Samuel Earl Ivory v. Warden , 600 F. App'x 670 ( 2015 )


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  •           Case: 14-11317   Date Filed: 01/27/2015   Page: 1 of 16
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-11317
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:11-cv-00953-WHA-SRW
    SAMUEL EARL IVORY,
    Plaintiff-Appellant,
    CEDRIC PHILLIPS,
    Plaintiff,
    versus
    WARDEN,
    GOVERNOR OF ALABAMA,
    COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    ________________________
    (January 27, 2015)
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    Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
    PER CURIAM:
    Samuel E. Ivory, an Alabama state prisoner proceeding pro se, appeals the
    district court’s grant of summary judgment in favor of defendants Alabama
    Governor Robert Bentley and Commissioner Kim Thomas of the Alabama
    Department of Corrections (“ADOC”) in his 42 U.S.C. § 1983 civil-rights action
    challenging the conditions of his confinement and his access to courts. After
    careful review, we affirm.
    I.
    While imprisoned at the Perry County Correctional Facility (“Perry”) in
    Perry County, Alabama, Ivory and Cedric Phillips 1 filed in the United States
    District Court for the Southern District of Alabama a complaint alleging that
    Bentley and Thomas were deliberately indifferent to prison conditions that posed a
    serious risk to inmates’ health and safety at Easterling Correctional Facility
    (“Easterling”), where he was to be transferred, and other ADOC facilities. 2 These
    conditions included overcrowding; housing in buildings designed as gymnasiums;
    1
    Phillips filed the complaint along with Ivory but is not an appellant in this appeal.
    Accordingly, the following facts relate primarily to Ivory.
    2
    Ivory also named James Mullins, the Warden of the Perry County Correctional Facility,
    as a defendant. However, the complaint did not contain any allegations regarding Mullins or the
    conditions at Perry, and Mullins was later dismissed by the district court without objection by
    Ivory. On appeal, Ivory does not argue that this dismissal was improper, so we do not address it
    further.
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    insufficient beds; insufficient personal storage space; limited running water;
    unsanitary and inadequate restrooms and showers; insufficient fire and rescue
    countermeasures such as sprinkler systems, fire extinguishers, fire escapes, and
    personnel with fire and rescue training; inadequate heating, cooling, and
    ventilation; and inadequate security.
    Ivory alleged that these conditions violated the Fifth, Eighth, and Fourteenth
    Amendments to the United States Constitution, and he requested injunctive relief
    to cure the allegedly unconstitutional conditions and to prevent his transfer to
    Easterling. Ivory contended that the defendants acted with deliberate indifference
    because “the conditions are so obvious that the officials must have purposefully
    ignored them,” and because Alabama prisons had been the subject of previous
    litigation and newspaper articles. He also asserted that he had a right to access the
    courts without fear of retaliation. Ivory was subsequently transferred to Easterling.
    The defendants filed a special report denying the complaint’s allegations.
    They admitted that “Easterling houses a greater number of inmates than its
    designed capacity,” but asserted that the ADOC has taken steps to ensure inmates
    were not subjected to inhumane conditions. In support, they attached the affidavit
    of the Easterling’s Warden, Louis Boyd. The affidavit stated in pertinent part,
    Inmates at Easterling Correctional Facility are not housed
    in buildings designed to be gymnasiums. All dormitories
    at [Easterling] have running water with each dormitory
    having at least five toilets and eight showers. The fire
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    evacuation routes are posted inside of each dormitory.
    Sprinkler systems along with fire extinguishers are
    inspected on a monthly basis. Easterling also has a crew
    composed of inmates who are assigned and receive
    training on extinguishing fires. The inmate restroom
    areas are cleaned on a daily basis, to include disinfectant.
    There are no inmates sleeping on cots at this facility.
    Inmates’ storage areas are in line with Administrative
    Regulation 338, “Inmate Property.”            All of the
    dormitories have adequate housing and at least four
    industrial size fans for each dormitory.
    Furthermore, the defendants argued, Ivory had not alleged that the defendants had
    knowledge of the conditions or that any act or omission by the defendants gave rise
    to Ivory’s claims.
