Clarence Fisher v. Captain Ellegood , 238 F. App'x 428 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 6, 2007
No. 06-15167 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00453-CV-FTM-99-DNF
CLARENCE FISCHER,
Plaintiff-Appellant,
versus
CAPTAIN ELLEGOOD,
SERGEANT REIS,
OFFICER POOSER,
OFFICER FNU HOLLAND,
OFFICER MAYS,
SGT. LAFAYETTE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 6, 2007)
Before ANDERSON, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Clarence Fischer, a Florida prisoner and pro se litigant, appeals the district
court’s grant of summary judgment against him on all claims in an action he
brought under 42 U.S.C. § 1983 against various employees of the Lee County Jail,
the facility at which he was housed during the events underlying this lawsuit.
I.
Fischer’s sworn complaint described the events and conditions that resulted
after Jail employees, under the direction of Sergeant Reis, implemented a
“lockdown,” which included the racial segregation of prisoners in his cell block, on
April 23, 2003. The affected inmates were split along racial lines into four
separate cells, some with as many as seven inmates per cell, where they were kept
for two weeks. One of the cells had broken plumbing, the inmates were not
allowed to shower or otherwise maintain personal hygiene, and Fischer and the
other inmates were forced to sleep on the floor and on other inmates’ bunks with
soiled bed linens. Another ill effect of the “hostile environment” that “erupted” in
Fischer’s cell was a fight that broke out in which Fischer was injured “by being
struck.” Also, Fischer was hit with “bodily fluids” because of all the “urine
throwing and . . . spitting” that took place during the inmates’ close confinement
(once even in front of Officer Mays and another officer).
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Throughout the lockdown, Officers Mays, Holland, and Pooser repeatedly
misled the inmates as to when they would be returned to their regular cells and
denied Fischer’s requests to speak with their superiors about the situation. So, on
April 26, 2003, Fischer lodged a written grievance. But instead of ending the
lockdown and segregation, Sergeant Lafayette and 15 to 20 other officers
retaliated. They conducted a “shakedown” during which Fischer “and others
received pepper spray” after hearing Sergeant Lafayette at one point tell the other
officers to “make sure [the inmates] get something in their face.” Several other
inmates were beaten.
The next day, after being returned to a locked down and segregated state,
Fischer filed another written grievance, this time to Captain Ellegood, the Jail’s
“facility commander.” This, too, was ignored and in fact remained unaddressed as
of November 2003, when Fischer filed his “second amended complaint.”
As a result of what he calls “this whole ordeal,” Fischer says that he endured
“fear, stress, and suffering.” And although he has abandoned the issue on appeal,
Fischer also claimed in his sworn complaint that, in retaliation for his written
grievances and for bringing this lawsuit, Jail employees deprived him of
medication for his mental and physical conditions, including his “Bi-Polar, Manic
Depressive state.” The resulting mood swings landed Fischer in “altercations” in
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which he suffered a “broken nose and other [unspecified] injuries.”
On the basis of these allegations, Fischer sued the defendants, in both their
official and individual capacities, claiming “racial discrimination, segregation,
harassment, and cruel and unusual punishment under the 8th Amendment.” He
also claimed violations of his rights under the First Amendment, and “any other
violations or laws that I have missed.”
After the defendants filed answers, Fischer filed a motion for appointed
counsel, which the district court denied, and the defendants ultimately moved for
summary judgment. The district court granted summary judgment in favor of all
defendants, as to all claims. Fischer timely appealed.
II.
Summary judgment is appropriate if the record reveals no genuine issue of
any material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56. A district court’s order granting summary judgment is
reviewed de novo, “viewing all evidence, and drawing all reasonable inferences, in
favor of the non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,
767 (11th Cir. 2005).
We review the denial of a motion for appointed counsel for abuse of
discretion. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999).
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III.
On appeal, Fischer raises five issues warranting discussion.1 We address
each of these issues, though in an order somewhat different from the order he
presents them in his brief.
A.
First, we consider Fischer’s only argument bearing on the district court’s
grant of summary judgment to the Jail employees in their official capacities. In
reaching its result, the district court reasoned that Fischer’s evidence failed to
identify a practice, policy, or custom of the Lee County Jail that was a “moving
force of injury” to him. Fischer argues simply that he “did list all of the customs,
policies, procedures, and rules and regulations violated [by] the defendants
actions” by attaching to his complaint his formal grievance to Captain Ellegood.
