Robert F. Dugan v. FNU Scott

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 15, 2018
• Docket: 16-16837
• Status: Unpublished

Opinion

Case: 16-16837 Date Filed: 02/15/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16837 Non-Argument Calendar ________________________

D.C. Docket No. 5:13-cv-00235-WTH-PRL

ROBERT F. DUGAN,

Plaintiff-Appellant,

versus

TAMYRA JARVIS, Warden (or former Warden) FCC Coleman USP 1, et al., Defendants,

FNU SCOTT, Lieutenant, FCC Coleman USP 1, FNU FIGUEROA, Lieutenant, FCC Coleman USP 1, FNU KAJANDER, Lieutenant, FCC Coleman USP 1, U. VARGAS, Assistant Health Service Administrator, FCC Coleman USP 1, APRIL LOPES, Health Information Technician, FCC Coleman USP 1, et al.,

Defendants-Appellees. Case: 16-16837 Date Filed: 02/15/2018 Page: 2 of 8

________________________

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

(February 15, 2018)

Before TJOFLAT, NEWSOM, and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiff Robert Dugan, a federal prisoner proceeding pro se,1 appeals the

district court’s partial grant of summary judgment in this civil action filed pursuant

to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971). No reversible error has been shown; we affirm.

Briefly stated, Plaintiff contends that prison officials and staff members

retaliated unlawfully against him for filing an earlier civil rights complaint, for

filing administrative grievances, and for assisting other inmates with the filing of

lawsuits and grievances. Pertinent to this appeal,2 the district court granted

1 We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 The district court -- pursuant to Fed. R. Civ. P. 54(b) -- certified for immediate appeal only Plaintiff’s claims against Defendants Jarvis, Pastrana, Travis, Watts, Officer J. Martin and Unit Manager Tammy Padgett. For purposes of this interlocutory appeal, we will consider no claims 2 Case: 16-16837 Date Filed: 02/15/2018 Page: 3 of 8

summary judgment in favor of (1) Warden Tamyra Jarvis, (2) Warden Jorge

Pastrana, (3) Dr. Janet Travis, a prison dentist, and (4) Harrell Watts, the National

Inmate Appeals Administrator at the Department of Justice (“DOJ”) in

Washington, D.C.

We review de novo the district court’s grant of summary judgment. LeBlanc

v. Unifund CCR Partners, 601 F.3d 1185, 1189 (11th Cir. 2010). Summary

judgment is appropriate only when the record shows that no genuine issue exists on

any material fact and that the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). We view the facts and draw all reasonable inferences

in the light most favorable to the non-moving party. Burton v. City of Belle Glade,

178 F.3d 1175, 1187 (11th Cir. 1999).

outside the scope of the district court’s Rule 54(b) certification, including Plaintiff’s claims against Defendants Scott, Figueroa, Kajander, Vargas, Lopes, and Dole, and Plaintiff’s arguments about his discovery motions and consolidation. For background see Edwards v. Prime, Inc., 602 F.3d 1276, 1288 (11th Cir. 2010). Moreover, because Plaintiff raises no substantive argument challenging the grant of summary judgment in favor of Defendants Martin and Padgett, those claims are not properly before us on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.”). 3 Case: 16-16837 Date Filed: 02/15/2018 Page: 4 of 8

I.

Plaintiff first challenges the district court’s grant of summary judgment in

favor of Wardens Pastrana and Jarvis on Plaintiff’s First Amendment claims.

About the Wardens’ personal conduct, Plaintiff alleged in his complaint that (1)

Warden Pastrana “failed to adequately or timely” respond to Plaintiff’s

administrative grievance about the blocking of his email messages to a news

reporter; and (2) Warden Jarvis “failed to adequately or timely” respond to

Plaintiff’s administrative grievance about the delay in access to his medical

records.

“The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003) (in the context of a 42 U.S.C. § 1983 suit). To prove a First

Amendment retaliation claim, an inmate must prove three elements: (1) his speech

was constitutionally protected, (2) he suffered an adverse action that would likely

deter a person of ordinary firmness from engaging in such speech, and (3) a causal

relationship between the protected speech and the retaliatory action. Smith v.

Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). An inmate exercises his First

Amendment rights when he complains to prison administrators about the

conditions of his confinement. Id. In determining whether a causal connection

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exists, we “ask[] whether the defendants were subjectively motivated to discipline

because [the prisoner] complained of some of the conditions of his confinement.”

Id. at 1278.

