Morris Lee Moore v. E. Hunter, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11249
Non-Argument Calendar
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D.C. Docket No. 4:18-cv-00395-WS-CAS
MORRIS LEE MOORE,
Plaintiff-Appellant,
versus
E HUNTER,
Sergeant,
HARTBARGER,
Officer,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
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(March 2, 2021)
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
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Morris Lee Moore, a Florida prisoner proceeding pro se, appeals the district
court’s grant of summary judgment in favor of defendants Sergeant Erica Hunter
and Officer Michael Hartbarger (collectively, Officers) on his claims of deliberate
indifference to his serious medical needs and excessive use of force.
On October 25, 2017, while Moore was incarcerated at Taylor Correctional
Institute, correction officers found stimulants in his cell. As a punishment, Moore
was placed in a “strip cell”—an empty cell with only a bed.1 The next day Moore
contends that he declared a mental health emergency several times and that
Hartbarger denied his requests for mental health care. Then, Moore took a small
piece of metal sticking out of his bed and began cutting his left arm “in hopes of
bleeding out.” Hartbarger saw that Moore was bleeding but continued to refuse
Moore medical treatment, telling Moore that he would “be alright” and “we need
to see more blood.”
Subsequently, Hunter approached Moore’s cell and witnessed him cutting
his arm and bleeding. She asked Moore what he was doing, and he told her he
needed to speak with someone in mental health. Hunter then sprayed Moore in the
face, eyes, and mouth with chemical agents. Hunter escorted Moore to the
decontamination shower and prison medical professionals treated Moore’s arm
1 Inmates placed on suicide watch are often housed in strip cells. Generally, strip cells are empty
cells that only contain a steel bed, and inmates placed in these cells are stripped down to their
underwear.
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with a bandage. Then, prison mental health personnel spoke with Moore and
placed him on suicide watch.
Moore filed a complaint under 42 U.S.C. § 1983, claiming that the Officers
violated his Eighth and Fourteenth Amendment rights because they were
deliberately indifferent to his medical needs and used excessive force when they
sprayed him with chemical agents. The Officers moved for summary judgment. A
magistrate judge issued a Report and Recommendation, recommending the court
deny the Officers’ motion. The district court rejected the Report and
Recommendation and granted the Officers summary judgment, finding that there
were no issues of material fact. Moore appealed.
First, Moore argues the district court erred in granting summary judgment to
the Officers on his deliberate indifference claim because, accepting his version of
the facts as true, a jury could find that Hartbarger was deliberately indifferent to his
serious medical need when Hartbarger denied his repeated requests for mental
health assistance and refused to seek medical help after he saw Moore bleeding.
Second, he argues that the court erred in granting summary judgment as to his
excessive force claim because Hunter’s use of force was unnecessary and without
penological justification, and she exceeded the appropriate use of force under the
circumstances. We address each claim in turn.
I.
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We review the district court’s grant of summary judgment de novo, applying
the same legal standards as applied by the district court. Gish v. Thomas, 516 F.3d
952, 954 (11th Cir. 2008). Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A factual dispute exists where a reasonable
factfinder could find by a preponderance of the evidence that the nonmoving party
is entitled to a verdict. Kernel Recs. Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir.
2012). Unsupported factual allegations, affidavits based on information and belief
instead of personal knowledge, and mere conclusions are insufficient to withstand
a motion for summary judgment. Ellis v. England, 432 F.3d 1321, 1327 (11th Cir.
2005) (per curiam). A non-conclusory affidavit that complies with Federal Rule of
Civil Procedure 56 can create a genuine dispute concerning an issue of material
fact, even if it is self-serving and/or uncorroborated. United States v. Stein, 881
F.3d 853, 858–59 (11th Cir. 2018) (en banc).
We view all evidence and factual inferences in the light most favorable to
the nonmoving party. Kernel Recs. Oy, 694 F.3d at 1301. It is inappropriate for
the district court to make credibility determinations or to weigh the evidence at the
summary judgment stage. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). However, where the nonmovant relies upon implausible
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inferences drawn from that evidence, summary judgment is appropriate. Cuesta v.
Sch. Bd. of Miami-Dade Cnty., 285 F.3d 962, 970 (11th Cir. 2002).
II.
The Eighth Amendment imposes duties on prison officials to ensure that
inmates receive adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832
(1994). Deliberate indifference to a prisoner’s serious medical needs violates the
Eighth Amendment. Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d 1263, 1270
(11th Cir. 2020). Prisoners have an Eighth Amendment right “to receive medical
treatment for illness and injuries, which encompasses a right to psychiatric and
mental health care, and a right to be protected from self-inflicted injuries, including
suicide.” Gish, 516 F.3d at 954.
A prisoner seeking to show that a prison official acted with deliberate
indifference to his serious medical need “must satisfy both an objective and
subjective inquiry.” Hoffer, 973 F.3d at 1270. Under the objective prong, a
prisoner must allege a condition that is sufficiently serious to violate the Eighth
Amendment. Id. A serious medical need is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Id. In either
situation, there must be a substantial risk of serious harm if the condition is not
treated. Id. Under the subjective prong, a prisoner must allege that the defendant
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acted with deliberate indifference to a serious medical need. Id. To establish
deliberate indifference, the plaintiff must demonstrate that the defendant: “(1) had
subjective knowledge of a risk of serious harm; (2) disregarded that risk; and (3)
acted with more than gross negligence.” Id.
