FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

August 23, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-10711

Non-Argument Calendar

________________________

D. C. Docket No. 04-00543-CV-OC-GRJ

RODERICK T. SIMPSON, 

Plaintiff-Appellant, 

versus 

CARLYLE HOLDER, Warden, 

FCC Coleman - Medium, 

GREGORY L. PARKS, Former Warden, 

FCC Coleman - Medium, 

LAWERENCE E. GREEN, Former M.D., 

FCC Coleman - Medium, 

JAIME CACHO, M.L.P., 

FCC Coleman - Medium, 

JOHN DOE, #1, Recreation Specialist, 

FCC Coleman - Medium, 

et al., 

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 23, 2006)
 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 1

(1971).

2

Before DUBINA, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Roderick Simpson, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his Bivens action for failure to exhaust administrative 1

remedies and failure to state a claim. He also appeals the denial of his motion for

reconsideration. We conclude that the district court properly dismissed Simpson’s

claims and denied his motion for reconsideration. Therefore, we affirm.

I. Background

Simpson filed a pro se Bivens complaint against the following FCC

Coleman (“Coleman”) staff members: Warden Carlyle Holder, former Warden

Greg Parks, Dr. Lawrence Green, Jaime Cacho, and one John Doe recreation

specialist; and the following Leesburg Regional Medical Center (“LRMC”) staff

members: Drs. Roger Sherman, J. Mandume Kerina, Ravi Gupta, and Fernandon

Serra, and two John Does (collectively “the defendants”). The complaint was

based on allegations of deliberate indifference to medical care and negligence

resulting in the amputation of Simpson’s leg because of an infection that occurred

after Simpson had surgery and a skin graft at LRMC for injuries sustained during a
 This was the second complaint that Simpson filed based on these facts. The first

2

complaint was dismissed without prejudice in part because Simpson failed to exhaust

administrative remedies.

3

flag football game at Coleman. Simpson sued the defendants in their official and 2

individual capacities. Simpson alleged that (1) John Doe recreational specialist

was deliberately indifferent and negligent for permitting Simpson to play flag

football without a medical exam; (2) John Doe 2 at LRMC was deliberately

indifferent to medical care and negligent by failing to check the medical chart,

which showed that Simpson was a diabetic, and snapping Simpson’s knee back

into place after the injury; (3) John Doe 3 at LRMC was deliberately indifferent

and negligent in the performance of surgery, which led to the infection that

required amputation; (4) Dr. Serra was deliberately indifferent and negligent when

he performed skin grafts before the wound healed; and (5) Holder and the medical

staff at Coleman were deliberately indifferent and negligent because they refused

to have Simpson fitted for a prosthesis. Simpson requested declaratory and

injunctive relief and $30 million in damages from each defendant.

Attached to the complaint were copies of grievances and requests for

administrative remedies, in which Simpson noted that he was injured during a flag

football game, his leg became infected after surgery for the injury, and ultimately

the leg was amputated. The grievances showed that Simpson requested that the
4

prison officials fit him for a prosthesis per the instructions of the doctors who

amputated his leg. The prison officials’ responses noted that Simpson’s weight

precluded the use of a prosthesis but informed Simpson that the doctors would fit

him for a prosthesis if he fulfilled their request to reduce his weight from

approximately 290 pounds to 225 pounds.

The district court performed the required screening under the Prison

Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, and dismissed the complaint

for failure to exhaust administrative remedies and failure to state a claim. First, the

court noted that the only exhausted claim was the allegation of deliberate

indifference to provide a prosthesis. Nevertheless, the court concluded that the

prosthesis contention failed to state a claim because Simpson’s weight prevented

doctors from fitting him for the prosthesis, and that this diagnosis with which

Simpson disagreed did not amount to deliberate indifference. Second, the court

concluded that the other claims were procedurally defaulted because they were not

exhausted. The court noted that, although Simpson referred to his other allegations

in his grievances, he did not seek any remedy, and the responses from the prison

officials did not address the other claims, which would now be time-barred. The

court dismissed Simpson’s complaint with prejudice.

Simpson moved for reconsideration, asserting that the complaint should not
5

be dismissed with prejudice because of his pro se status and that he should be

permitted to amend his complaint. Simpson’s motion to reconsider did not include

any new allegations to support his claims. He further asserted that the allegedly

unexhausted claims should be considered exhausted for § 1915A screening

purposes because, as the court noted, Simpson’s grievances referred to the other

claims. The court denied the motion for reconsideration. Simpson now appeals.

II. Standard of Review

We review de novo a district court’s sua sponte dismissal of a suit for failure

to state a claim for relief under § 1915A(b)(1). Leal v. Ga. Dep’t of Corr., 254

F.3d 1276, 1279 (11th Cir. 2001). We review de novo a district court’s dismissal

of a suit for failure to exhaust administrative remedies. Alexander v. Hawk, 159

F.3d 1321, 1323 (11th Cir. 1998). We “review the denial of [a] motion for

reconsideration for an abuse of discretion.” Cliff v. Payco Gen. Am. Credits, Inc.,

363 F.3d 1113, 1121 (11th Cir. 2004). 

III. Discussion

Simpson’s appeal presents three questions: (1) whether the district court

erred in dismissing his claim for deliberate indifference for the failure to provide a

prosthesis; (2) whether the district court erred in concluding that he had not

exhausted his other claims; and (3) whether the district court erred in denying his
6

motion for reconsideration.

First, Simpson argues that the district court erred in dismissing his claim for

deliberate indifference for failing to provide a prosthesis because (1) the court

mistakenly viewed frivolity and failure to state a claim as synonymous and should

have applied the frivolity standard; and (2) Simpson raised an arguable claim for

deliberate indifference. 

