The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12909
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cv-00065-DHB-WLB
RODERICK MCKISSICK,
Plaintiff-Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants,
WARDEN,
DAVID SPIRES,
Captain,
RODNEY MCCLOUD,
Unit Manager,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(September 29, 2014)
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Before WILSON, ROSENBAUM, and FAY, Circuit Judges.
PER CURIAM:
Roderick McKissick, a Georgia prisoner proceeding pro se, appeals the
district judge’s order granting three prison officials’ motion to dismiss his 42
U.S.C. § 1983 action. McKissick also has filed a motion for appointment of
counsel, which we construe as a motion for reconsideration of the denial of his
prior request for counsel in this court. We affirm the dismissal of McKissick’s
complaint and deny his motion for reconsideration.
I. BACKGROUND
In July 2012, McKissick, then an inmate at Telfair State Prison (“TSP”), 1
filed motions for leave to proceed in forma pauperis (“IFP”) and appointment of
counsel, and a pro se § 1983 civil rights complaint. McKissick’s complaint named
as defendants Georgia Department of Corrections (“GDC”) Commissioner Brian
Owens; TSP Warden David Frazier; Assistant Warden Rodney McCloud; Captain
David Spires; Deputy Wardens Dianne Dees, Samuel Sanders, and Annetta Toby;
and Officers White, Couley, and Davis. McKissick sought to raise eight claims for
relief, including (1) he had been housed in a shower for five days, in violation of
his rights to be free from cruel and unusual punishment and to equal protection;
(2) he had been denied adequate legal materials, in violation of his right of access
1
McKissick has been transferred to Macon State Prison.
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to the courts; (3) Kosher meals were improperly prepared, in violation of the Free
Exercise Clause; (4) grievances were investigated inadequately, in violation of his
right to due process; (5) food and tableware were handled in an unsanitary manner;
(6) cleaning materials were issued infrequently, in violation of his right to be free
from cruel and unusual punishment; (7) cells were ventilated inadequately, in
violation of the Eighth Amendment; and (8) he had been denied hygiene products,
in violation of the Eighth Amendment. The relief McKissick sought were
compensatory damages, a prison transfer, injunctive relief, and release from GDC
custody.
In his motion for appointment of counsel, McKissick alleged he could not
afford counsel, and his incarceration greatly limited his ability to litigate his case.
He also asserted the issues involved in his case were “extremely complex” and
would require “significant research and investigation.” R. at 25. McKissick
represents his case would involve conflicting testimony, and counsel was needed to
present evidence and cross-examine witnesses adequately. Moreover, McKissick
alleged he had limited access to the prison law library, and he had limited legal
knowledge.
A magistrate judge granted McKissick’s request for IFP status, subject to the
filing of additional financial documentation but denied McKissick’s motion for
appointment of counsel. Regarding McKissick’s request for counsel, the
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magistrate judge explained McKissick’s filings showed he was capable of
communicating with the court and presenting the essential merits of his position.
Moreover, McKissick’s concerns about evidence and witnesses were premature,
because the court had not yet screened his IFP complaint.2 The magistrate judge
advised McKissick could renew his request if it later became apparent counsel was
needed.
After McKissick filed a prisoner account statement and consented to the
collection of fees from his account, the magistrate judge issued a report and
recommendation (“R&R”) recommending that McKissick’s complaint be
dismissed for failure to state a claim. McKissick filed R&R objections, in which
he included several additional factual allegations in support of his claims.
Consequently, the magistrate judge directed McKissick to file an amended
complaint containing all claims he sought to have considered.
In January 2013, McKissick filed an amended complaint, in which he
asserted he was suing each defendant in his or her official capacity. He again
sought to raise eight claims. In Claim 1, McKissick alleged the defendants
violated his rights to be free from cruel and unusual punishment and to equal
2
A federal court must review a civil complaint filed by a prisoner to ensure it raises
cognizable claims and is not frivolous. See 28 U.S.C. § 1915A; see also 28 U.S.C.
