Hilton v. Secretary for the Department of Corrections , 170 F. App'x 600 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 1, 2005
No. 03-13492
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 01-14148-CV-NCR
PERRY T. HILTON,
Plaintiff-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
James Crosby,
CAMBELL, COI,
HAYES, COII,
M. E. BILLMAN, COII,
BILLMAN, Lieutenant, et al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(November 1, 2005)
Before BIRCH and WILSON, Circuit Judges, and DOWD*, District Judge.
BIRCH, Circuit Judge:
*
Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
Florida prisoner Perry T. Hilton appeals the dismissal of his numerous civil
rights claims, filed pursuant to 42 U.S.C. § 1983, against several employees of the
Florida Department of Corrections (“DOC”). We conclude that the district court
erred by dismissing one of Hilton’s claims and affirm the remaining district court
rulings. Accordingly, we AFFIRM IN PART and VACATE and REMAND IN
PART.
I. BACKGROUND
Hilton filed this civil action alleging constitutional violations by numerous
Department of Corrections employees.1 He asserted that correctional officers
Campbell, Hayes, and Billman retaliated against him for filing grievances by
failing to notify him that family members had arrived for visiting hours, spitting
on him and threatening him, placing him administrative confinement, and refusing
to feed him. He maintained that Officer Tifft spit tobacco juice in his face, said he
was “going to kick [Hilton’s] black ass,” and placed Hilton in administrative
confinement. R1-1 at 8. Hilton alleged that Officers Ferguson, Saucedo, White,
and Tifft refused to feed him during an eight-hour period of administrative
1
Hilton named as defendants Department of Corrections Secretary Michael Moore,
Okeechobee Correctional Institution (“OCI”) Warden Jimmy Prevatt, OCI Assistant Warden J.R.
Jenkins, and OCI Correctional Officers M. Billman, Campbell, Dennis, B. Ellerbee, E. Ferguson,
K. Foster, J. Franza, Hamilton, Hayes, Margekguin, Norman, Saucedo, Stucche, G. Thompson,
Randall Tifft, M. White, L. Wooden, and six John Does.
2
confinement and denied him food for a six-day period of confinement. He argued
that Warden Prevatt was liable for failing to remedy the constitutional violations.2
The magistrate judge found that Hilton’s assertion that he had not been
notified of his family members’ presence during visiting hours failed to state a
claim under § 1983 because it alleged only a “de minimus inconvenience,” and his
contention that Tifft had verbally harassed him and spit tobacco juice in his face
was not actionable as excessive force under § 1983. R1-8 at 9. The magistrate
judge also found that Hilton had failed to state a claim against Prevatt because
§ 1983 liability cannot be premised on vicarious liability. Accordingly, the
magistrate judge recommended dismissal of these claims under 28 U.S.C. §
§ 1915(e)(2)(B)(ii) for failure to state a claim. Over Hilton’s objections, the
district court accepted the magistrate judge’s recommendation.
Prior to the district court’s ruling, the court had directed the marshal to
personally serve the complaint and summons upon Billman, Dennis, Ellerbee,
2
Hilton also argued that (1) Campbell and Hayes denied him access to the law library;
(2) Thompson verbally assaulted him upon his release from segregated confinement; (3) Ellerbee
and Foster verbally assaulted and threatened him; (4) Billman retaliated against him by ordering
Margekguin to issue him a corrective consultation for disobeying an order; (5) Dennis, Hamilton,
and Wooden fabricated disciplinary charges against him; (6) he was forced to endure 29 days of
disciplinary confinement without personal hygiene items; and (7) Prevatt unconstitutionally seized
and opened his legal mail. Because Hilton does not argue these issues on appeal, they are deemed
waived. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (noting that issues not
argued on appeal are deemed waived).
3
Ferguson, Hamilton, Margekguin, Saucedo, Tifft, White, and Wooden. After
service was returned unexecuted for Dennis, Hamilton, Margekguin, White, and
Wooden, Hilton asked that the court direct Moore to provide him with the home
addresses of these officers. The court denied Hilton’s motion and noted that
“[d]iscovery must be sought from defendants . . . pursuant to the Federal Rules of
Civil Procedure.” R2-55 at 1.
Billman, Ellerbee, Ferguson, and Saucedo moved for summary judgment,
arguing, inter alia, that Hilton’s assertion that he had been placed in administrative
confinement in retaliation for filing a grievance lacked merit because prison
records indicated that Hilton was confined for disobeying an order. The officers
further maintained that Hilton was never denied food during his administrative
confinement, but that he refused an evening meal and had advised Saucedo that he
was on a hunger strike. Finally, the officers noted that Dennis, Hamilton,
Margekguin, White, and Wooden were not subject to the summary judgment
motion since they had not been served.
