                                                           [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                         FILED
                    -------------------------------------------U.S. COURT OF APPEALS
                                 No. 07-11489                    ELEVENTH CIRCUIT
                                                                     March 25, 2008
                           Non-Argument Calendar
                   -------------------------------------------- THOMAS K. KAHN
                                                                        CLERK

                D.C. Docket No. 07-00292-CV-T-17-TGW

MATTHEW CASE,

                                                Plaintiff-Appellant,

                                   versus

KAREN RILEY,
Jail Administrator,
GRADY JUDD, Sheriff,
DR. STAN ZEMANKIEWICZ,
DR. PEDRO ENRIQUEZ,
SEBRING HEARTLAND HOSPITAL, et al.,

                                                Defendants-Appellees.

                   -------------------------------------------
               Appeal from the United States District Court
                     for the Middle District of Florida
                  --------------------------------------------

                             (March 25, 2008)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:

          Plaintiff-Appellant Matthew Case, a Florida prisoner proceeding pro se,

appeals the district court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint

against seven defendants about medical care he received. The district court

dismissed the complaint for failure to state a claim on which relief may be granted

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).1 No reversible error has been shown;

we affirm.

          In his complaint, Case claimed that defendants were deliberately indifferent

to his medical needs by failing to provide him with timely and adequate medical

care after he broke his hand in an altercation at the Polk County Jail while he was

a pretrial detainee.2 Case filed his complaint against (1) Jail Administrator Karen

Riley; (2) Sheriff Grady Judd; (3) Dr. Stan Zemankiewicz, a bone specialist; (4)

Dr. Pedro Enriquez, the jail physician; (5) Sebring Heartland Hospital; (6) Bartow

Memorial Hospital; and (7) Correctional Medical Services (“CMS”).




      1
     The district court did not explicitly note under what statutory authority it dismissed the
complaint. But the record makes clear that section 1915(e) was the authority relied on.
  2
    Claims of deliberate indifference to a serious medical need of a pretrial detainee, such as Case,
are governed by the Fourteenth Amendment’s Due Process Clause instead of the Eighth
Amendment’s Cruel and Unusual Punishment Clause, which applies to similar claims by convicted
prisoners. See Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11th Cir. 1997).

                                                 2
          Case alleged these things: (1) he was taken to Sebring Heartland Hospital,

where his hand was placed in a cast without first being set; (2) he was told by an

attending doctor that he would see a bone specialist within 24 to 48 hours, but he

did not see the specialist within this time frame; (3) Enriquez saw him only once

about his hand and did not abide by follow-up procedures as ordered by the

emergency room doctor and surgeon; (4) Bartow Memorial Hospital failed to

ensure that a qualified surgeon practiced at the hospital3; and (5) Riley, Judd and

CMS failed to ensure that he was provided with timely and proper medical care.

As a result of this inadequate medical care, Case alleged that his hand permanently

was damaged.

          We review de novo a district court’s sua sponte dismissal for failure to state

a claim under section 1915(e)(2)(B)(ii), accepting the allegations in the complaint

as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003).4 On appeal,

Case argues that the district court erred in dismissing his complaint without first

giving him an opportunity to amend it to provide “a more definite state[ment] to

support relief.” We have concluded that “[w]here a more carefully drafted



   3
       It is unclear from the complaint if and when Case was treated at Bartow Memorial Hospital.
  4
   In addition, we liberally construe pro se pleadings. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).

                                                  3
complaint might state a claim, a plaintiff must be given at least one chance to

amend the complaint before the district court dismisses the action with prejudice,”

unless the plaintiff has indicated that he does not wish to amend his complaint or if

a more carefully drafted complaint could not state a valid claim. Bank v. Pitt, 928

F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo Heavy

Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).5

       For medical treatment to rise to the level of a constitutional violation, the

care must be “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 omitted). To state a Fourteenth

Amendment (Due Process) claim, Case had to show that he had an objective

medical need and that a government official acted with deliberate indifference to

that need. See Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005). To show

deliberate indifference, Case had to show that (1) defendants knew of a risk of

serious harm to him, (2) they disregarded this risk, and (3) their conduct amounted

to more than gross negligence. See id. And the plaintiff must demonstrate that


   5
    In Wagner, we determined that a district court is not required to sua sponte grant a counseled
plaintiff leave to amend when plaintiff never filed a motion to amend or requested leave to amend
before the district court. But we “decide[d] and intimate[d] nothing about a party proceeding pro
se.” 314 F.3d at 542 n.1. So, because Case is proceeding pro se, we will apply the rule in Bank to
him.

                                                4
defendants’ response to a medical need was more than “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) (citation and quotations omitted).

       Here, the district court correctly dismissed Case’s complaint for failure to

state a claim. And allowing him to amend the complaint would have been futile

because his claim fails as a matter of law. Case’s allegations against Riley, Judd,

and CMS clearly were premised on a theory of respondeat superior. And claims

against supervisory personnel who did not personally participate in the acts

complained of are not actionable under section 1983. See Monell v. Dep’t of Soc.

Servs., 98 S.Ct. 2018, 2036 (1978). Thus, an amended complaint against these

defendants would have been unavailing.

       About the remaining defendants,6 Case’s allegations do not rise to the level

of a constitutional violation; the conduct he complains of amounts to, at most,

negligence. And an amended complaint with a more definite statement would not

change this conclusion. From the complaint, it is clear that Case received prompt



  6
    The district court dismissed some defendants as improper parties, and alternatively, determined
that Case’s allegations did not rise to the level of a constitutional violation. Though we doubt the
correctness of the district court’s reasoning about certain defendants, we need not address these
doubts because we agree with the district court that Case did not state a constitutional violation.

                                                 5
medical treatment for his broken hand. That Case may have desired more or a

different course of treatment does not amount to a constitutional violation. See

Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (whether defendants’ “should

have employed additional diagnostic techniques or forms of treatment ‘is a classic

example of a matter for medical judgment’ and therefore not an appropriate basis

for grounding” constitutional liability.); Hamm v. Dekalb County, 774 F.2d 1567,

1575 (11th Cir. 1985) (when a plaintiff receives adequate medical care, but desires

different modes of treatment, the care provided does not amount to deliberate

indifference).

      Accordingly, the district court properly dismissed Case’s complaint for

failure to state a constitutional claim and did not err in failing to sua sponte grant

him leave to amend his complaint because an amendment would have been futile.

      AFFIRMED.




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