Fred Dalton BROOKS, Plaintiff-Appellant, v. WARDEN, Deputy Warden William Powell, Deputy Warden June Bishop, SMU Unit Manager McMillan, Defendants-Appellees.
No. 13-14437.
United States Court of Appeals, Eleventh Circuit.
Sept. 3, 2015.
799 F.3d 1295
MARCUS, Circuit Judge
Martinez then appealed to this Court, asserting first that her indictment was deficient because it did not allege she subjectively intended to convey a threat to injure others, and second that
Based on the Supreme Court‘s holding in Elonis, Martinez‘s indictment is insufficient as it fails to allege an essential element of
In light of the Supreme Court‘s holding in Elonis, our holdings in Martinez and Alaboud are overruled. Martinez‘s conviction and sentence are vacated, and we remand this case to the district court with instructions to dismiss Martinez‘s indictment without prejudice.1
VACATED AND REMANDED.
Erica J. Hashimoto, University of Georgia School of Law, Athens, GA, GDCP Warden, Georgia Diagnostic and Classification SP-Trust Fund, Jackson, GA, for Plaintiff-Appellant.
Fred Dalton Brooks, Jackson, GA, pro se.
Susan L. Rutherford, Samuel Scott Olens, Georgia Department of Law, Atlanta, GA, for Defendant-Appellee.
Fred Dalton Brooks is currently incarcerated in the Special Management Unit (“SMU“) at Georgia Diagnostic and Classification Prison (“GDCP“) in Jackson, Georgia. He has brought two Eighth Amendment claims under
Brooks alleges that within days of being placed in the SMU, he received threats of physical and sexual assault from the inmate in the adjacent cell. He reported these threats but no action was taken. The cell doors in the SMU were known to open unintentionally. One day, all 32 doors in his SMU dormitory opened simultaneously, a riot ensued, and he was brutally attacked by the inmate who had threatened him. He was taken to the hospital for three days, where he was placed in maximum-security restraints. He was given medicine that gave him loose stools, but the guard refused to lower his waist-chains so he could defecate. He was forced to defecate in his jumpsuit for two days and sit in his own excrement, during which time the guard laughed and taunted him. Brooks brought deliberate indifference claims relating to both incidents in the United States District Court for the Middle District of Georgia. The district court dismissed both.
After thorough review, we affirm the dismissal of Brooks‘s failure to protect claim arising out of the prison riot, but reverse as to his claim that his Eighth Amendment rights were violated by his alleged mistreatment at the hospital. Brooks did not adequately allege a substantial risk of serious harm in the period leading up the prison riot. However, he did adequately plead an Eighth Amendment violation arising out of his three-day hospital stay. Moreover, as to the claim that Brooks had been confined in conditions lacking in basic sanitation, Deputy Warden Powell is not entitled to qualified immunity. He was put on fair notice both by our caselaw and the knowledge that forcing a prisoner to soil himself over a two-day period while chained in a hospital bed creates an obvious health risk and is an affront to human dignity.
Because Brooks has not alleged any physical injury resulting from his hospital stay, under the Prison Litigation Reform Act,
I.
Brooks‘s amended complaint alleged the following essential facts. Brooks was placed in the Special Management Unit on February 7, 2012, under the direct orders of Humphrey, Powell, and Bishop. The SMU has six dormitories, each of which contains 32 individual cells. Brooks‘s cell was located in the E-dorm, adjacent to a cell occupied by inmate Tremayne Watson. Within days of Brooks‘s arrival, Watson allegedly threatened to physically attack and sexually assault him. (Brooks was, at the time, 64 years old; five feet, nine inches tall; and 155 pounds.) Despite being in a separate cell from Watson, Brooks feared for his safety. He gave “detailed notes” of Watson‘s threats to Humphrey, Powell, Bishop, and McMillan. Brooks was not moved from his cell.
Brooks remained in the hospital for three days. Throughout his stay, Brooks was shackled with leg irons and maximum-security waist-chain handcuffs. He was guarded at all times by Deputy Warden Powell and three other correctional officers. He received medicine that “caused [his] bowels to have the liquidity of water.” During his second day at the hospital, Brooks began asking and then pleading with Powell to allow him to use the toilet. Powell refused to temporarily lower Brooks‘s waist-chains so he could defecate. Instead, Brooks was forced to soil his jumpsuit for the remainder of his stay in the hospital. Powell and the correctional officers “laughed and made fun of” Brooks during this ordeal.1
The prison officials moved to dismiss the complaint and Brooks responded. In his Response, Brooks alleged for the first time that “the opening of cell doors, even multiple cell doors[,] in the SMU occurs regularly and is known by all the Defendants.” He added that “multiple prisoners can sometimes get out of their cells simultaneously.” Brooks also claimed that “most of the inmates housed in [the] SMU have been put there because they have committed acts of violence ... in the prison system,” and that it was a “well known fact” that “Watson [was] the most violent and troublesome inmate in [the] SMU.”
