William A. White v. William Berger, Sr. ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11606
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cv-00936-CEM-TBS
WILLIAM A. WHITE,
Plaintiff - Appellant,
versus
WILLIAM BERGER, SR.,
ERIC THOMPSON,
DONALD ESLINGER,
RONALD SHAW,
SEMINOLE COUNTY, FLORIDA,
Defendants - Appellees,
JOSEPH KLINGER, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 15, 2017)
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Before HULL, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
William White, proceeding pro se, appeals the district court’s dismissal of
his claims that defendants William Berger, Sr., Eric Thompson, Donald Eslinger,
Ronald Shaw, and Seminole County, Florida violated his constitutional rights by
confining him in unduly harsh isolation conditions. On appeal, White argues that
the district court erred in dismissing his claims against Berger and Thompson on
qualified immunity grounds, against Seminole County for failure to adequately
plead municipal liability, and against Eslinger and Shaw for failure to exhaust
administrative remedies. After careful review, we affirm the district court’s
judgment with regard to Berger, Thompson, and Seminole County, but vacate the
judgment as to Eslinger and Shaw.
I. BACKGROUND
White is a federal inmate who was previously incarcerated at the John E.
Polk Correctional Facility (the “prison”) in Seminole County, Florida. The prison
is owned and operated by Seminole County. White filed suit against two United
States Marshals (defendants Berger and Thompson), two Seminole County law
enforcement officials (defendants Eslinger and Shaw), and Seminole County itself,
alleging that he was subject to inhumane and unconstitutional conditions of
confinement while he was held in isolation at the prison. According to White’s
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third amended complaint (the “complaint”), although he was a federal inmate for
whom the U.S. Marshals were responsible, he was placed at the prison under a
contract between the United States Marshals Service (“USMS”) and Seminole
County.
White alleged that he was placed in an isolation unit at the prison after he
declined a plea offer in a pending criminal matter. According to the complaint,
White’s first isolation cell was 7 feet by 7 feet, had an open sewage drain in the
floor that functioned as a toilet, and was continuously filmed by a video camera
that broadcast live footage of the cell to a public area of the facility at all times,
even when White was using the sewage drain. The cell contained a bed made of
cinderblock, had no windows, and was growing mold. It also featured two
painfully bright double-bulbed lights that were left on 24 hours a day. While in
isolation, White was permitted no more than three hours of outside recreation and
only two showers each week. He would go weeks or months without a shave or
haircut.
White further alleged that he spoke to Shaw seeking to remedy his harsh
confinement conditions. Shaw informed him that Berger and Thompson were
directing him, Eslinger, and Seminole County to maintain those conditions.
Thompson, by contrast, told White’s attorney that Eslinger, Shaw and the County
were in control of White’s treatment. After receiving disciplinary action for
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calling his housing conditions stupid, White was transferred to a new cell and
threatened by a corrections officer who drew a taser, threatened to torture White,
and made sexual threats. The corrections officer was suspended for two weeks as a
result of these acts.
White alleged that as a result of this mistreatment, he rapidly lost weight (51
pounds in total), suffered physical pain in his head and eyes, and was unable to
sleep. He was unable to eat or drink water for a week. At one point, he was
transferred to a medical unit, where he was advised that he may have suffered
kidney and liver damage. White also developed rickets, which caused chips to fall
off his teeth as a result of a lack of exposure to sunlight. The medical staff advised
corrections officers that the conditions in the isolation units were endangering his
health, but the prison staff only intensified their torture of White when he returned.
White was thereafter denied all outside recreation and ability to communicate with
counsel. In total, White was in isolation for six months before being transferred
out.
