                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                               FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           January 17, 2006
                             No. 05-10399
                                                         THOMAS K. KAHN
                         Non-Argument Calendar               CLERK
                       ________________________

                     D. C. Docket No. 03-00054-CV-4

ZACKARY K. SALAS,

                                                           Plaintiff-Appellant,

                                  versus

RANDY K. TILLMAN,
FELIX GALINDEZ,
PATRICK WILLIAMS, Lieutenant,
et al.,


                                                        Defendants-Appellees,

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                            (January 17, 2006)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:
      Zackary K. Salas, a Georgia prisoner, appeals pro se the district court’s

dismissal of his claims against certain defendants and grant of summary judgment

in favor of the remaining defendants in this pro se civil rights action, brought

pursuant to 42 U.S.C. § 1983. Specifically, Salas appeals the district court’s

sua sponte dismissal of his claims against defendants: (1) Recreational Supervisor

Barbara Prince, Correctional Officer (“CO”) Thomas, CO Bordeaux, CO U.N.

Jones, CO Lakiesha Hill, CO Tiffany Wayman, Sergeant (“Sgt.”) Davis, Sgt. of

CERT Officers, Lieutenant (“Lt.”) Allen, Sgt. Richard Jones, and Nurse

Practitioner Helen Tyler, as well as his claim that Warden Randy K. Tillman failed

to provide him living arrangements that accommodated his restricted mobility, for

failure to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a);

and (2) Prince, Chauncey Santos, M.D., Eric Fogam, M.D., CO Woodard, and

Deputy Warden Alexis E.L. Chase, as well as his claims that Warden Tillman

failed to respond to his complaints concerning his medical treatment and failed to

properly train and supervise his staff, for failure to state a claim. Salas also argues

on appeal that (3) the district court abused its discretion by denying his motions for

extension of time to conduct discovery. Finally, Salas appeals the district court’s

grant of summary judgment in favor of defendants on his claims against

(4) CO Felix Galindez and Lt. Patrick Williams due to lack of service of process;



                                           2
and (5) Mental Health Counselor Ricki Edwards, as well as his claim that Warden

Tillman personally ordered Lt. Williams to confiscate his crutches for failure to

exhaust his administrative remedies. Additionally, Appellees have filed a motion

for damages and costs.

(1)   Sua sponte dismissal for failure to exhaust

      On appeal, Salas first argues that the district court improperly dismissed his

§ 1983 claims for failure to exhaust and should have continued the case to allow

exhaustion. Salas also maintains that the dismissal was improper because the

defendants had not been served and thus had not raised the exhaustion issue, and

he had a right to amend his complaint to allege only the claims for which he had

exhausted his administrative remedies. Salas states that he was prevented from

filing grievances because defendant Edwards refused his requests for grievance

forms. Salas asserts that he did file a grievance against defendant Tyler before he

was transferred to another prison, but did not appeal its denial as untimely because

he did not know that he could file a grievance concerning matters that occurred in

another prison. Further, Salas claims that the prison counselor handling his

grievance against defendant Tyler “clearly implicated [sic]” that he could not

appeal the denial of the grievance and that he had exhausted his remedies. Salas

maintains that, despite his belief that he could not do so, he filed a grievance



                                           3
concerning the events at Coastal State Prison and appealed its denial. Salas asserts

that he could not have filed a grievance while he was at Coastal State Prison

because he could not comply with the requirement to provide “specific names,

dates, and times.”

      The district court’s interpretation and application of § 1997e(a)’s exhaustion

requirements to a prisoner’s claims are reviewed de novo. Johnson v. Meadows,

418 F.3d 1152, 1155 (11th Cir.), petition for cert. filed, (U.S. Sept. 8, 2005) (No.

05-6336). “No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). In deciding whether a prisoner

has exhausted his administrative remedies, we do not review the effectiveness of

those remedies, but rather whether remedies were available and exhausted.

Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir. 1998). In order to satisfy

§ 1997e(a)’s exhaustion requirements, a Georgia prisoner “must timely meet the

deadlines or the good cause standard of Georgia’s administrative grievance

procedures.” Johnson, 418 F.3d at 1159. Additionally, while a prisoner who is

filing administrative grievances must provide as much relevant information about

his claims, including the identity of those directly involved in the alleged



                                            4
deprivations, as the prisoner reasonably can provide, § 1997e(a) does not require

him to provide information he cannot reasonably obtain. Brown v. Sikes, 212 F.3d

1205, 1210 (11th Cir. 2000).

      The district court did not abuse its discretion when it dismissed these claims.

Salas did not dispute that he failed to timely pursue his available administrative

remedies as to his claims against defendants Prince, Thomas, Bordeaux, CO Jones,

Hill, Wayman, Davis, Sgt. of CERT Officers, Allen, Sgt. Jones and Tyler, as well

as his claim that Warden Tillman failed to provide him living arrangements that

accommodated his restricted mobility. A continuance would not have allowed

Salas to exhaust his administrative remedies as to these claims because any

grievance he filed would have been untimely. The district court had the authority

to sua sponte dismiss his claims for failure to exhaust before service of process.

