Randolph Carson v. Richard Mulvihill

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1470
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RANDOLPH CARSON,
Appellant
v.
MR. RICHARD MULVIHILL, Department Head, Public Safety;
MR. GARY MERLINE, Warden; MR. ERIC NILSON, Sergeant;
DOCTOR HUBBARD, Doctor at the Atlantic County Justice Facility;
CENTER FOR FAMILY GUIDANCE HEALTH SYSTEMS, LLC,
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1-07-cv-03588)
District Judge: Honorable Robert B. Kugler
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Argued January 23, 2012
Before: FISHER, GREENAWAY, JR. and ALDISERT, Circuit Judges.
(Filed: July 16, 2012 )
Paige H. Forster (Argued)
Reed Smith
225 Fifth Avenue, Suite 1200
Pittsburgh, PA 15222
Counsel for Appellant
James T. Dugan (Argued)
Atlantic County Department of Law
1333 Atlantic Avenue, 8th Floor
Atlantic City, NJ 08401
Counsel for Richard Mulvihill,
Gary Merline and Eric Nilson
Wendi D. Barish (Argued)
Joseph Goldberg
Weber, Gallagher, Simpson, Stapleton,
Fires & Newby
2000 Market Street, Suite 1300
Philadelphia, PA 19103
Counsel for Inez T. Hubbard and Center
for Family Guidance Health Systems, LLC
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Appellant and Plaintiff Randolph Carson (“Carson”) appeals from the judgment
entered against him in the United States District Court for the District of New Jersey. He
claims that the District Court abused its discretion by refusing to appoint counsel and
erred by granting summary judgment in favor of Defendants. For the reasons discussed
below, we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
2
Carson alleges that his constitutional rights were violated by Defendants1 while he
was a pre-trial detainee at the Atlantic County Justice Facility in New Jersey (“ACJF”),
housed in the Medical Unit. Carson is unable to walk and is confined to a wheelchair.
He suffers from a heart condition, asthma, and high blood pressure. During Carson‟s
detention, he was charged a $50 per month “user fee” for room and board.
Carson claims that between December 2006 and August 2007, a second person
was sometimes housed in his one-man cell, and when his cell was locked overnight, he
could not maneuver his wheelchair around the extra bed to access the toilet. After Carson
handed in his complaint to his social worker on July 23, 2007, ACJF officials agreed that
they would not place a second person in his cell absent emergency circumstances.
Carson also claims that at some point during the same time period, he was denied
asthma medication. He was experiencing breathing problems, and went to see Dr. Inez
Hubbard, who provided medical services at the ACJF. He asked her for asthma
medication, but after an evaluation, she explained that she could not give him asthma
medication because he did not have asthma. Carson told her that he had a prescription
for asthma medication, and so Dr. Hubbard gave him a release form to provide
information and authorize her to obtain the alleged prescription. Carson later stated in his
1
Defendants include individuals and an organization associated with the ACJF:
Richard Mulvihill, Department Head of Public Safety for Atlantic County; Gary Merline,
Warden of the ACJF; Eric Nilson, Sergeant in the ACJF; the Center for Family Guidance
Health Systems (“CFG”), which contracted with Atlantic County to provide medical
services at the ACJF; and Dr. Inez Hubbard, who was an employee with CFG from
December 22, 2006 until September 27, 2007.
3
deposition that he was not on asthma medication at the time that he was incarcerated, and
that he had not been taking asthma medication since 2000. Although Dr. Hubbard did
not give Carson asthma medication, he claims that after she left, the ACJF eventually
provided him with asthma medication. At some point after Carson obtained asthma
medication, a prison fight ensued, resulting in a search of all prison cells in the unit.
During the search, a sergeant found Carson‟s inhaler and confiscated it on the basis that it
was “not authorized” according to the medical staff on duty.
At another point, Carson wrote a letter requesting medical footrests, and claiming
that the lack of footrests caused him to drag his feet and placed stress on his heart.
