FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 22, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14353

Non-Argument Calendar

________________________

D. C. Docket No. 07-01644-CV-CAM-1

DARRYL PERNELL BUTLER, 

Plaintiff-Appellant, 

versus 

PRISON HEALTH SERVICES, INC., 

CONWAY, 

HOGAN, 

PINKARD, 

EDWARD, 

JANE DOE, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 22, 2008)

Before CARNES, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:
 We reject Butler’s argument that we do not have subject matter jurisdiction over this 1

appeal. Because the district court ruled on all claims and pending motions, there was a final

2

Darryl Butler, a state prisoner proceeding pro se, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 complaint against the Prison Health Service, its

administrator, and various staff members at the Gwinnett County Detention Center. 

In his complaint, Butler alleged deliberate indifference to his medical needs as the

result of a delay in providing medical care for injuries sustained in Telfair State

Prison on February 10, 2007, prior to his transfer to Gwinnett County Detention

Center. He asserted that he repeatedly requested medical attention, but was not

seen until March 6, 2007, and that this delay resulted in physical, mental, and

emotional injuries, forcing him to miss out on meals and daily routines. He further

alleged that the defendants failed to monitor and treat his high blood pressure. 

The district court dismissed the complaint as frivolous pursuant to 28 U.S.C.

§ 1915A, concluding that although there was a delay in medical care, Butler had

not shown how any underlying injury had been made worse by the delay or that

any defendant knew that a delay would be a serious detriment to Butler. The court

noted that Butler was treated numerous times to control his blood pressure, his

injuries were examined, and he received medication for pain. The court also

denied Butler’s motion to amend his complaint, filed three months after the court

dismissed the complaint. This appeal followed.1
decision, and we have jurisdiction. 28 U.S.C. § 1291; Pitney Bowes, Inc. v. Mestre, 701 F.2d

1365, 1368 (11th Cir. 1983).

 In his original complaint, Butler did not allege that he suffered a stroke as the result of 2

the delay in medical treatment. He makes this claim for the first time in his amended complaint,

filed after the district court dismissed his original complaint, and in his appellate brief. 

3

On appeal, Butler argues that the district court erred dismissing his

complaint because he sufficiently pleaded facts which established deliberate

indifference to his serious medical needs. He contends that the complaint stated

that he received no treatment for his medical condition until March 6, 2007, and

that his high blood pressure was not properly monitored. Butler asserts that the

district court erred by holding he suffered no injuries due to the delay in treatment,

explaining the lack of blood pressure monitoring led to his suffering a stroke.2

Under 28 U.S.C. § 1915A, the district court shall review, as soon as

possible, a prisoner’s complaint in a civil action against a government entity, in

order to dismiss the complaint, or any portion of the complaint, if the complaint is

frivolous, malicious, or fails to state a claim upon which relief may be granted. 28

U.S.C. §§ 1915A(a), (b)(1). We review the district court’s sua sponte dismissal

under 28 U.S.C. § 1915A for failure to state a claim de novo, taking as true the

allegations in the complaint. Leal v. Georgia Dep’t of Corr., 254 F.3d 1276, 1278-

79 (11th Cir. 2001). We liberally construes pro se pleadings. Brown v. Johnson,

387 F.3d 1344, 1350 (11th Cir. 2004). 
4

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. (internal citations and quotations

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 establish that “the prison official acted with deliberate indifference to

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

citations and quotations omitted). Deliberate indifference requires “(1) subjective

knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that

is more than mere negligence.” Farrow, 320 F.3d at 1245 (internal citations and

quotations omitted). 

A “simple difference in medical opinion” does not 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
5

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). In addition, “the official may escape liability for known

risks ‘if [he] responded reasonably to the risk, even if the harm ultimately was not

averted.’” Chandler v. Crosby, 379 F.3d 1278, 1290 (11th Cir. 2004).

We have stated that “a suit against a public official in his official capacity is

considered a suit against the local governmental entity he represents.” Vineyard v.

County of Murray, Ga., 990 F.2d 1207, 1210 n.3 (11th Cir. 1993). As such, the

plaintiff must show that a policy or custom of the governmental entity played a

part in the alleged constitutional violation. Hafer v. Melo, 502 U.S. 21, 25, 112

S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991). There is no respondeat superior

liability under § 1983. Harris v. Ostrout, 65 F.3d 912, 917 (11th Cir. 1995). 

In the instant case, Butler has failed to state a claim against the defendants in

their individual capacities because the defendants responded reasonably to Butler’s

symptoms, and the alleged failure to prevent his alleged stroke is insufficient, in

and of itself, to establish deliberate indifference. Butler also failed to state a claim

against the defendants in their official capacities as he failed to allege his delay in

treatment was part of a government policy or custom.

Butler also argues that the district court erred denying his motion to amend
6

his complaint. We review “the denial of a motion to amend a complaint for an

abuse of discretion.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341

F.3d 1292, 1300 (11th Cir. 2003). Leave to amend should be freely given when

justice so requires. Fed.R.Civ.P. 15(a)(2). Generally, a party should be given at

least one opportunity to amend before the district court dismisses the complaint

with prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). The

district court, however, need not “allow an amendment (1) where there has been

undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by

amendments previously allowed; (2) where allowing amendment would cause

undue prejudice to the opposing party; or (3) where amendment would be futile.”

Id. 

Butler’s amended complaint only identified previously unnamed defendants

and did not address the merits of his claims; thus, the proposed amendments were

futile. Moreover, the motion for leave to file an amended complaint was filed

more than three months after the district court conducted its frivolity review. 

Accordingly, the district court did not abuse its discretion denying Butler’s motion

to amend his complaint.

For the foregoing reasons, we AFFIRM the district court.