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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13691 Non-Argument Calendar ________________________
D.C. Docket No. 2:14-cv-00726-SPC-MRM
KENNETH COLEMAN,
Plaintiff-Appellant,
versus
T. BOWDEN, et al.,
Defendants,
SGT.WALKER,
Defendant-Appellee. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(December 9, 2019)
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-13691 Date Filed: 12/09/2019 Page: 2 of 16
Kenneth Coleman, a Florida prisoner proceeding pro se, brought a civil rights
action under 42 U.S.C. § 1983 against six prison officials: T. Bowden, L. Severson,
Major Colon, Sergeant J.D. Rios, Sergeant Walker, and Sergeant Laux. He appeals
the following orders issued by the district court in his case: (1) the order dismissing
claims against T. Bowden for failure to state a claim and dismissing all other claims
for failure to exhaust administrative remedies, except for the retaliation claim against
Sergeant Walker; (2) the order denying his motion to compel the production of his
medical records; (3) the order denying his motion for leave to file a second amended
complaint; and (4) the order granting summary judgment in favor of Sergeant
Walker on the retaliation claim. For the following reasons, we affirm.
I
Mr. Coleman’s claims predominantly arise from an incident that occurred on
the evening of October 9, 2012, while he was incarcerated at Charlotte Correctional
Institution in Punta Gorda, Florida. He alleges that on that night, his cellmate
Kenneth Jones attacked him while he was sleeping, punching him in the face and
eyes, kicking him in the hip, and slamming him to the floor. As a result of the attack,
Mr. Coleman suffered permanent damage to his body, has to wear bifocals, and his
left eye sags.
Mr. Coleman claims the defendants’ deliberate indifference to his safety, in
violation of his Eighth Amendment rights, resulted in the attack. In addition to the
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claims stemming from the attack, Mr. Coleman asserts that Sergeant Walker verbally
threatened him and “schemed to force [him] to live with his enemy” in retaliation
for grievances that Mr. Coleman had filed against him, in violation of his First
Amendment rights.
Mr. Coleman filed a number of grievances with prison officials between June
of 2011 and November of 2013. Four of them are relevant here.
First, on October 23, 2011, Mr. Coleman filed an inmate request to the warden
complaining that, when he was placed in administrative confinement, Sergeant
Walker failed to call the B-dormitory (where Mr. Coleman had been housed) to tell
them to pack up and store Mr. Coleman’s property. The grievance was denied
because Mr. Coleman’s property had been properly packed and stored. Mr. Coleman
alleged that Sergeant Walker “made verbal threats” to him after he filed this
grievance, telling Mr. Coleman that “someone is going to take care of [him] for
writing [Sergeant Walker] up, for leaving [his] personal property inside [the] B-
dormitory[.]” D.E. 81 at 11.
Second, on November 10, 2011, Mr. Coleman submitted an “emergency”
grievance to T. Bowden, the Secretary’s representative for the Florida Department
of Corrections (“FDOC”), stating that Sergeant Walker was trying to get Mr.
Coleman beat up or stabbed by other inmates. Mr. Coleman claims that when T.
Bowden took too long to answer, he cut his wrist with a razor. As a result, he was
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placed at Lake Correctional Institution’s Mental Health Unit from April 3, 2012 to
August 13, 2012.
Third, on December 14, 2012, Mr. Coleman filed a grievance with the warden
of Martin Correctional Institution, where he was then housed, complaining that he
had informed Sergeant Rios that he and Mr. Jones “were not getting along,” but
Sergeant Rios did not move him to a different cell. He also asserted that staff
members at Charlotte Correctional Institution placed him in a cell with Mr. Jones in
retaliation for filing grievances against them. The grievance was returned without
action because it addressed more than one issue.
Fourth, instead of correcting this deficiency, on January 18, 2013, Mr.
