             Case: 15-11906      Date Filed: 04/20/2017    Page: 1 of 14


                                                                [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-11906
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 5:14-cv-00065-WS-EMT



JOSEPH N. MONTELEONE,

                                                     Plaintiff - Appellant,

versus

CORIZON,
Contracted Medical Company,
JORGE ALVAREZ,
Dr. Chief Health Officer,
MICHAEL JOHNSON,
Dr. Region 1 Medical Director,

                                                     Defendants - Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                                  (April 20, 2017)
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Before HULL, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:

       Joseph Monteleone, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of Dr. Jorge Alvarez and Corizon Health Care

Services on his Eighth Amendment claim, filed pursuant to 42 U.S.C. § 1983.1

The district court concluded that Mr. Monteleone failed to establish a genuine issue

of material fact regarding whether Dr. Alvarez and Corizon acted with deliberate

indifference toward his serious medical need. After review of the record and the

parties’ briefs, we affirm.

                                              I

       Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal. We

review the facts in the light most favorable to Mr. Monteleone. See Johnson v. Bd.

of Regents, 263 F.3d 1234, 1242–43 (11th Cir. 2001).

       Mr. Monteleone has a history of chronic back pain, consisting of

degenerative disk disease, spinal stenosis, and compressed disks with sciatica

nerve pain. During his incarceration at the Apalachee Correctional Institution,

Mr. Monteleone had previously received orthopedic boots, medical passes for a


1
  Mr. Monteleone originally brought this action against Dr. Alvarez, Corizon, and Mr. Michael
Johnson (Corizon’s executive medical director), but he voluntarily dismissed the action against
Mr. Johnson because he did not make decisions regarding his medical care.
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lower bunk, and medical passes excusing him from prolonged standing, pushing,

pulling, or lifting. Mr. Monteleone was also prescribed Neurontin to treat his pain.

        In November of 2013, ACI’s medical director, Dr. Alvarez, discontinued

Mr. Monteleone’s prescription for Neurontin because he received directions from

Corizon, ACI’s medical services provider, to discontinue its use for neuropathic

pain.    According to Dr. Alvarez, Neurontin was discontinued for all patients

experiencing neuropathic pain because “scientific studies showed it to be no more

effective than a placebo . . . [and] Neurontin is a drug that can be abused.” Alvarez

Aff., D.E. 22-2, at 17. Dr. Alvarez also recognized that although Neurontin has not

been approved by the FDA as a treatment for neuropathic pain, in some instances,

“it is appropriate and within the standard of care . . . to use drugs for the treatment

of conditions for which they have not received FDA approval.” Id.

        After Dr. Alvarez discontinued prescribing Neurontin, Mr. Monteleone

submitted a sick call because of sharp shooting pains in his lower back that

extended down the back of his left leg.        Despite his requests for Neurontin,

Mr. Monteleone was informed that he would no longer receive the medication. As

a substitute, Dr. Alvarez prescribed Naproxen for Mr. Monteleone’s pain.

        Mr. Monteleone continued to submit sick call requests for pain and stated

that Naproxen did not alleviate his symptoms. In February of 2014, Dr. Alvarez

submitted a request for Mr. Monteleone to receive an MRI, which could then be


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evaluated by an orthopedic or neurological specialist. Corizon did not authorize

the request and instead recommended physical therapy.         Dr. Alvarez did not

believe an MRI was medically indicated, and he did not appeal Corizon’s decision

because he thought an appeal would be unsuccessful.         Dr. Alvarez admitted,

however, that he must have “mistakenly failed to enter an order for in house

physical therapy.” D.E. 22-2 at 24.

      Mr. Monteleone also requested “comfort boots” for his pain, but Dr. Alvarez

denied that request because he did not qualify for the boots under Corizon’s policy.

In May of 2014, Dr. Alvarez renewed Mr. Monteleone’s medical pass for restricted

activity, but determined that Mr. Monteleone did not meet Corizon’s criteria for a

low bunk pass.

