UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6425
JOHN N. LOWERY,
Plaintiff - Appellant,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
I.
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.
A.
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.
B.
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
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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).
1.
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
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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.
C.
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.
D.
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
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