We agree with the district court’s determination that Plaintiff failed to satisfy

the second and third elements. First, Plaintiff has failed to show that Warden

Pastrana and Jarvis’s responses to his administrative grievances were either

inadequate or untimely. The record undebatably shows that Warden Pastrana

responded to Plaintiff’s grievance about his outgoing emails within 12 days of

receipt: well within the 20-day response time allowed by the Bureau of Prison

Administrative Remedy Program. See 28 U.S.C. § 542.18 (providing that wardens

must respond to administrative grievances within 20 calendar days). In his

response, Warden Pastrana directed Plaintiff to the prison’s policy about the use of

the inmate computer system, which contained further explanation about the reasons

why an outgoing inmate email may be rejected. Likewise, Warden Jarvis

responded within 10 days of receiving Plaintiff’s grievance about access to his

medical records and explained in detail the status of Plaintiff’s records request,

including that Plaintiff had already been instructed (and had failed) to submit

payment based on the volume of records requested. That Plaintiff was dissatisfied

with these responses does not render them “inadequate.”

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Even to the extent that Wardens Pastrana and Jarvis’s responses might be

characterized as “adverse action,” we are unpersuaded that such responses are

likely to deter a person of ordinary firmness from filing additional grievances.

Moreover, nothing evidences that Wardens Pastrana and Jarvis’s responses to

Plaintiff’s grievances -- which were filed in accordance with established

procedures for handling administrative complaints and which were consistent with

prison policy -- were motivated subjectively by Plaintiff’s filing of an earlier

lawsuit or administrative complaints. The district court committed no error in

granting summary judgment in favor of Wardens Pastrana and Jarvis.

II.

Plaintiff next challenges the district court’s determination that Dr. Travis,

the prison dentist, was entitled to absolute immunity. Plaintiff contends that Dr.

Travis assaulted and battered him, injected him with drugs and narcotics with a

hypodermic syringe “which she stabbed into [his] mouth and gums repeatedly,”

drilled on his teeth, performed “superficial ‘cosmetic’ dental work” without his

consent, and mocked him when he complained that she had drilled on the wrong

teeth.

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At the time of the alleged incident, Dr. Travis was commissioned as an

officer with the United States Public Health Service (“PHS”) and was performing

dental work within the scope of her employment. The Supreme Court has said

expressly that -- pursuant to 42 U.S.C. § 233(a) -- “PHS officers and employees are

not personally subject to Bivens actions for harms arising out of” the performance

of medical functions while acting within the scope of employment. Hui v.

Castaneda, 559 U.S. 799, 802 (2010). Because Plaintiff’s Bivens claim was

precluded by section 233(a), the district court dismissed properly Plaintiff’s claim

against Dr. Travis.

III.

We next address the district court’s dismissal of Defendant Watts for lack of

personal jurisdiction, a decision that we review de novo. See Internet Sols. Corp.

v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009).

After a defendant raises a challenge to personal jurisdiction, “the burden

shifts to the plaintiff to prove jurisdiction by affidavits, testimony or documents.”

Id. We use a two-part test in determining whether the district court exercised

properly personal jurisdiction over a nonresident defendant. Lockard v. Equifax,

Inc., 163 F.3d 1259, 1265 (11th Cir. 1998). First, we examine whether the exercise

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of personal jurisdiction would be appropriate under the forum state’s long-arm

statute. Id. If so, we then determine whether sufficient minimum contacts exist

between the forum state and the non-resident defendant to satisfy the notions of

fair play and substantial justice under the Fourteenth Amendment’s Due Process

Clause. Id.

The parties do not dispute that Defendant Watts is a non-resident of Florida.

About Defendant Watts’s contact with Florida, Plaintiff alleges only that Watts

received -- in Washington, D.C. -- two administrative grievances sent from Florida

by Plaintiff. This evidence is insufficient to show either that Defendant Watts had

significant, purposeful contacts with Florida about the subject of this lawsuit or

that Watts had systematic and continuous general contacts with Florida. For

background, see Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291

(11th Cir. 2000) (discussing the nature and quality of minimum contacts necessary

to support both specific and general jurisdiction over a non-resident defendant).

Moreover, that Defendant Watts is a government officer is not, in and of itself,

sufficient to establish personal jurisdiction in Florida’s federal district courts. See

Stafford v. Briggs, 444 U.S. 527, 544-45 (1980). The district court dismissed

properly Defendant Watts for lack of personal jurisdiction.

AFFIRMED.