Siddiq Asad v. James v. Crosby

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 04-13825 NOVEMBER 9, 2005

Non-Argument Calendar THOMAS K. KAHN

________________________ CLERK

D. C. Docket No. 00-01283-CV-J-20-HTS

SIDDIQ ASAD,

Plaintiff-Appellant,

versus

JAMES CROSBY,

J. F. LINDSEY,

TOMMY BOSTON,

DANNY HERRING,

ALFRED W. BOETTJER, et al.,

Defendants-Appellees,

ALEX TAYLOR,

L.E. TURNER, et al.,

Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(November 9, 2005)

Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Siddiq Asad, a Florida state prisoner proceeding pro se, appeals the district

court’s dismissal, in part, and entry of summary judgment, in part, on his 42 U.S.C.

§ 1983 action, in which he alleged that officers at the Hamilton Correctional

Institution (“HCI”) violated his constitutional rights by prohibiting him from

praying under a stairwell at the facility. Asad also claimed, among other things,

that the defendants acted in furtherance of a conspiracy to retaliate against him

after he filed a grievance against Sergeant Tommy Boston.

On appeal, Asad argues the district court erred by (1) dismissing the

complaint as to Lieutenant Sandra Dupree based on Asad’s inability to effect

proper service; (2) dismissing, pursuant to Fed. R. Civ. P. 12(b)(6), Asad’s

supervisory liability claim against Secretary Michael W. Moore and

Superintendent L.E. Turner and his access-to-courts claim against Officer

Christopher M. Sapp;1 and (3) granting defendants’ second motion for summary

1

Asad also appeals the Rule 12(b)(6) dismissal of his claims for compensatory and punitive

damages. Pursuant to 42 U.S.C. § 1997e(e), “[n]o Federal action may be brought by a prisoner

confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while

in custody without a prior showing of physical injury.” Asad does not assert any actual physical

injury resulting from the defendants’ conduct. Accordingly, the district court did not err by

dismissing his claims for compensatory or punitive damages. Cf. Harris v. Garner, 216 F.3d 970,

984-85 (11th Cir. 2000) (en banc) (holding that “Federal civil action” in § 1997e(e) means all

federal claims, including constitutional claims), reinstating in part 190 F.3d 1279 (11th Cir. 1999).

To the extent that Asad is arguing that § 1997e(e) is inapplicable to his claim because he is not

alleging an emotional or mental injury, Asad’s failure to establish the violation of a fundamental

constitutional right precludes any type of recovery, including recovery for nominal damages. Cf.

2

judgment on Asad’s claim alleging a violation of his right to freely exercise his

religion and Asad’s due-process claim.2 After thorough review of the record and

the parties’ briefs, we affirm.

Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (holding that § 1997e(e) does not preclude

prisoner’s recovery of nominal damages, even in the absence of actual physicial injury, where

prisoner establishes violation of a fundamental constitutional right).

2

Asad’s argument that the district court erred by denying his motions for preliminary

injunction, in which he requested to be removed from close-management confinement, has been

rendered moot. In the district court, Asad acknowledged that on September 1, 2000 he was

transferred from HCI to Baker Correctional Institute (“ BCI”) to serve his close-management time

and, as of February 21, 2002, he was released from close management at BCI. Asad did not request

any injunctive relief, or assert any claims, against officials at BCI, and does not demonstrate a real

possibility that he might encounter the named defendants from HCI again at another correctional

institution. Cf. Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988) (holding that claims

regarding treatment at a facility at which prisoner was no longer incarcerated were moot); Zatler v.

Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) (affirming the dismissal of an inmate’s request for

injunctive relief as moot because at the time the district court rendered its decision, the inmate was

no longer incarcerated at the prison where the alleged constitutional deprivation occurred).

Moreover, Asad has not alleged any of the circumstances that would qualify him for any exception

to his claim being considered moot. See Bekier v. Bekier, 248 F.3d 1051, 1054, n.4 (11th Cir.