      Mr. Monteleone then filed a § 1983 action against Dr. Alvarez and Corizon,

asserting that they were deliberately indifferent to his chronic back pain, and

violated his Eighth Amendment rights. After discovery, the district court granted

summary judgment in favor of the defendants. In reaching its decision, the district

court adopted a magistrate judge’s report and recommendation, and determined

that there was no genuine issue of material fact for trial as to whether Dr. Alvarez

or Corizon acted with deliberate indifference. The district court explained that

although Mr. Monteleone had demonstrated a “serious medical need,” Corizon and




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Dr. Alvarez had “successfully negated the ‘deliberate indifference’ element” of his

§ 1983 claim. See D.E. 28 at 20. Mr. Monteleone now appeals.



                                         II

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

the same legal standard used by the district court and drawing all factual inferences

in the light most favorable to the nonmoving party.       See Johnson, 263 F.3d at

1242–43. Rule 56(c) of the Federal Rules of Civil Procedure “mandates the entry

of summary judgment . . . against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). Because Mr. Monteleone is a pro se litigant,

his pleadings are liberally construed and “held to a less stringent standard than

pleadings drafted by attorneys.” See Fernandez v. United States, 941 F.2d 1488,

1491 (11th Cir. 1991) (internal citation omitted).

                                         III

      The Eighth Amendment prohibits “deliberate indifference to a prisoner’s

serious illness or injury.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). To state a

cognizable claim under § 1983, “a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to serious medical needs.”

Id. at 106. Specifically, a plaintiff must establish “(1) a serious medical need;


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(2) the defendants’ deliberate indifference to that need; and (3) causation between

that 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 (citations omitted).

      Once a serious medical illness or injury has been established, a plaintiff must

show that a defendant acted with deliberate indifference to that need. To establish

deliberate indifference, a plaintiff must demonstrate “(1) subjective knowledge of a

risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than

mere negligence.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).

Some examples of deliberate indifference include providing “grossly inadequate

care[,] . . . [deciding] to take an easier but less efficacious course of treatment, [or

providing treatment] . . . so cursory as to amount to no treatment at all.” Id. A

delay in necessary treatment for non-medical reasons may also establish deliberate

indifference if the plaintiff provides evidence that “a delay in treating the need

worsen[ed] the condition.” See Mann, 588 F.3d at 1307. But mere evidence of

negligence “in diagnosing or treating a medical condition” or a showing of medical

malpractice does not establish deliberate indifference. See Estelle, 429 U.S. at 106.

In sum, “[m]edical treatment violates the [E]ighth [A]mendment only when it is


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‘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) (citation omitted).

      Mr. Monteleone argues that the district court erred in granting summary

judgment in favor of Dr. Alvarez and Corizon because he demonstrated that

Dr. Alvarez provided only cursory treatment that did not adequately treat his

condition, that Dr. Alvarez persisted with treatment even though he knew it was

ineffective, that Dr. Alvarez took too long to offer an alternative treatment, and

that Corizon’s policies interfered with Mr. Monteleone’s ability to receive proper

care. Viewing the facts in the light most favorable to Mr. Monteleone, we, like the

district court, accept that Mr. Monteleone’s degenerative disk disease, spinal

stenosis, and compressed disks with sciatica nerve pain, constitute a serious

medical need. See Mann, 588 F.3d at 1307. Mr. Monteleone has not established,

however, that Dr. Alvarez and Corizon were deliberately indifferent to that serious

medical need.

                                         A

      Mr. Monteleone’s first argument is that Dr. Alvarez acted with deliberate

indifference by providing “cursory treatment . . . that did nothing for [his]

condition and left him in pain.” Appellant’s Br. at 10. The parties do not dispute

that Dr. Alvarez discontinued Mr. Monteleone’s prescription for Neurontin in


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November of 2013 and that he later prescribed Naproxen. Mr. Monteleone says

that by prescribing Naproxen, Dr. Alvarez provided ineffective treatment and

because he repeatedly notified him of the medication’s ineffectiveness,

Dr. Alvarez’s persistence with that treatment constituted deliberate indifference.