Defendants produced affidavits showing that the Director of Nursing and the Health
Services Administrator considered Carson‟s requests, but determined that footrests would
offer no therapeutic benefit and cited concerns that the footrests could be used as
weapons. As an alternative, they gave Carson instruction on range of motion exercises.
Carson claims that other detainees were given wheelchair footrests, crutches, and canes.
Additionally, Carson alleges that on June 4, 2007, ACJF Sergeant Eric Nilson
verbally and physically assaulted him. Carson apparently expressed consternation that
Nilson was about to place another inmate in his cell with him. According to Carson,
Nilson “grabbed” his wheelchair, swung it around, and “launch[ed]” Carson “forward
from the cell door directly into the steel bed.” Carson claims that this action hurt his legs,
requiring him to apply ice packs, and caused him to experience chest pains.
4
On August 1, 2007, Carson filed a pro se complaint alleging that these various
actions by Defendants violated his constitutional rights. He repeatedly requested counsel
through an application and letters to the District Court and the Magistrate Judge. The
Magistrate Judge denied the motion for counsel. Defendants filed motions for summary
judgment, which the District Court granted on September 29, 2009. See Carson v.
Mulvihill, No. 07-3588, 2009 WL 3233482 (D.N.J. Sept. 29, 2009). On January 20,
2010, Carson filed a notice of appeal.2
II.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction under 28 U.S.C. § 1291. Although the District Court‟s order granting
summary judgment was filed almost four months before the notice of appeal, cross-
claims remained outstanding, and thus, the order was not initially an appealable final
judgment. Owens v. Aetna Life & Casualty Co., 654 F.2d 218, 220 n.2 (3d Cir. 1981).
The judgment became final and appealable when the cross-claims were dismissed on
June 30, 2011, and Carson‟s notice of appeal became effective as of that date. Fed. R.
App. P. 4(a)(2); see also Bethel v. McAllister Bros., 81 F.3d 376, 382 (3d Cir. 1996).
III.
Carson appeals from the District Court‟s decision to deny counsel and to grant
Defendants‟ motions for summary judgment. “[W]e review the district court‟s decision
to deny counsel for an abuse of discretion.” Parham v. Johnson, 126 F.3d 454, 457 (3d
2
We thank pro bono counsel for their able representation of Carson on appeal.
5
Cir. 1997). We review de novo a grant of summary judgment. Monroe v. Beard, 536
F.3d 198, 206 (3d Cir. 2008). We will affirm only if “there is no genuine [dispute] as to
any material fact and . . . the moving party is entitled to a judgment as a matter of law.”
In re Color Tile Inc., 475 F.3d 508, 512 (3d Cir. 2007) (citation omitted). We “view the
facts in the light most favorable to the nonmoving party and draw all inferences in that
party‟s favor.” Id. “Where the plaintiff is a pro se litigant, the court has an obligation to
construe the complaint liberally.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
A.
Carson argues that the District Court abused its discretion by refusing to appoint
counsel on his behalf. We disagree. Unlike criminal litigants, indigent civil litigants
have no constitutional right to counsel. Parham, 126 F.3d at 456. Rather, district courts
have “broad discretion to determine whether appointment of counsel is warranted” in
civil cases, and must make a “case-by-case” determination, taking a number of factors
into account. Tabron v. Grace, 6 F.3d 147, 156-58 (3d Cir. 1993). As a threshold matter,
a plaintiff may not secure appointment of counsel unless his claim “ha[s] some merit in
fact and law.” Parham, 126 F.3d at 457. Next, courts must consider the Tabron factors,
a non-exhaustive list of factors that is intended “to aid district courts in determining when
it is proper to appoint counsel for an indigent litigant in a civil case.” Id. (construing
Tabron). Additionally, courts
“must take note of the significant practical restraints on the district courts‟
ability to appoint counsel: the ever-growing number of prisoner civil rights
actions filed each year in the federal courts; the lack of funding to pay
6
appointed counsel; and the limited supply of competent lawyers who are
willing to undertake such representation without compensation.”
