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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10854
Non-Argument Calendar
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D.C. Docket No. 4:14-cv-00313-MW-CAS

BOBBY L. MAGWOOD,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
MARSHA NICHOLS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 15, 2016)
Before JORDAN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:

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Bobby Magwood appeals the district courts dismissal of his claim of

deliberate indifference towards his medical needs, brought under 42 U.S.C. 1983
against Dr. Olugbenga Oqunsanwo, Dr. Rummel, Marsha Nichols, Richard
Comerford, J. Haas, and Michael Crews. 1
I.
On appeal, Appellees argue that we lack jurisdiction to hear Magwoods
appeal because Magwood appealed from a non-final order that did not qualify as
an interlocutory appeal and should not qualify under the Jetco exception for
finality Jetco Elec. Indus. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973). Appellees
argue that Jetcos exception should not apply because, although a series of orders
did effectively terminate Magwoods litigation, Magwood effectively voluntarily
dismissed his remaining claim by failing to prosecute. Additionally, his remaining
claim was dismissed without prejudice.
We have an obligation to review whether we have jurisdiction at any point in
the appellate process. Wajnstat v. Oceania Cruises Inc., 684 F.3d 1153, 1155
(11th Cir. 2012). When evaluating whether a district courts order is final and
appealable we look at the substance of the order rather than the label. Young v.
Prudential Ins. Co. of Am., 671 F.3d 1213, 1215 (11th Cir. 2012). We have held
that when a complaint is involuntarily dismissed without prejudice and the plaintiff

Magwoods request for a court-appointed attorney is DENIED.

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may, but elects not to, amend, the order is an adjudication on the merits under
Federal Rule of Civil Procedure 41(b). Robinson v. Federal Natl Mortg. Asso.,
673 F.2d 1247, 1249 (11th Cir. 1982). When the district court dismisses only
some of the claims in a case, a plaintiff generally cannot voluntarily dismiss the
remaining claims without prejudice to create a final decision. Mesa v. United
States, 61 F.3d 20, 22 (11th Cir. 1995). However, when the district court
dismisses a complaint with leave to amend within a specified period it becomes
final when the given time period for amendment expires. Garfield v. NDC Health
Corp., 466 F.3d 1255, 1260 (11th Cir. 2006) (quotation omitted). A plaintiff does
not need to wait for the amendment period to expire to appeal. Id. When a
plaintiff chooses to appeal rather than amend, he waives his right to later amend
the complaint. Id. at 1260-61.
The district courts order was a final adjudication on the merits with leave to
amend because the district court expressly dismissed Magwoods complaint
against every defendant and permitted Magwood to amend his complaint against
one defendant. See Garfield, 466 F.3d at 1260. This order was immediately
appealable and, once he did appeal, Magwood waived his right to amend. Id. at
1260-61. Therefore, we have jurisdiction.

