John Lowery v. Boyd Bennett

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6425

JOHN N. LOWERY,

Plaintiff - Appellant,

BOYD BENNETT; DENNIS ROWLAND; TARQUINTUS WALSER; LIEUTENANT
ADDINGTON; LIEUTENANT SHERROD; MS. BARZILEY; MR. WOODLIFT;
MS. CANOLIS; MR. HENDERSON; MS. CRAIG,

Defendants – Appellees,

and

MOORIS REID; MS. GODFREY,

Defendants.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-ct-03023-BO)

Submitted: June 20, 2012 Decided: August 9, 2012

Before GREGORY, WYNN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas Davies, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for
Appellant. Roy Cooper, Attorney General, Peter A. Regulski,
Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

John Lowery is a Department of Corrections (“DOC”)

inmate confined at the Polk Correctional Institution (“PCI”) in

its High Security Maximum Control (“Hcon”) unit. Hcon “is the

isolation of close custody felon inmates that pose, or continue

to pose, an imminent threat to the life or health of other

inmates or staff . . . .” To be placed in Hcon, an inmate must

have been found guilty of a major disciplinary infraction

“involving a serious assault, active or passive participation in

a riot or mutiny, or seizing or holding a hostage . . . .” or

committed some other serious infraction while on maximum

control. Hcon procedures forbid any inmates from “creating any

type of cell disturbance.”

On April 6, 2007, Lowery tapped or knocked on the

window of his cell to get the attention of Appellee Henderson, * a

correctional officer. When Henderson responded, Lowery told the

officer that he had been served the wrong meal -- under prison

regulations, he was entitled to a vegan special management meal.

Henderson spoke with his sergeant, Appellee Barziley, and

returned to tell Lowery that there was no such meal. He also

*
The first names of Appellees Henderson, Barziley,
Woodlift, Canolis, and Craig do not appear in the record.

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ordered Lowery not to “hit the window no more.” Lowery showed

Henderson the prison regulation providing for a vegan special

management meal; Henderson acknowledged that Lowery was correct,

but repeated his order that Lowery not hit the window and then

walked away. Lowery then knocked on his window again and yelled

at Henderson that he wanted to speak to the officer in charge.

Henderson ignored him. Barziley then sent officers Woodlift,

Henderson, and Canolis to put Lowery in full restraints.

Woodlift told Lowery that he was being punished for banging on

the window. Lowery was taken to an observation cell for several

hours, and when he returned to his cell, nearly all of his items

had been removed, including his personal hygiene items,

religious books, mattress, bedding, towels, and clothing.

Pursuant to the prison’s procedures, Lowery was placed on strip-

cell confinement for ten days. Lowery asserts that as a result,

he suffered back and hip pain and that this pain has persisted

for more than a year.

During this ten-day period, Appellees Kenneth

Addington and Claudia Sherrod were the lieutenants in charge of

the day shift and second shift; both helped to carry out

Lowery’s punishment by sending officers to search his cell and

make sure nothing was in it.

Lowery’s punishment was in accordance with the

policies of the prison. Appellee Tarquintis Walser, the

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assistant superintendent of special housing, had issued a memo

to inmates stating that they must not tap or knock on “cell

doors, observation windows, or any other fixtures inside of your

cell.” Prisoners who violate the rule “will be subject to the

removal of all your property (including shoes) from your cell

building for up to ten (10) days.”

After Lowery’s punishment was over, he was taken to

Appellee Craig, a nurse at the prison, for examination. Lowery

told Craig that he was suffering from hip and back pain and a

rash on his face. The nurse did not examine his back, hip, but

only his thumb.

In January 2008, Lowery filed suit against the

Appellees alleging various violations of his constitutional

rights. He also filed a motion under 28 U.S.C. § 1915(e)(1) to

appoint counsel; the district court denied that motion.

Appellees filed a motion for summary judgment and the district

court held that they were entitled to qualified immunity.

Lowery notes that while this appeal was pending, PCI changed

some of its policies, including those that served as the basis

of his First Amendment and Religious Land Use and

Institutionalized Person Act claims. As a result, he appeals

only the district court’s dismissal of his Eighth Amendment

claims.

