Myra C. Solliday vs Federal Officers, E. Lavon Spence

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 9, 2011
• Docket: 10-11854
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 10-11854 ELEVENTH CIRCUIT Non-Argument Calendar FEBRUARY 9, 2011 ________________________ JOHN LEY CLERK D.C. Docket No. 4:07-cv-00363-RH-WCS

MYRA C. SOLLIDAY,

llllllllllllllllllll Plaintiff-Appellant,

versus

FEDERAL OFFICERS, et al.,

lllllllllllllllllllll Defendants,

E. LAVON SPENCE,

lllllllllllllllllllll Defendant-Appellee.

________________________

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

(February 9, 2011)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM: Myra Solliday, a federal prisoner proceeding pro se, appeals the district

court’s order granting summary judgment to four defendants on her civil rights

action pursued under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), in which she challenged her

placement in administrative detention out of the general population, transfer

between federal prisons, and overall treatment during an ongoing investigation

into the sexual abuse of inmates by correctional officers. This appeal concerns the

following defendants: Harley Lappin, the Director of the Bureau of Prisons

(“BOP”); Mildred Rivera, former Warden of the Federal Correction Institution at

Tallahassee, Florida (“FCI Tallahassee”); Ron Horton, former Captain at FCI

Tallahassee; and Special Investigative Agent (“SIA”) George Williams,

(collectively, “Defendants”).

We review de novo the district court’s grant of a motion for summary

judgment, viewing all evidence and reasonable factual inferences in the light most

favorable to the nonmoving party. Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 911

(11th Cir. 2007) (citing Fed.R.Civ.P. 56(c)). We review de novo a district court’s

interpretation and application of 42 U.S.C. § 1997e(a)’s exhaustion requirement.

Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005). Although pro se

briefs are to be liberally construed, issues not briefed on appeal are deemed

2 abandoned. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

Additionally, a passing reference to an issue in a brief is insufficient to properly

raise it, and the issue is, therefore, abandoned. Greenbriar, Ltd. v. City of

Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). Moreover, we may affirm a

judgment on any ground supporting the result. See, e.g., Turlington v. Atlanta Gas

Light Co., 135 F.3d 1428, 1433 n.9 (11th Cir. 1998).

Summary judgment is appropriate when the evidence, viewed in the light

most favorable to the nonmoving party, presents no genuine issue of fact and

compels judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23, 106 S. Ct. 2548, 2552 (1986). “Genuine disputes are those in which the

evidence is such that a reasonable jury could return a verdict for the non-movant.

For factual issues to be considered genuine, they must have a real basis in the

record.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996);

Fed.R.Civ.P. 56(e). “Inferences based upon speculation are not reasonable,” and

may not defeat a motion for summary judgment. Marshall v. City of Cape Coral,

Fla., 797 F.2d 1555, 1559 (11th Cir. 1986). Conclusory, uncorroborated

allegations by a plaintiff in an affidavit or deposition will not create an issue of

fact for trial sufficient to defeat a well supported summary judgment motion. See

Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

3 As a procedural matter, even giving Solliday’s pro se brief liberal

construction,1 many of her claims have not been preserved for review. First,

Solliday abandoned any deliberate indifference claim because she gives no more

than a passing reference to it in her brief.2 Second, Solliday does not expressly

challenge the court’s findings that she did not exhaust any claim against Special

Agent Williams individually. As a result, she has abandoned any claim against

Williams, and, although the district court should have dismissed the suit as to

Williams, rather than grant summary judgment in his favor, we nevertheless affirm

the judgment.3 Third, Solliday did not challenge the court’s finding that it did not

have personal jurisdiction over BOP Director Lappin, and we affirm the grant of

summary judgment in Lappin’s favor, as she abandoned any claim in this respect.

Solliday disputes the district court’s finding that she failed to exhaust her

administrative remedies with respect to her claim concerning excessive detention

1 “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 We note that, even if Solliday preserved a deliberate indifference claim, it lacks any merit because the evidence shows that Defendants provided her with reasonable medical care. 3 “Because exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, an exhaustion defense . . . is not ordinarily the proper subject for a summary judgment; instead, it should be raised in a motion to dismiss, or be treated as such if raised in a motion for summary judgment.” Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (citations and internal quotations omitted).

4 in administrative segregation in a special housing unit (“SHU”). Pursuant to

§ 1997e(a), “No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” A civil action with respect to “prison conditions” means

“any civil proceeding arising under Federal law with respect to the conditions of

confinement or the effects of actions by government officials on the lives of

persons confined in prison.” 18 U.S.C. § 3626(g)(2); Higginbottom v. Carter, 223

F.3d 1259, 1260 (11th Cir. 2000). Moreover, exhaustion means proper

exhaustion, i.e., under the terms of and according to the time set by BOP

regulations. See Woodford v. Ngo, 548 U.S. 81, 93-94, 126 S. Ct. 2378, 2387-88

(2006). Once the threshold exhaustion requirement is met, a court may proceed to

address the merits of the alleged constitutional violation. See Chandler v. Crosby,

379 F.3d 1278, 1286 (11th Cir. 2004).

We have explained that “Congress now has mandated exhaustion in section

1997e(a) and there is no longer discretion to waive the exhaustion requirement

. . . . [E]xhaustion is now a pre-condition to suit . . .” even if the remedies are

futile or inadequate. Id. at 1326. Alexander, 159 F.3d at1325-26 (emphasis

added); see also Leal v. Georgia Department of Corrections, 254 F.3d 1276, 1279

5 (11th Cir. 2001) (collecting cases). We have has also concluded that “[a] claim

that fails to allege the requisite exhaustion of remedies is tantamount to one that

fails to state a claim upon which relief may be granted.” Rivera v. Allin, 144 F.3d

719, 731 (11th Cir. 1998).

