Case: 18-12219 Date Filed: 01/10/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12219
Non-Argument Calendar
________________________
D.C. Docket No. 4:15-cv-00577-WS-CAS
COREY MILLEDGE,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS SECRETARY, et al.,
Defendants,
GRAY ENGLISH,
Assistant Warden,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 10, 2019)
Before MARCUS, WILSON and HULL, Circuit Judges.
PER CURIAM:
Case: 18-12219 Date Filed: 01/10/2019 Page: 2 of 9
Corey Milledge, a state prisoner proceeding pro se, appeals following an
order granting summary judgment in favor of Assistant Warden Gary English in
his § 1983 action alleging that English violated his Eighth Amendment rights by
not protecting him after he informed him that his cellmate threatened him and he
feared for his life, and then the cellmate attacked and injured him. On appeal,
Milledge argues that: (1) the district court erred in granting summary judgment in
favor of English because it did not view the evidence in a light most favorable to
him and that there was a genuine issue of material fact; and (2) the district court
abused its discretion in denying his motion to alter or amend the judgment. After
thorough review, we affirm. 1
We review de novo a district court’s grant of summary judgment, viewing
all evidence and reasonable factual inferences drawn from it in the light most
favorable to the nonmoving party. Crawford v. Carroll,
529 F.3d 961, 964 (11th
Cir. 2008). We review the district court’s denial of a motion for reconsideration
for abuse of discretion. Rodriguez v. City of Doral,
863 F.3d 1343, 1349 (11th Cir.
2017). “A court abuses its discretion if it incorrectly applies the law.”
Id. We
may affirm on any ground supported by the record. LeCroy v. United States,
739
F.3d 1297, 1312 (11th Cir. 2014).
1
Milledge’s complaint also named several other defendants but because he does not
challenge on appeal anything pertaining to those defendants, he has abandoned any issue as to
those defendants. Wilkerson v. Grinnell Corp.,
270 F.3d 1314, 1322 (11th Cir. 2001).
2
Case: 18-12219 Date Filed: 01/10/2019 Page: 3 of 9
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Crawford,
529 F.3d at 964. The party
moving for summary judgment bears the initial burden of establishing the absence
of a dispute over a material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323
(1986). The burden then shifts to the non-moving party, who may not rest upon
mere allegations, but must set forth specific facts showing that there is a genuine
issue for trial. Fed. R. Civ. P. 56(e); Eberhardt v. Waters,
901 F.2d 1578, 1580
(11th Cir. 1990).
Federal Rule of Civil Procedure 59(e) allows a party to file a motion to alter
or amend a judgment within 28 days after the entry of judgment. “The only
grounds for granting a Rule 59 motion are newly-discovered evidence or manifest
error of law or fact.” Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007)
(quotations and alterations omitted). “A Rule 59(e) motion cannot be used to
relitigate old matters, raise argument or present evidence that could have been
raised prior to the entry of judgment.”
Id. (quotations and alterations omitted).
The Supreme Court has held that “the treatment a prisoner receives in prison
and the conditions under which he is confined are subject to scrutiny under the
Eighth Amendment.” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (quotation
3
Case: 18-12219 Date Filed: 01/10/2019 Page: 4 of 9
omitted). The Eighth Amendment imposes duties on prison officials to provide
humane conditions of confinement, which includes the responsibility to “take
reasonable measures to guarantee the safety of the inmates.”
Id. (quotation
omitted). This means that “prison officials have a duty [] to protect prisoners from
violence at the hands of other prisoners.”
Id. at 833. This is because “[b]eing
violently assaulted in prison is simply not part of the penalty that criminal
offenders pay for their offenses against society.”
Id. at 834 (quotation omitted).
However, not every injury suffered by one prisoner at the hands of another
translates into a constitutional violation by prison officials who are responsible for
the victim’s safety.
Id.
The Supreme Court has held that “a prison official violates the Eighth
Amendment only when two requirements are met.”
Id. “First, the deprivation
alleged must be, objectively, sufficiently serious” in that “a prison official’s act or
omission must result in the denial of the minimal civilized measure of life’s
necessities.”
Id. (quotations omitted). In a case involving “a failure to prevent
harm, the inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm.”
Id. Second, the prison official must have acted
with deliberate indifference to inmate health or safety.
Id. This requires the prison
official to “actually (subjectively) know[] that an inmate is facing a substantial risk
of serious harm, yet disregard[] that known risk by failing to respond to it in an
4
Case: 18-12219 Date Filed: 01/10/2019 Page: 5 of 9
(objectively) reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr.,
508 F.3d
611, 617 (11th Cir. 2007) (footnote omitted). Additionally, the inmate must also
“demonstrate a causal connection between the prison official’s conduct and the
Eighth Amendment violation.”
Id.
As for the subjective component of an Eighth Amendment claim, the prison
official “must both be aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists, and he must also draw the inference.”
Id.
(quotation omitted). The Supreme Court has held that this determination “is a
question of fact subject to demonstration in the usual ways, including inference
from circumstantial evidence.” Farmer,
511 U.S. at 842. Thus, prison officials can
avoid Eighth Amendment liability by showing (1) “that they did not know of the
underlying facts indicating a sufficiently substantial danger and that they were
therefore unaware of a danger,” (2) “that they knew the underlying facts but
believed (albeit unsoundly) that the risk to which the facts gave rise was
insubstantial or nonexistent,” or (3) that they “responded reasonably to the risk,
even if the harm ultimately was not averted.”
