FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 27, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-12143

Non-Argument Calendar

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D. C. Docket No. 02-01524-CV-KOB-JEO

OLIN GRIMSLEY, 

Plaintiff-Appellant, 

versus 

DR. WILLIAM HAMMACK, 

DR. ANDY MADDUX, et al.,

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(November 27, 2007)

Before CARNES, BARKETT and FAY, Circuit Judges.

PER CURIAM:
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Olin Grimsley, a prisoner proceeding pro se, appeals the grant of the

defendants’ motions for summary judgment in his 42 U.S.C. § 1983 civil rights

action. Grimsley named Dr. William Hammack, Medical Director at St. Clair

Correctional Facility (“St. Clair”); NaphCare, Inc., contract provider of medical

services; Dr. Andy Maddux, nephrologist; Jim Henson, a nurse; Ralph Hooks,

Warden at St. Clair; and Donal Campbell, Alabama Department of Corrections

Commissioner, as defendants. Grimsley argues that he established a prima

facie case of deliberate indifference to his medical needs and presented a genuine

issue of material fact regarding the placement of an arteriovenous (“AV”) graft in

his arm and the defendants’ failure to remove it. Grimsley also argues that the

district court erred in denying his motions to appoint counsel because counsel was

needed to assist him in the prosecution of his case. Second, Grimsley argues that

the district court abused its discretion by denying his motion to amend his

complaint. Last, Grimsley argues that the district court abused its discretion by

denying his motion to obtain his medical records because those documents were

relevant and necessary to develop significant aspects of his case.

For the reasons set forth more fully below, we affirm.

I.

We review the district court’s ruling on a motion for summary judgment de

novo. Rojas v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). The moving party
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is entitled to summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “When deciding

whether summary judgment is appropriate, all evidence and reasonable factual

inferences drawn therefrom are reviewed in a light most favorable to the

non-moving party.” Rojas, 285 F.3d at 1341-42 (citation and quotation omitted).

Deliberate indifference to a prisoner’s serious medical needs violates the

Eighth Amendment. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). 

Deliberate indifference contains both an objective and subjective component. Id. 

A plaintiff first must demonstrate an “objectively serious medical need.” Id. 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.” Id. (citation and quotation omitted). 

Further, the medical need must be one that poses a substantial risk of serious harm

if left unattended. Id. 

Once a serious medical need is shown, a plaintiff must satisfy the subjective

inquiry, establishing that “the prison official acted with deliberate indifference to

that need.” Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (citation and

quotation omitted). However, a “simple difference in medical opinion” does not
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constitute deliberate indifference. Waldrop v. Evans, 871 F.2d 1030, 1033 (11th

Cir. 1989). “[T]he question of whether governmental actors should have employed

additional diagnostic techniques or forms of treatment ‘is a classic example of a

matter for medical judgment’ and therefore not an appropriate basis for grounding

liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th

Cir. 1995) (citation omitted). 

As an initial matter, the district court properly granted summary judgment as

to Dr. Hammack because Grimsley did not present any evidence to show that Dr.

Hammack either was aware of his serious medical need, or directly participated in

his care and treatment. Accordingly, Grimsley failed to establish a genuine issue

of material fact as to whether Dr. Hammack acted with deliberate indifference. As

to the remaining defendants, the following analysis considers separately: (1) the

placement of the AV graft on March 20, 2002; and (2) the failure to remove the

AV graft. Grimsley does not raise any arguments with respect to his initial dialysis

on appeal and, thus, has abandoned the issue. See Sepulveda v. United States, 401

F.3d 1226, 1228 n.2 (11th Cir. 2005).

A. Placement of the AV Graft on March 20, 2002

With respect to the placement of the AV graft, it is undisputed that Grimsley

had an objectively serious medical need, acute kidney failure, at the time the graft

was implanted. Dr. Simon, a staff physician, diagnosed the acute kidney failure
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while Grimsley was in custody at Limestone Correctional Facility (“Limestone”)

on February 11, 2002. Grimsley was transferred to St. Clair and was subsequently

sent to a non-prison hospital for examination and testing. Grimsley received

dialysis treatment at St. Clair after blood tests, x-rays, and other examinations

confirmed Dr. Simon’s diagnosis. On March 20, 2002, Dr. Maddux, a

nephrologist at St. Clair, decided to implant an AV graft in Grimsley’s arm,

presumably to provide a more stable access point for future dialysis. However, the

graft was never used because dialysis treatments were discontinued on March 25,

2002, after blood and urine tests, and an MRI revealed that Grimsley’s kidney

function had returned to normal. The defendants asserted that Grimsley’s course

of treatment was far more expensive than merely monitoring his condition, which

ultimately would have been easier and less expensive. 

Although Grimsley disputes the necessity of implanting the AV graft to

address his serious medical need, he provides no evidence that refutes Dr.

Maddux’s medical judgment that the AV graft was necessary at the time it was

implanted. To the contrary, the evidence shows that the defendants provided the

necessary care and treatment to correct Grimsley’s kidney failure, but not the

treatment Grimsley believes he should have received. Matters of medical

judgment extend to whether the defendants should have provided additional forms

of treatment. See Adams, 61 F.3d at 1545; see also Harris v. Thigpen, 941 F.2d
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1495, 1505 (11th Cir. 1991) (stating, “[n]or does a simple difference in medical

opinion between the prison’s medical staff and the inmate as to the

latter’s . . . course of treatment support a claim of cruel and unusual punishment”). 

Because Grimsley only has shown a difference of medical opinion in the manner in

which the defendants treated his condition, he has not raised a genuine issue of

material fact regarding deliberate indifference. See Adams, 61 F.3d at 1545;

Harris, 941 F.2d at 1505. 