There was no need for Salas to amend his complaint to allege only his exhausted

claims because he already had raised those claims in his original complaint. Salas

did not deny that he was able to file some grievances, and he did not specifically

identify any claims for which he was unable to file a grievance due to defendant

Edwards’s inaction. Salas could not have exhausted his administrative remedies as

to his claim against defendant Tyler by appealing the denial of his untimely

grievance. Finally, § 1997e(a) did not require that Salas provide information he



                                           5
could not reasonably obtain. Therefore, the district court properly dismissed these

claims for Salas’s failure to exhaust his administrative remedies.

(2)   Sua sponte dismissal for failure to state a claim

      A district court’s sua sponte dismissal, pursuant to 28 U.S.C. § 1915A(b)(1),

for failure to state a claim is reviewed de novo, using the same standards that

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

of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001). Although a plaintiff is not held

to a very high standard in a motion to dismiss for failure to state a claim, the

federal rules do require “a short and plain statement” of the claim that will give the

defendant fair notice of what the plaintiff’s claim is and the grounds upon which it

rests. See Fed.R.Civ.P. 8(a); Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d

678, 683 (11th Cir. 2001). “Pleadings must be something more than an ingenious

academic exercise in the conceivable.” Marsh v. Butler County, Ala., 268 F.3d

1014, 1037 (11th Cir. 2001) (en banc) (citation omitted). In addition, unsupported

conclusions of law or of mixed law and fact are not sufficient to withstand a

dismissal under Rule 12(b)(6). Id. at 1036 n.16.

      Deliberate indifference to an inmate’s serious medical needs violates the

Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50

L.Ed.2d 251 (1976). “Medical treatment violates the Eighth Amendment only



                                           6
when it is ‘so grossly incompetent, inadequate, or excessive as to shock the

conscience or to be intolerable to fundamental fairness.’” Harris v. Thigpen, 941

F.2d 1495, 1505 (11th Cir. 1991)(citations omitted). To show an objectively

serious deprivation of medical care, an inmate must demonstrate (1) an objectively

serious medical need that, left unattended, poses a substantial risk of serious harm,

and (2) that the response made by public officials to that need was poor enough to

constitute “an unnecessary and wanton infliction of pain,” and not merely

accidental inadequacy, negligence in diagnosis or treatment, or even medical

malpractice actionable under state law. Taylor v. Adams, 221 F.3d 1254, 1258

(11th Cir. 2000). In addition, to show the required subjective intent to punish, a

plaintiff must demonstrate that the public official acted with an attitude of

“deliberate indifference,” by demonstrating (1) awareness of facts from which the

inference could be drawn that a substantial risk of serious harm existed, and (2) the

drawing of this inference. Id.

      Where an inmate receives adequate medical care, but desires different modes

of treatment, the care provided does not amount to deliberate indifference. Hamm

v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985). Furthermore, “whether

government actors should have employed additional diagnostic techniques or

forms of treatment ‘is a classic example of a matter for medical judgment’ and



                                           7
therefore not an appropriate basis for liability under the Eighth Amendment.”

Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995).

      There is “no respondeat superior liability for a § 1983 claim.” Marsh, 268

F.3d at 1035. Although § 1983 requires a connection between the official's acts or

omissions and the plaintiff's injury, an official also may be liable where a policy or

custom that he established or utilized resulted in deliberate indifference to an

inmate’s constitutional rights. Id. at 1059.

      The district court correctly concluded that Salas had not stated a claim

against defendants Prince, Santos, and Fogam because, at best, his allegations

against these defendants averred negligence, and the fact that he may have desired

different modes of treatment did not amount to deliberate indifference. Salas failed

to state a claim against defendant Woodard because Salas did not allege that this

defendant acted intentionally or was aware that a substantial risk of serious harm

existed. Because the medical treatment Salas received did not amount to deliberate

indifference to his medical needs, defendants Chase and Tillman could not be held

liable for failing to respond to Salas’s complaints. Finally, Salas’s conclusory

allegation that Warden Tillman failed to properly train and supervise his staff to

protect Salas from their unconstitutional actions was insufficient to set forth a

claim under § 1983. Therefore, the district court correctly found that Salas had



                                           8
failed to state a claim against these defendants.

(3)   Denial of additional discovery

      Salas argues that the district court erred in denying his motions for

extensions of time to conduct discovery. Salas conclusively asserts that “he was

denied reasonable discovery documents that would have validated his claims.”

      The district court’s denial of additional discovery in this context is reviewed

for abuse of discretion, “and a party must be able to show substantial harm to its

case from the denial of its requests for additional discovery.” Leigh v. Warner

Bros., Inc., 212 F.3d 1210, 1219 (11th Cir. 2000). Summary judgment is generally

inappropriate when the party opposing the motion has been unable to obtain

responses to his discovery requests. Id. It is not, however, per se improper to

grant summary judgment without providing the opponent an opportunity to

conduct discovery. Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841,

844 (11th Cir. 1989). “District courts are accorded wide discretion in ruling upon

discovery motions, and appellate review is accordingly deferential.” Harbert Int’l,

Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998) (citation omitted).

