Ray L. Johnston v. James Crosby

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-15401 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar June 16, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00102-CV-J-12-HTS
RAY L. JOHNSTON,
Plaintiff-Appellant,
versus
JAMES CROSBY, Present Secretary,
Department of Corrections,
MICHAEL W. MOORE, individually
and as former secretary, Florida
Department of Corrections, et al.
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 16, 2005)
Before TJOFLAT, DUBINA, and MARCUS, Circuit Judges.
PER CURIAM:
Ray L. Johnston, proceeding pro se, appeals the district court’s entry of
summary judgment, in favor of Michael W. Moore and Bradley D. Carter, in
Johnston’s 42 U.S.C. § 1983 action alleging violations of his rights under the Eighth
and Fourteenth Amendments to the United States Constitution claims. In his
complaint, Johnston, a Death Row inmate in Florida, alleged that, on July 2, 2002, in
the exercise yard of Florida State Prison, another Death Row inmate, Rigoberto
Sanchez-Velasco, stabbed him three times in the stomach region and one time in his
left arm with a homemade shank. Johnston contended that this incident resulted from
Moore’s and Carter’s deliberate indifference to the substantial risk of serious harm
to him, which indifference deprived him of his rights under the Eighth and Fourteenth
Amendments to the United States Constitution.1
After thorough review of the pertinent parts of the record and careful
consideration of the parties’ briefs, we affirm.
The district court granted summary judgment to Moore and Carter after finding
the following, inter alia: (1) Johnston failed to establish that the defendants were
subjectively aware of the risk of harm, and (2) Moore and Carter were, therefore, not
1
Johnston fails to argue on appeal that the district court erred in dismissing James V.
Crosby, Jr. from this action. Therefore, we deem any argument as to the claims against him to be
abandoned. Cf. Lambrix v. Singletary, 72 F.3d 1500, 1506 n.11 (11th Cir. 1996).
2
deliberately indifferent to the risk of harm, as required to establish a violation of the
Eighth Amendment to the United States Constitution. On appeal, Johnston argues
that Moore and Carter had actual knowledge of the risk Sanchez-Velasco posed to all
inmates because, while a ward of the Florida Department of Corrections, Sanchez-
Velasco had killed two other inmates and because he previously told a United States
District Court judge that he hated people, wanted to kill people, and intended to kill
people in the future.2 Johnston averred, without citation to case law, that, to establish
Moore and Carter were subjectively aware of the risk of harm, Johnston needs to
establish only that they were aware that an actual risk of harm existed, not that they
were aware of the identity of the particular person to be assaulted.3
2
For this proposition, Johnston cites to our opinion in Sanchez-Velasco v. Sec. of the
Dept. Of Corrections, 287 F.3d 1015 (11th Cir. 2002), a habeas decision, in which we observed:
Rigoberto Sanchez-Velasco is a Florida death row inmate. He is under sentence of
death for the brutal rape and murder of an eleven year old girl who had been left in
his care by her mother. While on death row for that crime, he has murdered two
inmates. As he explained to the district court in this proceeding: “I hate people, I
don’t like them, I want to kill people. You understand?” When asked by an
interviewer how he made the shank he used to kill his two fellow inmates he declined
to tell, explaining that he plans to make more shanks to use against other inmates in
the future. Professing that he will kill or attempt to kill again in the future,
Sanchez-Velasco insists that he wants his death sentence to be carried out.
Sanchez-Velasco, 287 F.3d at 1017.
3
Based on our resolution of this argument, we do not reach Johnston’s additional
argument that the district court erred in finding that Moore and Carter were entitled to qualified
immunity.
3
We review a district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the party opposing the motion. Perrino v.
Southern Bell Tel. & Tel. Co., 209 F.3d 1309, 1314-15 (11th Cir. 2000). Under Rule
56, summary judgment must be granted “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issues as to any material fact and . . . the moving party is entitled
to a judgment as a matter of law.” Fed.R.Civ.P.56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986).
In Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 1974, 128 L. Ed. 2d
811 (1994), the Supreme Court held that “[a] prison official’s ‘deliberate indifference’
to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”4
A claim based on deliberate indifference contains three requirements: “(1) subjective
knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is
more than mere negligence.” McElligot v. Foley, 182 F.3d 1248, 1255 (11th Cir.
1999). To survive a motion for summary judgment, a plaintiff must submit evidence
that the defendant-official had subjective knowledge of the risk of serious harm. Id.In determining subjective knowledge, a court is to inquire whether the defendant-
4
“The Eight Amendment’s ban on cruel and unusual punishment is made applicable to
the states by virtue of the Fourteenth Amendment.” Carter v. Galloway, 352 F.3d 1346, 1347 n.1
(11th Cir. 2003) (citation omitted).
4
official was aware of a “particular threat or fear felt by [the] [p]laintiff.” Carter v.
Galloway, 352 F.3d 1346, 1350 (11th Cir. 2003) (emphasis added). Moreover, the
defendant-official “must be aware of specific facts from which an inference could be
drawn that a substantial risk of serious harm exists -- and the prison official must also
draw that inference.” Id. at 1349 (quotations omitted).
Here, it is undisputed that Sanchez-Velasco attacked Johnston. Johnston,
however, has provided no evidence that either Moore or Carter had subjective
knowledge of the risk of serious harm presented by Sanchez-Velasco against
Johnston. Cf. McElligot, 182 F.3d at 1255. Johnston has claimed only that Moore
and Carter should have known that Sanchez-Velasco posed a threat to others because
he had previously killed two other inmates in 1995 and because of his comments that
he wanted to kill people and would kill or attempt to kill again. Simply put, Johnston
has provided no evidence that either Moore or Carter were aware of these specific
facts. See Carter, 352 F.3d at 1349. Rather, the affidavits of Moore and Carter,
which were unopposed by Johnston, state that (1) the assault on Johnston occurred
seven years after the 1995 assault; (2) they had no recollection of the
Sanchez-Velasco court proceedings or the Eleventh Circuit’s opinion; and (3) they
were not aware of any threats made by Sanchez-Velasco.
5
In addition, Johnston has introduced no evidence indicating that he notified
either Moore or Bradley of any particularized threat by Sanchez-Velasco nor of any
fear felt by Johnston. Cf. Carter, 352 F.3d at 1350. Because Johnston has provided
no evidence that either Moore or Carter had subjective knowledge of the risk of
serious harm presented by Sanchez-Velasco against Johnston, he has failed to show
Moore or Carter’s deliberate indifference to a substantial risk of serious harm and,
thus, a violation of the Eighth Amendment. See McElligot, 182 F.3d at 1255.
Accordingly, we affirm the district court’s entry of summary judgment on Johnston’s
§ 1983 claim.
AFFIRMED.
6