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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13047 Non-Argument Calendar ________________________
D.C. Docket No. 1:16-cv-00363-LMM
THERIAN CORNELIA WIMBUSH,
Plaintiff-Appellant,
versus
R.L. (BUTCH) CONWAY, Gwinnett County Jail, SERGEANT THORNTON, DEPUTY WHITE, CAPTAIN THOMAS, DEPUTY MYRON WALKER, SERGEANT BARBER, DEPUTY INNOCENT, DEPUTY OBLEIN, DEPUTY CULBRETH, DEPUTY DAWN CLARK, DEPUTY MARTIN CAMPBELL, CAPTAIN SHAPIRO,
Defendants-Appellees,
MARK CAMPBELL et al., Case: 17-13047 Date Filed: 04/11/2019 Page: 2 of 24
Defendants.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(April 11, 2019)
Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
Therian Cornelia Wimbush, a Georgia inmate, appeals pro se several orders
entered by the district court in an action she brought pursuant to 42 U.S.C. § 1983
to challenge the conditions of her confinement at the Gwinnett County Jail (the
“Jail”). Wimbush brings this appeal following a grant of summary judgment in
favor of the 12 defendants, Sheriff R. L. (Butch) Conway, Sergeant James
Thornton, Deputy Mark White, Captain Mark Thomas, Deputy Myron Walker,
Sergeant Kelvin Barber, Deputy Martine Innocent, Deputy Jeffrey Oblein, Deputy
Sean Culbreth, Deputy Dawn Clark, Deputy Martin Campbell, and Captain Myles
Shapiro (collectively, the “County Officers”). On appeal, Wimbush argues that the
district court erred by (1) dismissing, at the pleading stage, her “claims related to
punishment of a pretrial detainee and the named defendant perpetrators,” (2)
denying her emergency motion for injunctive relief, (3) denying her leave to
amend her complaint, (4) denying her request for appointment of counsel, (5)
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dismissing her mail policy and religious freedom claims for failure to exhaust
administrative remedies, and (6) granting defendants’ motion for summary
judgment on her claim that she was she was denied all contact with her co-
defendant husband and assessing costs against her. Appellant’s Br. at 5. After
careful review, we affirm.
I. BACKGROUND
Wimbush was charged in Georgia state court with several counts of cruelty
to children. See Wimbush v. State, 812 S.E.2d 489, 499 (Ga. Ct. App. 2018).
While detained at the Jail awaiting trial, Wimbush filed a pro se complaint in
federal district court against various Jail officials, alleging that they violated her
constitutional rights as a pretrial detainee by, among other things, punishing her for
violating Jail rules; subjecting her to the Jail’s inmate mail policy, which limited
nonlegal mail to metered postcards; separating her in the Jail from her co-
defendant husband; and infringing upon her religious freedom. In sum, the
complaint alleged that more than 30 conditions of Wimbush’s confinement
amounted to unconstitutional punishment of a pretrial detainee. Wimbush
requested declaratory and injunctive relief, as well as monetary damages.
Before the complaint was served on the defendants, a magistrate judge
screened it pursuant to 28 U.S.C. § 1915A. The magistrate judge ordered
Wimbush to submit an amended complaint that complied with certain conditions
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set forth in the order. Specifically, the magistrate judge ordered her to allege
against the various defendants only claims related to events arising out of the same
transaction or occurrence. See Fed. R. Civ. P. 20(a)(2).1 Wimbush moved for
reconsideration, but the magistrate judge denied her motion and again ordered her
to amend her complaint pursuant to his earlier order.