Also, according to the complaint, Berger, the U.S. Marshal for the Middle
District of Florida, was aware of conditions in the isolation units because the
USMS contracted with Seminole County for the housing of federal prisoners at the
facility. In addition, Berger was aware of the conditions because White sent
Berger a letter informing him of them. White further alleged that Thompson, the
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Supervising Deputy U.S. Marshal for the Orlando office, was “personally aware”
of the isolation conditions and “personally direct[ed], in conjunction with the other
defendants, that . . . [White] be housed” in those conditions. Third Amended
Compl., Doc. 79 at 8. 1 Eslinger, the Sheriff of Seminole County, “personally
authorized both the [isolation] conditions . . . and, the infliction of those conditions
specifically upon [White].” Id. Shaw, the Captain in charge of security at the
facility, “personally discussed and reached an agreement with [] Eslinger and []
Thompson to” subject White to harsh conditions, and Shaw “personally committed
and directed others” to do so. Id. According to the complaint, Shaw explicitly
discussed his role in White’s treatment with White.
White filed suit against Berger, Thompson, Eslinger, Shaw, and Seminole
County, alleging that his conditions of confinement violated the First, Fourth,
Fifth, Sixth, Eighth, and Fourteenth Amendments. White’s First Amendment
claims were based on a conversation in which Shaw allegedly told White that he
was being mistreated because of his “First Amendment speech associations, and/or
religious views.” Id. at 10. The district court treated the pro se claims against
Berger and Thompson as though they were raised under Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971), while treating the remaining claims as though
they were raised under 42 U.S.C. § 1983. The district court dismissed with
1
Citations to “Doc. __” refer to numbered docket entries in the district court record in
this case.
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prejudice the claims against Berger, Thompson, and Seminole County for failure to
state a claim, and dismissed without prejudice the claims against Eslinger and
Shaw for a failure to exhaust administrative remedies under the Prisoner Litigation
Reform Act (PLRA), 42 U.S.C.A. § 1997e.2 White now appeals.
II. STANDARD OF REVIEW
We review a district court’s decision granting a motion to dismiss de novo.
MSP Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1357 (11th Cir. 2016). In
doing so, we accept the well-pleaded allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Chaparro v. Carnival Corp.,
693 F.3d 1333, 1335 (11th Cir. 2012).
We review de novo a district court’s interpretation and application of the
PLRA’s exhaustion requirement. Dimanche v. Brown, 783 F.3d 1204, 1210 (11th
Cir. 2015). We review the district court’s factual findings regarding exhaustion for
clear error. Id. A factual finding is clearly erroneous only if this court, after
reviewing all of the evidence, is left with the definite and firm conviction that a
mistake has been made. Bryant v. Rich, 530 F.3d 1368, 1377 (11th Cir. 2008).
2
The facts relevant to White’s efforts to exhaust administrative remedies are discussed in
Section III.C, infra.
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III. DISCUSSION
A. Claims Against Berger and Thompson
In Bivens, the Supreme Court determined that federal officials may be sued
directly under the Constitution for violations of an individual’s constitutional
rights. 403 U.S. at 397. Like state officials sued under 42 U.S.C. § 1983, federal
officials sued under Bivens may raise the defense of qualified immunity. See
Wilson v. Blankenship, 163 F.3d 1284, 1288 (11th Cir. 1998). In determining
whether government officials acting in their discretionary capacity are entitled to
qualified immunity, we ask whether the officials violated “clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Braddy v. Fla. Dep’t of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir. 1998)
(internal quotation marks omitted).
The district court granted qualified immunity to Berger and Thompson on
White’s Bivens claims because White failed to plead their personal participation in
any violation of his constitutional rights. On appeal, White does not argue that he
properly pled Berger and Thompson’s personal participation in his mistreatment;
instead, he argues that Bivens permits claims against federal officials analogous to
claims against individuals raised under 42 U.S.C. § 1986, which does not require
that defendants have personally participated in constitutional violations. In
White’s view, the district court should not have dismissed his claims against
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Berger and Thompson because he adequately pled their neglect in preventing the
alleged conspiracy, a claim under § 1986. For the reasons that follow, we
disagree.3
Section 1986 provides:
Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title, are
about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do, if
such wrongful act be committed, shall be liable to the party injured, or
his legal representatives, for all damages caused by such wrongful act,
which such person by reasonable diligence could have prevented.
Section 1986 claims are derivative of claims raised under 42 U.S.C. § 1985,
permitting liability against individuals who are aware of—but did not participate
in—a conspiracy prohibited by § 1985, and failed to take action to stop the
conspiracy. Park v. City of Atlanta, 120 F.3d 1157, 1159-60 (11th Cir. 1997).