§ 1915(e)(2)(B) (requiring a federal court to dismiss a case brought by a litigant proceeding IFP
if the action or appeal is frivolous, fails to state a claim, or seeks monetary relief against a
defendant who is immune from such relief).
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protection by housing him for five days in an unsanitary shower, in retaliation for
his refusal to be placed in the general population. In Claims 2 and 8, McKissick
asserted the defendants unlawfully restricted his legal mail and deprived him of
adequate legal supplies and research materials, in violation of his rights to due
process and access to the courts. In his remaining claims, which are not at issue on
appeal, McKissick again alleged violations of his religious rights and prison
grievance procedures, mishandling of food and tableware, unsanitary conditions in
segregation cells, inadequate ventilation, and deprivation of hygiene products.
McKissick alleged the following facts in support of his first claim. On
February 10, 2012, Warden Frazier asked McKissick why he was “refusing
population.” R. at 159. McKissick responded he had enemies in the prison. The
warden asked whether McKissick thought he and other inmates were running the
prison. McKissick stated he did not run anything and suggested the warden could
transfer him to another prison. Warden Frazier responded with a series of crude
comments stating prisoners were not in charge of the prison, and he would teach
them “about playing games” by requiring them to stay in the showers. R. at 160.
Warden Frazier then told several officers, including Unit Manager McCloud and
Captain Spires, to put McKissick and other inmates in the showers until further
notice. None of the officers objected.
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Later that day, Captain Spires escorted McKissick to the F-1 dormitory,
where Unit Manager McCloud told Captain Spires to put McKissick in a “top
shower.” R. at 160. When they arrived at the shower, McKissick objected it was
“nasty.” R. at 161. He asked whether Captain Spires was aware housing inmates
in showers for an extended period of time violated prison policy and the United
States Constitution. Captain Spires responded: “Well, we don’t have that down
here.” R. at 161.
McKissick attached 150 exhibits to his complaint and included in the
complaint a brief description of each exhibit. 3 In several of these descriptions,
McKissick alleged (1) he had been housed in a shower “around human waste,” and
“in the proximity of other humans’ waste,” which included semen, feces, blood,
phlegm, and urine, R. at 161-62; (2) the showers had no toilets or sinks;
(3) McKissick had to “eat, sleep, urinate and defecate” in the shower, R. at 162;
and (4) he had informed several prison officials of these conditions.
One of the exhibits to McKissick’s amended complaint was a February 21,
2012, grievance complaining of his confinement in the shower. The response to
the grievance, which appears to have been signed by Warden Frazier, stated:
3
The exhibits included (1) various prison grievances, witness statements, affidavits,
inmate requests, and appeals filed by McKissick and the responses to those submissions; (2) a
prison memorandum assigning McKissick to the “F-1 shower,” R. at 199; (3) request forms for
legal documents, Open Records Act inquiries, and indigent postage; and (4) lists of prohibited
items, commissary items, and property inventories.
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When you arrived at Telfair S.P., you were assigned to E2-12
[illegible]. You did not know the identity of the other inmates
assigned to the dorm because you never reported to it. You were
placed in a segregation shower, pending bed space in the admin/seg
unit. Cleaning supplies & chemicals are issued to admin/seg inmates
every Tuesday and Thursday. It is your responsibility to clean your
living quarters.
R. at 194.
As to his claims regarding legal materials, McKissick alleged various
officials impeded his access to legal mail and law library materials and failed to
respond adequately to his Open Records Act requests, his requests for legal
postage, and his complaints about his limited access to legal materials. McKissick
requested one form of relief in his amended complaint: $3 million in compensatory
damages for the “pain and suffering” he had been “forced to endure . . . in the
overall situation for over 10 months.” R. at 190.
The magistrate judge issued an order concluding McKissick’s claims were
individual-capacity claims, notwithstanding his assertion he was suing the
defendants in their official capacities. The magistrate judge also found McKissick
arguably had stated a viable claim for deliberate indifference against Warden
Frazier, Unit Manager McCloud, and Captain Spires, based on his alleged five-day
confinement in the prison showers. Consequently, the magistrate judge ordered
service of process to be effected on those three defendants.
