Pablo F. MALDONADO, Plaintiff-Appellant, v. UNNAMED DEFENDANT, Corporal Jefferson, individually and in his official capacity as an employee of the Newton County Sheriff‘s Department, Jailer Carter, individually and in his official capacity as an employee of the Newton County Sheriff‘s Department, Jailer Brown, individually and in his official capacity as an employee of the Newton County Sheriff‘s Department, Jailer Ellis, individually and in his official capacity as an employee of the Newton County Sheriff‘s Department, et al., Defendants-Appellees.
No. 15-10867
United States Court of Appeals, Eleventh Circuit.
April 26, 2016.
646 Fed. Appx. 939
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
Maryann Brothers appeals the judgment that affirmed the denial of her application for disability insurance benefits and supplemental security income from the Social Security Administration.
The administrative law judge accounted for Brothers‘s limitations. The administrative law judge gave “great weight” to the findings of Dr. David S. Bailey, a psychologist, that Brothers could understand and complete basic instructions and had extreme limitations in interacting with the public, coworkers, and supervisors. And the administrative law judge gave great weight to the findings of Dr. Clifford Guarnaccia, a state psychologist, that Brothers had “some limitation in understanding and remembering detailed instructions, [yet could] sustain attention for two-hour periods” to “complete tasks” with occasional reminders by a supervisor with whom Brothers might “develop interpersonal problems” but could “maintain basic social interactions.” See Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). Based on this evidence, the administrative law judge found that Brothers could “work only where no production rate or pace is required[,] can perform only simple routine tasks, and can work where only occasional interaction with the public and co-workers is required.”
The administrative law judge also included those limitations in the hypothetical question posed to the vocational expert. See Winschel v. Comm‘r of Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011). The administrative law judge was not required to refer to supervisors when the residual functional capacity assessment and the hypothetical question included a restriction on Brothers‘s social interaction in the workplace. And the administrative law judge was not required to “specifically refer to every piece of evidence ... [when his] decision [reveals] ... that [he] considered [Brothers‘s] medical condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
We AFFIRM the judgment in favor of the Commissioner.
GDCP Warden, Georgia Diagnostic and Classification SP-Trust Fund, Jackson, GA, for Plaintiff-Appellant.
Samuel Scott Olens, Attorney General‘s Office, Atlanta, GA, William Thomas Mitchell, Karen Woodward, Cruser & Mitchell, LLP, Norcross, GA, for Defendants-Appellees.
PER CURIAM:
Pablo F. Maldonado, a Georgia death-row inmate proceeding pro se, appeals the district judge‘s granting summary judgment to the Newton County Sheriff‘s Department defendants on his
I. BACKGROUND
A. Facts
On August 31, 2012, Maldonado was convicted in Georgia state court of malice murder, felony murder, armed robbery, concealing the death of another, and forgery; he was sentenced to death. Maldonado currently is confined at the Georgia Diagnostic and Classification Prison, to which he was transferred on September 7, 2012. From June 15, 2009, through September 7, 2012, Maldonado was detained at the Newton County Detention Center (“NCDC“). This
1. Retaliation Claims
In his complaint, Maldonado alleged Officer First Name Unknown (“FNU“) Myrie assaulted him various times between June and July 2010. Maldonado explained at his deposition this allegation referred to an incident that occurred on June 26, 2010, when Officer Myrie, at the direction of Officer Keith Brown, who was in the control tower, assaulted him as he was coming out of visitation. Subsequently, Maldonado was taken to intake to be placed on suicide watch and allegedly was denied medical treatment by Lieutenant Selena Williams. In an inmate-grievance form dated June 29, 2010, Maldonado complained he had been removed to suicide watch for no apparent reason after being assaulted by Officer Myrie and stated Officer Brown had confiscated his personal-hygiene items and law books.
