FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 12, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16483

Non-Argument Calendar

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D. C. Docket No. 08-23078-CV-ASG

LEEROY SEALEY,

Real Party in Interest,

Plaintiff-Appellant,

versus

WARDEN JORGE PASTRANA,et al.,

S.C. BITHER,

CYRIL,

JUAN MONSERRATE,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 12, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:

LeeRoy Sealey, a federal prisoner proceeding pro se, appeals the district

court’s order entering summary judgment in favor of several prison officials in his

Bivens action alleging retaliation and deliberate indifference to his serious medical

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needs. Sealey filed the instant complaint against four employees of the Federal

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Correctional Institution in Miami, Florida (“FCI Miami”): Warden Jorge Pastrana;

Superintendent of Industries and Education Stephen Bither; Clinical Director Dr.

Juan Monserrate; and Physician’s Assistant Sabrina Cyril. Specifically, he alleged

that Bither and Cyril retaliated against him for complaining about inadequate

medical care in violation of the First Amendment. He also alleged that Cyril,

Pastrana, and Dr. Monserrate acted with deliberate indifference to his medical

needs in violation of the Eighth Amendment. The defendants collectively moved

for summary judgment, which a magistrate recommended granting after finding

that Sealey’s retaliation claim against Bither was unexhausted and his remaining

claims failed on the merits. Shortly thereafter, the district court adopted the

magistrate’s report.

Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 1

S. Ct. 1999 (1971).

Appellant’s motion to file an out-of-time reply brief is GRANTED. 2

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On appeal, Sealey appears to argue that the district court erred in denying his

retaliation claims because Bither had a sufficient nexus to the people who retaliated

against him such that this claim was exhausted and Sealey showed that Cyril

placed him in the Special Housing Unit in retaliation for seeking medical

treatment. Sealey also appears to argue the district court erred in rejecting his

deliberate indifference claims against Cyril, Pastrana, and Monserrate by asserting

that “[a]ll the name[d] defendants” were on notice of inadequate measures that

resulted in a one-year delay in his medical treatment, which in turn caused him

significant pain and suffering. Because Sealey is proceeding pro se, we have

construed his brief liberally and conclude that he has preserved his claims against

each defendant on appeal. See Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.

2008). Nevertheless, as discussed below, we conclude that Sealey either failed to

exhaust or raise a genuine issue of material fact as to all of his claims and thus

affirm the district court’s grant of summary judgment to defendants.

We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party and drawing inferences in his favor. Burger King Corp. v. E-Z Eating, 41

Corp., 572 F.3d 1306, 1312–13 (11th Cir. 2009). Summary judgment is proper “if

the pleadings, the discovery and disclosure materials on file, and any affidavits

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show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Burger King,

572 F.3d at 1313. At this stage of the proceedings, “[n]either we nor the district

court are to undertake credibility determinations or weigh the evidence.” Latimer

v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir. 2010).

Section 1983 permits an individual to maintain an action for damages

against a person who, acting under color of state law, deprives that individual of

“any rights, privileges, or immunities secured by the Constitution and laws.” 42

U.S.C. § 1983. In Bivens, the Supreme Court held that individuals similarly have

the right to maintain an action for damages against federal officers based on

violations of their constitutional rights. 403 U.S. at 389, 91 S. Ct. at 2001. As a

procedural matter, we incorporate 42 U.S.C. § 1983 law into Bivens actions. Bolin

v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000).

However, “[n]o action shall be brought with respect to prison conditions

under section 1983 . . . 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). Failure to exhaust under

§ 1997e(a) is grounds for summary dismissal. See Alexander v. Hawk, 159 F.3d

1321, 1324 (11th Cir. 1998) (holding that § 1997e(a) applies to a federal prisoner’s

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Bivens action and dismissing for failure to exhaust). Once the threshold exhaustion

requirement is met, a court may proceed to address the merits of the alleged

constitutional violation. See Chandler v. Crosby, 379 F.3d 1278, 1286 (11th Cir.

2004).

I. Retaliation

We first address Sealey’s retaliation claims against defendants Bither and

Cyril. “The First Amendment forbids prison officials from retaliating against

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

1248 (11th Cir. 2003). A prisoner may prevail in a retaliation claim by

demonstrating that: (1) his speech was constitutionally protected; (2) prison

officials caused him to suffer adverse action such that the retaliatory conduct

would likely deter a person of ordinary firmness from engaging in such speech;

and (3) there is a causal relationship between the retaliatory action and the

protected speech. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).