2001).

As for Asad’s argument that the district court erred by denying his motions for appointment

of counsel, we can find no abuse of discretion. Cf. United States v. Berger, 375 F.3d 1223, 1226

(11th Cir. 2004) (reviewing denial of motion for appointment of counsel for abuse of discretion).

We also summarily affirm the entry of summary judgment on Asad’s other administratively

exhausted claims. Based on our review of the district court’s thorough opinion, we are not

persuaded by Asad’s arguments that the district cout’s analysis of his retaliation, conspiracy, and

close-management claims was too general or should have been more thorough. The record is clear

that the district court carefully considered these claims and that the court’s consideration included

a review of Asad’s many exhibits. As for Asad’s argument concerning the entry of summary

judgment on his discrimination claim against Sergeant Glover, we are satisfied the district court’s

failure to address the claim does not warrant reversal given the district court’s analysis of Asad’s

identical claim, also based on an alleged racial epithet, against Sergeant Boston.

3

We review for abuse of discretion a district court’s ruling on dismissal for

failure to timely serve a summons and complaint. See Brown v. Nichols, 8 F.3d

770, 775 (11th Cir. 1993) (analyzing former Fed. R. Civ. P. 4(j)). We review de

novo the dismissal of a complaint pursuant to Rule12(b)(6). Rivera v. Leal, 359

F.3d 1350, 1353 (11th Cir. 2004). “Dismissal under Rule 12(b)(6), Fed. R. Civ. P.,

is appropriate ‘only if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations of the complaint.’”

Rendon v. Valley Crest Productions, Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002).

We review “a grant of summary judgment de novo, using the same legal

standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184

(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and

affidavits show that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (quoting Fed. R.

Civ. P. 56(c)). While the evidence, and all inferences drawn from the facts, must

be viewed in the light most favorable to the non-moving party, in order to defeat

summary judgment, the non-moving party “must do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

4

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed.

2d 538 (1986).

The relevant facts are straightforward and largely undisputed. On November

27, 2000, Asad filed this action, naming sixteen defendants3 and alleging that: (1)

the defendants violated his constitutional right to freely exercise his religion by

preventing him from praying under a stairwell at HCI; (2) certain defendants were

liable to him under the doctrine of supervisory liability; (3) he received false

disciplinary reports in retaliation for his filing grievances; (4) the defendants

conspired to prevent him from praying under the stairwell; and (5) the defendants

violated his constitutional right to access the courts and his right to due process. In

support of his complaint, which exceeded 50 pages, Asad filed over 100 pages of

exhibits, the majority of which were copies of grievances he filed and the officers’

responses to them, along with disciplinary reports and hearings he received.

As for the claims pertinent to this appeal, Asad alleged the following. After

Asad filed a grievance against Sergeant Boston, in which he claimed that Boston

told Asad not to look at Boston’s face, Boston retaliated against Asad by forming a

3

Asad subsequently filed an amended complaint against the following defendants: Michael

W. Moore, Secretary of the Florida Department of Corrections (“FDOC”); HCI Superintendent L.E.

Turner; HCI Colonel J.F. Lindsey; HCI Administrative Lieutenant Sandra L. Dupree; HCI Sergeants

Tommy Boston, Danny Herring, Alfred W. Boettjer, John T. Santerfeit, Allen L. Smith, and Jeffrey

A. Glover; and HCI Correctional Officers Christopher M. Sapp, Mark Register, and John Stepp.

5

conspiracy against him that included Officers Sapp and Register and Asad’s fellow

inmates, all of whom harassed him. The conspiracy also included: (1) Sergeants

Herring and Boettjer, who filed disciplinary reports against Asad for praying under

the stairwell; (2) Sergeant Santerfeit, who filed a disciplinary report stating that

Asad lied to him by claiming that Sergeant Boston gave Asad permission to pray

under the stairwell; (3) Sergeant Smith, who filed disciplinary reports against Asad

for praying under the stairwell; and (4) Sergeant Glover, who filed an allegedly

false disciplinary report against Asad for praying under the stairwell and who

verbally attacked Asad by calling him a “nigger.”

