Derrick Gregory James v. E. Perez-Lugo, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11301
Non-Argument Calendar
____________________
DERRICK GREGORY JAMES,
Plaintiff-Appellant,
versus
NURSE ROBINSON, et al.,
Defendants,
E. PEREZ-LUGO,
MICHELLE SCHOUEST,
TONI BOWDEN,
KRYSTLE L. ROBERSON,
MINDY TOMLINSON,
USCA11 Case: 22-11301 Document: 40-1 Date Filed: 07/07/2023 Page: 1 of 7

-- 1 of 7 --

2 Opinion of the Court 22-11301
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:21-cv-00183-BJD-LLL
____________________
Before WILSON, J ILL PRYOR , and L UCK , Circuit Judges.
PER CURIAM:
Derrick Gregory James, a Florida prisoner proceeding pro se,
appeals the district court order dismissing his amended complaint.
James sued Dr. Elliot Perez-Lugo, the medical director of the
prison where James was incarcerated, under 42 U.S.C. § 1983, al-
leging that Perez-Lugo was deliberately indifferent to his serious
medical need. The district court dismissed the amended complaint,
concluding that James failed to state a claim for relief. After careful
consideration, we affirm.
I.
James was incarcerated at the Columbia Correctional Insti-
tution in Florida beginning in July 2019.1 While at the prison, James
1 The facts recited in this section are taken from the amended complaint,
which is the operative complaint. See Hunt v. Aimco Props., L.P., 814 F.3d 1213,
1218 n.2 (11th Cir. 2016) (“At the motion to dismiss stage, we accept the well-
USCA11 Case: 22-11301 Document: 40-1 Date Filed: 07/07/2023 Page: 2 of 7

-- 2 of 7 --

22-11301 Opinion of the Court 3
complained of physical pain, including numbness in his right foot
and extreme pain in his right ankle. According to James, the medi-
cal care he received for his condition was inadequate.
Beginning in February 2020, he filed a series of grievances
with the prison related to the care he received. In the grievances,
James complained that his pain was becoming worse over time, he
was losing strength, and his right calf was shrinking. He requested
an MRI and demanded to see a neurologist.
From April 2020 through December 2020, Perez-Lugo re-
sponded to several of these grievances. He explained that James
had been seen by a medical provider at the prison and the provider
had determined that there was “no clinical indication for MRI.”
Doc. 19-1 at 6.2 Perez-Lugo concluded that this determination was
based on “sound clinical judgment.” Id. He also advised that re-
quests for “diagnostic tests [were] not issued through the grievance
system,” and if James was concerned about his treatment plan, he
should place a sick call to consult with his medical provider. Id.
In January 2021, James was examined by Perez-Lugo. At that
appointment, James complained that his condition was worsening.
As part of the examination, Perez-Lugo measured James’s calves
and observed that his right calf muscle was considerably smaller
than the left. Based on his examination, Perez-Lugo ordered an
pleaded allegations in the complaint as true and view them in the light most
favorable to the [non-movant].”).
2 “Doc.” numbers refer to the district court’s docket entries.
USCA11 Case: 22-11301 Document: 40-1 Date Filed: 07/07/2023 Page: 3 of 7

-- 3 of 7 --

4 Opinion of the Court 22-11301
MRI and determined that James should be seen by a neurologist.
James then received an MRI and was seen by a neurologist, who
determined that he needed surgery.
James, proceeding pro se, filed this lawsuit against Perez-
Lugo, claiming deliberate indifference.3 In the amended com-
plaint, which was the operative complaint, James alleged that Pe-
rez-Lugo acted with deliberate indifference when he denied
James’s grievances requesting additional medical care. Although
the amended complaint mentioned that James’s health issues be-
gan in July 2019, the allegations regarding Perez-Lugo related only
to the period from April 2020, when Perez-Lugo first reviewed one
of James’s grievances, through January 2021, when Perez-Lugo ex-
amined James.
Perez-Lugo filed a motion to dismiss, which the district
court granted. The district court concluded that the amended com-
plaint failed to state a claim for deliberate indifference. The district
court explained that Perez-Lugo did not act with deliberate indif-
ference when he responded to James’s grievances requesting addi-
tional medical care because Perez-Lugo had deferred to the medi-
cal judgment of the providers who had examined James. Even if
those providers’ decisions were “incorrect or subject to reasonable
debate among medical practitioners,” the district court explained,
3 James also named several other prison officials as defendants. The district
court dismissed the claims against these defendants. Because James raises no
argument on appeal regarding his claims against the other defendants, we dis-
cuss them no further.
USCA11 Case: 22-11301 Document: 40-1 Date Filed: 07/07/2023 Page: 4 of 7

