[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13825 NOVEMBER 9, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-01283-CV-J-20-HTS
SIDDIQ ASAD,
Plaintiff-Appellant,
versus
JAMES CROSBY,
J. F. LINDSEY,
TOMMY BOSTON,
DANNY HERRING,
ALFRED W. BOETTJER, et al.,
Defendants-Appellees,
ALEX TAYLOR,
L.E. TURNER, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 9, 2005)
Before TJOFLAT, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Siddiq Asad, a Florida state prisoner proceeding pro se, appeals the district
court’s dismissal, in part, and entry of summary judgment, in part, on his 42 U.S.C.
§ 1983 action, in which he alleged that officers at the Hamilton Correctional
Institution (“HCI”) violated his constitutional rights by prohibiting him from
praying under a stairwell at the facility. Asad also claimed, among other things,
that the defendants acted in furtherance of a conspiracy to retaliate against him
after he filed a grievance against Sergeant Tommy Boston.
On appeal, Asad argues the district court erred by (1) dismissing the
complaint as to Lieutenant Sandra Dupree based on Asad’s inability to effect
proper service; (2) dismissing, pursuant to Fed. R. Civ. P. 12(b)(6), Asad’s
supervisory liability claim against Secretary Michael W. Moore and
Superintendent L.E. Turner and his access-to-courts claim against Officer
Christopher M. Sapp;1 and (3) granting defendants’ second motion for summary
1
Asad also appeals the Rule 12(b)(6) dismissal of his claims for compensatory and punitive
damages. Pursuant to 42 U.S.C. § 1997e(e), “[n]o Federal action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while
in custody without a prior showing of physical injury.” Asad does not assert any actual physical
injury resulting from the defendants’ conduct. Accordingly, the district court did not err by
dismissing his claims for compensatory or punitive damages. Cf. Harris v. Garner, 216 F.3d 970,
984-85 (11th Cir. 2000) (en banc) (holding that “Federal civil action” in § 1997e(e) means all
federal claims, including constitutional claims), reinstating in part 190 F.3d 1279 (11th Cir. 1999).
To the extent that Asad is arguing that § 1997e(e) is inapplicable to his claim because he is not
alleging an emotional or mental injury, Asad’s failure to establish the violation of a fundamental
constitutional right precludes any type of recovery, including recovery for nominal damages. Cf.
2
judgment on Asad’s claim alleging a violation of his right to freely exercise his
religion and Asad’s due-process claim.2 After thorough review of the record and
the parties’ briefs, we affirm.
Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (holding that § 1997e(e) does not preclude
prisoner’s recovery of nominal damages, even in the absence of actual physicial injury, where
prisoner establishes violation of a fundamental constitutional right).
2
Asad’s argument that the district court erred by denying his motions for preliminary
injunction, in which he requested to be removed from close-management confinement, has been
rendered moot. In the district court, Asad acknowledged that on September 1, 2000 he was
transferred from HCI to Baker Correctional Institute (“ BCI”) to serve his close-management time
and, as of February 21, 2002, he was released from close management at BCI. Asad did not request
any injunctive relief, or assert any claims, against officials at BCI, and does not demonstrate a real
possibility that he might encounter the named defendants from HCI again at another correctional
institution. Cf. Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir. 1988) (holding that claims
regarding treatment at a facility at which prisoner was no longer incarcerated were moot); Zatler v.
Wainwright, 802 F.2d 397, 399 (11th Cir. 1986) (affirming the dismissal of an inmate’s request for
injunctive relief as moot because at the time the district court rendered its decision, the inmate was
no longer incarcerated at the prison where the alleged constitutional deprivation occurred).
Moreover, Asad has not alleged any of the circumstances that would qualify him for any exception
to his claim being considered moot. See Bekier v. Bekier, 248 F.3d 1051, 1054, n.4 (11th Cir.
2001).
As for Asad’s argument that the district court erred by denying his motions for appointment
of counsel, we can find no abuse of discretion. Cf. United States v. Berger, 375 F.3d 1223, 1226
(11th Cir. 2004) (reviewing denial of motion for appointment of counsel for abuse of discretion).
We also summarily affirm the entry of summary judgment on Asad’s other administratively
exhausted claims. Based on our review of the district court’s thorough opinion, we are not
persuaded by Asad’s arguments that the district cout’s analysis of his retaliation, conspiracy, and
close-management claims was too general or should have been more thorough. The record is clear
that the district court carefully considered these claims and that the court’s consideration included
a review of Asad’s many exhibits. As for Asad’s argument concerning the entry of summary
judgment on his discrimination claim against Sergeant Glover, we are satisfied the district court’s
failure to address the claim does not warrant reversal given the district court’s analysis of Asad’s
identical claim, also based on an alleged racial epithet, against Sergeant Boston.