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II.

Lowery makes several arguments on appeal. He asserts

that (1) he did not waive the argument that the Appellees

violated his Eighth Amendment rights; (2) the district court

erred in dismissing his first Eighth Amendment claim that he was

unjustifiably punished for knocking on his window; (3) the

district court erred in dismissing his second Eighth Amendment

claim that Craig, the DOC nurse, failed to treat him; and

(4) the district court abused its discretion in denying his

motion for appointment of counsel. We reject these arguments

and affirm the district court.

The Government first makes the affirmative defense,

not presented below, that Lowery waived his claims regarding the

promulgation and enforcement of PCI’s cell restrictions. It

argues that Lowery’s complaint asserted that Hcon’s procedures

were not followed in his specific case; only on appeal did

Lowery assert that the procedures themselves were

unconstitutional. Citing Broaddus v. Shields, 665 F.3d 846, 853

(7th Cir. 2011), the Government contends that issues not first

presented to the trial court cannot be raised on appeal as

grounds for reversal.

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We reject this argument. Lowery’s complaint alleges

the facts surrounding his ten-day punishment and then asserts

that his Eighth Amendment rights were violated. It is true that

he never directly addresses this issue in his complaint, making

only the broader assertion that his constitutional rights were

violated. But because Lowery was not assisted by counsel, his

court papers must be liberally construed to afford him relief.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed

pro se is to be liberally construed . . . .”) (citations

omitted). We therefore hold that Lowery did not waive these

causes of action.

The Appellant first challenges the district court’s

order entering summary judgment on qualified immunity grounds on

his claim that the prison violated his Eighth Amendment rights

in sentencing him to a ten-day confinement. This Court reviews

the issue de novo. Henry v. Purnell, 652 F.3d 524, 531 (4th

Cir. 2011). Summary judgment is appropriate when, after

reviewing the record as a whole, no genuine issue of material

fact exists and the movant is entitled to judgment as a matter

of law. Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986).

Government officials are entitled to qualified

immunity from civil damages so long as “their conduct does not

7
violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). This Circuit has adopted

a two-pronged approach: First, the court must “decide whether a

constitutional right would have been violated on the facts

alleged.” Bailey v. Kennedy, 439 F.3d 731, 739 (4th Cir. 2003).

Second, assuming that a right was violated, courts must consider

whether that right was clearly established. Id. With respect

to the second prong, the question is “whether it would be clear

to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202

(2001). At the same time, the courts have the discretion to

decide which prong is analyzed first. Pearson v. Callahan, 129

S. Ct. 808 (2009).

The Eighth Amendment prohibits the infliction of

“cruel and unusual punishments.” U.S. CONT. amend. VIII. It

forbids the “unnecessary and wanton infliction of pain” against

inmates. Whitley v. Albers, 475 U.S. 312, 319 (1986); Rhodes v.

Chapman, 452 U.S. 337, 346 (1981). To make out a claim, a

plaintiff must allege “the prison official acted with a

sufficiently culpable state of mind and ... [that] the

deprivation suffered or injury inflicted on the inmate was

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sufficiently serious.” Iko v. Shreve, 535 F.3d 225, 238 (4th

Cir.2008).

The objective component of this claim is “contextual

and responsive to ‘contemporary standards of decency.’” Hudson

v. McMillian, 503 U.S. 1, 8 (1992) (citations omitted). The

plaintiff has a high burden:

Extreme deprivations are required to make
out a conditions-of-confinement claim. Because
routine discomfort is part of the penalty . . . only
those deprivations denying the minimal civilized
measures of life’s necessities are sufficiently grave
. . . .

Id. at 9. With respect to the subjective component,

the plaintiff must show “obduracy and wantonness, not

inadvertence or error in good faith . . . .” Wilson v. Seiter,

501 U.S. 294, 298-99 (1991). In the context of a condition-of-

confinement claim, the offending official must generally have

acted with deliberate indifference. Wilson, 501 U.S. at 303.