We agree with the district court that Sealey failed to exhaust his retaliation

claim against Bither pursuant to § 1997e(a). Although Sealey submitted numerous

copies of grievances in an attempt to show exhaustion, none of these grievances

named Bither personally, nor alleged that Bither retaliated against him for

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complaining about inadequate medical care. Therefore, the district court did not

err in granting summary judgment to Bither. See Alexander, 159 F.3d at 1324.

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We also conclude that the district court properly granted summary judgment

to Cyril with respect to Sealey’s retaliation claim. The only evidence before the

district court regarding Cyril’s alleged retaliation was Sealey’s general allegation

that he was confined in the SHU as a result of Cyril’s retaliatory actions. Cyril’s

affidavit, submitted in support of her motion for summary judgment, stated that she

never wrote a disciplinary report on Sealey and that he was not placed in the SHU.

Although neither we nor the district court may engage in credibility determinations

in evaluating a motion for summary judgment, Latimer, 601 F.3d at 1237,

Sealey, as the nonmoving party, “must present evidence beyond the pleadings

showing that a reasonable jury could find in [his] favor” in order to survive

summary judgment, Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)

(quotation omitted). By failing to contest Cyril’s affidavit or to provide any

additional evidence in support of his general allegation of retaliation, Sealey did

not raise a genuine issue of material fact as to whether Cyril took any adverse

We note, however, that had Sealey exhausted this claim through FCI Miami’s 3

administrative grievance procedure, Bither would still be entitled to summary judgment. Sealey

has not disputed evidence that Bither was not employed at FCI Miami at the time that he was

alleged to have engaged in retaliation and therefore failed to raise a genuine issue of material

fact as to this claim. See Mosley, 532 F.3d at 1276. 

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action against him. Accordingly, the district court did not err in granting Cyril

summary judgment on Sealey’s retaliation claim.

II. Deliberate Indifference to a Serious Medical Need

Sealey’s second claim is that defendants Cyril, Pastrana, and Monserrate

violated his Eighth Amendment rights by failing to attend to his medical needs.

Deliberate indifference to an inmate’s serious medical needs violates the Eighth

Amendment’s prohibition against cruel and unusual punishment. Estelle v.

Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291 (1976). However, not every claim

by a prisoner that he has not received adequate medical treatment will state an

Eighth Amendment violation. Id. at 105, 97 S. Ct. at 291. To state such a claim,

the plaintiff must demonstrate both (1) an objectively serious medical need and (2)

prison officials’ subjective deliberate indifference to that need. Farrow, 320 F.3d

at 1243.

Regarding the objective inquiry, 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. (quotation omitted). In addition, the need must be “one that, if left unattended,

poses a substantial risk of serious harm.” Id. (quotation and alterations omitted).

Regarding the subjective inquiry, “an official acts with deliberate indifference

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when he knows that an inmate is in serious need of medical care, but he fails or

refuses to obtain medical treatment for the inmate.” Id. at 1246 (quotation

omitted). “Even where medical care is ultimately provided, a prison official may

nonetheless act with deliberate indifference by delaying the treatment of serious

medical needs, . . . though the reason for the delay and the nature of the medical

need is relevant in determining what type of delay is constitutionally intolerable.”

McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999); see also Farrow, 320

F.3d at 1246–47 (holding that a prison dentist’s 15-month delay in procuring

dentures for a prisoner without reasonable explanation created a jury question as to

whether deliberate indifference occurred).

Applying these standards, we conclude that Sealey failed to raise a genuine

issue of material fact on all three of his deliberate indifference claims. With

respect to his claim against Cyril, Sealey generally alleged that Cyril denied him

medical attention by ordering him to leave when he appeared at regular sick call on

November 18, 2008. Cyril’s sworn declaration in support of her motion for

summary judgment stated that she reviewed Sealey’s medical records that day,

noted that he was already on a chronic care list for his foot condition, and directed

him to return to the clinic during regular chronic care hours for follow-up

treatment. Cyril stated that she asked Sealey to leave the clinic after he became

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“angry and verbally abusive.” Sealey did not dispute Cyril’s description of the

incident in his response to her motion for summary judgment and did not submit

any additional supporting evidence to demonstrate that Cyril failed or refused to

obtain him medical treatment. See Farrow, 320 F.3d at 1246. He thus failed to

“present evidence beyond the pleadings showing that a reasonable jury could find

in [his] favor,” Shiver, 549 F.3d at 1343, and the district court did not err in

granting Cyril summary judgment on Sealey’s deliberate indifference claim.

