Jose Elias Sepulveda v. Ralph W. Burnside , 170 F. App'x 119 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-10241 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ March 13, 2006
THOMAS K. KAHN
D. C. Docket No. 01-00011-CV-1-SPM CLERK
JOSE ELIAS SEPULVEDA,
Plaintiff-Appellant,
versus
RALPH W. BURNSIDE,
STEPHEN M. OELRICH, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 13, 2006)
Before BIRCH and WILSON, Circuit Judges, and ROYAL*, District Judge.
PER CURIAM:
*
Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
This case is before us for review of the district court's grant of summary
judgment in favor of various jail officials as to the civil rights claims of Plaintiff-
Appellant Jose Elias Sepulveda ("Sepulveda"). Sepulveda, who proceeded pro se
in the case below, was an inmate in the Alachua County Correctional Center
("ACCC") who brought claims for violations of the Eighth and First Amendments
pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971).1 We review a district court's grant of summary judgment de novo,
“viewing the record and drawing all reasonable inferences in the light most
favorable to the non-moving party.” Patton v. Triad Guar. Ins. Corp., 277 F.3d
1294, 1296 (11th Cir.2002). Upon review of the record in the case, we find that the
district court properly granted summary judgment on all of Sepulveda's claims,
with one exception. There remain genuine issues of material fact related to
Defendant-Appellee Floyd Gipson ("Gipson") and his role in an assault on
Sepuveda by a fellow inmate. Accordingly, the decision of the district court is
hereby AFFIRMED in part, and REVERSED in part, and REMANDED to the
1
Because Sepulveda does not raise any arguments as to his Section 1983 claims pursuant
to the Fifth, Sixth, and Fourteenth Amendments, or as to his claims under Section 1986, those
claims are deemed abandoned. See Chavis v. Clayton County School Dist., 300 F.3d 1288, 1291
n. 4 (11th Cir. 2002) (noting in a civil rights case that a plaintiff's retaliation claim that was not
argued on appeal was abandoned).
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district court for further proceedings on the merits with regard to the claims against
Gipson.
The central event in this case is an assault on Sepulveda by inmate Donald
Small that took place on February 2, 2000. The evidence is sufficient to justify a
jury finding that Gipson, a Detention Officer at ACCC, was aware that inmate
Small posed a threat to Sepulveda, and was deliberately indifferent to that threat
when he released Small and Sepulveda into a common area at the same time. A
reasonable jury could also draw inferences from the conduct of Gipson to support a
conclusion that Gipson brought Sepulveda and Small together with the intent that
Small would assault Sepulveda.
The undisputed facts alone raise a suspicion about Gipson's involvement in
the attack, in that the attack occurred as a result of Gipson's decision to release
Small and Sepulveda from their cells at the same time, even though both were
Special Management inmates. ACCC's policy manual defines a Special
Management Inmate as an inmate who, "due to continual unruly and/or violent and
aggressive behavior towards staff and/or other inmates, . . . presents a serious threat
to the safety and security of the facility, other inmates, themselves, or is considered
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an extremely high escape risk."2 Inmates so classified are housed in ACCC's
Special Managment Unit, where they receive a higher degree of supervision than
inmates in the general population.
In releasing Small and Sepulveda, Officer Gipson violated three specific
policies for supervision of Special Management inmates. First, he violated a policy
that allowed only one inmate from the Special Management Unit to be outside his
cell at any given time. Second, he violated a policy requiring Special Management
inmates to be placed in leg restraints before leaving their cells. Third, he violated
policy by leaving two metal chairs in the common area while Sepulveda and Small
were released. Had Officer Gipson followed established procedures, Small would
not have had the opportunity to attack Sepulveda.
The moment Officer Gipson released him into the common area, Small
assaulted Sepulveda from behind, striking him in the left ear with his fist and
causing hearing damage. Small continued to assault Sepulveda with his fist and
with a metal chair, until he was finally restrained by Officer Gipson. There is no
evidence in the record before us to indicate that any other officers were present at
the time of the assault, or that anyone witnessed the assault besides Small,
2
ACCC's Recommended Disciplinary Action Report for Officer Gipson's violation
describes Small as a "special management inmate" and Sepulveda as an "escape risk inmate."