Coleman filed a grievance directly with the Secretary of the FDOC, asserting that
the prison staff “conspired” to house him in a cell with Mr. Jones. His appeal was
returned because it was not compliant with the inmate grievance procedures.
II
Defendants Bowden, Colon, Severson, and Walker moved to dismiss the
amended complaint. 1 The district court granted the motion in part, dismissing all of
Mr. Coleman’s claims except the retaliation claim against Sergeant Walker. The
district court dismissed the claims against T. Bowden for failure to state a claim, as
1 Neither Sergeant J.D. Rios nor Sergeant Laux were served with process. 4 Case: 17-13691 Date Filed: 12/09/2019 Page: 5 of 16
the only allegations against her were based on her review of administrative
grievances submitted to the FDOC.
The district court dismissed the deliberate indifference claims against the
remaining defendants because Mr. Coleman did not properly exhaust administrative
remedies. The December 14, 2012, and January 18, 2013, grievances did not comply
with the grievance procedures, and Mr. Coleman did not demonstrate that he was
exempt from complying with the grievance process. The district court concluded,
however, that Mr. Coleman exhausted his retaliation claim against Sergeant Walker
and allowed that sole claim to proceed.
Mr. Coleman then moved to compel Sergeant Walker to produce documents,
including his medical and mental health records. The district court denied this
request because these records were unrelated to the remaining retaliation claim.
On May 19, 2017, Sergeant Walker moved for summary judgment. Before
the district court ruled on the motion, Mr. Coleman moved for leave to file a second
amended complaint. The district court denied leave to amend because it would cause
undue delay and prejudice.
In his summary judgment motion, Sergeant Walker denied retaliating against
Mr. Coleman, explaining that he had little interaction with Mr. Coleman as Mr.
Coleman was only assigned to his housing unit for one week. He submitted a prison
record confirming that Mr. Coleman was only in his unit (the “B-Dormitory”) from
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October 4, 2011, to October 11, 2011. Sergeant Walker further contended he did
not place Mr. Coleman in a cell with his enemies, as he has no control over the
assignment of inmates to cells. In support, he submitted an affidavit of Kara
Williams, the Assistant Warden of Programs at Charlotte Correctional Institute,
verifying that cell assignments are not done by the security staff assigned to the
housing unit.
In his response in opposition, Mr. Coleman set forth new facts not alleged in
the amended complaint. In the amended complaint, Mr. Coleman alleged that
Sergeant Walker retaliated against him for the October 23, 2011, grievance by
placing him in a cell with his enemies. In the response in opposition, however, Mr.
Coleman claimed that Sergeant Walker failed to properly secure his property in
retaliation for his threatening to file a grievance against him on October 12, 2011.
The district court granted summary judgment in favor of Sergeant Walker. It
explained that Mr. Coleman could not base his retaliation claim on a factual scenario
not alleged in the amended complaint. The district court further explained that
Sergeant Walker was entitled to summary judgment on the retaliation claim that was
alleged because Mr. Coleman could not show a causal connection between the
grievance and the alleged adverse action. Namely, Sergeant Walker could not have
placed Mr. Coleman in a cell with his enemies, because the undisputed evidence
showed that Mr. Coleman was not assigned to Sergeant Walker’s housing unit any
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time after he filed the grievance and that Sergeant Walker was not in charge of cell
assignments.
Mr. Coleman appealed.
III
On appeal, Mr. Coleman raises five arguments: (a) the district court erred in
dismissing his claims against T. Bowden for failure to state a claim for relief; (b) the
district court erred in dismissing the remaining deliberate indifference claims for
failure to exhaust administrative remedies; (c) the district court abused its discretion
in denying his motion to compel the production of his medical and mental health
records and stored property slips; (d) the district court abused its discretion in
denying his motion for leave to file a second amended complaint; and (e) the district
court erred in granting Sergeant Walker’s motion for summary judgment on the First
Amendment retaliation claim. We address each argument in turn.