In his complaint, Asad further alleged that Colonel Lindsey and Officer

Stepp took part in a related conspiracy to place Asad in close-management

confinement. Also according to Asad’s complaint, Officer Sapp, in addition to

participating in the conspiracy, hindered Asad’s access to the courts by

confiscating portions of Asad’s complaint pertaining to Officer Sapp and his

friends, which delayed Asad’s filing of the instant action. Finally, Asad asserted

that Secretary Moore and Superintendent Turner were liable to him under the

doctrine of supervisory liability because they failed (1) to properly train and

supervise their subordinates; (2) to take adequate measures to cure the

6

constitutional violations against Asad; and (3) to afford Asad relief during the

grievance process.

In his request for relief, Asad asked the district court to issue a declaratory

judgment that each defendant violated Asad’s constitutional rights and requiring

each defendant to submit a written apology admitting his/her role and guilt in the

violation of his constitutional rights. Asad also requested injunctive relief and

compensatory and punitive damages exceeding $2 million.

The defendants subsequently filed a partial motion to dismiss and a motion

for summary judgment. The district court granted the motion to dismiss as to

Secretary Moore and Superintendent Turner after finding that Asad could not

recover under respondeat superior because he did not allege any affirmative casual

connection between Moore or Turner and any constitutional deprivation suffered.

The district court also dismissed Asad’s access-to-courts claim against Officer

Sapp, based on Asad’s failure to allege a sufficient injury to establish the claim,

and Asad’s requests for compensatory and punitive damages because they were

foreclosed by 42 U.S.C. § 1997e(e).

After the partial dismissal of the amended complaint, Asad filed a second

amended complaint in which he dropped defendants Moore, Turner, and Sapp. He

sought injunctive relief and monetary damages, and alleged that the remaining ten

7

defendants violated: (1) the Free Exercise Clause of the First Amendment of the

United States Constitution; (2) Article I, Section Three of the Florida Constitution;

(3) the 2000 Religious Land Use and Institutionalized Persons Act; (4) the Florida

Religious Freedom Restoration Act of 1998; (5) the Petition Clause of the First

Amendment of the United States Constitution and Article I, Section Five of the

Florida Constitution; (6) the Due Process and Equal Protection Clauses of the

Fourteenth Amendment of the United States Constitution and Article I, Sections

Two and Nine of the Florida Constitution; (7) 42 U.S.C. § 1981 and its Florida

equivalent; and (8) 42 U.S.C. § 1985(3) and Florida Statute Section 777.04.

The remaining defendants refiled their motion for summary judgment. The

district court found that Asad’s claim of racial discrimination against Sergeant

Boston “based upon allegedly disrespectful language, did not rise to the level of a

federal constitutional law.” The district court also held that Sergeants Herring and

Bottjer did not violate Asad’s right to freely exercise his religious beliefs when

they charged him with disobeying a verbal order not to pray under the stairwell

because the prohibition against conducting activity under the stairwell was

reasonably related to the legitimate penological interest of reducing security risks

and Asad was not prohibited from praying in his cell or in the institution’s chapel.

The court further found that Asad offered no evidence, other than his own

8

conclusory allegations, of an agreement between Officer Stepp and Colonel

Lindsey to place Asad in close-management confinement. Moreover, the court

held that Asad’s due-process rights were not violated in association with

disciplinary reports dated February 6, 2000, May 23, 2000, June 11, 2000 and July

17, 2000 because Asad was present at all of his disciplinary proceedings, his

witness statements were considered, and evidence supported the actions taken by

the disciplinary team. Finally, the district court determined that because Asad’s

claims did not rise to the level of federal constitutional violations, the defendants

were entitled to the defense of qualified immunity. The court dismissed all of

Asad’s claims for which he failed to exhaust his administrative remedies and

granted summary judgment on the exhausted claims. This appeal followed.