Wimbush then filed an amended complaint in which she alleged many of the
same claims and listed as defendants not only the County Officers, but also other
officials and entities who are not parties to this appeal. 2 Before service of process,
the magistrate judge screened Wimbush’s amended complaint pursuant to 28
U.S.C. § 1915A and issued a Report and Recommendation (“R&R”)
recommending that the district court dismiss the amended complaint without
prejudice for failure to comply with the court’s earlier order. Alternatively, the
magistrate judge recommended that the district court allow only two of Wimbush’s
claims to proceed and dismiss the rest for failure to state a claim. Over Wimbush’s
1 The magistrate judge also directed Wimbush, in amending her complaint, to comply with several other conditions that are largely irrelevant to this appeal. 2 In her amended complaint, Wimbush named as defendants 35 county officials, along with the Gwinnett County Sheriff’s Department and the Jail. A magistrate judge later recommended dismissing from the action these two entities and the 23 individuals other than the County Officers, which the district court did. Although Wimbush argues on appeal that “[e]very single defendant played a part in [her] punishment,” Appellant’s Br. at 10, this is no more than a “passing reference[].” See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014). She fails to explain how each of the two entities and 23 individuals the district court dismissed is responsible for her alleged mistreatment. Accordingly, she has abandoned any argument that the district court erred in dismissing the Sheriff’s Department, the Jail, and the 23 individual defendants. See id. 4 Case: 17-13047 Date Filed: 04/11/2019 Page: 5 of 24
objections, the district court adopted the R&R’s alternative recommendation,
modifying it slightly. The court allowed three of her claims to proceed, including
the claims that (1) she was denied all contact with her co-defendant husband, (2)
her incoming nonlegal mail was limited to postcards (“mail policy claim”), and (3)
her rights to religious freedom were violated when the defendants accused her of
misusing her prayer rug and ordered her to provide doctrinal support for her fast
(“religious freedom claim”). The court dismissed her remaining claims pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim.
The County Officers filed a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) seeking, among other things, dismissal of Wimbush’s
mail policy and religious freedom claims for failure to exhaust her administrative
remedies. Before the court ruled on this motion, Wimbush filed an “Emergency
Motion for Injunction,” alleging that officials were preventing her from using the
law library and requesting that the court enjoin the officials from restricting her
access. The magistrate judge issued another R&R recommending that the district
court deny Wimbush’s emergency motion for injunction and grant the County
Officers’ motion to dismiss. Wimbush objected. Before the district court ruled on
her objections, Wimbush filed a combined motion for leave to amend her
complaint for a second time and for appointment of counsel. The district court
overruled Wimbush’s objections, adopted the R&R, denied her emergency motion
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for an injunction, dismissed her mail policy and religious freedom claims, and
denied her combined motion for leave to amend and for appointment of counsel.
Following discovery, the County Officers moved for summary judgment on
Wimbush’s claim that she was she was denied all contact with her co-defendant
husband. The magistrate judge issued an R&R recommending that the County
Officers’ motion for summary judgment be granted (“Summary Judgment R&R”).
Wimbush did not immediately object. Noting the absence of any objections, the
district court adopted the Summary Judgment R&R, granted summary judgment to
the County Officers on that claim, and entered a final judgment. The court also
taxed the County Officers’ costs against Wimbush. 3
Before the district court granted summary judgment and entered final
judgment, Wimbush had delivered to prison officials for mailing two additional
filings. In one, Wimbush objected to the magistrate judge’s Summary Judgment
R&R. In the other, Wimbush again moved for leave to amend and for appointment
of counsel. In support, Wimbush argued, in part, that she wished to add multiple
claims, including her previously dismissed mail policy claim, for which she alleged
she had, by then, “fully exhausted her administrative remedies.” Doc. 83 at ¶ 8.4
3 Although Wimbush argues on appeal that the district court erred in assessing “attorney’s fees” against her, Appellant’s Br. at 5, the district court in fact only taxed her with the County Officers’ costs. 4 “Doc. #” refers to the numbered entry on the district court’s docket. 6 Case: 17-13047 Date Filed: 04/11/2019 Page: 7 of 24
She also argued that she was not legally trained and needed the assistance of
counsel. Before the district court could address either filing, Wimbush delivered to
prison officials for mailing a motion for reconsideration of the court’s order
adopting the Summary Judgment R&R, arguing that she had timely filed both her
objections and her second combined motion for leave to amend and for
appointment of counsel.
