Brush v. Burgess , 177 F. App'x 805 ( 2006 )


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  •                                                                           FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    May 1, 2006
    TENTH CIRCUIT                         Elisabeth A. Shumaker
    Clerk of Court
    PETER JAMES BRUSH,
    Plaintiff-Appellant,
    v.                                                    No. 05-6301
    MIKE BURGESS and TERRAL                       (D.C. No. CIV-04-0491-HE)
    PERRY,                                            (W. D. Oklahoma)
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
    therefore, ordered submitted without oral argument.
    Peter Brush, an Oklahoma state prisoner appearing pro se, appeals the
    district court’s grant of summary judgment in favor of Custer County Sheriff
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Mike Burgess and Undersheriff Terral Perry on Brush’s 
    42 U.S.C. § 1983
    complaint. Brush primarily alleged that: (1) Sheriff Burgess and Undersheriff
    Perry were deliberately indifferent to his safety in violation of the Eighth and
    Fourteenth Amendments because an inmate assaulted him while he was in custody
    as a pretrial detainee at the Custer County Jail; and (2) his placement in
    segregation at the Clinton City Jail following the assault violated his Fourteenth
    Amendment due process and equal protection rights. Brush requested actual and
    punitive damages for his injuries, as well as an order capping the Custer County
    Jail population and requiring additional personnel and cameras to monitor the cell
    blocks. We exercise jurisdiction pursuant to 
    28 U.S.C. § 1291
     and affirm.
    I.
    On April 20, 2003, during Brush’s pretrial detainment at the Custer County
    Jail, Brush suffered wounds to his face and head as a result of an altercation with
    another inmate over a food tray. The jail officer on duty instructed both inmates
    to stop fighting, but was forced to call for back-up in order to subdue them. After
    Brush received medical treatment at a local hospital, he was transferred to the
    Clinton City Jail. Brush was placed in segregation at the Clinton City Jail for
    approximately three weeks. 1
    1
    The record reflects that Brush is currently incarcerated at the Howard
    McLeod Correctional Center in Atoka, Oklahoma.
    -2-
    II.
    “We review the grant or denial of summary judgment de novo, applying the
    same legal standard used by the district court.” Bennett v. Coors Brewing Co.,
    
    189 F.3d 1221
    , 1227 (10th Cir. 1999). Summary judgment is appropriate “if the
    pleadings, depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no genuine issue as to any
    material fact and that the moving party is entitled to judgment as a matter of law.”
    Fed. R. Civ. P. 56(c).
    The magistrate judge issued a report and recommendation, recommending
    the entry of summary judgment in favor of Sheriff Burgess and Undersheriff
    Perry in their official and individual capacities. Specifically, the magistrate judge
    concluded that Brush did not establish that Sheriff Burgess and Undersheriff
    Perry were deliberately indifferent to his safety because Brush never informed
    them that he feared for his safety, Brush’s allegation that the other inmate had a
    violent history was conclusory, and Brush acknowledged in deposition that the
    fight “was spur of the moment.” Additionally, the magistrate judge reasoned that
    Brush failed to offer evidence connecting the wrongs he complained of to a
    custom or policy of Custer County. As regards Brush’s due process and equal
    protection claims, the magistrate judge noted that Brush’s summary judgment
    response brief made only a single reference to his brief segregation at the Clinton
    City Jail, and thus, Brush failed to provide sufficient factual support and
    -3-
    argument for his claims. Lastly, the magistrate judge concluded that Brush’s
    claims for injunctive relief were moot because he no longer resided at the Custer
    County Jail. After conducting a de novo review, the district court adopted the
    report and recommendation of the magistrate judge.
    On appeal, Brush raises only two arguments. 2 First, Brush argues that
    Sheriff Burgess and Undersheriff Perry violated his due process rights when they
    failed to house him separately from the inmate who assaulted him. Brush claims
    that the Custer County Jail’s policy mandates that “unsentenced prisoners shall be
    separated from sentenced prisoners.” He suggests that the assault would not have
    occurred if Sheriff Burgess and Undersheriff Perry had followed this policy
    because the inmate who assaulted him was a sentenced prisoner. We reject
    Brush’s argument because the Custer County Jail policy does not require pretrial
    detainees to be separated from sentenced prisoners. The applicable regulation
    provides: “Unsentenced prisoners shall be separated from sentenced prisoners, to
    the extent possible, and shall be permitted whatever confinement is least
    restrictive unless prisoner behavior or other security considerations dictate
    otherwise.” 
    Okla. Admin. Code § 310:670-5-5
     (2005) (emphasis added). 3
    Further, we note that Brush does not claim that Sheriff Burgess or Undersheriff
    2
    We agree with the magistrate judge’s application of the law and facts as to
    the claims Brush failed to raise on appeal.
    3
    The record indicates that the Custer County Jail utilizes this regulation as
    part of its policy and procedure regarding minimum jail standards.
    -4-
    Perry disregarded this regulation or otherwise failed to make a good faith effort to
    place him with other pretrial detainees.
    Second, Brush contends that Sheriff Burgess and Undersheriff Perry
    violated his due process and equal protection rights because he was neither
    advised of the reasons for his three weeks of administrative segregation at the
    Clinton City Jail, nor afforded an opportunity to challenge the propriety of his
    placement in segregation. In response, Sheriff Burgess and Undersheriff Perry
    assert that these claims must be dismissed for lack of personal participation. See
    Mitchell v. Maynard, 
    80 F.3d 1433
    , 1441 (10th Cir. 1996) (“Personal
    participation is an essential allegation to a § 1983 claim.”) (quotation omitted).
    We agree. Brush has not alleged that Sheriff Burgess and Undersheriff Perry
    operated or maintained the Clinton City Jail, let alone that either officer made the
    decision to place him in segregation at the Clinton City Jail. Rather, Brush has
    only alleged that Sheriff Burgess and Undersheriff Perry were responsible for the
    supervision of the Custer County Jail.
    AFFIRMED. We further remind Brush that he remains obligated to pay the
    appellate filing fee as required by 
    28 U.S.C. § 1915
    .
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    -5-
    

Document Info

Docket Number: 05-6301

Citation Numbers: 177 F. App'x 805

Judges: Briscoe, Henry, O'Brien

Filed Date: 5/1/2006

Precedential Status: Non-Precedential

Modified Date: 8/3/2023