Maldonado‘s jail medical file showed he was seen by a nurse on June 26, 2010, at the request of Lieutenant Williams. Maldonado complained his right shoulder had been dislocated, although he was able to pull his shirt over his head, move both arms easily, and unsnap his uniform. Maldonado also stated an officer had choked him, but no swelling or discoloration was noted around his throat. He had reddened areas on both shoulders and his head, and medical personnel directed officers to give him ice for his injuries. Maldonado was examined again on June 29 and 30, 2010, after complaining of pain in
On July 12, 2010, Maldonado argued with Officer Novel Ellis after she accused him of taking another inmate‘s laundry bag. Sergeant Clarence White and another officer, who is not a defendant in this action, escorted Maldonado first to disciplinary segregation and then to a cell in the medical unit. While he was in the medical unit, Maldonado states Sergeant White came into his cell, threw him to the ground, and said something like “you won‘t put my name in a lawsuit“; Sergeant White then tased Maldonado on the left side of his face. R. at 1124.
Maldonado was examined by prison medical staff following this incident, and complained to the nurse that he had been tased in the face. The nurse noted redness on the left side of Maldonado‘s face but concluded it did not require any treatment. Maldonado did not file an inmate-grievance form concerning this incident.
On July 29, 2010, Maldonado posted a note on his cell door asking to be left alone; it stated he had enough commissary items to last him for several weeks. Lieutenant Williams and Corporal George Jefferson went into Maldonado‘s cell; Jefferson restrained Maldonado while Williams removed his personal items. Williams reportedly said something like “let‘s see how you are going to survive without your commissary.” R. at 142, 1130. In an undated letter addressed to Lieutenant FNU Goodman, who is not a defendant in this action, Maldonado listed a number of items that allegedly were taken from his cell, when he was removed from Seg-1, his regular housing unit, on July 12, 2010. On July 29, 2010, Maldonado filed an inmate request form and asked to speak to Lieutenant Goodman about officers taking his personal items in retaliation for grievances he had filed. He again requested the replacement of his personal items in an inmate-request form dated September 13, 2010. At the bottom of that form, Lieutenant Goodman noted the items were replaced on September 14, 2010. In a memorandum dated September 14, 2010, and addressed to Maldonado, Lieutenant Goodman listed the items Maldonado had received, and Maldonado signed at the bottom, acknowledging receipt of those items.
On August 9, 2010, Sergeant White, on the orders of Captain Sammy Banks, attempted to place Maldonado in disciplinary segregation, allegedly for no apparent reason. Maldonado refused to go to disciplinary segregation; instead, he was placed on suicide watch against his will. Because Maldonado did not voluntarily remove his clothing, Sergeant White and Corporal Jefferson undressed him and put him in a suicide suit. Maldonado was “manhandled” by the officers during this process, but he did not suffer any physical injuries. R. at 1152. He did not file a grievance concerning this incident.
On September 2, 2010, Captain Banks and Officer Brice Smith ordered Maldonado to be placed in disciplinary segregation with a convicted murderer, armed robber, and drug trafficker, allegedly for discriminatory and retaliatory reasons. Maldonado did not file a grievance concerning this incident.
On September 20, 2010, Sergeant Freeman Moody ordered Maldonado to get out of the shower. Maldonado did not comply immediately and told Moody he needed to finish rinsing off. Moody allegedly then dragged Maldonado out of the shower and pushed him into his cell, causing Maldonado to slip and hurt his back. Maldonado began swearing at Moody and spit on the window of his cell door. Moody told Mal
On December 23, 2010, after being threatened by another inmate, Maldonado jammed the door to his cell. Jail staff removed the door, and Officers Joe Maher and Wesley Ramsey removed Maldonado from his cell. Officers Maher and Ramsey told Maldonado they were taking him to suicide watch, but Maldonado insisted he was not suicidal and refused to put on a suicide suit. Officers Maher and Ramsey then placed Maldonado in a restraint chair with both his hands and feet restrained. According to Maldonado, once he was in the restraint chair, Officers Maher and Ramsey told him to “drop [their] name from any lawsuit” he had filed and threatened he would “regret bringing their name in any type of lawsuit“; they then broke his left pinky finger, kicked him, and burned him with a lighter. R. at 1179-80. On December 27, 2010, Maldonado filed an inmate-grievance form and complained he was taken to intake on December 23, 2010, to be placed on suicide watch, even though he was not suicidal; thereafter Officers Maher and Ramsey placed him in the restraint chair, beat him, tortured him, and burned him with a lighter.
