[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10706 ELEVENTH CIRCUIT
AUGUST 17, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-03443-CV-2-SLB-TMP
DANNY EUGENE MOULDS,
Plaintiff-Appellant,
versus
STEPHEN BULLARD,
DONAL CAMPBELL,
JOHN ARTHUR,
SGT. RONALD CARTER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 17, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Danny Eugene Moulds, an Alabama state prisoner proceeding pro se,
appeals the dismissal of his claims against various John Doe correctional officers at
the Donaldson Correctional Facility (“Donaldson”) and the grant of summary
judgment to Warden Stephen Bullard, Prison Commissioner Donal Campbell,
Correctional Officer Alphonso Barber, Correctional Officer John Arthur, Sergeant
Ronald Carter, Correctional Officer Trenton Eads, and Captain Jimmy Richburg, in
his civil rights action brought pursuant to 42 U.S.C. § 1983. Moulds argues that:
(1) the district court improperly denied his discovery requests; (2) dismissal of the
claims against the unnamed defendants was improper; and (3) the record contained
genuine issues of material fact on his constitutional claims sufficient to survive
summary judgment.1 After careful review, we affirm in part and reverse in part.
“We review a denial of discovery for abuse of discretion.” White v. Coca-
Cola Co., 542 F.3d 848, 853 (11th Cir. 2008). We also review for abuse of
discretion a district court’s decision “[o]n motion or on its own, . . . at any time, on
1
Moulds also argues that the district court improperly granted qualified immunity to the
defendants and found that underfunding of a prison may be a complete defense to a claim of
unconstitutional conditions of confinement. Since a close reading of the record shows that the
district court did not reach these conclusions, Moulds’s arguments to this effect fail. To the
extent Bullard, Campbell and Richburg were sued in their official capacities, the district court
found they were entitled to Eleventh Amendment sovereign immunity. Moulds has failed to
argue that this finding was incorrect. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008) (“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a
pro se litigant are deemed abandoned. Moreover, we do not address arguments raised for the
first time in a pro se litigant’s reply brief.”) (citations omitted). Thus, we only review Moulds’s
claims against these three defendants to the extent he sued them in their individual capacities.
In addition, we note that Moulds’s due process claim relating to the denial of an appeal
was not raised in Moulds’s initial brief, and therefore has also been abandoned. See id. But
even if we were to entertain this claim, we find no merit to it, since we have never held that
prisoners have a constitutional right to an administrative appeal from a disciplinary proceeding.
2
just terms, [to] add or drop a party.” Fed.R.Civ.P. 21; Fritz v. Am. Home Shield
Corp., 751 F.2d 1152, 1154 (11th Cir. 1985). We review a grant of summary
judgment de novo, viewing the evidence in the light most favorable to the
nonmoving party. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th
Cir. 2000). Finally, it is worth noting that “[w]e read liberally briefs filed pro se.”
Lorisme v. I.N.S., 129 F.3d 1441, 1444 n.3 (11th Cir. 1997).
1.
First, we are unpersuaded by Moulds’s claim that the district court
improperly denied his discovery requests. We recognize that “[p]ro se pleadings
are . . . [to] be liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th
Cir. 2006) (quotations omitted). But pro se litigants still must follow time
requirements. See Garvey v. Vaughn, 993 F.2d 776, 780 (11th Cir. 1993).
“Liberal construction does not mean liberal deadlines.” Vanderberg v. Donaldson,
259 F.3d 1321, 1326 (11th Cir. 2001) (quotations omitted).
As Moulds concedes in his reply brief, all his discovery motions were
untimely. His first request was denied as premature since it was filed before the
discovery schedule was issued. That schedule required all discovery requests to be
filed within 90 days of October 31, 2005, but Moulds did not file another discovery
request until March 2006. Nor has Moulds offered any reason for his failure to file
3
his discovery requests within the prescribed period. Accordingly, the district court
did not abuse its discretion in denying his discovery requests as untimely.
2.
We also reject Moulds’s suggestion that the dismissal of claims against the
unnamed defendants was improper. Plaintiffs, particularly when acting pro se,
may sue “John Doe” defendants under certain circumstances. See Dean v. Barber,
951 F.2d 1210, 1215-16 (11th Cir. 1992). “There may be times when . . . the
plaintiff is unwilling or unable to use a party’s real name. Also, one may be able to
describe an individual . . . without stating his name precisely or correctly.” Id.