In support of their motion, the officers attached a report of administrative
confinement detailing the events surrounding Hilton’s placement in administrative
confinement. According to the report, Tifft ordered that Hilton be placed in
confinement after Hilton disobeyed verbal orders to remain silent and then
4
continued to raise his voice and argue with Tifft. R2-107, Exh. A at A4. They
also attached copies of the grievances in which Hilton complained that he was not
given dinner on two days and was denied all meals for six days. R2-107, Exh. B
at H & J.
Hilton responded that Tifft’s statement that he had disobeyed a verbal order
was a fabrication, and that he never refused a meal or indicated that he was on a
hunger strike. He attached an affidavit stating that he was “placed in
administrative confinement in retaliation for exercising [his] First Amendment
rights.” R3-115, Exh. A at Hilton’s affidavit. He also, however, attached a copy
of an 8 May 1999 grievance with a response which explained that he was “not
placed in A.C. for filing a grievance. You were placed in AC for your actions
while being counseled with by Capt. Tifft. Your disorderly behavior warranted
your placement in A.C.” R3-115, Exh. C.
Approximately three months after all motions to add parties or claims were
due to be filed, Hilton moved for a declaratory judgment, arguing that mailroom
employee Victoria Powell had refused to notarize his legal mail in retaliation for
filing the § 1983 action. He also claimed that prison officials had held his
outgoing legal mail in an unrelated criminal appeal for 31 days, and that he was
terminated from his position as medical orderly in retaliation for filing a grievance
5
concerning the holding of his legal mail. Hilton requested an order directing that
the retaliation against him cease and demanding his reinstatement as a medical
orderly.
The magistrate judge found that Hilton’s segregation claim was without
merit because Hilton had failed to rebut the defendants’ evidence that Hilton had
been placed in administrative confinement for disobeying a verbal order. The
magistrate judge next found that Hilton’s food-deprivation claim was barred under
42 U.S.C. § 1997e for his failure to exhaust administrative remedies because he
had failed to file an informal or formal grievance. Next, the magistrate judge
found that Hilton’s claims against Dennis, Hamilton, Margekguin, White, and
Wooden were subject to dismissal under Federal Rule of Civil Procedure 4(m)
because those defendants had not been served within 120 days after his complaint
was filed. Finally, the magistrate judge found that Hilton was not entitled to a
declaratory judgment because the actions of which he complained were remote in
time to the events at issue in the § 1983 action and the named individuals were not
defendants in the pending case. Accordingly, the magistrate judge recommended
(1) granting summary judgment in favor of Billman, Ellerbee, Ferguson, Saucedo,
and Tifft on Hilton’s segregation claim; (2) dismissing Hilton’s food-deprivation
claim under § 1997e; (3) dismissing Hilton’s claims against Dennis, Hamilton,
6
Margekguin, White, and Wooden under Rule 4(m); and (4) denying Hilton’s
motion for a declaratory judgment. Although Hilton objected, the district court
adopted the magistrate judge’s recommendation and entered judgment
accordingly. Hilton now appeals.
II. DISCUSSION
Hilton raises six issues on appeal. First, he alleges that the district court
erred by dismissing under 28 U.S.C. § 1915(e)(2)(B)(ii) his retaliation claim
against Billman, Campbell, and Hayes. Second, Hilton argues that the court erred
by dismissing his excessive force claim against Tifft and Warden Prevatt, also
under § 1915(e)(2)(B)(ii). Third, Hilton maintains that the court erred by granting
summary judgment in favor of Billman, Ellerbee, Ferguson, Saucedo, and Tifft on
his claim that he had been placed in administrative confinement in retaliation for
filing a grievance. Fourth, Hilton asserts that the court erred by dismissing his
food-deprivation claim under § 1997e. Fifth, Hilton alleges that the court abused
its discretion by dismissing his claims against Dennis, Hamilton, Margekguin,
White, and Wooden under Rule 4(m). Finally, Hilton argues that the court abused
its discretion by denying his motion for a declaratory judgment. We discuss each
issue in turn.
A. Retaliation
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We review de novo dismissals under § 1915(e)(2)(B)(ii), “viewing the
allegations in the complaint as true.” Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997). Dismissal is appropriate under § 1915(e)(2)(B)(ii) only when a
plaintiff “can prove no set of facts that would entitle him to relief.” See id.; see
also 28 U.S.C. § 1915(e)(2)(B)(ii).
