           Case: 12-11069    Date Filed: 12/26/2012   Page: 1 of 12

                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-11069
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 4:11-cv-00088-RH-WCS

STEPHEN GANSTINE,


                                                             Plaintiff-Appellant,

                                   versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
DR. ERLINDA PEREZ,

                                                          Defendant-Appellees.


                        ________________________

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

                            (December 26, 2012)

Before TJOFLAT, JORDAN, and KRAVITCH, Circuit Judges.

PER CURIAM:

     Stephen Ganstine, appearing pro se, appeals the district court’s grant of
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summary judgment in favor of the defendants on his civil rights claims. Mr.

Ganstine, a former inmate of the Florida Department of Corrections, alleged that

Dr. Erlinda Perez, a prison physician, was deliberately indifferent to his serious

medical needs. Mr. Ganstine also alleged multiple violations of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., against the Secretary of

Florida’s Department of Corrections (DOC). After a review of the record and the

parties’ briefs, we affirm.1

                                                 I.

       Mr. Ganstine began his term of incarceration on March 1, 2007. At that time,

he suffered from a variety of ailments, including hypertension, sleep apnea,

diabetes, gout, and obesity. The DOC initially transported him to the inmate

Reception and Medical Center (RMC), a temporary facility where inmates are

housed until they are transferred to a more permanent facility. Upon his arrival at

the RMC, Mr. Ganstine was briefly examined by a physician’s assistant who noted

his ailments and his use of a continuous positive airway pressure (CPAP) machine,

which assists his breathing during sleep.

       Several days later, Dr. Perez examined Mr. Ganstine for over an hour.


       1
        We note at the outset that Mr. Ganstine’s appellate briefs raise multiple issues that exceed
the scope of his complaint. Although we liberally construe pro se briefs, we do not address any
arguments that Mr. Ganstine failed to raise below. See Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).

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During her examination, she concluded that Mr. Ganstine’s diabetes and

hypertension were “urgent issues that required immediate attention.” R:44-3 at 5.

Therefore, she continued his medications for these conditions. For his gout, she

prescribed shoe in-soles to provide support. Regarding Mr. Ganstine’s complaint

of sleep apnea and his use of a CPAP machine, Dr. Perez observed that his lungs

were clear and his breathing was normal. Accordingly, she concluded that sleep

apnea was not an acute issue and additional tests could wait until Mr. Ganstine was

transferred to a permanent facility. She expected Mr. Ganstine to be transferred

within one to two weeks.

      Although his records indicated no history of back injury, Mr. Ganstine

complained to Dr. Perez of chronic and significant back pain. He also told Dr.

Perez that he needed a wheelchair because he was unable to handle the amount of

walking and standing required by the DOC. Dr. Perez did not observe any

problems with Mr. Ganstine’s ability to walk, but an x-ray of Mr. Ganstine’s back

showed a compression deformity. As a result, she prescribed a walker.

      Mr. Ganstine remained at the RMC for two months. During his time there,

he did not receive a wheelchair or a CPAP machine. Mr. Ganstine alleges that the

guards at the RMC harassed him because he used a walker. The guards, he says,

routinely made him walk farther and stand longer than non-disabled inmates.


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      Mr. Ganstine was eventually moved to Gulf Correctional Institution Annex,

where he remained until his release in February of 2010. There, Mr. Ganstine

received a wheelchair, but he continued to experience problems. He alleges that he

was unable to access the recreational yard and other facilities because they were

inaccessible to wheelchairs. He also alleges that the prison guards at Gulf

Correctional retaliated against him by giving him extra work assignments and

confiscating his notes in violation of the ADA.

                                       II.

      We review the district court’s grant of summary judgment, de novo, viewing

all the evidence and drawing all reasonable factual inferences in favor of Mr.

Ganstine, the nonmoving party. See Rioux v. City of Atlanta, 520 F.3d 1269, 1274

(11th Cir. 2008). Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a).

                                         A.