At approximately 1 a.m. on December 24, 2010, after Maldonado had been placed in the restraint chair, a nurse was called to examine him. Maldonado told the nurse officers had hit him in the head, kicked him in the ribs, and broken his finger. The nurse noted Maldonado was able to move his fingers without any problem, but could not flex his left index finger, which was swollen. The nurse checked on Mal
On May 26, 2011, Maldonado came out of his cell and asked to speak to a supervisor or internal-affairs investigator to make a complaint about an officer who was harassing him sexually. Officers told Maldonado to lock down in his cell, but Maldonado refused to do so until he had spoken to a supervisor. Corporal Maurice Kennard escorted Maldonado back into his cell. Maldonado was not combative, but once inside the cell, “a few words [were] said,” and Corporal Kennard pepper-sprayed Maldonado in the face. R. at 1201. After the incident, Sergeant White allegedly went into Maldonado‘s cell and threatened him to stop pursuing lawsuits or internal investigations against the officers. A nurse examined Maldonado in his cell after he was pepper-sprayed; Maldonado then showered to wash off the pepper spray. The following day, May 27, 2011, Maldonado filed a grievance asserting the pepper-spray incident was in retaliation for his attempt to make a sexual harassment complaint.1
On August 8, 2011, Corporal Kennard and Officer Brown allegedly attacked Maldonado in his cell after Maldonado accidentally broke a TV remote control, when he tossed it. According to Maldonado, the officers punched him, slammed him on the floor, and broke his tooth. Following this incident, medical personnel were called to
Finally, according to Maldonado, on August 12, 2011, Lieutenant Williams and Sergeant Smith trashed his cell and disposed of $100 worth of commissary items and half of his discovery from his criminal case. Between August 8 and 14, 2011, Maldonado filed several requests seeking the return of his discovery material and commissary items. The response on the form dated August 14, 2011, shows Maldonado‘s property had been returned.
2. Deliberate Indifference Claims
In his complaint, Maldonado generally alleged he had been denied medical attention for his serious health issues between June and October of 2011. At his deposition, Maldonado testified his deliberate-indifference claim was based on the June 26, 2010, July 12, 2010, December 23, 2010, and May 26, 2011, incidents previously described. Maldonado did not file any grievances concerning any deprivation or delay of medical treatment.
3. Other Claims
Maldonado also alleged officers failed to protect him from being attacked by his former cellmate, Joseph White, on July 3 and 10, 2010. Maldonado represents White had assaulted him both physically and sexually on several prior occasions. Maldonado had reported those incidents to corrections officers and requested his visitation schedule be changed, so it would not overlap that of White, but officers failed to take any action. On July 3, 2010, while Maldonado was waiting for visitation, White attacked him. Maldonado reported the assault to Officer Ellis, who simply told the two men they needed to work out their problems. On July 10, 2010, Maldonado‘s visitation schedule had not been changed, and White again assaulted Maldonado.
In addition, Maldonado generally alleged Lieutenant Williams, Sergeant Smith, and Captain Banks had denied him access to the law library, clergy visits, and religious materials. In particular, on August 17, 2010, Captain Banks denied Maldonado access to the law library and clergy visits, while he was being held in a video-monitored intake cell after being released from suicide watch. Maldonado also claimed Sergeant Smith had denied him a refund for store goods that had been lost by jail custodians on May 31, 2011, and alleged a jail-staff member, Mrs. Oliver, who is not a defendant in this action, had tampered with his mail.
