           Case: 12-13492   Date Filed: 07/02/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                              No. 12-13492
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 5:11-cv-00190-HL


ROBERTO BAEZ,

                                                            Plaintiff-Appellant,

                                  versus

MICHAEL ROGERS,

                                                          Defendant-Appellee,

JAMES TAYLOR, et al.,

                                                                    Defendants.

                        ________________________

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

                              (July 2, 2013)

Before TJOFLAT, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
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         Roberto Baez, a Georgia prison inmate. The District Court dismissed his

pro se 42 U.S.C. § 1983 complaint against Michael Rogers, a physician who

treated him while he was incarcerated in a Georgia prison, for failure to state a

claim for relief. See Fed. R. Civ. P. 12(b)(6). In his complaint, Baez alleged that

Rogers refused to provide him with needed pain medication, medical care and

treatment, thus subjecting him to severe and continuous pain in violation of the

Eighth and Fourteenth Amendments. Specifically, he alleged that Rogers had

discontinued pain medications and cholesterol medications he had previously been

prescribed without giving him a medical examination, and refused to reinstate his

prescriptions for the pain medication Neurontin and his cholesterol medications.

Baez alleged that he experienced pain from an inguinal hernia and entrapped nerve

and that the ibuprofen Rogers prescribed him was insufficient to treat his pain.1

         A Magistrate Judge issued a report and recommendation (“R&R”)

recommending that Baez’s complaint be dismissed because (1) he had failed to

sufficiently allege a serious medical need based on his pain because his condition,

if unattended, did not pose a substantial risk of serious harm; (2) he had not

established that Rogers was deliberately indifferent to his medical needs because

he did not show that his condition worsened or that he suffered any permanent

harm due to a delay in treatment; and (3) Rogers was entitled to qualified
1
  Baez also moved the court to appoint an independent pain specialist. The court denied the motion. Baez
challenges the denial in this appeal. We reject the challenge because the court acted clearly within its discretion in
denying the motion.

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immunity. Over Baez’s objections, the District Court adopted the R&R and

dismissed Baez’s complaint for failing to state a claim and because Rogers was

entitled to qualified immunity.

             Baez appeals, arguing that he sufficiently stated a claim of deliberate

indifference to his serious medical need in violation of his Eighth Amendment and

Fourteenth Amendment rights. We disagree and therefore affirm the District

Court’s judgment.

      In reviewing de novo a Rule 12(b)(6) dismissal, we “accept[ ] the allegations

in the complaint as true and constru[e] them in the light most favorable to the

plaintiff.” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301, 1305

(11th Cir. 2009). To survive dismissal for failure to state a claim, “a plaintiff’s

obligation to provide the grounds of his entitlement to relief requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.

1955, 1964-65, 167 L.Ed.2d 929 (2007) (quotations and alteration omitted). The

facts as pleaded in a complaint must state a claim for relief that is plausible on its

face to avoid dismissal for failure to state a claim. Ashcroft v. Iqbal, 556 U.S. 662,

678-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). We are mindful,

however, that pro se pleadings are held to a less stringent standard and liberally

construed. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).


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      “[T]o prevail on a civil rights action under § 1983, a plaintiff must show that

he or she was deprived of a federal right by a person acting under color of state

law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Prison

officials violate the Constitution when they act with deliberate indifference to an

inmate’s serious medical needs, giving rise to a cause of action under § 1983.

Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).

To prevail on a claim of deliberate indifference, a plaintiff must show (1) a serious

medical need; (2) deliberate indifference to that need on the part of the defendant;

and (3) causation between the defendant’s indifference and the plaintiff’s injury.

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). A serious

medical need is “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize

the necessity for a doctor’s attention.” Id. at 1307 (quotation omitted).

Alternatively, a plaintiff can establish a serious medical need by showing that a

delay in treatment worsened his condition. Id.

      To establish deliberate indifference, a plaintiff must show “(1) a subjective

knowledge of a risk of serious harm; (2) disregard of that risk; and (3) by conduct

that is more than mere negligence.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th

Cir. 2004). Conduct that is more than mere negligence includes: (1) knowledge of

a serious medical need and a failure or refusal to provide care; (2) delaying


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treatment for non-medical reasons; (3) grossly inadequate care; (4) a decision to

take an easier but less efficacious course of treatment; or (5) medical care that is so

cursory as to amount to no treatment at all. McElliott v. Foley, 182 F.3d 1248,

1255 (11th Cir. 1999). A simple difference in medical opinion between the

medical staff and an inmate as to the latter’s diagnosis or course of treatment does

not establish deliberate indifference. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th

Cir. 1991).

      The District Court properly dismissed Baez’s complaint because it failed to

state a claim for relief. The complaint does not allege that Baez has a current

cholesterol problem mandating treatment that would constitute an objectively

serious medical need; hence, he cannot maintain a claim based on cancellation of

his cholesterol medication. Even if the complaint established that his inguinal

hernia and entrapped nerve constituted a serious medical need, it fails to allege

facts showing that Rogers acted with deliberate indifference or that that his

inguinal hernia or entrapped nerve worsened or that he suffered any permanent

harm due to Rogers’s conduct. Instead, the complaint alleges only a difference of

medical opinion as to what course of treatment was appropriate.

      AFFIRMED.




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