., 363

F.3d 1183, 1187 (11th Cir. 2004).

       In reviewing a motion to dismiss, we must determine whether the pleadings

contain “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949,

173 L.Ed.2d 868 (2007) (quotation omitted). A claim is facially plausible when


       1
         In the context of this case, the Eighth Amendment is made applicable to the States
under the Fourteenth Amendment’s Due Process Clause. See Robinson v. California, 370 U.S.
660 (1962).
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the court can “draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. Furthermore, factual allegations must be enough to raise

a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). We construe a pro se

litigant’s pleadings liberally. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.

2008).

      Section 1983 creates a private cause of action for deprivations of federal

rights by persons acting under color of state law. 42 U.S.C. § 1983. The Eighth

Amendment governs the conditions under which convicted prisoners are confined

and the treatment that they receive in prison. Farmer v. Brennan, 511 U.S. 825,

832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994). Among other duties, prison

officials have a duty to protect prisoners from violence at the hands of other

prisoners. Id. at 833, 114 S.Ct. at 1976.

      A prison official’s deliberate indifference to a substantial risk of serious

harm to an inmate violates the Eighth Amendment. Carter v. Galloway, 352 F.3d

1346, 1349 (11th Cir. 2003). When examining the existence a substantial risk of

serious harm, the district court uses an objective standard. Caldwell v. Warden,

FCI Talladega, No. 12-11818, manuscript op. at 19 (11th Cir. Apr. 7, 2014).

There must be a strong likelihood of risk of injury, rather than a mere possibility,




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before an official’s failure to act can constitute an Eight Amendment violation.

Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990).

      Determining whether the defendant was deliberately indifferent to a risk of

injury involves a subjective and objective component. Caldwell, No. 12-11818,

manuscript op. at 19. To satisfy the subjective component, a plaintiff must allege

that the defendant subjectively knew that an inmate faced a substantial risk of

serious harm. Id. The defendant must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he must

also draw the inference. Id. at 20. Awareness of an inmate’s generally

problematic nature does not constitute subjective knowledge of a serious risk of

harm. Carter, 352 F.3d at 1350. To satisfy the objective component, a plaintiff

must allege that the defendant disregarded that known risk by failing to respond to

it in an objectively reasonable manner. Caldwell, No. 12-11818, manuscript op. at

20.

      The District Court correctly determined that Johnson’s complaint failed to

state a claim upon which relief could be granted. Nowhere does the complaint

allege, nor can it be plausibly inferred, that the defendants subjectively foresaw or

knew of a substantial risk of injury posed by Hanley. Even if Johnson did allege

that the defendants had knowledge of Hanley’s history of violence and mental

illness, which he did not, the complaint was still properly dismissed because


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deliberate indifference requires “much more than mere awareness of [an inmate’s]

generally problematic nature.” Carter, 352 F.3d at 1350. Accordingly, Johnson

failed to allege that the defendants acted with deliberate indifference and,

therefore, could not state a claim. Caldwell, No. 12-11818, manuscript op. at 19-

20.

      Johnson’s argument that Hanley’s destructive behavior in the cell created a

foreseeable risk of injury has no merit, as the complaint does not sufficiently allege

that Hanley’s behavior created a “strong likelihood” of injury to Johnson. Brown,

894 F.2d at 1537. Rather, despite the fact that he was in the midst of damaging

property, Hanley’s physical attack was unprovoked, suggesting that Hanley’s

behavior created nothing more than a “mere possibility” of injury to Johnson. Id.

And even if Hanley’s behavior created an objectively strong likelihood of injury to

Johnson, the complaint does not allege that the defendants were subjectively

conscious of this risk. Caldwell, No. 12-11818, manuscript op. at 19-20; see also

Farmer, 511 U.S. at 838, 114 S.Ct. at 1979 (“[A]n official’s failure to alleviate a

significant risk that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as [a constitutional

violation]”). Accordingly, the defendants’ alleged actions after Hanley began

destroying property, but before he attacked Johnson, could not amount to

deliberate indifference.


