Corey Milledge v. Gray English

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 10, 2019
• Docket: 18-12219
• Status: Unpublished

Opinion

Case: 18-12219 Date Filed: 01/10/2019 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-12219 Non-Argument Calendar ________________________

D.C. Docket No. 4:15-cv-00577-WS-CAS

COREY MILLEDGE,

Plaintiff-Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS SECRETARY, et al.,

Defendants,

GRAY ENGLISH, Assistant Warden,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Florida ________________________

(January 10, 2019)

Before MARCUS, WILSON and HULL, Circuit Judges.

PER CURIAM: Case: 18-12219 Date Filed: 01/10/2019 Page: 2 of 9

Corey Milledge, a state prisoner proceeding pro se, appeals following an

order granting summary judgment in favor of Assistant Warden Gary English in

his § 1983 action alleging that English violated his Eighth Amendment rights by

not protecting him after he informed him that his cellmate threatened him and he

feared for his life, and then the cellmate attacked and injured him. On appeal,

Milledge argues that: (1) the district court erred in granting summary judgment in

favor of English because it did not view the evidence in a light most favorable to

him and that there was a genuine issue of material fact; and (2) the district court

abused its discretion in denying his motion to alter or amend the judgment. After

thorough review, we affirm. 1

We review de novo a district court’s grant of summary judgment, viewing

all evidence and reasonable factual inferences drawn from it in the light most

favorable to the nonmoving party. Crawford v. Carroll, 529 F.3d 961, 964 (11th

Cir. 2008). We review the district court’s denial of a motion for reconsideration

for abuse of discretion. Rodriguez v. City of Doral, 863 F.3d 1343, 1349 (11th Cir.

2017). “A court abuses its discretion if it incorrectly applies the law.” Id. We

may affirm on any ground supported by the record. LeCroy v. United States, 739

F.3d 1297, 1312 (11th Cir. 2014).

1 Milledge’s complaint also named several other defendants but because he does not challenge on appeal anything pertaining to those defendants, he has abandoned any issue as to those defendants. Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001). 2 Case: 18-12219 Date Filed: 01/10/2019 Page: 3 of 9

“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.” Crawford, 529 F.3d at 964. The party

moving for summary judgment bears the initial burden of establishing the absence

of a dispute over a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The burden then shifts to the non-moving party, who may not rest upon

mere allegations, but must set forth specific facts showing that there is a genuine

issue for trial. Fed. R. Civ. P. 56(e); Eberhardt v. Waters, 901 F.2d 1578, 1580

(11th Cir. 1990).

Federal Rule of Civil Procedure 59(e) allows a party to file a motion to alter

or amend a judgment within 28 days after the entry of judgment. “The only

grounds for granting a Rule 59 motion are newly-discovered evidence or manifest

error of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)

(quotations and alterations omitted). “A Rule 59(e) motion cannot be used to

relitigate old matters, raise argument or present evidence that could have been

raised prior to the entry of judgment.” Id. (quotations and alterations omitted).

The Supreme Court has held that “the treatment a prisoner receives in prison

and the conditions under which he is confined are subject to scrutiny under the

Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation

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omitted). The Eighth Amendment imposes duties on prison officials to provide

humane conditions of confinement, which includes the responsibility to “take

reasonable measures to guarantee the safety of the inmates.” Id. (quotation

omitted). This means that “prison officials have a duty [] to protect prisoners from

violence at the hands of other prisoners.” Id. at 833. This is because “[b]eing

violently assaulted in prison is simply not part of the penalty that criminal

offenders pay for their offenses against society.” Id. at 834 (quotation omitted).

However, not every injury suffered by one prisoner at the hands of another

translates into a constitutional violation by prison officials who are responsible for

the victim’s safety. Id.

The Supreme Court has held that “a prison official violates the Eighth

Amendment only when two requirements are met.” Id. “First, the deprivation

alleged must be, objectively, sufficiently serious” in that “a prison official’s act or

omission must result in the denial of the minimal civilized measure of life’s

necessities.” Id. (quotations omitted). In a case involving “a failure to prevent

harm, the inmate must show that he is incarcerated under conditions posing a

substantial risk of serious harm.” Id. Second, the prison official must have acted

with deliberate indifference to inmate health or safety. Id. This requires the prison

official to “actually (subjectively) know[] that an inmate is facing a substantial risk

of serious harm, yet disregard[] that known risk by failing to respond to it in an

4 Case: 18-12219 Date Filed: 01/10/2019 Page: 5 of 9

(objectively) reasonable manner.” Rodriguez v. Sec’y for Dep’t of Corr., 508 F.3d

611, 617 (11th Cir. 2007) (footnote omitted). Additionally, the inmate must also

“demonstrate a causal connection between the prison official’s conduct and the

Eighth Amendment violation.” Id.

As for the subjective component of an Eighth Amendment claim, the prison

official “must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.” Id.

