USCA11 Case: 21-14285 Date Filed: 10/27/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14285
Non-Argument Calendar
____________________
JOEL BARCELONA,
Plaintiff-Appellant,
versus
H. BURKES,
Ofc,
W. SCHWARZ,
Maj,
A. KEATON,
Defendants-Appellees.
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2 Opinion of the Court 21-14285
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:20-cv-05356-MCR-EMT
____________________
Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
Joel Barcelona, a Florida prisoner proceeding pro se and in
forma pauperis, appeals from the district court’s dismissal of his
third amended complaint for failure to state a claim. In this
42 U.S.C. § 1983 action, Barcelona claims three prison officials
were deliberately indifferent to his serious medical needs in viola-
tion of the Eighth Amendment. Specifically, he alleges that Officer
H. Burkes broke his hearing aid during a cell search and prison of-
ficials W. Schwarz and A. Keaton refused to replace it. The district
court dismissed the action under
28 U.S.C. § 1915(e)(2)(B) and Sec-
tion 1915A(b). The district court determined that Officer Burkes
was entitled to qualified immunity because Barcelona did not have
a clearly established right to a hearing aid to correct his asymmetric
hearing loss under Gilmore v. Hodges,
738 F.3d 266 (11th Cir.
2013). It also concluded that Barcelona did not state a claim for re-
lief against W. Schwarz or A. Keaton by alleging they merely de-
nied his grievances. We agree, and therefore, we affirm the district
court.
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21-14285 Opinion of the Court 3
I.
This appeal concerns a
42 U.S.C. § 1983 action brought by
Joel Barcelona, a pro se Florida prisoner, against three prison offi-
cials for violating his Eighth Amendment rights.
In 2014, Barcelona met with an audiologist, who determined
Barcelona had asymmetric hearing loss—“a profound hearing loss
in the right ear and only mild hearing loss in the left ear”—and sug-
gested a hearing aid in his left ear. Barcelona did not qualify for a
hearing aid at that time because he did not have bilateral hearing
loss, per the Health Services Guidelines. Barcelona previously sued
several prison officials for deliberate indifference for failing to give
him a hearing aid, the district court dismissed the suit, and we af-
firmed in 2021 based on qualified immunity. Barcelona v. Sec’y,
Fla. Dep’t of Corr. (“Barcelona I”), 847 F. App’x 689 (11th Cir.
2021).
In 2018, the Health Services Guidelines changed, allowing
Barcelona to qualify for a hearing aid. He wore his hearing aid until
January 2020, when Barcelona alleges Officer Burkes broke it by
throwing it on the ground during a cell search. Barcelona filed a
formal grievance to the warden and requested a replacement hear-
ing aid. Major Schwarz denied the grievance because he stated Of-
ficer Burkes denied breaking the hearing aid. Barcelona appealed
the decision, and A. Keaton, the Representative for the Secretary
of the Florida Department of Corrections, denied the appeal due to
a procedural defect. Barcelona sued the three prison employees,
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4 Opinion of the Court 21-14285
alleging they violated his Eighth Amendment rights by acting with
deliberate indifference to his serious medical need, i.e., his need for
a hearing aid to correct his partial hearing loss.
A magistrate judge reviewed Barcelona’s complaint and is-
sued a recommendation and report suggesting dismissal under
28 U.S.C. § 1915A(b) and Section 1915(e)(2)(B). The magistrate
judge determined that Officer Burkes was entitled to qualified im-
munity because no prior precedent clearly established a constitu-
tional violation for deliberate indifference to a serious medical need
where a prisoner has only partial hearing loss. The magistrate
judge relied on our decision in Barcelona I from January 2021 for
support that Officer Burkes was not on notice that asymmetric
hearing loss was a serious medical need sufficient to give rise to a
claim for deliberate indifference when he broke Barcelona’s hear-
ing aid in January 2020. As to Schwarz and Keaton, the magistrate
judge found that Barcelona failed to state a claim for deliberate in-
difference where Schwarz and Keaton merely dismissed his griev-
ances.
Barcelona objected to the magistrate judge’s report, arguing
(1) that he sufficiently stated a claim against all three defendants
and (2) that Officer Burkes was not entitled to qualified immunity
because our decision in Gilmore v. Hodges clearly established the
violation of deliberate indifference in failing to provide a hearing
aid to correct “serious and substantial hearing loss.” 738 F.3d at 276.
