             Case: 14-12142     Date Filed: 07/27/2015   Page: 1 of 7


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                 No. 14-12142
                             Non-Argument Calendar
                           ________________________

                  D.C. Docket No. 5:12-cv-00244-MTT-MSH



ROBERT TUCKER, III,


                                                              Plaintiff - Appellant,

                                      versus

BUSBEE,
Dr., Upson County Jail,


                                                              Defendant-Appellee,

PEACOCK,
Sheriff, Upson County,
RALPH SEARCY,
Captain, Jail Administrator,
KILGORE,
Mayor,
UPSON COUNTY COMMISSIONERS,

                                                                        Defendants.
                Case: 14-12142        Date Filed: 07/27/2015       Page: 2 of 7


                               ________________________

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

                                        (July 27, 2015)

Before HULL, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

       Robert Tucker, III, a state prisoner proceeding pro se, appeals the district

court’s denial of his second motion for leave to amend his civil suit brought under

42 U.S.C. § 1983 against Dr. Jonathan Busbee.1 On appeal, Mr. Tucker argues

that his proposed amended complaint states a claim for deliberate indifference

against Dr. Busbee because Dr. Busbee knew of Mr. Tucker’s serious medical

condition, but did not refer Mr. Tucker to a medical specialist. For the reasons that

follow, and after careful review, we affirm.

                                                    I.

       Mr. Tucker alleged in his original complaint that he was diagnosed with

diabetic retinopathy in his left eye around February 2011. At the time, Mr. Tucker

was housed as a pretrial detainee at Upson County Jail, where he remained until he

was convicted and transferred to state prison on July 20, 2011. Dr. Thomas Rowe,

who diagnosed Mr. Tucker while he was at Upson, recommended that Mr. Tucker
       1
         This Court granted the parties’ joint motion to dismiss all but one of Mr. Tucker’s
claims on appeal, leaving only Mr. Tucker’s challenge to the district court’s denial of his second
request to amend his complaint to add Dr. Busbee as a party.
                                                2
                Case: 14-12142        Date Filed: 07/27/2015       Page: 3 of 7


be evaluated by a retina specialist. Dr. Rowe wrote, “Expect need for laser

treatment, and possibly an operation.” Mot. to Leave to Amend Compl., Ex. A,

Doc. No. 11-1. Dr. Rowe suggested two possible offsite specialists. After his

diagnosis, Mr. Tucker received routine medical care for his diabetic condition from

Dr. Busbee, the jail physician. Dr. Busbee, who was aware of Mr. Tucker’s retinal

diagnosis, referred him to Ralph Searcy, the jail administrator.

       Because Upson jail officials believed Mr. Tucker would be transferred

before any offsite treatment could be scheduled, they tried to expedite his departure

so that he could receive treatment. Despite the prison officials’ knowledge of Mr.

Tucker’s condition and filing of multiple grievances, he was not offered treatment

until August 2011, when he refused it.

       Mr. Tucker’s original complaint made no allegations specifically about Dr.

Busbee. Mr. Tucker moved to amend his complaint to add, inter alia, that Dr.

Busbee violated his Eighth Amendment rights “for [Dr. Busbee’s] actions in

denying medical consultations with any retina specialist concerning [Plaintiff’s]

retinitis.” 2 Mot. to Leave to Amend Compl. 3, Doc. No. 11. The district court sua

sponte dismissed without prejudice under 28 U.S.C. § 1915A all of the defendants

except Mr. Searcy, but did not rule on the motion to amend, leaving the motion to

       2
          Throughout this litigation, the parties have used the terms retinitis and retinopathy
interchangeably. We preserve the original wording here, but note that diabetic retinitis and
diabetic retinopathy are two different diseases. Dr. Rowe diagnosed Mr. Tucker with diabetic
retinopathy. See Mot. to Leave to Amend Compl., Ex. A, Doc. No. 11-1.
                                                3
              Case: 14-12142      Date Filed: 07/27/2015   Page: 4 of 7


the magistrate judge. The magistrate judge granted Mr. Tucker’s motion to amend

his complaint as of right pursuant to Federal Rule of Civil Procedure 15(a)(1)(B).

But after a 28 U.S.C. § 1915A screening, the magistrate judge recommended

dismissing the new claim against Dr. Busbee for failure to state a claim. The

district court adopted the magistrate’s report and recommendation and dismissed

all of the defendants except Mr. Searcy. Mr. Searcy subsequently filed a motion

for summary judgment, attaching a declaration stating that following his retinal

diagnosis, Mr. Tucker continued to receive “routine medical care from Jonathan

Busbee and his staff,” who were aware of Mr. Tucker’s diagnosis. Decl. of Ralph

Searcy ¶¶ 11-12, Doc. No. 31-1.