(quotation omitted). The Supreme Court has held that this determination “is a

question of fact subject to demonstration in the usual ways, including inference

from circumstantial evidence.” Farmer, 511 U.S. at 842. Thus, prison officials can

avoid Eighth Amendment liability by showing (1) “that they did not know of the

underlying facts indicating a sufficiently substantial danger and that they were

therefore unaware of a danger,” (2) “that they knew the underlying facts but

believed (albeit unsoundly) that the risk to which the facts gave rise was

insubstantial or nonexistent,” or (3) that they “responded reasonably to the risk,

even if the harm ultimately was not averted.” Id. at 844 (quotation omitted).

To have subjective knowledge, the plaintiff “must show more than a

generalized awareness of risk.” Caldwell v. Warden, FCI Talladega, 748 F.3d

1090, 1101-02 (11th Cir. 2014) (quotation omitted). Mere knowledge of a

substantial risk of serious harm “is insufficient to show deliberate indifference.”

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Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1583 (11th Cir. 1995). Thus, a plaintiff

must produce evidence that, with knowledge of the substantial risk of serious

harm, the government official knowingly or recklessly “disregard[ed] that risk by

failing to take reasonable measures to abate it.” Id. (quotation omitted).

In Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), the plaintiff was

attacked by the inmate in the next cell when all of the cell doors simultaneously

opened and a violent riot began. Id. at 1298-99. The plaintiff alleged that his

attacker had threatened him previously, that he had notified prison officials of the

threats, and that the cell doors in his housing unit had opened before. Id. at 1298,

1301. However, he did not allege that he and his attacker had ever been released

“at the same time . . . in an unsupervised or chaotic environment” or that “all 32

doors in [his dorm] had ever opened simultaneously, creating the conditions for a

prison riot.” Id. at 1301. Because “[t]here must be a ‘strong likelihood’ of injury,

‘rather than a mere possibility,’ before an official’s failure to act can constitute

deliberate indifference,” a panel of this Court held that Brooks had failed to

“plausibly allege a strong likelihood of serious harm” and his deliberate

indifference claim failed. Id. (quotation omitted). Notably, the Eighth Circuit has

held that “threats between inmates are common and do not, under all

circumstances, serve to impute actual knowledge of a substantial risk of harm.”

Pagels v. Morrison, 335 F.3d 736, 740-41 (8th Cir. 2003) (quotation omitted).

6 Case: 18-12219 Date Filed: 01/10/2019 Page: 7 of 9

Here, the district court did not err in granting summary judgment in favor of

English. The most the record before us reveals is that Milledge may have informed

officials of a single threat directed toward him by his cellmate. We’ve held, in

certain circumstances, that an inmate warning a prison official of another inmate’s

threat can constitute evidence that the official was subjectively aware of the

substantial risk of serious harm -- if, for example, other instances of violence had

occurred between them. See Caldwell, 748 F.3d at 1101 (holding that summary

judgment was improper where the plaintiff inmate presented evidence that he had

told prison officials that he feared for his life if he was returned to the same cell

and that his cellmate had a violent past, had started a severe fire in the cell while

the plaintiff was there, and had used the plaintiff’s personal items as tinder for the

fire); Rodriquez, 508 F.3d at 618-19 (holding that summary judgment was not

proper where the inmate had been returned to the general population after being

segregated from the general prison population for security purposes, had informed

the assistant warden twice that his life had been threatened multiple times by his

former gang who were prisoners in the prison’s general population, and had

requested by means of a written and verbal communication to be placed in

protective custody).

But this case is nothing like those. Milledge did not present any evidence

beyond informing officials of only a single threat, offering no other risk factors

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present for a prison official to draw the inference that he faced a substantial risk of

harm. Indeed, as the record reveals, the two cellmates had been housed together in

the same cell without incident for approximately one month prior to the altercation

giving rise to the lawsuit, and Milledge had not been previously segregated for

security reasons. There is no allegation or indication that the two inmates were

involved with rival gangs or had any issues related to race, debt, romance, or

anything else that might render one an excessive danger to the other. Nor is there

any evidence that Milledge knew or reported that his cellmate had any other type

of weapon. Because “[t]here must be a ‘strong likelihood’ of injury, ‘rather than a

mere possibility,’ before an official’s failure to act can constitute deliberate

indifference,” Brooks, 800 F.3d at 1301, we cannot say that a single threat, on the

circumstances of this case, is sufficient by itself to constitute a substantial risk of

serious harm.

Finally, the district court did not abuse its discretion in denying Milledge’s

motion for reconsideration. The motion for reconsideration essentially asked the

district court to review its prior ruling because Milledge disagreed with its

treatment of facts and legal conclusions. However, the motion could not be used to

relitigate old matters, raise arguments, or present evidence that could have been

raised prior to the entry of judgment. Arthur, 500 F.3d at 1343. In any event, for

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similar reasons that summary judgment was appropriate, the district court did not

misapply the law. Accordingly, we affirm. 2

AFFIRMED.

2 There is also no merit to Milledge’s claim that the district court abused its discretion in dismissing an unserved defendant, Warden Scott Middlebrooks. 9