Tabron, 6 F.3d at 157.
For purposes of this analysis, we will assume that Carson‟s claims had arguable
merit and that they therefore met the threshold requirement for appointment of counsel.
Turning next to the Tabron factors, we agree with the District Court that several factors
weigh in favor of appointing counsel. For example, credibility determinations would
likely be very important, and Carson was unable to provide his own counsel. The case
was also fact-intensive, and presented some challenging discovery and investigative
issues. Despite these difficulties, we agree with the District Court that the balance of the
factors overall did not warrant the appointment of counsel. For example, Carson‟s case
was not especially complex, and he was amply able to represent himself. The case
involved several Due Process allegations, and although some cases involving a prisoner‟s
medical treatment might present complex issues, see, e.g., Montgomery v. Pinchak, 294
F.3d 492, 502 (3d Cir. 2002), this case does not. At issue are basic disputes regarding the
amount of space in Carson‟s cell, his access to wheelchair footrests and asthma
medication, and the minimal fee that he was required to pay. Furthermore, Carson was
able to present his case without the assistance of counsel. He successfully filed a
complaint, submitted a pretrial motion, served interrogatories, and requested production
of documents. He has expressed frustration with the discovery process, and his lack of
familiarity with the “legal” jargon, but was nonetheless able to present his case before the
7
District Court. Finally, expert testimony would not have helped Carson‟s case to
withstand summary judgment. Cf. Parham, 126 F.3d at 460 (district court‟s denial of
appointment of counsel is troubling where the lack of expert testimony is the basis for
dismissing the case). Defendants‟ summary judgment motions did not challenge
Carson‟s injuries or lack of expert medical proof; rather, they challenged Carson‟s failure
to prove that Defendants knew of and disregarded a risk to Carson‟s health or that
Defendants acted with an illegitimate or irrational purpose. In sum, we find no abuse of
discretion in the District Court‟s reasoning that Carson was sufficiently able to handle the
case on his own.
B.
Carson argues that the District Court erred by granting summary judgment in favor
of Defendants. We disagree. Carson raised Due Process and Equal Protection claims
before the District Court, pursuant to 42 U.S.C. § 1983. To prove a § 1983 claim, a
plaintiff must show that a person acting under color of state law deprived him of rights
secured by the Constitution or laws of the United States. Piecknick v. Pennsylvania, 36
F.3d 1250, 1255-56 (3d Cir. 1994). As discussed below, Carson failed to raise a genuine
dispute of material fact as to whether his constitutional rights were violated.
1. Due Process Claims
In the seminal case of Bell v. Wolfish, the Supreme Court established that pretrial
detainees are protected under the Fourteenth Amendment‟s Due Process Clause rather
than the Eighth Amendment. 441 U.S. 520, 535-37 (1979); Boring v. Kozakiewicz, 833
8
F.2d 468, 471 (3d Cir. 1987). The rationale is that the Eighth Amendment protects
convicted inmates from “cruel and unusual punishment,” but a pre-trial detainee “may
not be punished [at all] prior to an adjudication of guilt in accordance with due process of
law.” Bell, 441 U.S. at 535. Thus, a pre-trial detainee may be subject to “the restrictions
and conditions of the detention facility so long as those conditions and restrictions do not
amount to punishment, or otherwise violate the Constitution.” Id. at 536-37.
Carson argues that Defendants violated his Due Process rights through (a) the
conditions of his confinement, (b) inadequate medical treatment, (c) excessive force, and
(d) imposition of an unconstitutional housing fee. We will address each claim below.
a. Conditions of Confinement Claim
Carson complains that during certain overnight periods, when the ACJF was
forced to double-bunk inmates, he had to wait until morning to use the toilet because he
was unable to maneuver his wheelchair around the extra bed.3
When a pre-trial detainee claims that the conditions of his confinement violate his
due process rights, “the proper inquiry is whether those conditions [at issue] amount to
punishment of the detainee.” Bell, 441 U.S. at 535. Bell established a two-prong
standard for determining whether conditions of confinement violate Due Process:
whether the questioned “restrictions and practices” (1) “are rationally related to a
3
Defendants argue that Carson‟s claim should fail because officials eventually
agreed that Carson should have a one-man cell absent emergency circumstances. This
argument is meritless; even if past constitutional violations have ceased, an inmate can
still sue for damages, Winsett v. McGinnes, 617 F.2d 996, 1004 (3d Cir. 1980), and so
certainly a pre-trial detainee may do so as well.
