[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 20, 2009
No. 09-10941 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-22497-CV-AJ
CALVIN C. CAMPBELL,
Plaintiff-Appellant,
versus
CORRECTIONAL OFFICER LAKISHA HUMPHRIES,
Correctional Officer,
COLONEL LARRY MAYO,
Colonel,
WARDEN DAVID M. HARRIS,
Warden,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 20, 2009)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Calvin C. Campbell, a pro se prisoner, appeals the district court’s dismissal
of his 42 U.S.C. § 1983 civil rights complaint against defendants correctional
colonel Larry Mayo and warden David Harris, and grant of default judgment as to
defendant correctional officer Lakisha Humphries pursuant to Federal Rule of Civil
Procedure 55(b)(2). On appeal, Campbell argues that he properly stated a claim of
supervisory liability as to defendants Mayo and Harris. Campbell also challenges
the district court’s $100,000 damage award against defendant Humphries, arguing
that he should have instead been awarded $5 million in actual damages, plus
interest and costs. Campbell alleges that he sought a “sum certain” and thus should
have been granted default judgment for the full amount under Federal Rule of Civil
Procedure 55(b)(1). For the following reasons, we affirm the judgment of the
district court.
I.
Campbell is a seventy-year-old inmate who has been serving a life sentence
since 1966. He has a history of heart disease extending back more than twenty
years. Campbell alleged that Humphries verbally and physically abused him by
denying him water and forbidding him from taking his nitroglycerin in the course
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of two days of hot weather at Dade Correctional Institution in September 2003.
Humphries subsequently was hospitalized in an off-prison hospital for two days.
Campbell filed suit, alleging intentional infliction of emotional distress, done in a
malicious manner in violation of the Eighth and Fourteenth Amendments.
Humphries failed to respond and the clerk entered a default against her. The district
court dismissed Campbell’s claims against Humphries’ supervisors, and entered
the default judgment against Humphries after hearing from Campbell in an
evidentiary hearing. On appeal Campbell raises three issues, which we address in
turn: first, whether the district court erred in dismissing Campbell’s first amended
complaint against Humphries’ supervisors; second, whether the district court erred
in denying Campbell’s request for a “certain sum” default; and third, whether the
district court erred in not awarding Campbell costs and interest.
II.
We review de novo whether a complaint sufficiently alleges a constitutional
violation. Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). In reviewing a
complaint, all well-pleaded factual allegations are accepted as true and we construe
the facts in the light most favorable to the plaintiff. Id. “Pro se pleadings are held
to a less stringent standard than pleadings drafted by attorneys and will, therefore,
be liberally construed.” Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
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(internal quotation marks omitted).
Campbell acknowledges the longstanding rule that § 1983 actions do not
permit theories of vicarious liability. Where, as here, the complaint does not allege
that the supervisor personally participated in the unconstitutional conduct, the
plaintiff may allege a causal connection between the supervisor’s actions and the
alleged constitutional deprivation through a “history of widespread abuse [that]
puts the responsible supervisor on notice of the need to correct the alleged
deprivation, and he fails to do so.” Cottone, 326 F.3d at 1360 (citation omitted).
“The deprivations that constitute widespread abuse sufficient to notify the
supervising official must be obvious, flagrant, rampant and of continued duration,
rather than isolated occurrences.” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th
Cir. 1999). This standard is extremely rigorous. Cottone, 326 F.3d at 1360.
The tort of negligent retention targets an employer who retains an employee
who that employer knew or should have known was dangerous and incompetent.
See Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005). In Florida,
a plaintiff must allege that the employer “was put on notice of the harmful
propensities of the employees.” Id. (quotation omitted).
Here, Campbell has failed to adequately allege facts showing that
Humphries’ supervisors Mayo and Harris were aware of a “history of widespread
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abuse” sufficient to state a claim of negligent retention against them. Campbell
failed to allege the nature, amount, frequency, or duration of complaints against
Humphries, if they involved constitutional deprivations, or if they otherwise
involved “widespread abuse.” Campbell did allege one incident where Mayo
reassigned Humphries due to a complaint. This one incident, however, is not
enough to meet the rigorous standard for supervisory liability in this circuit.
Moreover, Campbell’s conclusory allegation that Mayo and Harris knew of a
“large number” of complaints against Humphries does not by itself satisfy the
standard to show the supervisors knew or should have know that Humphries was a
“dangerous” employee. See Mercado, 407 F.3d at 1162. To the extent that
Campbell argues on appeal that he alleged a negligent training theory of liability,
this claim must also fail because he did not allege that Mayo or Harris were
negligent in the implementation or operation of any training program. See id.