The district court granted Wimbush’s motion to reconsider. After reviewing
the Summary Judgment R&R de novo, the court adopted it over Wimbush’s
objections. The court also denied her second combined motion for leave to amend
and for appointment of counsel.
This is Wimbush’s appeal.
II. STANDARDS OF REVIEW
We review de novo a district court’s sua sponte dismissal of a claim
pursuant to 28 U.S.C. § 1915A(b)(1), Leal v. Ga. Dep’t of Corr., 254 F.3d 1276,
1278-79 (11th Cir. 2001). “We review a district court’s interpretation of the . . .
exhaustion requirement de novo.” Whatley v. Smith, 898 F.3d 1072, 1082 (11th
Cir. 2018) (emphasis added). “However, we review the district court’s factual
findings on the issue of exhaustion for clear error.” Id. We review de novo a
district court’s grant of a summary judgment motion. Ellis v. England, 432 F.3d
1321, 1325 (11th Cir. 2005).
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We review for abuse of discretion a district court’s denial of a motion for a
preliminary injunction, Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247
(11th Cir. 2016), denial of a motion for leave to amend, Long v. Satz, 181 F.3d
1275, 1278 (11th Cir. 1999), denial of a motion for appointment of counsel, Bass v.
Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999), and award of costs to a prevailing
party. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 619-20 (11th Cir. 2000).
III. DISCUSSION
Wimbush appeals several of the district court’s orders. Specifically, she
argues that the district court erred by (1) “dismissing [pursuant to 28 U.S.C.
§ 1915A(b)(1)] [her] claims related to punishment of a pretrial detainee and the
named defendant perpetrators,” (2) denying her emergency motion for injunctive
relief, (3) denying her leave to amend her complaint, (4) denying her request for
appointment of counsel, (5) dismissing her mail policy and religious freedom
claims for failure to exhaust administrative remedies, and (6) granting defendants’
motion for summary judgment on her claim that she was she was denied all contact
with her co-defendant husband, as well as assessing against her the defendants’
attorney’s fees. Appellant’s Br. at 5. In addition to rebutting Wimbush’s
arguments, the County Officers argue that we should hold her in contempt of court,
strike her brief, and dismiss her appeal because her brief was untimely filed and
failed to comply with aspects of Federal Rules of Appellate Procedure 28(a) and
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32(a). We disagree with the County Officers’ contention that Wimbush’s brief was
untimely. 5 And to the extent she has violated Rule 28(a) or Rule 32(a), which
respectively govern the content and format of appellate briefs, we exercise our
discretion to consider her brief on its merits. 6 We will next address each of
Wimbush’s arguments in turn.
A. Wimbush Has Abandoned Her Argument that the District Court Erred in Dismissing Her Claims Related to Punishment as a Pretrial Detainee.
The district court, pursuant to 28 U.S.C. § 1915A(b)(1), dismissed for failure
to state a claim all but three of the amended complaint’s claims alleging unlawful
punishment of a pretrial detainee. We review de novo a district court’s sua sponte
5 To the extent Wimbush untimely filed her brief, we sua sponte grant her leave to file out of time. Further, in arguing that Wimbush’s brief was untimely filed, the County Officers also argue that she failed to serve them with a designation of the parts of the record that she intended to include in her appendix to her brief and that she failed to file an appendix. But this Court does not require an appellant to serve an appellee with a designation of parts of the record to be included in the appendix. Compare Fed. R. App. P. 30(b)(1) (requiring the appellant to serve the appellee with such a designation in the absence of an agreement with the appellee), with 11th Cir. R. 30-1(a) (“Other than FRAP 30(a)(1), the requirements in FRAP 30 do not apply in this circuit.”). And, under this Court’s local rules, Wimbush, an incarcerated pro se party, was not required to file an appendix. See 11th Cir. R. 30-1(d) (“[A]n incarcerated pro se party is not required to file an appendix.”). 