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The magistrate judge simultaneously issued an R&R recommending that
McKissick’s remaining claims be dismissed. The magistrate judge determined
McKissick’s remaining claims against Warden Frazier and his only claim against
Commissioner Owens each failed, because they sought to impose supervisory
liability without a causal connection. McKissick had not stated claims against
Deputy Wardens Dees, Sanders, and Toby, because he also had not shown a causal
connection between any of their actions and his alleged constitutional deprivations.
The magistrate judge concluded McKissick had not stated an Eighth
Amendment claim regarding any of his remaining conditions-of-confinement
allegations, including those concerning meal preparation and unsanitary and
inadequately ventilated cells. McKissick’s claim based on access to legal materials
failed because he had alleged no injury to a non-frivolous legal action caused by
any defendants. He also had alleged insufficient facts to state § 1983 retaliation or
a conspiracy claim against any defendant. McKissick likewise had failed to state
claims based on the mishandling of grievances, religious issues, and deprivation of
property.
McKissick filed R&R objections, in which he repeated many of his prior
allegations. He also explained he previously had requested appointed counsel,
because of the severe limitations on his access to legal-research materials, office
supplies, and postage. The district judge adopted the R&R over McKissick’s
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objections and dismissed all claims other than his shower-confinement claims
against Warden Frazier, Unit Manager McCloud, and Captain Spires (the
“defendants”).
The defendants filed a pre-answer motion to dismiss and argued McKissick
had alleged no adverse consequences resulting from his confinement in the
showers, which was fatal to his Eighth Amendment claim. Because McKissick
had alleged no physical injury, his action also was barred by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), whether he sought compensatory or
nominal damages. The defendants alternatively contended they were entitled to
qualified immunity, because they were acting within their discretionary authority,
and their alleged actions did not violate clearly established law.
McKissick opposed the defendants’ motion to dismiss. Responding to their
claim that he had not alleged an injury, McKissick asserted: “The malicious
infliction of cruel and unusual punishment is irreparable injury unto his
constitutional rights being atrocious[ly] denied, deprived and violated that there is
no healing from the constitutional violations at all.” R. at 495. McKissick also
challenged the defendants’ claim to qualified immunity. On the same day he
opposed the defendants’ motion to dismiss, McKissick filed motions (1) for an
order to direct defendants to answer his amended complaint and (2) to allow
discovery to proceed.
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The magistrate judge issued an R&R recommending the defendants’ motion
to dismiss be granted, and McKissick’s motions be denied as moot. The magistrate
judge concluded the defendants were entitled to qualified immunity. The
magistrate judge also highlighted that McKissick had alleged no injury resulting
from his confinement. Moreover, the magistrate judge noted, a response to
McKissick’s February 21, 2012, grievance stated McKissick had been given
cleaning supplies twice per week, while housed in the shower. McKissick filed a
sur-reply to the defendants’ motion to dismiss as well as R&R objections, in which
he reasserted several of his prior factual allegations and legal arguments.
The district judge adopted the R&R, granted the defendants’ motion to
dismiss, and denied as moot McKissick’s motions for discovery and to require the
defendants to file an answer. McKissick timely appealed; this court granted his
request for IFP status but denied his request for appointed counsel on April 1,
2014.
McKissick argues on appeal that the magistrate judge’s denial of appointed
counsel violated his right of access to the courts, since he was unable to prepare
adequate filings because of his inexperience and lack of legal materials. He
represented the magistrate judge was more concerned with having funds deducted
from McKissick’s account than with justice. He claims his request was denied
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unlawfully “as a strategic tactic to conspire with corrupt prison authorities.”
Appellant’s Br. at 2.
