Filed: Aug. 26, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-13343 Date Filed: 08/26/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13343 Non-Argument Calendar _ D.C. Docket No. 3:10-cv-00871-JRK DEALMOS JOHNSON, Plaintiff-Appellant, versus BRYAN ROSIER, Sargeant, individually and in his official capacity, Defendant, STEVEN F. SINGER, Warden, individually and in his official capacity, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _
Summary: Case: 13-13343 Date Filed: 08/26/2014 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-13343 Non-Argument Calendar _ D.C. Docket No. 3:10-cv-00871-JRK DEALMOS JOHNSON, Plaintiff-Appellant, versus BRYAN ROSIER, Sargeant, individually and in his official capacity, Defendant, STEVEN F. SINGER, Warden, individually and in his official capacity, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (..
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Case: 13-13343 Date Filed: 08/26/2014 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13343
Non-Argument Calendar
________________________
D.C. Docket No. 3:10-cv-00871-JRK
DEALMOS JOHNSON,
Plaintiff-Appellant,
versus
BRYAN ROSIER,
Sargeant, individually and in his official capacity,
Defendant,
STEVEN F. SINGER,
Warden, individually and in his official capacity,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 26, 2014)
Case: 13-13343 Date Filed: 08/26/2014 Page: 2 of 7
Before MARTIN, FAY, and EDMONDSON, Circuit Judges.
PER CURIAM:
Dealmos Johnson, proceeding pro se on appeal, appeals the grant of
summary judgment to Steven Singer, the warden of the prison where Johnson was
incarcerated, in Johnson’s 42 U.S.C. § 1983 action. Briefly stated, Johnson asserts
that Warden Singer was deliberately indifferent to his health and safety, in
violation of the Eighth and Fourteenth Amendments, because Warden Singer failed
to protect Johnson from Officer Rosier’s alleged use of excessive force.* The
summary judgment decision was presented in a full opinion. We see no reversible
error. We affirm the judgment.
We review the grant of summary judgment de novo. Robinson v. Tyson
Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). We do not consider in the first
instance issues not addressed by the district court. Porter v. Ogden, Newell &
Welch,
241 F.3d 1334, 1340 (11th Cir. 2001) (citing Singleton v. Wulff,
428 U.S.
106, 120,
96 S. Ct. 2868, 2877,
49 L. Ed. 2d 826 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an issue not passed upon
below.”)). We liberally construe pro se briefs. Timson v. Sampson,
518 F.3d 870,
874 (11th Cir. 2008). Nevertheless, issues not raised on appeal are abandoned.
Id.
* Officer Rosier was dismissed as a defendant and is not a party to this appeal.
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Summary judgment is appropriate when the movant has shown that there is
no genuine dispute as to any material fact, and that he is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). “[M]ere conclusions and unsupported factual
allegations, as well as affidavits based, in part, upon information and belief, rather
than personal knowledge, are insufficient to withstand a motion for summary
judgment.” Ellis v. England, 432 F.3d 1321, 1327 (11th Cir. 2005). When
considering a motion for summary judgment, the district court does not weigh the
evidence to determine the truth of the matter, but rather determines only if there is
a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249,
106
S. Ct. 2505, 2510-11,
91 L. Ed. 2d 202 (1986).
“In order to prevail on a civil rights action under § 1983, a plaintiff must
show that he or she was deprived of a federal right by a person acting under color
of state law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
The Eighth Amendment prohibits the infliction of cruel and unusual punishment.
U.S. Const. amend. VIII. Three kinds of Eighth Amendment claims arise in the
prison context, including challenges to specific conditions of confinement, the use
of excessive force, and deliberate indifference to a prisoner’s safety. Thomas v.
Bryant,
614 F.3d 1288, 1303-04 (11th Cir. 2010); Farmer v. Brennan,
511 U.S.
825, 832-33,
114 S. Ct. 1970, 1976,
128 L. Ed. 2d 811 (1994). Each of these kinds
of claims requires the plaintiff to establish (1) an objective showing of a
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deprivation or injury that is sufficiently serious to constitute a denial of the
minimal civilized measure of life’s necessities, and (2) a subjective showing that
the official had a sufficiently culpable state of mind. Thomas, 614 F.3d at 1304.