(quotations and footnote omitted). In Dean, we held that the district court should
not have used the supposed invalidity of fictitious-party practice to refuse to join
an unnamed defendant, as Dean had provided a job title that, while incorrect,
seemed to correspond to a particular position at the jail; requested but not yet
received a report allowing him to name the defendant; and provided a “description
[that] was sufficiently clear to allow service of process” on the defendant. Id.
Here, Moulds implicated a number of John Doe corrections officers in his
amended complaint. He completely failed to describe some of those officers. He
gave general descriptions of others, such as by indicating the duty stations to which
they were assigned, but nothing in the record suggests those officers’ identities and
4
Moulds did not timely request any discovery that would have allowed him to learn
their names and serve process on them. Thus, although the district court overstated
the law by concluding that fictitious-party practice is unauthorized in this Circuit,
its dismissal of the John Doe officers from the suit was not an abuse of discretion.
3.
Lastly, we conclude that the record fails to contain genuine issues of
material fact on all of Moulds’s constitutional claims, except for one -- his due
process claim relating to the denial of witnesses. Summary judgment will be
granted if “there is no genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Sierminski, 216 F.3d
at 949. “An issue of fact is ‘material’ if it is a legal element of the claim under the
applicable substantive law which might affect the outcome of the case. ‘It is
“genuine” if the record taken as a whole could lead a rational trier of fact to find
for the nonmoving party.’” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party bears the initial burden of identifying the portions of the
pleadings and evidence that the party believes to demonstrate the absence of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has properly supported the motion, the burden shifts to the
5
nonmoving party to come forward with specific facts showing that a genuine issue
for trial exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). “The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. Where the
record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587.
In another prisoner’s § 1983 case, we held that specific facts pled in a sworn
complaint must be considered in opposition to summary judgment. Perry v.
Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986). However, sworn statements
must be made on personal knowledge, and statements based in part upon
information and belief cannot raise a genuine issue of fact. Pace v. Capobianco,
283 F.3d 1275, 1278 (11th Cir. 2002) (citing Fed.R.Civ.P. 56(e)). Inadmissible
hearsay generally cannot be considered on a summary judgment motion. Club Car,
Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 783 (11th Cir. 2004).
a. Failure to Protect
Prison officials “must provide humane conditions of confinement; [they]
must ensure that inmates receive adequate food, clothing, shelter, and medical care,
and must ‘take reasonable measures to guarantee the safety of the inmates.’”
6
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S.
517, 526-27 (1984)). “Prison officials have a duty to protect prisoners from
violence at the hands of other prisoners.” Carter v. Galloway, 352 F.3d 1346, 1349
(11th Cir. 2003) (per curiam) (quotations and alterations omitted).
We have held that “[t]o survive summary judgment on [a §] 1983, Eighth
Amendment 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.” Id. (quotations, citations, and alterations omitted).
“[M]erely negligent failure to protect an inmate from attack does not justify
liability under section 1983.” Id. at 1350 (quotations and alteration omitted). “The
known risk of injury must be a strong likelihood, rather than a mere possibility[,]
before a guard’s failure to act can constitute deliberate indifference.” Brown v.
Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (quotations omitted).
A substantial risk to a prisoner’s safety may arise not only out of his
individual situation, but out of an environment of longstanding and pervasive
attacks to which all prisoners in his situation are exposed, and it may come from
single or multiple sources. See Farmer, 511 U.S. at 842-43. Nevertheless, a
defendant may avoid liability by showing that he was unaware of the underlying
facts indicating a substantial risk, that he “believed (albeit unsoundly) that the risk
7
to which the facts gave rise was insubstantial or nonexistent,” or that he
“responded reasonably to the risk, even if the harm ultimately was not averted.”
Id. at 844. A plaintiff’s failure to give advance notice to prison officials of a
specific threat or of his fear of an inmate is relevant to this inquiry, see Carter, 352
F.3d at 1349-50, though it is not dispositive, see Farmer, 511 U.S. at 848.