B. District Court Proceedings
Maldonado initiated this action in June 2011 by filing in the district court a letter, challenging the conditions of his pretrial confinement in the NCDC. His previously filed complaint, raising similar issues regarding his confinement at the NCDC, had been dismissed for failure to state a claim on June 17, 2010. The district judge had directed Maldonado to file an amended complaint limited to any alleged violations of his rights that had occurred after dismissal of his prior suit. Maldonado complied and filed a second amended complaint (“SAC“), which is the operative complaint in this case. Maldonado also
In his SAC, Maldonado named as defendants Newton County, the Newton County Sheriff‘s Office, Sheriff Ezell Brown, and numerous individual corrections officers. He alleged nine counts: (1) violation of his First, Fourth, Eighth, and Fourteenth Amendment rights against Newton County (Count I); (2) violation of his First, Fourth, Eighth, and Fourteenth Amendment rights against the individual defendants (Count II); (3) assault and battery against Officers Joe Maher, Wesley Ramsey, Keith Brown, and inmate Joseph White (Count III); (4) intentional infliction of emotional distress, apparently against all of the individual defendants (Count IV); (5) negligent retention against Newton County (Count V); (6) violation of his civil rights under
The district judge screened Maldonado‘s complaint under
As discovery proceeded, Maldonado moved for appointment of a medical doctor and a psychiatrist to provide expert opinions concerning the physical and mental injuries he had suffered from the defendants’ abuses. A magistrate judge denied Maldonado‘s motion and concluded Maldonado had not substantiated sufficiently the need for appointment of an expert to ensure a just resolution of his case. Maldonado later filed a motion to compel discovery and asserted the defendants failed to respond to numerous requests for production of documents and were delaying intentionally disclosure of other requested documents. While his motion to compel was pending, Maldonado filed a motion for inspection of tangible items and entry upon land and requested permission to enter the NCDC to inspect the premises and to take measurements, photographs, and video. He represented this evidence was necessary to refute various assertions made by
Subsequently, defendants moved for summary judgment. In relevant part, they argued Maldonado had failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act (“PLRA“),
Before responding to the motion for summary judgment, Maldonado renewed his request for appointment of a medical expert and contended he also needed an expert witness to refute the defendants’ taser expert. In his response to the motion for summary judgment, Maldonado maintained he did exhaust his available administrative remedies. He asserted he filed grievances concerning some of the issues raised in this lawsuit, but the defendants had prevented him from filing grievances concerning other instances of mistreatment. Under these circumstances, Maldonado contended he should not be penalized for failing to exhaust his administrative remedies, because his failure was caused by the defendants’ misconduct.
Concerning his retaliation claims, Maldonado insisted there was a causal connection between the defendants’ abuses and his many grievances and legal complaints. He also contested the defendants’ asser
In support of his response, Maldonado filed a number of documents, including a copy of the NCDC Inmate Handbook, dated January 2009. The Handbook provided an inmate who wishes to file a grievance must:
- Request a grievance form from the security officer.
- Write on the grievance form the date and time of the occurrence, and the name of the facility, staff, and inmates involved, and a detailed description of the incident.
- A grievance must be submitted within five days of the incident or discovery of the matter being grieved....
R. at 1566.
A magistrate judge issued a final Report and Recommendation (“R & R“), which addressed Maldonado‘s pending motions as well as the defendants’ motion for summary judgment. As a preliminary matter, the magistrate judge recommended Sergeant Octavis Campbell, Officer FNU Myrie, and inmate Joseph White be dismissed for lack of service. The magistrate judge then denied Maldonado‘s motion for entry upon land, because he had not demonstrated the necessary discovery could not be accomplished through other means, and his request was not justified in view of the limitations imposed on him by his incarceration for his capital sentence. Similarly, the magistrate judge denied Maldonado‘s
Regarding the motion for summary judgment, the magistrate judge first identified the following incidents of misconduct, alleged in the SAC and permitted to proceed in the screening order, as the basis for Maldonado‘s
In accordance with our precedent, the magistrate judge construed the motion for summary judgment as a Federal Rule of Civil Procedure 12(b) motion to dismiss in addressing the PLRA exhaustion requirement. The magistrate judge concluded Maldonado had failed to exhaust his administrative remedies concerning his deliberate-indifference claims and his retaliation claims regarding the incidents on July 12, 2010, August 9, 2010, September 2, 2010, May 26, 2011, August 8, 2011, and
Maldonado objected to the R & R and contended the magistrate judge had erred in denying his motions to compel and for entry upon land. Regarding the motion for summary judgment, Maldonado contended the magistrate judge had failed to address his claim he was assaulted by Officer Myrie on June 26, 2010, but did not otherwise object to the magistrate judge‘s recitation of the retaliation claims remaining on summary judgment.4 Maldonado argued the magistrate judge also erred in concluding he had not exhausted his claim concerning the May 26, 2011, incident and directed the judge‘s attention to the May 27, 2011, grievance he had filed. Maldonado further asserted his failure to exhaust his other retaliation and deliberate-indifference claims was not his fault, because defendants had prevented him from filing grievances, destroyed his grievances, or failed to investigate them properly. Finally, Maldonado stated he had no objection to the dismissal of Sergeant Campbell, Officer Myrie, and inmate Joseph White for lack of service.