Accordingly, this Court should affirm the district court’s dismissal of Campbell’s
amended complaint as to defendants Mayor and Harris.
III.
We review de novo the district court’s interpretation of the Federal Rules of
Civil Procedure. Silvious v. Pharaon, 54 F.3d 697, 700 (11th Cir. 1995). Rule
55(b)(1) states, “If the plaintiff’s claim is for a sum certain or a sum that can be
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made certain by computation,” then the clerk must enter judgment for that amount,
on request of the plaintiff. Fed. R. Civ. P. 55(b)(1). “In all other cases, the party
must apply to the court for a default judgment.” Fed. R. Civ. P. 55(b)(2). Thus, if
the amount of damages is not certain, only the court may enter default judgment,
and it may do so after conducting a hearing to determine the amount of damages.
See Fed. R. Civ. P. 55(b)(2)(B); see also SEC v. Smyth, 420 F.3d 1225, 1231–32
(11th Cir. 2005).
As for the specific amount awarded after the evidentiary hearing, “the
district court has a great deal of discretion in deciding the level of damages to be
awarded.” Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir. 1985). “In
reviewing the amount of damage awards, this court is generally limited to the
question of whether the trier of fact abused its discretion.” Self v. Great Lakes
Dredge & Dock Co., 832 F.2d 1540, 1552 (11th Cir. 1987). The Self court found
that “[a]lthough the award was small, it was not ‘unconscionably inadequate,’
therefore, [this Court] may not disturb the award on appeal.” Id. (quoting Kramer
v. Keys, 643 F.2d 382, 386 (5th Cir. Unit A Apr. 1981)).
We review the district court’s decision on whether to award prejudgment
interest for abuse of discretion. Ins. Co. of N. Am. v. M/V Ocean Lynx, 901 F.2d
934, 942 (11th Cir. 1990). Under Florida law, “tort claims are generally excepted
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from the rule allowing prejudgment interest, primarily because tort damages are
generally too speculative to liquidate before final judgment.” Lumbermens Mut.
Cas. Co. v. Percefull, 653 So. 2d 389, 390 (Fla. 1995). As for costs, “we review a
district court’s decision about whether to award costs to the prevailing party for
abuse of discretion.” Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007).
Federal Rule of Civil Procedure 54(d) provides that litigation costs, other than
attorneys’ fees, should be awarded to the prevailing party “[u]nless a federal
statute, these rules, or a court order provides otherwise.” Fed. R. Civ. P. 54(d)(1).
Rule 54(d) creates a “strong presumption” in favor of awarding costs to the
prevailing party. Mathews, 480 F.3d at 1276. “To defeat the presumption and
deny full costs, a district court must have and state a sound basis for doing so.”
Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir. 2000). Southern District
of Florida Local Rule 7.3 allows a party to move for costs prior to the entry of final
judgment, or after such entry, subject to numerous specific requirements.
Although the prayer of Campbell’s complaint sought $5 million in
compensatory and $500,000 in punitive damages from defendant Humphries,
Campbell failed to show why he was entitled to those amounts, and likewise failed
at that time to provide the court with any evidence regarding damages. In the
absence of a “sum certain,” therefore, the district court properly held an evidentiary
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hearing to consider damages. The district court did not err in entering the default
judgment under Rule 55(b)(2) instead of Rule 55(b)(1). The district court’s awards
of $75,000 in actual damages and $25,000 in punitive damages appear to be
carefully considered and will for that reason stand. Campbell concedes that he is
not entitled to prejudgment interest if we find that the default judgment was
properly entered under Rule 55(b)(2). Finally, we consider the matter of costs.
Campbell sought costs prior to the entry of the amended order dismissing his
amended complaint and denying his motion for default judgment pursuant to Rule
55(b)(1). (D.40.) At that point, the district court no longer had before it a motion
for costs. To the extent that a renewed motion for costs can be discerned in the
record, Campbell did not make it until after the district court entered its final
default judgment. Therefore, this issue is not properly before this Court. See BUC
Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1140 (11th Cir. 2007) (“As a
general rule, we do not consider issues not presented in the first instance to the trial
court.”). Therefore, the judgment of the district court is AFFIRMED.
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