Moulds has failed to support his claim that Correctional Officer Arthur
spread false rumors to inmates labeling Moulds a snitch. Moulds’s statement that
he heard of Arthur’s involvement from other inmates does not satisfy the “personal
knowledge” requirement of Rule 56(e). Accordingly, the district court did not err
in finding that no rational trier of fact could have found Arthur to have created, or
been deliberately indifferent to, a substantial risk of serious harm to Moulds.
Moulds also has presented no evidence to support his assertions that Warden
Bullard failed to investigate the source of the rumor and failed to classify properly
the inmate who ultimately stabbed Moulds for his alleged snitching. Bullard
concedes that he was aware of the potential safety hazards created by the general
understaffing and overcrowding at Donaldson, but contends that he repeatedly tried
to bring these conditions to Prison Commissioner Campbell’s attention so the
problems could be addressed. In addition, he contends that Moulds’s unit was not
understaffed or overcrowded at the time of the stabbing and that area, cell block,
8
and random searches were conducted on a daily basis. Moulds has not offered any
evidence within his personal knowledge that would contradict Bullard’s
description of his efforts. Furthermore, even assuming that Bullard did not offer to
move Moulds into protective administrative segregation before the stabbing,
Moulds has not alleged facts indicating that this failure was an unreasonable
response to what was known at the time about the potential risk to Moulds’s safety.
Thus, Moulds has not shown that a rational trier of fact could determine that
Bullard was deliberately indifferent to a substantial risk of serious harm to Moulds.
Finally, it is undisputed that Campbell was made aware of the security
conditions created by the general overcrowding and understaffing at Donaldson,
and the defendants presented no evidence to support their position that Campbell
tried to address these problems by seeking additional funding. Nevertheless,
because the record does not indicate that Moulds’s dormitory was overcrowded or
understaffed at the time of the stabbing, Moulds cannot show that any possible
indifference on Campbell’s part was a cause of, or contributed to, the attack.
b. Conditions of Confinement
The Eighth Amendment requires prison officials to “ensure that inmates
receive adequate food, clothing, shelter, and medical care.” Farmer, 511 U.S. at
832. “But conditions that cannot be said to be cruel and unusual under
9
contemporary standards are not unconstitutional.” Rhodes v. Chapman, 452 U.S.
337, 347 (1981). “Generally speaking, prison conditions rise to the level of an
Eighth Amendment violation only when they involve the wanton and unnecessary
infliction of pain.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)
(quotations omitted). A prisoner challenging conditions of his confinement must
show that: (1) the condition of which he complains “is sufficiently serious to
violate the Eighth Amendment,” and (2) the prison officials were deliberately
indifferent to the condition at issue. Id. To satisfy prong one, the prisoner must
show that the condition is “extreme” and “poses an unreasonable risk of serious
damage to his future health or safety.” Id. (quotations and alterations omitted).
As the record here shows, Moulds made a general claim that overcrowding
at Donaldson led to unsanitary conditions, but he did not state any details that
would indicate how “extreme” those conditions were, and did not contend that he
personally faced a health risk as a result of any of these conditions. With respect to
the conditions of his disciplinary segregation, Moulds failed to provide any details
about the size and nutritional value of the meals he continued to receive or the
severity of the hunger pangs and weight loss caused by the loss of his lunch meals.
He also did not indicate that he required any sort of medical treatment or otherwise
suggest that the denial of lunches posed an unreasonable risk of serious harm to his
10
future health. Finally, he failed to allege any actual or future serious harm caused
by the loss of privileges or the denial of a mattress for part of each day. Thus, the
district court did not err in finding that Moulds failed to demonstrate a potential
Eighth Amendment violation with respect to the conditions of his confinement.
c. Retaliation and Conspiracy to Retaliate
“We have explained that ‘First Amendment rights to free speech and to
petition the government for a redress of grievances are violated when a prisoner is
punished for filing a grievance concerning the conditions of his imprisonment.’”
Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (quoting Boxer X, 437
F.3d at 1112). “‘To state a retaliation claim, the commonly accepted formulation
requires that a plaintiff must establish first, that his speech or act was
constitutionally protected; second, that the defendant’s retaliatory conduct
adversely affected the protected speech; and third, that there is a causal connection
between the retaliatory actions and the adverse effect on speech.’” Id. (quoting
Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005)). The causation prong
“asks whether the defendants were subjectively motivated” by the plaintiff’s
protected speech. Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008).