A
We review the district court’s grant of a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) de novo, accepting the allegations in the complaint as
true and construing them in the light most favorable to the plaintiff. See Timson v.
Sampson, 518 F.3d 870, 872 (11th Cir. 2008). To survive a motion to dismiss, the
complaint must contain sufficient factual allegations to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Pro se complaints are held
to “less stringent standards than formal pleadings drafted by lawyers.” Campbell v.
Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014) (citation omitted).
“A prison official’s deliberate indifference to a substantial risk of serious
harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
825, 828 (1994) (internal quotation marks omitted). To plead a deliberate
indifference claim, the plaintiff must allege facts sufficient to show: “(1) a
substantial risk of serious harm; (2) the defendants’ deliberate indifference to that
risk; and (3) causation.” Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016)
(citation and internal quotation marks omitted). The second element has three
components: “(1) subjective knowledge of a risk of serious harm; (2) disregard of
that risk; (3) by conduct that is more than mere negligence.” Id. at 1308 (citation
and internal quotation marks omitted).
The district court did not err by dismissing Mr. Coleman’s deliberate
indifference claim against T. Bowden. Her only alleged involvement in this case
was reviewing an “emergency” grievance as the Secretary’s representative for the
FDOC and returning the grievance without action because the institution should
have been given an opportunity to resolve the issue. Denying Mr. Coleman’s
grievance for this reason is not sufficient to show that she had “subjective knowledge
of a risk of serious harm” and “disregarded that risk.” See id. See also Johnson v.
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Doughty, 433 F.3d 1001, 1010–11 (7th Cir. 2006) (affirming summary judgment in
favor of prison officials who denied the plaintiff’s grievances because they
responded reasonably to the grievances and did not evince a “sufficiently culpable
state of mind” to be deliberately indifferent).
Nor did Mr. Coleman state a claim against T. Bowden based on her position
with the FDOC. “It is well established that § 1983 claims may not be brought against
supervisory officials on the basis of vicarious liability or respondeat superior.”
Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (citation omitted). A
supervisor may be liable under § 1983 only if she “personally participates in the
alleged constitutional violation or when there is a causal connection between the
actions of the supervising official and the alleged constitutional violation.” Id.
(quoting Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)). Mr. Coleman
has not alleged facts to show that Ms. Bowden “personally participate[d]” in, or
directly caused, him to be attacked by his cellmate. See id. See also Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (“[A] denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by plaintiff,
does not establish personal participation under § 1983.”).
B
Under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), a prisoner may
not bring suit regarding prison conditions under § 1983 until he exhausts all available
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administrative remedies. In reviewing a motion to dismiss for failure to exhaust
administrative remedies, the district court may “consider facts outside of the
pleadings and [ ] resolve factual disputes so long as the factual disputes do not decide
the merits and the parties have a sufficient opportunity to develop the record.”
Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008). We review the district court’s
interpretation and application of the PLRA’s exhaustion requirement de novo and its
factual findings for clear error. Bingham v. Thomas, 654 F.3d 1171, 1174–75 (11th
Cir. 2011).
“The PLRA requires ‘proper exhaustion’ that complies with the ‘critical
procedural rules’ governing the grievance process.” Dimanche v. Brown, 783 F.3d
1204, 1210 (11th Cir. 2015) (quoting Woodford v. Ngo, 548 U.S. 81, 95 (2006)). In
Florida, a prisoner must follow a three-step process: first, he must file an informal
grievance with a designated prison staff member; second, he must file a formal
grievance with the institution’s warden; and third, he must submit an appeal to the
Secretary of the FDOC. Chandler v. Crosby, 379 F.3d 1278, 1288 (11th Cir. 2004)
(citing Fla. Admin. Code §§ 33-103.005–103.007).