On July 18, 2013, the magistrate judge entered a Report recommending that the Motions to Dismiss be granted in their entirety. As for the failure to protect claim, the magistrate judge concluded that Brooks‘s allegations did not suggest that the defendants had subjective knowledge of a strong likelihood that Brooks would be subject to an attack in prison. The court noted that the complaint had not alleged that Brooks and Watson had ever been outside their cells simultaneously, or that Watson “otherwise had the opportunity to carry out the threats.” The magistrate judge also reasoned that the failure to move Brooks to another cell (farther from Watson) “amount[ed] only to negligence,” not deliberate indifference. As for Brooks‘s hospital treatment claim, the magistrate judge concluded that Powell was protected by qualified immunity because “the facts alleged [did] not involve a risk to Plaintiff‘s health or safety,” and, therefore, it was not clearly established that Powell‘s conduct violated the Eighth Amendment.
On August 8, 2013, Brooks moved for reconsideration of the magistrate judge‘s Report and Recommendation. The district court treated the motion as an objection to the magistrate judge‘s Report, and construed the new factual allegations as a second Motion to Amend. Brooks con-
The district court denied Brooks‘s restyled Motion to Amend as “futile” because “[e]ven with these new allegations [he] fail[ed] to allege colorable Eighth Amendment claims for the same reasons stated in the [magistrate judge‘s] Recommendation.”
Brooks timely appealed and was appointed counsel by this Court.
II.
We review de novo the dismissal of a complaint for failure to state a claim under
III.
“A prison official violates the Eighth Amendment when a substantial risk of serious harm, of which the official is subjectively aware, exists and the official does not respond reasonably to the risk.” Caldwell, 748 F.3d at 1099 (emphasis omitted) (quoting Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003)) (internal quotation marks omitted). To prevail on such a claim brought under
Brooks has failed to plausibly allege that a substantial risk of serious harm existed prior to the prison riot. For Brooks to face serious harm, he and Watson both needed to be released from their cells simultaneously in an unsupervised situation. Although Brooks alleged that SMU doors had opened before, he did not allege that he and Watson had ever been let out of their cells at the same time, let alone in an unsupervised or chaotic environment where an attack could occur. Nor did he ever allege that all 32 doors in the E-dorm had ever opened simultaneously, creating the conditions for a prison riot. The most that can be taken from Brooks‘s complaint, even in the most favorable light, is that it was possible for the events that transpired to occur: that his and Watson‘s cell doors would open simultaneously during a situation that prevented immediate intervention by the guards, leading to serious injury. But mere possibility is not enough—the plaintiff must plausibly allege a strong likelihood of serious harm, and Brooks has not here. Therefore, his claim must fail.2
Brooks makes two arguments about the substantial risk of serious harm. First, he claims that the very fact that he was attacked demonstrates that the risk he faced—and that the prison guards ignored—was substantial. This argument does not hold up to logical scrutiny; it rests entirely on hindsight bias. The mere fact that an event takes place does not indicate how likely it was to occur. A risk calculation is a prospective determination of what might happen based upon events that have already occurred. Brooks‘s inju-
Brooks relies on two cases to support this argument; neither is apposite. First, in Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, a prisoner brought a deliberate indifference claim against prison officials after he was attacked by his cellmate. A panel of this Court noted in dicta that the defendants had not disputed the existence of a substantial risk of serious harm, given the perpetrator‘s history of prison violence, his record of starting fires in their shared cell, “and his violent assault on [the] plaintiff.” Id. at 1100. Thus, the Caldwell Court merely suggested in dicta that the attack against that plaintiff was one of many factors that went into the calculus of determining a substantial risk of serious harm. Caldwell does not stand for the proposition—nor could it—that a single attack, alone, is somehow sufficient to show a substantial risk of serious harm. Brooks‘s second case, an unpublished one, Johnson v. Boyd, 568 Fed. Appx. 719 (11th Cir. 2014) (per curiam), is equally unconvincing. In Johnson, the Court addressed a claim of deliberate indifference regarding the prison officials’ inaction after the plaintiff had been attacked, not before. Id. at 722. In that context, the Court noted that “the [plaintiff‘s] allegations describing [the] physical attack are sufficient to show an objective risk of injury,” but the attack did not do double-duty as both an allegation of the harm suffered and an allegation of the risk that said harm would occur. Id.