9
legitimate nonpunitive governmental purpose[,]” and (2) “whether they appear excessive
in relation to that purpose.” Id. at 561. The first prong of the Bell analysis requires a
two-part inquiry, analyzing “first, whether any legitimate purposes are served by [the]
conditions [of confinement], and second, whether these conditions are rationally related
to these purposes.” Hubbard v. Taylor, 399 F.3d 150, 159 (3d Cir. 2005).
Turning to Carson‟s claim, we begin with the principle that mere double-bunking
does not constitute punishment, because there is no “„one man, one cell‟ principle lurking
in the Due Process Clause of the Fifth Amendment.” Bell, 441 U.S. at 542. Nonetheless,
“confining a given number of people in a given amount of space in such a manner as to
cause them to endure genuine privations and hardship over an extended period of time
might raise serious questions under the Due Process Clause as to whether those
conditions amounted to punishment[.]” Id. For example, we found a constitutional
violation where the conditions of confinement were “unsanitary and humiliating” in
Union County Jail Inmates v. Di Buono, 713 F.2d 984, 996 (3d Cir. 1983). In that case,
pre-trial detainees were double-celled, resulting in mattresses being placed next to toilets
on the floors of small (five-foot by seven-foot) cells. Id. at 988.
Carson attempts to analogize his case to LeFaut v. Smith, 834 F.2d 389 (4th Cir.
1987) and Johnson v. Lewis, 217 F.3d 726 (9th Cir. 2000), where the Fourth and Ninth
Circuits found Eighth Amendment violations because convicted prisoners‟ lack of toilet
access resulted in deplorably unsanitary conditions. See LeFaut, 834 F.2d at 392-94(wheelchair-bound plaintiff housed in location without handicap facilities had to drag
10
himself to the toilet, and would sometimes slip down into the toilet bowl water); Johnson,
217 F.3d at 730 (prisoners forced to wait outside in prison yard for four days and lack of
toilet resulted in extremely unsanitary conditions). We are not persuaded by Carson‟s
argument. Despite his attempts to analogize his case to LeFaut or Johnson, he does not
claim any deprivation that is even akin to the deplorable conditions in those cases.
The conditions of which Carson complains simply do not rise to the level of
punishment because the conditions were rationally related to the nonpunitive purpose of
housing inmates, and did not appear to be excessive. At most, Carson complains of an
inconvenient and uncomfortable situation, but, as the District Court noted, “the
Constitution does not mandate comfortable prisons[.]” Rhodes v. Chapman, 452 U.S.
337, 349 (1981). We find no error in the District Court‟s grant of summary judgment on
this issue.
b. Inadequate Medical Treatment Claims
Carson argues that his Due Process rights were violated when he was denied
prescription asthma medication, and when it was later confiscated after he had eventually
obtained it.4 He also claims that his Due Process rights were violated by the denial of
wheelchair footrests. We disagree.
As a threshold matter, the parties dispute exactly what standard should be applied
to analyze a Due Process claim in the context of inadequate medical treatment. Carson
4
In his brief, Carson also claims that he was refused medication for “other
conditions,” but fails to explain or discuss what other medication or conditions he is
referring to. Thus, we will address only the issue regarding his asthma medication.
11
argues that we should apply Bell‟s two-pronged legitimate purpose standard, whereas
Defendants argue that Bell is limited to conditions of confinement claims, and that for
inadequate medical treatment claims, we should apply the Eighth Amendment deliberate
indifference standard from Estelle v. Gamble, 429 U.S. 97 (1976).5 We need not resolve
today which standard applies because even under the Bell standard, which is arguably
more protective of pretrial detainees‟ rights than the Estelle standard, we will affirm the
District Court‟s determination that Carson‟s Due Process rights were not violated.