6 We decline to hold Wimbush in contempt of court. Further, we sua sponte exercise our discretion to accept Wimbush’s brief despite its deficiencies because she is pro se and because the brief sufficiently identifies the issues she raises on appeal. See West v. Peoples, 589 F. App’x 923, 930 n.8 (11th Cir. 2014) (unpublished) (citing Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994)) (“Since West is pro se, and since his brief, liberally construed, both sufficiently identifies the issues on appeal and contains assertions of district court error, we decline to find that West has waived and/or abandoned his arguments on appeal by failing to comply with Rule 28’s requirements.”); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.4 (11th Cir. 2003) (exercising discretion to consider a counseled party’s brief despite its failure to comply with Fed. R. App. P. 28(a)(9)(A)); see also Fed. R. App. P. 32(e) (“By local rule or order in a particular case, a court of appeals may accept documents that do not meet all the form requirements of this rule . . . .”). 9 Case: 17-13047 Date Filed: 04/11/2019 Page: 10 of 24
dismissal of a claim pursuant to § 1915A(b)(1). Leal, 254 F.3d at 1278-79. Under
§ 1915A(b)(1), a district court must dismiss a case where a pretrial detainee seeks
redress from the government if the complaint fails to state a claim on which relief
may be granted. 28 U.S.C. § 1915A(b)(1). The same standards that apply to a
dismissal under Federal Rule of Civil Procedure 12(b)(6) apply to a dismissal
under § 1915A(b)(1). See Jones v. Bock, 549 U.S. 199, 215-16 (2007).
The Fourteenth Amendment’s Due Process Clause prohibits state officials
from punishing a pretrial detainee “‘prior to an adjudication of guilt in accordance
with due process of law.’” Jacoby v. Baldwin Cty., 835 F.3d 1338, 1344 (11th Cir.
2016) (quoting Bell v. Wolfish, 441 U.S. 520, 535 (1979)). But officials may
“‘subject [a pretrial detainee] to the restrictions and conditions of [a] detention
facility so long as those conditions and restrictions do not amount to punishment or
otherwise violate the Constitution.’” Id. at 1344-45 (quoting Bell, 441 U.S. at 536-
37). “Whether a condition of pretrial detention amounts to punishment turns on
whether the condition is imposed for the purpose of punishment or whether it is
incident to some legitimate government purpose.” Id. at 1345 (alteration adopted)
(internal quotation marks omitted). “Restraints that are reasonably related to the
institution’s interest in maintaining jail security do not, without more, constitute
unconstitutional punishment, even if they are discomforting and are restrictions
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that the detainee would not have experienced had [s]he been released while
awaiting trial.” Bell, 441 U.S. at 540.
Wimbush argues the district court erred when it dismissed most of the
claims in her amended complaint alleging unlawful pretrial punishment, allowing
only three to proceed. 7 Specifically, she contends that the dismissed claims should
“have been allowed to proceed and in reference to all defendants, as all of their
actions, regardless of other constitutional right violations, deprived [her] of her
right to be free from punishment prior to an adjudication of guilt,[or] a valid
conviction, by a competent court with jurisdiction.” Appellant’s Br. at 10. The
County Officers respond that we lack jurisdiction to entertain this argument
because the district court order dismissing these claims was a nonfinal,
nonappealable order.
We have jurisdiction to consider Wimbush’s argument concerning the
claims alleging unconstitutional punishment of a pretrial detainee because the
district court entered a final judgment after granting summary judgment. By
entering a final judgment, the district court rendered appealable all earlier orders
that produced the judgment. Akin v. PAFEC Ltd., 991 F.2d 1550, 1563 (11th Cir.
7 It is unclear from the amended complaint whether Wimbush intended each event alleged therein to support a separate claim for relief, or whether she intended each event to support a single claim of unlawful pretrial punishment. We treat the dismissed allegations as independent claims alleging unlawful pretrial punishment because Wimbush in her brief refers to the dismissed allegations as separate claims, and because the district court appeared to treat them that way. 11 Case: 17-13047 Date Filed: 04/11/2019 Page: 12 of 24
1993) (“When a district court enters a final judgment, all prior non-final orders and
rulings which produced the judgment are merged into the judgment and subject to
review on appeal.” (internal quotation marks omitted)).