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Sepulveda, and Gipson. The incident was investigated by the Alachua County
Sheriff's Office, and inmate Small was prosecuted for aggravated assault. Officer
Gipson was suspended for one day without pay for his violations of jail policy.
The disputed evidence, when viewed in the light most favorable to
Sepulveda's case, may support a conclusion that Officer Gipson's violations of
ACCC policy were more than a mere oversight, and that he had good reason to
expect that Small would assault Sepulveda if given the opportunity. Indeed,
Sepulveda's testimony indicates that Officer Gipson encouraged Small's hostility
towards Sepulveda. According to Sepulveda, Small was “outspoken about his
hatred of anybody who was not black.” Sepulveda has testified by affidavit that
prior to the attack Small had been known to scream racial slurs and display hostile
behavior specifically directed at Sepulveda, in the presence of Officer Gipson.
Small and Gipson are black; Sepulveda is hispanic. In his Complaint (verified
pursuant to 28 U.S.C. § 1746) Sepulveda stated that Officer Gipson and Small had
regular contact and that Gipson gave favorable treatment to Small. Sepulveda
frequently heard Gipson and Small exchange racist remarks concerning him.
Gipson referred to Sepulveda as a “snitch” or a “Puerto Rican snitch.” On one
occasion three days before the assault, Sepulveda overheard Gipson state to Small,
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“Sepulveda is the piece of shit who’s suing Greg. He didn’t learn nothing when
they shackled his ass.”
Sepulveda's testimony regarding Officer Gipson's knowledge of Small's
hostility is disputed by Defendants. Gipson testifies that prior to the February 2
assault, he had seen no indication of any animosity between the two inmates. In
the report he gave to the Alachua County Sheriff's Deputy who investigated the
assault, Gipson stated that prior to the assault Small and Sepulveda were on good
terms, talked and joked with each other, and frequently played chess or checkers
through the food slot in Small's cell.
Gipson also offers an explanation for his violation of the Special
Management policies. In his affidavit, Gipson testifies that he allowed the two
inmates out of their cells at the same time to accommodate their requests for
haircuts. He states that he had two barbers sent to the Special Management Unit to
"expedite" the haircut process.3 In his statement to the Sheriff's investigator, he
acknowledged that he "made the wrong decision," and explains that his decision
"was based on my heart rather than my head." He states that Sepulveda and Small
"had been getting along very well and no arguments or anything had taken place
3
Sepulveda denies having requested a haircut, and there is no evidence in the record to
indicate that any barbers were present in the Special Management Unit at the time Sepulveda and
Small were released from their cells.
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between them," and explains that this prior good relationship between the two
played a part in his decision to release them both.
The primary question in this case concerns Officer Gipson's knowledge of
the threat that Small posed to Sepulveda, and there is sufficient evidence of such
knowledge to establish the subjective element of an Eighth Amendment claim. To
prove a violation of the Eighth Amendment’s prohibition against cruel and unusual
punishment, a prisoner must meet two requirements. First, he must show that the
deprivation alleged was objectively serious enough to be of constitutional concern.
Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811(1994). Second, he must show that the prison official subjectively acted with a
“sufficiently culpable state of mind,” and that his actions constituted an
“unnecessary and wanton infliction of pain.” Id. In the context of the assault by
inmate Small, the objective element is not a subject of dispute in this appeal.
"Clearly, an allegation of an unjustified serious physical assault against an inmate
raises an arguable section 1983 claim." McFadden v. Lucas, 713 F.2d 143, 146
(5th Cir. 1983). The dispute in this case revolves around Gipson's state of mind
and his culpability in the assault.
The question of Gipson's state of mind might be approached from two
different perspectives: the perspective of a failure-to-protect case or the perspective
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of a use-of-force case. In cases involving an officer's failure to protect an inmate
from abuse by other inmates, a plaintiff must prove the officer's “deliberate
indifference” to inmate health or safety. Id. In cases involving the direct use of
force by an official, a plaintiff must show that the officer acted “maliciously and
sadistically for the very purpose of inflicting harm.” Whitley v. Albers, 475 U.S.
312, 320-21 (1986).
