Lennie Fulwood v. Federal Bureau of Prisons

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13366
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-00156-RS-CAS
LENNIE FULWOOD,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF PRISONS, et al.,
Defendants,
CHARLES E. SAMUELS, JR.,
Regional Director,
WARDEN,
ASSISTANT WARDEN,
WAGNER,
Lt.,
ARNOLD,
Counselor, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 9, 2014)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:
Lennie Fulwood, a federal prisoner proceeding pro se, appeals the district court’s
dismissal of his amended complaint against various prison officials, alleging violations
under the First Amendment and the Eighth Amendment. Fulwood’s complaint was
brought under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971). On appeal, Fulwood argues that: (1) his fourth amended complaint
set forth sufficient facts against all defendants to support a claim of a conspiracy to
retaliate against him for filing grievances, and against some defendants to support a
“cruel and unusual punishment” claim; and (2) venue should have been changed because
the magistrate judge and the district court revealed a clear bias in favor of protecting the
interests of government employees. After careful review, we affirm. 1
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As an initial matter, we are required to review our jurisdiction sua sponte. Frulla v. CRA
Holdings, Inc., 543 F.3d 1247, 1250 (11th Cir. 2008). We review de novo whether we have jurisdiction
to hear an appeal. Van Poyck v. Singletary, 11 F.3d 146, 148 (11th Cir. 1994).
Appellate jurisdiction generally is limited to final decisions of the district courts. 28 U.S.C. §
1291. An order that adjudicates fewer than all claims against all parties typically is not final and
appealable absent certification by the district court under Rule 54(b). Supreme Fuels Trading FZE v.
Sargeant, 689 F.3d 1244, 1246 (11th Cir. 2012); Fed.R.Civ.P. 54(b). Nevertheless, where an order
dismisses a complaint with leave to amend within a specified period, the order becomes final, and
therefore appealable, when the time period allowed for amendment expires. Briehler v. City of Miami,
926 F.2d 1001, 1002 (11th Cir. 1991). If a plaintiff chooses to file an appeal rather than amend the
complaint, the plaintiff does not need to wait until the expiration of the period allowed for amendment.
Id. at 1003. In so doing, however, the plaintiff waives the right to later amend. Id. A plaintiff who does
not amend his complaint after being so directed by the court is in the same position as one who declines to
exercise his permissive right to amend. Van Poyck, 11 F.3d at 148-49. In either situation, if the plaintiff
does not file an amendment, the district court has nothing left to do and the court’s order of dismissal
becomes final. Id. Finally, a premature notice of appeal is valid if filed from an order dismissing a claim
or party and followed by a subsequent final judgment without a new notice of appeal being filed.
Robinson v. Tanner, 798 F.2d 1378, 1385 (11th Cir. 1986).
Here, Fulwood’s First Amendment claims against two defendants were pending when he filed his
notice of appeal, which generally would preclude finality. See Supreme Fuels, 689 F.3d at 1246.
However, Fulwood did not file an amendment and instead filed a notice of appeal, so there was nothing
left for the district court to do. Van Poyck, 11 F.3d at 149. Moreover, Fulwood’s premature notice of
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We review de novo a dismissal for failure to state a claim under 28 U.S.C. §
1915A, viewing the allegations in the complaint as true. Boxer X v. Harris, 437 F.3d
1107, 1110 (11th Cir. 2006). We will disturb a district court’s refusal to change venue
only for clear abuse of discretion. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255
(11th Cir. 1996).
First, we reject Fulwood’s argument that his complaint properly stated claims for
relief. In Bivens, the Supreme Court recognized an implied cause of action for damages
against federal officials based on the violation of a federal constitutional right. Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). A prisoner’s complaints seeking the
redress of grievances is speech constitutionally protected by the First Amendment. Smith
v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). To prove a First Amendment
retaliation claim, an inmate must show that (1) his speech was constitutionally protected,
(2) he suffered an adverse action that would likely deter a person of ordinary firmness
from engaging in such speech, and (3) a causal relationship between the retaliatory action
and the protected speech existed. Id. However, an inmate has no liberty interest in a
particular classification, prison assignment, or transfer, even if he experiences more
burdensome conditions than before. McKune v. Lile, 536 U.S. 24, 39 (2002) (rejecting
inmate challenge to expected demotion in custodial status classification).
Supervisory officials are not liable through respondeat superior or vicarious
liability for the unconstitutional acts of subordinates. Gonzalez v. Reno, 325 F.3d 1228,
appeal was cured by the court’s later order dismissing all the claims in the fourth amended complaint,
which allows him to obtain review of the ruling on his fourth amended complaint. Robinson, 798 F.2d at
1385. Accordingly, we have jurisdiction.
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1234 (11th Cir. 2003). Rather, a supervisor may be liable under Bivens if “a reasonable
person in the supervisor’s position would have known that his conduct infringed the
constitutional rights of the plaintiff . . . and his conduct was causally related to the
constitutional violation committed by his subordinate.” Greason v. Kemp, 891 F.2d 829,
836 (11th Cir.1990). A causal connection may arise when a “history of widespread
abuse” puts a responsible supervisor on notice of the need to correct an alleged
deprivation, but he fails to; when a supervisor’s improper custom or policy results in
deliberate indifference to constitutional rights; or when facts suggest that a supervisor
orders his subordinates to act unlawfully or knows they will act unlawfully and fails to
stop them. Gonzalez, 325 F.3d at 1234-35.
