Tim Kramer v. James E. Donald

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-13154 ELEVENTH CIRCUIT
JULY 17, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-01427-CV-CAM-1
TIM KRAMER,
Plaintiff-Appellant,
versus
JAMES E. DONALD,
et al.,
Defendants,
MILTON E. NIX, JR.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
----------------------------------------------------------------
(July 17, 2008)
Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Tim Kramer, a Georgia prisoner proceeding pro se,
appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint. The
complaint was dismissed, in part, for failure to state a claim upon which relief can
be granted, 28 U.S.C. § 1915A(b)(1), and in part, upon a grant of summary
judgment in favor of one defendant. No reversible error has been shown; we
affirm.
In his section 1983 complaint, Kramer alleged that Michelle Martin, warden
at a prison where he was housed, failed to supervise the deputy warden who put
Kramer in administrative segregation without providing him a reason why, and
failed to ensure that the prison grievance procedure was properly followed. He
also alleged that Don Jarriel, warden at another prison where Kramer had been
housed, used Kramer’s prior vacated death sentence to transfer him to a higher
security prison in violation of due process and equal protection. In addition, he
alleged due process and equal protection violations against Milton E. Nix., Jr.,
chairman of the Georgia Board of Pardons and Paroles (“Board”), for considering
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his vacated death sentence for parole consideration. The district court dismissed
these claims for failure to state a claim.1
On appeal, Kramer repeats the allegations he made in district court against
Martin, Jarriel, and Nix. We review de novo a district court’s sua sponte dismissal
for failure to state a claim under section 1915A(b)(1). Leal v. Ga. Dep’t of Corr.,
254 F.3d 1276, 1279 (11th Cir. 2001).
The district court committed no error in dismissing these claims. Kramer
sought to hold Martin liable in her supervisory capacity; but section 1983 does not
allow a supervisor to be held liable for the unconstitutional acts of their
subordinates. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Kramer
did not allege that Martin personally participated in his placement in
administrative segregation or in the handling of his grievances; nor did he
establish a causal connection between Martin and the alleged unconstitutional
acts. See id.About Jarriel, Kramer did not state a due process claim because he has no
constitutionally protected liberty interest in being classified at a certain security
1
The district court also dismissed Kramer’s claims against defendant James Donald,
Commissioner of the Georgia Department of Corrections, and Kramer’s Double Jeopardy claim
against Nix, pursuant to section 1915A. But, on appeal, Kramer does not challenge the dismissal
of Donald or the Double Jeopardy determination; and thus, he has abandoned these claims. See
Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001) (explaining that issues not briefed
on appeal are abandoned).
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level or housed in a certain prison. See Meachum v. Fano, 96 S.Ct. 2532, 2538
(1976) (no due process protections were required upon the discretionary transfer
of state prisoners to a substantially less agreeable prison); Moody v. Daggett,
97 S.Ct. 274, 279 n.9 (1976) (prison officials have full discretion to control
conditions of confinement, including prisoner classification) (citing 18 U.S.C.
§ 4081). Kramer’s due process claim against Nix is foreclosed by our decision in
Sultenfuss v. Snow, 35 F.3d 1494, 1499-1503 (11th Cir. 1994), that a Georgia
inmate has no liberty interest in parole. See also Slocum v. Ga. State Bd. of
Pardons & Paroles, 678 F.2d 940, 941-42 (11th Cir. 1982) (procedural due process
protections do not apply to the parole consideration process). Kramer also did not
state an equal protection claim against Jarriel or Nix because he did not show that
the alleged discriminatory treatment he received was based on a constitutionally
protected interest, such as race. See Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir.
2001).
The district court allowed two of Kramer’s claims against Nix to proceed:
(1) the precondition for parole consideration that he complete a sex offender
counseling program impermissibly classified him as a sex offender, even though
he was not convicted of a sex crime, in violation of due process, and (2)
participation in the program amounted to admitting that he was a sex offender, in
4
violation of his Fifth Amendment privilege against self-incrimination. Then, the
district court granted summary judgment in favor of Nix on these claims. Kramer
repeats these claims on appeal.2 We review a district court’s grant of summary
judgment de novo; we view the evidence and all reasonable factual inferences in
the light most favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d
1364, 1367 (11th Cir. 1999).
We have said that a prisoner who has not been convicted of a sex offense is
entitled to due process before the state declares him to be a sex offender; “the
stigmatizing effect of being classified as a sex offender constitutes a deprivation of
liberty under the Due Process Clause.” Kirby v. Siegelman, 195 F.3d 1285, 1292
(11th Cir. 1999). The Kirby inmate -- who, like Kramer, had been convicted of no
sex crime -- was classified as a sex offender under Alabama Department of
Corrections regulations. But unlike the Kirby inmate, Kramer has been subjected
to no such classification.3 The Board has determined only that the non-sexual
2
In addition, Kramer argues that Nix relied on a “confession” of a codefendant in placing the
precondition on him in violation of the Confrontation Clause. But we need not consider this
argument because Kramer did not raise it in his section 1983 complaint. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
3
Classification or designation as a sex offender under Georgia law is controlled by Georgia’s Sex
Offender Registration law, O.C.G.A § 42-1-12. Citing that statute, the Board averred that no
classification or designation of an offender as sex offender is made until the offender is placed on
parole, and, consequently, the Board has had no cause to date to consider whether Kramer is a sex
offender.
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offense for which Kramer has been imprisoned also had a sexual component that
warrants counseling; neither the Board nor the Georgia Department of Corrections
has classified or otherwise labeled Kramer as a sex offender.4
Kramer seeks to characterize the Board’s counseling precondition as a
“classification”; we do not accept that the Board’s judgment that Kramer -- and
society -- would be best served if Kramer completed a counseling program is
equivalent to the formal classification at issue in Kirby. We agree with the district
court that the Board’s counseling precondition is insufficiently stigmatizing to
constitute a deprivation of a constitutionally protected liberty interest and to
support a due process entitlement. The district court properly granted summary
judgment to Nix on this claim.
About his self-incrimination claim, the district court also correctly granted
summary judgment in Nix’s favor. The evidence shows that the precondition that
Kramer participate in sex-offender counseling did not limit his parole
consideration or eligibility; but instead, the participation was something the Board
would take into consideration the next time it considered him for parole. In
addition, Kramer does not have a protected interest in parole consideration or
4
According to the Board, its records indicated that one of the victims of Kramer’s aggravated
assault had been told to take off her underwear; and Kramer “felt between her legs.”
6
release due to the substantial discretion of the parole board. See Sultenfuss, 35
F.3d at 1501-02; Slocum, 678 F.2d at 941-42. Because the precondition did not
deprive him of parole consideration and because participation in the program
would not guarantee a grant of parole in any event, the consequences that would
result from asserting the Fifth Amendment privilege are not serious enough to
constitute compulsion under the Fifth Amendment. See McKune v. Lile, 122 S.Ct.
2017, 2033-34 (2002) (consequences for prisoner’s refusal to make admissions
required for participation in sexual abuse treatment program were not so severe
that it amounted to compelled self-incrimination because it did not extend
prisoner’s term or affect his eligibility for parole).
AFFIRMED.
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