    On June 14, 2011, the magistrate judge entered an order converting the
    special report to a motion for summary judgment and taking the motion under
    submission. The magistrate judge directed the parties to file any evidence before
    July 18, 2011.
    Ivory timely responded in opposition to the special report, and both Ivory
    and Phillips filed supporting affidavits. In the response, Ivory acknowledged that
    his allegations about insufficient beds, lack of access to running water, and
    insufficient toilets and showers concerned another correctional facility, not
    Easterling.
    In his affidavit, Ivory stated that, due to overcrowded conditions at
    Easterling, he was unable to get his evening medicine five times in less than two
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    months because the prison employees did not stay at their posts long enough to
    serve the long lines. If a prisoner complained to an employee, Ivory asserted, he
    would be placed in a “hot dorm,” and then removed from the prison population to a
    secluded area that did not have access to religious services, visitation, or access to
    a law library. The secluded area also did not have a correctional officer, according
    to Ivory, so “inmates are subject to being raped or beaten.” Ivory further described
    an incident in which he attempted to use Easterling’s temporary law library after
    the permanent one had burned down, but the officers told him he first would have
    to fill out a request slip describing why he needed to use the library. He also
    attested that the water caused itchy rashes and that “everyone believes the water is
    full of bacteria.”
    In his affidavit, Phillips attested that the dining hall was too small to
    accommodate the large number of prisoners that the officers took in at a time,
    which led to conflict between inmates, and that it was unsanitary (infested with
    insects; tables “never clean”; floors “always wet, slimy, and slippery”). Phillips
    also asserted that (1) the dorms that housed inmates were “extremely [h]ot,” and
    there was one ice cooler and sometimes not enough ice for everyone, leading
    “stronger inmates [to] prey on the weaker ones”; (2) the two-hour time slot each
    day for showering was inadequate for each of the 110 to 120 inmates in one side of
    the dorm to shower, increasing the risk of scabies and tuberculosis outbreaks;
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    (3) the prison illegally took $1 of every money order sent to a prisoner by his
    family, without the family’s knowledge, for a “processing fee”; and (4) contrary to
    Warden Boyd’s affidavit, Phillips had not seen fire extinguishers in the dorms, nor
    was he aware of any personnel or inmates who were certified by a licensed fire
    college on fire evacuation.
    Before ruling on summary judgment, the district court in the Southern
    District, pursuant to the magistrate judge’s recommendation to which no objections
    were filed, transferred the case to the Middle District for a more convenient forum
    because Bentley, Thomas, and Easterling were all in the Middle District of
    Alabama. After transfer, a magistrate judge in the Middle District vacated the
    Southern District’s June 14, 2011, order construing the special report as a motion
    for summary judgment. The judge then directed the parties to file responses within
    fifteen days why the court should not treat the special report and any evidentiary
    materials as a motion for summary judgment. No responses were filed.3
    Thereafter, the magistrate judge, treating the special report as a motion for
    summary judgment, issued a recommendation that the motion be granted. The
    magistrate judge concluded that Ivory had not established that the conditions of his
    confinement denied him the minimal civilized measure of life’s necessities or
    3
    In April 2013 and June 2013, the magistrate judge denied Ivory’s requests to amend his
    complaint regarding his access-to-courts claim, but permitted him to file a supplement to his
    previous response to the special report. Ivory did so, but did not submit any additional evidence.
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    subjected him to a wanton and unnecessary infliction of pain. Ivory also failed to
    demonstrate deliberate indifference by the named defendants, the magistrate judge
    concluded, because he did not identify any particular incident or condition of
    which the defendants were aware from which an inference could be drawn that a
    substantial risk of serious harm existed. Regarding the access-to-courts claim, the
    judge found that Ivory had not shown that he had suffered any actual injury.
    The district court overruled Ivory’s objections, adopted the magistrate
    judge’s recommendation, and granted summary judgment to the defendants. After
    the court denied Ivory’s motion to alter or amend the judgment, Fed. R. Civ. P.
    59(e), this timely appeal followed. See Fed. R. App. P. 4(a)(4).
    II.