      The Eighth Amendment’s prohibition against cruel and unusual punishment

forbids prison officials from being deliberately indifferent to the serious medical

needs of inmates. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison

doctor’s failure to treat, or inadequate treatment, or delay in treatment may


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constitute an Eighth Amendment violation, thereby giving rise to a claim under 42

U.S.C. § 1983. See McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). But

not every medical claim rises to the level of a constitutional violation. See id. at

1254 (noting that a prisoner must show something more than mere negligence).

       To succeed on an Eighth Amendment claim of deliberate indifference, Mr.

Ganstine was required to show that (1) he had an objectively serious medical need;

(2) Dr. Perez made an objectively insufficient response to that need; (3) Dr. Perez

had a subjective awareness of facts indicating a substantial risk of serious harm;

and (4) Dr. Perez inferred that action was required based on those facts. See Taylor

v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000). This circuit has described the

subjective component of the deliberate indifference analysis as a “subjective intent

to punish.” See id. The record here does not reflect any intent by Dr. Perez to

consciously disregard a serious risk or to punish Mr. Ganstine. Accordingly, the

district court properly granted summary judgment in favor of Dr. Perez on Mr.

Ganstine’s Eighth Amendment claims.

       Mr. Ganstine argues that Dr. Perez was deliberately indifferent to his need

for a CPAP machine and a wheelchair.2 On appeal, he asserts that summary


       2
         In the district court, Mr. Ganstine also argued that Dr. Perez’s denial of diabetic shoes was
deliberate indifference. But he does not raise this issue on appeal, and therefore has abandoned it.
See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008); Fed. R. App. P. 28(a)(5) (requiring
issues to be raised in appellant’s initial brief).

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judgment on these issues was inappropriate because a factual dispute exists as to

the amount of time that inmates typically remain at the RMC before being

transported to a permanent facility. This argument, however, is misplaced. There is

no indication in the record that Dr. Perez believed Mr. Ganstine would remain at

RMC for longer than a few weeks, and Mr. Ganstine’s deliberate indifference

claim depends, in part, on the subjective intent of Dr. Perez. See Bozeman v. Orum,

422 F.3d 1265, 1272 (11th Cir. 2005) (per curiam) (requiring subjective

knowledge of a serious risk and disregard of that risk). Mr. Ganstine points to his

own personal experience and the deposition testimony of an RMC nurse who

indicated that prisoners could remain at the RMC for months. Yet this evidence

does not contradict Dr. Perez’s stated belief that Mr. Ganstine would be transferred

to a permanent facility within a matter of weeks, at which time a primary care

physician could “assess him further and make any necessary referral to a

pulmonologist.” R:44-3 at 6. Thus, Mr. Ganstine fails to demonstrate that Dr. Perez

knew of any facts indicating a substantial risk that required immediate attention.

       Matters of medical judgment do not form an appropriate basis for liability

under the Eighth Amendment. See Estelle, 429 U.S. at 107.3 The undisputed facts


       3
         In his appellate brief, Mr. Ganstine argues that Dr. Perez’s decisions were motivated by
non-medical factors and that the DOC grievance process was deficient in addressing his medical
needs. Because he did not raise these issues before the district court, we will not consider them on
appeal. See BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1140 (11th Cir. 2007).

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show that Dr. Perez examined Mr. Ganstine for more than an hour, that Mr.

Ganstine displayed no obvious signs of sleep apnea or physical inability to walk,

and that Mr. Ganstine provided no medical records indicating an imminent need

for a wheelchair or a CPAP machine. Viewing the facts in the light most favorable

to Mr. Ganstine, Dr. Perez certainly knew of his complaints regarding his

perceived need for a CPAP machine and a wheelchair. However, this knowledge

does not suggest that Dr. Perez was aware of, let alone disregarded, a substantial

risk of serious harm. A difference in medical opinion between a doctor and an

inmate as to the inmate’s diagnosis or course of treatment does not establish

deliberate indifference. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.

