            Case: 16-15380   Date Filed: 07/20/2017   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-15380
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 7:15-cv-00162-HL-TQL



DEXTER SHAW,

                                                            Plaintiff-Appellant,

                                  versus

MARTY ALLEN, et. al.,

                                                                     Defendants,

SHARON LEWIS,
AL MOODY,
N. SELESKA,
BARRON,
CALVIN ORR, et al.,

                                                         Defendants-Appellees.
              Case: 16-15380     Date Filed: 07/20/2017    Page: 2 of 7


                           ________________________

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

                                   (July 20, 2017)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Dexter Shaw (“Shaw”), proceeding pro se and in forma pauperis, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 Eighth Amendment claims

against Calvin Orr, deputy warden of security at Valdosta State Prison (“VSP”); Al

Moody, a physician; Barron (first name not listed), a medical administrator; N.

Seleska, a nurse; and Sharon Lewis, the state-wide medical director (collectively,

“the defendants”). He also appeals the district court’s denial of his motion to

amend his complaint. On appeal, Shaw argues that the district court erred in

dismissing his §1983 Eighth Amendment claims because he showed that the

defendants were deliberately indifferent to his serious medical needs, and erred in

denying him leave to amend his complaint because he should have been allowed to

amend to address the defendant’s motion to dismiss.

                                          I.

      We review de novo a district court’s order granting a defendant’s motion to

dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), accepting the


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allegations in the complaint as true and construing them in the light most favorable

to the plaintiff. Timson v. Sampson, 518 F.3d 870, 872 (2008). Pro se pleadings

are held to a less stringent standard than pleadings drafted by attorneys and will,

therefore, be liberally construed. Tannenbaum v. U.S., 148 F.3d 1262, 1263 (11th

Cir. 1998). A complaint stating a claim for relief must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). Factual allegations in a complaint “must be enough to raise a right

to relief above the speculative level, on the assumption that all the allegations in

the complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

      Deliberate indifference to a prisoner’s serious medical needs violates the

Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A plaintiff

seeking to show that a prison official acted with deliberate indifference to his

serious medical need must satisfy both an objective and a subjective test. Farrow

v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). First, a plaintiff must show that he

had an objectively serious medical need. Id. A serious medical need is “one that

has been diagnosed by a physician as mandating treatment or one that is so obvious

that a lay person would easily recognize the necessity for a doctor’s attention.” Id.

(quotation omitted). In either situation, there must be a “substantial risk of serious

harm” if the condition is not treated. Id. (quotation omitted).




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      Second, a plaintiff must prove that the defendant acted with deliberate

indifference to the serious medical need. Id. at 1243. To establish deliberate

indifference, the defendant must: (1) have subjective knowledge of a risk of serious

harm; (2) disregard the risk; and (3) display conduct beyond mere negligence. Id.

at 1245-46. In other words, a plaintiff must demonstrate that the defendant was

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

serious harm exists, and actually disregarded that risk. Id. at 1245.

      Deliberate indifference includes failing or refusing to provide medical

treatment to an inmate with a serious medical need, or intolerably delaying

treatment of a serious medical need. Id. at 1246. Choosing an easier, but less

efficacious, course of treatment can also demonstrate deliberate indifference.

McElligot v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). However, mere medical

malpractice or a difference in medical opinion does not constitute deliberate

indifference. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). “Medical

treatment violates the Eighth Amendment only 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)

(quotations and citations omitted).

      The district court did not err in dismissing Shaw’s claims under 42 U.S.C.

§ 1983 for Eighth Amendment violations because the allegations in his complaint,


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taken as true, cannot show that the defendants were deliberately indifferent to his

medical needs. Shaw failed to show that any of the defendants had subjective

knowledge of the risk of serious injury if they discontinued Shaw’s scheduled

therapy and recommended that he do therapy in his cell. See Farrow, 518 F.3d at

1243. A mere difference in opinion or even medical malpractice does not

constitute an Eighth Amendment violation unless it is “grossly incompetent,

inadequate, or excessive as to shock the conscience or to be intolerable to

fundamental fairness.” See Waldrop, 871 F.2d at 1033; Harris, 941 F.2d 1505.

The instruction that Shaw should work out and do therapy in his cell after

receiving some therapy fails to meet this standard. Accordingly, Shaw’s complaint

did not establish deliberate indifference to his serious medical needs.

                                         II.

      We generally review the denial of a motion to amend a complaint for abuse

of discretion, but review questions of law de novo. Williams v. Bd. of Regents of

Univ. Sys. of Georgia, 477 F.3d 1282, 1291 (11th Cir. 2007). We may affirm on

any ground that is supported by the record. Bircoll v. Miami-Dade Cty., 480 F.3d

1072, 1088 & n.21 (11th Cir. 2007). Whether the district court has discretion to

deny a motion to amend and whether a motion to amend is futile are questions of

law. Coventry First, LLC v. McCarty, 605 F.3d 865, 869 (11th Cir. 2010).




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       Federal Rule of Civil Procedure 15(a)(1) states that a party may amend a

pleading once as a matter of course at any time before a responsive pleading is

served. Fed. R. Civ. P. 15(a)(1). We have held that the district court lacks the

discretion to deny an amendment as futile when the party has the right to amend as

a matter of course under Rule 15(a)(1). Williams, 477 F.3d at 1292 & n.6.

       Ordinarily, leave to amend not as a matter of course under Rule 15(a)(2)

should be given freely, but a district court can deny leave to amend a complaint

when the amendment would be futile. Hall v. United Ins. Co. of Am., 367 F.3d

1255, 1262 (11th Cir. 2004). A proposed amendment may be denied for futility

when the complaint would still be dismissed after considering the amendment.

Coventry First, LLC, 605 F.3d at 870.

       A party’s failure to raise a claim or argument in the district court typically

precludes us from reviewing it for the first time on appeal. Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1330–31 (11th Cir. 2004). While we read pro se

briefs liberally, an issue that is not briefed on appeal or that is raised for the first

time in the pro se litigant’s reply brief is abandoned and will not be addressed on

appeal. Timson, 518 F.3d at 874.

       Shaw abandoned the argument that his motion to amend should have been

granted as a matter of course because he did not raise the argument in front of the

district court or in his brief on appeal. See Access Now, Inc., 385 F.3d at 1330–31;


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Timson, 518 F.3d at 874. Accordingly, the district court had discretion to

determine whether to deny leave to amend and the decision can be affirmed on any

ground. See Williams, 477 F.3d at 1292 & n.6; Bircoll, 480 F.3d at 1088 & n.21.

The district court did not err in denying Shaw’s motion to amend because the

additional allegations in the amended complaint were not sufficient to overcome

the dismissal of his case, and, thus, the amendment was futile. See Coventry First,

LLC, 605 F.3d at 870. Accordingly, we affirm.

      AFFIRMED.




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