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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13431
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-00360-MHT-CSC
LEARONARDO TRUSS,
Plaintiff-Appellant,
versus
WARDEN,
CHARLES MCKEE,
LEON BOLLING,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Alabama
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(April 4, 2017)
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Learonardo Truss, a state prisoner proceeding pro se, appeals from the
district court’s grant of summary judgment in favor of Warden Leeposey Daniels,
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Warden Leon Bolling, and Captain Charles McKee (collectively, “the prison
defendants”) in his 42 U.S.C. § 1983 action, alleging violations of the Eighth
Amendment and state-law negligence claims at Elmore Correctional Facility
(“Elmore”). On appeal, Truss argues that he created a triable issue of fact as to
whether the prison defendants were deliberately indifferent to the risks concerning
his exposure to tuberculosis (“TB”) in an overcrowded prison and the use of
unsanitary hair clippers by prison barbers. After thorough review, we affirm.
We review the district court’s grant of summary judgment de novo, viewing
the facts in the light most favorable to the non-moving party. Harrison v. Culliver,
746 F.3d 1288, 1297–98 (11th Cir. 2014). A district court should grant summary
judgment where the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Id. A legal
claim or argument that is not briefed on appeal is deemed abandoned. Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
The Eighth Amendment prohibits the infliction of “cruel and unusual
punishments.” U.S. Const. amend. VIII. The Supreme Court has held that a prison
official’s deliberate indifference to a prisoner’s serious medical needs constitutes
the type of cruel and unusual punishment proscribed by the Eighth Amendment.
Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003) (citing Estelle v. Gamble,
429 U.S. 97, 104 (1995)). To survive summary judgment on a deliberate-
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indifference claim, a plaintiff is “required to produce sufficient evidence of (1) a
substantial risk of serious harm; (2) the defendants’ deliberate indifference to that
risk; and (3) causation.” Hale v. Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir.
1995). As for the first element, whether a particular condition of confinement
results in a “substantial risk of serious harm” is assessed under an objective
standard and requires a showing of extreme conditions that pose an unreasonable
risk of serious injury to an inmate’s future health or safety. Lane v. Philbin, 835
F.3d 1302, 1307 (11th Cir. 2016).
As for the second element, we’ve explained that deliberate indifference has
the following components: (1) subjective knowledge of an objective risk of serious
harm; (2) a disregard of that risk; (3) by conduct that is more than mere negligence.
Farrow, 320 F.3d at 1245. The existence of a policy may constitute evidence that
prison officials were not deliberately indifferent to the risks posed by exposure to
TB. Helling v. McKinney, 509 U.S. 25, 35–37 (1993). Deliberate indifference is
medical care that is “so grossly incompetent, inadequate, or excessive as to shock
the conscience or to be intolerable to fundamental fairness.” Rogers v. Evans, 792
F.2d 1052, 1058 (11th Cir. 1986).
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Here, the district court did not err in granting summary judgment in favor of
the prison defendants. 1 As for his first claim concerning TB, accepting that
Truss’s exposure to TB constitutes a “substantial risk of serious harm,” we can find
no dispute of fact indicating that the prison defendants were deliberately indifferent
to that risk. Hale, 50 F.3d at 1582. We accept that there is ample evidence in the
record that the prison defendants were aware of the risks associated with TB -- and
the particular prevalence of those risks in an admittedly overcrowded prison dorm.
Truss submitted sworn responses to the prison defendants’ special reports and
submitted several other inmates’ affidavits, all of which claimed that the prison
defendants were aware of the TB outbreak. Truss also points to statements from
the prison defendants’ own affidavits in which they acknowledged that they were
aware of the TB outbreak.
However, Truss has failed to produce any evidence that the prison
defendants disregarded the risks associated with TB in an overcrowded prison.
The undisputed record shows that Elmore Correctional Facility had policies in
place mandating: (1) TB testing upon an inmate’s initial intake screening; (2)
periodic TB testing thereafter; (3) an investigation about with whom an inmate
diagnosed with active TB has been in contact; (4) isolation of inmates with active
1
As an initial matter, because Truss did not make any reference in his brief on appeal to his
negligence claims or his generic Eighth Amendment claims concerning the manner in which he
received his TB medication and the lack of an on-site healthcare facility, he has abandoned those
issues on appeal. Access Now, 385 F.3d at 1330.