Turning to Carson‟s claims, we find that pursuant to Bell, the ACJF had
legitimate, nonpunitive purposes for its determinations regarding Carson‟s asthma
medication and wheelchair footrests. First, the denial of asthma medication was
warranted because when Dr. Hubbard evaluated Carson, she determined that he did not
have asthma. Although Carson claimed he had a prescription, he admitted in his
deposition that, in fact, at the time that he was incarcerated he had not been on asthma
medication for quite some time. Thus, it is clear that Dr. Hubbard denied him medication
for the legitimate reason that he was no longer on asthma medication and did not appear
to have asthma. We “disavow any attempt to second-guess the propriety or adequacy of a
particular course of treatment . . . (which) remains a question of sound professional
judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)
(quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
5
Estelle requires proof that the inmate (1) had a serious medical need, and (2) that
prison officials were deliberately indifferent to that need. Estelle, 429 U.S. at 103-04.
12
Second, the confiscation of Carson‟s inhaler was warranted because the staff
sergeant who found it following a prison fight believed that the inhaler was “not
authorized” according to the medical staff on duty. This was a legitimate and
nonpunitive purpose for confiscating the inhaler, even if, as Carson claims, the sergeant
or medical staff were incorrect. As Defendants explain, “[t]here is a legitimate
government interest in ensuring that prison inmates only receive prescription drugs that
are necessary. . . . [because] doing so . . . avoids needless costs and prevents prisoners
from abusing prescription medications.”
Finally, Carson was denied wheelchair footrests because the Director of Nursing
and the Health Services Administrator determined that footrests would offer no
therapeutic benefit, and cited concerns that the footrests could be used as weapons. Thus,
Carson was denied footrests for legitimate, nonpunitive reasons. The denial of footrests
was not excessive, given the fact that health professionals determined Carson did not
need them in the first place, and especially since he was prescribed alternative treatment.
13
In sum, we find no constitutional violation under Bell, let alone any sign of
deliberate indifference under Estelle. Thus, the District Court did not err in granting
summary judgment to Defendants on this claim.6
c. Excessive Force Claim
Carson claims that Sergeant Eric Nilson used excessive force against him, in
violation of his Due Process rights, when he forced Carson into his cell by “launch[ing]”
him through the cell door and into his steel bed. We disagree. Since Bell, we have only
addressed excessive force claims by pre-trial detainees where the claim “ar[ose] in the
context of a prison disturbance.” Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000).
There, we applied the Eighth Amendment standard rather than Bell because we cannot
expect prison guards to draw distinctions between sentenced and unsentenced inmates
while they are trying to stop a prison disturbance. Id. We need not decide today what
standard should apply to isolated incidents of excessive force that are unrelated to a
prison disturbance, because even under the Bell standard, we will affirm the District
Court‟s determination that Carson‟s Due Process rights were not violated.
6
Carson argues that we should reverse the District Court with regard to the asthma
medication issue, because it failed to explain its reasoning for granting summary
judgment on that claim. However, we find that any error in the District Court‟s failure to
explain its reasoning was harmless pursuant to Federal Rule of Civil Procedure Rule 61
because we agree with the District Court‟s decision to grant Defendants‟ motion for
summary judgment on the asthma medication issue. See Nicini v. Morra, 212 F.3d 798,
805 (3d Cir. 2000) (en banc) (“We may affirm the District Court on any grounds
supported by the record.”).