Id. at 844 (quotation omitted).
To have subjective knowledge, the plaintiff “must show more than a
generalized awareness of risk.” Caldwell v. Warden, FCI Talladega,
748 F.3d
1090, 1101-02 (11th Cir. 2014) (quotation omitted). Mere knowledge of a
substantial risk of serious harm “is insufficient to show deliberate indifference.”
5
Case: 18-12219 Date Filed: 01/10/2019 Page: 6 of 9
Hale v. Tallapoosa Cnty.,
50 F.3d 1579, 1583 (11th Cir. 1995). Thus, a plaintiff
must produce evidence that, with knowledge of the substantial risk of serious
harm, the government official knowingly or recklessly “disregard[ed] that risk by
failing to take reasonable measures to abate it.”
Id. (quotation omitted).
In Brooks v. Warden,
800 F.3d 1295 (11th Cir. 2015), the plaintiff was
attacked by the inmate in the next cell when all of the cell doors simultaneously
opened and a violent riot began. Id. at 1298-99. The plaintiff alleged that his
attacker had threatened him previously, that he had notified prison officials of the
threats, and that the cell doors in his housing unit had opened before. Id. at 1298,
1301. However, he did not allege that he and his attacker had ever been released
“at the same time . . . in an unsupervised or chaotic environment” or that “all 32
doors in [his dorm] had ever opened simultaneously, creating the conditions for a
prison riot.” Id. at 1301. Because “[t]here must be a ‘strong likelihood’ of injury,
‘rather than a mere possibility,’ before an official’s failure to act can constitute
deliberate indifference,” a panel of this Court held that Brooks had failed to
“plausibly allege a strong likelihood of serious harm” and his deliberate
indifference claim failed. Id. (quotation omitted). Notably, the Eighth Circuit has
held that “threats between inmates are common and do not, under all
circumstances, serve to impute actual knowledge of a substantial risk of harm.”
Pagels v. Morrison,
335 F.3d 736, 740-41 (8th Cir. 2003) (quotation omitted).
6
Case: 18-12219 Date Filed: 01/10/2019 Page: 7 of 9
Here, the district court did not err in granting summary judgment in favor of
English. The most the record before us reveals is that Milledge may have informed
officials of a single threat directed toward him by his cellmate. We’ve held, in
certain circumstances, that an inmate warning a prison official of another inmate’s
threat can constitute evidence that the official was subjectively aware of the
substantial risk of serious harm -- if, for example, other instances of violence had
occurred between them. See Caldwell, 748 F.3d at 1101 (holding that summary
judgment was improper where the plaintiff inmate presented evidence that he had
told prison officials that he feared for his life if he was returned to the same cell
and that his cellmate had a violent past, had started a severe fire in the cell while
the plaintiff was there, and had used the plaintiff’s personal items as tinder for the
fire); Rodriquez,
508 F.3d at 618-19 (holding that summary judgment was not
proper where the inmate had been returned to the general population after being
segregated from the general prison population for security purposes, had informed
the assistant warden twice that his life had been threatened multiple times by his
former gang who were prisoners in the prison’s general population, and had
requested by means of a written and verbal communication to be placed in
protective custody).
But this case is nothing like those. Milledge did not present any evidence
beyond informing officials of only a single threat, offering no other risk factors
7
Case: 18-12219 Date Filed: 01/10/2019 Page: 8 of 9
present for a prison official to draw the inference that he faced a substantial risk of
harm. Indeed, as the record reveals, the two cellmates had been housed together in
the same cell without incident for approximately one month prior to the altercation
giving rise to the lawsuit, and Milledge had not been previously segregated for
security reasons. There is no allegation or indication that the two inmates were
involved with rival gangs or had any issues related to race, debt, romance, or
anything else that might render one an excessive danger to the other. Nor is there
any evidence that Milledge knew or reported that his cellmate had any other type
of weapon. Because “[t]here must be a ‘strong likelihood’ of injury, ‘rather than a
mere possibility,’ before an official’s failure to act can constitute deliberate
indifference,” Brooks, 800 F.3d at 1301, we cannot say that a single threat, on the
circumstances of this case, is sufficient by itself to constitute a substantial risk of
serious harm.
Finally, the district court did not abuse its discretion in denying Milledge’s
motion for reconsideration. The motion for reconsideration essentially asked the
district court to review its prior ruling because Milledge disagreed with its
treatment of facts and legal conclusions. However, the motion could not be used to
relitigate old matters, raise arguments, or present evidence that could have been
raised prior to the entry of judgment. Arthur,
500 F.3d at 1343. In any event, for
8
Case: 18-12219 Date Filed: 01/10/2019 Page: 9 of 9
similar reasons that summary judgment was appropriate, the district court did not
misapply the law. Accordingly, we affirm. 2
AFFIRMED.
2
There is also no merit to Milledge’s claim that the district court abused its discretion in
dismissing an unserved defendant, Warden Scott Middlebrooks.
9
