Harris v. Ostrout

United States Court of Appeals,
Eleventh Circuit.

No. 94-4548

Non-Argument Calendar.

Vincent D. HARRIS, Plaintiff-Appellant,

v.

I.K. OSTROUT, CO; M.O. McRae, Captain; Nathaniel Collins, CO I;
David R. Farcas; Nick Barton, Correctional Officer II, Defendants-
Appellees.

Sept. 29, 1995.

Appeal from the United States District Court for the Southern
District of Florida. (No. 90-14200-CV-KMM), K. Michael Moore,
Judge.

Before TJOFLAT, Chief Judge, and HATCHETT and BLACK, Circuit
Judges.

PER CURIAM:

Florida inmate Vincent D. Harris appeals the district court's

grant of Appellees' joint motion for summary judgment. We affirm

in part, reverse in part, and remand the case to the district

court.

I. BACKGROUND

The events giving rise to this action occurred between

September and November 1990 while Appellant was confined at Martin

Correctional Institution (MCI) in Indiantown, Florida. Appellant

brought this pro se 42 U.S.C. § 1983 action against five officers

and employees of MCI alleging violations of his civil rights.

Appellant claims Appellees subjected him to unnecessary strip

searches and other forms of sexual harassment, denied him access to

legal materials, wrongly disciplined him, and subjected him to an

insect-infested cell and inadequate diet. According to Appellant,
Appellees' actions were motivated by racial animus1 and a desire to
punish him for other lawsuits he has filed.2
Appellees moved for summary judgment on all claims arguing,

inter alia: (1) that Appellant failed to state a claim and (2)

that Appellant failed to produce enough evidence to create a

genuine issue of material fact on any of his claims. The

magistrate judge handling the case found that no genuine issue of

material fact remained and recommended that summary judgment be

granted. The district court adopted the magistrate's report and

recommendation and dismissed all claims. This appeal follows.

II. STANDARD OF REVIEW

This Court reviews the granting of summary judgment de novo,

applying the same legal standards which bound the district court.

Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995). In

determining whether a genuine issue of material fact remains for

trial, courts must view all evidence and make all reasonable

1
Appellant is black.
2
Appellant is a very litigious prisoner. See Harris v.
Tippen, et al., 55 F.3d 637 (11th Cir.1995) (table); Harris v.
Snover, et al., 50 F.3d 1037 (11th Cir.1995) (table); Harris v.
Matthews, et al., 48 F.3d 535 (11th Cir.1995) (table); Harris v.
Belcher, et al., 37 F.3d 636 (11th Cir.1994) (table), cert.
denied, --- U.S. ----, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995);
Harris v. Singletary, 983 F.2d 1083 (11th Cir.) (table), cert.
denied, --- U.S. ----, 113 S.Ct. 3007, 125 L.Ed.2d 698 (1993);
Harris v. Singletary, et al., 959 F.2d 971 (11th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 491, 121 L.Ed.2d 429 (1992);
Harris v. Singletary, et al., 957 F.2d 871 (11th Cir.) (table),
cert. denied, --- U.S. ----, 112 S.Ct. 3045, 120 L.Ed.2d 912
(1992); Harris v. Rouse, et al., 904 F.2d 713 (11th Cir.)
(table), cert. denied, 498 U.S. 945, 111 S.Ct. 357, 112 L.Ed.2d
320 (1990); Harris v. Dugger, et al., 897 F.2d 536 (11th Cir.)
(table), cert. denied, 498 U.S. 919, 111 S.Ct. 293, 112 L.Ed.2d
247 (1990); Harris v. Lambdin, et al., 878 F.2d 1440 (11th
Cir.1989) (table).
inferences in favor of the party opposing summary judgment. Id.