The district court did not err in dismissing Mr. Coleman’s deliberate
indifference claims for failure to exhaust administrative remedies. The record
reflects that the only grievance filed at the institutional level raising issues regarding
security checks, improper inmate housing, or the attack by Mr. Jones was the
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grievance filed with the warden of Martin Correctional Institution on December 14,
2012. That grievance did not comply with Florida’s grievance procedures because
it addressed more than one issue. See Fla. Admin. Code. § 33-103.014. As a result,
it was returned without action, and Mr. Coleman was advised to submit one
grievance per issue and given an opportunity to refile the grievance.
Rather than refile as directed, Mr. Coleman filed an appeal directly with the
Secretary of the FDOC on January 18, 2013. That appeal did not comply with the
“critical procedural rules governing the grievance process,” as it was filed directly
with the Secretary without going through the sequential three-step process.
Dimanche, 783 F.3d at 1210 (internal quotation marks omitted).
Mr. Coleman argues that he was unable to exhaust his administrative remedies
while he was in the Lake Correctional Institution Mental Health Unit because he did
not have access to writing instruments or grievance forms. But the undisputed
evidence establishes that he was in that unit before he was attacked by Mr. Jones.
Thus, this does not excuse Mr. Coleman from filing a proper grievance about the
October 9, 2012 incident.
Mr. Coleman also asserts that he was exempt from filing a grievance at the
institutional level because he was being threatened with retaliation by prison staff at
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Charlotte Correctional Institution.2 But the alleged threats by officers at Charlotte
Correctional Institution does not explain why Mr. Coleman could not have filed a
grievance internally at Martin Correctional Institution, where he was housed at the
time he filed the December 2012 and January 2013 grievances. See Bryant v. Rich,
530 F.3d 1368, 1379 (11th Cir. 2008) (rejecting prisoner’s argument that he was
exempt from filing a grievance, even though he feared violent reprisals by prison
officials, because he had been transferred to another prison where the threat of
violence was removed).
In addition, a prison official’s threats of retaliation against a prisoner only
make the administrative remedy “unavailable” if: “(1) the threat actually did deter
the plaintiff inmate from lodging a grievance or pursuing a particular part of the
process; and (2) the threat is one that would deter a reasonable inmate of ordinary
firmness and fortitude from lodging a grievance[.]” Turner v. Burnside, 541 F.3d
1077, 1085 (11th Cir. 2008). Here, any such threat did not actually deter Mr.
Coleman from lodging a grievance at the institutional level, as he did indeed file a
grievance (albeit improperly) about the incident with the warden of Martin
2 A prisoner may bypass the first two steps and submit a grievance directly to the Secretary if the grievance is a “grievance of reprisal,” which is a grievance “alleging that staff have taken or are threatening to take retaliatory action against the inmate for good faith participation in the inmate grievance procedure.” Fla. Admin. Code § 33-103.002(9). Though the district court did not find the January 18, 2013 grievance to be a “grievance of reprisal,” it found that the November 10, 2011 grievance regarding Sergeant Walker could constitute a “grievance of reprisal,” and thus Mr. Coleman exhausted that claim. 12 Case: 17-13691 Date Filed: 12/09/2019 Page: 13 of 16
Correctional Institution a month earlier, on December 14, 2012. Thus, the district
court did not err in concluding that Mr. Coleman failed to properly exhaust his
administrative remedies for his claims arising out of the October 9, 2012 attack.
C
We review a district court’s denial of a motion to compel discovery for abuse
of discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006).
“Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense[.]” Fed. R. Civ. P. 26(b)(1).
The district court correctly denied Mr. Coleman’s motion to compel his
medical and mental health records because they were not relevant to any pending
claim, as the sole remaining claim at the time was the retaliation claim against
Sergeant Walker. Mr. Coleman’s argument regarding stored property slips likewise
lacks merit, as the record reflects that Mr. Coleman did not seek property slips in his
request for production or motion to compel.