3
We review for abuse of discretion a district court’s ruling on dismissal for
failure to timely serve a summons and complaint. See Brown v. Nichols, 8 F.3d
770, 775 (11th Cir. 1993) (analyzing former Fed. R. Civ. P. 4(j)). We review de
novo the dismissal of a complaint pursuant to Rule12(b)(6). Rivera v. Leal, 359
F.3d 1350, 1353 (11th Cir. 2004). “Dismissal under Rule 12(b)(6), Fed. R. Civ. P.,
is appropriate ‘only if it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations of the complaint.’”
Rendon v. Valley Crest Productions, Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002).
We review “a grant of summary judgment de novo, using the same legal
standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (quoting Fed. R.
Civ. P. 56(c)). While the evidence, and all inferences drawn from the facts, must
be viewed in the light most favorable to the non-moving party, in order to defeat
summary judgment, the non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
4
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986).
The relevant facts are straightforward and largely undisputed. On November
27, 2000, Asad filed this action, naming sixteen defendants3 and alleging that: (1)
the defendants violated his constitutional right to freely exercise his religion by
preventing him from praying under a stairwell at HCI; (2) certain defendants were
liable to him under the doctrine of supervisory liability; (3) he received false
disciplinary reports in retaliation for his filing grievances; (4) the defendants
conspired to prevent him from praying under the stairwell; and (5) the defendants
violated his constitutional right to access the courts and his right to due process. In
support of his complaint, which exceeded 50 pages, Asad filed over 100 pages of
exhibits, the majority of which were copies of grievances he filed and the officers’
responses to them, along with disciplinary reports and hearings he received.
As for the claims pertinent to this appeal, Asad alleged the following. After
Asad filed a grievance against Sergeant Boston, in which he claimed that Boston
told Asad not to look at Boston’s face, Boston retaliated against Asad by forming a
3
Asad subsequently filed an amended complaint against the following defendants: Michael
W. Moore, Secretary of the Florida Department of Corrections (“FDOC”); HCI Superintendent L.E.
Turner; HCI Colonel J.F. Lindsey; HCI Administrative Lieutenant Sandra L. Dupree; HCI Sergeants
Tommy Boston, Danny Herring, Alfred W. Boettjer, John T. Santerfeit, Allen L. Smith, and Jeffrey
A. Glover; and HCI Correctional Officers Christopher M. Sapp, Mark Register, and John Stepp.
5
conspiracy against him that included Officers Sapp and Register and Asad’s fellow
inmates, all of whom harassed him. The conspiracy also included: (1) Sergeants
Herring and Boettjer, who filed disciplinary reports against Asad for praying under
the stairwell; (2) Sergeant Santerfeit, who filed a disciplinary report stating that
Asad lied to him by claiming that Sergeant Boston gave Asad permission to pray
under the stairwell; (3) Sergeant Smith, who filed disciplinary reports against Asad
for praying under the stairwell; and (4) Sergeant Glover, who filed an allegedly
false disciplinary report against Asad for praying under the stairwell and who
verbally attacked Asad by calling him a “nigger.”
In his complaint, Asad further alleged that Colonel Lindsey and Officer
Stepp took part in a related conspiracy to place Asad in close-management
confinement. Also according to Asad’s complaint, Officer Sapp, in addition to
participating in the conspiracy, hindered Asad’s access to the courts by
confiscating portions of Asad’s complaint pertaining to Officer Sapp and his
friends, which delayed Asad’s filing of the instant action. Finally, Asad asserted
that Secretary Moore and Superintendent Turner were liable to him under the
doctrine of supervisory liability because they failed (1) to properly train and
supervise their subordinates; (2) to take adequate measures to cure the
6
constitutional violations against Asad; and (3) to afford Asad relief during the
grievance process.
In his request for relief, Asad asked the district court to issue a declaratory
judgment that each defendant violated Asad’s constitutional rights and requiring
each defendant to submit a written apology admitting his/her role and guilt in the
violation of his constitutional rights. Asad also requested injunctive relief and
compensatory and punitive damages exceeding $2 million.
The defendants subsequently filed a partial motion to dismiss and a motion
for summary judgment. The district court granted the motion to dismiss as to
Secretary Moore and Superintendent Turner after finding that Asad could not
recover under respondeat superior because he did not allege any affirmative casual
connection between Moore or Turner and any constitutional deprivation suffered.
The district court also dismissed Asad’s access-to-courts claim against Officer
Sapp, based on Asad’s failure to allege a sufficient injury to establish the claim,
and Asad’s requests for compensatory and punitive damages because they were
foreclosed by 42 U.S.C. § 1997e(e).
