Brush v. Burgess

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 1, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

PETER JAMES BRUSH,

Plaintiff-Appellant,
v. No. 05-6301
MIKE BURGESS and TERRAL (D.C. No. CIV-04-0491-HE)
PERRY, (W. D. Oklahoma)

Defendants-Appellees.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

Peter Brush, an Oklahoma state prisoner appearing pro se, appeals the

district court’s grant of summary judgment in favor of Custer County Sheriff

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Mike Burgess and Undersheriff Terral Perry on Brush’s 42 U.S.C. § 1983

complaint. Brush primarily alleged that: (1) Sheriff Burgess and Undersheriff

Perry were deliberately indifferent to his safety in violation of the Eighth and

Fourteenth Amendments because an inmate assaulted him while he was in custody

as a pretrial detainee at the Custer County Jail; and (2) his placement in

segregation at the Clinton City Jail following the assault violated his Fourteenth

Amendment due process and equal protection rights. Brush requested actual and

punitive damages for his injuries, as well as an order capping the Custer County

Jail population and requiring additional personnel and cameras to monitor the cell

blocks. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

On April 20, 2003, during Brush’s pretrial detainment at the Custer County

Jail, Brush suffered wounds to his face and head as a result of an altercation with

another inmate over a food tray. The jail officer on duty instructed both inmates

to stop fighting, but was forced to call for back-up in order to subdue them. After

Brush received medical treatment at a local hospital, he was transferred to the

Clinton City Jail. Brush was placed in segregation at the Clinton City Jail for

approximately three weeks. 1

1
The record reflects that Brush is currently incarcerated at the Howard
McLeod Correctional Center in Atoka, Oklahoma.

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 II.

“We review the grant or denial of summary judgment de novo, applying the

same legal standard used by the district court.” Bennett v. Coors Brewing Co.,

189 F.3d 1221, 1227 (10th Cir. 1999). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c).

The magistrate judge issued a report and recommendation, recommending

the entry of summary judgment in favor of Sheriff Burgess and Undersheriff

Perry in their official and individual capacities. Specifically, the magistrate judge

concluded that Brush did not establish that Sheriff Burgess and Undersheriff

Perry were deliberately indifferent to his safety because Brush never informed

them that he feared for his safety, Brush’s allegation that the other inmate had a

violent history was conclusory, and Brush acknowledged in deposition that the

fight “was spur of the moment.” Additionally, the magistrate judge reasoned that

Brush failed to offer evidence connecting the wrongs he complained of to a

custom or policy of Custer County. As regards Brush’s due process and equal

protection claims, the magistrate judge noted that Brush’s summary judgment

response brief made only a single reference to his brief segregation at the Clinton

City Jail, and thus, Brush failed to provide sufficient factual support and

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argument for his claims. Lastly, the magistrate judge concluded that Brush’s

claims for injunctive relief were moot because he no longer resided at the Custer

County Jail. After conducting a de novo review, the district court adopted the

report and recommendation of the magistrate judge.

On appeal, Brush raises only two arguments. 2 First, Brush argues that

Sheriff Burgess and Undersheriff Perry violated his due process rights when they

failed to house him separately from the inmate who assaulted him. Brush claims

that the Custer County Jail’s policy mandates that “unsentenced prisoners shall be

separated from sentenced prisoners.” He suggests that the assault would not have

occurred if Sheriff Burgess and Undersheriff Perry had followed this policy

because the inmate who assaulted him was a sentenced prisoner. We reject

Brush’s argument because the Custer County Jail policy does not require pretrial

detainees to be separated from sentenced prisoners. The applicable regulation

provides: “Unsentenced prisoners shall be separated from sentenced prisoners, to

the extent possible, and shall be permitted whatever confinement is least

restrictive unless prisoner behavior or other security considerations dictate

otherwise.” Okla. Admin. Code § 310:670-5-5 (2005) (emphasis added). 3

Further, we note that Brush does not claim that Sheriff Burgess or Undersheriff

2
We agree with the magistrate judge’s application of the law and facts as to
the claims Brush failed to raise on appeal.
3
The record indicates that the Custer County Jail utilizes this regulation as
part of its policy and procedure regarding minimum jail standards.

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Perry disregarded this regulation or otherwise failed to make a good faith effort to

place him with other pretrial detainees.

Second, Brush contends that Sheriff Burgess and Undersheriff Perry

violated his due process and equal protection rights because he was neither

advised of the reasons for his three weeks of administrative segregation at the

Clinton City Jail, nor afforded an opportunity to challenge the propriety of his

placement in segregation. In response, Sheriff Burgess and Undersheriff Perry

assert that these claims must be dismissed for lack of personal participation. See

Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (“Personal

participation is an essential allegation to a § 1983 claim.”) (quotation omitted).

We agree. Brush has not alleged that Sheriff Burgess and Undersheriff Perry

operated or maintained the Clinton City Jail, let alone that either officer made the

decision to place him in segregation at the Clinton City Jail. Rather, Brush has

only alleged that Sheriff Burgess and Undersheriff Perry were responsible for the

supervision of the Custer County Jail.

AFFIRMED. We further remind Brush that he remains obligated to pay the

appellate filing fee as required by 28 U.S.C. § 1915.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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