Section 1985(3)—the portion of § 1985 that most closely tracks White’s
allegations—in turn prohibits “two or more persons” from conspiring to “depriv[e],
either directly or indirectly, any person or class of persons of the equal protection
of the laws, or of equal privileges and immunities under the laws.” For a
3
Berger and Thompson argue that White has waived his § 1986 argument by failing to
raise it in the district court. While White did not specifically identify § 1986 in his response to
Berger and Thompson’s motion to dismiss, he did assert that Berger and Thompson had personal
knowledge of a conspiracy to confine him in unconstitutional conditions and failed to take any
action to relieve those conditions. Construing White’s pro se response liberally, as we must, we
find that White’s argument below is sufficiently similar to the kind of liability envisioned by
§ 1986 that he has not waived his argument for purposes of this appeal. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed.” (internal
quotation marks omitted)).
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conspiracy to be actionable under § 1985(3), it must “be motivated by some racial,
or perhaps otherwise class-based, invidiously discriminatory animus.” Park, 120
F.3d at 1162 (internal quotation marks omitted).
Assuming for purposes of this case that Bivens permits § 1986 analogue
claims, we conclude that White has not stated such a claim because he has not
adequately pled that his treatment was motivated by racial or other class-based
animus. Id. Section 1985(3) does not permit liability for conspiracies based on
any discriminatory motive. Rather, it protects individuals from conspiracies to
harm them motivated by their membership in “classes having common
characteristics of an inherent nature—i.e., those kinds of classes offered special
protection under the equal protection clause.” Childree v. UAP/GA CHEM, Inc.,
92 F.3d 1140, 1147 (11th Cir. 1996). Liability under § 1985(3) requires
“something more” than the plaintiff’s membership in a “group of individuals who
share a desire to engage in conduct that the § 1985(3) defendant disfavors.” Bray
v. Alexandria Women’s Health Clinic, 506 U.S. 263, 269 (1993).
The complaint makes only a conclusory allegation that White was subjected
to harsh conditions in the isolation unit because of his political speech and
religious views. While § 1985(3) may protect against conspiracies motivated by
religious discrimination, White has not plausibly pled that he was mistreated based
on his religion. The complaint does not even identify the religious beliefs that
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supposedly resulted in White’s mistreatment, nor does it identify any individuals
who harbored animus against him for his religious beliefs. White’s only factual
allegation with regard to religious discrimination is that Shaw told him that he was
being treated as he was “in part” because of his “First Amendment speech
associations, and/or religious views.” Third Amended Compl., Doc. 79 at 10.
With regard to religious discrimination, the complaint lacks “facial plausibility”
because it does not contain “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Because White has not adequately pled the existence of a conspiracy to harm
him cognizable under § 1985(3), his assertion that he has adequately pled a § 1986
analogue claim under Bivens—to the extent such a claim is even permitted—fails.
We therefore affirm the district court’s dismissal of his claims against Berger and
Thompson.
B. Claims Against Seminole County
White next challenges the district court’s dismissal of his claims against
Seminole County. Claims brought under § 1983 are subject to limitations on
municipal liability. Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir.
2016). Municipal liability under § 1983 obtains only where “the municipality has
officially sanctioned or ordered” the constitutional violation at issue. Id. (internal
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quotation marks omitted). A municipality may be liable for an official policy
enacted by its legislative body, or where its policymakers have acquiesced in a
longstanding standard operating procedure, or where an entity with “final
policymaking authority” ratifies the unconstitutional decision of a subordinate. Id.
(internal quotation marks omitted). Although a plaintiff need not identify a final
policymaker at the pleading stage, a plaintiff must “allege a policy, practice, or
custom of the [municipality] which caused” the constitutional violation. Id. at
1280.