D
We review a district court’s denial of leave to amend a complaint for abuse of
discretion. Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342
F.3d 1281, 1286 (11th Cir. 2003). Leave to amend may be denied if it would cause
undue delay or prejudice. See id. at 1287.
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At the time Mr. Coleman sought leave to amend, the district court had already
permitted Mr. Coleman to amend the complaint once, the case had been pending for
over two years, discovery had closed, and Sergeant Walker’s motion for summary
judgment was pending. The district court noted that Mr. Coleman did not show good
cause for the delay, and the motion to amend appeared to be designed solely to delay
consideration of Sergeant Walker’s summary judgment motion. These are sufficient
grounds to deny Mr. Coleman’s motion. See Lowe’s Home Ctrs., Inc. v. Olin Corp.,
313 F.3d 1307, 1315 (11th Cir. 2002) (“It is not an abuse of discretion for a district
court to deny a motion for leave to amend a complaint when such motion is designed
to avoid an impending adverse summary judgment motion”). See also id. (“[I]t is
not an abuse of discretion for a district court to deny a motion for leave to amend
following the close of discovery, past the deadline for amendments and past the
deadline for filing dispositive motions”); Reese v. Herbert, 527 F.3d 1253, 1263
(11th Cir. 2008) (holding that the district court acted within its discretion in denying
a motion for leave to amend because the motion was filed nearly seven weeks after
the close of discovery and would have unduly prejudiced the defendants).
E
We review a district court’s grant of summary judgment de novo. Rich v.
Sec’y, Fla. Dep’t of Corrs., 716 F.3d 525, 530 (11th Cir. 2013). Summary judgment
is appropriate if the moving party “shows that there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
The First Amendment prohibits prison officials from retaliating against a
prisoner as a result of his filing a grievance concerning the conditions of his
imprisonment. See O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir. 2011)
(quoting Farrow v. West, 320 F.3d 1235, 1248 (11th Cir. 2003)). To prevail on a
retaliation claim, the prisoner must prove: “(1) his speech was constitutionally
protected; (2) the inmate suffered adverse action such that the [official’s] allegedly
retaliatory conduct would likely deter a person of ordinary firmness from engaging
in such speech; and (3) there is a causal relationship between the retaliatory action
[the disciplinary punishment] and the protected speech [the grievance].” Id.
(citation and internal quotation marks omitted; alterations in original).
Construing the amended complaint liberally, Mr. Coleman alleged that
Sergeant Walker retaliated against him for filing the October 23, 2011 grievance
about his property by placing him in a cell with his enemies. But in his response in
opposition to summary judgment, and on appeal, Mr. Coleman asserts an additional
basis for his retaliation claim—that Sergeant Walker left his property unsecured in
retaliation for Mr. Coleman threatening to file a grievance against him.
The district court correctly declined to consider the latter basis for the
retaliation claim, as Mr. Coleman cannot raise a new, unpled claim at the summary
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judgment stage. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th
Cir. 2004). Summary judgment was also proper on the retaliation claim that Mr.
Coleman did plead. The undisputed evidence showed that Mr. Coleman could not
establish a causal connection between his October 23, 2011, grievance and his cell
assignment. First, Sergeant Walker submitted undisputed evidence that Mr.
Coleman was only housed in his housing unit, the B-Dormitory, from October 4,
2011 to October 11, 2011—before Mr. Coleman filed the October 23, 2011
grievance. Second, Ms. Williams’ affidavit establishes that security staff assigned
to the housing unit, like Sergeant Walker, are not responsible for cell assignments.
Thus, Sergeant Walker could not have caused the alleged adverse action and is
entitled to summary judgment. See Farrow, 320 F.3d at 1248–49 (affirming
summary judgment on prisoner’s retaliation claim against nurse because the prisoner
could not establish a causal connection between his complaints and the alleged
denial of treatment by the nurse).
IV
For the foregoing reasons, we affirm the district court’s rulings.
AFFIRMED.