Yet “an inmate’s First Amendment right to free speech is not protected if
affording protection would be inconsistent with the inmate’s status as a prisoner or
11
with the legitimate penological objectives of the corrections system.” Id. at 1277.
“[I]f a prisoner violates a legitimate prison regulation, he is not engaged in
protected conduct, and cannot proceed beyond step one.” Id. (quotations omitted).
Because Moulds made only a bare assertion of a conspiracy to retaliate
against him, without alleging any other details or providing any supporting
evidence of such a conspiracy, the district court did not err in granting summary
judgment on his conspiracy claim. See Fullman v. Graddick, 739 F.2d 553, 557
(11th Cir. 1984) (holding that a person alleging a conspiracy to violate
constitutional rights must do more than simply aver that a conspiracy existed).
To the extent Moulds claims that the search of his cell was retaliation for his
complaints about Arthur’s alleged involvement in the false rumors about him,
those complaints were protected speech. Nonetheless, the search occurred three to
four months after he made his complaints, Arthur was not involved in the search,
and Moulds presented no evidence that the complaints motivated any other
officer’s participation in the search. Therefore, the district court did not err in
finding that Moulds had not demonstrated that a rational trier of fact could have
found a causal connection between the two events.
To the extent he claims the search was retaliation for sending a note to a
fellow inmate, in which he sought the inmate’s testimony for the instant lawsuit,
12
the undisputed record evidence indicates that prisoners in segregation are not
permitted to communicate with other prisoners. Moulds was in administrative
segregation at the time. Because sending the note to the inmate violated a
legitimate prison regulation, Moulds was “not engaged in protected conduct, and
[he] cannot proceed beyond step one” of the analysis. Smith, 532 F.3d at 1277.
Accordingly, the district court did not err in granting summary judgment to the
defendants with respect to Moulds’s retaliation claims.
d. Denial of Access to the Courts
“The Supreme Court has long held that ‘prisoners have a constitutional right
of access to the courts.’” Al-Amin v. Smith, 511 F.3d 1317, 1325 (11th Cir. 2008)
(quoting Bounds v. Smith, 430 U.S. 817, 821 (1977)). However, a prisoner’s
“contentions of deprivations of access to courts must show actual injury as a
‘constitutional prerequisite.’” Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th
Cir. 1998) (quoting Lewis v. Casey, 518 U.S. 343, 351 (1996)). A prisoner
plaintiff alleging a violation of his right of access to the courts “must show actual
injury in the pursuit of specific types of nonfrivolous cases: direct or collateral
attacks on sentences and challenges to conditions of confinement.” Id. “This
essential standing requirement means that prison officials’ actions . . . must have
impeded the inmate’s pursuit of a nonfrivolous, post-conviction claim or civil
13
rights action. To prevail, a plaintiff must provide evidence of such deterrence,
such as a denial or dismissal of a direct appeal, habeas petition, or civil rights case
that results from actions of prison officials.” Id. at 1290-91 (citations omitted).
The plaintiff must be able to demonstrate that the officials’ actions “hindered his
efforts to proceed with [his] legal claim.’” Id. at 1291 (quotations omitted).
The legal materials seized from Moulds’s cell were related to his claim
against Arthur for allegedly spreading a false rumor about him. Moulds has not
alleged that his ability to pursue that claim was impeded by the seizure, and the
fact that he was able to file and prosecute the instant suit shows that he did not
suffer actual injury. Thus, Moulds lacked standing to bring an access-to-courts
claim and the district court did not err in granting summary judgment.
e. Due Process -- Denial of Witnesses
“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 (1974). “Chief among the due process
minima outlined in Wolff was the right of an inmate to call and present witnesses
and documentary evidence in his defense before the disciplinary board.” Ponte v.
Real, 471 U.S. 491, 495 (1985). However, “the inmate’s right to present witnesses
is necessarily circumscribed by the penological need to provide swift discipline in
14
individual cases . . . [and] by the very real dangers in prison life which may result
from violence or intimidation directed at either other inmates or staff.” Id.
