The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 4, 2010
No. 09-15790
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-00835-CV-CAM-1
BRIAN LESLIE YOUNG,
Plaintiff-Appellant,
versus
JOE NICHOLS, et al.,
Defendants,
JOHN OR JANE DOE,
Chairman of the Board of
Commissioners of Newton County,
JOHN OR JANE DOE,
the Mail Clerk,
JANE DOE, I,
JANE DOE, II,
JOHN OR JANE DOE,
Medical Administrator,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 4, 2010)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Brian Leslie Young, a Georgia prisoner, appeals pro se the order granting
summary judgment to former Sheriff Joe Nichols, Captain Marty Roberts,
Lieutenant Darrell Goodman, Sergeant Sonya Benton, Officer Joseph Lightsey,
Sergeant Brice D. Smith, Deputy Michael Lewis, and Deputy M. Kennard
(“Appellees”),1 all of whom were, at relevant times, personnel at the Newton
County Detention Center (“NCDC”).
Young sued under 42 U.S.C. § 1983, seeking injunctive relief and
compensatory and punitive damages for a number of alleged constitutional
violations pertaining to Appellee’s actions during Young’s recuperation from
surgery and to the NCDC’s policy prohibiting inmates from receiving printed
materials directly from publishers. The district court conducted a frivolity review
1
Young also sued Nurse Terri Mostek, Nurse Judy Graves, and Dr. Ted Schock. The
district court granted summary judgment in favor of these defendants. Young does not appeal
that order.
2
of Young’s complaint pursuant to 28 U.S.C. § 1915A and allowed only the
following claims to proceed: that Appellees (1) denied Young crutches after his
surgery, despite the fact that crutches had been prescribed for him; (2) required
Young to perform tasks after his surgery that caused him extreme pain; and (3)
prevented Young from receiving newspapers, magazines, or books directly from
publishers. Following the court’s frivolity review, Young moved for leave to
amend his complaint; the court granted in part and denied in part. Young then
filed a second motion for leave to amend his complaint, which the court denied.
Finally, the court granted Appellees’ motion for summary judgment.
Young raises three arguments on appeal. First, he contends that the district
court erred by denying his second motion for leave to amend his complaint.
Second, he argues that the district court erred by granting Appellees’ motion for
summary judgment based on Young’s failure to establish that they were
deliberately indifferent to his health and safety, in violation of his Eighth
Amendment rights. Finally, he contends that the district court erred by granting
Appellees’ motion for summary judgment based on Young’s failure to show that
the NCDC regulation prohibiting inmates from receiving newspapers and
periodicals directly from publishers violated Young’s clearly established First
Amendment rights.
3
Young’s First Amendment claim is moot for the reasons explained below;
therefore, we decline to consider that claim. Otherwise, we affirm.
I.
Young sued NCDC employees for violating his First Amendment rights by
preventing him from receiving newspapers, magazines, or books directly from
publishers. But because Young was transferred from NCDC to another
correctional facility on May 22, 2007, he is no longer subject to NCDC
regulations. Moreover, as Defendant Nichols stated in his affidavit—and as the
district court recognized in its summary judgment order—the NCDC policy at
issue has been revoked.
Though damages claims can save a § 1983 claim from mootness, they do so
only when the plaintiff asserts a procedural due process claim. DA Mortg., Inc. v.
City of Miami Beach, 486 F.3d 1254, 1259, 1260 (11th Cir. 2007) (citing Carey v.
Piphus, 435 U.S. 247, 266–67, 98 S. Ct. 1042, 1054 (1978)). Because Young does
not allege a procedural due process violation, his prayer for damages does not save
his claim from mootness. See id. Young’s First Amendment claim is, therefore,
moot.
II.
4
We review a district court’s denial of a motion to amend a complaint for an
abuse of discretion, but we review the underlying legal conclusion of whether a
particular amendment would be futile de novo. Corsello v. Lincare, Inc., 428 F.3d
1008, 1012 (11th Cir. 2005) (per curiam) (citations omitted).
Young argues the district court abused its discretion by denying his second
motion for leave to amend his complaint to add the following claims:2 (1) that the
Newton County Board of Commissioners (“the Board”), the Chairman of the
Board (“the Chairman”), and Sheriff Nichols were legally responsible for ensuring
that the NCDC was properly staffed and furnished; (2) that the Board and the
Chairman were directly responsible for Young’s heel injuries sustained from a
fight in the NCDC lunch room because they failed to provide enough chairs,
which caused the inmates to fight over a place to sit and eat their meals; and (3)
that the Board and Sheriff Nichols were directly responsible for Young’s injuries
both because they failed to supervise adequately the NCDC officers, who knew or
2
Young raises other substantive claims on appeal that the district court denied in one or
both of its orders on Young’s motions for leave to amend. Young does not argue in his brief,
however, that the district court erred in denying these claims. Though we read pleadings and
briefs filed by pro se litigants liberally, we do not have “license to serve as de facto counsel for a
party . . . or to rewrite an otherwise deficient pleading in order to sustain an action.” GJR Invs.,
Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted) (overruled on
other grounds). Because Young has not challenged the district court’s denial of these claims, the
propriety of those denials and the substantive claims implicated thereby are not before this Court.
See Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1308–09 (11th Cir. 2007) (citing
Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994)).
5
should have known that the inmate who attacked Young was violent and
dangerous, and because they failed to protect Young.3
Once amendment as a matter of course is no longer an option, a party may
amend his pleading “only with the opposing party’s written consent or the court’s
leave,” and “[t]he court should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2). However, the court need not “allow an amendment . . . where
amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir.
2001) (per curiam) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230
(1962)).
Plaintiffs may not sue supervisory officials under § 1983 on the basis of
respondeat superior or vicarious liability. Keating v. City of Miami, 598 F.3d 753,
762 (11th Cir. 2010) (citing Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th
Cir. 1994) (citations omitted)). But supervisory liability is appropriate under §
1983 “‘either when the supervisor personally participates in the alleged
constitutional violation or when there is a causal connection between actions of
the supervising official and the alleged constitutional violation.’” Id. (quoting
3
Appellees argue that the Court lacks jurisdiction to consider this claim because Young’s
notice of appeal designated that he sought to appeal only the district court’s order granting
summary judgment. This contention is without merit because “the appeal from a final judgment
draws in question all prior non-final orders and rulings which produced the judgment.” See
Barfield v. Brierton, 883 F.2d 923, 930 (11th Cir. 1989) (citing Jones v. Preuit & Mauldin, 808
F.2d 1435, 1438 n.1 (11th Cir. 1987)).
6
Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (citations omitted)).
Facts sufficient to establish a causal connection include those “‘which support an
inference that the supervisor directed the subordinates to act unlawfully or knew
that the subordinates would act unlawfully and failed to stop them from doing
so.’” Id. (quoting Gonzalez, 325 F.3d at 1235).
Because the Board, the Chairman, and Sheriff Nichols are immune from §
1983 liability based on the theory of respondeat superior, Young’s task was to
allege facts establishing their personal participation in the alleged constitutional
violations or a causal connection between their supervisory acts and the alleged
constitutional violations. See id. (citing Gonzalez, 325 F.3d at 1234). Young
presented no evidence indicating the Board, the Chairman, or Sheriff Nichols
personally participated in the acts alleged in his complaint, nor did he present
evidence that they directed their subordinates to act unlawfully or knew that the
subordinates would act unlawfully and failed to stop them from doing so. Absent
such evidence, Young was unable to set forth a sufficient basis for § 1983 liability,
and his proposed claims were futile. See id. Consequently, the district court did
not abuse its discretion by denying Young’s second motion for leave to amend his
complaint. See Bryant, 252 F.3d at 1163.
III.
7
We review a grant of summary judgment de novo. See, e.g., Penley v.
Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (citation omitted). Summary
judgment is appropriate only when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c)(2). We “must view all evidence and make any ‘reasonable
inferences that might be drawn therefrom in the light most favorable to the non-
moving party.’” Penley, 605 F.3d at 848 (quotation omitted).
When a district court’s grant of summary judgment is based on qualified
immunity,4 we must determine “whether the defendant is entitled to qualified
immunity under that version of the facts.” Crenshaw v. Lister, 556 F.3d 1283,
1289 (11th Cir. 2009) (per curiam) (citing Lee v. Ferraro, 284 F.3d 1188, 1190
(11th Cir. 2002) (citations omitted)). We take this approach because we must
determine “not which facts the parties might be able to prove, but, rather, whether
or not certain given facts showed a violation of clearly established law.” Id.
Qualified immunity protects government officials from liability in § 1983
actions as long “as their conduct does not violate clearly established statutory or
4
The district court ruled that Young’s claims against Appellees in their official capacities
were barred by the Eleventh Amendment. Because Young makes no arguments with respect to
this ruling, his official capacity claims are deemed abandoned. See Thompkins, 476 F.3d at 1309
(citing Swann, 27 F.3d at 1542).
8
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). To receive qualified
immunity, the officer must first show that he acted within his discretionary
authority. Ferraro, 284 F.3d at 1194 (citing Courson v. McMillian, 939 F.2d
1479, 1487 (11th Cir. 1991) (citation omitted)). Once the officer establishes
discretionary authority, the burden then shifts to the plaintiff to show that qualified
immunity should not apply. Id.
This Court uses a two-part inquiry to analyze the affirmative defense of
qualified immunity. Boyce v. Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007) (per
curiam) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001)).