      To support this argument, Mr. Monteleone points to Spruill v. Gillis, 372

F.3d 218, 235 (3d Cir. 2004), for the proposition that “deny[ing] reasonable

requests for medical treatment” and thereby “expos[ing] the inmate ‘to undue

suffering or the threat of tangible residual injury’” is a constitutional violation. In

Spruill, the Third Circuit allowed deliberate indifference claims against two

doctors to continue past the motion to dismiss stage because the prisoner’s

complaint included allegations that the doctors refused to evaluate him on multiple

occasions and that the doctors’ indifference was compounded by “malicious and

sadistic” behavior.     See id. at 237.         Spruill is distinguishable because

Mr. Monteleone was evaluated by Dr. Alvarez or the nursing staff each time he

submitted a sick call request, and he has not demonstrated (or even alleged) that

Dr. Alvarez discontinued his preferred medication for “malicious or sadistic”

reasons. Instead, Dr. Alvarez discontinued Mr. Monteleone’s prescription because




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of directions he received from Corizon and because scientific studies have shown

that Neurontin is not appropriate for Mr. Monteleone’s condition.2

       Mr. Monteleone also relies on our decision in Steele v. Shah, 87 F.3d 1266,

1270 (11th Cir. 1996), to highlight that grossly inadequate care or a doctor’s

decision to take “an easier but less effective course of treatment” can establish

deliberate indifference. In Steele, we reversed a grant of summary judgment in

favor of a doctor because a prisoner had provided evidence establishing a lack of

adequate medical attention. See id. at 1268. We noted that a psychiatric nurse

notified the medical staff in Steele that the prisoner “had a history of suicide

attempts, and was [ ] considered a potential suicide risk,” but the doctor chose not

to evaluate the patient right away or provide the previously-prescribed

psychotropic medications or an alternative medication. See id.

       Unlike the plaintiff in Steele, Mr. Monteleone received medical attention

each time he submitted sick calls and he later received an alternative medication.

Mr. Monteleone’s claim that the new medication was ineffective is different from

the urgent psychiatric needs of the plaintiff in Steele, who was considered a

potential suicide risk. Although Dr. Alvarez’ failure to substitute a more effective

medication may constitute negligence, it does not rise to the level of deliberate

indifference.     See Harris v. Thigpen, 941 F.2d at 1505–07 (explaining that

2
  The record also indicates that a nurse offered Mr. Monteleone over-the-counter medications
and topical balm to help alleviate his pain, but that he refused to take them. See D.E. 22-2 at 4.
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substantial medical mismanagement and delays in substituting effective

advanced-stage HIV treatment did not “manifest the kind of ‘conscious or callous

indifference’ necessary to raise . . . negligent care . . . to violations of a

constitutional magnitude”). In other words, Mr. Monteleone has not provided

evidence showing that Dr. Alvarez had substantial knowledge of a risk of serious

harm to Mr. Monteleone if he did not receive successful treatment for his chronic

back pain. See Goodman v. Kimbrough, 718 F.3d 1325, 1332 (11th Cir. 2016).

Moreover, determining which medication to prescribe is generally a matter of

medical judgment, and Mr. Monteleone was required to do more than question Dr.

Alvarez’ medical judgment to overcome a summary judgment ruling on his § 1983

claim. See, e.g., Estelle, 429 U.S. at 107 (explaining that a dispute over medical

judgment is not enough to establish a constitutional violation).

      Mr. Monteleone’s second argument is that Dr. Alvarez failed to examine

him in a timely manner and did not immediately prescribe a different medication or

treatment after discontinuing Neurontin. The parties agree that Mr. Monteleone

had to submit multiple sick calls and that it took over two weeks for Dr. Alvarez to

prescribe a different medication. In arguing that “a prison official may nonetheless

act with deliberate indifference by delaying the treatment of serious medical needs,

even for a period of hours,” see Appellant’s Br. at 15, Mr. Monteleone’s reliance

on our decision in Harris v. Coweta Cty., 21 F.3d 388 (11th Cir. 1994), is


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misplaced. In Harris, we noted that “[t]he tolerable length of delay in providing

medical attention depends on the nature of the medical need and the reason for the

delay.” Id. at 393–394. The panel affirmed the district court’s decision to set aside

a prison officer’s qualified immunity in that § 1983 case because it reasoned that

“several weeks was too long to fail to properly respond to the medical need” of a

prisoner whose fingernails were growing into his palm. Id. at 394.

