The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10926 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 21, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cv-01396-CLS
STEPHEN ALEXANDER,
Plaintiff - Appellant,
versus
CITY OF MUSCLE SHOALS, ALABAMA,
ROBERT EVANS,
EDDIE LANG,
TOMMY SKIPWORTH,
CHARLES SOCKWELL, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 21, 2011)
Before WILSON, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Stephen Alexander appeals the summary judgment against his complaint
that his civil rights were violated by the City of Muscle Shoals and its employees.
42 U.S.C. § 1983. Alexander argues that he was entitled to amend his complaint
to add a cause of action against the City. Alexander also argues that genuine
issues of fact exist about whether the City violated his right to due process under
the Fourteenth Amendment and whether deputies at the City jail were deliberately
indifferent to Alexander’s need for medical treatment. We affirm.
The district court did not abuse its discretion by denying Alexander’s
motion for leave to amend his complaint. Alexander filed his motion five months
after the original deadline for the completion of discovery, two months after the
deadline had been extended twice at his request, and a month after the defendants
had moved for summary judgment. See Lowe’s Home Ctrs., Inc. v. Olin Corp.,
313 F.3d 1307, 1315 (11th Cir. 2002). Alexander also failed to establish good
cause to amend his complaint. See Sosa v. Airprint Sys., Inc., 133 F.3d 1417,
1418 (11th Cir. 1998). Alexander sought to add a new claim that the City had
violated his right to due process under the Fourth Amendment by denying him a
probable cause hearing. Alexander proffered as good cause that his attorney had
been unaware of the difference between his rights to an initial appearance hearing
and to a hearing to determine probable cause, but a city magistrate judge, in a
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deposition, explained to the attorney more than three weeks before the revised
discovery deadline that “probable cause and initial appearance [are] two different
things.” Because Alexander failed to act diligently on that information, his
request to amend his complaint after expiration of the deadlines in the scheduling
order was not supported by good cause.
Alexander complained that the City violated his right to due process under
the Fourteenth Amendment by failing to provide him an initial appearance
hearing, but Alexander failed to present evidence of a municipal custom or policy
of denying hearings for initial appearances. For the City to be liable, Alexander
had to establish: “(1) that his constitutional rights were violated; (2) that the [City]
had a custom or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). This Court has not
addressed whether a detainee has a constitutional right to an initial appearance
hearing, but we need not resolve that issue because Alexander failed to prove that
the City had adopted a “custom” or a “‘permanent and well settled’ practice[],”
Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985) (quoting
Adickes v. S.H. Kress & Co., 398 U.S. 144, 167, 90 S. Ct. 1598, 1613 (1970)), of
denying detainees an initial appearance hearing. On the contrary, two magistrate
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judges, Vonda Green and Bobby Muse, testified that they conducted initial
appearance hearings routinely and that the City had a written policy requiring
magistrate judges to conduct those hearings in accordance with the Alabama Rules
of Criminal Procedure. The district court did not err by granting summary
judgment in favor of the City and against Alexander’s complaint about a violation
of due process.
Alexander also failed to prove that deputies at the jail acted with deliberate
indifference to Alexander’s need for treatment of a staph infection on his leg.
Alexander had to establish that he had a medical need of which the deputies were
subjectively aware, but ignored based on “more than gross negligence.”
Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010). Although
Alexander complained to deputies for two days about pain in his leg that
prevented him from standing or walking, Alexander told the deputies that he was
suffering from gout and the deputies regularly administered medication to treat
that ailment. Alexander also did not prove that his need for other medical
attention was apparent to the “untrained eye” of the deputies. Youmans v.
Gagnon, 626 F.3d 557, 564 n.8 (11th Cir. 2010). Photographs taken of
Alexander’s leg depict a blister-like lesion on his leg, but Alexander did not allege
that the deputies saw the lesion or that they should have identified the lesion as a
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sign of a staph infection. It is unclear from the record that the deputies would
have seen any physical manifestation of the staph that would have made it
apparent that Alexander required medical treatment. Alexander’s doctor, who saw
Alexander twelve hours after he had been released from jail, testified that the
lesion could have developed in a matter of hours. The district court correctly
granted summary judgment in favor of the deputies on the ground of qualified
immunity.
We AFFIRM the judgment in favor of the City and its employees.
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