We consider first, whether the alleged facts show that the government actor
violated a constitutional right, and second, whether that constitutional right was
clearly established at the time of the violation. Id.
A right is clearly established for qualified immunity purposes if “(1) case
law with indistinguishable facts clearly establish[es] the constitutional right; (2) a
broad statement of principle within the Constitution, statute, or case law . . .
clearly establishes a constitutional right; or (3) conduct [was] so egregious that a
constitutional right was clearly violated, even in the total absence of case law.”
Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009)
9
(citations omitted). “The intention is to ‘ensure that before they are subjected to
suit, officers are on notice that their conduct is unlawful.’” Id. at 1291 (quoting
Saucier, 533 U.S. at 206, 121 S.Ct. at 2158). Accordingly, if the violated right
was not clearly established, qualified immunity still applies. Id.
Young does not dispute that Appellees were acting within their
discretionary authority; therefore, he must show that qualified immunity does not
apply. See Ferraro, 284 F.3d at 1194. Our analysis now turns to whether
Appellees violated Young’s constitutional rights and whether those rights were
clearly established at the time Appellees violated them. See Boyce, 510 F.3d at
1341.
Young contends that NCDC officials violated his Eighth and Fourteenth
Amendment rights by (1) denying him crutches after his heel surgery, despite the
fact that crutches had been ordered for him, and (2) forcing him to perform tasks
that caused him extreme pain after surgery.5
5
Among other claims, Young also argues that Appellees used excessive force in breaking
up the fight that led to Young’s injuries and acted with deliberate indifference by (1) forcing him
into a hot shower after being sprayed in the face with pepper spray but before receiving treatment
for his newly broken heel, (2) forcing him to use the stairs on crutches, (3) handcuffing him, (4)
denying him proper exercise, (5) handcuffing his hands to belly chains and making him hobble
on one leg to and from a vehicle to visit a doctor, (6) moving him prematurely from the medical
ward to the general population, and (7) denying him a shower chair. But these claims are not
appealable because they were not raised before the district court, did not survive the 28 U.S.C. §
1915A frivolity screening, or were included in proposed amendments that the district court
denied.
10
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious
harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 828, 114 S. Ct. 1970, 1974 (1994). Accordingly, to have survived summary
judgment on his claim, Young “was required to produce sufficient evidence of (1)
a substantial risk of serious harm; (2) the defendants’ deliberate indifference to
that risk; and (3) causation.” See Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582
(11th Cir. 1995) (citations omitted).
We first address Young’s claim that Appellees acted with deliberate
indifference by denying him crutches after his heel surgery, despite the fact that
crutches had been ordered for him. The record shows that, during the relevant
period after Young’s injury, he received extensive medical care and utilized the
crutches prescribed to him. Medical records note that Young attended regular
check-ups on crutches and document his progress on crutches from his surgery on
July 28, 2006, until November, 21, 2006, when he was advised by his treating
orthopedist that he should, “over the next few weeks,” discontinue using crutches.
The record indicates, however, that Young continued to use crutches until
January10, 2007, when the Health Services Administrator at NCDC obtained
information about Young’s weight-bearing status from the orthopedist’s office and
relayed that information to NCDC security personnel. Appellees swore in
11
affidavits that at no point during that period did they deny Young access to
crutches. On this record, Young did not establish that Appellees6 acted with
deliberate indifference by denying him access to crutches, and the district court
properly granted summary judgment as to this claim. See Hale, 50 F.3d at 1582.
Next we consider Young’s assertion that Appellees showed deliberate
indifference by forcing him to perform tasks after surgery that caused him extreme
pain. Young points to only one incident to support this claim—that Appellees
forced him to clean his cell on one leg. As an initial matter, Young has failed to
show how cleaning his cell exposed him to a substantial risk of serious harm.
Second, Appellees swore in affidavits that they did not force Young to perform
manual tasks or physical labor in the period surrounding his surgery, which
suggests that they took no action exhibiting deliberate indifference. Finally,
Young has not demonstrated that cleaning his cell caused any further injury or
worsened his existing injury. Because he did not meet the summary judgment
standard with respect to this claim, the district court properly granted summary
judgment. See Hale, 50 F.3d at 1582.
6
Young states in his answers to interrogatories that a Corporal Collins instructed him that
he could use crutches as far as the door to D-1 but no further. Collins is not, however, a
defendant in this suit.
12
IV.
The district court did not abuse its discretion by denying Young’s second
motion for leave to amend his complaint. Because Young did not allege facts
sufficient to establish supervisory liability under § 1983, his amendment would
have been futile.
Additionally, summary judgment was appropriate because Young did not
demonstrate that Appellees violated his Eighth Amendment rights by acting with
deliberate indifference toward a substantial risk of serious harm during his
recuperation from surgery.
AFFIRMED.
13