[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16483 ELEVENTH CIRCUIT
OCTOBER 12, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-23078-CV-ASG
LEEROY SEALEY,
Real Party in Interest,
Plaintiff-Appellant,
versus
WARDEN JORGE PASTRANA,et al.,
S.C. BITHER,
CYRIL,
JUAN MONSERRATE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 12, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
LeeRoy Sealey, a federal prisoner proceeding pro se, appeals the district
court’s order entering summary judgment in favor of several prison officials in his
Bivens1 action alleging retaliation and deliberate indifference to his serious medical
needs.2 Sealey filed the instant complaint against four employees of the Federal
Correctional Institution in Miami, Florida (“FCI Miami”): Warden Jorge Pastrana;
Superintendent of Industries and Education Stephen Bither; Clinical Director Dr.
Juan Monserrate; and Physician’s Assistant Sabrina Cyril. Specifically, he alleged
that Bither and Cyril retaliated against him for complaining about inadequate
medical care in violation of the First Amendment. He also alleged that Cyril,
Pastrana, and Dr. Monserrate acted with deliberate indifference to his medical
needs in violation of the Eighth Amendment. The defendants collectively moved
for summary judgment, which a magistrate recommended granting after finding
that Sealey’s retaliation claim against Bither was unexhausted and his remaining
claims failed on the merits. Shortly thereafter, the district court adopted the
magistrate’s report.
1
Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91
S. Ct. 1999 (1971).
2
Appellant’s motion to file an out-of-time reply brief is GRANTED.
2
On appeal, Sealey appears to argue that the district court erred in denying his
retaliation claims because Bither had a sufficient nexus to the people who retaliated
against him such that this claim was exhausted and Sealey showed that Cyril
placed him in the Special Housing Unit in retaliation for seeking medical
treatment. Sealey also appears to argue the district court erred in rejecting his
deliberate indifference claims against Cyril, Pastrana, and Monserrate by asserting
that “[a]ll the name[d] defendants” were on notice of inadequate measures that
resulted in a one-year delay in his medical treatment, which in turn caused him
significant pain and suffering. Because Sealey is proceeding pro se, we have
construed his brief liberally and conclude that he has preserved his claims against
each defendant on appeal. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.
2008). Nevertheless, as discussed below, we conclude that Sealey either failed to
exhaust or raise a genuine issue of material fact as to all of his claims and thus
affirm the district court’s grant of summary judgment to defendants.
We review a district court order granting summary judgment de novo,
viewing all of the facts in the record in the light most favorable to the non-moving
party and drawing inferences in his favor. Burger King Corp. v. E-Z Eating, 41
Corp., 572 F.3d 1306, 1312–13 (11th Cir. 2009). Summary judgment is proper “if
the pleadings, the discovery and disclosure materials on file, and any affidavits
3
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Burger King,
572 F.3d at 1313. At this stage of the proceedings, “[n]either we nor the district
court are to undertake credibility determinations or weigh the evidence.” Latimer
v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010).
Section 1983 permits an individual to maintain an action for damages
against a person who, acting under color of state law, deprives that individual of
“any rights, privileges, or immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. In Bivens, the Supreme Court held that individuals similarly have
the right to maintain an action for damages against federal officers based on
violations of their constitutional rights. 403 U.S. at 389, 91 S. Ct. at 2001. As a
procedural matter, we incorporate 42 U.S.C. § 1983 law into Bivens actions. Bolin
v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000).
However, “[n]o action shall be brought with respect to prison conditions
under section 1983 . . . or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Failure to exhaust under
§ 1997e(a) is grounds for summary dismissal. See Alexander v. Hawk, 159 F.3d
1321, 1324 (11th Cir. 1998) (holding that § 1997e(a) applies to a federal prisoner’s
4
Bivens action and dismissing for failure to exhaust). Once the threshold exhaustion
requirement is met, a court may proceed to address the merits of the alleged
constitutional violation. See Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir.
2004).
I. Retaliation
We first address Sealey’s retaliation claims against defendants Bither and
Cyril. “The First Amendment forbids prison officials from retaliating against
prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,
1248 (11th Cir. 2003). A prisoner may prevail in a retaliation claim by
demonstrating that: (1) his speech was constitutionally protected; (2) prison
officials caused him to suffer adverse action such that the retaliatory conduct
would likely deter a person of ordinary firmness from engaging in such speech;
and (3) there is a causal relationship between the retaliatory action and the
protected speech. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).