A district court must dismiss any civil complaint in which a prisoner seeks redress
from a governmental entity, officer, or employee if the complaint fails to state a claim
upon which relief may be granted. 28 U.S.C. § 1915A(a), (b)(1). In civil rights and
conspiracy actions, conclusory, vague and general allegations may justify the complaint’s
dismissal. Kearson v. Southern Bell Tel. & Tel. Co., 763 F.2d 405, 407 (11th Cir. 1985).
It is not enough to simply aver that a conspiracy existed. Fullman v. Graddick, 739 F.2d
553, 557 (11th Cir. 1984). A plaintiff must instead show that the parties reached an
understanding to deny the plaintiff his rights. Bendiburg v. Dempsey, 909 F.2d 463, 468
(11th Cir. 1990). The linchpin for conspiracy is agreement, which presupposes
communication. Bailey v. Bd. of Cnty. Comm’rs of Alachua Cnty., 956 F.2d 1112, 1122
(11th Cir. 1992).
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Here, Fulwood did not allege facts showing a pattern of widespread abuse that
placed the supervisory officials on notice of any constitutional deprivations; that their
customs or policies resulted in deliberate indifference to constitutional rights; or that they
ordered their subordinates to act unlawfully or knew they would act unlawfully and failed
to stop them. As a result, the supervisory defendants are not liable for any alleged
unconstitutional acts of subordinates, and the district court properly dismissed the
supervisory-liability claims against Regional Director Charles E. Samuels, Jr., Acting
Director Thomas Kane, former Warden W.T. Taylor, Assistant Warden Pedronia, and
Unit Manager Henson.
Fulwood’s retaliation claims were also properly dismissed. As for Assistant
Warden Pedronia, Fulwood did not allege facts to support his assertion of a causal
relationship between Pedronia’s actions and interference with Fulwood’s filing of
grievances. As for Unit Manager Henson, Fulwood argues on appeal that Henson denied
him grievance forms, but he did not allege this in his fourth amended complaint. See
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (noting that
this Court will not consider an issue not raised in the district court and raised for the first
time in an appeal). Further, despite what he argues to us now, he alleged in his complaint
that “staff” denied him access to the law library, not that Henson in particular did. Nor
did he allege facts to support his assertion of a causal relationship between Henson’s
actions and interference with Fulwood’s filing of grievances. As for Lieutenant Wagner,
Fulwood did not allege in his complaint that Wagner was responsible for placing him in
the special housing unit (“SHU”), or that he was responsible for the conditions of the
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SHU. Further, Wagner’s moving Fulwood to a particular cell or packing Fulwood’s
things did not amount to constitutional violations because an inmate has no liberty
interest in a particular classification, prison assignment, or transfer even if the inmate
experiences more burdensome conditions than before. Fulwood’s complaint also alleged
no facts showing that his filing of grievances caused Wagner to file incident reports
against him.
Moreover, Fulwood presented no facts to support that the remaining defendants --
the un-named dentist and Nurse Perkins -- were part of a retaliation conspiracy against
him. As for a potential Eighth Amendment claim against them due to their deliberate
indifference to Fulwood’s medical needs, the district court instructed Fulwood to bring a
separate cause of action because this was a separate and distinct claim that did not
involve the First Amendment claims against Counselor Arnold or Case Manager Pritt.
The court noted that, while a plaintiff may join as many related claims as he has against
one defendant, he may not join in the same action every claim against every prison
official. Parties may be dropped by order of the court of its own initiative at any stage of
the action. Fed.R.Civ.P. 21. The district court, therefore, properly dismissed the claims
against the dentist and Nurse Perkins.
Other than the actions of Counselor Arnold and Case Manager Pritt -- which the
district court gave Fulwood an opportunity to address in a fifth amended complaint that
Fulwood chose not to pursue -- Fulwood has not alleged specific facts showing that any
other defendant obstructed his grievance process. Fulwood’s conclusory, vague and
general statements that various defendants participated in creating a hostile environment,
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obstructed the grievance process, helped to label him a “trouble maker,” or attempted to
provoke him, without specific facts to support those statements, are not sufficient to
support a Bivens conspiracy, because he did not allege facts showing that the defendants
reached an understanding to deny him his rights. Bendiburg, 909 F.2d at 468. He failed
to provide any support for the allegations set forth in his complaint in regards to a
conspiracy among any defendants. As a final note, Fulwood did not raise any arguments
as to Counselor Arnold or Case Manager Pritt and therefore has abandoned any claims
against them. See Access Now, 385 F.3d at 1331.
Finally, we are unpersuaded by Fulwood’s claim that venue should have been
changed. Fulwood’s complaints about the district court all arise from adverse rulings or
findings and the way the court labeled correspondence addressed to him. None of the
court’s rulings or findings, nor its failure to label correspondence to Fulwood as legal
correspondence, rose to the level of showing pervasive bias or prejudice against him.
Accordingly, the court’s conclusion that he failed to allege sufficient facts to support a
claim of bias that would warrant a transfer of the case to another district or circuit was
not a clear abuse of discretion.
AFFIRMED.
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