       Although we recognize the seriousness of Mr. Monteleone’s medical

condition, the record does not support a finding that the two-and-a-half week delay

here was enough to establish a constitutional violation because Mr. Monteleone

has not provided evidence demonstrating that if left unattended, his back pain

“pose[d] a substantial risk of serious harm.”              See id. at 393 (reasoning that

“[a]ccidents, mistakes, negligence, and medical malpractice are not ‘constitutional

violation[s] merely because the victim is a prisoner’”). See also Taylor v. Adams,

221 F.3d 1254, 1259 (11th Cir. 2000) (explaining that violations of professional

standards are only a “starting point for [an] analysis that requires much more than

negligence or malpractice”).3

                                               B

3
  Dr. Alvarez’s mistake in failing to submit the order for physical therapy—and the 10-month
delay that followed—is a closer question, but Mr. Monteleone has not focused his argument on
appeal on this issue. Moreover, Mr. Monteleone has not made an attempt to contradict
Dr. Alvarez’ position that it was a mistake (and not a conscious, deliberate act), and he has not
placed medical evidence in the record to demonstrate that the delay worsened his condition. See
Mann, 588 F.3d at 1307 (explaining that “the medical need must be one that, if left unattended,
poses a substantial risk of serious harm”) (citation omitted).
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      Mr. Monteleone’s final argument is that Corizon’s “policies, practices, and

procedures . . . interfered with already prescribed treatment,” including the

Neurontin prescription, issuance of medical passes, physical therapy, and

orthopedic boots. Appellant’s Br. at 12–13. Mr. Monteleone also contends that

Corizon’s policies were motivated by cost-cutting techniques and interfered with

his ability to consult with an orthopedic specialist and receive treatments such as

surgery or cortisone shots.

      Generally, “supervisory officials are not liable under § 1983 for the

unconstitutional acts of their subordinates ‘on the basis of respondeat superior or

vicarious liability.’” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)

(citation omitted).   We have extended that rule to private corporations like

Corizon. See, e.g., Craig v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir. 2011). To

hold a defendant liable as a supervisory official, a plaintiff must show that “the

supervisor personally participate[d] in the alleged constitutional violation or [that]

there is a causal connection between actions of the supervising official and the

alleged constitutional deprivation.” Hartley, 193 F.3d at 1269.

      Corizon’s decision to discontinue Neurontin for neuropathic pain was based

on scientific studies that showed it to be no more effective than a placebo.

Additionally, the FDA has not approved the medication for that condition.

Although some doctors prescribe Neurontin to treat neuropathic pain, Corizon’s


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decision to discontinue it does not rise to the level of deficient care necessary to

establish deliberate indifference under § 1983. See McElligott, 182 F.3d at 1256

(describing the difference between negligent care and “knowingly provid[ing]

grossly inadequate” care).

       Even though Corizon’s policies may have prevented Mr. Monteleone from

getting an MRI or seeing an orthopedic surgeon, the Supreme Court has held that

“[a] medical decision not to order an X-ray, or like measures, does not represent

cruel and unusual punishment . . . [and] [a]t most it is medical malpractice.”

Estelle, 429 U.S. at 107.4

       In Estelle, a prisoner also suffered from back pain and “contend[ed] that

more should have been done by way of diagnosis and treatment.” See id. The

prisoner’s claim in Estelle—like Mr. Monteleone’s claim that Corizon’s policies

should have allowed for better treatment options like surgery, medical passes,

boots, and physical therapy—was not cognizable under § 1983 because evidence

of medical malpractice alone is not sufficient for a constitutional violation. See id.

at 106. Mr. Monteleone has not demonstrated that there was a constitutional

violation in this case, thus, he cannot establish that Corizon participated in or

caused such a violation. See Hartley, 193 F.3d at 1269 (noting that a causal



4
  Dr. Alvarez also agreed that, in his medical opinion, an MRI and orthopedic evaluation for
surgery was not medically indicated in this case.
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connection may exist where a supervisor is put “on notice of the need to correct the

alleged deprivation, and [ ] fails to do so”).

                                           IV

      Because Mr. Monteleone has not provided evidence establishing that

Dr. Alvarez and Corizon acted with deliberate indifference to his medical

condition, we affirm the district court’s grant of summary judgment.

      AFFIRMED.




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