We agree with the district court that Sealey failed to exhaust his retaliation
claim against Bither pursuant to § 1997e(a). Although Sealey submitted numerous
copies of grievances in an attempt to show exhaustion, none of these grievances
named Bither personally, nor alleged that Bither retaliated against him for
5
complaining about inadequate medical care. Therefore, the district court did not
err in granting summary judgment to Bither.3 See Alexander, 159 F.3d at 1324.
We also conclude that the district court properly granted summary judgment
to Cyril with respect to Sealey’s retaliation claim. The only evidence before the
district court regarding Cyril’s alleged retaliation was Sealey’s general allegation
that he was confined in the SHU as a result of Cyril’s retaliatory actions. Cyril’s
affidavit, submitted in support of her motion for summary judgment, stated that she
never wrote a disciplinary report on Sealey and that he was not placed in the SHU.
Although neither we nor the district court may engage in credibility determinations
in evaluating a motion for summary judgment, Latimer, 601 F.3d at 1237,
Sealey, as the nonmoving party, “must present evidence beyond the pleadings
showing that a reasonable jury could find in [his] favor” in order to survive
summary judgment, Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)
(quotation omitted). By failing to contest Cyril’s affidavit or to provide any
additional evidence in support of his general allegation of retaliation, Sealey did
not raise a genuine issue of material fact as to whether Cyril took any adverse
3
We note, however, that had Sealey exhausted this claim through FCI Miami’s
administrative grievance procedure, Bither would still be entitled to summary judgment. Sealey
has not disputed evidence that Bither was not employed at FCI Miami at the time that he was
alleged to have engaged in retaliation and therefore failed to raise a genuine issue of material
fact as to this claim. See Mosley, 532 F.3d at 1276.
6
action against him. Accordingly, the district court did not err in granting Cyril
summary judgment on Sealey’s retaliation claim.
II. Deliberate Indifference to a Serious Medical Need
Sealey’s second claim is that defendants Cyril, Pastrana, and Monserrate
violated his Eighth Amendment rights by failing to attend to his medical needs.
Deliberate indifference to an inmate’s serious medical needs violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Estelle v.
Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976). However, not every claim
by a prisoner that he has not received adequate medical treatment will state an
Eighth Amendment violation. Id. at 105, 97 S. Ct. at 291. To state such a claim,
the plaintiff must demonstrate both (1) an objectively serious medical need and (2)
prison officials’ subjective deliberate indifference to that need. Farrow, 320 F.3d
at 1243.
Regarding the objective inquiry, 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.”
Id. (quotation omitted). In addition, the need must be “one that, if left unattended,
poses a substantial risk of serious harm.” Id. (quotation and alterations omitted).
Regarding the subjective inquiry, “an official acts with deliberate indifference
7
when he knows that an inmate is in serious need of medical care, but he fails or
refuses to obtain medical treatment for the inmate.” Id. at 1246 (quotation
omitted). “Even where medical care is ultimately provided, a prison official may
nonetheless act with deliberate indifference by delaying the treatment of serious
medical needs, . . . though the reason for the delay and the nature of the medical
need is relevant in determining what type of delay is constitutionally intolerable.”
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999); see also Farrow, 320
F.3d at 1246–47 (holding that a prison dentist’s 15-month delay in procuring
dentures for a prisoner without reasonable explanation created a jury question as to
whether deliberate indifference occurred).
Applying these standards, we conclude that Sealey failed to raise a genuine
issue of material fact on all three of his deliberate indifference claims. With
respect to his claim against Cyril, Sealey generally alleged that Cyril denied him
medical attention by ordering him to leave when he appeared at regular sick call on
November 18, 2008. Cyril’s sworn declaration in support of her motion for
summary judgment stated that she reviewed Sealey’s medical records that day,
noted that he was already on a chronic care list for his foot condition, and directed
him to return to the clinic during regular chronic care hours for follow-up
treatment. Cyril stated that she asked Sealey to leave the clinic after he became
8
“angry and verbally abusive.” Sealey did not dispute Cyril’s description of the
incident in his response to her motion for summary judgment and did not submit
any additional supporting evidence to demonstrate that Cyril failed or refused to
obtain him medical treatment. See Farrow, 320 F.3d at 1246. He thus failed to
“present evidence beyond the pleadings showing that a reasonable jury could find
in [his] favor,” Shiver, 549 F.3d at 1343, and the district court did not err in
granting Cyril summary judgment on Sealey’s deliberate indifference claim.
