[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
December 22, 2005
No. 05-12337 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01037-CV-MHS-1
TERRY DALE REDD,
Plaintiff-Appellant,
versus
R. L. CONWAY,
MIKE BOYD, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 22, 2005)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Terry Dale Redd, a Georgia pretrial detainee proceeding pro se,
appeals: (1) the grant of the defendants’ motions for summary judgment in his 42
U.S.C. § 1983 civil rights action alleging excessive force and deliberate
indifference to serious medical needs; (2) the dismissal of his claims of retaliation
as frivolous; (3) the dismissal of his claim of denial of access to the courts as
frivolous; and (4) the denial of his motions for appointment of counsel. Redd
claimed in the district court that prison and health care officials at the Gwinnett
County Detention Center (“GCDC”) refused him immediate medical treatment
after he was subjected to excessive force in connection with his arrest and arrival,
and later denied him adequate medical care for an injury to his ankle, acid reflux
disease, and eczema. He also alleged that he was denied supplies and time
necessary to pursue his claims, and that he was entitled to appointment of counsel
in the district court. Each of his arguments on appeal are addressed in turn.
I.
We review a district court’s grant of summary judgment de novo, applying
the same legal standards used by the district court. Butts v. County of Volusia, 222
F.3d 891, 892 (11th Cir. 2000). Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material fact and that the
2
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex
v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).
We view the evidence and all factual inferences therefrom in the light most
favorable to the party opposing the motion, and all reasonable doubts about the
facts are resolved in favor of the nonmovant. Burton v. City of Belle Glade, 178
F.3d 1175, 1187 (11th Cir. 1999).
While “[c]laims involving the mistreatment of arrestees or pretrial detainees
in custody are governed by the Fourteenth Amendment’s Due Process Clause
instead of the Eighth Amendment's Cruel and Unusual Punishment Clause,”
Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996), we have held that, “in
regard to providing pretrial detainees with such basic necessities as food, living
space, and medical care the minimum standard allowed by the due process clause
is the same as that allowed by the [E]ighth [A]mendment for convicted persons,”
Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985).
Deliberate indifference to an inmate’s serious medical needs violates the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L.
Ed. 2d 251 (1976). However, “[m]edical treatment violates the Eighth Amendment
only when it is ‘so grossly incompetent, inadequate, or excessive as to shock the
conscience or to be intolerable to fundamental fairness.’ Mere incidents of
3
negligence or malpractice do not rise to the level of constitutional violations.”
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (internal citations
omitted). The analysis of a claim of deliberate indifference has two components:
(1) whether evidence of a serious medical need existed; and (2) whether the
defendant’s response to that need constituted deliberate indifference. Adams v.
Poag, 61 F.3d 1537, 1543 (11th Cir. 1995).
To prevail on a substantive due process excessive force claim by a pretrial
detainee, the plaintiff must prove that defendants’ actions “shock the conscience”
and mere negligence is not enough. Lumley v. City of Dade City, Fla., 327 F.3d
1186, 1196 (11th Cir. 2003). The factors to be considered in assessing such a
claim include: (1) the need for force; (2) the relationship between the need for
force and the amount of force used; (3) the extent of the injury inflicted; and (4)
whether force was applied by the defendant in a good faith effort to restore or
maintain discipline or rather maliciously and sadistically with the very purpose of
causing harm. Carr v. Tatangelo, 338 F.3d 1259, 1271 (11th Cir. 2003).
As to Redd’s claim of deliberate indifference to serious medical needs, the
record demonstrates that, on the day that he was booked, when he turned his ankle
and was forcibly restrained, the jail medical staff evaluated him immediately,
cleaning blood off his forehead, wrapping his ankle, and giving him ibuprofen.