      Rule 56(f) of the Federal Rules of Civil Procedure specifically addresses this

issue, stating that the party opposing summary judgment may move the court to

permit discovery necessary to oppose the motion. Fed.R.Civ.P. 56(f). Because



                                           9
whether to grant or deny a Rule 56(f) motion for discovery requires the court to

balance the movant’s demonstrated need for discovery against the burden such

discovery will place on the opposing party, a Rule 56(f) motion must be supported

by an affidavit which sets forth with particularity the facts the moving party

expects to discover and how those facts would create a genuine issue of material

fact. Harbert Int’l, Inc., 157 F.3d at 1280.

      Because Salas did not show that he sought discovery of facts that would

create a genuine issue of material fact, the district court did not abuse its discretion

in denying his motions for additional discovery.

Summary judgment standard

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

the same standard as the district court and viewing all evidence and factual

inferences reasonably drawn from the evidence in the light most favorable to the

nonmoving party. Burton v. Tampa Housing Authority, 271 F.3d 1274, 1276-77

(11th Cir. 2001). A grant of summary judgment may be upheld on any basis

supported by the record. Id. at 1277.

      Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

there is no genuine issue as to any material fact and that the moving party is



                                           10
entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Bailey v. Allgas, Inc.,

284 F.3d 1237, 1242-43 (11th Cir. 2002); Eberhardt v. Waters, 901 F.2d 1578,

1580 (11th Cir. 1990). A party moving for summary judgment has the burden of

showing that there is no genuine issue of fact. Eberhardt, 901 F.2d at 1580. Once

the moving party has properly supported its motion for summary judgment, the

burden shifts to the nonmoving party to come forward with specific facts showing

that there is a genuine issue for trial. Fed.R.Civ.P. 56; Bailey, 284 F.3d at 1243. A

party opposing a properly submitted motion for summary judgment may not rest

upon mere allegations or denials of his pleadings, but must set forth specific facts

showing that there is a genuine issue for trial. Eberhardt, 901 F.2d at 1580.

(4)   Grant of summary judgment due to lack of service of process

      Rule 4(m) of the Federal Rules of Civil Procedure provides that:

      If service of the summons and complaint is not made upon a
      defendant within 120 days after the filing of the complaint, the court,
      upon motion or on its own initiative after notice to the plaintiff, shall
      dismiss the action without prejudice as to that defendant or direct that
      service be effected within a specified time; provided that if the
      plaintiff shows good cause for the failure, the court shall extend the
      time for service for an appropriate period.

Fed.R.Civ.P. 4(m). “In forma pauperis litigants should be entitled to rely on the

court officers and United States Marshals to effect proper service where such

failure is not due to fault on the litigant’s part.” Fowler v. Jones, 899 F.2d 1088,



                                          11
1095 (11 th Cir. 1990).

      In Fowler, we held that an in forma pauperis prisoner was entitled to a

continuance of the trial in his pro se civil rights action so that service could be

completed because the prisoner had a “reasonable belief that the defendants had

been served.” Id. at 1096. In so holding, we distinguished Rochon v. Dawson, 828

F.2d 1107, 1109-10 (5th Cir. 1987), in which the Fifth Circuit affirmed the district

court’s dismissal of an indigent prisoner’s civil action for failure to prosecute

because, although the prisoner was entitled to rely on the United States Marshals to

effect service, the prisoner had provided an incorrect address for the defendant and

never requested that the defendant be served. Fowler, 899 F.2d at 1095. “‘[A]

plaintiff may not remain silent and do nothing to effectuate such service. At a

minimum, a plaintiff should request service upon the appropriate defendant and

attempt to remedy any apparent service defects of which a plaintiff has

knowledge.’” Id. (citing Rochon, 828 F.2d at 1110).

      The district court did not err in granting summary judgment in favor of

defendants Galindez and Williams due to lack of service of process because Salas

made no attempt to remedy the service problem, even though he was aware of it.

(5)   Grant of summary judgment for failure to exhaust

      Finally, Salas reasserts the merits of his claim that Warden Tillman



                                           12
personally ordered Lt. Williams to confiscate his crutches. Additionally, he argues

that the district court improperly resolved factual disputes and made credibility

determinations concerning his claims against defendants Edwards and Tillman.

       The district court did not address the merits of these claims, resolve factual

disputes, or make credibility determinations, but properly granted summary

judgment to defendants Edwards and Tillman for Salas’s failure to exhaust his

administrative remedies.

       Upon review of the record and the parties’ brief, and for the foregoing

reasons, we affirm the district court’s sua sponte dismissal and grant of summary

judgment to the defendants.



       AFFIRMED.1




       1
         "Appellee's Motion for Damages and Cost," however, is denied because Salas is
proceeding pro se. Woods v. IRS, 3 F.3d 403, 404 (11th Cir. 1993).

                                             13