“To state a first amendment claim for retaliation, a prisoner need not allege
violation of a separate and distinct constitutional right.” Thomas v. Evans, 880
F.2d 1235, 1242 (11th Cir. 1989). “The gist of a retaliation claim is that a prisoner
is penalized for exercising the right of free speech.” Id.; see also Bridges v.
Russell, 757 F.2d 1155, 1156 (11th Cir. 1985) (holding that a prisoner stated a
claim of retaliation based on being transferred to another facility even though
prisoners have no liberty interest in remaining at a particular facility).
The district court dismissed Hilton’s retaliation claim under
§ 1915(e)(2)(B)(ii) based on the magistrate judge’s finding that Hilton had been
denied only one hour of visitation and, thus, had suffered only a de minimus
injury. The question of whether Hilton’s alleged loss of visitation time constituted
a constitutional violation is irrelevant, however, for purposes of considering his
retaliation claim because the gist of his claim was that he was retaliated against for
filing a prison grievance. See Thomas, 880 F.2d at 1242. Hilton alleged in his
8
complaint that Campbell, Billman, and Hayes retaliated against him for filing
grievances by failing to notify him that family members had arrived for visiting
hours. Viewing the allegations in the complaint as true, Hilton’s complaint stated
a claim of retaliation; thus, the district court’s dismissal of this claim under
§ 1915(e)(2)(B)(ii) was erroneous.3 See Bridges, 757 F.2d at 1157.
B. Excessive Force
“[A] de minimus use of force cannot support a claim for excessive use of
force.” Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002). Hilton does
not contest the district court’s finding that the tobacco spitting incident involving
Tifft caused him only a de minimus injury. Additionally, no legal authority
supports Hilton’s proposition that Tifft’s alleged statement, that he was going to
“kick [Hilton’s] black ass,” amounts to a constitutional violation. Thus, the
district court properly dismissed Hilton’s excessive force claim against Tifft.4
3
We note that, although the “Report of Investigation” submitted by Billman, Tifft,
Saucedo, Ferguson, and Ellerbee in support of summary judgment addressed this incident, R2-107,
Ex. A at 3 (referencing an interview with Hilton on 16 September 1999); Ex. B at 19 (“I was never
notified of my visit until five minutes . . . .”). The exhibits do not include copies of any grievances
filed by Hilton regarding the officers’ failure to advise him of his family’s visits. It is, therefore,
unclear as to whether the district court considered any such grievances as to this issue.
4
Because Hilton has failed to state a claim for excessive force, we need not reach Hilton’s
additional argument that Tifft was not entitled to qualified immunity. See Conn v. Gabbert, 526 U.S.
286, 290, 119 S. Ct. 1292, 1295 (1999).
9
Regarding his excessive force claim against Prevatt, Hilton contends for the
first time on appeal that Prevatt is liable for failing to adequately train and
supervise his subordinates. It is well-established that issues not raised in the
district court will not be considered on appeal. See Narey v. Dean, 32 F.3d 1521,
1526-27 (11th Cir. 1994) (setting forth five exceptions to this rule). Because
Hilton’s claim against Prevatt does not fall within one of the exceptions set forth
in Narey, this claim is deemed waived. Furthermore, because Hilton has failed to
present any evidence showing that Prevatt participated in the alleged
unconstitutional acts or that there was a causal connection between Prevatt and the
alleged constitutional violation, Hilton was not entitled to relief against Prevatt
based on respondeat superior. See Cross v. State of Ala., State Dep’t of Mental
Health & Mental Retardation, 49 F.3d 1490, 1508 (11th Cir. 1995) (holding that a
supervisor is liable only if he or she personally participates in the alleged
constitutional deprivation or there is a causal connection between actions of the
supervising official and the alleged constitutional violation).
C. Summary Judgment
Hilton alleges for the first time on appeal that the defendants’ failure to
comply with his discovery requests precluded him from obtaining necessary
evidence to support his claim. We review de novo a district court’s grant of
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summary judgment, viewing the evidence in the light most favorable to the party
opposing the motion. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). Summary judgment is proper where “there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a matter of law.”
Id. (quoting Fed. R. Civ. P. 56(c)).
Besides self-serving and conclusory allegations, Hilton has offered nothing
to rebut the evidence showing that he was placed in administrative confinement
for disobeying a verbal order rather than for filing a grievance.
D. Food Deprivation
“We review de novo a district court’s dismissal . . . for failure to exhaust
available administrative remedies under § 1997e(a) of the PLRA [Prison Litigation
Reform Act].” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000). Section
1997e of the PLRA states that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Brown,
212 F.3d at 1207 (holding that “when a state provides a grievance procedure for its
prisoners, . . . an inmate alleging harm suffered from prison conditions must file a
11
grievance and exhaust the remedies available under that procedure before pursuing
a § 1983 lawsuit”).