14
Carson argues that plaintiffs with minor injuries such as his have withstood
summary judgment. However, multiple factors besides the level of injury go into the
analysis of whether force in any given case is excessive. See Hudson v. McMillian, 503
U.S. 1, 7 (1992). In the cases cited by Carson, where injuries were treated with ice packs,
Smith v. Mensinger, 293 F.3d 641, 645 (3d Cir. 2002), and consisted of “superficial
lacerations and abrasions[,]” Brooks v. Kyler, 204 F.3d 102, 109 (3d Cir. 2000), the
allegations regarding the use of force were quite serious. In Brooks, the plaintiff was
punched and choked, id. at 105, and in Smith, several officers “rammed Smith‟s head into
walls and cabinets” and kicked, punched, and choked him. 293 F.3d at 644.
The facts Carson alleges simply do not show that the prison guard lacked a
legitimate nonpunitive purpose for his actions, or that the force was excessive. At most,
Carson has alleged that in an attempt to force him into his cell, the prison guard pushed
Carson‟s wheelchair rapidly and harshly through his cell door, causing him to fall sharply
onto his bed inside the door. But “not . . . every malevolent touch by a prison guard gives
rise to a federal cause of action[,]” and “[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge‟s chambers, violates a prisoner‟s constitutional
rights[.]” Hudson, 503 U.S. at 9; see also id. at 10 (“[D]e minimis use[] of physical
force” is not excessive, provided that such use of force “is not of a sort „repugnant to the
conscience of mankind.‟” (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986))).
Because Carson has alleged, at most, a malevolent shove by Nilson, we find no Due
Process violation.
15
d. Housing Fee Claim
Carson claims the $50-per-month “user fee” for room and board constituted a fine,
which violates his Due Process right to be free from punishment until proven guilty. We
disagree. In Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 420 (3d
Cir. 2000), we specifically held that such fees are not punishment, but are rather
“designed to teach financial responsibility.” Furthermore, we explained that “[m]ore
fundamentally, the fees can hardly be called fines when they merely represent partial
reimbursement of the prisoner‟s daily cost of maintenance, something he or she would be
expected to pay on the outside.” Id.Carson argues that Tillman does not control, because unlike him, the plaintiff in
that case was a convicted prisoner. We agree that the Eighth Amendment legal standard
applied in Tillman does not control, but Tillman is relevant not because of its legal
standard, but because of its holding that housing fees are not punishment. The fees are
nonpunitive and related to the legitimate purpose of partially reimbursing the government
for housing expenditures. Thus, the fines do not violate the Bell requirement that pre-trial
detainees not be subject to punishment.
2. Equal Protection Claim
On appeal, Carson argues that he raised a “class of one” Equal Protection claim in
the District Court, when he argued that he should not have been denied wheelchair
footrests while other prisoners were permitted footrests, crutches, and canes. Carson
argues that the District Court erred in failing to address his “class of one” Equal
16
Protection claim. We disagree. It is far from clear that Carson‟s assertions regarding
alleged discrepancies constituted an Equal Protection claim, considering that he discussed
these discrepancies in an effort to prove his Due Process claim by showing that the ACJF
did not have a legitimate reason for denying him wheelchair footrests. To the extent that
Carson raised such a claim, the District Court granted Defendants‟ motions for summary
judgment “on all claims contained in [Carson‟s] complaint.” Carson v. Mulvihill,
No. 07-3588, 2009 WL 3233482, at *7 (D.N.J. Sept. 29, 2009).
Even assuming the District Court erred in failing to more explicitly identify or
address a “class of one” Equal Protection claim, any such error was harmless, see Federal
Rule of Civil Procedure Rule 61, because we find such a claim to be meritless and “may
affirm . . . on any grounds supported by the record.” See Nicini v. Morra, 212 F.3d 798,
805 (3d Cir. 2000) (en banc). A “class of one” Equal Protection claim requires a plaintiff
to show that he “was intentionally treated differently from others similarly situated . . .
and that there was no rational basis for such treatment.” Phillips v. Cnty. of Allegheny,
515 F.3d 224, 243 (3d Cir. 2008). Carson does not allege facts showing that he was
similarly situated to the inmates who received wheelchair footrests, crutches and canes,
or that there was no rational basis for his different treatment.
IV.
For the reasons set forth above, we will affirm the order of the District Court.
17