After the partial dismissal of the amended complaint, Asad filed a second
amended complaint in which he dropped defendants Moore, Turner, and Sapp. He
sought injunctive relief and monetary damages, and alleged that the remaining ten
7
defendants violated: (1) the Free Exercise Clause of the First Amendment of the
United States Constitution; (2) Article I, Section Three of the Florida Constitution;
(3) the 2000 Religious Land Use and Institutionalized Persons Act; (4) the Florida
Religious Freedom Restoration Act of 1998; (5) the Petition Clause of the First
Amendment of the United States Constitution and Article I, Section Five of the
Florida Constitution; (6) the Due Process and Equal Protection Clauses of the
Fourteenth Amendment of the United States Constitution and Article I, Sections
Two and Nine of the Florida Constitution; (7) 42 U.S.C. § 1981 and its Florida
equivalent; and (8) 42 U.S.C. § 1985(3) and Florida Statute Section 777.04.
The remaining defendants refiled their motion for summary judgment. The
district court found that Asad’s claim of racial discrimination against Sergeant
Boston “based upon allegedly disrespectful language, did not rise to the level of a
federal constitutional law.” The district court also held that Sergeants Herring and
Bottjer did not violate Asad’s right to freely exercise his religious beliefs when
they charged him with disobeying a verbal order not to pray under the stairwell
because the prohibition against conducting activity under the stairwell was
reasonably related to the legitimate penological interest of reducing security risks
and Asad was not prohibited from praying in his cell or in the institution’s chapel.
The court further found that Asad offered no evidence, other than his own
8
conclusory allegations, of an agreement between Officer Stepp and Colonel
Lindsey to place Asad in close-management confinement. Moreover, the court
held that Asad’s due-process rights were not violated in association with
disciplinary reports dated February 6, 2000, May 23, 2000, June 11, 2000 and July
17, 2000 because Asad was present at all of his disciplinary proceedings, his
witness statements were considered, and evidence supported the actions taken by
the disciplinary team. Finally, the district court determined that because Asad’s
claims did not rise to the level of federal constitutional violations, the defendants
were entitled to the defense of qualified immunity. The court dismissed all of
Asad’s claims for which he failed to exhaust his administrative remedies and
granted summary judgment on the exhausted claims. This appeal followed.
First, Asad argues that the district court erred when it dismissed Lieutenant
Dupree because she was a central figure in his due process and related claims.4
Under Fed. R. Civ. P. 4(c)(1), “the plaintiff is responsible for service of a summons
and complaint within the time allowed under subdivision (m).” Rule 4(m)
provides that:
4
In this claim, Asad highlights that he is a pro se prisoner who went to great lengths to try
and serve process on Lieutenant Dupree. The Fifth Circuit has held that pro se status “does not
exempt a party from compliance with relevant rules of procedural and substantive law . . . ‘[t]o hold
that complete ignorance of Rule 4(j) [predecessor of Rule 4(m)] constitutes good cause for untimely
service would allow the good cause exception to swallow the rule.’” Kersh v. Derozier, 851 F.2d
1509, 1512 (5th Cir. 1988) (citations omitted). We agree with the reasoning in Kersh and apply it
here.
9
If service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the court,
upon motion or on its own initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that defendant or direct that
service be effected within a specified time; provided that if the
plaintiff shows good cause for the failure, the court shall extend the
time for service for an appropriate period
Fed. R. Civ. P. 4(m); see also Horenkamp v. Van Winkle and Co., Inc., 402 F.3d
1129, 1132 (11th Cir. 2005) (holding that “Rule 4(m) grants discretion to the
district court to extend the time for service of process even in the absence of a
showing of good cause.”). “Good cause exists only when some outside factor,
such as reliance on faulty advice rather than inadvertence or negligence, prevented
service.” Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991) (discussing “good
cause” under former Rule 4(j)), superseded in part, as stated in Horenkamp, 402
F.2d at 1132 n.2.
The district court did not abuse its discretion by dismissing Lieutenant
Dupree from the action given Asad’s failure to effect proper service on Lieutenant
Dupree. Notably, Asad had well over 120 days to serve Dupree, and he made no
showing of any cause, let alone good cause, to excuse his failure to effect proper
service. Accordingly, the district court did not err on this basis.
Next, Asad challenges the district court’s dismissal of his
respondeat superior claims against Secretary Moore and Superintendent Turner. It
10
is well-settled that “supervisory officials are not liable under § 1983 for the
unconstitutional acts of their subordinates on the basis of respondeat superior or
vicarious liability.” Miller v. King, 384 F.3d 1248, 1261 (11th Cir. 2004). Rather,
such liability attaches under § 1983 only “when the supervisor personally
participates in the alleged unconstitutional conduct or when there is a causal
connection between the actions of a supervising official and the alleged
constitutional deprivation.” Id. (emphasis added).5
The record reveals no evidence, or even an allegation, that Secretary Moore
or Superintendent Turner personally participated in the alleged constitutional
violations, or that there was a causal connection between the supervisory
defendants’ actions and an alleged constitutional violation. On this record, the
complaint was properly dismissed as to these defendants.