1989). Dr. Perez, in her medical judgment, concluded that the best course of action

was to prescribe a walker rather than a wheelchair, and to allow a primary care

physician to assess Mr. Ganstine’s sleep apnea. Based on the undisputed facts,

summary judgment was appropriate.

                                        B.

      Title II of the ADA, which prohibits public entities from discriminating

against disabled individuals, see 42 U.S.C. § 12132, applies to prisoners in state

correctional facilities. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998).

In his complaint, Mr. Ganstine asserted that the DOC violated the ADA by (1)


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denying access to or benefits of various recreational activities and facilities, and (2)

retaliating against him for exercising his rights under the ADA.4

       In opposing summary judgment, Mr. Ganstine alleged that the DOC violated

the ADA in other respects, including failure to honor his “no prolonged standing

pass,” requiring him to walk longer routes, and giving him extra assignments. See

R:52 at 34. Based on these facts, he appeared to raise a generalized disability-based

harassment claim, which was not affirmatively pled in the complaint. A plaintiff

may not, however, “amend” his complaint at the summary judgment stage by

raising a new claim. See Hurlbert v. Mary’s Health Care Sys., Inc., 439 F.3d 1286,

1297 (11th Cir. 2006) (rejecting a new basis for a pending claim raised during

summary judgment proceedings). We therefore confine our review to the denial of

access and retaliation claims alleged in the complaint, and consider the facts only

to the extent that they support these two claims. See Chavis v. Clayton Cnty. Sch.

Dist., 300 F.3d 1288, 1291 n.4 (11th Cir. 2002) (refusing to address a new theory

raised during summary judgment because the plaintiff had not amended the

complaint). After viewing the facts in the light most favorable to Mr. Ganstine, we


       4
          On appeal, Mr. Ganstine attempts to argue that the DOC’s conduct also violated the Eighth
Amendment. Because he did not raise this issue before the district court, we will only consider his
ADA claims. See U.S. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 620 (11th Cir. 2000). Additionally, Mr.
Ganstine does not attack the district court’s determination that the DOC did not violate the ADA by
initially failing to provide a CPAP machine and a wheelchair; therefore, he has abandoned this issue
on appeal. See Timson, 518 F.3d at 874.

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affirm the district court’s grant of summary judgment.

      First, we address Mr. Ganstine’s denial of access claim under Title II of the

ADA. To state a Title II claim, Mr. Ganstine must prove that (1) he is a qualified

individual with a disability; (2) he was excluded from participation in or denied the

benefits of a public entity’s services, programs, or activities, or was otherwise

discriminated against by the public entity; and (3) the exclusion, denial of benefit,

or discrimination was by reason of his disability. See Bircoll v. Miami-Dade Cnty.,

480 F.3d 1072, 1083 (11th Cir. 2007).

      On appeal, the parties do not dispute that Mr. Ganstine is a qualified

individual with a disability. The issue, rather, is whether Mr. Ganstine was

excluded from or denied the benefits of certain services and programs. Mr.

Ganstine claims that he was unable to access certain areas of the prison because of

his disability and therefore, was unable to lift weights. The district court rejected

his denial of access claim because Mr. Ganstine admitted in his deposition that

inmate orderlies were available “most of the time” to push his wheelchair wherever

he needed to go. R:44-12 at 57-58. At one point, Mr. Ganstine was even assigned

two orderlies. R:44-12 at 57, 60. Mr. Ganstine further admitted that he was

“reasonably” able to get where he wanted to go with the orderlies, or on a rare

occasion, he pushed himself in the wheelchair. R:44-12 at 57. Additionally, in the


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one instance where Mr. Ganstine complained about an orderly’s failure to push

him, the DOC assigned a new orderly. R:44-12 at 54–55.5 Based on his own

admissions, a reasonable jury could not have concluded that the DOC denied Mr.

Ganstine access because of his disability.