-- 4 of 7 --

22-11301 Opinion of the Court 5
such “difference[s] of opinion regarding questions of medical judg-
ment” did not rise to the level of deliberate indifference. Doc. 44 at
21. The district court also concluded that Perez-Lugo did not act
with deliberate indifference in January 2021 when Perez-Lugo ex-
amined James and determined that he needed an MRI and referred
him to a neurologist.
This is James’s appeal.
II.
To survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“[N]aked assertions devoid of further factual enhancement” or
“[t]hreadbare recitals of the elements of a cause of action, sup-
ported by mere conclusory statements, do not suffice.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (alterations adopted) (internal quota-
tion marks omitted). “Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and are liberally con-
strued.” Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)
(internal quotation marks omitted).
III.
The Eighth Amendment’s prohibition against “cruel and un-
usual punishments” protects prisoners from “deliberate indiffer-
ence to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 102,
104 (1976). To prove deliberate indifference, a prisoner must show:
(1) an objectively serious medical need; (2) the defendant’s
USCA11 Case: 22-11301 Document: 40-1 Date Filed: 07/07/2023 Page: 5 of 7

-- 5 of 7 --

6 Opinion of the Court 22-11301
deliberate indifference to that need; and (3) a causal link between
the defendant’s indifference and the prisoner’s injury. See Goebert v.
Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). The second of these
elements requires the prisoner to establish that the defendant (1)
had subjective knowledge of a risk of serious harm and (2) disre-
garded that risk (3) by conduct that was more than gross negli-
gence. Wade v. McDade, 67 F.4th 1363, 1374 (11th Cir. 2023); see also
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (“Mere inci-
dents of negligence or malpractice do not rise to the level of con-
stitutional violations.”).
Conduct that is more than grossly negligent includes:
“(1) grossly inadequate care; (2) a decision to take an easier but less
efficacious course of treatment; and (3) medical care that is so cur-
sory as to amount to no treatment at all.” Bingham, 654 F.3d at
1176. A prisoner can also establish deliberate indifference by show-
ing “[a] complete denial of readily available treatment,” or that the
defendant “delay[ed] necessary treatment for non-medical rea-
sons.” Id.
Here, the district court concluded that James failed to state
a claim because the allegations in the amended complaint did not
show that Perez-Lugo acted with deliberate indifference. James’s
sole argument on appeal is that Perez-Lugo acted with deliberate
indifference because in August 2019 Perez-Lugo examined and
treated him. According to James, at the time of that examination,
Perez-Lugo should have “immediately referr[ed]” him to a neurol-
ogist and ordered an MRI. Appellant’s Br. at 7.
USCA11 Case: 22-11301 Document: 40-1 Date Filed: 07/07/2023 Page: 6 of 7

-- 6 of 7 --

22-11301 Opinion of the Court 7
The problem with this argument is that, even liberally con-
strued, the amended complaint included no allegations regarding
Perez-Lugo’s August 2019 examination. It’s true that the complaint
alleged that James received inadequate care during the entire time
he was detained at Columbia Correctional Institution, but the alle-
gations regarding Perez-Lugo related only to the period from April
2020. For the first time in his appellate briefing, James makes alle-
gations about Perez-Lugo’s August 2019 examination. But parties
“are not permitted to simply ‘insert’ new allegations through their
appellate briefing.” Quality Auto Painting Ctr. of Roselle, Inc. v. State
Farm Indem. Co., 917 F.3d 1249, 1262 (11th Cir. 2019) (en banc); see
Michel v. NYP Holdings, Inc., 816 F.3d 686, 705 (11th Cir. 2016) (ex-
plaining that an appellant “cannot [on appeal] use his briefing to
add new allegations and argue that those new assertions support
his cause of action”). Instead, James’s claim is limited to the allega-
tions in the amended complaint, which did not even mention the
examination. Accordingly, we reject James’s argument that the dis-
trict court erred in concluding that he failed to state a claim that
Perez-Lugo acted with deliberate indifference during the August
2019 examination.
AFFIRMED.
USCA11 Case: 22-11301 Document: 40-1 Date Filed: 07/07/2023 Page: 7 of 7

-- 7 of 7 --