Reginald Dunahue v. Wendy Kelley ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1691
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Reginald L. Dunahue
lllllllllllllllllllllPlaintiff - Appellant
v.
Wendy Kelley, Director, Arkansas Department of Correction; Marshall D. Reed,
Chief Deputy Director, Arkansas Department of Correction; Jeremy C. Andrews,
Warden, EARU, ADC; David Knott, III, Chief of Security, EARU, ADC; Jamin
M. Crawford, Shift Supervisor, EARU, ADC; S. Lane, Captain; James Dycus,
Deputy Warden; Kathy Baxter, Sergeant, EARU, ADC
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Helena
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Submitted: December 27, 2019
Filed: January 27, 2020
[Unpublished]
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
In this 42 U.S.C. § 1983 action, Reginald Dunahue, an inmate at the East
Arkansas Regional Unit (EARU) of the Arkansas Department of Corrections (ADC),
appeals the district court’s1 denial of his request for appointed counsel, preservice
dismissal of some of his claims, and adverse grant of summary judgment as to his
remaining claims. For the reasons stated below, we affirm.
In verified complaints, Dunahue named in their individual and official
capacities, ADC Director Kelley, ADC Deputy Director Reed, EARU Warden
Andrews, EARU Chief of Security Knott, EARU Shift Supervisor Crawford, EARU
Captain Lane, EARU Deputy Warden Dycus, and EARU Sergeant Baxter. He
claimed defendants failed to protect him from being stabbed by inmate Antonio
Smith, who had escaped a damaged “cage” in the recreation yard. Dunahue also
moved for appointment of counsel. The district court dismissed Dunahue’s claims
against Kelley, Reed, and Andrews under 28 U.S.C. § 1915A; denied Dunahue’s
motions for appointment of counsel; and later granted summary judgment in favor of
the remaining defendants, concluding that they were entitled to qualified immunity
because it was undisputed the attack on Dunahue was a “surprise.”
We first conclude that the district court did not abuse its discretion in denying
Dunahue’s motion for appointment of counsel. See Patterson v. Kelley, 902 F.3d
845, 849-50 (8th Cir. 2018) (denial of motion for appointment of counsel is reviewed
for abuse of discretion; pro se litigants have no right to appointed counsel).
We further conclude that the district court properly dismissed defendants
Kelley, Reed, and Andrews because Dunahue failed to allege facts indicating how
they were personally involved in any misconduct. See Cooper v. Schriro, 189 F.3d
781, 783 (8th Cir. 1999) (per curiam) (dismissal under § 1915A is reviewed de novo);
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District
of Arkansas.
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see also Beaulieu v. Ludeman, 690 F.3d 1017, 1030-31 (8th Cir. 2012) (supervisors
cannot be held vicariously liable under § 1983 for actions of subordinate; to state
claim, plaintiff must allege supervising official violated Constitution through their
individual actions). We also conclude that Dunahue’s failure-to-protect claims
against defendants Knott, Crawford, Lane, Dycus, and Baxter in their official
capacities were barred by the Eleventh Amendment. See Glasgow v. Neb. Dep’t of
Corr., 819 F.3d 436, 441 n. 5 (8th Cir. 2016) (Eleventh Amendment prohibits suits
for damages against state officials in their official capacities).
Finally, we uphold the district court’s grant of summary judgment as to
Dunahue’s individual-capacity failure-to-protect claims against the remaining
defendants based on qualified immunity. See Moyle v. Anderson, 571 F.3d 814, 817
(8th Cir. 2009) (grant of summary judgment is reviewed de novo; summary judgment
is appropriate when evidence viewed in light most favorable to non-movant presents
no genuine issue of material fact and movant is entitled to judgment as matter of law).
“We have held in a number of cases that prison officials are entitled to qualified
immunity from § 1983 damage actions premised on an Eighth Amendment
failure-to-protect theory when an inmate was injured in a surprise attack by another
inmate.” Curry v. Crist, 226 F.3d 974, 978-79 (8th Cir. 2000) (citing cases).
Because there is nothing in the record to indicate that Dunahue was exposed to a
substantial risk of serious harm, or that the defendants acted with deliberate
indifference, we find that summary judgment was proper. See Farmer v. Brennan,
511 U.S. 825, 833-38 (1994) (prison officials have duty to protect prisoners from
violence by other inmates; prison official violates Eighth Amendment only when (1)
condition poses objective and substantial risk of serious harm, and (2) official knows
of, and disregards risk).
Accordingly, we affirm all aspects of the judgment, and we deny Dunahue’s
motion for appointment of counsel.
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