The opinion
Case: 22-60227 Document: 00516692912 Page: 1 Date Filed: 03/29/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-60227
Summary Calendar FILED
____________ March 29, 2023
Lyle W. Cayce
Omar Khayyam Humphrey, Clerk
Plaintiff—Appellant,
versus
Pelicia Hall, Commissioner of Mississipi Department of Corrections
(MDOC); Joe Errington, Superintendent; Joshua Csaszar,
Warden; Joseph Cooley, Director/Investigator II of Administrative
Remedy Program South Mississippi Correctional Institution; Regina Reed,
Deputy Warden; Penny Bufkin, Director of Security Threat Group South
Mississippi Correctional Institution; James Cooksey, Director of
Corrections Investigation Division (CID) South Mississippi Correctional
Institution; Sheneice Hartfield-Evans, Captain Area 2 South
Mississippi Correctional Institution; Roylandia McBride, Correction
Officer South Mississippi Correctional Institution; Andrew Mills, Chief
of Security South Mississippi Correctional Institution; Adrian Keys, K-9
Unit Officer and John Does South Mississippi Correctional Institution;
Richard Pennington, MDOC Director of Administrative Remedy
Program (ARP) MSP,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:19-CV-362
______________________________
Case: 22-60227 Document: 00516692912 Page: 2 Date Filed: 03/29/2023
No. 22-60227
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Omar Khayyam Humphrey, Mississippi prisoner # R3755, an inmate
confined at the South Mississippi Correctional Institution (SMCI), appeals
the summary judgment dismissal of his 42 U.S.C. § 1983 lawsuit asserting
a violation of his Eighth Amendment rights. Humphrey briefs no argument
challenging the district court’s denial of his request for injunctive relief in the
form of a transfer, the dismissal of his claims against SMCI medical staff for
failure to state a claim, the dismissal of his claims against all of the SMCI
defendants save Mississippi Department of Corrections Commissioner
Pelicia Hall due to his failure to exhaust under § 1997e(a), the dismissal of his
claims against Commissioner Hall in her official capacity as barred by the
Eleventh Amendment, or the dismissal of his claims against her in her
individual capacity seeking compensatory damages for lack of any physical
injury under § 1997e(e). Consequently, he has abandoned such arguments.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann
v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Only
Humphrey’s challenge to the dismissal of his claim for punitive damages
against Commissioner Hall in her individual capacity alleging that she was
deliberately indifferent to the conditions caused by understaffing at SMCI
has been properly preserved on appeal and is subject to this court’s review.
We review the summary judgment dismissal of that claim de novo.
Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011).
Because the defendants asserted the defense of qualified immunity, the usual
summary judgment burden is altered; after the defense was pleaded, the
burden shifted to Humphrey to show that the defense was unavailable. King
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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v. Handorf, 821 F.3d 650, 653 (5th Cir. 2016). In determining whether
qualified immunity applies, the court reviews: (1) whether the plaintiff has
alleged a violation of a constitutional right; and (2) if so, whether the right
was clearly established at the time of the violation. Brumfield v. Hollins,
551 F.3d 322, 326 (5th Cir. 2008).
Summary judgment dismissal was proper because Humphrey failed to
establish that Commissioner Hall violated his constitutional rights. The
summary judgment evidence did not show that Commissioner Hall was
deliberately indifferent to the conditions caused by understaffing at SMCI.
Rather, Humphrey’s own allegations, testimony, and summary-judgment
evidence showed that Commissioner Hall was not indifferent to the staffing
problem, instead was taking active measures to abate it by requesting more
money from the state legislature to increase officers’ starting salaries, which
request was denied, and by creating a training program for potential recruits.
Humphrey does not challenge the district court’s conclusion on this point,
arguing only that Commissioner Hall’s attempt to request more funding did
not excuse her from failing to maintain a minimum level of safety. However,
he misapprehends the showing required to establish a constitutional
violation. Even if her response was not perfect or adequate, the relevant
inquiry is whether she was aware of a known risk of harm, then disregarded
that risk. See Farmer v. Brennan, 511 U.S. 825, 844-45 (1994); Cleveland
v. Bell, 938 F.3d 672, 676 (5th Cir. 2019). As the district court determined,
because Humphrey did not point to any evidence showing that additional
staffing or funding was available and Commissioner Hall failed to put it to use
or that she exhibited deliberate indifference in making, or failing to make,
a policy to address the issue, he failed to show a violation of his Eighth
Amendment rights, and summary judgment was appropriate. See Farmer,
511 U.S. at 837, 844-45, 847; Wilson v. Seiter, 501 U.S. 294, 299 (1991);
Cleveland, 938 F.3d at 676.
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Humphrey next argues that the district court erred in denying his
motion for the appointment of counsel. We review the denial of appointment
of counsel for an abuse of discretion. Baranowski v. Hart, 486 F.3d 112, 126
(5th Cir. 2007). “A civil rights complainant has no right to the automatic
appointment of counsel.” Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982). Appointment is warranted only upon a showing of exceptional
circumstances. Id.
The district court correctly determined that Humphrey’s claims were
not overly complex and that his numerous pleadings and presentation of his
claims demonstrated that he was capable of investigating and presenting his
case with clarity. See Ulmer, 691 F.2d at 213. Moreover, the case was
resolved on summary judgment and did not involve any conflicting testimony
requiring a skilled legal professional. See id. Although Humphrey argues that
he needed appointed counsel to satisfy the requirements to obtain class
certification given that his pro se status automatically disqualified him from
meeting the adequacy-of-representation element, his request for class
certification did not automatically entitle him to appointed counsel. See
Ulmer, 691 F.2d at 213. Moreover, as discussed below, Humphrey failed to
meet other prerequisites for such certification. He has not demonstrated any
abuse of discretion on the district court’s part in denying his request for
counsel. See Baranowski, 486 F.3d at 126; Ulmer, 691 F.2d at 212-13.