Brooks also argues that the combination of two allegations creates a substantial risk of serious harm: first, Watson‘s violent nature and specific threats leveled against Brooks; second, the fact that SMU cell doors had opened and allowed inmates out of their cells “numerous” times in the past. Brooks claims that, taken together, this creates a plausible allegation of a substantial risk. But even construing Brooks‘s pro se allegations liberally, he has not said enough to plausibly allege a substantial risk of serious harm. The extant risk, as alleged, was no more than possible, not substantial.
Brooks cites to Rodriguez v. Secretary for the Department of Corrections, 508 F.3d 611 (11th Cir. 2007), in support of his claim. In Rodriguez, the plaintiff had been segregated from the general prison population for security purposes, during which time he received (and reported to prison authorities) specific death threats from members of his former gang who were prisoners in the general population. Id. at 613-15. His requests for a transfer to another facility were denied. Within hours of his release into the general prison population, a member of his former gang stabbed him in the chest and back. Id. at 615-16. The Court found that “the gang-related threats made on Rodriguez‘s life, which were explicitly reported to prison officials, present[ed] a substantial enough risk of harm to trigger a prison official‘s Eighth Amendment duty to act.” Id. at 617 n. 12.
But, notably, in Rodriguez, the inmate‘s planned release into the general prison population indisputably put him at risk for attack. In sharp contrast, in this case, only the utterly unplanned and simultaneous opening of both Brooks‘s and Watson‘s doors would put Brooks in harm‘s
IV.
We turn next to Brooks‘s Eighth Amendment claim arising out of his alleged mistreatment in the hospital. The Eighth Amendment governs the conditions of a prisoner‘s confinement. Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Although “[t]he Constitution does not mandate comfortable prisons,” Farmer, 511 U.S. at 832 (quotation omitted), it does not allow a prisoner to be exposed to an objectively “unreasonable risk of serious damage to his future health.” Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004) (quoting Helling, 509 U.S. at 35). Moreover, the conditions of confinement must meet “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (internal quotation marks omitted)).
As we said before, Brooks must have plausibly alleged a deliberate indifference claim: (1) a substantial risk of serious harm; (2) the defendants’ deliberate indifference to that risk; and (3) a causal connection between the defendants’ conduct and the Eighth Amendment violation.
The plaintiff must also navigate around the doctrine of qualified immunity. Ultimately, we conclude that Brooks has adequately pled a
A.
To recap: Brooks alleges that Powell refused to allow Brooks to lower the waist-chains that bound him so that he could use the toilet while in the hospital. As a result, Brooks was forced to defecate into his jumpsuit and sit in his own feces for two days during his three-day hospital stay. Brooks also alleges that Powell refused to allow the nurses to clean Brooks or offer him an adult diaper, and that Powell and the other guards laughed at Brooks and mocked him throughout the ordeal. These serious allegations state an Eighth Amendment violation under our caselaw.