Given our obligation to view pro se pleadings liberally, Estelle v. Gamble, 429
U.S. 97, 106, 97 S. Ct. 285, 292 (1976), he argues that there is a genuine issue of
material fact on this point.
An official-capacity suit is, “in all respects other than name, to be treated as
1
In addition to the five issues we address in this opinion, Fischer also repeatedly
suggests that the district court violated his Seventh Amendment right to trial by jury when it
granted summary judgment in favor of the defendants. We have rejected this line of reasoning in
the past and therefore see no reason to discuss the argument again here. See Garvie v. City of
Fort Walton Beach, Fla., 366 F.3d 1186, 1190 (11th Cir. 2004).
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a suit against the entity [of which the defendant is an agent].” Kentucky v.
Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105 (1985). To prevail under §
1983 against that entity, a plaintiff must show that the entity itself was the “moving
force” behind his constitutional deprivation, and the only way to do that is by
identifying a “‘policy or custom’ [of the entity that] played a part in the violation
of federal law.” Id.
In light of these principles, the district court correctly granted summary
judgment on the official-capacity claims. Fischer did in fact identify a policy of
the Lee County Jail in the formal grievance he submitted to Captain Ellegood. The
grievance cited the “Inmate Rules and Regulations” as providing two showers a
week for those inmates in disciplinary confinement and daily showers for all other
inmates. But the claim Fischer made in his formal grievance and in his § 1983
complaint (and that he makes again before us) is not that this policy was
constitutionally deficient, but that individual agents of the Lee County Jail violated
it. We will take up this particular alleged policy violation when we examine the
relevant Eighth Amendment claim against the defendants in their individual
capacities, but for present purposes there is no question that Fischer has failed to
present evidence of any Lee County policy or custom that “played a part” in the
deprivation of his rights. In other words, he has shown no evidence that the county
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itself (as opposed to individual officers) violated his rights.
B.
Second, we address Fischer’s Eighth Amendment excessive-force claim,
which is based on the pepper spray incident. In granting summary judgment on
this claim, the district court cited the absence of evidence “that the . . . spray was
used for any other purpose . . . than to restore order,” or that Fischer incurred any
injury from the spray. Fischer does not mention the injury issue in his brief, but
instead says that he has presented evidence in the form of his sworn complaint that
the spraying was “wanton and deliberate and not necessary as no situation or threat
of safety ever existed.” This, he says, means that summary judgment was
improper.
To establish a claim for excessive force in violation of the Eighth
Amendment, a plaintiff must show (1) that the force was “sadistically and
maliciously applied for the very purpose of causing harm,” Johnson v. Breeden,
280 F.3d 1308, 1321 (11th Cir. 2002), and (2) that more than a de minimis injury
resulted. See id.Even assuming that Fischer presented sufficient evidence of an injury
(which we doubt), summary judgment is due to be affirmed on the excessive force
claim because nothing in the record suggests the officers used the pepper spray
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with the malicious intention of causing harm to Fischer. In support of their
summary judgment motions, the defendants produced two “OC Spray Compliance
Forms” and the affidavit of Sergeant Lafayette, all of which indicated that officers
sprayed inmates Delamos and Armstrong for refusing to follow orders to face the
wall during the shakedown. Given this evidence, the burden shifted to Fischer to
present “evidence on which the jury could reasonably find for [him],” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986), on the issue
of the defendants’ subjective intentions when they sprayed the inmates.
Fischer did not carry this burden. In his sworn complaint, Fischer baldly
asserted that the officers sprayed him and the others as part of a “shakedown” that
was in retaliation for his written grievance of April 26, 2003. He also baldly
asserted that the spraying was “unwarranted and cannot be justified therefore being
classified as an Improper and Excessive Use of Force.” Neither of these statements
amount to evidence of what the defendants intended. The same is true for mere
promises of “affidavits and live testimony” (as Fischer made in his response to the
defendants’ motions for summary judgment) or “eight witnesses” (as he made in
his brief here).