        Second, we address Mr. Ganstine’s retaliation claim. To establish a prima

facie case of retaliation, Mr. Ganstine must show that (1) he engaged in statutorily

protected activity; (2) the DOC was aware of this activity; (3) the DOC took

adverse action against him; and (4) a causal connection exists between the

protected activity and the adverse action. See Higdon v. Jackson, 393 F.3d 1211,

1219 (11th Cir. 2004). The ADA’s anti-retaliation provision allows retaliation

claims against public entities. Id. at 1218–19.6 Mr. Ganstine, however, failed to


        5
          On appeal, Mr. Ganstine alleges that the orderlies would only push him if he paid them.
Notably, this assertion is absent from his complaint and from his response to the DOC’s summary
judgment motion. We take no position on whether these allegations, if true, raise a separate violation
of the ADA. No such violation was alleged before the district court, so we cannot address it for the
first time on appeal. Additionally, Mr. Ganstine admitted that he never complained about this issue
to anyone at the DOC. R:44-12 at 62.
        6
          We have not yet determined whether the Eleventh Amendment bars a Title V ADA
retaliation claim for damages against a state. Cf. United States v. Georgia, 546 U.S. 151, 159 (2006)
(“[I]nsofar as Title II creates a private cause of action for damages against the States for conduct that
actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”);
Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (holding that Congress did not
validly abrogate states’ sovereign immunity for private suits seeking money damages under Title
I of the ADA). We also have not addressed whether compensatory damages, which Mr. Ganstine
seeks, are available as a remedy in ADA retaliation cases. See Rumler v. Dep’t of Corr., 546 F.
Supp. 2d 1334, 1339-43 (M.D. Fla. 2008). Because the district court did not directly address these
issues and because Mr. Ganstine’s ADA claims ultimately fail on other grounds, we do not reach
these issues today.

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establish a prima facie case of retaliation against DOC.

       Mr. Ganstine contends that a correctional officer gave him extra work

assignments and confiscated his notes in retaliation for filing a grievance.7 Notably,

these specific factual allegations are absent from his complaint. But assuming

without deciding that Mr. Ganstine engaged in protected activity by filing a

grievance with the DOC, he fails to show that he was subjected to adverse action.

           “An adverse action must meet a ‘threshold level of substantiality’ before it

can serve as the basis of a retaliation claim.” Higdon v. Jackson, 393 F.3d 1211,

1219 (11th Cir. 2004) (quoting Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,

1456 (11th Cir. 1998)). If the defendant’s action had no tangible, negative effect on

the plaintiff, no adverse action exists. See Lucas v. W.W. Grainger, Inc., 257 F.3d

1249, 1261 (11th Cir. 2001). Mr. Ganstine did not suffer adversely because a DOC

guard allegedly confiscated his notes. During the summary judgment hearing, Mr.

Ganstine’s counsel admitted that Mr. Ganstine was still able to bring his claims,

without the assistance of the notes. See R:78 at 18 (“I’m not taking the position

that he is unable to bring a claim because he doesn’t have his notes.”). Further, Mr.

Ganstine admitted in his deposition that he had created a separate record of his



       7
          Mr. Ganstine further alleges that his First and Fourth Amendment rights were violated
when the officer confiscated his notes. We do not address these claims, which are asserted for the
first time on appeal.

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notes. R:44-12 at 114 (“Fortunately I had transcribed most of [my notes] and

shipped them out.”). Any alleged confiscation of Mr. Ganstine’s notes did not rise

to the level of adverse action sufficient to prove retaliation. As to the extra work

assignments, Mr. Ganstine admitted in his deposition, and in his appellate briefs,

that the officer “slacked off big time,” and assigned him to a regular work

assignment after he complained to the DOC. See R:44-12 at 113; Appellant’s Br. at

34. Any alleged extra work assignments do not meet the threshold level of

substantiality sufficient to constitute an adverse action that would give rise to a

retaliation claim.

                                        III.

      The district court properly granted summary judgment on Mr. Ganstine’s

claims.

      AFFIRMED.




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