The district court adopted the magistrate’s report, and sua
sponte dismissed the case. This appeal followed.
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21-14285 Opinion of the Court 5
II.
We review de novo dismissals for failure to state a claim un-
der Sections 1915(e)(2)(B) and 1915A(b), applying the same stand-
ards that govern Federal Rule of Civil Procedure 12(b)(6) dismis-
sals. Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008). We
review de novo a district court’s dismissal based on qualified im-
munity. St. George v. Pinellas Cnty.,
285 F.3d 1334, 1337 (11th Cir.
2002). We accept the allegations in the complaint and view the facts
in the light most favorable to the plaintiff.
Id. Although pro
se pleadings are liberally construed, they still must suggest some
factual support for a claim. Jones v. Fla. Parole Comm’n,
787 F.3d
1105, 1107 (11th Cir. 2015).
III.
Barcelona erroneously argues that the district court made
two errors. First, he contends Burkes is not entitled to qualified im-
munity because our precedent in Gilmore clearly establishes a con-
stitutional violation for deliberate indifference to hearing loss. Sec-
ond, he contends the district court erred in dismissing his claims
because he sufficiently pled a violation of his Eighth Amendment
rights for deliberate indifference, as to Burkes when he broke Bar-
celona’s hearing aid and as to Schwarz and Keaton when they failed
to replace his hearing aid. We address each argument in turn.
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6 Opinion of the Court 21-14285
A.
First, Barcelona argues the district court erred in granting
Officer Burkes qualified immunity. We disagree.
A court must dismiss a complaint filed by a prisoner pro-
ceeding in forma pauperis if it seeks monetary relief “against a de-
fendant who is immune from such relief.”
28 U.S.C. §§
1915(e)(2)(B)(iii), 1915A(b)(2). “[I]mmune from such relief” in-
cludes an entitlement to qualified immunity. See Redmond v. Ful-
wood,
859 F.3d 11, 13 (D.C. Cir. 2017); Newland v. Reehorst, 328
F. App’x 788, 791 (3d Cir. 2009) (per curiam); Martin v. Duffy,
858
F.3d 239, 250−51, n.3 (4th Cir. 2017); Chavez v. Robinson,
817 F.3d
1162, 1167–69 (9th Cir. 2016). Here, Barcelona had the opportunity
to object to the magistrate judge’s report recommending dismissal
based on qualified immunity, and he did. Although pre-service dis-
missal based on qualified immunity is appropriate only where qual-
ified immunity is apparent on the face of a complaint, this is one
such case.
Qualified immunity protects government officials perform-
ing discretionary duties from suit “unless they violate a statutory
or constitutional right that was clearly established at the time the
alleged violation took place.” Gilmore, 738 F.3d at 272 (internal ci-
tation omitted). Officer Burkes acted within the scope of his discre-
tionary authority when searching an inmate’s cell. See Fla. Admin.
Code R. 33-602.203(9)(a) (“All cells . . . may be searched in a rea-
sonable manner at any time.”). Therefore, Officer Burkes is entitled
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21-14285 Opinion of the Court 7
to qualified immunity unless: (1) he clearly violated the plaintiff’s
constitutional rights, and (2) the violated constitutional right was
clearly established. Waldron v. Spicher,
954 F.3d 1297, 1304 (11th
Cir. 2020). We “may undertake these two inquiries in either or-
der.” Maddox v. Stephens,
727 F.3d 1109, 1120 (11th Cir. 2013) (cit-
ing Pearson v. Callahan,
555 U.S. 223, 236 (2009)).
To determine whether the right was clearly established, we
ask whether it would be clear to a reasonable officer that his con-
duct was unlawful. Roberts v. Spielman,
643 F.3d 899, 904–05 (11th
Cir. 2011) (internal quotation omitted). We look to binding prece-
dent from the United States Supreme Court, the Eleventh Circuit,
and the highest court of the state where the claim arose. Coffin v.