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II.
On appeal, Magwood argues that the district court incorrectly granted
Appellees motions for dismissal for failure to state a claim. He asserts that he had
a serious medical issue while at Santa Rosa Correctional Institution, of which
Appellees were aware. Additionally, he argues that Dr. Rummel, Comerford, and
Dr. Oqunsanwo were aware of his concerns and had apparent authority over
Nichols.
We review de novo a district courts decision to dismiss a complaint for
failure to state a claim under Fed. R. Civ. P. 12(b)(6). Hill v. White, 321 F.3d
1334, 1335 (11th Cir. 2003). The complaint is viewed in the light most favorable
to the plaintiff, and all of the plaintiffs well-pleaded facts are accepted as true.
Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). A
motion to dismiss is only appropriate when the defendant demonstrates that the
plaintiff cannot prove any set of facts in support of his claim which would entitle
him to relief. Id. However, [w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiffs obligation
to provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65,
167 L. Ed. 2d 929 (2007) (citations, quotations, and alteration omitted). Factual
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allegations must be enough to raise a right to relief above the speculative level.
Id. at 555, 127 S. Ct. at 1965. Therefore, a complaint must contain sufficient
factual matters, accepted as true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009) (quotation omitted). A district court may properly dismiss a complaint
if it rests only on conclusory allegations, unwarranted factual deductions or legal
conclusions masquerading as facts. Davila v. Delta Air Lines, Inc., 326 F.3d
1183, 1185 (11th Cir. 2003).
In the case of a pro se action, however, the court should construe the
complaint more liberally than it would formal pleadings drafted by lawyers.
Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). However, when
considering a motion to dismiss, the district court should limit its consideration to
the pleadings and attached exhibits. Grossman v. Nationsbank, N.A., 225 F.3d
1228, 1231 (11th Cir. 2000).
When a district court dismisses a complaint with leave to amend and the
plaintiff chooses to appeal rather than amend his complaint, the plaintiff has
waived his right to later amend his complaint. Schuurman v. Motor Vessel Betty K
V, 798 F.2d 442, 445 (11th Cir. 1986). We have explained that such a rule averts
the possibility of uncertainty as to whether the dismissal of a complaint constitutes
a final judgment, protects the plaintiff by putting in his hands the decision of
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whether or not to treat the dismissal of his complaint as final, and simultaneously
limits [the plaintiffs] ability to manipulate the rules. Id. at 445-46. A plaintiff
who declines to amend his complaint after being so directed by the court is in the
same position as one who declines to exercise his permissive right to amend, that
is, there is nothing left for the district court to do, and the order becomes final.
Van Poyck v. Singletary, 11 F.3d 146, 149 (11th Cir. 1994).
In order to prevail on a civil rights action under 1983, a plaintiff must
show that he . . . was deprived of a federal right by a person acting under color of
state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
Prison officials violate the Eighth Amendment when they act with deliberate
indifference to an inmates serious medical needs, giving rise to a cause of action
under 1983. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291, 50 L.
Ed. 2d 251 (1976). The medical treatment provided to an inmate violates the
Eighth Amendment when it is so grossly incompetent, inadequate, or excessive as
to shock the conscience or to be intolerable to fundamental fairness. Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quotations omitted). Mere
negligence or malpractice, however, does not rise to the level of a constitutional
violation. Id.
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
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defendant; and (3) causation between the defendants indifference and the
plaintiffs injury. Mann v. Taser Intl, Inc., 588 F.3d 1291, 1306-07 (11th Cir.
2009). A serious medical need is a medical condition that has been diagnosed by
a physician as mandating treatment, a condition that is so obvious that even a lay
person would easily recognize the necessity, or a condition that is worsened by a
delay in treatment. Id. at 1307. However, it must be a condition that poses a
substantial risk of serious harm. Id. Previously, we have considered asthma a
serious medical condition when an inmate had clear symptoms. See Adams v.
Poag, 61 F.3d 1537, 1540-43 (11th Cir. 1995). However, high blood pressure may
not be a serious medical condition. See Brown v. Hughes, 894 F.2d 1533, 1538 n.4
(11th Cir. 1990) (citing Dickson v. Coleman, 569 F.2d 1310, 1311 (5th Cir. 1978)).
Additionally, a simple difference of medical opinion as to the appropriate
diagnosis or course of treatment does not rise to the level of deliberate
indifference. Harris, 941 F.2d at 1505. The inmate must show that the public
official acted with an attitude of deliberate indifference by demonstrating three
facts: (1) the defendant had subjective knowledge of a risk of serious harm; (2) the
defendant disregarded that risk; and (3) the defendants conduct was more than
mere negligence. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
Conduct that is more than mere negligence includes: (1) knowledge of a serious
medical need and a failure or refusal to provide care; (2) delaying treatment for
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non-medical reasons; (3) grossly inadequate care; (4) a decision to take an easier
but less efficacious course of treatment; or (5) medical care that is so cursory as to
amount to no treatment at all. McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.
1999). There can be a valid Eighth Amendment claim when a prison intentionally
interferes with a prisoners proscribed treatment. Brown, 387 F.3d at 1351 (11th
Cir. 2004).
Supervisory officials are not liable under section 1983 on the basis of
respondeat superior or vicarious liability. Belcher v. City of Foley, Ala., 30 F.3d
1390, 1396 (11th Cir. 1994) (quotation omitted). Under 1983, liability attaches
to a supervisor only if the supervisor personally participated in the events, or if
there is a causal connection between the action of the supervising official and the
alleged constitutional deprivation. Brown v. Crawford, 906 F.2d 667, 671 (11th
Cir. 1990). However, a history of widespread abuse puts the responsible
supervisor on notice of the need to correct the alleged deprivation, and he can be
liable when he does not do so. Id.
Under the Prison Litigation Reform Act (PLRA), inmates are not allowed
to recover monetary damages in a civil suit without first showing a physical injury
or the commission of a sexual act. 42 U.S.C. 1997e(e). However, we have held
that 1997e does not bar nominal damages when there is no showing of a physical
injury. Brooks v. Powell, 800 F.3d 1295, 1307-08 (11th Cir. 2015) (holding that
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nominal damages were available in an Eighth Amendment failure to protect claim).

Additionally, when a pro se plaintiff has not requested nominal damages
specifically in his complaint, in light of the liberal construction afforded pro se
pleadings, a district court should consider whether such damages are recoverable
before dismissing a complaint. See Hughes v. Lott, 350 F.3d 1157, 1162-63 (11th
Cir. 2003).
The district court erred in dismissing Magwoods complaint against Nichols.
Magwood sufficiently alleged that he had a serious medical condition. See Adams,
61 F.3d at 1540-43. Additionally, Magwood alleged that Nichols affirmatively
removed him from necessary medications, which may show deliberate
indifference. See Brown, 387 F.3d at 1351. Moreover, while Magwood did not
show that he was injured, nominal damages may be available. See 42 U.S.C.
1997e(e); Brooks, 800 F.3d 1295 at 1307-08. Although Magwoods complaint
did not specifically request nominal damages, he did request appropriate relief
generally, and the district court should consider whether nominal damages are
available under his original complaint. See Hughes, 350 F.3d at 1162-63.
Therefore, the district court erred in granting a motion to dismiss regarding
Nichols, because Magwood stated a claim upon which relief may be granted.
However, the district court did not err in granting the motions to dismiss
regarding the other defendants. Magwood did not allege that any of these
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defendants were directly involved in his medical care and, instead, relied on their
authority over Nichols and their supervisory positions. Supervisors are only liable
if there is a casual connection between their actions and the injury, and nothing in
Magwoods complaint alleges that they personally participated in his medical care.
See Crawford, 906 F.2d at 671. Additionally, although Magwoods complaint
links several of these defendants to the grievances he submitted, his complaint does
not explain how many grievances were sent, what the grievances stated, or why
attending the jails sick-call was an inadequate remedy. Therefore, because
Magwood did not show, beyond a speculative level, a causal connection between
these defendants and his allegedly inadequate medical care, the district court did
not err in granting a motion to dismiss regarding them. See Twombly, 550 U.S. at
555, 127 S. Ct. at 1964-65; see also Crawford, 906 F.2d at 671.
AFFIRMED IN PART, REVERSED IN PART.

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