III. DISCUSSION

The difficulty in sorting through the allegations in

Appellant's pro se complaints3 makes it necessary for us to analyze

the claims defendant-by-defendant. In doing so, we construe

Appellant's complaint more liberally than we would the complaint of

a represented party. See Haines v. Kerner, 404 U.S. 519, 520-21,

92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Fernandez v. United

States, 941 F.2d 1488, 1491 (11th Cir.1991).

A. Collins

Appellee Nathaniel Collins was a correctional officer at MCI

in late 1990. Appellant alleges that Collins sexually harassed him

by conducting unwarranted strip searches and denied him access to

the courts by confining him in his cell when he refused to submit

to those searches. Collins denies intending to harass Appellant or

block his access to the courts and claims that the strip searches

were part of standard prison procedure.

Construed liberally, Appellant's complaint states a claim

under the First and Eighth Amendments.4 Although prisoners have no

Fourth Amendment right to be free from strip searches, Bell v.

Wolfish, 441 U.S. 520, 557-59, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447

3
Appellant amended his complaint three times, prompting the
magistrate judge to warn that no further amendments would be
allowed except under extraordinary circumstances.
4
The protections of the First and Eighth Amendments apply to
the states through the Fourteenth Amendment. See, e.g., Estelle
v. Gamble, 429 U.S. 97, 99-101, 97 S.Ct. 285, 289, 50 L.Ed.2d 251
(1976) (applying the Eighth Amendment to the states); New York
Times v. Sullivan, 376 U.S. 254, 276-78, 84 S.Ct. 710, 724, 11
L.Ed.2d 686 (1964) (applying the First Amendment to the states).
(1979), the Eighth Amendment prohibits the "unnecessary and wanton

infliction of pain," Wilson v. Seiter, 501 U.S. 294, 296-98, 111

S.Ct. 2321, 2323, 115 L.Ed.2d 271 (1991) (quoting Estelle, 429 U.S.

at 104-05, 97 S.Ct. at 291). Thus, if Collins' strip searches of

Appellant are devoid of penological merit and imposed simply to

inflict pain, the federal courts should intervene. See Turner v.

Safley, 482 U.S. 78, 83-85, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64

(1987). In addition, the First Amendment grants prisoners a

limited right of access to the courts. Bounds v. Smith, 430 U.S.

817, 819-21, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1977); Adams v.

James, 784 F.2d 1077, 1081 (11th Cir.1986). The state may not

burden this right with practices that are not reasonably related to

legitimate penological objectives, Turner, 482 U.S. at 85-89, 107

S.Ct. at 2260-61, nor act with the intent of chilling that First

Amendment right, Wildberger v. Bracknell, 869 F.2d 1467, 1468 (11th

Cir.1989).

The district court correctly granted summary judgment for

Collins because Appellant failed to produce enough evidence to

create a genuine issue of fact for trial. The prison regulations

upon which Collins relied upon require that he strip search all

"close management" prisoners like Appellant before they leave their

cells for any reason. Appellant produced nothing to rebut the

presumption of reasonableness which we must attach to such prison

security regulations. See, e.g., Turner, 482 U.S. at 83-85, 107

S.Ct. at 2259; Bell, 441 U.S. at 546-47, 99 S.Ct. at 1878.

Appellant also produced nothing, beyond his own conclusory

allegations, suggesting that Collins' actions in compliance with
the strip search regulations were motivated by a retaliatory

animus. In the absence of such evidence, summary judgment was

appropriate.

B. Barton

Appellee J.W. Barton was a housing sergeant at MCI in late

1990. Appellant alleges that when he complained about Collins'

behavior to Barton, Barton did nothing to intervene and, instead,

made unsympathetic comments. Barton, like Collins, relies on

prison regulations requiring the strip search of all "close

management" inmates who leave their cells and denies harboring any

retaliatory motive towards Appellant.

As with the claims against Collins, Appellant's complaint

states a claim against Barton under the First and Eighth

Amendments. Nevertheless, Appellant produced nothing to allow his

claims against Barton to go to trial. In upholding Collins' strip

search of Appellant, Barton was complying with reasonable prison

regulations. Moreover, no evidence suggested that any improper

motive animated Barton's actions towards Appellant. The district

court correctly granted summary judgment.