With respect to Sealey’s deliberate indifference claim against Warden

Pastrana, it is undisputed that Pastrana is not a medical professional, nor was he

directly involved in Sealey’s medical care. Thus, for Pastrana to be liable under

the Eighth Amendment for deliberate indifference to Sealey’s serious medical

need, Sealey must establish that Pastrana was responsible for his constitutional

deprivation in a supervisory capacity. When alleging deliberate

indifference—medical or otherwise—against a supervisor, a prisoner must show

either that (a) the supervisor personally participated in the alleged constitutional

deprivation or (b) there is a causal connection between the supervisor’s actions and

the alleged constitutional deprivation. Matthews v. Crosby, 480 F.3d 1265, 1270

(11th Cir. 2007). A causal connection may be established by showing that: (i) the

supervisor was on notice of a “history of widespread abuse” of constitutional

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rights, but failed to take corrective action; (ii) the supervisor had a policy in place

that condoned the alleged constitutional deprivation; or (iii) the supervisor directed

subordinates to act unlawfully or knew that subordinates would act unlawfully and

failed to stop them from doing so. Id.

Sealey failed to introduce any evidence either of Pastrana’s personal

participation in his alleged constitutional deprivation or a causal connection

between Pastrana’s actions and this deprivation. Although Pastrana admitted in his

sworn declaration that he was familiar with Sealey and his medical issues, the only

record evidence regarding Pastrana’s involvement in Sealey’s medical treatment is

a response to Sealey’s request for an administrative remedy, dated April 11, 2008.

This document demonstrates that far from failing to take corrective action or

failing to stop his subordinates from neglecting Sealey’s medical needs, see id. at

1270, Pastrana and his staff were able to secure a follow-up appointment with a

podiatrist to ensure a proper fit for Sealey’s requested leg brace. Nor is there any

evidence of record that Pastrana had policies in place that condoned deliberate

indifference to Sealey’s medical needs. See id. Accordingly, the district court did

not err in granting summary judgment to Pastrana on Sealey’s deliberate

indifference claim.

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Lastly, Sealey failed to establish a genuine issue of material fact on his

deliberate indifference claim against Dr. Monseratte. We agree with the district

court that given the relatively short time period in which medical professionals

acknowledged that Sealey’s degenerative conditions required medical intervention,

Sealey did have a serious medical need. See Farrow, 320 F.3d at 1244–45.

Further, the one-year delay in providing Sealey with the appropriate footwear,

during which he suffered ongoing pain, and the fact that he never received surgery

for his degenerative hip condition could amount to deliberate indifference. See id.

at 1246–47.

As the Clinical Director at FCI Miami, Monserrate admitted to knowing the

full extent of Sealey’s medical conditions and to being responsible for the medical

decisions related to his care. However, the record does not contain any evidence

that Monserrate personally failed or refused to provide Sealey with medical

treatment or was responsible for any delay in or denial of the provision of such

treatment. To the contrary, the uncontested evidence demonstrates that Monserrate

saw Sealey regularly, at which time he identified his conditions and treated them

with a lower bunk assignment and various pain medications, ordered orthotic

inserts, requested a surgical transfer, and referred Sealey to specialists who

prescribed special shoes. The record also demonstrates that it was the BOP

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committee, not Monserrate, that was ultimately responsible for the denial of

Sealey’s hip surgery and the significant delay in approving the request for

orthotics. Sealey did not provide any evidence to the contrary, and therefore

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failed to raise a genuine issue of material fact as to Monserrate’s deliberate

indifference to his serious medical needs. Accordingly, we hold that the district

court did not err in granting Monserrate summary judgment on Sealey’s deliberate

indifference claim.

AFFIRMED.

Insofar as the delays in Sealey’s treatment resulted from decisions at the BOP 4

level, we note that Sealey may have been able to state a claim against other officials for their

deliberate indifference. The district court acknowledged as much by granting Sealey leave to

amend his complaint so as to name the responsible parties. However, by appealing the district

court’s order without amending his complaint, Sealey waived that right. See Schuurman v.

Motor Vessel Betty K V, 798 F.2d 442, 445 (11th Cir. 1986) (holding that a plaintiff who chooses

to appeal before the expiration of the time allowed for amendment waives the right to later

amend the complaint).

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