But we cannot conclude, on the grounds Wimbush urges, that the district
court erred in dismissing the claims alleging that she was unlawfully punished as a
pretrial detainee. Although the complaint alleged that more than 20 events
occurring while Wimbush was detained at the Jail amounted to unconstitutional
punishment of a pretrial detainee, she does not specifically address any of these
allegations in her brief. Rather, she argues generally that all the alleged events
constituted prohibited punishment. By failing to specifically address in her brief
any of the claims she seeks to revive on appeal, Wimbush has abandoned her
arguments for reversing the district court’s dismissal of these claims. See Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long
held that 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.”). 8 Accordingly, we affirm the district court’s dismissal of the
claims alleging unconstitutional pretrial punishment.
8 Wimbush states in her brief that “she was falsely imprisoned in the . . . Jail as a direct consequence of unlawful actions taken by the Courts.” Appellant’s Br. at 9. Aside from its conclusory nature, this allegation does not appear in the amended complaint and therefore provides no basis to vacate the district court’s dismissal of the claims alleging unlawful pretrial punishment.
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B. Wimbush’s Emergency Motion for Injunctive Relief Is Moot.
The district court denied Wimbush’s emergency motion for injunctive relief
after concluding that she sought injunctive relief as to a claim for denial of access
to the courts, which was unrelated to the claims that were proceeding before the
court. The court further concluded that Wimbush had failed to exhaust her
administrative remedies for this claim and that it lacked merit. We review for
abuse of discretion a district court’s denial of a motion for a preliminary
injunction. Wreal, LLC, 840 F.3d at 1247.
Wimbush argues that the district court should not have denied her emergency
motion for injunctive relief because Thomas retaliated against her after she sought
legal redress against Thomas, Conway, and the Gwinnett County Sherriff’s Office.
According to Wimbush, Thomas ordered various deputies to deny her access to
notaries, “the right to research for the underlying case,” and the opportunity to work
on any “legal ventures” except her criminal case. Appellant’s Br. at 11.
Before addressing Wimbush’s argument, we first consider whether her
appeal of the district court’s denial of her emergency motion for injunction is
moot. “Although the parties did not raise any question about mootness, we have
an [independent] obligation to notice and decide mootness issues.” United States
v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1226 (11th Cir. 2015). An issue
becomes moot “when the issue[] . . . [is] no longer live or the parties lack a legally
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cognizable interest in the outcome.” BankWest, Inc. v. Baker, 446 F.3d 1358, 1364
(11th Cir. 2006) (internal quotation marks omitted). When we determine that an
issue raised on appeal is moot, we must dismiss the appeal as to that issue because
“[a]n appellate court simply does not have jurisdiction under Article III [of the
United States Constitution] to decide questions which have become moot by reason
of intervening events.” Id. at 1363-64 (internal quotation marks omitted). A
request for injunctive relief relating to conditions of confinement at a given
institution becomes moot once the person raising the request has been transferred
to another institution. See Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir.
1988) (concluding that an incarcerated person’s “claims for injunctive and
declaratory relief relating to the conditions of” confinement at a correctional
facility became moot once the person was transferred to another facility).
Wimbush sought injunctive relief relating to the conditions of her
confinement at the Jail, but she has since been transferred to a state prison. Her
request for injunctive relief is therefore moot. See Spears, 846 F.2d at 1328. As
we lack jurisdiction to review the denial of her emergency motion for injunctive
relief, we dismiss that portion of her appeal. 9
9 The County Officers argue that we must dismiss as untimely Wimbush’s appeal of the district court order denying her emergency motion for injunctive relief because she failed to appeal within 30 days of the date when the order was entered. We decline to address this argument because of our conclusion that we lack jurisdiction to entertain Wimbush’s appeal as to this issue due to mootness.
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C. The District Court Did Not Abuse Its Discretion In Denying Wimbush Leave to Amend.