The only sworn statement Fischer has provided in the course of this
litigation approaching relevance to the “malicious and sadistic” standard is the
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single sentence in his complaint that: “During this shakedown Sergeant Lafayette
instructed the Officers to ‘make sure they get something in their face’ . . . .” The
problem, however, is that this statement doesn’t actually bear on whether Lafayette
or the “Officers” “sadistically and maliciously applied [the spray] for the very
purpose of causing harm.” Johnson, 280 F.3d at 1321. It certainly does not shed
light on any of the five factors we use to determine whether force was used
“sadistically and maliciously”: “(1) the extent of injury; (2) the need for
application of force; (3) the relationship between that need and the amount of force
used; (4) any efforts made to temper the severity of a forceful response; and (5) the
extent of the threat to the safety of staff and inmates, as reasonably perceived by
the responsible officials on the basis of facts known to them.” Campbell v. Sikes,
169 F.3d 1353, 1375 (11th Cir. 1999) (quotations and citations omitted). Summary
judgment was therefore appropriate on Fischer’s excessive force claim.
C.
The third issue we consider also involves an Eighth Amendment claim, but
this one deals with the overcrowded and unsanitary conditions Fischer allegedly
endured during the lockdown.2 The district court concluded that the conditions
2
Fischer’s Eighth Amendment claim may in actuality be a Fourteenth Amendment
claim: If he was a pre-trial detainee during the relevant events (as opposed to a convict serving a
prison sentence), Fischer was protected not by the Eighth Amendment’s ban on cruel and
unusual punishment, but by the Fourteenth Amendment’s right to due process. See Hamm v.
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Fischer experienced were not “so extreme as to have posed an ‘unreasonable risk
of serious damage’ to [Fischer’s] health or safety.” On appeal, Fischer argues that
a genuine issue exists as to this material fact in light of his interrogatory responses
and the formal grievance he attached to his complaint.
To establish an Eighth Amendment claim based on prison conditions, an
inmate must meet both an objective component, which requires that the conditions
be “sufficiently serious,” and a subjective component, which requires that the
officials acted with “deliberate indifference to prisoner health or safety.” Jordan v.
Doe, 38 F.3d 1559, 1564 (11th Cir. 1994) (quotation marks omitted). To meet the
objective standard, “only those deprivations denying the minimal civilized measure
of life’s necessities are sufficiently grave to form the basis of an Eighth
Amendment violation.” Hudson v. McMillan, 503 U.S. 1, 9, 112 S. Ct. 995, 1000
(1992) (quotation marks omitted).
In applying this standard to the present case, we note that 42 U.S.C. §
1997e(a) limits our review of Fischer’s conditions-of-confinement claim to only
those conditions he included in the formal grievance he submitted to Captain
Ellegood. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to
DeKalb County, 774 F.2d 1567, 1572 (11th Cir. 1985). We are unsure of Fischer’s status during
the events at issue in this case, but that uncertainty is of no consequence. The “minimum
standard” of ensuring inmates with the “basic necessities” is the same regardless of the
constitutional provision. Id. at 1574.
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prison conditions under section 1983 of this title, or any other federal law, by a
prisoner confined in any jail . . . until such administrative remedies as are available
are exhausted.”). Filed on the fifth day of the lockdown, the grievance mentioned
these four conditions: (1) “Some cells had as low as four inmates in them while
other cells had as many as seven;” (2) “inmates were not only forced to sleep on
bare cement floors but also on other inmates mattresses and linen” (which had not
been washed after others’ use of those linens); (3) the inmates were deprived of
their daily showers; and (4) the inmates’ laundry had not been done. Fischer does
not mention the laundry issue in his brief, so we deem any claim as to it
abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6
(11th Cir. 1989).