Based on the evidence submitted, it is clear that Solliday did not exhaust her

claim regarding excessive detention in SHU. As a result, we affirm the judgment

as to Captain Horton, whose only involvement with Solliday was through her stay

in SHU.

Solliday also generally argues that the court erred in granting summary

judgment in favor of Defendants. The Supreme Court has held that federal

officials may be sued in their individual capacities for violations of an individual’s

constitutional rights. Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 397, 91 S. Ct. 1999, 2005 (1971). While a plaintiff may

bring a Bivens action against a federal officer in his individual capacity, a plaintiff

may not bring a Bivens action against a federal agency or a federal officer acting in

his official capacity. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71, 122 S.

Ct. 515, 521-22 (2001) (holding that Bivens is “solely concerned with deterring

the unconstitutional acts of individual officers”); F.D.I.C. v. Meyer, 510 U.S. 471,

6 486, 114 S. Ct. 996, 1005-06 (1994) (declining to permit a damages remedy under

Bivens against federal agencies).

As a procedural matter, we have incorporated 42 U. S.C. § 1983 law into

analogous Bivens actions. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000).

“To prevail on a claim under § 1983, a plaintiff must demonstrate both (1) that the

defendant deprived [him] of a right secured under the Constitution or federal law

and (2) that such a deprivation occurred under color of state law.” Arrington v.

Cobb County, 139 F.3d 865, 872 (11th Cir. 1998).

“It is well established in this circuit that supervisory officials are not liable

under [Bivens] for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Gonzalez v. Reno, 325 F.3d 1228,

1234 (11th Cir. 2003) (internal quotation marks omitted). The standard by which

a supervisor is held liable in his individual capacity for the actions of a

subordinate is “extremely rigorous.” Braddy v. Florida Dep’t of Labor & Emp’t

Sec., 133 F.3d 797, 802 (11th Cir. 1998). Supervisors “can be held liable under

[Bivens] when a reasonable person in the supervisor’s position would have known

that his conduct infringed the constitutional rights of the plaintiffs, and his

conduct was causally related to the constitutional violation committed by his

7 subordinate.” Greason v. Kemp, 891 F.2d 829, 836 (11th Cir.1990) (citations and

footnote omitted).

In order to sustain a Bivens action, the plaintiff first must demonstrate that

her constitutional rights have been violated. Powell v. Lennon, 914 F.2d 1459,

1463 (11th Cir. 1990). The Eighth Amendment can give rise to claims challenging

specific conditions of confinement. See Danley v. Allen, 540 F.3d 1298, 1306

(11th Cir. 2008) (involving complaint filed under § 1983), overruled in part on

other grounds, Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). However, “[a]s

long as the conditions or degree of confinement to which the prisoner is subjected

[are] within the sentence imposed . . . and . . . not otherwise violative of the

Constitution, the Due Process Clause does not . . . subject an inmate’s treatment by

prison authorities to judicial oversight.” Montanye v. Haymes, 427 U.S. 236, 242,

96 S. Ct. 2543, 2547 (1976). This is because the Due Process Clause, standing

alone, confers no liberty interest in freedom from state action taken “‘within the

sentence imposed.’” Hewitt v. Helms, 459 U.S. 460, 468, 103 S. Ct. 864, 869

(1983).

Under certain circumstances, the federal government may create liberty

interests which are protected by the Due Process Clause, but these interests will be

generally limited to freedom from restraints which, while not exceeding the

8 sentence in such an unexpected manner as to give rise to protection by the Due

Process Clause of its own force, nonetheless impose atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life. See

Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995); Kirby v.

Siegelman, 195 F.3d 1285, 1290-1291 (11th Cir. 1999). Nevertheless, an inmate

has no liberty interest in a particular classification, prison assignment, or transfer

even if the inmate loses access to rehabilitative programs and experiences more

burdensome conditions than before. McKune v. Lile, 536 U.S. 24, 39, 122 S. Ct.

2017, 2027 (2002) (rejecting a challenge by inmate to expected demotion in

custodial status classification). Other examples of prison decisions not giving rise

to liberty interests include transfers to other prisons and visitation. See Olim v.

Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 (1983) (interstate transfers);

Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 109 S. Ct. 1904 (1989)

(visitation).

The district court did not err in granting summary judgment to Warden

Rivera on Solliday’s claims concerning conditions of confinement, transfer, or

abuse of discretion or mistreatment. First, Solliday had no liberty interest in the

conditions of her confinement or in remaining at a particular institution, and,

therefore, her claims do not amount to a constitutional violation. Second,

9 Solliday’s claims of mistreatment or abuse of discretion are not independent

constitutional violations, and, as a result, she cannot pursue a Bivens action as to

these claims. Even if she did, the evidence shows that Rivera did not abuse her

discretion or that Solliday was not mistreated in any way. Accordingly, we affirm.

AFFIRMED.