Larkin Lloyd Derks, III v. Dr. Alexis Figueroa

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13202
Non-Argument Calendar
____________________
LARKIN LLOYD DERKS, III,
Plaintiff-Appellant,
versus
DR. RAMON BASSA, DR. FELIX CRUZ,
Defendants,
DR. ALEXIS FIGUEROA, CENTURION MEDICAL,
Defendant-Appellees.
____________________
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2 Opinion of the Court 22-13202
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00289-BJD-PDB
____________________
Before G RANT, ABUDU, and ANDERSON, Circuit Judges.
PER CURIAM:
State prisoner Larkin L. Derks, proceeding pro se, appeals
the district court’s order dismissing his § 1983 claim of deliberate
indifference in violation of the Eighth Amendment against
Centurion Medical, LLC and its order granting summary judgment
on that same claim against Dr. Alexis Figueroa. Because Derks
failed to sufficiently plead a policy or custom of Centurion leading
to the alleged violation of his constitutional right and failed to
provide sufficient evidence of deliberate indifference, we affirm.
I.
Prior to his incarceration, Derks was injured in an
automobile accident. He was subsequently treated by a specialist
who recommended surgery but entered prison under the custody
of the Florida Department of Corrections (FDOC) before having
any surgery. While in prison, Derks continued to receive
treatment from Centurion, which contracts with FDOC to provide
medical care to inmates.
Frustrated with the medical care he received (particularly
decisions not to follow specialist recommendations), Derks
brought action against Centurion and three of its employees
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22-13202 Opinion of the Court 3
alleging violations of his Eighth and Fourteenth Amendment rights
under 42 U.S.C. § 1983 and violations of the Americans with
Disabilities Act (ADA) and Rehabilitation Act (RA). He alleges that
defendants were deliberately indifferent to serious medical needs
in violation of his Eighth Amendment rights.
The district court dismissed Derks’s ADA, RA, and
Fourteenth Amendment claims against all defendants for failure to
state a claim. It also dismissed his Eighth Amendment claims for
failure to state a claim against all but one defendant: Dr. Alexis
Figueroa, a physician and Centurion employee who treated Derks.
The district court later granted summary judgment in favor of
Figueroa on the remaining Eighth Amendment claim. Derks
appeals the district court’s dismissal of his Eighth Amendment
claim against Centurion and its summary judgment order on his
Eighth Amendment claim against Figueroa.
II.
We review the district court’s grant of a motion to dismiss
for failure to state a claim de novo, “accept[ing] the allegations in
the complaint as true and constru[ing] them in the light most
favorable to the plaintiff.” Henley v. Payne, 945 F.3d 1320, 1326 (11th
Cir. 2019). To decide whether a complaint properly states a claim,
a court must first disregard any conclusory allegations and then
determine whether any remaining factual allegations, if assumed
as true, “plausibly give rise to an entitlement to relief.” McCullough
v. Finley, 907 F.3d 1324, 1333 (11th Cir. 2018) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009)). While pro se complaints should be
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4 Opinion of the Court 22-13202
construed liberally, they still must comply with the procedural
rules. McNeil v. United States, 508 U.S. 106, 113 (1993).
A court must also give a pro se plaintiff at least one chance
to amend his complaint when a more carefully drafted complaint
might state a claim. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001). But “when the complaint as amended would still be
properly dismissed or be immediately subject to summary
judgment for the defendant,” amendment is futile and need not be
granted. Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). We
review a denial of a motion to amend based on futility de novo. Id.