When viewed through the applicable procedural filters, it is clear that even a
liberal reading of Fischer’s sworn statements reveals no constitutional violation as
to the three conditions we have before us (the overcrowding, sleeping, and shower
conditions). For example, undisputed evidence shows that each jail cell could hold
at least four inmates, meaning that the affected cells were never even at double
capacity during the lockdown. Even double capacity, the Supreme Court has held,
does not violate the constitution absent “deprivations of essential food, medical
care, or sanitation.” Rhodes v. Chapman, 452 U.S. 337, 347–48, 101 S. Ct. 2392,
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2400 (1981). Furthermore, Fischer has given us no reason to believe that sleeping
on the floor or on unwashed bed linens or being denied showers amounts to either
a deprivation of “essential . . . sanitation” (which would be relevant as to Fischer’s
overcrowding claim) or an Eighth Amendment violation in their own right—at
least not when the duration is only five days. See, e.g., Hamilton v. Lyons, 74 F.3d
99, 106–07 (5th Cir. 1996) (no constitutional violation where inmate was denied
sheets and showers (among other things) for a three-day period); Hamm, 774 F.2d
at 1575 (no constitutional violation where inmate had to temporarily sleep on a
mattress on a floor or on a table). In other words, we agree with the district court
that Fischer failed to provide evidence of conditions that were sufficiently
“extreme” as to “pose[] an unreasonable risk of serious damage to his future health
or safety.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). Summary
judgment on Fischer’s conditions-of-confinement claim was therefore appropriate.
D.
Next, we consider Fischer’s claim of “racial discrimination” stemming from
the racial segregation of inmates during the lockdown. The district court construed
this claim as an equal protection claim under the Fourteenth Amendment, applied
strict scrutiny, and found that the segregation was narrowly tailored to serve the
compelling interest of jail safety and security. In his brief, Fischer argues that the
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threat of violence justifying the lockdown was not racial in nature, and that as a
result the racial segregation did not actually separate the alleged aggressor inmates
from those who complained of the threats.
We view Fischer’s “racial discrimination” claim as an equal protection claim
under the Fourteenth Amendment, and thus apply strict scrutiny. See Johnson v.
California, 543 U.S. 499, 506, 125 S. Ct. 1141, 1147 (2005) (holding that strict
scrutiny is the appropriate standard of review for racial classifications even in the
prison context). “Under strict scrutiny, the government has the burden of proving
that racial classifications are narrowly tailored measures that further compelling
governmental interests.” Id. at 505, 125 S. Ct. at 1146 (quotation marks omitted).
Here, the defendants met their burden of showing that the racial segregation
served a “compelling governmental interest” by presenting the affidavit of
Sergeant Reis, in which he explained that he ordered the racial separation after
receiving an inmate’s complaint that the white inmates in Fischer’s cell block
feared violence from the black inmates in that block. Fischer has maintained
throughout this litigation that no threat of racial violence ever existed. But even if
Fischer is correct about that, he has not refuted Sergeant Reis’ explanation of what
motivated the decision to segregate. The reason was prison safety (even if
Sergeant Reis was mistaken about the true nature of the threat), and prison safety is
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clearly a “compelling interest” under Supreme Court precedent. See id. at 514, 125
S. Ct. at 1151.
Likewise, the defendants met their burden of showing that the racial
segregation was narrowly tailored to neutralize the threat of racial violence.
Although the defendants presented a log entry and the affidavits of two officers
showing that the segregation lasted from April 23 to April 27, the sworn statement
in Fischer’s complaint that it lasted two weeks creates a genuine issue of fact as to
the segregation’s duration. The problem for Fischer is that this factual issue,
though genuine, is not material. Indeed, the defendants also submitted the affidavit
of Captain Ellegood, in which he explained that one of the Jail’s classification
supervisors conducted a thorough investigation during the lockdown, and that the
segregation ceased “immediately” after she determined that the racial threat no
longer existed. Fischer, on the other hand, has pointed to no evidence suggesting
that the segregation continued after Jail officials thought the threat of racial
violence had passed. He thus has not identified a genuine issue on the material
question of whether the segregation was narrowly tailored to secure the safety of
inmates and employees at the Jail.
E.
Finally, we examine Fischer’s contention that the district court violated his
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Sixth Amendment rights by failing to grant his request for appointed counsel. This
contention has no merit. Notwithstanding Fischer’s suggestion to the contrary, a
plaintiff has no constitutional right to appointed counsel in a civil case. Bass, 170
F.3d at 1320. Rather, a district court has broad discretion in deciding whether to
appoint counsel, and should do so “only in exceptional circumstances.” Id.
Fischer stresses that he is inexperienced in the law, but as we have held before the
mere fact that a lawyer’s assistance would be helpful does not amount to an
“exceptional circumstance” where, as here, the core facts of the case are pretty
much undisputed and the legal claims are straightforward. See id. The district
court did not abuse its discretion in denying Fischer’s motion for appointed
counsel.
AFFIRMED.
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