           Case: 15-10286    Date Filed: 09/10/2015   Page: 1 of 4


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10286
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 7:14-cv-01756-RDP-TMP

GILBERT J. WALLACE,

                                                            Plaintiff-Appellant,

                                  versus

LEE N. HAMMONTREE,
JAMES WHITLEY,
JAMES BUTLER,
CORIZON MEDICAL SERVICE PROVIDER,
BROOKWOOD MEDICAL CENTER,

                                                         Defendants-Appellees.

                       ________________________

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

                            (September 10, 2015)

Before MARCUS, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Gilbert Wallace appeals pro se the district court’s sua sponte dismissal under

28 U.S.C. § 1915A(b)(1) of his 42 U.S.C. § 1983 complaint against Dr. Lee

Hammontree, Dr. James Whitley, Dr. James Butler, Corizon Medical Service, and

Brookwood Medical Center. On appeal, Wallace argues that the defendants were

deliberately indifferent in providing him medical care, in violation of the Eighth

Amendment, by misdiagnosing him and causing the unnecessary removal of his

kidney. After thorough review, we affirm.

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

a claim under 28 U.S.C. § 1915A(b)(1). Boxer X v. Harris, 437 F.3d 1107, 1110

(11th Cir. 2006). The complaint is viewed in the light most favorable to the

plaintiff, and the plaintiff’s well-pleaded facts are accepted as true. Am. United

Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).           To avoid

dismissal, the complaint must state a claim for relief that is plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

      The Eighth Amendment’s proscription against cruel and unusual punishment

prevents prison personnel from subjecting an inmate to “acts or omissions

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

Estelle v. Gamble, 429 U.S. 97, 106 (1976). To establish deliberate indifference, a

plaintiff must prove “(1) subjective knowledge of a risk of serious harm; (2)

disregard of that risk; (3) by conduct that is more than [gross] negligence.”


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Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010) (quotation

omitted). 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) (quotation omitted). Incidents of negligence or malpractice do not rise

to the level of constitutional violations.    Id.   Claims concerning the doctor’s

medical judgment, such as whether the doctor should have used another form of

medical treatment or a different diagnostic test, are inappropriate claims under the

Eighth Amendment. Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995).

      Wallace’s complaint does not state a claim for deliberate indifference. He

alleges that in March of 2012 he began having stomach problems and underwent a

series of tests while under the care of Dr. Hammontree, including ultra sounds,

CAT scans, biopsies, and blood tests.         Following these examinations, Dr.

Hammontree told Wallace that he had cancer in one of his kidneys that required its

removal.   Yet after the kidney was removed, he continued to have stomach

problems. In February 2013, at a follow-up visit at Brookwood Medical Center,

physicians informed him that he in fact had never had cancer and instead was

suffering from “an abnormal swelling in [his] stomach.” When he questioned the

medical staff about how such a mistake could have occurred, he was told that he

“still had a good kidney and could live well with just the one.”


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      Construing these allegations in a light most favorable to Wallace, he has

nevertheless failed to state a claim cognizable under the Eighth Amendment or §

1983. While the physicians may have unnecessarily removed Wallace’s kidney, he

has alleged nothing to suggest that the doctors’ conduct was “so grossly

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

intolerable to fundamental fairness.” Harris, 941 F.2d at 1505. Rather, this claim

at best amounts to medical malpractice, a claim that does not rise to the level of a

constitutional violation. Id. As we’ve said, claims concerning a doctor’s medical

judgment, such as whether the doctor should have used another form of medical

treatment or a different diagnostic test, are inappropriate claims under the Eighth

Amendment. Adams, 61 F.3d at 1545. Thus, the district court did not err in

dismissing his complaint. Id.

      AFFIRMED.




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