Filed: Jun. 04, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-16363 Date Filed: 06/04/2013 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16363 Non-Argument Calendar _ D.C. Docket No. 6:12-cv-00078-BAE-JEG JESSE L. LOSEY, Plaintiff - Appellant, versus WARDEN, TIFFANY NAIL, LINDA BASS, GWENDOLYN BROWN, Correctional Officers, Defendants - Appellees. _ Appeal from the United States District Court for the Southern District of Georgia _ (June 4, 2013) Before BARKETT, WILSON, and ANDERSON, Circuit J
Summary: Case: 12-16363 Date Filed: 06/04/2013 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-16363 Non-Argument Calendar _ D.C. Docket No. 6:12-cv-00078-BAE-JEG JESSE L. LOSEY, Plaintiff - Appellant, versus WARDEN, TIFFANY NAIL, LINDA BASS, GWENDOLYN BROWN, Correctional Officers, Defendants - Appellees. _ Appeal from the United States District Court for the Southern District of Georgia _ (June 4, 2013) Before BARKETT, WILSON, and ANDERSON, Circuit Ju..
More
Case: 12-16363 Date Filed: 06/04/2013 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16363
Non-Argument Calendar
________________________
D.C. Docket No. 6:12-cv-00078-BAE-JEG
JESSE L. LOSEY,
Plaintiff - Appellant,
versus
WARDEN,
TIFFANY NAIL,
LINDA BASS,
GWENDOLYN BROWN,
Correctional Officers,
Defendants - Appellees.
_______________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(June 4, 2013)
Before BARKETT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-16363 Date Filed: 06/04/2013 Page: 2 of 8
Jesse Losey appeals district court orders granting the motion to dismiss of
Warden Dannie Thompson and the motion for judgment on the pleadings of
Correctional Officers Tiffany Nail, Linda Bass, and Gwendolyn Brown
(“Correctional Officers”). Mr. Losey brought suit against the Warden Thompson
and the Correctional Officers under the Eighth Amendment and 42 U.S.C. §1983
after he was raped by a fellow inmate at Smith State Prison in Glennville, Georgia.
Mr. Losey’s suit alleges that Warden Thompson and the Correctional Officers
were deliberately indifferent to the health and safety of the inmates in their
protection, which he claims was the direct and proximate cause of his rape.
Adopting the recommendations of the magistrate judge, the district court dismissed
Mr. Losey’s suit because his pleadings did not establish that any of the defendants
had knowledge of a substantial risk to Mr. Losey. Upon review, we affirm the
district court’s order as it relates to Warden Thompson and Correctional Officers
Bass and Brown. However, we reverse and remand with regards to the district
court’s order as it relates to Officer Nail.
I. Background
On July 8, 2010, Mr. Losey, who is serving a sentence for attempted murder,
was raped by Reggie Whitehead, a fellow inmate at Smith State Prison. Before Mr.
Losey’s housing unit was locked down for the evening, Mr. Losey went to the cell
of a Mr. Whitehead to use his contraband cell phone. But Mr. Whitehead would
2
Case: 12-16363 Date Filed: 06/04/2013 Page: 3 of 8
not allow Mr. Losey to leave his cell and Mr. Losey was subsequently locked in
Mr. Whitehead’s cell for the night, whereafter Mr. Whitehead raped him. Mr.
Losey was unable to escape until the next afternoon.
Mr. Losey’s complaint alleges that Warden Thompson and the Correctional
Officers were deliberately indifferent to his health and safety. Mr. Losey claims
that Warden Thompson was aware of the fact that Mr. Losey was improperly
classified and assigned to Smith State Prison alongside far more dangerous inmates
yet failed to exercise his discretionary authority to transfer Mr. Losey, exposing
Mr. Losey to the risk of being raped. Mr. Losey alleges that the Correctional
Officers failed to make mandated inmate counts on the night he was raped and
falsified records that indicated that they actually conducted such counts, thereby
failing to discover that he was being held against his will in another inmate’s cell.
Mr. Losey also claims that Officer Nail did a security check and either failed to
look into the cell in which he was being held or looked into the cell and refused to
intervene.
II. Standard of Review
We review a district court’s grant of a motion for judgment on the pleadings
and a motion to dismiss for failure to state a claim de novo. Ortega v. Christian, 85
F.3d 1521, 1524-25 (11th Cir. 1996) (motion for judgment on the pleadings);
Bragg v. Bill Heard Chevrolet, Inc.,
374 F.3d 1060, 1065 (11th Cir. 2004) (motion
3
Case: 12-16363 Date Filed: 06/04/2013 Page: 4 of 8
to dismiss). A motion to dismiss and a motion for judgment on the pleadings
should not be granted unless “the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” Horsley v. Feldt, 304 F.3d 1125, 1131
(11th Cir. 2002)(motion for judgment on the pleadings standard)(quotations
omitted);
Bragg, 374 F.3d at 1065 (motion to dismiss standard). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556
U.S. 662, 678 (2009) (quotations omitted).