In Florida, “[i]nmates shall utilize the informal grievance process prior to
initiating a formal grievance.” Fla. Admin. Code Ann. r. 33-103.005(1) (2004). If
it is not feasible for the inmate to file a grievance within the relevant time period,
he will be granted an extension if he “made a good faith effort to file in a timely
manner.” Id. r. 33-103.011(2). If “[the] inmate decides to file a formal grievance,
he . . . shall do so by completing [and submitting to the warden] Form DC1-303,
Request for Administrative Remedy or Appeal.” Id. r. 33-103.006(1)-(a).
The record reveals that Hilton failed to submit an informal or formal prison
grievance in conjunction with his claim that he was denied all meals for a six-day
period. See Brown, 212 F.3d at 1207. Hilton’s contention, that he was denied
grievance forms during his term of administrative confinement, does not entitle
him to relief because he fails to allege that he was unable to obtain these forms
once he was released from confinement. The district court did not, therefore, err
in dismissing this claim under § 1997e.
E. Dismissal Under Rule 4(m)
We review a district court’s dismissal for failure to timely serve a summons
and complaint for abuse of discretion. Brown v. Nichols, 8 F.3d 770, 775 (11th
12
Cir. 1993) (analyzing former Fed. R. Civ. P. 4(j)). “If service of the summons and
complaint is not made upon a defendant within 120 days after the filing of the
complaint, the court . . . shall dismiss the action without prejudice as to that
defendant or direct that service be effected within a specified time.” Fed. R. Civ.
P. 4(m).
After service was returned unexecuted on Dennis, Hamilton, Margekguin,
White, and Wooden, Hilton moved the court to order defendant Moore to provide
him with the home addresses of these officers. The court denied Hilton’s motion,
stating that “[d]iscovery must be sought from defendants in the case pursuant to
the Federal Rules of Civil Procedure.” R2-55 at 1. More than one year later, the
court dismissed Dennis, Hamilton, Margekguin, White, and Wooden under Rule
4(m) for Hilton’s failure to properly serve them. After dismissal, Hilton attempted
to provide the court with Hamilton’s contact information, but this information was
properly refused because Hilton failed to show good cause for the delay. See Rule
4(m).
Hilton now alleges that he was unable to serve these defendants for two
reasons: (1) because they failed to comply with his request for production of
documents and (2) because the DOC falsely told him that these officers were no
longer employed by DOC. Hilton’s first argument fails because his document
13
request did not seek any contact information regarding the unserved defendants.
Hilton’s second argument fails because he did not present any evidence showing
the DOC was untruthful regarding the employment status of the unserved
defendants. Accordingly, the district court properly dismissed these defendants
under Rule 4(m).
F. Declaratory Judgment
We review a district court’s “denial of declaratory relief for an abuse of
discretion.” McCullagh v. Dean Witter Reynolds, Inc., 177 F.3d 1307, 1308 (11th
Cir. 1999). “In a case of actual controversy within its jurisdiction, . . . any court of
the United States, upon the filing of an appropriate pleading, may declare the
rights and other legal relations of any interested party seeking such declaration.”
28 U.S.C. § 2201(a). “The procedure for obtaining a declaratory judgment
pursuant to Title 28, U.S.C., § 2201, shall be in accordance with [the Federal
Rules of Civil Procedure].” Fed. R. Civ. P. 57.
Hilton moved for declaratory judgment based on his contention that prison
officials racially discriminated against him by withholding his outgoing legal mail
and terminating him from his medical orderly position. His motion, however,
violated the Federal Rules of Civil Procedure because it added parties and claims
that were not included in his complaint and was filed approximately three months
14
after the expiration of the period allotted by the district court for adding additional
parties and claims. Hilton also failed to present any evidence in support of either
claim. Accordingly, the district court properly denied Hilton’s declaratory
judgment motion.
III. CONCLUSION
We conclude that the district court erred by dismissing Hilton’s retaliation
claim against Billman, Campbell, and Hayes under § 1915(e)(2)(B)(ii), and vacate
the district court’s order as to this claim. We affirm the district court’s remaining
rulings: (1) dismissing Hilton’s excessive force claim against Prevatt and Tifft
under § 1915(e)(2)(B)(ii); (2) granting summary judgment in favor of Billman,
Ellerbee, Ferguson, Saucedo, and Tifft regarding administrative confinement; (3)
dismissing Hilton’s food-deprivation claim under § 1997e; (4) dismissing Dennis,
Hamilton, Margekguin, White, and Wooden under Rule 4(m); and (5) denying
Hilton’s motion for a declaratory judgment.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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