      Mr. Tucker then filed a second motion to amend his complaint, asserting that

Mr. Searcy’s declaration provided him with new evidence to support his claim

against the previously dismissed defendants. In his proposed second amended

complaint, Mr. Tucker attempted to add Dr. Busbee back as a defendant, alleging

that Dr. Busbee had personal knowledge of his medical conditions due to Mr.

Tucker’s repeated “sick calls” concerning his health. He also alleged that Chief

Deputy Major Kilgore conspired with Dr. Busbee and other prison officials to deny

treatment of his diabetic retinitis. The magistrate judge recommended denying Mr.

Tucker’s second motion to amend for the same reasons it had dismissed the claim

against Dr. Busbee in Mr. Tucker’s first amended complaint. The magistrate judge


                                          4
              Case: 14-12142     Date Filed: 07/27/2015   Page: 5 of 7


further noted that allowing Mr. Tucker to amend his complaint for a second time

would be prejudicial at such a late stage in the proceedings. Over Mr. Tucker’s

objections, the district court adopted the report and recommendation. This appeal

followed.

                                              II.

      We review the district court’s denial of leave to amend the complaint for an

abuse of discretion. Covenant Christian Ministries, Inc. v. City of Marietta, 654

F.3d 1231, 1239 (11th Cir. 2011). However, we review de novo a legal

determination that a proposed amendment to the complaint would be futile. SFM

Holdings, Ltd. v. Banc of Am. Secs., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010).

In determining whether a complaint states a claim for relief, we accept the factual

allegations in the complaint as true and construe them in the light most favorable to

the plaintiff. Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012).

“Pro se pleadings are held to a less stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998).

                                          III.

      A district court may dismiss a prisoner’s complaint under the Prison

Litigation Reform Act if the court determines that the complaint “is frivolous,

malicious, or fails to state a claim upon which relief may be granted.” 28 U.S.C.


                                          5
                Case: 14-12142       Date Filed: 07/27/2015      Page: 6 of 7


§ 1915A(b)(1). If a “complaint as amended would still be properly dismissed,”

amendment would be futile, and the district court need not allow an opportunity to

amend. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). Here, the

district court had previously dismissed Mr. Tucker’s claim against Dr. Busbee

under 28 U.S.C. § 1915A; that determination is not before us for review. If Mr.

Tucker’s proposed amendment failed to state a claim, then amendment would be

futile, and the district court’s denial of Mr. Tucker’s request to amend his

complaint for a second time was not error.

       To show an Eighth Amendment violation by a prison doctor, the prisoner

must allege that the doctor manifested “deliberate indifference to [the prisoner’s]

serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). 3

Negligence in diagnosing or treating a medical condition, including “an inadvertent

failure to provide adequate medical care,” does not state a valid claim for

deliberate indifference. Id. at 105-06. “[A] simple difference in medical opinion

between the prison’s medical staff and the inmate as to the latter’s diagnosis or

course of treatment” likewise does not support a deliberate indifference claim.

Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).


       3
         We note that Mr. Tucker styled his suit as a deliberate indifference claim under the
Eighth Amendment. Because Mr. Tucker was a pretrial detainee at the relevant time, his
constitutional rights arise from the Due Process Clause of the Fourteenth Amendment. Hale v.
Tallapoosa Cnty., 50 F.3d 1579, 1582 n.4 (11th Cir. 1995). We nevertheless may analyze the
claim under the Eighth Amendment because states cannot impose on pretrial detainees
conditions that would violate prisoners’ Eighth Amendment rights. Id.
                                               6
              Case: 14-12142     Date Filed: 07/27/2015   Page: 7 of 7


      Mr. Tucker’s proposed amendment added the allegation that Dr. Busbee

knew of his medical condition but did not help Mr. Tucker obtain further medical

assistance. Mr. Tucker does not allege that Dr. Busbee failed to provide him with

the routine medical care that Dr. Busbee was capable of providing, nor does he

allege that Dr. Busbee could have compelled the Upson officials to send him to a

retina specialist. But even if Dr. Busbee could have compelled the officials to

provide Mr. Tucker with immediate specialized treatment, Dr. Busbee’s decision

not to do so was a matter of medical judgment, and a difference of opinion as to

the proper course of medical treatment, standing alone, does not constitute

deliberate indifference within the meaning of the Eighth Amendment. See Harris,

941 F.2d at 1505. At most, Dr. Busbee’s actions constituted mere negligence or

medical malpractice and thus are insufficient to state a claim for deliberate

indifference. See id. Because amendment would be futile, the district court did not

err in denying Mr. Tucker’s second motion to amend his complaint. See Cockrell,

510 F.3d at 1311-12.

                                           IV.

      For the reasons set forth above, we affirm.

      AFFIRMED.




                                          7