This Court, and the old Fifth Circuit, have long recognized a “well established” Eighth Amendment right “not to be confined ... in conditions lacking basic sanitation.” Chandler v. Baird, 926 F.2d 1057, 1065-66 (11th Cir. 1991). In Chandler v. Baird, the plaintiff alleged that he had been deprived of toilet paper for three days, running water for two days, and was not provided with soap, a toothbrush, toothpaste, or bed linens. These conditions, combined with the inadequate heating of his cell, were sufficient to state an Eighth Amendment violation. Id. at 1063. We explained that “conditions that ‘deprive
Indeed, every sister circuit (except the Federal Circuit) has recognized that the deprivation of basic sanitary conditions can constitute an Eighth Amendment violation. See Budd v. Motley, 711 F.3d 840, 843 (7th Cir. 2013) (per curiam) (“[A]llegations of unhygienic conditions, when combined with the jail‘s failure to provide detainees with a way to clean for themselves with running water or other supplies, state a claim for relief.“); DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) (“Exposure to human waste, like few other conditions of confinement, evokes both the health concerns emphasized in Farmer and the more general standards of dignity embodied in the Eighth Amendment.“); Young v. Quinlan, 960 F.2d 351, 365 (3d Cir. 1992) (“It would be an abomination of the Constitution to force a prisoner to live in his own excrement for four days ....“), superseded by statute on other grounds as recognized by Nyhuis v. Reno, 204 F.3d 65, 71 n. 7 (3d Cir. 2000); Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989) (noting that “inmates are entitled to reasonably adequate sanitation” and finding Eighth Amendment violation where cell was “covered with human waste“); Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C. Cir. 1988) (recognizing “sanitation” as a “basic need” for prisoners protected by the Eighth Amendment); Parrish v. Johnson, 800 F.2d 600, 609 (6th Cir. 1986) (“[T]he Eighth Amendment protects prisoners from being ... denied the basic elements of hygiene.“) (quotation omitted); Green v. McKaskle, 788 F.2d 1116, 1126 (5th Cir. 1986) (“[A] state must furnish its prisoners with reasonably adequate ... sanitation ... to satisfy [the Eighth Amendment‘s] requirements.“) (quotation and alteration omitted); Hoptowit v. Spellman, 753 F.2d 779, 784 (9th Cir. 1985) (noting that the failure to provide “minimally sanitary” conditions “amounts to a violation of the Eighth Amendment“); Hawkins v. Hall, 644 F.2d 914, 918 (1st Cir. 1981) (explaining that prison conditions “must be sanitary“) (quotation omitted); Hite v. Leeke, 564 F.2d 670, 672 (4th Cir. 1977) (recognizing that “the denial of decent and basically sanitary living conditions and the deprivation of basic elements of hygiene” can violate the Eighth Amendment) (quotation omitted); LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972) (“Causing a man to live, eat and perhaps sleep in close confines with his own human waste is too debasing and degrading to be permitted.“). Moreover, the Supreme Court recognized in Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), that “a deprivation of bathroom breaks ... created a risk of particular discomfort and humiliation” for the plaintiff, a prisoner who had been attached to a hitching post for seven hours. Id. at 738.
Powell argues, nevertheless, that the Eighth Amendment protects only against “unnecessary and wanton infliction of pain,” and that Brooks has not alleged any such pain from his hospital experience, so he has failed to state a claim. This argument mirrors the district court‘s conclusion that the plaintiff‘s hospital treatment allegations amount to nothing more than “mere discomfort,” which is not cognizable under the Eighth Amendment. On the contrary, the Baird Court held that the plaintiff‘s claim defeated summary judgment without any requirement that he allege pain. Id. at 1066. Brooks has sufficiently alleged a substantial risk of serious harm, as the health risks of prolonged exposure to human excrement are obvious. See DeSpain, 264 F.3d at 974 (finding substantial risk of serious harm where prisoner was exposed to standing water in his cell that contained his own urine and other prisoners’ waste for 36 hours). Thus, we have little trouble concluding that Powell‘s alleged actions satisfy the objective element of an Eighth Amendment violation.
Brooks has also sufficiently alleged that Powell was deliberately indifferent to the substantial risk of serious harm Brooks endured during his hospital stay. Brooks satisfies the subjective component of deliberate indifference: he specifically alleged that he repeatedly begged Powell to let him remove his jumpsuit and use the toilet, so Powell was plainly aware of the risk Brooks faced. Brooks also satisfies the objective component of deliberate indifference because he alleges that Powell did not “respond reasonably” to Brooks‘s request—far from it. Instead, Brooks claims that Powell subjected him to derision and ridicule while he was forced to repeatedly soil himself.
Powell attempts to excuse his alleged behavior by citing the “legitimate security concerns” present in the hospital. To the extent Powell claims that reasons of public safety demanded that Brooks be required to sit in a soiled jumpsuit for two days, he can offer such evidence at a later stage in the proceedings. But taking all of Brooks‘s allegations as true, as we must at this stage, his description of Powell‘s behavior states a plausible claim of deliberate indifference. Brooks was 64 years old and 155 pounds at the time, and was monitored by four armed officers at all times—it is far from obvious how allowing Brooks to use the toilet would have posed a serious safety concern. Moreover, Powell‘s alleged laughter and taunts are wholly inconsistent with reasonable behavior taken for legitimate public safety reasons.
Finally, there is no dispute as to the causation element of Brooks‘s hygiene claim. According to Brooks, Powell supervised him in the hospital, refused his requests to use the toilet, refused to allow the nurses to clean him, and refused him the use of an adult diaper. These actions directly resulted in an alleged Eighth Amendment violation.
B.