Under § 1915A, the district court must

review, before docketing, . . . or, in any event, as soon as

practicable after docketing, a complaint in a civil action

in which a prisoner seeks redress from a governmental

entity or officer . . . in order to identify cognizable claims

or dismiss the complaint, or any portion of the complaint

if it . . . fails to state a claim upon which relief may be

granted.

28 U.S.C. § 1915A(a), (b)(1); Leal, 254 F.3d at 1278-79.

The Eighth Amendment governs “the treatment a prisoner receives in prison

and the conditions under which he is confined.” Helling v. McKinley, 509 U.S. 25,

31 (1993). The Supreme Court has held that a prison official’s “deliberate

indifference to [the] serious medical needs of [a] prisoner[] constitutes the

unnecessary and wanton infliction of pain . . . proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotation marks and

citations omitted). As we have explained, “[t]o show a prison official acted with
 Law applicable to § 1983 also applies to Bivens claims. Kelly v. Serna, 87 F.3d 1235, 3

1239 (11th Cir. 1996).

7

deliberate indifference to serious medical needs, a plaintiff must satisfy an

objective and a subjective inquiry. First, a plaintiff must set forth evidence of an

objectively serious medical need. Second, a plaintiff must prove that the prison

official acted with an attitude of deliberate indifference to that need.” Farrow v.

West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quotation marks and citations

omitted).

The facts alleged must do more than contend medical malpractice,

misdiagnosis, accidents, and poor exercise of medical judgment. Estelle, 429 U.S.

at 104-07. An allegation of negligence is insufficient to state a due process claim. 

Daniels v. Williams, 474 U.S. 327, 330-33 (1986) (discussing deliberate

indifference and negligence under 42 U.S.C. § 1983). 

3

“When the need for treatment is obvious, medical care that is so cursory as

to amount to no treatment at all may amount to deliberate indifference.” Brown v.

Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (quotation omitted). However, a

“simple difference in medical opinion” is not deliberate indifference. Waldrop v.

Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). 

Here, the district court properly concluded that Simpson failed to state a

claim for deliberate indifference. The record shows that the prison officials and
8

doctors concluded that Simpson’s weight precluded doctors from fitting him for a

prosthesis. Simpson’s opinion that the prosthesis could be fitted despite his weight

is a mere difference of opinion with the prison officials and doctors and does not

establish deliberate indifference. Id. Furthermore, Simpson’s argument that the

district court confused the standards for frivolity and failure to state a claim and

should have applied the frivolity standard is without merit. Under § 1915A, the

court is required to dismiss on either ground and does not err in applying the

failure to state a claim standard. 

Simpson next argues that the district court erred by concluding that his other

claims were time-barred because the PLRA does not contain a procedural default

provision and because the prison has the discretion to accept an untimely

grievance. Nevertheless, he contends that he exhausted his administrative

remedies.

 The PLRA requires prisoners to exhaust administrative remedies before

filing suit with respect to prison conditions, and the requirement applies to suits in

which the prisoner seeks monetary or injunctive relief. 42 U.S.C. § 1997e(a);

Alexander, 159 F.3d at 1328. The PLRA does not contain futility or inadequacy

exceptions to the exhaustion requirement. We recently held, however, that the

PLRA exhaustion requirement contains a procedural default provision. Johnson v.
9

Meadows, 418 F.3d 1152, 1158-59 (11th Cir. 2005).

Here, the court found that Simpson’s claims, except for the deliberate

indifference claim for failing to provide a prosthesis, had not been exhausted and

would now be time-barred. The district court’s ruling was proper. Although

Simpson’s grievances tangentially referred to his other claims, Simpson’s

grievances neither requested a remedy nor did the prison officials’ responses show

that they considered those complaints. Thus, this is not a situation in which the

prisoner properly raised his claims but the prison officials simply ignored them. 

Therefore, Simpson was required to exhaust those claims through the

administrative procedures but he failed to do so. 

Furthermore, although prison officials may permit an untimely grievance if

good cause is shown for the delay, Simpson never attempted to file an out-on-time

grievance. Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999); 28 C.F.R. 

§ 542.14 (noting that grievances should be submitted within twenty days of the

incident but allowing for a delay in filing if the prisoner shows good cause). 

Because Simpson never filed a timely or untimely grievance and prison officials

have not addressed the good cause exception, the district court properly determined

that he has not exhausted his administrative remedies. Johnson, 418 F.3d at 1157-

59. Therefore, Simpson’s remaining claims were procedurally defaulted and
10

unexhausted. 

Finally, we consider whether the district court abused its discretion in

denying Simpson’s motion for reconsideration. In his motion for reconsideration

and on appeal, Simpson argues that the district court should have allowed him to

amend his complaint before dismissing his complaint with prejudice. This case

differs from Brown v. Johnson, in which we held that when an in forma pauperis

plaintiff moves to amend following the magistrate judge’s report and

recommendation but before the district court has entered judgment and before the

opposing party has filed a responsive pleading, Federal Rule of Civil Procedure

15(a) mandates that the district court grant the motion to amend. Brown v.

Johnson, 387 F.3d 1344, 1348-49 (11th Cir. 2004); Fed. R. Civ. P. 15(a) (“A party

may amend the party’s pleading once as a matter of course at any time before a

responsive pleading is served.”). Here, although the defendants had not filed a

responsive pleading – in fact, they had not even received process – the district

court had already dismissed Simpson’s suit when Simpson filed a motion for

reconsideration in which he asked to amend his complaint. Therefore, Johnson

does not control, and whether to allow amendment was within the district court’s

discretion. We conclude that because Simpson failed to set forth any additional

facts that would support his claims, the district court did not abuse its discretion in
11

denying Simpson’s motion for reconsideration.

In conclusion, we AFFIRM the judgment of the district court.

AFFIRMED.