Regarding the dismissal of his complaint, McKissick argues he was
subjected to inhumane treatment, when he was confined in a shower surrounded by
human waste and other filth. He asserts the magistrate judge and district judge
violated his right to due process by failing to address his opposition to the
defendants’ motion to dismiss, failing to address his R&R objections, and failing to
review the exhibits to his complaint. McKissick also contends the district judge
contradicted an unidentified previous ruling concerning the unsanitary conditions
of his confinement. He argues the dismissal of his complaint showed the judge
was conspiring with the state to conceal unconstitutional activities and obstruct
justice. Defense counsel’s assertion, that harsh conditions are part of the penalty
paid by criminals, showed state officials have no concern for prisoners’ treatment.
McKissick’s brief also refers to the Racketeer Influenced and Corrupt
Organizations (“RICO”) Act, 18 U.S.C. §§ 1961-1968, but he does not explain
how or to whom it applies in this case. Finally, McKissick argues various
unidentified prison officials obstructed justice and violated several of his rights by
withholding legal postage and supplies from McKissick, who is indigent, and by
“delaying indigent legal mail process” until a filing deadline had expired, resulting
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in the district judge’s ruling on his claims with an incomplete record. Appellant’s
Br. at 5.
II. DISCUSSION
A. Motion for Reconsideration of Denial of Appointed Counsel
Because McKissick previously sought appointed counsel in this court, we
construe his second motion as seeking reconsideration of our prior denial of his
request for counsel. Cf. 11th Cir. R. 35-4(a) (stating we will construe a petition for
rehearing en banc of the denial of a motion for appointment of counsel as a motion
for reconsideration). A motion to reconsider, vacate, or modify an order must be
filed within 21 days of the entry of the order. 11th Cir. R. 27-2. McKissick’s
motion was filed on June 30, 2014, nearly three months after the April 1, 2014,
order denying appointed counsel, and he has not provided any information
explaining or justifying the delay. Therefore, his motion for reconsideration of our
denial of his request for counsel is denied as untimely. See id.
B. Magistrate Judge’s Denial of Request for Appointed Counsel
We review the denial of a motion for appointment of counsel for abuse of
discretion. Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013) (per
curiam). A plaintiff in a civil case has no constitutional right to counsel. Bass v.
Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). Under 28 U.S.C. § 1915(e)(1), a
judge may appoint counsel for an indigent plaintiff. 28 U.S.C. § 1915(e)(1); Bass,
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170 F.3d at 1320. Appointment of counsel in a civil case is a privilege requiring
exceptional circumstances, such as the presence of facts and legal issues so novel
or complex they require the assistance of a trained practitioner. Kilgo v. Ricks, 983
F.2d 189, 193 (11th Cir. 1993). The key is whether the pro se litigant needs
assistance presenting the essential merits of his case to the court. Id. The
following factors are considered when determining whether exceptional
circumstances exist: (1) the type and complexity of the case; (2) whether the
litigant is capable of adequately presenting his case; (3) whether the litigant is in a
position adequately to investigate his case; and (4) whether the evidence will
consist in large part of conflicting testimony requiring skill in the presentation of
evidence and in cross-examination. See Ulmer v. Chancellor, 691 F.2d 209, 213
(5th Cir. 1982) (incorporated by Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.
1990)).
In his initial complaint, McKissick listed eight separately delineated claims
for relief, and he identified the constitutional right applicable to seven of those
claims. He also identified the relief he sought. None of the claims in the initial
complaint appeared novel or complex. See Kilgo, 983 F.2d at 193. Although the
claims were largely conclusory, they did not evince an inability by McKissick to
communicate adequately with the court. See id.; Ulmer, 691 F.2d at 213.
McKissick alleged no facts in his motion or initial complaint suggesting substantial
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factual investigation would be needed. See Ulmer, 691 F.2d at 213. His assertions
concerning the need to present evidence and cross-examine witnesses were
premature, since the court had not yet screened his initial IFP complaint. See 28
U.S.C. §§ 1915(e)(2)(B), 1915A. Although McKissick provided additional factual
allegations regarding his prior request for counsel in his R&R objections, he never
renewed his request, despite the magistrate judge’s instruction that McKissick was
free to do so. McKissick has not shown an abuse of discretion in the denial of his
request for counsel.