Asad also claims error resulting from the district court’s dismissal of his
access-to-courts claim against Officer Sapp. 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). The Supreme
5
“A causal connection may be established: (1) when a history of widespread abuse puts the
responsible supervisor on notice of the need to correct the alleged deprivation, and he [or she] fails
to do so; (2) when a supervisor’s custom or policy results in deliberate indifference to constitutional
rights; or (3) when facts support an inference that the supervisor directed the subordinates to act
unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing
so.” Miller, 384 F.3d at 1261 (internal quotations omitted).
11
Court has held that an inmate alleging lack of access to the courts, must show
actual injury. See Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 2179, 135
L. Ed. 2d 606 (1996).6 Here, Asad failed to allege an actual injury resulting from
Sapp’s alleged confiscation of legal materials. Indeed, it is clear that Asad has
been able to pursue this action without any adverse consequences as evidenced by
the filing of an amended complaint, a second amended complaint, and now this
appeal.
As for the district court’s entry of summary judgment on the remaining
claims, we discern no error. Based on the following findings, the district court
concluded that Asad’s right to freely exercise his religious beliefs was not violated
pursuant to the four-pronged test of Turner v. Safley, 482 U.S. 78, 89-91, 107 S.
Ct. 2254, 2262, 96 L. Ed. 2d 64 (1987): (1) restricting or limiting Asad’s activity
under the stairwell, which is an unauthorized area not readily visible from the
control room, was a legitimate state interest related to ensuring safety in the
institution; (2) Asad was not denied all means of religious expression because he
could pray in his cell, which was suitable for his prayers; (3) allowing Asad to pray
under the stairwell would have detrimental effects on the security interests of the
6
Wright v. Newsome, 795 F.2d 964 (11th Cir. 1986), is inapposite here. That case was
decided prior to the Supreme Court’s Lewis decision, which plainly requires an allegation of actual
injury to state an access-to-courts claim.
12
institution; and (4) Asad failed to show an accommodation at de minimus cost
since the officers view of an inmate under the stairwell is obstructed and other
officers would be taken away from other posts to monitor such activity. Given the
district court’s application of the Turner factors, we are unpersuaded by Asad’s
argument that the court’s analysis of this claim was deficient.
We also reject Asad’s challenge to the district court’s analysis of his due
process claim, in which he asserted, inter alia, that the defendants wrote false
disciplinary reports as part of a conspiracy to retaliate against him. “Prison
disciplinary proceedings are not part of a criminal prosecution, and the full panoply
of rights due a defendant in such proceedings does not apply.” Wolff v.
McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935 (1974).
Nevertheless, a disciplinary proceeding, whose outcome will “impose[] atypical
and significant hardship on the inmate” must ensure the following due process
rights: (1) advance written notice of the claimed violation, (2) a written statement
by the fact finders as to the evidence relied upon and the reasons for the
disciplinary action taken, and (3) an opportunity to call witnesses and present
documentary evidence in his defense. Id. at 563-67, 94 S. Ct. at 2978-80; Bass v.
Perrin, 170 F.3d 1312, 1318 (11th Cir. 2003).
13
The district court found no violation of Asad’s due-process rights because
the record reflects that the Wolff requirements were met -- the disciplinary reports,
which were attached to Asad’s complaint, demonstrated that Asad was present at
all of his hearings and that the witness statements he submitted were considered.
Moreover, the disciplinary reports and the summary of the hearings all explained
the reasons for the disciplinary action and the resolutions implemented.7
Based on the foregoing analysis, we affirm the district court’s judgment in
all respects.
AFFIRMED.
7
After concluding that Asad’s claims did not allege the violation of a constitutional right, the
district court also noted that the defendants were entitled to qualified immunity. A government
official who is sued under § 1983 may seek summary judgment on the ground that he is entitled to
qualified immunity. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004).
To be eligible for qualified immunity, the official must first establish that he was performing a
“discretionary function” at the time the alleged violation of federal law occurred. Id. at 1263-64.
Once the official has established that he was engaged in a discretionary function, the plaintiff bears
the burden of demonstrating that the official is not entitled to qualified immunity. Id. at 1264. In
order to demonstrate that the official is not entitled to qualified immunity, the plaintiff must show
two things: (1) that the defendant has committed a constitutional violation and (2) that the
constitutional right the defendant violated was “clearly established” at the time he did it. Saucier
v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001); Holloman, 370 F.3d at 1264.
As we have discussed above, because Asad’s claims do not rise to the level of federal constitutional
violations, the district court did not err by holding the defendants were entitled to qualified
immunity based on Asad’s inability to satisfy prong (1) of the Saucier test.
14