The district court twice denied Wimbush leave to amend her complaint. The
district court first denied her leave to amend because it concluded that her attempt
to amend her complaint to add a claim of denial of access to the courts would be
futile as it was unrelated to the claims on which the court had allowed her to
proceed. The district court again denied Wimbush leave to amend her complaint
for several reasons, including because it again determined that she sought to add a
claim that was unrelated to the only claim on which she was then proceeding, the
claim that she was separated from her co-defendant husband.
We generally review for abuse of discretion a district court’s denial of a
motion for leave to amend. Long, 181 F.3d at 1278. Although a district court
“should freely give leave [to amend] when justice so requires,” Fed. R. Civ. P.
15(a), “a motion to amend may be denied on numerous grounds such as undue
delay, undue prejudice to the defendants, and futility of the amendment,” Mann v.
Palmer, 713 F.3d 1306, 1316 (11th Cir. 2013) (internal quotation marks omitted).
A district court does not abuse its discretion by “deny[ing] a motion for leave to
amend following the close of discovery, past the deadline for amendments and past
the deadline for filing dispositive motions.” Lowe’s Home Ctrs., Inc., v. Olin
Corp., 313 F.3d 1307, 1315 (11th Cir. 2002).
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Wimbush argues on appeal that she sought to amend her complaint for two
reasons: (1) to show that she exhausted her administrative remedies after she filed
her first amended complaint and (2) because “she was deprived of her first
amendment as a matter of right solely due to the forced, limited amendment by the
Magistrate [Judge] in the pleading stage of the case.” Appellant’s Br. at 11.
Wimbush further states that she unsuccessfully moved the district court for
appointment of counsel to help her prepare a second amended complaint. We
conclude that Wimbush has abandoned her argument that the district court erred in
denying her motion for leave to amend by failing to address any of the grounds on
which the district court based its decision.
In arguing that the district court erred in denying her leave to amend her
complaint, Wimbush explains why she moved in the district court for leave to
amend her complaint but fails to explain why she thinks the district court
erroneously denied her motion. The only authority she cites in the section of her
brief devoted to this issue is Rule 15’s instruction that a district court “should
freely give leave [to amend] when justice so requires,” Fed. R. Civ. P. 15(a).
Wimbush has thus abandoned any argument that the district court erred in denying
her motion for leave to amend by failing to “advanc[e] any arguments or cit[e] any
authorities to establish that [the district court’s ruling] w[as] error.” See Sapuppo,
739 F.3d at 681. Accordingly, we affirm the district court’s denial of the motion.
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D. The District Court Did Not Abuse Its Discretion In Denying Wimbush’s Request for Counsel.
The district court twice denied Wimbush’s motion for appointment of
counsel. The district court denied Wimbush’s first request for counsel because it
concluded that she had demonstrated her ability to prosecute the case and no
exceptional circumstances existed to justify the appointment of counsel. The
district court provided no explanation for its denial of Wimbush’s second request.
We review a refusal to appoint counsel for abuse of discretion. See Bass,
170 F.3d at 1319. Appointment of counsel in a civil case is not a constitutional
right and is justified only in exceptional circumstances. Id. at 1320. Exceptional
circumstances exist “where the facts and legal issues are so novel or complex as to
require the assistance of a trained practitioner.” Fowler v. Jones, 899 F.2d 1088,
1096 (11th Cir. 1990).
Wimbush argues that the district court should have appointed counsel to
represent her because she was not educated in the law, familiar with litigation, or
able to effectively research and because she was indigent as a result of her
incarceration. The County Officers respond that appointing counsel in a civil
action is warranted only in exceptional circumstances, and that there is no evidence
of exceptional circumstances here. The County Officers have the better side of this
argument.