Concerning the exhaustion issue, the district judge agreed the summary judgment motion should be treated as a
Nevertheless, the judge concluded dismissal of all of Maldonado‘s
II. DISCUSSION
A. Exhaustion of Administrative Remedies
On appeal, Maldonado argues the district judge erroneously construed the exhaustion portion of the motion for summary judgment as a
We review de novo a district judge‘s application of
Under
For an administrative remedy to be “available” under the PLRA, it must be “capable of use for the accomplishment of its purpose.” Turner, 541 F.3d at 1084 (citation, internal quotation marks, and alteration omitted). Consequently, retaliation or threats of retaliation may make administrative remedies unavailable to an inmate. Id. at 1084-85. Specifically, “a prison official‘s serious threats of substantial retaliation against an inmate for lodging or pursuing in good faith a grievance” render the administrative remedy unavailable if (1) the threat actually deterred the plaintiff from filing a grievance or pursuing some aspect of the administrative process, and (2) the threat is one that would deter a reasonable inmate of ordinary firmness. Id. at 1085. We also have noted, without deciding for this circuit, that other courts have held administrative remedies are also unavailable, when prison officials prevent the filing of grievances or fail to respond to grievances that are filed. Bryant, 530 F.3d at 1373 n. 6.
The district judge correctly applied our precedent in treating the exhaustion defense as an unenumerated
Maldonado argues any failure to exhaust on his part should be excused, because it was caused by defendants’ retaliatory conduct. He has not demonstrated, however, he actually was deterred from filing grievances concerning the three incidents about which he complains. See Turner, 541 F.3d at 1084-85. Maldonado did not identify any threats made by officers in connection with the August 9, 2010, incident, in which he allegedly was placed on suicide watch without cause. He further did not assert the defendants prevented him from filing a grievance concerning the August 9, 2010, incident and acknowledged he did not suffer any injuries from that incident other than being “manhandled.” R. at 1153. Similarly, Maldonado did not assert the defendants made any threats or otherwise prevented him from filing a grievance concerning the September 2, 2010, incident, in which he allegedly was moved to Seg-2 for no reason. Therefore, Maldonado did not show the defendants prevented him, via threats or otherwise, from filing a grievance concerning the August 9, 2010, or September 2, 2010, incidents. See Turner, 541 F.3d at 1084-85.
Concerning the July 12, 2010, incident, Maldonado did assert that just before Officer White tased him in the face, White said something like “you won‘t put my name in a lawsuit.” R. at 1124. Although this conduct could constitute the sort of serious threat that would deter an ordinary prisoner from filing a grievance, Maldonado never asserted he was actually deterred by White‘s threat from filing a grievance concerning that incident. See Turner, 541 F.3d at 1084-85. Moreover, the record contains dozens of grievance forms filed by Maldonado throughout the course of his confinement at the NCDC, including complaints related to other incidents in which Maldonado alleged officers used physical force against him and threatened him not to pursue legal action. Even if Maldonado‘s allegations concerning the defendants’ retaliatory conduct are true, he was not actually deterred from filing grievances or pursuing legal action because of their conduct. See Turner, 541 F.3d at 1084-85.
The record also contains no grievance referring to the August 12, 2011, incident, in which officers allegedly trashed Maldonado‘s cell and disposed of his personal property. There are, however, several grievance forms dated August 8, 9, 11, and 14, 2011, in which Maldonado requested the return of property taken from him on August 8 and 9, 2011. Given the nature of these grievances and their temporal proximity to the August 12, 2011, date, it is possible Maldonado was mistaken about the date on which his property was taken. Nevertheless, this claim appears to have been resolved administratively, because the response on the August 14, 2011, grievance form shows Maldonado‘s property was returned to him. Consequently, the district judge properly dismissed the August 12, 2011, claim, either because it was unexhausted or because it was resolved internally. See Jones, 549 U.S. at 219, 127 S.Ct. at 923 (noting one of the purposes of the PLRA exhaustion requirement is to reduce litigation to the extent complaints are satisfactorily resolved at the administrative level).