The district court dismissed White’s claims against Seminole County
because the complaint did not allege any “policy, practice, or custom” that resulted
in White’s mistreatment. On appeal, White argues that he was not required to
plead a “policy, practice, or custom” of the County because his mistreatment was
the natural consequence of the County’s construction of a prison containing
isolation cells with no windows, bright lights that could not be turned off, sewage
drains in lieu of toilets, and a video camera system that broadcast the cells to the
public. There are, however, no exceptions to the “policy, practice, or custom”
requirement for municipal liability. See Pembaur v. City of Cincinnati, 475 U.S.
469, 483 (1986) (“We hold that municipal liability under § 1983 attaches where—
and only where—a deliberate choice to follow a course of action is made from
among various alternatives by the official or officials responsible for establishing
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final policy with respect to the subject matter in question.”). However, a singular
action taken by a government official can constitute an official policy giving rise to
municipal liability if the official has final policymaking authority for the
municipality. See, e.g., id.
Reframed properly, then, White’s argument is that the County’s construction
of the isolation chambers itself was an official government policy that caused a
violation of White’s constitutional rights. The problem with White’s argument is
that—even assuming the decision to construct the isolation chambers was made by
an individual with final policymaking authority—the complaint does not suffice to
meet the strict causation standard applicable in municipal liability cases. “Where a
claim of municipal liability rests on a single decision, not itself representing a
violation of federal law and not directing such a violation, the danger that a
municipality will be held liable without fault is high.” Bd. of Cty. Comm’rs v.
Brown, 520 U.S. 397, 408 (1997). A plaintiff must, therefore, allege that his injury
“flows from the municipality’s action, rather than from some other intervening
cause.” Id. at 409. To prevent municipal liability “from collapsing
into respondeat superior liability, a court must carefully test the link between the
policymaker’s [allegedly] inadequate decision and the particular injury alleged.”
Id. at 410.
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Here, mere construction of the isolation units is insufficient to support a
claim of municipal liability. Legitimate law enforcement functions support
virtually all of the cells’ features. The presence of a camera in the cells and the
need for constant lighting, for example, can be important for the prison to monitor
particularly dangerous inmates at all hours. See, e.g., Bass v. Perrin, 170 F.3d
1312, 1317 (11th Cir. 1999) (holding that placement of plaintiffs in solitary
confinement with no outdoor exercise time, though harsh, was a rational and
constitutional “response to the substantial threat posed by the plaintiffs”).
Although we have concerns about White’s allegations, which we must take as true
at this stage of the proceedings, that his cell was being broadcast to a public area of
the prison, the complaint contains no facts suggesting that those broadcasts were a
function of the prison’s construction. Liberally construing White’s pleadings, then,
the crux of his claims is that these conditions were gratuitously imposed upon him
even though he posed none of the risks the isolation units might have been
designed to contain and that the defendants were deliberately indifferent to the
harmful effects isolation had on him. As alleged, the “moving force” behind the
alleged constitutional deprivation was not the construction of the isolation cells—
the features of which may well have had legitimate purposes—but was instead the
decision of certain individuals to use the isolation cells to inflict extreme and
unnecessary punishment on White. Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
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694 (1978). The district court therefore properly dismissed White’s claims against
Seminole County.
C. Claims Against Eslinger and Shaw
Finally, the district court dismissed White’s claims against Eslinger and
Shaw for a failure to exhaust administrative remedies. Under the PLRA, a prisoner
may not file a § 1983 action “until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). When a state provides a grievance
procedure for prisoners, an inmate alleging that he has suffered from illegal prison
conditions must file a grievance and exhaust the remedies available under the
state’s procedure before pursuing a § 1983 suit. Dimanche, 783 F.3d at 1210.
Under the PLRA, an inmate must properly exhaust administrative remedies,
meaning he must comply with the “critical procedural rules” governing the
grievance process. Id. (internal quotation marks omitted). Nonetheless, a remedy
must be “available” before it must be exhausted, and to be available, a remedy
must be “capable of use for the accomplishment of [its] purpose.” Id. (alteration in
original) (internal quotation marks omitted).
A defense of failure to exhaust administrative remedies under the PLRA is
treated as a matter in abatement, and deciding such a motion is a two-step process:
First, if the court determines from the plaintiff’s version of the facts that the
plaintiff has failed to exhaust his remedies, then the case must be dismissed. Id.