The district court dismissed Brooks‘s hygiene claim on the ground that Powell
“[Q]ualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.‘” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “In order to receive qualified immunity, the public official ‘must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.‘” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)). No one disputes that Powell was acting within the scope of his discretionary authority when he supervised Brooks in the hospital.
After the defendant has established that he was acting in a discretionary capacity, “the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Id. This requires establishing that the official‘s alleged conduct violated a constitutional right, and that the constitutional right at issue was clearly established. See id. Courts may take up these two steps in either order. See Pearson, 555 U.S. at 236.
Having determined that Powell‘s alleged conduct violated the Eighth Amendment, we turn to whether the Eighth Amendment right at issue “was clearly established such that a reasonable official would understand that what he is doing violates that right.” Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (quoting Bashir v. Rockdale Cnty., 445 F.3d 1323, 1327 (11th Cir. 2006)). A right can be clearly established “either by similar prior precedent, or in rare cases of ‘obvious clarity.‘” Gilmore v. Hodges, 738 F.3d 266, 277 (11th Cir. 2013). “Exact factual identity with a previously decided case is not required, but the unlawfulness of the conduct must be apparent from pre-existing law.” Coffin, 642 F.3d at 1013.
The district court found “no clearly established law” warned Powell that his alleged actions constituted an Eighth Amendment violation. But both Baird and Novak (neither mentioned by the district court) should have been sufficient to put Powell on notice. Baird recognized that Eighth Amendment violations can arise from “conditions lacking basic sanitation,” including inadequate provision of hygiene items such as toilet paper. Id. at 1066. Novak noted that “deprivation of basic elements of hygiene” was a “common thread” running through prison conditions cases, including several involving proximity to human waste. Id. at 665. It‘s true that neither case involved the precise circumstances at issue here. But “[e]xact factual identity with a previously decided case is not required.” Coffin, 642 F.3d at 1013; see Hope, 536 U.S. at 741 (“[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.“). Baird and Novak, together, would have provided “fair and clear warning” that Brooks‘s alleged treatment would violate the Eighth Amendment. Hope, 536 U.S. at 741 (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)).4
V.
Brooks‘s claim, however, is further governed by the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, §§ 802-10, 110 Stat. 1321, 1366-77 (1996). The PLRA places substantial restrictions on the judicial relief that prisoners can seek, with the goal of “reduc[ing] the number of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive amounts of free time with which to pursue their complaints.” Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th Cir. 2011) (quoting Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)). The section of the Act at issue here,
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act....
This Court has held that
In this case, Brooks did not allege any physical injury arising from his hospital stay. Nevertheless, he sought “compensatory ... punitive, and nominal damages” from Powell. Under the statute and our caselaw, an incarcerated plaintiff cannot recover either compensatory or punitive damages for constitutional violations unless he can demonstrate a (more than de minimis) physical injury. See Al-Amin, 637 F.3d at 1198 (punitive); Harris v. Garner (Harris I), 190 F.3d 1279, 1286 (11th Cir. 1999) (compensatory), reh‘g en banc granted and opinion vacated, 197 F.3d 1059 (11th Cir. 1999), opinion reinstated in relevant part, 216 F.3d 970. However, we have never had the opportunity in a published opinion to settle the availability of nominal damages under the PLRA. We do today, and we hold that nothing in
It has long been recognized in the caselaw of the Supreme Court and our Circuit that nominal damages serve to “vindicate[] deprivations of certain ‘absolute’ rights that are not shown to have caused actual injury.” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); see also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (“[N]ominal damages ... are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury....“); Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003) (“Nominal damages are appropriate if a plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages.“). The Supreme Court has observed that the availability of nominal damages serves a symbolic function: it “recognizes the importance to organized society that those rights be scrupulously observed,” even if no injury occurs that would justify compensatory damages. Carey, 435 U.S. at 266; see Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir. 2003) (“[N]ominal damages are not compensation for loss or injury, but rather recognition of a violation of rights.” (quotation omitted)); Douglas Laycock, Modern American Remedies 615–16 (4th ed. 2010) (noting that nominal damages “serve a declaratory function“).
As we see it, both the text and purpose of the PLRA support the conclusion that
Our conclusion that nominal damages may be sought by an inmate for constitutional injury is in accord with the determination made by every other sister circuit to consider this issue. See Kuperman v. Wrenn, 645 F.3d 69, 73 n. 5 (1st Cir. 2011);
We make clear and hold today what we have long implied in our own caselaw. In past
Thus, we conclude that Brooks may proceed with his
MARCUS
UNITED STATES CIRCUIT JUDGE