    We review a district court’s grant of summary judgment de novo,
    considering the facts and drawing all reasonable inferences in the light most
    favorable to the non-moving party. Mann v. Taser Int’l, Inc., 
    588 F.3d 1291
    ,
    1303 (11th Cir. 2009).     Summary judgment is appropriate when “the movant
    shows that there is no genuine dispute as to any material fact and the movant is
    entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
    The moving party bears the initial burden of showing, by reference to
    materials on file, that there are no genuine issues of material fact for trial. Jeffery
    v. Sarasota White Sox, Inc., 
    64 F.3d 590
    , 593 (11th Cir. 1995); see Fed. R. Civ. P.
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    56. Once this burden is met, “the non-moving party must then go beyond the
    pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
    and admissions on file,” show that there is such a genuine issue for trial. 
    Jeffery, 64 F.3d at 593-94
    (internal quotation marks omitted). We also credit “specific
    facts” pled in a plaintiff’s sworn complaint when considering his opposition to
    summary judgment. Caldwell v. Warden, FCI Talledega, 
    748 F.3d 1090
    , 1098
    (11th Cir. 2014). A dispute is “genuine” if a reasonable jury could return a verdict
    in favor of the non-moving party. Allen v. Bd. of Public Educ. for Bibb Cnty., 
    495 F.3d 1306
    , 1313 (11th Cir. 2007). Although pro se filings are entitled to liberal
    construction, pro se litigants are not excused from the burden under summary-
    judgment standards of establishing that a genuine issue of material fact exists.
    Brown v. Crawford, 
    906 F.2d 667
    , 670 (11th Cir. 1990).
    III.
    Ivory first takes issue with the transfer and subsequent handling of his case.
    He further argues that the evidence created genuine issues of material facts as to
    whether the prison conditions violated his Eighth and Fourteenth Amendment
    rights and whether he has been denied access to the courts after the law library at
    Easterling caught fire. We address each contention separately.
    A.
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    Ivory contends that it was an abuse of discretion for the Middle District to
    vacate the June 14, 2011, order construing the defendants’ special report as a
    motion for summary judgment.4 As the Middle District explained, however, the
    court vacated the order upon transfer so that the case could “proceed in accordance
    with the standing practice of th[e] court that construction of a special report not be
    actually converted to a motion for summary judgment until entry of a
    Recommendation.” At no point did the Southern District deny the defendants’
    construed motion for summary judgment or set the case for trial, despite Ivory’s
    assertions to the contrary. Nor was the transfer of the case an abuse of discretion,
    in light of the location of both the defendants and the Easterling facility. See 28
    U.S.C. §§ 1391(b), 1404(a).
    B.
    The Eighth Amendment, applicable to the states through the Fourteenth
    Amendment, “set[s] limits on the treatment and conditions that states may impose
    on prisoners.” Hamm v. DeKalb Cnty., 
    774 F.2d 1567
    , 1571 (11th Cir. 1985).
    4
    In his brief, Ivory also makes passing references to the idea that he should have been
    permitted pre-trial discovery to prove the allegations in his complaint, but he does not develop
    this argument further and so likely has abandoned the issue. See Timson v. Sampson, 
    518 F.3d 870
    , 874 (11th Cir. 2008) (issues not briefed by a pro se litigant are deemed abandoned); see
    also Sapuppo v. Allstate Floridian Ins. Co., 
    739 F.3d 678
    , 682-83 (11th Cir. 2004) (“passing
    references” to an issue without further argument or citation to authority may constitute
    abandonment). In any case, Ivory is not entitled to relief for any purported denial of discovery
    because he does not appear to have raised any discovery issues before the district court, nor does
    he identify what additional evidence he would have sought or discovered or how that evidence
    “would create a genuine issue of material fact precluding summary judgment.” Harbert Int’l,
    Inc. v. James, 
    157 F.3d 1271
    , 1280 (11th Cir. 1998).
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    Under that provision, the states may not impose conditions that “deprive inmates of
    the minimal civilized measure of life’s necessities,” or that may do so in the future.