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Second, if the complaint is not subject to dismissal at the first step, then the court
must make specific findings to resolve the disputed factual issues related to
exhaustion. Id. Once the court makes such findings, it then decides whether the
prisoner has exhausted available administrative remedies.4 Id. The burden of
proving a failure to exhaust is on the defendants. Dimanche, 783 F.3d at 1210.
The district court dismissed without prejudice White’s claims against
Eslinger and Shaw for a failure to exhaust administrative remedies under the
second prong of the test.5 The court determined that the Seminole County
Sheriff’s Office had an inmate grievance procedure that White failed to complete.
That procedure required inmates to submit an initial Inmate Request form
explaining the reason for the grievance. If the inmate’s grievance was not
resolved, the inmate was then required to submit a Request for Administrative
Remedy form, which would be investigated by prison officials. Eslinger and Shaw
rely upon the grievance documents found in White’s file at the prison, which
included three initial Inmate Request forms, two complaining of his isolation and
one complaining that he had not received a “regular shower.” Inmate Request
4
When ruling on a motion to dismiss for failure to exhaust administrative remedies, the
court may consider evidence outside the pleadings. Bryant, 530 F.3d at 1376.
5
On appeal, Eslinger and Shaw argue that the district court also should have dismissed
White’s complaint under the first prong of our exhaustion test. But nothing in White’s complaint
and evidentiary submissions, standing alone, establishes that the prison had an available
administrative remedy. Indeed, White’s Fourth Affidavit states he was told that conditions of
confinement are not grievable.
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Forms, Doc. 123-4. White’s file from the prison also contained a single completed
Request for Administrative Remedy form—dated approximately ten months after
White’s Inmate Request forms with regard to his confinement—concerning
misplacement of a newspaper he had purchased.
White concedes that he did not submit the necessary grievance form, but he
contends that he was denied the forms by prison officials. He submitted affidavits
attesting that he attempted to obtain “grievance forms” (presumably, a Request for
Administrative Remedy form) on May 25 and again on May 26, 2014, both orally
and in writing, but was told by a Lieutenant Heath that his condition of
confinement issues were not “grievable,” and that he was “denied forms.” In
another affidavit, White stated that he submitted numerous Inmate Request forms
that were not present in the file submitted by Eslinger and Shaw, including the
form that led to his conversation with Lieutenant Heath. That form, according to
White, contained specific allegations about his conditions of confinement,
including the lack of outdoor recreation, lack of routine access to showers and
shaving materials, constant exposure to bright lights, constant video surveillance,
the sewer drain, the lack of windows, and the lack of hot water. Indeed, the
earliest Inmate Request form placed in the record by Eslinger and Shaw suggests
that White had previously submitted two Inmate Request forms that are not in the
record, noting: “This is my third form. I was told the first two were thrown out for
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lack of a signature.” May 22 Inmate Request Form, Doc. 123-4 at 1. According to
White, he was repeatedly denied Request for Administrative Remedy forms during
his six months in isolation.
The district court concluded that White failed to exhaust his administrative
remedies. The court determined that White’s claims that he was denied grievance
forms were not credible because White (1) provided neither the “pertinent dates”
on which he asked for and was denied the relevant forms, and did not identify the
“specific issues” he was told were “not grievable,” (2) did not pursue any
administrative remedies during a several month period when he was at a different
correctional facility, and (3) actually did file the relevant form months after his
isolation ended when he complained about a missing newspaper. D. Ct. Order,
Doc. 144 at 11-12. In the alternative, the district court held that even if White was
denied access to the Request for Administrative Remedy forms prior, he could
have filed one once the forms became available to him several months after his
isolation ended.
The district court relied on factually incorrect or legally erroneous
considerations in determining that White failed to exhaust administrative remedies.