The Appellant relies heavily on Hope v. Pelzer, 536

U.S. 730, 737-38 (2002), where the Supreme Court held that a

prisoner’s Eighth Amendment rights were violated when prison

guards handcuffed the plaintiff to a hitching post for over

seven hours without regular water or bathroom breaks. 536 U.S.

at 733. Noting the “clear lack of an emergency situation” and

the “substantial risk of physical harm,” the Court held the use

of the hitching post violated the Eighth Amendment. Id. at 738.

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Importantly, the conduct giving rise to the constitutional

violation in Hope was in accordance with that prison’s

procedures: the use of the hitching post was a common practice.

Id. at 734-35. Similarly, the Appellant argues, he was confined

for ten days without any personal items or a mattress for

knocking on his window and arguing with the guard. Because

“Hope was treated in a way antithetical to human dignity . . .

and under circumstances that were both degrading and dangerous,”

id. at 745, his claim must move forward.

The facts of this case, however, are readily

distinguishable from Hope. To begin with, the Hope Court noted

the unusual nature of the punishment at issue: “[O]ur system of

justice has consistently moved away from forms of punishment

similar to hitching posts in prisons.” Id. at 737 n.6. Here,

in contrast, the use of a prison cell and the removal of

personal items is a common penological tool. Second, the

defendant in Hope was in substantially more physical danger than

the Appellant. There the defendant was given little to no

water, no bathroom breaks, and was attached to a post and forced

to stand up in an uncomfortable position for 7.5 hours; he was

out in the sun, without his shirt on, and the heat generated by

his handcuffs burned his skin. Id. at 735. In this case,

Lowery did allege that he suffered injury to his hip and back,

but the extent of the physical danger involved is substantially

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less. Third, the prison had a legitimate penological

justification for imposing the cell restriction. As the

Government notes in its brief, the restraints were the price

disruptive inmates pay for their behavior. The restrictions

were not arbitrarily instituted, but the result of conduct that

the Appellant himself admits was in violation of prison policy.

The legitimate interest the prison has in maintaining order --

especially in Hcon, where every inmate has already committed

several serious infractions -- was not present in Hope. While

the punishment inflicted on the Appellant was severe, it did not

constitute an unnecessary or wanton infliction of suffering.

Even assuming that the objective component of the

Eighth Amendment violation were satisfied, the Appellant has not

alleged facts sufficient to establish the subjective component -

- that the prison officials demonstrated obduracy or wantonness,

rather than inadvertence or error in good faith. See Wilson,

501 U.S. at 298-99. As the Whitley Court noted:

Prison administrators . . . should be
accorded wide-ranging deference in the adoption and
execution of policies and practices that in their
judgment are needed to preserve internal order and
discipline and to maintain institutional security.
That deference extends to . . . prophylactic or
preventive measures intended to reduce the incidence
of . . . breaches of prison discipline.

Whitley v. Alberts, 475 U.S. 312 (1986). The use of

cell restriction was not left to the discretion of correctional

11
personnel or applied on an ad-hoc basis, but uniformly applied

to all Hcon inmates causing a disturbance. There are no

allegations that suggest the officials acted in anything but

good faith. The Appellant therefore cannot meet his burden on

the Eighth Amendment claim, and we affirm the district court’s

order as to this cause of action.

If there was no Eighth Amendment violation, then there

can be no vicarious liability on the part of the supervising

officers. See Lewis v. Tripp, 604 F.3d 1221, 1227 (10th Cir.

2010). We therefore also affirm the entry of summary judgment

as to Appellees Walser, Rowland, Bennett, Addington, and

Sherrod.

Lowery next argues that the district court erroneously

entered summary judgment on his claim against Appellee Craig for

her alleged failure to provide proper medical care. An appeal

of a district court’s entry of summary judgment is reviewed de

novo. Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

The Eighth Amendment mandates that prison officials

provide inmates with “adequate . . . medical care.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994). “[D]eliberate indifference

to serious medical needs of prisoners violates the Amendment

because it constitutes the unnecessary and wanton infliction of

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pain contrary to contemporary standards of decency.” Helling v.