III. Discussion
To make a failure to protect claim under the Eighth Amendment, Mr. Losey
must plead facts that establish “(1) a substantial risk of serious harm; (2) the
defendants' deliberate indifference to that risk; and (3) causation.” Hale v.
Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir. 1995). Deliberate indifference
means that a prison official “knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Farmer v. Brennan,
511 U.S. 825, 837 (1994).
Mr. Losey’s complaint fails to state a claim against Warden Thompson
because it does not sufficiently allege that Warden Thompson had any knowledge
of a risk to Mr. Losey’s safety. Even assuming arguendo that Mr. Losey was
4
Case: 12-16363 Date Filed: 06/04/2013 Page: 5 of 8
misclassified and that his misclassification put him at substantial risk of serious
harm, his complaint, if true, does not establish that Warden Thompson was
deliberately indifferent to that risk of harm. That is because Mr. Losey’s
allegations that Warden Thompson had subjective knowledge that he was
misclassified are entirely conclusory and are therefore not afforded the
presumption of truth absent some factual support that make them plausible. Iqbal,
556 U.S. at 679 (2009). Here, Mr. Losey claims that Warden Thompson would
have known that he was misclassified “based on input from staff, review of inmate
records, and oversight of the classification process.” Such a statement based on the
general nature of Warden Thompson’s job does not make it plausible that Warden
Thompson had actual knowledge that Mr. Losey was misclassified, as required to
survive a motion to dismiss on a deliberate indifference standard.
Id. Nor does Mr.
Losey’s complaint allege that Warden Thompson was aware of widespread
classification errors within his prison that would have put him on notice of a
substantial risk of serious harm to the inmates he supervised. Therefore, the
complaint does not sufficiently plead that Warden Thompson was deliberately
indifferent to the alleged risk that Mr. Losey faced from being incarcerated with
more dangerous convicts.
Mr. Losey has also failed to state a claim against Officers Bass and Brown.
Mr. Losey’s complaint alleges that Officer Bass failed to conduct an official count,
5
Case: 12-16363 Date Filed: 06/04/2013 Page: 6 of 8
as required by internal prison policy and in which officers to go cell-to-cell with
each inmate standing by his bunk to determine that all inmates are accounted for.
Mr. Losey also claims that Officer Brown falsely documented that an official count
had been taken. However, even if these allegations are true, “failure to follow
procedures does not, by itself, rise to the level of deliberate indifference because
doing so is at most a form of negligence.” Taylor v. Adams, 221 F.3d 1254, 1259
(11th Cir. 2000). It would be a different situation if the policy that the Correctional
Officers failed to follow put them on notice that their actions would create a
substantial risk of serious harm to inmates, but Mr. Losey makes no such
allegation. As a result, he has failed to state a claim against Officers Bass and
Brown.
On the other hand, we do think that Mr. Losey has stated a claim against
Officer Nail. Mr. Losey’s complaint alleges that Officer Nail conducted an
unofficial count on the night he was raped, walking directly past the cell in which
he was being held. According to the complaint, at the time that Officer Nail was
conducting the count, Mr. Whitehead was holding down Mr. Losey and covering
his mouth, which Officer Nail would have seen had she looked into the cell. Mr.
Losey also alleges that unofficial counts typically involve officers walking cell-to-
cell and looking into the window of each cell to check on the status and
whereabouts of each inmate. Finally, Mr. Losey claims that Officer Nail “either
6
Case: 12-16363 Date Filed: 06/04/2013 Page: 7 of 8
looked into the cell and did not care what she saw, or she did not care to look at
all[.]” If true, these allegations show that Officer Nail knew of a substantial risk of
serious harm to Mr. Losey and failed to intervene to prevent his rape. While we
recognize that Mr. Losey’s complaint alleges that Officer Nail either did not look
into Mr. Whitehead’s cell or ignored what she saw, this allegation, combined with
his allegation that the standard procedure for an unofficial count is for officers to
look into each cell window, is sufficient to show that it is plausible that Officer
Nail was deliberately indifferent to a known risk to Mr. Losey. Moreover, none of
the factual allegations in support of Mr. Losey’s claims against Officer Nail are
conclusory. Instead, his allegations rely upon events that Mr. Losey could have
observed himself, making them plausible and sufficient to survive a motion for
judgment on the pleadings. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253
(11th Cir. 2013) (drawing a distinction between conclusory statements and
statements that are based on observations and first-hand personal knowledge).
Therefore, we conclude that the district court erred in granting the motion for
judgment on the pleadings in favor of Officer Nail.
IV. Conclusion
For the above reasons, we AFFIRM the district court’s order as it relates to
Warden Thompson and Officers Bass and Brown. However, we REVERSE the
7
Case: 12-16363 Date Filed: 06/04/2013 Page: 8 of 8
district court’s order as it relates to Officer Nail and REMAND for further
proceedings consistent with this opinion.
8