First, White submitted evidence of virtually all of the specific details that the
district court said were missing. The court determined, in part, that White was not
credible because he failed to identify the dates on which he asked for forms and
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was denied them and the specific complaints he was told were not grievable. But
White submitted a sworn affidavit stating that he asked for and was denied
grievance forms on May 25 and 26, 2014, and that on May 26 Lieutenant Heath
informed him that conditions of confinement issues were not grievable. Another of
his affidavits indicated that the Inmate Request form that prompted White’s
conversation with Lieutenant Heath contained the same complaints that White
included in his letter to the U.S. Marshal. The letter to the Marshal, in turn,
includes White’s complaints about virtually all of the conditions described in the
complaint. The district court’s finding that White provided only “bald assertions”
because he did not specify dates or details concerning his attempts to obtain the
relevant forms is belied by the record, and was therefore clearly erroneous.
Second, the district court’s conclusion that White failed to exhaust
administrative remedies because he failed to pursue any after he was transferred
out of the prison near the end of December 2014 improperly shifted the burden of
proof. Eslinger and White bore the burden of establishing that White failed to
exhaust his available administrative remedies. Dimanche, 783 F.3d at 1210. But
they have failed to place in the record—nor does the record contain—any evidence
suggesting that any administrative remedies were available to White when he was
no longer incarcerated at the prison. The district court misapplied the law in
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penalizing White for failing to take advantage of remedies the defendants failed to
prove were available to him.
Third, the district court’s alternative conclusion, that White was obligated to
file a Request for Administrative Remedy form months after his isolation ended,
when the form became available to him while he was temporarily back at the
prison between March and April of 2015, is also inconsistent with our law. The
parties agree that White was removed from isolation in November 2014. The
record shows that a Request for Administrative Remedy form became available to
White in April 2015, when he filed such a form concerning a missing newspaper.
The prison’s policy, however, required grievances to be filed within ten days of the
events giving rise to the grievance. The record contained no evidence that there
was a “good cause” exception—or any other exception—to this policy. “[A]n
administrative procedure is unavailable when . . . it operates as a simple dead end.”
Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). “When the facts on the ground
demonstrate that no [] potential [relief] exists, the inmate has no obligation
to exhaust the remedy.” Id. Here, White had no obligation to file an out-of-time
grievance that could not have resulted in relief, according to the prison’s policy.
The district court therefore erred in concluding that White failed to exhaust
administrative remedies because he did not file a grievance when the relevant form
became available to him in April 2015.
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To be sure, the fact that White eventually filed a Request for Administrative
Remedy form on an issue unrelated to his isolation conditions is a factor that the
district court may determine bears on White’s credibility. See Bryant, 530 F.3d at
1377. The district court made such a determination here, and doing so was not
error. Regardless, the district court’s order concluding that White failed to exhaust
administrative remedies cannot be sustained based on the credibility determination
alone because the court’s credibility finding was based on clear errors concerning
the contents of the record. That being so, we cannot say that White’s substantial
rights were unaffected by the district court’s errors. See Fed. R. Civ. P. 61. We
therefore vacate the district court’s dismissal without prejudice of White’s claims
against Eslinger and Shaw.6
IV. CONCLUSION
For the foregoing reasons, we affirm district court’s dismissal with prejudice
of White’s claims against Berger, Thompson, and Seminole County. We vacate
6
White also appeals the district court’s decision to strike for a failure to comply with
local rules a report written by Dr. Eric Ostrov assessing White’s mental state. We need not
decide whether the district court properly struck the report because any error was harmless and
could not have affected White’s substantial rights. See Fed. R. Civ. P. 61. The district court
dismissed White’s claims against Berger, Thompson, and Seminole County, and we now affirm
that decision, on grounds wholly unrelated to the subject matter of Dr. Ostrov’s report. The only
dispositive issue left open by this court’s decision is Eslinger and Shaw’s motion to dismiss. For
all issues except exhaustion, that motion turns exclusively on the sufficiency of the third
amended complaint, and Dr. Ostrov’s report has nothing to do with whether White appropriately
exhausted administrative remedies. Hence, at this point in the case, any error in excluding Dr.
Ostrov’s report was harmless. Moreover, White is not prohibited from re-filing Ostrov’s report
as an exhibit to a future motion or response for which the report has relevance.
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the district court’s dismissal without prejudice of White’s claims against Eslinger
and Shaw.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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