First, Asad argues that the district court erred when it dismissed Lieutenant

Dupree because she was a central figure in his due process and related claims.4

Under Fed. R. Civ. P. 4(c)(1), “the plaintiff is responsible for service of a summons

and complaint within the time allowed under subdivision (m).” Rule 4(m)

provides that:

4

In this claim, Asad highlights that he is a pro se prisoner who went to great lengths to try

and serve process on Lieutenant Dupree. The Fifth Circuit has held that pro se status “does not

exempt a party from compliance with relevant rules of procedural and substantive law . . . ‘[t]o hold

that complete ignorance of Rule 4(j) [predecessor of Rule 4(m)] constitutes good cause for untimely

service would allow the good cause exception to swallow the rule.’” Kersh v. Derozier, 851 F.2d

1509, 1512 (5th Cir. 1988) (citations omitted). We agree with the reasoning in Kersh and apply it

here.

9

If service of the summons and complaint is not made upon a

defendant within 120 days after the filing of the complaint, the court,

upon motion or on its own initiative after notice to the plaintiff, shall

dismiss the action without prejudice as to that defendant or direct that

service be effected within a specified time; provided that if the

plaintiff shows good cause for the failure, the court shall extend the

time for service for an appropriate period

Fed. R. Civ. P. 4(m); see also Horenkamp v. Van Winkle and Co., Inc., 402 F.3d

1129, 1132 (11th Cir. 2005) (holding that “Rule 4(m) grants discretion to the

district court to extend the time for service of process even in the absence of a

showing of good cause.”). “Good cause exists only when some outside factor,

such as reliance on faulty advice rather than inadvertence or negligence, prevented

service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (discussing “good

cause” under former Rule 4(j)), superseded in part, as stated in Horenkamp, 402

F.2d at 1132 n.2.

The district court did not abuse its discretion by dismissing Lieutenant

Dupree from the action given Asad’s failure to effect proper service on Lieutenant

Dupree. Notably, Asad had well over 120 days to serve Dupree, and he made no

showing of any cause, let alone good cause, to excuse his failure to effect proper

service. Accordingly, the district court did not err on this basis.

Next, Asad challenges the district court’s dismissal of his

respondeat superior claims against Secretary Moore and Superintendent Turner. It

10

is well-settled that “supervisory officials are not liable under § 1983 for the

unconstitutional acts of their subordinates on the basis of respondeat superior or

vicarious liability.” Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004). Rather,

such liability attaches under § 1983 only “when the supervisor personally

participates in the alleged unconstitutional conduct or when there is a causal

connection between the actions of a supervising official and the alleged

constitutional deprivation.” Id. (emphasis added).5

The record reveals no evidence, or even an allegation, that Secretary Moore

or Superintendent Turner personally participated in the alleged constitutional

violations, or that there was a causal connection between the supervisory

defendants’ actions and an alleged constitutional violation. On this record, the

complaint was properly dismissed as to these defendants.

Asad also claims error resulting from the district court’s dismissal of his

access-to-courts claim against Officer Sapp. The First Amendment grants

prisoners a limited constitutional right of access to the courts. Bounds v. Smith,

430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52 L. Ed. 2d 72 (1977). The Supreme

5

“A causal connection may be established: (1) when a history of widespread abuse puts the

responsible supervisor on notice of the need to correct the alleged deprivation, and he [or she] fails

to do so; (2) when a supervisor’s custom or policy results in deliberate indifference to constitutional

rights; or (3) when facts 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.” Miller, 384 F.3d at 1261 (internal quotations omitted).