Brandau,
642 F.3d 999, 1013 (11th Cir. 2011). Although we do not
require a case on point, “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd,
563 U.S. 731, 741 (2011).
Here, the constitutional violation Barcelona alleges is delib-
erate indifference to his serious medical need. The Eighth Amend-
ment prohibition against “cruel and unusual punishment” includes
protection against deliberate indifference to the serious medical
needs of prisoners. Estelle v. Gamble,
429 U.S. 97, 104 (1976). To
state a claim for 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.” Gilmore, 738 F.3d at 273–74 (cleaned up).
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8 Opinion of the Court 21-14285
Barcelona contends that our decision in Gilmore clearly es-
tablished the constitutional violation for deliberate indifference to
a prisoner’s hearing loss requiring a hearing aid. We held in Gil-
more v. Hodges that “significant and substantial hearing loss that
can be remedied by a hearing aid is a serious medical need,” where
an officer’s refusal to treat such hearing loss can give rise to a claim
for deliberate indifference under the Eighth Amendment. Id. at
278. However, in Barcelona I, we determined that it was not clearly
established that partial or asymmetric hearing loss was a serious
medical need sufficient for a claim for deliberate indifference. Bar-
celona I, 847 F. App’x at 693. In addressing Gilmore, we said, “Gil-
more did not give the defendants fair warning that their alleged
conduct was unconstitutional because asymmetrical hearing loss is
a substantively different impairment from bilateral hearing loss.”
Id.; see also Gilmore, 738 F.3d at 276–77 (“[I]f a plaintiff ‘can carry
on a normal conversation’ and hear and follow directions without
the use of a hearing aid, a court would be hard pressed to classify
the plaintiff’s impairment as a serious medical need.”).
The same is true now. Our decision in Barcelona I, released
in January 2021 and directed to Barcelona’s specific type of hearing
loss, makes clear that Officer Burkes was not on notice that Barce-
lona’s asymmetric hearing loss was a serious medical need suffi-
cient to give rise to a claim for deliberate indifference in January
2020. Because Barcelona’s right to a hearing aid to correct his asym-
metric hearing loss was not clearly established at the time of the
alleged violations, Burkes is entitled to qualified immunity.
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21-14285 Opinion of the Court 9
B.
Second, Barcelona argues the district court incorrectly dis-
missed his action for failure to state a claim against the remaining
defendants. This argument also fails.
To survive dismissal, a complaint “must contain sufficient
factual matter, accepted as true, to state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678
(2009) (quotation omitted). To state a plausible claim for relief,
plaintiffs must offer “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the miscon-
duct alleged.”
Id.
Barcelona has failed to state a plausible claim for deliber-
ate indifference to a serious medical need against Schwarz or Kea-
ton. A prison official acts with deliberate indifference if he subjec-
tively knows the prisoner’s risk of serious harm and disregards the
risk with conduct amounting to “more than mere negligence.”
See McElligott v. Foley,
182 F.3d 1248, 1255 (11th Cir. 1999).
Schwarz and Keaton’s only alleged involvement is through review-
ing Barcelona’s grievances against Burkes from breaking his hear-
ing aid. Schwarz denied Barcelona’s grievance because Burkes de-
nied breaking Barcelona’s hearing aid, and Keaton denied Barce-
lona’s grievance due to procedural defects. These alleged facts,
taken as true, do not establish that either Schwarz or Keaton disre-
garded a risk of harm to Barcelona with conduct amounting to
“more than mere negligence.”
Id.
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10 Opinion of the Court 21-14285
Nor did Barcelona state a claim against Schwarz or Keaton
based on their positions. “It is well established that [Section]
1983 claims may not be brought against supervisory officials on the
basis of vicarious liability or respondeat superior.” Keating v. City
of Miami,
598 F.3d 753, 762 (11th Cir. 2010) (citation omitted). A
supervisor may be liable under Section 1983 only if he “personally
participates in the alleged constitutional violation or when there is
a causal connection between the actions of the supervising official
and the alleged constitutional violation.”
Id. Barcelona did not al-
lege any facts connecting Schwarz or Keaton to the destruction of
his hearing aid. Id.; see also Gallagher v. Shelton,
587 F.3d 1063,
1069 (10th Cir. 2009) (“[A] denial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by
plaintiff, does not establish personal participation under [Section]
1983.”).
IV.
For the reasons stated above, the district court’s judgment is
AFFIRMED.