Accordingly, “the prisoner’s right to call witnesses and present evidence in
disciplinary hearings could be denied if granting the request would be ‘unduly
hazardous to institutional safety or correctional goals.’” Id. (quoting Wolff, 418
U.S. at 566). Because the prisoner is unlikely to know the officials’ reasons for
refusing to call his witnesses, he does not bear the burden of proving that the
decision was arbitrary or capricious. Id. at 499. Rather, the
prison officials may be required to explain . . . the reason why
witnesses were not allowed to testify, . . . either by making the
explanation a part of the “administrative record” in the disciplinary
proceeding, or by presenting testimony in court . . . . [S]o long as the
reasons are logically related to preventing undue hazards to
“institutional safety or correctional goals,” the explanation should
meet the due process requirements as outlined in Wolff.
Id. at 497.
Under the Alabama Department of Corrections’ administrative regulations,
“[t]he inmate must be permitted to call a reasonable number of reasonably
available witnesses to the hearing, normally no more than three (3) witnesses.”
Ala. Dep’t of Corr. Admin. Reg. 403(II)(C). “At the time of service of charges . . .
, the Serving Officer will advise the inmate of his/her right to call witnesses . . . .
The Serving Officer will obtain those names at this time and will not refuse to list
15
any witnesses desired by the inmate.” Reg. 403(III)(F). The Hearing Officer is
responsible for determining whether the witnesses “could possibly” have relevant
testimony and whether bringing the witnesses would pose a security threat. Id.
The Hearing Officer is responsible for ensuring that inmates and employees to be
called as witnesses attend the hearing. Id. “The Hearing Officer may refuse to
allow any witness whose testimony is not relevant to testify.” Id.
Construed in the light most favorable to Moulds, the evidence indicates that
he repeatedly asked Barber (the Serving Officer), Eads (the Hearing Officer),
Bullard, and Captain Richburg for his witnesses, both before and during his
disciplinary hearing, but that Bullard and Richburg disregarded his requests and
Barber and Eads wrote down that Moulds had not requested witnesses. None of
the defendants has argued that the denial of witnesses was related to preventing
undue hazards to institutional safety or correctional goals. See Ponte, 471 U.S. at
497. Furthermore, the record indicates that Moulds’s desired witnesses had
information relevant to his attempt to identify inmates who allegedly had heard
Arthur spreading rumors about him, in which case their testimony would have been
relevant to the charges that Moulds was defaming Arthur and bribing inmates to
provide false testimony. Because Moulds alleged sufficient genuine issues of
material fact, the district court erred in granting summary judgment on this claim.
16
f. Due Process -- Disciplinary Confinement
The Supreme Court has held that “the Constitution itself does not give rise to
a liberty interest in avoiding transfer to more adverse conditions of confinement,”
but that “a liberty interest in avoiding particular conditions of confinement may
arise from state policies or regulations, subject to the important limitations set forth
in Sandin v. Conner, 515 U.S. 472 . . . .” Wilkinson v. Austin, 545 U.S. 209,
221-22 (2005). “After Sandin, . . . the touchstone of the inquiry into the existence
of a protected, state-created liberty interest in avoiding restrictive conditions of
confinement is not the language of regulations regarding those conditions but the
nature of those conditions themselves in relation to the ordinary incidents of prison
life.” Id. at 223 (quotations omitted). Temporary withdrawal of visitation
privileges for disciplinary purposes is “not a dramatic departure from accepted
standards for conditions of confinement,” but a claim of permanent or extended
withdrawal of all visitation privileges “would present different considerations.”
Overton v. Bazzetta, 539 U.S. 126, 136-37 (2003).
As applied here, the conditions of Moulds’s disciplinary confinement are not
of constitutional dimensions. His temporary loss of privileges does not rise to the
level of a protected liberty interest. See Overton, 539 U.S. at 136-37. Although he
was deprived of one meal per day, he has not alleged facts showing that his diet,
17
taken as a whole, was inadequate. He also alleged that he was deprived of a
mattress for approximately half of each day, but he did not allege that he was not
allowed to sleep on a mattress. Under the circumstances, particularly in proportion
to the length of Moulds’s sentence, the 201 days he spent in segregation and
subject to these conditions did not constitute such a “dramatic departure” from
ordinary prison life as to give rise to a protected liberty interest. See id.
Accordingly, the district court did not err in denying this claim.
For the foregoing reasons, we reverse the judgment of the district court with
respect to Moulds’s due process claim arising out of the denial of witnesses at his
disciplinary hearing, affirm in all other respects, and remand for further
proceedings not inconsistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
18