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       Additionally, to the extent that Johnson’s complaint was based on the

defendants’ deliberate indifference after Hanley attacked him, the court again

correctly determined that Johnson failed to state a claim upon which relief could be

granted.2 As an initial matter, it is not clear from the complaint that Johnson even

attempted to state a claim for deliberate indifference after Hanley attacked him, as

his principle allegation is that “there were more than enough officers outside the

cell to get [Hanley] before he attacked me” (emphasis added). Johnson’s

emphasis on the defendants’ actions prior to Hanley’s physical attack suggests that

the complaint alleged only a cause of action for deliberate indifference prior to

Hanley’s attack, which, as explained above, was properly dismissed.

       However, if we liberally construe the complaint to state a claim for

deliberate indifference after Hanley’s physical attack, the complaint still does not

allege, nor can it be plausibly inferred, that any defendant acted with deliberate

indifference. The complaint does not allege that the officers waited an

unreasonable amount of time to intervene after Hanley attacked Johnson. In fact,

the complaint is devoid of any allegations describing what occurred after Johnson



       2
          The district court partially construed Johnson’s complaint as a “failure to intervene”
claim, citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir. 1998), which holds that an officer
has a duty to intervene if he observes a constitutional violation and is in a position to intervene.
(Doc. 33 at 4-5). While it is well settled that Ensley applies to situations where one officer
observes a fellow officer violating a constitutional right, typically by using excessive force, we
have not explicitly adopted this holding in a situation involving an officer observing a fight
between inmates.
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and Hanley “got into it,” other than the allegation that the nurse was called and

treated Johnson’s cut.

      While the allegations describing Hanley’s physical attack are sufficient to

show an objective risk of injury, without allegations describing the duration of the

fight or the defendants’ response, it is impossible to determine whether any

defendant was subjectively aware of the risk of injury or whether any defendant

responded to the risk of injury in an objectively unreasonable manner. Caldwell,

No. 12-11818, manuscript op. at 19-20. Accordingly, the complaint failed to rise

above the “speculative level” with respect to critical elements of Johnson’s claim

and was, therefore, properly dismissed. Id; Bell Atl. Corp., 550 U.S. at 555, 127

S.Ct. at 1964-65.

                                         II.

      We review the District Court’s refusal to grant leave to amend for abuse of

discretion, though we review de novo the underlying legal conclusion of whether a

particular amendment to the complaint would be futile. Ziemba v. Cascade Int’l,

Inc., 256 F.3d 1194, 1199 (11th Cir. 2001). A district court abuses its discretion if

it applies an incorrect legal standard, follows improper procedures in making the

determination, or makes findings of fact that are clearly erroneous. Klay v. United

Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004).




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      A plaintiff may amend his complaint once as a matter of course within 21

days after a motion to dismiss is filed under Fed. R. Civ. P. 12(b). See Fed. R. Civ.

P. 15(a)(1)(B). Otherwise, a plaintiff may amend his complaint only with the

defendant’s written consent or leave of the court, which should give leave to

amend freely “when justice so requires.” See Fed. R. Civ. P. 15(a)(2). Ordinarily,

the district court need not allow an amendment where: (1) there has been undue

delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by

amendments previously allowed; (2) allowing amendment would cause undue

prejudice to the opposing party; or (3) amendment would be futile. Corsello v.

Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005).

      A plaintiff, however, “must be given at least one chance to amend the

complaint before the district court dismisses the action with prejudice” where a

more carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108,

1112 (11th Cir. 1991) (emphasis added) overruled in part by Wagner v. Daewoo

Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). This is

still true where the plaintiff does not seek leave until after the district court renders

final judgment. Bank, 928 F.2d at 1112. In Wagner, we overruled our decision in

Bank, holding that “[a] district court is not required to grant a plaintiff leave to

amend his complaint sua sponte when the plaintiff, who is represented by counsel,

never filed a motion to amend nor requested leave to amend before the district


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court.” Wagner, 314 F.3d at 542. We noted, however, that our decision

“intimate[d] nothing about a party proceeding pro se.” Id. at 542 n.1.

       There are two circumstances in which the district court need not grant leave

to amend under Bank: (1) where the plaintiff has indicated that he does not wish to

amend his complaint; and (2) where a more carefully drafted complaint could not

state a claim and is, therefore, futile. Bank, 928 F.2d at 1112. As to the first

exception, filing a written motion that sets forth the substance of a proposed

amendment is the proper method to request leave to amend the complaint. Long v.

