Alonzo Morefield, Jr. v. Larry Brewton, Warden Stephen Upton , 442 F. App'x 425 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11665 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 11, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:07-cv-00073-BAE-JEG
ALONZO MOREFIELD, JR.,
Plaintiff-Appellant,
versus
LARRY BREWTON,
Unit Manager, Individually and in Official Capacity,
WARDEN STEPHEN UPTON,
Individually and in Official Capacity,
JOHN PAUL,
Deputy Warden, Individually and in Official Capacity,
LISA WATERS,
Health Care Administrator, Individually and in Official Capacity,
DANETTE GORE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(August 11, 2011)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
This is a civil rights action, brought pursuant to 42 U.S.C. § 1983, by
Alonzo Morefield, Jr., a former inmate at Georgia State Prison (“GSP”), against
Larry Brewton, Manager of GPS’s Special Management Unit, Stephen Upton,
GPS’s former Warden, John Paul, GPS’s Deputy Warden, Lisa Waters, DPS’s
Health Services Administrator, and Danette Gore, a former GPS nurse. Morefield
alleged that these defendants were indifferent to his serious medical
needs—exposure to environmental tobacco smoke (“ETS”) exacerbated his
preexisting medical conditions and harmed his future health—and thus subjected
him to cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments.1 He also contended that the defendants transferred him to a
building with high levels of ETS in retaliation for his First Amendment activities
as a “jailhouse lawyer,” knowing that such exposure would harm his health.
The defendants denied liability, and following some discovery, moved the
district court for summary judgment. The court granted their motion. Morefield
now appeals.
1
The Eighth Amendment's Cruel and Unusual Punishments Clause is applicable to the
States under the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370
U.S. 660, 82 S. Ct. 1417, 8 L. Ed.2d 758 (1962)
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We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the non-moving party. Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1263-64 (11th Cir. 2010). Summary
judgment is appropriate when the evidence before the court demonstrates that “no
genuine issue of material fact exists and the moving party is entitled to judgment
as a matter of law.” Id. at 1264. “There is no genuine issue of material fact if the
nonmoving party fails to make a showing sufficient to establish the existence of an
element essential to that party’s case and on which the party will bear the burden
of proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989).
“[C]onclusory allegations without specific supporting facts have no probative
value,” and a party who wishes to successfully oppose a motion for summary
judgment “must meet the movant’s affidavits with opposing affidavits setting forth
specific facts to show why there is an issue for trial.” Leigh v. Warner Bros., Inc.,
212 F.3d 1210, 1217 (11th Cir. 2000) (quotations omitted).
I.
“A prison official’s deliberate indifference to a known, substantial risk of
serious harm to an inmate violates the Eighth Amendment.” Marsh v. Butler
Cnty., Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc). To prevail on a claim
of deliberate indifference, the prisoner must show: (1) a serious medical need;
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(2) the defendant’s deliberate indifference to that need; and (3) causation between
the official’s indifference and the plaintiff’s injury. Mann v. Taser Int’l, Inc., 588
F.3d 1291, 1306-07 (11th Cir. 2009). To prevail on a claim that ETS exposure
will harm his future health, the prisoner must show, objectively, that “he himself is
being exposed to unreasonably high levels of ETS.” Kelley v. Hicks, 400 F.3d
1282, 1284 (11th Cir. 2005). Relevant factors include whether the facility has
enacted a formal smoking policy, the “likelihood that such injury to health will
actually be caused by exposure to ETS,” and “whether society considers the risk
that the prisoner complains of to be so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such a risk.” Id. (quotation
omitted). The prisoner must also show, subjectively, that “prison authorities
demonstrated a ‘deliberate indifference’ to his plight.” Id. “The adoption of a
smoking policy will bear heavily on the inquiry into deliberate indifference.” Id.(quotation omitted). “Mere negligence . . . is insufficient to establish deliberate
indifference.” Id. at 1285.
Here, (1) Morefield never alleged that he shared a cell with a smoker;
(2) GSP has a no-smoking policy and punished violators; (3) Morefield failed to
proffer any evidence, other than his own, self-serving statements, to show that
ventilation was insufficient; and (4) Morefield only spent two months in the
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building with allegedly high levels of ETS and, therefore, is no longer exposed to
ETS in that building. As such, Morefield has not shown that he was exposed to
sufficiently “grave” levels of ETS to constitute a violation of the Eighth
Amendment. Even if Morefield satisfied the objective component, he still failed
to show, subjectively, that the defendants acted with deliberate indifference.
Rather, Morefield’s own personal observations that inmates smoked inside the
building after inspections established, at most, negligence in enforcing the
no-smoking policy, which falls short of an Eighth Amendment violation.
With respect to Morefield’s preexisting medical conditions, Morefield has
not provided any evidence to establish the necessary causal connection between
his ETS exposure and his alleged injuries. His own, conclusory allegations that
his medical conditions have worsened as a result of ETS exposure, or that his ETS
exposure caused coughing, sleep deprivation, watery eyes, and breathing
problems, were insufficient to defeat the defendants’ motion for summary
judgment. Accordingly, the district court properly granted the defendants
summary judgment on Morefield’s Eighth Amendment claims.
II.
A prisoner may establish a First Amendment retaliation claim by showing
that prison officials retaliated against him for exercising his right to free speech.
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O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011). To prevail, the prisoner
must establish that: (1) his speech was constitutionally protected; (2) he suffered
adverse action such that the defendants’ allegedly retaliatory conduct would likely
deter a person of ordinary firmness from engaging in such speech; and (3) there is
a causal relationship between the retaliatory action and the protected speech. Id.Assuming that Morefield’s activities as a “jailhouse lawyer” were protected
under the First Amendment, Morefield failed to establish a First Amendment
violation because he has provided no evidence to show that his transfer to a
building with allegedly high levels of ETS was an act of retaliation for his
“jailhouse lawyer” activities. His conclusory claims of retaliation were
insufficient to overcome the defendants’ motion for summary judgment. The
district court properly granted the defendants summary judgment on Morefield’s
claim of retaliation.
AFFIRMED.
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