4
The medical staff decided that Redd did not need to go to the hospital, but one
month later, they sent him for x-rays, which confirmed that his ankle was not
broken. The record further demonstrates that medical staff examined Redd on
eleven occasions, responding to every medical complaint he had, however, Redd
often disagreed with the treatment recommendations and refused treatment. For
example, Redd requested Nexium to treat his acid reflux, but when medical staff
prescribed him Zantac, he refused it and took Maalox instead. In addition, the
records and affidavits of those who communicated with or treated Redd for his
eczema show that he was given soap and ointment, and that this treatment
complied with the applicable standard of care. Based on this evidence, Redd’s
complaints amounted to no more than a preference for a different course of
treatment than he was provided. There was no evidence that defendants acted with
an attitude of deliberate indifference or that they refused or failed to treat him.
Accordingly, the district court properly concluded that there was no issue of
material fact with respect to this claim.
As to his excessive force claim, Redd alleged that Officer R.B. Whitehead
pushed and pulled him while leading him in handcuffs, causing him to twist his
ankle and injure his foot. The record supports the conclusion that force was
necessary because Redd was uncooperative upon arrest, and that he kicked the
5
individual who reported him for shoplifting. Though the record is unclear how
much force Whitehead used, notes from the jail medical staff from the day that
Redd was arrested and his subsequent medical records indicate that the injury was
minimal. Specifically, there was no swelling, bruising, or lack of movement in
Redd’s ankle and x-rays taken a month later did not show any fractures. In
addition, Redd presented no evidence that Whitehead acted maliciously and
sadistically with the intent of causing harm. See Carr, 338 F.3d at 1271.
Accordingly, the district court properly concluded that there was no issue of
material fact with respect to Redd’s argument that Whitehead used excessive force
in arresting and booking him.
Redd also claimed that other unspecified officers used excessive force in
booking him because one officer tackled him to the ground and other officers
assisted in beating and hog-tying him. With respect to the beating, a response to a
grievance that Redd filed at GCDC, dated February 27, 2004, stated that he was
belligerent, verbally and physically assaultive, and required the use of force in
order to be admitted. It also stated that medical staff evaluated his condition after
restraint was used to book him, and found only that he had a scratch on his chest
and an abrasion on his cheek. Furthermore, the admissions of undisputed facts to
which Redd did not respond reflected that force was necessary to restrain him upon
6
his admission to GCDC. Redd did not refute these admissions or otherwise present
evidence to counter the written documentation of the events in question. He also
presented no evidence that his injuries were more severe than reflected in the
medical records and affidavits presented by the defendants.
Based on the record, we conclude that the amount of force required to
restrain Redd was equal to the need for force based on Redd’s belligerent and
violent behavior. See Carr, 338 F.3d at 1273. The scratches and scrapes that Redd
suffered amounted to minor injuries. The force was applied in an effort to restore
and maintain discipline, and not sadistically or maliciously. See id. Accordingly,
the district court properly concluded that there was no issue of material fact with
respect to this claim.
To the extent that Redd claimed that the supervisors at GCDC were liable
for the actions of their employees, the district court’s grant of summary judgment
was also proper. First, Redd failed to allege that these individuals were directly
involved in depriving him of his constitutional rights. See Monell, 436 U.S. at
691-93, 98 S. Ct. at 2036-37; Tuttle, 471 U.S. at 820, 105 S. Ct. at 2434. Second,
the doctrine of respondeat superior generally is not recognized under § 1983.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-93, 98 S. Ct. 2018, 2036-37, 56
L. Ed. 2d 611 (1978). Rather, supervisory liability only attaches where a
7
government’s custom or policy is “the moving force of the constitutional
violation.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 820, 105 S. Ct. 2427,
2434, 85 L. Ed. 2d 791 (1985) (citations omitted). Redd failed to demonstrate that
such a policy existed and could not make such a showing because there was no
constitutional violation.
Based upon the foregoing, we find no error in the district court’s grant of the
defendants’ motions for summary judgment, and we affirm on these bases.
II.
We review the district court’s dismissal of Redd’s retaliation claims as
frivolous for abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001). A claim is frivolous if it is without arguable merit either in law or fact.
Battle v. Central State Hosp., 898 F.2d 126, 129 (11th Cir. 1990).
The First Amendment protects inmates from retaliation by prison officials
for filing lawsuits or administrative grievances. Wright v. Newsome, 795 F.2d 964,
968 (11th Cir. 1986); see also Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997).