B. Failure to Remove the AV Graft

Here, the evidence, viewed in the light most favorable to Grimsley, did not

demonstrate that the defendants were deliberately indifferent to a serious medical

need of Grimsley’s. The evidence showed that Grimsley experienced pain,

numbness, and swelling in his left arm, near the site of the AV graft, and

repeatedly complained to the prison medical staff. However, Grimsley provided

only his own unsupported allegations that the AV graft was the cause of this pain

and that removal of the graft constituted a serious medical need. No physician

mandated that the AV graft be removed, and Grimsley failed to show that the

failure to remove the graft caused such obvious effects that even a lay person

would have recognized the necessity for its removal. See Farrow, 320 F.3d at

1243. To the contrary, the medical evidence in the record demonstrated that

Grimsley was examined on several occasions, by both the prison medical staff and
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independent doctors, who each determined that there was no sign of infection or

problem with the graft, and who explained that removal of the graft was not

medically necessary and, in fact, could cause an increase in pain and numbness

near the graft site post-surgery. Grimsley, therefore, did not provide any evidence

that the removal of the AV graft rose to the level of a serious medical need, as

required to grant relief under the Eighth Amendment. See Adams, 61 F.3d at 1543. 

Therefore, because Grimsley has neither provided evidence that the

defendants’ placement of the AV graft in response to his serious medical need was

deliberately indifferent, nor shown that the failure to remove the graft was itself a

serious medical need, he has not shown that his Eighth Amendment rights were

violated. See Adams, 61 F.3d at 1543. Because Grimsley, in opposing the

defendants’ motions for summary judgment, did not set forth specific facts

showing that there was a genuine issue for trial, the district court did not err in

granting the defendants’ summary judgment motions as to his deliberate

indifference claim.

Finally, to the extent that Grimsley argues that the district court erred in

denying his motions to appoint counsel, the orders at issue were entered by a

magistrate. A district court may refer most non-dispositive motions, with certain

exceptions, to a magistrate for disposition. See 28 U.S.C. § 636(b). “[W]here a

party fails to timely challenge a magistrate’s non-dispositive order before the
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district court, the party waived his right to appeal those orders in this Court.” 

Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1365 (11th Cir. 2007)

(citation omitted); see Fed.R.Civ.P. 72(a) (stating that a party must file objections

to a magistrate’s order within 10 days after being served with a copy of the order). 

Here, Grimsley did not file any objections to the magistrate’s orders. Thus,

because he failed to challenge the magistrate’s orders before the district court, he

waived his right to appeal them here. See Smith, 487 F.3d at 1365; Fed.R.Civ.P.

72(a). For all of these reasons, we affirm as to this issue.

II.

We review the denial of a motion to amend a complaint under an abuse of

discretion standard. Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341

F.3d 1292, 1300 (11th Cir. 2003). Under Fed.R.Civ.P. 15(a), leave to amend “shall

be freely given when justice so requires.” Here, the district court withdrew, in part,

the magistrate’s order denying Grimsley’s motion to amend his original complaint

to include an additional claim against the defendants alleging that they failed to

remove the AV graft because he refused to sign a consent form that included an

absolute waiver of liability. Accordingly, to the extent the district court granted

this portion of Grimsley’s motion to amend, his argument on appeal is moot. As to

the denial of Grimsley’s motion to amend his original complaint to include

additional defendants, the district court did not abuse its discretion in denying this
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portion of his motion, which would have caused undue delay, and would have

resulted in unfair prejudice to the additional defendants. See Campbell v. Emory

Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999) (holding district court did not abuse

its discretion in denying motion to amend when amendment would have resulted in

undue delay and expense, and resulted in unfair prejudice to the defendants). 

III.

We review a district court’s decision to grant summary judgment prior to

conducting discovery for an abuse of discretion. See Wallace v. Brownell

Pontiac-GMC Co., 703 F.2d 525, 527-28 (11th Cir. 1983). Rule 56(b) states, “A

party against whom a claim . . . is asserted . . . may, at any time, move . . . for a

summary judgment.” Fed.R.Civ.P. 56(b). Rule 56(f) states, “Should it appear

from the affidavits of a party opposing the [motion for summary judgment] that the

party cannot for reasons stated present by affidavit facts essential to justify the

party’s opposition, the court may refuse the application for judgment or may order

a continuance to permit . . . discovery to be had.” Fed.R.Civ.P. 56(f). “[T]he

nonmovant may not simply rely on vague assertions that additional discovery will

produce needed, but unspecified, facts, but rather he must specifically demonstrate

how postponement of a ruling on the motion will enable him, by discovery or other

means, to rebut the movant’s showing of the absence of a genuine issue of fact.” 

Wallace, 703 F.2d at 527 (citations and quotations omitted). 
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Here, Grimsley failed to file a motion pursuant to Rule 56(f) and, instead,

filed a “notice” advising the district court that he was unable to obtain a copy of his

medical records. The district court construed this notice as a motion to conduct

additional discovery. Even if Grimsley had filed a proper motion under Rule 56(f),

he would still not prevail because he did not, and does not, demonstrate how

additional discovery “will enable him . . . to rebut the movant’s showing of the

absence of a genuine issue of fact.” Wallace, 703 F.2d at 527. Moreover, to the

extent Grimsley asserts that the defendants had an unfair advantage because they

had access to his medical records, the record demonstrates that Grimsley was

properly served with copies of the defendants’ responses containing the requested

documents, and Grimsley did not challenge service below. Accordingly, the

district court did not abuse its discretion by denying his motion.

In light of the foregoing, the granting of defendants’ motions for summary

judgments is 

AFFIRMED.