Brown v. Hughes, 89-3166

• Decision Date: 01 March 1990
• Docket Number: No. 89-3166,89-3166
• Parties: Arlington Leon BROWN, # 036932, Plaintiff-Appellant, v. Sgt. Chris HUGHES, Chief Deputy Charles Tompkins, etc., et al., Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1533

894 F.2d 1533

16 Fed.R.Serv.3d 118

Arlington Leon BROWN, # 036932, Plaintiff-Appellant, v. Sgt. Chris HUGHES, Chief Deputy Charles Tompkins, etc., et al., Defendants-Appellees.

No. 89-3166

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

March 1, 1990.

Gayle Smith Swedmark, Tallahassee, Fla., for defendants appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT and EDMONDSON, Circuit Judges. ^*

PER CURIAM:

Arlington Leon Brown, an inmate of Florida's state prison system, filed this civil rights action under 42 U.S.C. Sec. 1983 alleging that his constitutional rights were violated when the defendants failed to protect him from being attacked by another inmate, deliberately denied him medical care, and threw out some of his personal effects. The complaint named five state employees as defendants: correctional officers Chris Hughes and Charles Tompkins, sheriff Charlie Rhoden, and nurses Sue Cundiff and Cheryl Daniels. Following discovery and a pre-trial conference, both sides moved for summary judgment. The district court denied Brown's motion for summary judgment and granted summary judgment for all defendants. Brown now appeals.

I. Background

In considering a motion for summary judgment, the district court must examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, in the light most favorable to the party opposing the motion. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The court must not resolve factual disputes by weighing conflicting evidence. Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986). An order granting summary judgment is not discretionary and will be upheld only if everything in the record indicates that there is no genuine dispute over the material facts, and that the moving party is entitled to judgment as a matter of law. Tippens, 805 F.2d at 952 (citing Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir.1980)). Accordingly, the following account of events is based primarily on Brown's offers of proof in his sworn affidavits. ¹

On May 31, 1987, Arlington Brown was an inmate of the Hamilton County Jail in Jasper, Florida. That morning he went to speak to Sergeant Chris Hughes about a "racial problem" in his cell. As he spoke to Hughes the officer appeared to ignore him. Brown was then told that he would have to see the Captain if he wanted a cell change. ² Hughes sat down at the booking desk and began working on the computer there, and Brown returned to his cell.

Shortly after 10:30 a.m. Brown was attacked from behind by another inmate, and a fight ensued. During the scuffle Brown suffered two broken bones in his left foot and a cut under his right eye. When Sergeant Hughes arrived he told Brown to pack up his belongings so that he could be moved to an isolation cell. The inmate with whom Brown had fought was not placed in isolation until later that evening, after Hughes had gone off duty.

As Brown was walking to the isolation cell, his foot began to hurt and swell. Once in the cell, Brown hopped up to the bars and told Sergeant Hughes that his foot felt as though it was broken; Hughes promised to send someone to look at it. ³ When nobody came, Brown asked a trusty to get Hughes. It was not until after 3:00 p.m., however, when Sergeant Hughes' shift had ended, that Brown was able to get the attention of another correctional officer and repeat his request for medical care.

Despite a written jail policy that there should be a licensed nurse on duty at all times, there was no nurse at the jail that day. Instead, Brown was taken to Hamilton County Memorial Hospital. By the time a doctor saw Brown (sometime after 4:30 p.m.), roughly six hours had elapsed since the fight, and Brown's foot had become so swollen that the medical staff could not put a cast on it. Brown had to wait eleven days before the inflammation abated to the point that he could be fitted with a cast.

Finally, Brown claims that on August 14 Sergeant Hughes came into his cell, yelled at him, and threw out some of his property that had been lying on the floor. According to Brown, Hughes did not say anything to the other inmates in the cell who also had some of their belongings on the floor. Brown was the only black inmate in the cell.