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TB; and (5) the administration of INH (prophylactic TB medication) for nine
months for an inmate who receives a positive TB test result to prevent active TB
from developing. As the Supreme Court recognized in Helling, 509 U.S. at 35–37,
the existence of reasonable policies like these constitutes evidence that the prison
defendants were not deliberately indifferent to the risks posed by an inmate’s
exposure to TB. Moreover, the undisputed record shows that these procedures
were followed at Elmore for two inmates who were diagnosed with active TB, and
for Truss when he was diagnosed with latent TB.
Despite this undisputed evidence, Truss has not put forth evidence to show
that the prison defendants failed to comply with the established procedures for
diagnosing and preventing TB or that those procedures were constitutionally
inadequate. Rogers, 792 F.2d at 1058. Instead, the sworn statements he relies on
claim that prison officials failed to separate inmates who had been exposed to TB
(as opposed to those who had been diagnosed with active TB), limited their access
to fresh air inside the overcrowded dorms, and did not allow face masks. But these
statements do not show that Elmore did not follow its procedures for dealing with
TB; notably, for example, they do not say that inmates with active TB were housed
with the other inmates. Nor do the statements indicate that Elmore’s procedures
were inadequate. Instead, in relying on these statements, Truss merely quibbles
with the sufficiency of the procedures or the way in which they were implemented
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in this case. But this does not mean he has shown a dispute of fact about deliberate
indifference -- one that would require him to show that the care he received in
response to the TB exposure was “so grossly incompetent, inadequate, or excessive
as to shock the conscience.” Rogers, 792 F.2d at 1058.
Truss also claims that the overcrowding of the prison demonstrated the
prison defendants’ deliberate indifference. It is true that the prison defendants
acknowledged that the prison was overcrowded and that this could make it more
difficult to contain an outbreak of TB. However, as we’ve detailed, Elmore had
policies in place for preventing and treating TB -- by separating inmates with
active cases and investigating with whom they had been in contact, initially
screening inmates for TB and periodically testing them thereafter, and
administering INH for nine months for any inmates who tested positive for TB,
even if it was not active. Truss has not shown a dispute of fact indicating that the
prison defendants were indifferent to the risks associated with overcrowding, at
least not to an extent that was “so grossly incompetent, inadequate, or excessive as
to shock the conscience.” Id.
As for Truss’s second deliberate-indifference claim regarding Elmore’s
alleged use of unsanitary hair clippers, he failed to show either a substantial risk of
serious harm or the defendant’s deliberate indifference. To show a substantial risk
of serious harm, Truss argues that the use of unsanitary clippers could lead to
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infection and the spread of disease. But, importantly, he failed to point to any
evidence that any harm had resulted or was likely to result. He therefore did not
show that he was subjected to objectively extreme conditions that posed an
unreasonable threat of serious harm to his health. Lane, 835 F.3d at 1307.
But even assuming the risks associated with unsanitary clippers would
constitute a substantial risk of serious harm, he failed to show either that the prison
defendants were subjectively aware of such risk or that they disregarded it.
Farrow, 320 F.3d at 1245. The record shows that: (1) the prison barber shop used
clippercide and barbercide to prevent the spread of disease; (2) the tools used in the
barber shop were disinfected daily by the inmate barbers; (3) there were
“Institution Barber Shop and Beauty Salon Guidelines” in place and weekly
inspections were conducted to ensure compliance; and (4) there was a training
program in place for the inmates hired to work in the barber shop. The existence
of the barber shop guidelines, which specifically required scrupulous cleaning of
all instruments after use, constitutes evidence that the prison defendants were not
deliberately indifferent or any risks associated with unsanitary clippers. See
Helling, 509 U.S. at 35–37.
Truss points to the affidavits of various other inmates who stated that they
have never seen the inmate barbers sanitize the clippers. While this may create a
factual issue as to whether the procedures that were in place were dutifully
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followed, it does not indicate that the prison defendants were subjectively aware
that this was occurring. Rather, the undisputed evidence established that the prison
defendants were unaware of any improper sanitation of barbering tools. Truss
therefore failed to show any dispute of fact concerning the defendant’s subjective
knowledge of the purported risk of serious harm he identified. Farrow, 320 F.3d at
1245. Accordingly, because Truss failed to produce evidence that would create a
triable question of fact as to whether the prison defendants were deliberately
indifferent to a substantial risk of serious harm, the district court did not err in
granting summary judgment. Harrison, 746 F.3d at 1297–98.
AFFIRMED.
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