Redd alleged that the defendants retaliated against him by failing to provide
him with adequate medical care and by returning his legal mail. As to Redd’s
claim of inadequate medical care retaliation, he admitted in his filing alleging said
8
claim that officials continued to give him Dove soap for his eczema, but
complained that they failed to provide him with the ointment and pills he required.
The record before this court, however, simply does not show such retaliation.
Redd’s medical records indicate that he was seen by the medical staff repeatedly
for his complaints of eczema, acid reflux, and ankle injury. The medical officials
ordered his medical records regarding his eczema from Grady Hospital and, after
an evaluation, prescribed him ointment and Dove soap. The records also show that
Redd was evaluated and given medication for his acid reflux disease and anti-
inflamatories for his ankle, and that his ankle was evaluated, bandaged, and x-
rayed. There is no showing that the treatment of Redd’s conditions declined after
the defendants were served with process or that he was denied treatment as
retaliation for filing the complaint or administrative grievances.
Redd also failed to show that the jail staff retaliated against him by returning
his legal mail. Specifically, he failed to demonstrate that officials refused to send
his legal mail. Rather, he relied upon copies of envelopes that were stamped by the
United States Postal Service as inadequately addressed.
Based upon the foregoing, we conclude that the district court did not abuse
its discretion in dismissing Redd’s retaliation claims as frivolous, and we affirm on
this basis.
9
III.
We also review the district court’s frivolous dismissal of Redd’s access to
the courts claim for abuse of discretion. Bilal, 251 F.3d at 1349.
The First Amendment grants prisoners a limited constitutional right of
access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494, 52
L. Ed. 2d 72 (1977). An inmate alleging lack of access to the courts must show
actual injury, i.e., that the lack of access has hindered his efforts to pursue a legal
claim. Lewis v. Casey, 518 U.S. 343, 349-51, 116 S. Ct. 2174, 2179-80, 135 L. Ed.
2d 606 (1996). Accordingly, an inmate must allege that the prison official
impeded his pursuit of a non-frivolous, post-conviction claim or civil rights action,
such as a denial or dismissal of a direct appeal, habeas petition, or civil rights case
seeking to vindicate basic constitutional rights. Lewis, 518 U.S. at 348-54, 116 S.
Ct. at 2178-82.
In regard to Redd’s claim that he was denied access to the courts, he asserted
that he was not provided with adequate legal supplies or access to the law library.
He did not allege that his efforts to pursue a legal claim were hindered, and the
extensive filings that he has made in furtherance of his claim indicate the contrary.
See Lewis, 518 U.S. at 348-51. Accordingly, we conclude that the district court did
not abuse its discretion in dismissing his claim of lack of access to the courts, and
10
we affirm on this basis as well.
IV.
We review the district court’s denial of appointment of counsel for abuse of
discretion. Steele v. Shah, 87 F.3d 1266, 1270-71 (11th Cir. 1996). Prisoners
raising civil rights claims, like other civil litigants, have no constitutional right to
counsel. Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). Pursuant to 28 U.S.C.
§ 1915(e)(1), a court has broad discretion to appoint counsel for an indigent
plaintiff in a civil case only if exceptional circumstances exist. Bass v. Perrin, 170
F.3d 1312, 1320 (11th Cir. 1999). “Exceptional circumstances” include the
presence of “facts and legal issues [which] are so novel or complex as to require
assistance of a trained practitioner.” Kilgo, 983 F.2d at 193.
We conclude that the district court did not abuse its discretion in refusing to
appoint counsel, as the issues raised in connection with Redd’s § 1983 suit were
not too novel or complex for him to represent himself effectively. Indeed, he made
numerous filings with the district court wherein he adequately represented his
interests. Hence, the circumstances were not exceptional, and the denial of counsel
was not an abuse of discretion.
Based on the foregoing reasons, we affirm the dismissal of Redd’s
retaliation and denied access to courts claims, the denial of appointment of counsel,
11
and the grant of summary judgment for the defendants.
AFFIRMED.1
1
We DENY Redd’s motion to appoint counsel on appeal.
12