The judge also did not err in dismissing Maldonado‘s claim concerning the July 29, 2010, incident, involving the confiscation of his personal items, because that claim was fully resolved administratively. Maldonado filed several grievances concerning the confiscation of his property and explicitly stated he believed the officers acted in retaliation for his previous grievances. The record shows, however, all of Maldonado‘s items were returned or replaced, and Maldonado signed acknowledgments so stating. Therefore, Maldonado‘s claim, though exhausted, properly was dismissed. See Jones, 549 U.S. at 219, 127 S.Ct. at 923.
In contrast, the judge erred in concluding Maldonado failed to exhaust his administrative remedies for the December 23, 2010, and August 8, 2011, incidents, based on the judge‘s finding that his grievances concerning those incidents did not state retaliation claims. We have not addressed whether, to exhaust administrative remedies for purposes of the PLRA, an inmate‘s administrative grievance must have alleged the specific legal theory he later pursues in a
Nevertheless, regarding the August 8, 2011, incident, the judge ultimately was correct in concluding Maldonado did not properly exhaust his claim. The NCDC procedures required a grievance contain a detailed description of the inci
In contrast, Maldonado‘s grievance concerning the December 23, 2010, incident largely complies with the NCDC procedural requirements. That grievance is written on an inmate-grievance form, identifies the date of the alleged incident, identifies the officers involved, and provides a detailed account of the incident, given the space limitations on the form. Consequently, Maldonado properly exhausted his administrative remedies concerning the December 23, 2010, incident, and the judge erred in dismissing that claim for failure to exhaust. See Jones, 549 U.S. at 218, 127 S.Ct. at 922-23.
B. Qualified Immunity
Maldonado also contends the judge erroneously placed the burden of disproving the defendants’ entitlement to qualified immunity on him, when it was the defendants’ burden to prove they were entitled to qualified immunity. He further asserts the judge erroneously applied a heightened standard of proof concerning the clearly established law prong of the qualified-immunity defense. Finally, he argues the defendants waived their qualified-immunity defense, because they did not plead or prove it properly; in any event, Maldonado presented evidence establishing a genuine issue of material fact regarding the availability of that defense.
We review de novo a district judge‘s disposition of a motion for summary judgment based on qualified immunity, resolve all issues of material fact in favor of the plaintiff, and determine whether the defendants are entitled to qualified immunity under that version of the facts. Case v. Eslinger, 555 F.3d 1317, 1324-25 (11th Cir. 2009). Qualified immunity shields government officials performing discretionary functions from liability under
The qualified-immunity inquiry is context-specific; qualified immunity applies unless the plaintiff can show no reasonable officer in the defendant‘s position would have taken the same action. See id. To determine whether a reasonable officer would have known his conduct was unconstitutional, we ask whether either (1) under the prevailing case law at the time, a concrete factual basis existed so that it was obvious to a reasonable officer that his actions violated federal law; or (2) the
To state a First Amendment retaliation claim, an inmate must show (1) he engaged in constitutionally protected activity; (2) the defendant‘s retaliatory conduct adversely affected his protected activity; and (3) there is a causal connection between the retaliatory conduct and the adverse effect. Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008). Once the plaintiff establishes his protected conduct was a motivating factor behind the alleged harm, the burden shifts to the defendant to show it would have taken the same action absent the protected activity. Smith v. Fla. Dep‘t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013).
The judge did not err in placing the burden on Maldonado to overcome the qualified-immunity defense. Maldonado never disputed the defendants were acting under their discretionary authority; therefore, the burden was on him to demonstrate the defendants violated his clearly established rights. See Terrell, 668 F.3d at 1250.