The conclusions of the finder of fact as to Gipson's intent will determine
whether the use-of-force or the failure-to-protect analysis could be used in this
case. A reasonable jury could find that Officer Gipson was aware that inmate
Small was a threat to Sepulveda, based on Sepulveda's testimony about Small's
prior displays of hostility towards him, in addition to Small's classification as a
dangerous inmate. Such a finding would support a conclusion that Gipson was
deliberately indifferent to Sepulveda's safety when he released the two inmates
together. A reasonable jury might further infer from his conduct that Officer
Gipson encouraged or deliberately orchestrated the assault, based on Sepulveda's
testimony about the close relationship between Officer Gipson and Small, and their
exchange of racist and derogatory remarks about Sepulveda. If a jury accepts as
true Sepulveda's testimony about the prior relationship between Small and Gipson,
it might also infer that Officer Gipson's release of the two inmates into the common
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area at the same time was more than a momentary lapse of judgment, but was
malicious and sadistic, for the very purpose of inflicting harm to Sepulveda.
The same evidence that supports Sepulveda's claim against Gipson under the
Eighth Amendment also supports his claim of retaliation. “The gist of a retaliation
claim is that a prisoner is penalized for exercising the right of free speech,”
particularly the right to petition the government for redress of grievances by filing
complaints or lawsuits regarding prison conditions. Thomas v. Evans, 880 F.2d
1235, 1242 (11th Cir. 1989). “A prisoner can establish retaliation by demonstrating
that the prison official's actions were ‘the result of his having filed a grievance
concerning the conditions of his imprisonment.’” Farrow v. West, 320 F.3d 1235,
1248 (11th Cir. 2003) (quoting Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th
Cir.1989)). In this case, it is undisputed that Sepulveda had filed a lawsuit in 1999
against an officer at ACCC, Greg James, for an incident involving the use of leg
shackles during a previous stay at the jail. In addition, in the weeks prior to the
February 2, 2000 assault by inmate Small, Sepulveda had filed three grievances
against officers at the jail, the last just two weeks before the assault. Should a jury
find that Officer Gipson knowingly allowed or encouraged the assault by Small,
there is evidence to support a causal connection between Gipson's actions and
Sepulveda's protected activity. The primary piece of evidence supporting such a
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causal connection is Sepulveda's testimony that three days prior to the attack he
overheard Gipson telling Small that Sepulveda was "the piece of shit who's suing
Greg," who "didn't learn nothing when they shackled his ass." These statements
might be read to indicate that Gipson intended to teach Sepulveda the lesson he
failed to learn when he was shackled, and to punish him for filing a lawsuit against
Greg James. There are genuine issues of material fact concerning whether such
statements were made and what inferences can be drawn from them. Accordingly,
with regard to Sepulveda's claims against Defendant Gipson, summary judgment is
not warranted.
Summary judgment is warranted, however, with regard to Sepulveda's claims
against all other Defendants in this case, and we affirm the district court's grant of
summary judgment in favor of those Defendants. As to Defendants Allen and
Elliot, Sepulveda alleges that they referred to him as a "snitch" in the presence of
other inmates and that Defendant Allen on one occasion jerked him by the ankle
while checking his leg shackles. These claims do not rise to the level of a
constitutional violation. See Edwards v. Gilbert, 867 F.2d 1271, 1274 n.1 (11th
Cir. 1989) (verbal taunts not sufficient to constitute deprivation); Hudson v.
McMillan, 503 U.S. 1, 9-10, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (de
minimis uses of force excluded from Eighth Amendment prohibition). Sepulveda's
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claims against Defendants Oelrich, Burnside, and Morrow are essentially
respondeat superior claims, and there is no evidence that any of them was on
notice that Sepulveda was at risk of being harmed by any inmate, or that any of
them was involved with the attack by Small. See Brown v. Hughes, 894 F.2d 1533,
1537 (11th Cir. 1989) ("Prison officials must have been deliberately indifferent to a
known danger before we can say that their failure to intervene offended 'evolving
standards of decency,' thereby rising to the level of a constitutional tort"). Finally,
as there is no evidence to support a claim that Elliott, Allen, Oelrich, Burnside, or
Morrow conspired or in any way acted with Gipson to encourage or allow the
attack by Small, Sepulveda's conspiracy claims also merit summary judgment.
For the reasons set forth above, this case is hereby remanded to the District
Court for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
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