A prison official may also be held liable for failing to prevent harm to a
prisoner if he acted with deliberate indifference toward that prisoner’s health and
safety. Gish, 516 F.3d at 954. This standard requires that the prison official
deliberately disregarded “a strong likelihood rather than a mere possibility that the
self-infliction of harm will occur.” Id. We have stated that “failure to prevent
suicide has never been held to constitute deliberate indifference” where a prison
official has no knowledge of an inmate’s suicidal tendencies. Jackson v. West, 787
F.3d 1345, 1353 (11th Cir. 2015). To this end, “[o]rdinary malpractice or simple
negligence won’t do; instead, the plaintiff must show subjective recklessness as
used in the criminal law.” Swain v. Junior, 961 F.3d 1276, 1285–86 (11th Cir.
2020) (internal quotation marks omitted).
Here, the district court correctly granted summary judgment on Moore’s
deliberate indifference claims because he did not produce evidence supporting the
reasonable inference that the Officers had subjective knowledge that he needed
mental health treatment or had suicidal tendencies, or deliberately delayed or
denied him access to that treatment. At best, Hartbarger acted negligently. There
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is no evidence in the record to demonstrate that Harbarger knew Moore had
suicidal tendencies, saw that Moore cut himself, or that there was a strong
likelihood that Moore would harm himself. Also, the fact that Moore was placed
in a strip cell makes it more unlikely that Hartbarger would have known there was
a strong likelihood Moore was at a serious risk of harm. And while Hartbarger’s
alleged continued denial of mental health treatment and statement that he
“need[ed] to see more blood” in order to provide Moore with treatment are
troubling allegations, absent additional record evidence, those actions do not
compel a finding that he was subjectively aware of Moore’s suicidal tendencies or
medical needs. In fact, it demonstrates that Hartbarger thought Moore’s injury was
minor. Accordingly, the district court did not err in granting summary judgment in
favor of the Officers on Moore’s deliberate indifference claims.
III.
The Eighth Amendment “prohibits the unnecessary and wanton infliction of
pain.” Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010) (internal quotation
mark omitted). In determining whether prison officials are entitled to summary
judgment in the context of an excessive force claim, courts must determine
whether the evidence goes beyond the mere reasonableness of a given use of force.
Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999). Instead, courts must
determine whether the evidence, when viewed in the light most favorable to the
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nonmoving party, supports a reasonable inference that the prison official acted
wantonly in inflicting the pain. Id.
In the prison context, an excessive force claim “requires a two-prong
showing: an objective showing of a deprivation or injury that is sufficiently serious
to constitute a denial of the minimal civilized measure of life’s necessities and a
subjective showing that the official had a sufficiently culpable state of mind.”
Thomas, 614 F.3d at 1304 (internal quotation marks omitted). Both inquiries are
contextual, and the objective harm inquiry is responsive to contemporary standards
of decency. Id. While not every “malevolent touch” by a prison guard amounts to
excessive force, a de minimis use of force is cognizable under the Eighth
Amendment if it is “repugnant to the conscience of mankind.” See Wilkins v.
Gaddy, 559 U.S. 34, 37–38 (2010) (per curiam).
For the subjective intent prong, a plaintiff must show that the defendant
applied force maliciously and sadistically for the purpose of causing harm. Id.
“Under the Eighth Amendment, force is deemed legitimate in a custodial setting as
long as it is applied in a good faith effort to maintain or restore discipline and not
maliciously and sadistically to cause harm.” Skrtich v. Thornton, 280 F.3d 1295,
1300 (11th Cir. 2002) (internal quotation marks omitted and alterations adopted).
In determining whether force was applied maliciously or sadistically, we consider
several factors, including (1) the need to apply force, (2) the relationship between
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that need and the amount of force applied, (3) the threat reasonably perceived by
the responsible officials, and (4) any efforts made to temper the severity of the
forceful response. Id. Where prison officials maliciously and sadistically apply
force to cause harm, they always violate contemporary standards of decency, even
in the absence of significant injury. Wilkins, 559 U.S. at 37. To this end, the
absence of injury is only one factor to be considered in determining whether the
force applied was plausibly thought necessary. Id. The absence of injury is also
some indication of the amount of force applied. Id. Once the need for force
ceases, any continued application of harmful force can constitute an Eighth
Amendment violation. Williams v. Burton, 943 F.2d 1572, 1576 (11th Cir. 1991)
(per curiam).
Here, the district court did not err in granting summary judgment in favor of
the Officers with respect to Moore’s excessive force claim because Hunter engaged
in a minimal application of force that resulted in no discernible injury, and the
evidence did not show that Hunter sprayed Moore maliciously and sadistically.
Even assuming Hunter’s use of force constituted a “malevolent touch,” the
evidence shows that the force applied was de minimis. Wilkins, 559 U.S. at 37.
The use of force was limited to the spraying of the chemicals. It is not “repugnant
to the conscience of mankind” that an officer like Hunter might use chemical spray
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against an inmate in order to prevent his attempted suicide, even if a more
restrained response might have been preferable. Id. at 37–38.
The undisputed facts do not raise an inference that Hunter acted wantonly in
spraying Moore with chemical agents. Hunter says that she saw Moore cutting
himself and that Moore said he was trying to kill himself. Moore said that he told
Hunter he needed mental health care. Both parties agree that after Hunter sprayed
Moore, he was immediately taken to the decontamination shower and then seen by
the prison medical staff. These facts do not demonstrate that Hunter acted
maliciously or sadistically—rather, they support a reasonable inference that Hunter
sprayed the chemicals in order to prevent Moore from further injuring himself.
Williams, 943 F.2d at 1576; Swain, 961 F.3d at 1286. Accordingly, we affirm the
district court’s dismissal at summary judgment of Moore’s claim of excessive
force.
AFFIRMED.
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