The judge did not err in concluding the defendants were entitled to qualified immunity concerning the May 26, 2011, incident. Maldonado is correct the right of prison inmates to be free from retaliation for filing grievances concerning the conditions of their confinement is clearly established. Boxer X, 437 F.3d at 1112. But he failed to show that Corporal Kennard had violated that right by pepper-spraying him on May 26, 2011. See Terrell, 668 F.3d at 1250. Maldonado contended he was pepper-sprayed in retaliation for attempting to initiate a sexual harassment investigation against another officer. Yet, he testified Corporal Kennard escorted him into his cell after he had refused to obey an order to lock down, and, while inside the cell, “a few words [were] said,” and that was when Corporal Kennard pepper-sprayed him. R. at 1201. Consequently, under Maldonado‘s own version of the facts, it is not clear Corporal Kennard pepper-sprayed Maldonado in retaliation for his attempt to file a grievance or to subdue him and obtain his compliance with the officer‘s orders. Maldonado therefore did not show no reasonable officer would have taken the same action as Corporal Kennard under the circumstance; consequently, qualified immunity applies. See Terrell, 668 F.3d at 1250.
In contrast is the December 23, 2010, incident as to entitlement to qualified immunity. Maldonado‘s account of the event alleges, after placing him in the restraint chair and rendering him defenseless, Officers Ramsey and Maher threatened Maldonado would regret bringing any lawsuits against them, then beat him, broke his finger, and burned him with a lighter. Maldonado acknowledged he was removed from his cell after jamming his cell door in violation of jail rules but contended he did not physically resist the officers, and his injuries were sustained after he was placed in the restraint chair, when officers would have no disciplinary reason for using force against him. Based on this account of the facts, Maldonado showed Officers Ramsey and Maher violated his clearly established rights by retaliating against him for engaging in protected conduct. See Terrell, 668 F.3d at 1250; Case, 555 F.3d at 1325; Boxer X, 437 F.3d at 1112. Therefore, the officers were not
C. Nondispositive Motions
Maldonado asserts the district judge erred in denying his motions for appointment of counsel, an expert witness, permission to enter upon land, to compel discovery, and to reinstate Counts II, III, and IV. He represents he was entitled to the relief sought in each of those motions, and the judge abused her discretion in denying them.
We review motions for appointment of counsel, discovery rulings, and motions for reconsideration for abuse of discretion. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (reconsideration); Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007) (discovery rulings); Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999) (appointment of counsel). Under that standard, we will not reverse a district judge‘s decision, unless we conclude the judge made a clear error of judgment or applied the wrong legal standard. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011). Although plaintiffs in civil cases have no constitutional right to counsel, district judges may appoint counsel for indigent plaintiffs under
We will not overturn discovery rulings unless they resulted in substantial harm to the appellant‘s case. Josendis, 662 F.3d at 1307. District judges have broad authority to control the scope of discovery and may deny a motion to compel discovery if the discovery sought is irrelevant.
A party may move to alter or amend a judgment within 28 days after the entry of judgment.
The judge did not abuse her discretion in denying any of the motions Maldonado seeks to appeal. She did not err in denying Maldonado‘s motions for appointment of counsel, because Maldonado did not demonstrate an appointment was warranted by exceptional circumstances. Bass, 170 F.3d at 1320. Maldonado repeatedly asserted having an attorney would be helpful to him but that is true of many pro se litigants and does not constitute an exceptional circumstance. See id. The judge also did not abuse her discretion in denying Maldonado‘s requests for appointment of an expert witness. Although a district judge has the authority to appoint an expert on a party‘s motion, the judge is not required to do so. See
In addition, the judge did not abuse her discretion in denying Maldonado‘s motions for entry upon land and to compel discovery. She properly concluded it would be inappropriate to grant Maldonado‘s motion for entry upon land. The burden of allowing Maldonado, who by then was incarcerated in another facility pursuant to his capital sentence, to inspect and photograph the NCDC would have outweighed the possible benefit of that discovery, because it did not relate to the central issues in his complaint. See
Finally, the judge did not err in denying Maldonado‘s motion for reconsideration seeking the reinstatement of Counts II, III, and IV. As the judge noted, Maldonado‘s motion was filed more than 28 days after her order dismissing those counts; therefore, it was untimely. See
III. CONCLUSION
As we have explained, we vacate and remand granting of summary judgment in part, regarding the December 23, 2010, retaliation claim but affirm granting summary judgment regarding Maldonado‘s deliberate indifference and other retaliation claims. We also affirm the district judge‘s denial of Maldonado‘s requests for appointment of counsel, appointment of an expert witness, permission to enter upon land, to compel discovery, and to reinstate Counts II, III, and IV.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
JIE ZHU, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.
No. 15-10007
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
April 27, 2016.