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Here, by the time she filed her first motion to appoint counsel, Wimbush had
demonstrated to the district court that she had the ability to file multiple intelligible
and coherent filings with the court. And her only claim that remained after the
district court denied her first motion to appoint counsel, the claim challenging her
separation from her co-defendant husband, presented no novel or complex legal
issue. See Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003) (explaining that a
prison regulation restricting an inmate’s access to intimate association will be
sustained so long as the “challenged regulation[ ] bear[s] a rational relation to
legitimate penological interests”). We therefore conclude that the district court did
not abuse its discretion in denying either of Wimbush’s motions for appointment of
counsel. See Bass, 170 F.3d at 1320 (concluding “no exceptional circumstances
that would require the appointment of counsel” existed for plaintiffs challenging
conditions of confinement because “[t]he core facts of the case . . . [we]re not in
dispute, and their legal claims . . . [we]re straightforward”).
E. The District Court Did Not Err in Dismissing Wimbush’s Mail Policy and Religious Freedom Claims for Failure to Exhaust Administrative Remedies.
The district court dismissed Wimbush’s mail policy and religious freedom
claims for failure to exhaust administrative remedies after overruling her
objections that the Jail failed to provide a grievance or other administrative review
process to her and that there were only two levels to the grievance process. “We
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review a district court’s interpretation of the . . . exhaustion requirement de novo.”
Whatley, 898 F.3d at 1082 (emphasis added). “However, we review the district
court’s factual findings on the issue of exhaustion for clear error.” Id. “For all
other facts, we accept as true the facts pleaded in [the] complaint and draw all
reasonable inferences in [the plaintiff’s] favor.” Id.
A convicted prisoner has a First Amendment right to communicate by mail
with family and friends, see Perry v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359,
1363 (11th Cir. 2011), and to freely exercise her religion, O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987). “[W]hen a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).10
Although “[c]laims involving the mistreatment of . . . pretrial detainees in custody
are governed by the Fourteenth Amendment’s Due Process Clause instead of the
Eighth Amendment’s Cruel and Unusual Punishment Clause, which applies to such
claims by convicted prisoners[,] . . . the applicable standard is the same, so
10 The Turner inquiry involves four factors: (1) whether there is a “valid, rational connection between the regulation and the legitimate governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remain [available]”; (3) whether and the extent to which accommodation of the asserted right will affect facility staff, detainees, and “the allocation of prison resources generally”; and (4) whether “the absence of ready alternatives is evidence of the reasonableness of a prison regulation,” or “the existence of obvious, easy alternatives [is] evidence that the regulation is not reasonable.” Turner, 482 U.S. at 89-90 (internal quotation marks omitted). 19 Case: 17-13047 Date Filed: 04/11/2019 Page: 20 of 24
decisional law involving prison inmates applies equally to cases involving . . .
pretrial detainees.” Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).
Under the Prison Litigation Reform Act, “[n]o 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.” 42 U.S.C.
§ 1997e(a). A district court must follow the two-step process we described in
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), to determine whether
dismissal of a complaint for failure to exhaust is proper. First, the district court
“looks to the factual allegations in the defendant’s motion to dismiss and those in
the plaintiff’s response, and if they conflict, [the court] takes the plaintiff’s version
of the facts as true.” Id. “If the defendants can establish failure to exhaust based
on the plaintiff’s allegations, dismissal of the complaint is appropriate.” Whatley,
898 F.3d at 1082. Second, if the district court cannot decide the exhaustion issue
at step one of the Turner analysis, then “the district court must make specific
findings in order to resolve the disputed factual issues related to exhaustion.” Id.
(internal quotation marks omitted). “After making specific findings of fact, the
district court then decides whether under those findings the prisoner has
exhausted . . . available administrative remedies.” Id. (internal quotation marks
omitted). The defendant bears the burden of showing that the plaintiff has not
20 Case: 17-13047 Date Filed: 04/11/2019 Page: 21 of 24
properly exhausted her administrative remedies. Id. If a district court finds that a
plaintiff has failed to exhaust administrative remedies, then the court must dismiss
the suit. Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir. 2004).