In a deliberate-indifference claim, the prisoner plaintiff must establish first
“an objectively substantial risk or serious harm.” Harrison v. Culliver, 716 F.3d
1288, 1298 (11th Cir. 2014). Second, the plaintiff must show that the defendant
was deliberately indifferent to that risk by establishing that the defendant (1) had a
subjective knowledge of a risk of serious harm, (2) disregarded that risk, and
(3) engaged in conduct that is more than mere negligence.
Id.
In an excessive-force claim, the prisoner must show that the official “applied
force maliciously and sadistically for the very purpose of causing harm.”
Thomas,
614 F.3d at 1304 (quotation omitted). When conducting that inquiry, we look to
“the need for the application of force; the relationship between the need and the
amount of force that was used; and the extent of the [prisoner’s injuries].”
Cockrell v. Sparks,
510 F.3d 1307, 1311 (11th Cir. 2007). We also consider the
extent of the threat to staff and inmate safety, and we give wide deference to prison
officials who are acting to maintain discipline and security.
Id. (concluding that an
open-handed push or shove was not excessive force).
A supervising official who did not participate in the allegedly wrongful acts
(as in this case) can only be held liable under a theory of supervisory liability if
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there is a causal connection between the supervising official’s conduct and the
alleged constitutional deprivation. Hartley v. Parnell, 193 F.3d 1263, 1269 (11th
Cir. 1999). A plaintiff can establish the required causal connection by
documenting either (1) “a history of widespread abuse [that would put] the
responsible supervisor on notice of the need to correct the alleged deprivation,”
and the supervisor’s failure to correct the problem; (2) an official custom or policy
that led to the violation; or (3) facts that indicate 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.”
Harrison, 746 F.3d at 1298.
A pro se litigant “is subject to the relevant law and rules of court, including
the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989). Unless otherwise specified, a party may amend its pleading “only with
the opposing party’s written consent or the court’s leave.” Fed.R.Civ.P. 15(a)(2).
Rule 15(a)(2) also states that “[t]he court should freely give leave when justice so
requires.”
Id. The plaintiff must provide the substance of his proposed complaint
to support his motion. United States ex rel. Atkins v. McInteer,
470 F.3d 1350,
1361-62 (11th Cir. 2006). A district court may deny leave to amend where the
amendment would be futile because the complaint as amended would still be
subject to dismissal. Burger King Corp. v. Weaver,
169 F.3d 1310, 1319-20 (11th
Cir. 1999). The requirements of Rule 28(a) are not jurisdictional, and we can use
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our discretion to consider briefs that do not comply with the requirements of
Rule 28(a). Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.4 (11th Cir. 2003)
(noting that we would exercise our discretion to consider the brief submitted in an
immigration proceeding even though it failed to comply with certain requirements
of an appellant’s brief, as articulated in Rule 28).
First, we exercise our discretion to consider Johnson’s pro se brief, despite
the alleged failure to comply with Rule 28(a). Second, we decline to consider the
arguments that Johnson has raised for the first time on appeal, including Singer’s
failure to investigate, the existence of an alleged conspiracy surrounding the
incident, and Johnson’s request to amend his complaint. Third, we conclude that
the district court did not err by granting summary judgment to Singer; Johnson
failed to establish that Warden Singer personally was liable for Correctional
Officer Rosier’s acts. Even if Singer might be accountable in some way for
Rosier’s use of force, Johnson failed to establish adequately that Singer was
deliberately indifferent to a substantial risk of harm from Officer Rosier or to
establish even that Johnson really had been subjected to excessive force by Rosier
at all. Plaintiff admitted that he refused to comply with direct and repeated orders,
orders that were reasonable in the circumstances. The record does not support that
Officer Rosier had a history of using excessive force against inmates. Warden
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Singer had no advance notice of a likely event in the nature of the one that
allegedly triggered this civil action.
AFFIRMED.
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