    Rhodes v. Chapman, 
    452 U.S. 337
    , 347, 
    101 S. Ct. 2392
    , 2399 (1981); see Helling
    v. McKinney, 
    509 U.S. 25
    , 33-34, 
    113 S. Ct. 2475
    , 2480-81 (1993) (“That the
    Eighth Amendment protects against future harm to inmates is not a novel
    proposition.”); Chandler v. Crosby, 
    379 F.3d 1278
    , 1289 (11th Cir. 2004). A state
    violates the Eighth Amendment if fails to furnish prisoners with “the basic human
    needs,” including “reasonable safety,” 
    Helling, 509 U.S. at 33
    , 113 S. Ct. at 2480-
    81, and “reasonably adequate food, clothing, shelter, and sanitation,” 
    Hamm, 774 F.2d at 1572
    .
    We have explained that a two-part analysis governs Eighth Amendment
    challenges to conditions of confinement. 
    Chandler, 379 F.3d at 1289
    . First, the
    prisoner must show that the conditions of his confinement are objectively “serious”
    or “extreme.” 
    Id. This means
    that the prisoner must show, at the very least, that “a
    condition of his confinement poses an unreasonable risk of serious damage to his
    future health or safety.” 
    Id. (brackets and
    internal quotation marks omitted).
    Second, the prisoner must show that the defendant prison officials
    subjectively acted with “deliberate indifference” with regard to the condition at
    issue. Id.; see Wilson v. Seiter, 
    501 U.S. 294
    , 298-300, 
    111 S. Ct. 2321
    , 2324-25
    (1991) (holding that a conditions-of-confinement claim under the Eighth
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    Amendment requires an inquiry into the prison officials’ state of mind). Under this
    standard, the Supreme Court has explained, “a prison official cannot be found
    liable under the Eighth Amendment for denying an inmate humane conditions of
    confinement unless the official knows of and disregards an excessive risk to inmate
    health or safety.” Farmer v. Brennan, 
    511 U.S. 825
    , 837, 
    114 S. Ct. 1970
    , 1979
    (1994). Therefore, to be held liable for “deliberate indifference” to inhumane
    conditions, “the 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. Before proceeding
    to the merits of Ivory’s conditions claim, we note that it
    is unclear whether the district court discharged its summary-judgment
    responsibilities by “consider[ing] all evidence in the record,” including the specific
    facts in Ivory’s and Phillip’s affidavits, before granting summary judgment. See
    Strickland v. Norfolk S. Ry. Co., 
    692 F.3d 1151
    , 1154 (11th Cir. 2002) (“The
    District Court must consider all evidence in the record when reviewing a motion
    for summary judgment—pleadings, depositions, interrogatories, affidavits, etc.—
    and can only grant summary judgment if everything in the record demonstrates that
    no genuine issue of material fact exists.”). These affidavits were not mentioned in
    conjunction with the conditions-of-confinement claim in either the magistrate
    judge’s recommendation or in the district court’s order granting summary
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    judgment.    Nevertheless, we conclude that granting summary judgment was
    proper, for reasons we explain below.
    Construing the evidence in the light most favorable to him, Ivory failed to
    raise a genuine issue of material fact with regard to the objective component of his
    deliberate-indifference claim. Among other conditions alleged in his complaint,
    Ivory averred that Easterling did not have adequate fire-safety protections. We
    have no doubt that a complete lack of fire extinguishers or other fire-safety
    measures could pose an unreasonable risk of serious harm to an inmate’s health or
    safety. But Warden Boyd’s affidavit refuted Ivory’s allegations and stated that the
    facility had sprinkler systems, fire extinguishers, and inmates who had received
    training on extinguishing fires, thereby shifting the burden to Ivory to present
    evidence of specific facts in genuine dispute. See 
    Jeffery, 64 F.3d at 593-94
    . The
    only specific evidence offered by Ivory as to the lack of fire-safety measures
    comes from Phillips’ affidavit, which merely attests to Phillips’s lack of awareness
    of any such measures.      The affidavit does not explain any factual basis for
    Phillips’s assertion, and Phillips’s lack of awareness does not contradict the
    assertion in Boyd’s affidavit that such measures, in fact, existed. Accordingly, no
    genuine issue exists with regard to fire-safety measures.
    Regarding the other conditions of confinement, whether considered
    individually or in combination, we conclude that Ivory has not put forward specific
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    facts by which we could conclude that a reasonable jury could find the challenged
    conditions so objectively “serious” or “extreme” as to pose an unreasonable risk of
    serious harm to Ivory’s future health or safety. See 
    Chandler, 379 F.3d at 1289
    .