11

Court has held that an inmate alleging lack of access to the courts, must show

actual injury. See Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 2179, 135

L. Ed. 2d 606 (1996).6 Here, Asad failed to allege an actual injury resulting from

Sapp’s alleged confiscation of legal materials. Indeed, it is clear that Asad has

been able to pursue this action without any adverse consequences as evidenced by

the filing of an amended complaint, a second amended complaint, and now this

appeal.

As for the district court’s entry of summary judgment on the remaining

claims, we discern no error. Based on the following findings, the district court

concluded that Asad’s right to freely exercise his religious beliefs was not violated

pursuant to the four-pronged test of Turner v. Safley, 482 U.S. 78, 89-91, 107 S.

Ct. 2254, 2262, 96 L. Ed. 2d 64 (1987): (1) restricting or limiting Asad’s activity

under the stairwell, which is an unauthorized area not readily visible from the

control room, was a legitimate state interest related to ensuring safety in the

institution; (2) Asad was not denied all means of religious expression because he

could pray in his cell, which was suitable for his prayers; (3) allowing Asad to pray

under the stairwell would have detrimental effects on the security interests of the

6

Wright v. Newsome, 795 F.2d 964 (11th Cir. 1986), is inapposite here. That case was

decided prior to the Supreme Court’s Lewis decision, which plainly requires an allegation of actual

injury to state an access-to-courts claim.

12

institution; and (4) Asad failed to show an accommodation at de minimus cost

since the officers view of an inmate under the stairwell is obstructed and other

officers would be taken away from other posts to monitor such activity. Given the

district court’s application of the Turner factors, we are unpersuaded by Asad’s

argument that the court’s analysis of this claim was deficient.

We also reject Asad’s challenge to the district court’s analysis of his due

process claim, in which he asserted, inter alia, that the defendants wrote false

disciplinary reports as part of a conspiracy to retaliate against him. “Prison

disciplinary proceedings are not part of a criminal prosecution, and the full panoply

of rights due a defendant in such proceedings does not apply.” Wolff v.

McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974).

Nevertheless, a disciplinary proceeding, whose outcome will “impose[] atypical

and significant hardship on the inmate” must ensure the following due process

rights: (1) advance written notice of the claimed violation, (2) a written statement

by the fact finders as to the evidence relied upon and the reasons for the

disciplinary action taken, and (3) an opportunity to call witnesses and present

documentary evidence in his defense. Id. at 563-67, 94 S. Ct. at 2978-80; Bass v.

Perrin, 170 F.3d 1312, 1318 (11th Cir. 2003).

13

The district court found no violation of Asad’s due-process rights because

the record reflects that the Wolff requirements were met -- the disciplinary reports,

which were attached to Asad’s complaint, demonstrated that Asad was present at

all of his hearings and that the witness statements he submitted were considered.

Moreover, the disciplinary reports and the summary of the hearings all explained

the reasons for the disciplinary action and the resolutions implemented.7

Based on the foregoing analysis, we affirm the district court’s judgment in

all respects.

AFFIRMED.

7

After concluding that Asad’s claims did not allege the violation of a constitutional right, the

district court also noted that the defendants were entitled to qualified immunity. A government

official who is sued under § 1983 may seek summary judgment on the ground that he is entitled to

qualified immunity. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004).

To be eligible for qualified immunity, the official must first establish that he was performing a

“discretionary function” at the time the alleged violation of federal law occurred. Id. at 1263-64.

Once the official has established that he was engaged in a discretionary function, the plaintiff bears

the burden of demonstrating that the official is not entitled to qualified immunity. Id. at 1264. In

order to demonstrate that the official is not entitled to qualified immunity, the plaintiff must show

two things: (1) that the defendant has committed a constitutional violation and (2) that the

constitutional right the defendant violated was “clearly established” at the time he did it. Saucier

v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001); Holloman, 370 F.3d at 1264.

As we have discussed above, because Asad’s claims do not rise to the level of federal constitutional

violations, the district court did not err by holding the defendants were entitled to qualified

immunity based on Asad’s inability to satisfy prong (1) of the Saucier test.

14