Mitchell v. Strickland

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY RAY MITCHELL,
Plaintiff-Appellant,

v.

J. E. STRICKLAND,
Defendant-Appellee,
No. 95-7015
and

LILLIE MAE BROWN; GARY T. DIXON;
L. C. BROWN, JR.; JOHN W. ACREE;
V. LEE BOUNDS,
Defendants.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CA-92-825-5-BR)

Submitted: November 30, 1995

Decided: May 31, 1996

Before WILKINSON, Chief Judge, and WILKINS and
HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Larry Ray Mitchell, Appellant Pro Se. James Peeler Smith, Assistant
Attorney General, Elizabeth F. Parsons, OFFICE OF THE ATTOR-
NEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Larry Ray Mitchell, a North Carolina state prisoner, filed this 42
U.S.C. § 1983 (1988) action alleging that Lillie Mae Brown, a correc-
tional officer, sexually assaulted and harassed him on multiple occa-
sions. Mitchell also asserted that Gary T. Dixon, J.E. Strickland, and
John Acree, supervisory prison officials, took no meaningful action
in response to his complaints regarding Brown, thereby tacitly autho-
rizing Brown's conduct.

After Brown failed to timely appear, the district court entered a
default judgment against her, establishing her liability but reserving
the issue of damages for a jury trial. Subsequently, the court dis-
missed the claims against Dixon, finding that Mitchell failed to allege
that Dixon had actual knowledge of Brown's alleged abuse.

During the jury trial, the district court granted judgment as a matter
of law in favor of Acree at the close of Mitchell's case and judgment
as a matter of law in favor of Strickland at the close of all evidence.
The jury returned a verdict against Brown of $1.00 compensatory
damages and $7,500 punitive damages. Mitchell appeals the grant of
judgment as a matter of law in favor of Strickland.* We affirm.
_________________________________________________________________
*Although Mitchell's informal brief attempts to raise additional issues
on appeal, the scope of the appeal is determined by the specific terms of
the notice of appeal. Fed. R. App. P. 3(c). Because Mitchell's notice of
appeal specifically limited the claims on appeal to the grant of judgment
as a matter of law in favor of Strickland, we will not review any other
issues.

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The record does not contain a transcript of the trial. Because Mitch-
ell has been granted in forma pauperis status, the government may
provide a free transcript if it is determined that the appeal presents a
"substantial question." See 28 U.S.C.§ 753(f) (1988). In general,
appellants bear the burden of demonstrating non-frivolity and sub-
stantiality. See Maloney v. E. I. Du Pont de Nemours & Co., 396 F.2d
939, 940 (D.C. Cir. 1967), cert. denied, 396 U.S. 1030 (1970). A
"substantial question" has been held to be one that is "reasonably
debatable," Ortiz v. Greyhound Corp., 192 F. Supp. 903, 905 (D. Md.
1959), or one "where the law appears to be settled, but where the
appellant is able to show that his chances of changing the law on
appeal are strong." Lee v. Habib, 424 F.2d 891, 905 (D.C. Cir. 1970).

Under this standard and upon consideration of the record presently
before the court, we are unable to find that Mitchell has presented a
substantial question warranting the preparation of a transcript at gov-
ernment expense. To the contrary, the materials before the court sug-
gest that there was no error at trial meriting reversal of the court's
order.

The standard for granting a motion for judgment as a matter of law
is whether the evidence is so substantial or conclusive that any con-
trary verdict would necessarily be based on speculation or conjecture.
Gairola v. Virginia Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th
Cir. 1985). In considering such a motion, the court must construe the
evidence in the light most favorable to the party against whom the
motion is made. Garraghty v. Jordan, 830 F.2d 1295, 1302 (4th Cir.
1987). This court reviews de novo the grant or denial of a motion for
judgment as a matter of law. Gairola, 753 F.2d at 1285.

Mitchell asserted that Strickland failed to investigate his com-
plaints of sexual abuse and harassment and failed to take any steps to
curtail the abuse. To prove supervisory liability, Mitchell must show
that he faced a pervasive, unreasonable risk of harm from a specified
source and that Strickland failed to take corrective action as a result
of deliberate indifference or tacit authorization of the offensive prac-
tice. Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984), cert. denied,
470 U.S. 1035 (1985). Single or isolated incidents generally do not
satisfy this burden of proof. Id.

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Mitchell contends that he informed Strickland of Brown's behavior
by filing a grievance. However, although Mitchell alleged that he told
Strickland that Brown fondled and harassed him, the written griev-
ance alleged only that Brown conducted a search of Mitchell and that
Mitchell was under the impression that cross-gender searches were
impermissible. Strickland discussed the grievance with Mitchell and
told Mitchell that correctional policies authorized cross-gender
searches. Strickland then dismissed the grievance, and the dismissal
was upheld on appeal. After the dismissal of his grievance, Mitchell
did not again approach Strickland or any other supervisory official to
complain of Brown's behavior.

Notwithstanding Mitchell's allegations that he orally informed Str-
ickland of the full extent of Brown's actions, Mitchell's grievance
states only that he was searched by a female officer. Strickland's
response appropriately addressed every issue raised in the written
grievance. Mitchell never again formally or informally complained of
Brown's behavior. It cannot be said, under these facts, that Strickland
acted with deliberate indifference to the risk of harm that Brown pres-
ented. In any event, this single, isolated incident of alleged improper
investigation does not satisfy the heavy burden of proving supervisory
liability. Slakan, 737 F.2d at 373.

Therefore, because the record contains substantial and conclusive
evidence to support the grant of judgment as a matter of law, we
affirm the order of the district court. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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