[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10631 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 7, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cv-21951-CMA
PERMON THOMAS,
lllllllllllllllllllll Plaintiff - Appellant,
versus
WARDEN HARRIS,
et al.,
llllllllllllllllll llllDefendants,
JULIO POVEDA,
llllllllllllllllll lllDefendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 7, 2010)
Before BLACK, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Permon Thomas, a state prisoner proceeding pro se, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 amended complaint for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii). He contends that the district court
erred in concluding that the allegations in his amended complaint fail to
sufficiently allege that Defendants Secretary McNeil, Warden Harris, and Health
Administrator Tate acted with deliberate indifference to his serious medical needs.
After careful review, we affirm.
I.
We review de novo a district court’s dismissal of an in forma pauperis
complaint for failure to state a claim under 28 U.S.C. § 1915 and take the
well-pleaded factual allegations in the complaint as true. Mitchell v. Farcass, 112
F.3d 1483, 1489-90 (11th Cir. 1997). “Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
A dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Mitchell, 112 F.3d at
1490. Dismissal for failure to state a claim is appropriate when the facts as
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pleaded do not state a claim for relief that is “plausible on its face.” Ashcroft v.
Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quotation marks omitted).
To prevail on a § 1983 claim, a plaintiff must prove that a person acting
under color of state law committed an act that deprived him of some right,
privilege, or immunity protected by the Constitution or the laws of the United
States. 42 U.S.C. § 1983. “Section 1983 creates no substantive rights; it merely
provides a remedy for deprivations of federal statutory and constitutional rights.”
Almand v. DeKalb Cnty., 103 F.3d 1510, 1512 (11th Cir. 1997).
Deliberate indifference to a prisoner’s medical needs violates the Eighth
Amendment. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976).
“To prevail on a deliberate indifference to serious medical need claim, [a plaintiff]
must show: (1) a serious medical need; (2) the defendants’ deliberate indifference
to that need; and (3) causation between that indifference and the plaintiff’s injury.”
Mann v. Taser Intern., Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009). To
establish the second element, deliberate indifference to the serious medical need,
the plaintiff must show: “(1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; and (3) by conduct that is more than mere negligence.”
Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004); see also Farmer v.
Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994) (explaining that the
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plaintiff must show that the defendant was “both [ ] aware of facts from which the
inference could be drawn that a substantial risk of serious harm exist[ed], and he
must also [have] draw[n] the inference”).
Even with a liberal construction, the allegations in Thomas’s amended
complaint fail to state a claim against the defendants. The evidence in the record
shows that the defendants first learned of Thomas’s serious medical need when he
filed a formal grievance on December 6, 2007 complaining about the quality of
care he received from Dr. Poveda for pain in his right knee. See Burnette v.
Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008) (explaining that Farmer requires
“the defendant-official to have actual knowledge of the risk, foreclos[ing] imputed
knowledge as the basis for an Eighth Amendment claim of deliberate indifference”
(quoting Whiting v. Marathon Cnty. Sheriff’s Dep’t, 382 F.3d 700, 704 (7th Cir.
2004)). The defendants responded to that grievance by having Thomas examined
on December 14, 2007 by Orthopedic Specialist Joseph Ovadia who prescribed a
low bunk pass. Thomas was examined by a second physician, Dr. Aguilar, who
prescribed pain medication and a no prolonged standing pass in January 2008.
The record also shows that Thomas filed grievances in June and July 2008
complaining that he had not received a cortisone shot prescribed in May 2008.
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The defendants responded by granting his July 2008 grievance and administering
the shot on August 15, 2008 when it became available.
To establish deliberate indifference, a plaintiff must allege that the
defendant disregarded a substantial risk of serious harm. See Brown, 387 F.3d at
1351. The allegations in Thomas’s amended complaint, however, establish that
the defendants responded to his grievances by providing him with medical care.
Thomas does not contend that the medical care he received was inadequate. For
those reasons, we conclude that the district court did not err in dismissing
Thomas’s amended complaint for failure to state a claim.
AFFIRMED.
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