[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 21, 2009
No. 08-11309 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00083-CV-6
MARQUIS B. WEST,
Plaintiff-Appellant,
versus
BRYAN HIGGINS,
JENNIFER ZAK,
TAMARA BENNETT,
KIMBERLY BRAUDA,
VIRGINIA SCOTT,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 21, 2009)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Marquis B. West, an inmate at the Georgia State Prison (“GSP”) proceeding
pro se, appeals the grant of a motion to dismiss as to Defendant Higgins and
summary judgment as to the other appellees, in his 42 U.S.C. § 1983 civil rights
case. West argues that the court erred in finding that he had not exhausted his
administrative remedies as to his claim that Higgins retaliated against him.
Additionally, West argues that the evidence showed that the defendants violated
his due process rights and were deliberately indifferent to his mental health needs
when they downgraded his mental health status and placed him in the general
population where he harmed himself.1
DISCUSSION
A. Higgins’ Motion to Dismiss
We review de novo a district court’s dismissal of a § 1983 action for failure
to exhaust available administrative remedies. Johnson v. Meadows, 418 F.3d
1152, 1155 (11th Cir. 2005). When considering whether to dismiss a § 1983
complaint, all facts set forth in the complaint are to be accepted as true and
1
Because West does not argue, on appeal, that the defendants motions for summary
judgment should not have been ruled on due to insufficient discovery, under Fed. R. Civ. P.
56(f), any claim in this respect is waived. Cont’l Technical Servs., Inc. v. Rockwell Int’l Corp.,
927 F.2d 1198, 1199 (11th Cir. 1991) (holding that “[a]n argument not made is waived”).
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consideration is limited to the pleadings and exhibits attached to it. Thaeter v.
Palm Beach County Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006).
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall
be brought with respect to prison conditions under section 1983 . . . by a prisoner .
. . until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). This mandatory exhaustion requirement applies to all inmate suits
about prison life. Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002).
Furthermore, the PLRA “requires proper exhaustion.” Woodford v. Ngo, 548 U.S.
81, 92, 126 S. Ct. 2378, 2387 (2006). An inmate must use all steps in the
administrative process and comply with any administrative “deadlines and other
critical procedural rules” before exhaustion is proper. Id. at 89, 126 S. Ct. at
2385-86 (internal quotation omitted). Thus, if an inmate has filed an “untimely or
otherwise procedurally defective administrative grievance or appeal,” he has not
properly exhausted his administrative remedies. Id. at 83-84, 126 S. Ct. at 2382.
According to the grievance procedure in place at the Georgia State Prison,
inmates are required to file an informal grievance to attempt a resolution. See
Turner v. Burnside, 541 F.3d 1077, 1080 (11th Cir. 2008). If the inmate is
unsatisfied with this result, he may file a formal grievance. Id. at 1081. If the
formal grievance is denied, the inmate may appeal to the final step, a review by the
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Commissioner’s office. Id.
Here, the record reveals that West did not file an informal or formal
grievance regarding retaliation by Higgins prior to filing his current lawsuit.
Therefore, West failed to exhaust his administrative remedies, and the court did not
err in dismissing his complaint as to Higgins.
B. The District Court’s Grant of Summary Judgment
We review the district court’s grant of summary judgment de novo, applying
the same legal standards as the district court. Sierra Club, Inc. v. Leavitt, 488 F.3d
904, 911 (11th Cir. 2007). “Summary judgment is proper if, when viewing the
evidence in the light most favorable to the non-moving party, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of
law.” Id. 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 moving party is
entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
323-24, 106 S. Ct. 2548, 2553 (1986).
The non-moving party “[m]ay not rely merely on allegations or denials in its
own pleading; rather, its response . . . must set out specific facts showing a
genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). “A mere ‘scintilla’ of evidence
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supporting the opposing party’s position will not suffice; there must be enough of a
showing that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252, 106 S. Ct. 2505, 2512 (1986)). Conclusory, uncorroborated allegations
by a plaintiff in an affidavit or deposition will not create an issue of fact for trial
sufficient to defeat a well supported summary judgment motion. See Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). Unsworn statements,
even from pro se parties, should not be “consider[ed] in determining the propriety
of summary judgment.” Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980).
Federal law does provide an alternative to making a sworn statement, but requires
that the statement include a handwritten averment, signed and dated, that the
statement is true under the penalties of perjury. 28 U.S.C. § 1746.
To succeed on a § 1983 action, a plaintiff must show that he was deprived of
a federal right acting under color of state law. Griffin v. City of Opa-Locka, 261
F.3d 1295, 1303 (11th Cir. 2001). With respect to convicted and sentenced
prisoners, “[a]s long as the conditions or degree of confinement to which the
prisoner is subjected is within the sentence imposed upon him and is not otherwise
violative of the Constitution, the Due Process Clause does not in itself subject an
inmate’s treatment by prison authorities to judicial oversight.” Montanye v.