C. Ostrout

Appellee K. Ostrout was a correctional officer at MCI in late

1990. Appellant alleges that Ostrout cited him for two

disciplinary violations because of his race and because of his

prior litigation activities. Although the prison disciplinary

review board found Appellant not guilty of one of the violations

Ostrout documented, Appellant was found guilty of making spoken

threats, resulting in the suspension of Appellant's recreational
privileges. Ostrout denies that he cited Appellant for improper

reasons and maintains that he never made racist statements or

indicated a desire to retaliate against Appellant.

As explained above, Appellant's allegation of retaliation

states a valid First Amendment claim. In addition, the allegations

against Ostrout state an independent Fourteenth Amendment equal

protection claim. Under the Equal Protection Clause, prisoners

have a right to be free from racial discrimination. See Turner,

482 U.S. at 83-85, 107 S.Ct. at 2259; Lee v. Washington, 390 U.S.

333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968).

In considering the joint motion for summary judgment, the

magistrate judge apparently overlooked the affidavits of two MCI

inmates. These documents corroborate Appellant's version of the

events of November 1990 which led to Appellant's citation by

Ostrout. Both affidavits state that Ostrout used racist language

when referring to Appellant. The affidavits also attribute

statements to Ostrout that, if true, would clearly indicate that he

filed disciplinary reports against Appellant in retaliation for

Appellant's earlier litigation. Finally, the inmate's affidavits

dispute Ostrout's contention that Appellant threatened him. In

sum, the two inmate affidavits, if credited by the trier of fact,

provide evidence to support both Appellant's allegation of

retaliation in violation of the First Amendment and his allegation

of racial discrimination in violation of the Fourteenth Amendment.

The issue of discriminatory intent is a question for the

trier of fact. Pullman-Standard v. Swint, 456 U.S. 273, 288-91,

102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982); Beckwith v. City of
Daytona Beach Shores, 58 F.3d 1554, 1560 (11th Cir.1995). Direct

evidence of an illegal motive will usually suffice to create a

genuine issue of fact and preclude summary judgment. See Swint v.

City of Wadley, Alabama, 51 F.3d 988, 1000 (11th Cir.1995) (single

witness's testimony regarding a defendant-officer's racist remark

was sufficient to preclude summary judgment). Even if the district

court believes that all the evidence presented by one side is of

doubtful veracity, it is not proper to grant summary judgment on

the basis of such credibility choices. See Perry v. Thompson, 786

F.2d 1093, 1095 (11th Cir.1986).

With the forgoing principles in mind, we conclude that the

district court erred by granting summary judgment for Ostrout. We

make no comment on the ultimate merits of the claims against

Officer Ostrout. We merely hold that when a civil rights plaintiff

provides the type of direct evidence of a defendant's illegal

motive that Appellant has in this case, summary judgment is not

appropriate.

D. McRae

Appellee M.O. McRae was a shift captain at MCI in late 1990.

Appellant's complaint appears to hold McRae at least partially

responsible for the acts of Ostrout. Appellant also alleges that

McRae deprived him of liberty without due process by suspending his

recreation in conjunction with the Ostrout incident. McRae denies

taking any action against Appellant for improper reasons and claims

to be unaware of any incidents in which Ostrout abused Appellant or

used racist language.

The district court correctly dismissed Appellant's claims
against McRae. There is no respondeat superior liability under §

1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 690-92, 98

S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); LaMarca v. Turner, 995

F.2d 1526, 1538 (11th Cir.1993), cert. denied, --- U.S. ----, 114

S.Ct. 1189, 127 L.Ed.2d 539 (1994). Although Appellant's pro se

complaint need not plead that McRae personally participated in the

actions against him, he must at least allege some reason for

holding McRae liable beyond the fact that McRae was the superior of

another defendant. See Swint, 51 F.3d at 999 (section 1983

requires an affirmative causal connection between an official's

acts and the alleged constitutional deprivation).

