Francisco Elario Martinez v. Nurse Wallace

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 1, 2012

No. 11-13799

Non-Argument Calendar JOHN LEY

CLERK

________________________

D.C. Docket No. 9:09-cv-82314-WPD

FRANCISCO ELARIO MARTINEZ,

Plaintiff-Appellant,

versus

MARILYN F. BURNS, etc., et al.,

Defendants,

NURSE WALLACE,

NURSE BYNES,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(March 1, 2012)

Before TJOFLAT, EDMONDSON and MARCUS, Circuit Judges.

PER CURIAM:

Francisco Martinez, a state prisoner appearing pro se, appeals the grant of

summary judgment in favor of defendants, Alma Wallace and Khatrena Bynes, in his

civil rights lawsuit filed pursuant to 42 U.S.C. § 1983. On appeal, Martinez argues

that Wallace and Bynes were deliberately indifferent to his serious medical needs in

violation of the Eighth Amendment. After careful review, we affirm.1

We review de novo the district court’s grant of a motion for summary

judgment, viewing all evidence and reasonable factual inferences in the light most

favorable to the nonmoving party. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057,

1060 (11th Cir. 1994). Summary judgment shall be granted if the movant shows that

there is no genuine dispute as to any material fact, so that the movant is entitled to

judgment as a matter of law. Fed.R.Civ.P. 56(a). Genuine disputes of fact exist when

the evidence is such that a reasonable jury could return a verdict for the non-movant.

1

As for Martinez’s brief assertion in his appellate brief that the third named defendant,

Officer Moore, violated his Fourth Amendment rights when he filed false and misleading

statements and reports, Martinez has waived any claim against Moore because he fails to make

any substantive arguments concerning the dismissal of Moore, and only makes a passing

reference to Moore as he asserts his general deliberate indifference argument. See Greenbriar,

Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

2

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009). Factual issues are

considered genuine when they have a real basis in the record. Id.

Summary judgment should be entered against a party who fails to make a

showing sufficient to establish the existence of an essential element of its case, and

on which it bears the burden of proof at trial. Acevedo v. First Union Nat’l Bank, 357

F.3d 1244, 1247 (11th Cir. 2004). “[I]nferences based upon speculation are not

reasonable,” and may not defeat a motion for summary judgment. Marshall v. City

of Cape Coral, Fla., 797 F.2d 1555, 1559 (11th Cir. 1986). Also, “[a] mere scintilla

of evidence in support of the nonmoving party will not suffice to overcome a motion

for summary judgment.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th

Cir. 2004).

“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). We show leniency to pro se litigants,

but we will not serve as de facto counsel or rewrite a pleading in order to sustain an

action. GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.

1998), overruled in part on other grounds as recognized in Randall v. Scott, 610 F.3d

701, 709 (11th Cir. 2010).

3

In order for a plaintiff to establish a claim under 42 U.S.C. § 1983, he must

prove (1) a violation of a constitutional right, and (2) that the alleged violation was

committed by a person acting under the color of state law. Holmes v. Crosby, 418

F.3d 1256, 1258 (11th Cir. 2005). The Eighth Amendment, applicable to the states

through the Fourteenth Amendment, governs the conditions under which convicted

prisoners are confined and the treatment they receive while in prison. Farrow v.

West, 320 F.3d 1235, 1242 (11th Cir. 2003); Bass v. Perrin, 170 F.3d 1312, 1316

(11th Cir. 1999). Deliberate indifference to an inmate’s serious medical needs

violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

“However, not every claim by a prisoner that he has not received adequate medical

treatment states a violation of the Eighth Amendment.” Farrow, 320 F.3d at 1243

(quotation omitted).

To prevail on a claim of deliberate indifference, a plaintiff must show: (1) a

serious medical need; (2) deliberate indifference to that need on the part of the

defendant; and (3) causation between the defendant’s indifference and his injury.

Mann, 588 F.3d at 1306-07. A serious medical need is “one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.” Farrow, 320 F.3d at

1243 (citation and quotation omitted). In order to establish deliberate indifference

4

on the part of a defendant, a plaintiff must show: “(1) subjective knowledge of a risk

of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross

negligence.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007) (quotation

and brackets omitted). Whether a defendant has subjective knowledge of the risk of

serious harm and whether they disregarded that risk are questions of fact that can be

demonstrated in the usual ways, including inference from circumstantial evidence.

Id.

In addition, to state a claim for deliberate indifference under § 1983, there must

be a causal connection between the constitutional violation and the state actor’s

conduct. See Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (citation

omitted) (requiring “proof of an affirmative causal connection between the official’s

acts or omissions and the alleged constitutional deprivation”). Such a causal

connection may be established by showing that the state actor was personally

involved in the acts that resulted in the violation of the constitutional right. Id.

Here, Martinez failed to sufficiently show the existence of the essential

elements of a claim of deliberate indifference to serious medical needs in violation

of the Eighth Amendment. Specifically, the record shows that nurses Wallace and

Bynes did not attend to Martinez on the dates he alleged. Because Martinez failed to

show that Bynes and Wallace attended to him on the dates he alleged, he failed to

5

show that they had a subjective knowledge of a risk of serious harm to him or that

they were personally involved in any acts of deliberate indifference to his serious

medical needs. Zatler, 802 F.2d at 401. As a result, Martinez’s claim of deliberate

indifference to his serious medical needs fails because no causal connection was

established between Wallace and Bynes and the constitutional violation.

Accordingly, we affirm.2

AFFIRMED.

2

Because the district court properly granted summary judgment based on Martinez’s

failure to state the essential elements of his deliberate indifference claim, we need not address

whether Wallace and Bynes are entitled to qualified immunity. See Carter v. Galloway, 352 F.3d

1346, 1350 n.10 (11th Cir. 2003) (stating that defendants had no need for a qualified immunity

defense when plaintiff’s deliberate indifference claim failed).

6