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.