Reading Appellant's complaint liberally, the only allegation

against McRae which does not rely upon some variation on respondeat

superior is the allegation that McRae deprived Appellant procedural

due process by his participation in suspending Appellant's

recreational privileges. Nevertheless, because Appellant does not

deny that he was provided notice of the disciplinary charges

against him and an opportunity to respond to Ostrout's charges, we

have no difficulty in concluding that Appellant received all the

process he was due. See, e.g., Zinermon v. Burch, 494 U.S. 113,

127-28, 110 S.Ct. 975, 984, 108 L.Ed.2d 100 (1990). If Appellant

is alleging that the bias of McRae and others deprived him of his

right to due process of the law, then his claim is barred by the

doctrine of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68

L.Ed.2d 420 (1981), and its progeny. See McKinney v. Pate, 20 F.3d

1550, 1562-63 (11th Cir.1994) (en banc), cert. denied, --- U.S. ---

-, 115 S.Ct. 898, 130 L.Ed.2d 783 (1995). The district court
correctly dismissed Appellant's claim against McRae because

Appellant's complaint failed to state a claim upon which relief

could be granted.

E. Farcas

Appellee David Farcas was the superintendent of MCI in late

1990. Appellant alleges that Farcas acquiesced in the suspension

of his recreational privileges and the other alleged wrongs in

order to retaliate for Appellant's prior litigation and because of

his race. Appellant also charges that Farcas refused to control

the prison's insect population or provide Appellant with an

adequate vegetarian diet. Farcas denies having any racist or

retaliatory animus towards Appellant and maintains that his actions

in approving Appellant's suspension were entirely proper. Farcas

also relies on records indicating that the prison offered an

adequate vegetarian diet and made regular efforts to control

insects in the prison buildings.

As explained above, Appellant's allegations of racial bias

and retaliatory animus state a claim under the First and Fourteenth

Amendments. Appellant's additional claims regarding insect control

and inadequate diet at MCI also state a valid constitutional

claim.5 When prisoners are denied "the minimal civilized measure

of life's necessities," the Eighth Amendment is violated. Wilson,

5
Although this Court has granted prisoners a limited right
to receive a religious diet under the Free Exercise Clause of the
First Amendment, see Martinelli v. Dugger, 817 F.2d 1499, 1505-06
(11th Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 714, 98
L.Ed.2d 664 (1988), it is unclear whether that right survived
Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108
L.Ed.2d 876 (1990). Even assuming that Appellant states a valid
free exercise claim, nothing in the record supports such a claim
and we conclude that any such claim was properly dismissed.
501 U.S. at 298, 111 S.Ct. at 2324 (quoting Rhodes v. Chapman, 452

U.S. 337, 346-47, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)).

The district court was correct in granting summary judgment

for Farcas. Like most of Appellant's case against McRae, his First

and Fourteenth Amendment claims against Farcas failed because

nothing suggests an affirmative causal connection between Farcas

and any allegedly unconstitutional acts. See Swint, 51 F.3d at

999. Moreover, Appellant produced nothing to suggest a racist or

retaliatory motive on the part of Farcas. Finally, Appellant's

diet and insect-infestation claims also fail for lack of any

evidence that conditions at MCI were anything but adequate.

Appellees' evidence that MCI provided an adequate diet and regular

insect control goes unchallenged. Under these circumstances, the

district court properly concluded that no material issue of fact

remained with respect to Appellant's claims against Farcas.

IV. CONCLUSION

The district court correctly granted summary judgment for

Appellees Collins, Barton, McRae, and Farcas. The district court

erred in granting summary judgment for Appellee Ostrout because the

affidavits submitted by two MCI inmates create a genuine issue of

material fact, which cannot be resolved on summary judgment.

AFFIRMED in part, REVERSED in part, and REMANDED.