McKinney, 509 U.S. 25, 32 (1993) (citations omitted). “[S]uch

deliberate indifference may be manifested by prison doctors in

their response to the prisoner’s needs . . . .” United States

v. Clawson, 650 F.3d 530, 537 (4th Cir. 2011) (citations

omitted). As with any other Eighth Amendment violation, the

defendant must demonstrate that the official acted with a

sufficiently culpable state of mind and that the injury

inflicted is sufficiently serious. Shreve, 535 F.3d at 238.

With respect to the subjective component, the Supreme

Court has found that deliberate indifference can be manifested

in at least three ways: “[B]y prison doctors in their response

to the prisoner’s needs or by prison guards in intentionally

denying or delaying access to medical care or intentionally

interfering with the treatment once prescribed.” Smith v.

Smith, 589 F.3d 736, 738-39 (4th Cir. 2009) (citing Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). Here, the allegations that

the nurse was deliberately indifferent are sufficient to survive

a motion for summary judgment. According to the complaint,

Craig was informed that the Appellant had both hip and back

pain. While Craig examined Lowery’s thumb, she did not examine

his back or hip. Id. Lowery then repeated that he had back and

hip pain and requested treatment; Craig responded by saying

“no.”

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With respect to the objective component, the plaintiff

must demonstrate that the medical need was “sufficiently

serious.” “A ‘serious ... medical need’ is ‘one that has been

diagnosed by a physician as mandating treatment or one that is

so obvious that even a lay person would easily recognize the

necessity for a doctor’s attention.’” Shreve, 535 F.3d 225, 241

(4th Cir. 2008) (citing Estelle, 429 U.S. at 97). We hold that

that the injuries alleged are not sufficiently serious to make

out an Eighth Amendment claim. Lowery asserts only that he

suffers from “hip and back pain.” E.g., Br. of Appellant 32.

It is not possible to infer, based on this fact alone, that the

medical need was so serious that any lay person would recognize

the necessity of treatment. This case may be analogized to the

Sixth Circuit’s decision in Lockett v. Suardini, 526 F.3d 866,

877 (6th Cir. 2008), where that court held that a nurse’s

refusal to treat minor lacerations did not constitute a

sufficiently serious injury to make out an Eighth Amendment

claim. While the Appellant repeatedly notes that his back and

neck pain has persisted for more than a year, e.g., Br. of

Appellant 32, this argument ignores the fact that Craig’s

allegedly improper conduct occurred when the symptoms first

manifested. The Appellant must show that the medical need was

serious when he was examined by Craig, not that they were

serious one year later. The bare allegations that the Appellant

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suffered “pain” are not sufficient to establish the requisite

level of seriousness. We therefore affirm the district court’s

entry of summary judgment as to Appellee Craig.

Finally, Lowery argues that the district court

improperly denied his motion to appoint counsel. This Court

reviews the decision to deny appointed counsel in a civil case

for abuse of discretion. Whisenant v. Yuam, 739 F.2d 160, 163

(4th Cir. 1984), abrogated on other grounds by Mallard v. U.S.

Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989).

The Constitution does not compel the appointment of

counsel in civil cases. Id. However, 28 U.S.C. § 1915(e) does

give the trial courts the power to “request an attorney to

represent any person unable to afford counsel.” 28 U.S.C. §

1915(e) (1996). The courts are instructed to exercise this

power “only in exceptional circumstances.” Yuam, 739 F.3d at

163. Whether the circumstances are exceptional depends on “the

type and complexity of the case, and the abilities of the

individuals bringing it.” Id.

In this case there are no exceptional circumstances

that would justify reversing the district court on abuse-of-

discretion grounds. The issues presented -- whether the ten-day

confinement or Craig’s failure to treat the Appellant’s hip and

15
back pain violated the Appellant’s Eighth Amendment rights --

are straightforward. Moreover, the Appellant was an able

litigant: he followed the district court’s direction and timely

filed successive complaints, sought mediation, and timely filed

a notice of appeal. We therefore affirm the district court’s

denial of Appellant’s motion to appoint counsel.

III.

For the reasons discussed above, we affirm the

judgment of the district court. We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the Court and argument would not aid the

decisional process.

AFFIRMED