Our decision in Craig v. Floyd County squarely controls this
case. 643 F.3d 1306 (11th Cir. 2011). There, we held that a § 1983
claim against a private entity that contracts with a county to
provide medical services to inmates is treated as a § 1983 claim
against a municipality. Id. at 1310. Such entities cannot be liable
under § 1983 based on a theory of respondeat superior; rather, a
plaintiff must prove some policy or custom that caused his alleged
harm. Id. This requirement can be met either directly through an
official policy or indirectly through a “longstanding and widespread
practice.” Id. (quoting Brown v. City of Fort Lauderdale, 923 F.2d
1474, 1481 (11th Cir. 1991)). “A single incident of a constitutional
violation is insufficient to prove a policy or custom even when the
incident involves several employees.” Id. at 1311. And merely
citing one’s own personal experience, without more, is insufficient
to show a longstanding and widespread practice. See id. at 1310–
12; Myrick v. Fulton County, 69 F.4th 1277, 1299 (11th Cir. 2023).
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22-13202 Opinion of the Court 5
Derks failed to sufficiently plead a policy or custom of
Centurion that led to his harm. Because Centurion is a private
entity contracting with FDOC to provide medical services to
inmates, it is treated as a municipality under § 1983. See Craig, 643
F.3d at 1310. Derks’s amended complaint alleges that Centurion
has a policy or custom of refusing to comply with specialists’
recommendations, but he points only to the deliberate indifference
of three Centurion employees he experienced while receiving
medical treatment. By only alleging his own personal experience
with a few individual doctors, Derks failed to allege a “longstanding
or widespread practice.” See Craig, 643 F.3d at 1311 (quoting Brown,
923 F.2d at 1481).
Although Derks was already given a chance to amend his
complaint, he argues that he should receive a second opportunity
to amend. He does not, however, specify how any amendment
could adequately plead a policy or custom. Any additional
amendment would thus be futile, and the district court properly
dismissed Derks’s § 1983 claim against Centurion. See Cockrell, 510
F.3d at 1310.
III.
We review a district court’s order granting summary
judgment de novo, construing all evidence and drawing all
reasonable inferences in favor of the nonmovant. Hickson Corp. v.
N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). Summary
judgment is appropriate if “there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
The Eighth Amendment prohibits deliberate indifference to
the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S.
97, 104 (1976). To establish deliberate indifference, a plaintiff must
show “(1) a serious medical need; (2) the defendant’s deliberate
indifference to that need; and (3) causation between that
indifference and the plaintiff’s injury.” Mann v. Taser Int’l Inc., 588
F.3d 1291, 1306–07 (11th Cir. 2009). Deliberate indifference is not a
simple difference in medical opinions. Keohane v. Florida Dep’t of
Corr. Sec’y, 952 F.3d 1257, 1266 (11th Cir. 2020). Rather, a plaintiff
must show that a defendant acted with more than gross negligence.
Wade v. McDade, 67 F.4th 1363, 1374 (11th Cir. 2023).
Derks alleges that Figueroa was deliberately indifferent to
his serious medical needs and thus violated his Eighth Amendment
rights. He points to three instances to support his claim: (1)
Figueroa’s failure to reissue medical passes; (2) Figueroa’s failure to
follow specialist recommendations regarding his back and
shoulder; and (3) Figueroa’s failure to conduct a left elbow x-ray
after telling Derks one was needed. For each of these allegations,
the record lacks any evidence that Figueroa knowingly failed to
provide adequate care. Instead, the record shows that Figueroa
renewed Derks’s medical passes according to policy, that he
examined Derks every six months and prescribed him medication
for his pain, and that Derks lacked any valid medical need for a left
elbow x-ray. Any deviation from specialists’ recommendations
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was, at most, a difference in medical opinion. Nothing in the
record suggests that Figueroa’s treatment was deliberately
indifferent. The district court thus properly granted summary
judgment for Figueroa.
* * *
By failing to sufficiently plead a policy or custom of
Centurion, Derks’s § 1983 claim alleging deliberate indifference
against Centurion fails as a matter of law. Derks’s § 1983 claim
against Figueroa was properly dismissed at summary judgment
because the record lacks any evidence to support deliberate
indifference. We thus AFFIRM the district court’s motion to
dismiss and summary judgment orders.
AFFIRMED.
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