Next, Humphrey challenges the district court’s denial of his motion
for discovery, seeking documents or notes Commissioner Hall possessed
relating to her participation in a panel on prison reform in which he asserts
that experts opined that the Mississippi prison system is fundamentally
flawed and that gangs were running prisons. This court reviews the denial of
discovery requests for an abuse of discretion. JP Morgan Chase Bank, N.A.
v. DataTreasury Corp., 936 F.3d 251, 255 (5th Cir. 2019). Even if a district
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court abuses its discretion in denying discovery, this court will not overturn
the ruling unless it substantially affects the rights of the appellant. Id. at 256.
Here, the district court implicitly determined that the documents that
Humphrey sought were not relevant to his claims. Humphrey’s mere desire
to have the requested information is insufficient to show an abuse of
discretion on the district court’s part. See JP Morgan Chase Bank, N.A.,
936 F.3d at 255-56. Even assuming that the documents he sought existed and
contained the conclusions he describes, they would tend to show only that
Commissioner Hall was aware of the understaffing issue, which information
was already contained in the numerous articles Humphrey submitted in
support of his motion for summary judgment, meaning that the documents
were cumulative of the information he already possessed. Humphrey does
not assert that the documents had any bearing on Commissioner Hall’s
attempts to relieve the understaffing problem, as also described in the articles
he submitted, or would support an assertion that she exhibited deliberate
indifference in failing to take steps to address the issue. Thus, he cannot
show that the denial of the requested documents prejudiced him or affected
his substantial rights. See id. at 256.
Humphrey additionally argues that the district court erred in denying
his motion for class certification. As noted above, he complains that because
the district court denied him appointed counsel, it deprived him of the ability
to meet the requirements of Fed. R. Civ. P. 23(a) by forcing him to
proceed pro se, automatically disqualifying him from being able to
demonstrate the requisite adequacy of representation.
We review the district court’s ruling for an abuse of discretion.
Regents of Univ. of Cal. v. Credit Suisse First Bos. (USA), Inc., 482 F.3d 372,
380 (5th Cir. 2007). Class certification requires plaintiffs to satisfy four
requirements under Rule 23(a): (1) numerosity, meaning that the class must
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be “so numerous that joinder of all members is impracticable”;
(2) commonality, meaning that there must be “questions of law or fact
common to the class”; (3) typicality, or that the claims or defenses of the
representative parties must be “typical of the claims or defenses of the
class”; and (4) adequacy of representation, meaning that the representative
parties must “fairly and adequately protect the interests of the class.” 1 Fed.
R. Civ. P. 23(a); see In re Monumental Life Ins. Co., 365 F.3d 408, 414-15
(5th Cir. 2004).
Humphrey’s request for class certification fails at the first hurdle
because he has not demonstrated the requisite numerosity. He identified a
putative class of 12 inmates, each of whom was identified by name and each
of whom were housed in the same prison. Joinder of the 12 named inmates
was not impracticable. See Fed. R. Civ. P. 23(a). Further, as the district
court determined, even construing his pleadings as raising the argument that
the 12 named members were representatives of the class of all non-gang
members at SMCI, by his own estimate, the putative class would be
composed of 20 non-gang-member inmates, 12 of whom had already been
identified and all of whom were housed at SMCI, meaning that the remainder
could be located with relative ease. Joinder of such a small number of inmates
housed in the same location was thus not impracticable, and the district court
did not err in determining that numerosity was not established. See Ibe
v. Jones, 836 F.3d 516, 528 (5th Cir. 2016); Fed. R. Civ. P. 23(a); see also
Ward v. Kelly, 476 F.2d 963, 964 (5th Cir. 1973); cf. In re: TWL Corp.,
712 F.3d 886, 895 (5th Cir. 2012).
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1
In addition to meeting these four prerequisites, plaintiffs must meet one of the
additional requirements listed under Rule 23(b), which issue need not be reached here as
Humphrey’s motion for class certification fails to meet the initial requirements of Rule
23(a). See Fed. R. Civ. P. 23(b).
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Humphrey briefs no argument challenging the district court’s findings
with respect to numerosity. See Yohey, 985 F.2d at 224-25; Brinkmann,
813 F.2d at 748. Inasmuch as he now asserts that, had he been appointed
counsel, he could have proved that there are 1,200 to 1,300 non-gang-
affiliated inmates at SMCI, which would have been sufficient to satisfy
numerosity, the argument was not raised before the district court, and this
court will not consider it. See Martinez v. Pompeo, 977 F.3d 457, 460 (5th Cir.
2020); see also Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir.
1999). Because Humphrey fails at the first step by failing to demonstrate
numerosity, he cannot establish an abuse of discretion on the district court’s
part in denying his motion for class certification. See Fed. R. Civ. P. 23(a);
see also Regents of Univ. of Cal., 482 F.3d at 380. We therefore need not reach
his remaining arguments challenging the district court’s findings as to the
other Rule 23(a) factors. See Steering Committee v. Exxon Mobile, Corp.,
461 F.3d 598, 601 (5th Cir. 2006).
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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