C. Dismissal of McKissick’s Complaint
We review a district judge’s granting of a motion to dismiss de novo and
accept the allegations in the complaint as true and construe them in the light most
favorable to the plaintiff. See Timson v. Sampson, 518 F.3d 870, 872 (11th Cir.
2008). Compensatory damages under § 1983 may be awarded only for actual
injuries caused by the defendants’ illegal conduct and cannot be based on the
abstract value of the constitutional rights that were violated. Slicker v. Jackson,
215 F.3d 1225, 1230-31 (11th Cir. 2000); see Whiting v. Traylor, 85 F.3d 581, 586
& n.10 (11th Cir. 1996) (explaining recovery of § 1983 damages is limited to those
injuries proved to be caused by the defendants). Under the PLRA, a prisoner may
not bring a federal civil action for damages for mental or emotional injury suffered
while in custody absent a showing of physical injury. 42 U.S.C. § 1997e(e);
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Harris v. Garner, 190 F.3d 1279, 1287-88, 1290 (11th Cir.), vacated, 197 F.3d
1059 (11th Cir. 1999) (en banc), reinstated in relevant part, 216 F.3d 970, 972,
985 (11th Cir. 2000) (en banc).
We generally will not consider an issue that was not presented to the district
judge. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004). Although pro se briefs are to be construed liberally, a pro se litigant who
offers no substantive argument on an issue in his initial brief abandons that issue
on appeal. See Timson, 518 F.3d at 874. We may affirm on any ground that
appears in the record. Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th
Cir. 2012).
In his amended complaint, McKissick sought only one form of relief: $3
million in “compensatory damages” for unidentified “pain and suffering.” R. at
190. Regardless of whether he arguably alleged some mental or emotional injury,
McKissick has alleged no physical injury resulting from any of the defendants’
actions. Cf. Al-Amin v. Smith, 637 F.3d 1192, 1196-97 & n.5 (11th Cir. 2011)
(explaining that applying the physical-injury requirement only in cases in which a
plaintiff affirmatively has alleged mental or emotional injuries would lead to
illogical results). Even if nominal damages would be available in this case under
the PLRA, McKissick has abandoned any possible claim for them by failing to
raise this claim on appeal. See Timson, 518 F.3d at 874. He also has abandoned
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his equal-protection claim based on his confinement in a shower and all other
claims in his amended complaint by failing to address these issues on appeal. See
id.
The record directly refutes McKissick’s assertions the magistrate judge and
district judge failed to address his opposition to the defendants’ motion to dismiss
and his R&R objections. McKissick has not identified the prior decision he alleges
the district judge contradicted. Nor has he shown a right to relief based on his
conclusory assertions the district judge has conspired with the state and defense
counsel’s legal arguments show state officials have no concern for prisoners’
treatment. He has given no arguments concerning his brief reference to the RICO
Act, which he appears to have asserted for the first time on appeal. See id.; Access
Now, Inc., 385 F.3d at 1331. Accordingly, McKissick has not shown the district
judge erred when he dismissed his § 1983 claims. See 42 U.S.C. § 1997e(e);
Slicker, 215 F.3d at 1229; Harris, 190 F.3d at 1287-88.
D. Obstruction of Justice
McKissick’s obstruction-of-justice claims concerning the defendants’
conduct during the district court proceedings are not properly before us, because he
did not raise them before the district judge. See Access Now, Inc., 385 F.3d at
1331. In addition, McKissick has failed to identify the prison officials who
committed the alleged obstructive acts, and he has not explained what facts or
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arguments he was unable to present to the district judge as a result of any alleged
obstruction. See Timson, 518 F.3d at 874. McKissick thus has failed to show how
his obstruction-of-justice claims entitle him to relief on appeal. We affirm the
dismissal of McKissick’s amended complaint and deny his motion for
reconsideration of our prior denial of his request for counsel.
AFFIRMED; MOTION DENIED.
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