Eleven days later, Brown initiated this action by filing a civil rights complaint form. Sixteen months of motions and discovery followed, after which the parties moved for summary judgment. The district court granted summary judgment for the defendants on three grounds. First, the district court held that Brown's statement to Sergeant Hughes that there was a problem in his cell was insufficient as a matter of law to require immediate protective action on the part of Hughes, because there was no reason to believe that Brown was in imminent danger. Second, the court found that any delay in providing medical assistance to Brown did not rise to the level of a constitutional tort, since Brown was transported to the hospital within hours of sustaining his injury. Finally, the court concluded from the record that the defendants were not deliberately indifferent to Brown's medical needs, since they provided treatment on the day of the injury and thereafter. The district court did not address Brown's claim that his property had been destroyed.

II. Protection

We agree with the district court that the defendants cannot be held liable under Sec. 1983 for failing to protect Brown. When officials become aware of a threat to an inmate's health and safety, the eighth amendment's proscription against cruel and unusual punishment imposes a duty to provide reasonable protection. Hopkins v. Britton, 742 F.2d 1308, 1310 (11th Cir.1984); Gullatte v. Potts, 654 F.2d 1007, 1012 (5th Cir. Unit B Aug. 1981). Merely negligent failure to protect an inmate from attack does not justify liability under section 1983, however. Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). Prison officials must have been deliberately indifferent to a known danger before we can say that their failure to intervene offended "evolving standards of decency," thereby rising to the level of a constitutional tort. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976); Hopkins, 742 F.2d at 1310. The known risk of injury must be " 'a strong likelihood, rather than a mere possibility' " before a guard's failure to act can constitute deliberate indifference. Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir.1989) (quoting State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.1983)); see Meriwether v. Faulkner, 821 F.2d 408, 417 (7th Cir.1987); Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir.1988).

Here, Brown has failed to offer sufficient evidence that any defendant was aware or should have been aware of a strong likelihood that Brown would be assaulted. The only warning of trouble was Brown's statement to Sergeant Hughes that there was a "racial problem" in his cell. Brown did not say that he had been threatened, or that a fight was imminent, or that he feared an attack, nor is there evidence that racial tensions in the jail frequently resulted in violence. After Sergeant Hughes indicated that he was not going to do anything about the problem right away, Brown apparently returned to his cell voluntarily. In retrospect and with all the benefit of hindsight, we know today that a prompt response by Hughes to Brown's request for a transfer would have prevented Brown's injuries. Nevertheless, we cannot say that Sergeant Hughes' refusal to act under the circumstances constituted deliberate indifference to Brown's safety and rendered his confinement cruel or unusual.

III. Medical Assistance

The district court erred, however, when it held that any delay in giving medical treatment to Brown was not prolonged enough to violate the Constitution, and when it concluded from the record that the defendants were not deliberately indifferent to Brown's need for medical attention.

A. Constitutionally Cognizable Injury

Deliberate indifference to a prisoner's serious medical needs violates the eighth amendment because denying or delaying medical treatment is tantamount to "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. at 104 97 S.Ct. at 291; Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir.1988). In their motion for summary judgment, defendants do not dispute that a broken foot can be a serious and painful injury. ⁴ With this type of injury, it may be that deliberately indifferent delay, no matter how brief, would render defendants liable as if they had inflicted the pain themselves. Deliberately inflicted pain, as with an electric cattle prod, does not become unimportant and unactionable under the eighth amendment simply because the pain produced is only momentary. Even if we were to recognize as de minimus delays of a few seconds or minutes, a deliberate delay on the order of hours in providing care for a serious and painful broken foot is sufficient to state a constitutional claim. See Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir.1985) (two and a half hour delay in treatment for a bleeding cut under the eye held actionable); Hughes v. Noble, 295 F.2d 495 (5th Cir.1961) (thirteen hour delay for broken and dislocated cervical vertebrae).

B. Deliberate Indifference

In order for Brown to avoid summary judgment against him, he must offer some evidence that prison officials were deliberately indifferent to his injuries. A prison guard's intentional denial or delay of medical care is evidence of deliberate indifference. Estelle v. Gamble, 429 U.S. at 104, 97 S.Ct. at 291. When prison guards ignore without explanation a prisoner's serious medical condition that is known or obvious to them, the trier of...