    While the allegations are troubling, the evidence regarding the temperature,
    ventilation, overcrowding, and supervision at Easterling fails to identify with
    specificity the nature of the conditions and their impact on Ivory’s health or safety.
    In any case, even if Ivory had established an “excessive risk to inmate health
    or safety,” liability cannot be imposed “solely because of the presence of
    objectively inhumane prison conditions.” 
    Farmer, 511 U.S. at 838
    , 114 S. Ct. at
    1979. Ivory has not alleged any specific facts or produced any evidence indicating
    that the named defendants, Bentley and Thomas, subjectively knew of and
    disregarded a substantial risk so as to make out an Eighth Amendment claim. See
    
    Chandler, 379 F.3d at 1289
    -90. Ivory’s contention that the conditions were so
    obvious that the defendants had to have known about them is insufficient without
    some proof of actual knowledge or circumstantial evidence by which such an
    inference of knowledge could be drawn. See 
    Farmer, 511 U.S. at 841-43
    , 114 S.
    Ct. at 1981-82. Although the defendants may have known of similar conditions in
    Alabama prisons generally as a result of other litigation or newspaper articles,
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    there is nothing in the record to show that Bentley and Thomas knew of the
    specific conditions at Easterling challenged by Ivory. 5
    C.
    Prisoners have a constitutional right of access to the courts. Bounds v.
    Smith, 
    430 U.S. 817
    , 821, 
    97 S. Ct. 1491
    , 1494 (1977). This right “requires prison
    authorities to assist inmates in the preparation and filing of meaningful legal papers
    by providing prisoners with adequate law libraries or adequate assistance from
    persons trained in the law.” 
    Id. at 828,
    97 S. Ct. at 1498. But in order to establish
    a violation of that right, “a prisoner must show an actual injury,” a requirement that
    derives from the doctrine of standing. Lewis v. Casey, 
    518 U.S. 343
    , 349, 116 S.
    Ct. 2174, 2179 (1996).
    We have explained that “[a]ctual injury may be established by
    demonstrating that an inmate’s efforts to pursue a nonfrivolous claim were
    frustrated or impeded by a deficiency in the prison library or in a legal assistance
    program or by an official’s action.” Barbour v. Haley, 
    471 F.3d 1222
    , 1225 (11th
    Cir. 2006). General factual allegations of injury will not suffice at the summary-
    judgment stage; rather the plaintiff “must set forth by affidavit or other evidence
    5
    To the extent that Ivory challenges the conditions at ADOC facilities generally, he
    lacks standing to do so because there is no evidence that other facilities present a substantial risk
    to Ivory’s health or safety. See 
    Helling, 509 U.S. at 33
    -34, 113 S. Ct. at 2480-81; McGowan v.
    Maryland, 
    366 U.S. 420
    , 430, 
    81 S. Ct. 1101
    , 1107 (1961) (litigants have standing to assert only
    their own constitutional rights).
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    specific facts, which for purposes of the summary judgment motion will be taken
    to be true.” 
    Id. (citation omitted).
    Ivory has not demonstrated that he was denied access to courts because he
    has presented no evidence showing that he was denied the capability of pursuing
    his claims in federal or state court, and thus sustained an actual injury. See 
    Lewis, 518 U.S. at 349
    , 116 S. Ct. at 2179; 
    Barbour, 471 F.3d at 1225
    . Rather, Ivory fully
    participated in the instant action, filing responses to the defendants’ summary
    judgment motion, objections to the magistrate judge’s report and recommendation,
    and a motion to alter, amend, or reconsider the district court’s order granting
    summary judgment to defendants. To the extent that Ivory claims to have suffered
    actual injury in connection with post-conviction proceedings concerning his arrest
    and conviction over fifteen years ago, he has not identified any way in which the
    asserted denial of his access to courts injured his prosecution of these post-
    conviction proceedings. Nor has Ivory offered any evidence to substantiate his
    assertion that prison authorities retaliated against him for pursuing a meritorious
    claim by burning down the law library. Therefore, the district court did not err in
    granting summary judgment on Ivory’s access-to-courts claim.
    IV.
    In short, we affirm the grant of summary judgment in favor of Bentley and
    Thomas.
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    AFFIRMED.
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