[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 20, 2006
No. 05-15891 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02786-CV-ODE-1
FREDERICK BROWN,
Plaintiff-Appellant,
versus
RAYMOND HEAD,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 20, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Frederick Brown, a state prisoner, appeals the district court’s grant of
summary judgment in favor of the defendant, Raymond Head, and the dismissal as
moot of his motion for a temporary restraining order (“TRO”) and preliminary
injunction regarding his 42 U.S.C. § 1983 suit, in which he alleges that Head, as
the Manager of Inmate Affairs and Appeals for the Georgia Department of
Corrections, violated his Eighth Amendment rights by refusing his request that he
be placed in a space free of environmental tobacco smoke (“ETS”).
The district court concluded that, even assuming Brown had created a
dispute as to whether Dooly State Prison’s (“Dooly”) no-smoking policy was being
enforced, Brown failed to show any evidence of Head’s personal involvement in
the matter, thus foreclosing his § 1983 claim. See Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003) (supervisory officials are not liable under § 1983 for
the acts of their subordinates on the basis of respondeat superior or vicarious
liability). Brown argues that the district court erred “in misrepresenting [his]
complaint as [a suit] based on vicarious liability.” Brown claims that Head directly
denied his request for prescribed medical treatment (a smoke-free environment).
He further alleges that Head carried out a policy or custom of treating all ETS
complaints alike, regardless of medical need, and that these actions violated
Brown’s constitutional rights. Brown also argues that the district court erred in
denying him injunctive relief because he has sufficiently demonstrated he has a
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number of medical conditions that require a smoke-free environment, and Head has
the authority to order prison officials to place him in a smoke-free environment.
We review the district court’s grant of a motion for summary judgment de
novo, applying the same legal standards as the district court. Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1279 (11th Cir. 2004). Summary judgment is
appropriate when “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A material fact is genuine
only “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 2510, 91 L. Ed. 2d 202 (1986).
“To show that a prison official acted with deliberate indifference to serious
medical needs, a plaintiff must satisfy both an objective and subjective inquiry.”
Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). First, a plaintiff must show
an objectively serious medical need. Id. “Second, a plaintiff must prove that the
prison official acted with an attitude of ‘deliberate indifference’ to that serious
medical need.” Id. A medical need is serious when it “has been diagnosed by a
physician as mandating treatment or . . . is so obvious that even a lay person would
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easily recognize the necessity for a doctor’s attention.” Id. (quotation omitted).
Deliberate indifference may be evidenced by the intentional interference of a
prison official with medical treatment once it is prescribed. Estelle v. Gamble, 429
U.S. 97, 104-05, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976).
Here, Brown does not allege liability based on vicarious liability or
respondeat superior. Instead, he alleges that Head was deliberately indifferent for
denying Brown’s appeal in a grievance proceeding. The record, however, shows
that Head’s staff investigated Brown’s grievance and responded accordingly. The
lack of enforcement of the existing smoking policy at best shows mere negligence
and is insufficient to demonstrate deliberate indifference. Farrow, 320 F.3d at
1243; see also Kelley v. Hicks, 400 F.3d 1282, 1285 (11th Cir. 2005) (per curiam).
Because we affirm the district court’s grant of summary judgment, we likewise
affirm its denial of Brown’s motion for a TRO and preliminary injunction.
AFFIRMED.
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