Wimbush argues on appeal that she was not required to exhaust her
administrative remedies because there were no administrative remedies available to
her. She contends in the alternative that “as a precautionary measure, [she] did
complete all levels of the grievance procedure for all claims prior to departing from
the [Jail].” Appellant’s Br. at 13. Thus, according to Wimbush, “she was not
required to exhaust any administrative remedy,” but to the extent she was so
required, “she did exhaust all administrative remedies and was denied the
opportunity to amend her complaint to reflect such.” Id. We are unpersuaded by
Wimbush’s arguments. 11
A review of the district court’s decision indicates that it resolved the
exhaustion issue at the second Turner step by considering evidence in the record
beyond the County Officers’ motion and Wimbush’s objections. The district court
cited as support for its finding that administrative remedies were available to
Wimbush an affidavit from Mark Thomas, a Captain in the Gwinnett County
11 The County Officers argue that we lack jurisdiction to consider Wimbush’s appeal of the dismissal of her mail policy and religious freedom claims because the district court order dismissing the claims was a nonfinal, nonappealable order. But again, we have jurisdiction to consider this aspect of Wimbush’s appeal because the district court’s entry of final judgment rendered appealable all earlier orders that produced the judgment. See Akin, 991 F.2d at 1563. 21 Case: 17-13047 Date Filed: 04/11/2019 Page: 22 of 24
Sherriff’s Office who is responsible for “overseeing all daily administrative
functions [at] the Jail.” Doc. 49-1 ¶ 2. Thomas testified that the Jail provides a
three-step grievance process, that Wimbush filed dozens of grievances, that she
failed to file a grievance “concerning her claim that her incoming nonlegal mail is
limited to postcards,” and that, for her religious freedom claim, Wimbush failed to
“avail herself of step three of the grievance process, which is the grievance
appeal.” Doc. 49-1 ¶¶ 5-8. Based on this evidence, we conclude that the district
court did not clearly err in finding that a grievance process was available to
Wimbush. See Whatley, 898 F.3d at 1082-83 (“If the district court’s account of the
evidence is plausible in light of the record viewed in its entirety, we may not
reverse it . . . .” (alteration adopted) (internal quotation marks omitted)). As for
Wimbush’s argument that she should have been allowed leave to amend her
complaint to properly allege that she exhausted all administrative remedies, which
she requested in her second motion to amend, we earlier concluded that she has
abandoned her argument that the district court erred in denying that motion. Thus,
we affirm the district court’s dismissal of Wimbush’s mail policy and religious
freedom claims for failure to exhaust.
22 Case: 17-13047 Date Filed: 04/11/2019 Page: 23 of 24
F. Wimbush Has Abandoned Her Arguments that the District Court Erred in Granting Summary Judgment to the Defendants and Assessing Costs Against Her.
The district court granted the County Officers summary judgment on
Wimbush’s claim that she was she was denied all contact with her co-defendant
husband; the court also taxed the County Officers’ costs against her.
We review de novo a district court’s order granting a summary judgment
motion. Ellis, 432 F.3d at 1325. A pretrial detainee has a First Amendment right
to intimate association, although this right is more limited than it is outside the
confinement context. Overton, 539 U.S. at 131; see also Cottrell, 85 F.3d at 1490.
A condition of confinement that limits intimate association will withstand
constitutional challenge so long as the challenged regulation is rationally related to
a legitimate penological interest. Overton, 539 U.S. at 132.
We review for abuse of discretion a district court’s award of costs to a
prevailing party. W&O, Inc., 213 F.3d at 619-20. A district court may generally
award a prevailing party costs pursuant to Federal Rule of Civil Procedure 54(d).
Id. at 620. An award of costs is not the same as an award of attorney’s fees. See
generally Fed. R. Civ. P. 54.
Here, although Wimbush argues that the district court erred in granting the
County Officers summary judgment, her argument consists solely of a statement of
the applicable standard of review, without any supporting argument. By failing to
23 Case: 17-13047 Date Filed: 04/11/2019 Page: 24 of 24
provide any supporting argument, Wimbush has abandoned her arguments on
appeal that the district court erred in granting summary judgment to the County
Officers and in assessing their costs against her. See Sapuppo, 739 F.3d at 681.
We therefore affirm the district court on these issues.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court in all respects.
AFFIRMED.