With respect to Sealey’s deliberate indifference claim against Warden
Pastrana, it is undisputed that Pastrana is not a medical professional, nor was he
directly involved in Sealey’s medical care. Thus, for Pastrana to be liable under
the Eighth Amendment for deliberate indifference to Sealey’s serious medical
need, Sealey must establish that Pastrana was responsible for his constitutional
deprivation in a supervisory capacity. When alleging deliberate
indifference—medical or otherwise—against a supervisor, a prisoner must show
either that (a) the supervisor personally participated in the alleged constitutional
deprivation or (b) there is a causal connection between the supervisor’s actions and
the alleged constitutional deprivation. Matthews v. Crosby, 480 F.3d 1265, 1270
(11th Cir. 2007). A causal connection may be established by showing that: (i) the
supervisor was on notice of a “history of widespread abuse” of constitutional
9
rights, but failed to take corrective action; (ii) the supervisor had a policy in place
that condoned the alleged constitutional deprivation; or (iii) the supervisor directed
subordinates to act unlawfully or knew that subordinates would act unlawfully and
failed to stop them from doing so. Id.
Sealey failed to introduce any evidence either of Pastrana’s personal
participation in his alleged constitutional deprivation or a causal connection
between Pastrana’s actions and this deprivation. Although Pastrana admitted in his
sworn declaration that he was familiar with Sealey and his medical issues, the only
record evidence regarding Pastrana’s involvement in Sealey’s medical treatment is
a response to Sealey’s request for an administrative remedy, dated April 11, 2008.
This document demonstrates that far from failing to take corrective action or
failing to stop his subordinates from neglecting Sealey’s medical needs, see id. at
1270, Pastrana and his staff were able to secure a follow-up appointment with a
podiatrist to ensure a proper fit for Sealey’s requested leg brace. Nor is there any
evidence of record that Pastrana had policies in place that condoned deliberate
indifference to Sealey’s medical needs. See id. Accordingly, the district court did
not err in granting summary judgment to Pastrana on Sealey’s deliberate
indifference claim.
10
Lastly, Sealey failed to establish a genuine issue of material fact on his
deliberate indifference claim against Dr. Monseratte. We agree with the district
court that given the relatively short time period in which medical professionals
acknowledged that Sealey’s degenerative conditions required medical intervention,
Sealey did have a serious medical need. See Farrow, 320 F.3d at 1244–45.
Further, the one-year delay in providing Sealey with the appropriate footwear,
during which he suffered ongoing pain, and the fact that he never received surgery
for his degenerative hip condition could amount to deliberate indifference. See id.
at 1246–47.
As the Clinical Director at FCI Miami, Monserrate admitted to knowing the
full extent of Sealey’s medical conditions and to being responsible for the medical
decisions related to his care. However, the record does not contain any evidence
that Monserrate personally failed or refused to provide Sealey with medical
treatment or was responsible for any delay in or denial of the provision of such
treatment. To the contrary, the uncontested evidence demonstrates that Monserrate
saw Sealey regularly, at which time he identified his conditions and treated them
with a lower bunk assignment and various pain medications, ordered orthotic
inserts, requested a surgical transfer, and referred Sealey to specialists who
prescribed special shoes. The record also demonstrates that it was the BOP
11
committee, not Monserrate, that was ultimately responsible for the denial of
Sealey’s hip surgery and the significant delay in approving the request for
orthotics.4 Sealey did not provide any evidence to the contrary, and therefore
failed to raise a genuine issue of material fact as to Monserrate’s deliberate
indifference to his serious medical needs. Accordingly, we hold that the district
court did not err in granting Monserrate summary judgment on Sealey’s deliberate
indifference claim.
AFFIRMED.
4
Insofar as the delays in Sealey’s treatment resulted from decisions at the BOP
level, we note that Sealey may have been able to state a claim against other officials for their
deliberate indifference. The district court acknowledged as much by granting Sealey leave to
amend his complaint so as to name the responsible parties. However, by appealing the district
court’s order without amending his complaint, Sealey waived that right. See Schuurman v.
Motor Vessel Betty K V, 798 F.2d 442, 445 (11th Cir. 1986) (holding that a plaintiff who chooses
to appeal before the expiration of the time allowed for amendment waives the right to later
amend the complaint).
12