Satz, 181 F.3d 1275, 1279 (11th Cir. 1999). As to the second exception, where the

issue of futility is close, we err on the side of generosity to the plaintiff.

O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197, 1206 (11th Cir.

2003).

       A prison official’s deliberate indifference to a substantial risk of serious

harm to an inmate violates the Eighth Amendment. Carter, 352 F.3d at 1349.

When examining the existence a substantial risk of serious harm, the district court

uses an objective standard. Caldwell, No. 12-11818, manuscript op. at 19.

       Determining whether the defendant was deliberately indifferent to that risk

involves a subjective and objective component. Id. To satisfy the subjective

component, a plaintiff must allege that the defendant subjectively knew that an

inmate faced a substantial risk of serious harm. Id. The defendant must both be


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aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference. Id. at 20. To satisfy the

objective component, a plaintiff must allege that the defendant disregarded that

known risk by failing to respond to it in an objectively reasonable manner. Id.

      While it was within the District Court’s discretion to determine that

Johnson’s amendment was untimely and would cause undue delay and prejudice

under Fed. R. Civ. P. 15(a), it was an abuse of discretion to attach any relevance to

this finding, as undue delay and prejudice are not factors that except a district court

from granting leave to amend under Bank. See Bank, 928 F.2d at 1112 (noting

only two exceptions to its holding); see also Klay, 376 F.3d at 1096 (application of

an incorrect legal standard constitutes an abuse of discretion). Cases denying a

plaintiff’s motion to amend for undue prejudice to the opposing party are often

distinguishable because the plaintiff had already amended his complaint at least

once. See, e.g., Corsello, 428 F.3d at 1014 (“[A]mendment would have led to the

filing of [the plaintiff’s] fourth complaint”). Because Johnson filed a motion for

leave to amend and had not previously amended his complaint, the only applicable

exception to the holding in Bank is whether Johnson’s amendment would still fail

to state a claim. Bank, 928 F.2d at 1112. Accordingly, the sole dispositive issue

before us is whether, under a de novo review, the district court erred in concluding

that Johnson’s amendment would be futile.


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      The District Court erred by denying Johnson the opportunity to amend his

complaint at least once. Specifically, the court erred by finding that Johnson’s

proposed amended complaint would be futile. The court’s sole conclusion

regarding futility was that Johnson’s motion to amend was “more a request for

discovery” and that Johnson was “not prepared to amend his complaint . . . , but

instead want[ed] to gather materials to try and make his case.” Johnson, however,

specifically indicated in his motion for leave to amend that he “should be given the

opportunity to show that the lapse of time would have been sufficient to constitute

a failure to intervene.”

      Johnson’s motion was not a simple request for discovery—it set forth the

substance of the proposed amendment and asserted that the amended complaint

would contain allegations sufficient to demonstrate the defendants’ deliberate

indifference to Hanley’s attack on Johnson. Long, 181 F.3d at 1279. Johnson’s

original complaint already alleged that Hanley’s physical assault created an

objective risk of injury. Caldwell, No. 12-11818, manuscript op. at 19. By

amending his complaint to include allegations regarding the defendants’ specific

reactions to Hanley’s attack and the lapse of time between Hanley’s attack and the

defendants’ intervention, Johnson may be able to show that the defendants were

subjectively aware, by fact or inference, of the risk of substantial injury posed to

Johnson after Hanley began attacking him. Id. at 19-20. Moreover, Johnson’s


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amended complaint may show that the defendants’ responded to that risk in an

objectively unreasonable way by, for example, alleging that a significant amount of

time elapsed between Hanley’s physical assault and the defendants’ intervention.

Id. at 20. Johnson’s amended complaint, therefore, may contain allegations

sufficient to demonstrate the defendants’ deliberate indifference to a substantial

risk of serious harm, in violation of the Eighth Amendment. Carter, 352 F.3d at

1349. Accordingly, Johnson’s proposed amendment was not futile, the district

court erred by ruling otherwise. We therefore vacate its dispositive order and

remand the case so that Johnson can amend his complaint.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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