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Haymes, 427 U.S. 236, 242, 96 S. Ct. 2543, 2547 (1976). This is because the Due
Process Clause, standing alone, confers no liberty interest in freedom from state
action taken “‘within the sentence imposed.’” Hewitt v. Helms, 459 U.S. 460, 468,
103 S. Ct. 864, 869 (1983).
While states may, under certain circumstances, create liberty interests which
are protected by the Due Process Clause, these interests will be generally limited to
freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its
own force, nonetheless imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life. See Sandin v. Conner, 515 U.S.
472, 483-84, 115 S. Ct. 2293, 2300 (1995); Kirby v. Siegelman, 195 F.3d 1285,
1290-91 (11th Cir. 1999). An inmate has no liberty interest in a particular
classification, prison assignment, or transfer even if the inmate loses access to
rehabilitative programs and experiences more burdensome conditions than before.
McKune v. Lile, 536 U.S. 24, 39-40, 122 S. Ct. 2017, 2027-28 (2002) (rejecting a
challenge by the inmate to expected demotion in custodial status classification).
Other examples of prison decisions not giving rise to liberty interests include
transfers to other prisons and visitation. See Olim v. Wakinekona, 461 U.S. 238,
103 S. Ct. 1741 (1983) (interstate transfers); Ky. Dep’t of Corr. v. Thompson, 490
6
U.S. 454, 109 S. Ct. 1904 (1989) (visitation).
The Eighth Amendment, applicable to the states through the Fourteenth
Amendment, governs the conditions under which convicted prisoners are confined
and the treatment they receive while in prison. Farrow v. West, 320 F.3d 1235,
1242 (11th Cir. 2003). Deliberate indifference to an inmate’s serious medical
needs violates the Eighth Amendment. Id. at 1243. “To show that a prison official
acted with deliberate indifference to serious medical needs, a plaintiff must satisfy
both an objective and a subjective inquiry.” Id. First, a plaintiff must demonstrate
an objectively serious medical need that has been “diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention,” and that, “if left unattended, poses
a substantial risk of serious harm.” Id. (internal quotation and brackets omitted).
Second, a plaintiff must show that the prison official acted with an attitude of
deliberate indifference to that serious medical need. Id. “[D]eliberate indifference
has three components: (1) subjective knowledge of a risk of serious harm; (2)
disregard of that risk; (3) by conduct that is more than mere negligence.”
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999).
Deliberate indifference requires that the response made by prison officials to
the serious medical need “was poor enough to constitute an unnecessary and
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wanton infliction of pain, and not merely accidental inadequacy, negligence in
diagnosis or treatment, or even medical malpractice actionable under state law.”
Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (internal quotation
omitted).
Where an inmate receives adequate medical care, but desires different modes
of treatment, the care provided does not amount to deliberate indifference. See
Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985). A simple
difference in medical opinion between the medical staff and an inmate as to the
latter’s diagnosis or course of treatment does not establish deliberate indifference.
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). Furthermore, “whether
governmental actors should have employed additional diagnostic techniques or
forms of treatment is a classic example of a matter for medical judgment and
therefore not an appropriate basis for grounding liability under the Eighth
Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (internal
quotation omitted). However, even when medical care is provided, the following
conduct may be actionable as deliberate indifference: (1) grossly inadequate care;
(2) a decision to take an “easier but less efficacious course of treatment;” (3)
medical care that is “so cursory as to amount to no treatment at all;” and (4) a delay
in treatment. McElligott, 182 F.3d at 1255; see also, Brown v. Johnson, 387 F.3d
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1344, 1351 (11th Cir. 2004).
West did not have an established liberty interest in his mental health
classification; therefore, the district court’s conclusion that the defendants did not
violate his due process rights by downgrading his mental health status was correct.
Furthermore, West did not present evidence creating a question of fact as to
whether the defendants were deliberately indifferent to his serious medical needs,
as the judgement, procedures, and care they provided were not in disregard of
West’s mental health needs or grossly inadequate. Much of West’s “evidence” to
the contrary consisted of affidavits not made under penalty of perjury, but,
regardless, West did not provide sufficient evidence to establish that the defendants
were deliberately indifferent to his mental health needs.2 West’s claims rest on a
difference of opinion regarding the care that he needed and received, and the
evidence does not establish deliberate indifference to a serious medical need.
The district court did not err in dismissing the complaint against Higgins or
granting summary judgment in favor of the remaining defendants. Based on the
foregoing, we affirm.
2
West’s claim that the defendants violated a medical profile was not properly raised
before the district court. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th
Cir. 2004) (holding that, even under the liberal pleading standard, a plaintiff must amend a
complaint once discovery commences and may not amend through argument in a brief opposing
summary judgment). Regardless, even if it had been properly raised, it fails for the reasons
herein.
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AFFIRMED.3
3
All pending motions are denied. For example, West’s motion for a temporary
restraining order and order to show cause for a preliminary injunction is denied. West’s motion
to file a supplemental brief is denied. West’s request for oral argument is denied.
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