Conraad Hoever v. T. Kriss

Filing

Opinion issued by court as to Appellant Conraad L Hoever. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 08/10/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12108
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-00372-WS-CAS

CONRAAD L HOEVER,
Plaintiff-Appellant,
versus
P. BELLEIS,
Chief of Security Colonel,
J HALL,
Deputy Chief of Security Major,
K. HAMPTON,
Group Supervisor Sergeant,
J KELLEY,
Group Supervisor,
T. KRISS,
Correction Officer,
W MESSER,
Officer in Charge Captain
J SERRATO,
Correction Officer,
Defendants-Appellees.

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________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 10, 2017)
Before WILLIAM PRYOR, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Conraad Hoever, a Florida prisoner, appeals pro se the partial dismissal and
partial summary judgment against his complaint about the violation of his civil
rights by prison officers who placed him in disciplinary confinement for 20 days
and denied him access to mail and religious materials. 42 U.S.C. § 1983. The
district court dismissed Hoever’s request for monetary damages and his complaints
that he was disciplined without due process; that officers confiscated materials he
needed to “write his family” and “the courts,” in violation of his rights to free
speech and association and to access the courts under the First Amendment; that he
was denied lunch, in violation of the Eighth Amendment prohibition against cruel
punishment; and that Colonel Belleis and Deputy Chief Hall were liable as
supervisors for denying grievances about their subordinates’ conduct. Later, the
district court entered summary judgment against Hoever’s complaint that his
retention of a Bible in Spanish but the denial of a Bible in English and devotional

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materials during his confinement violated his rights under the Free Exercise Clause
of the First Amendment. We affirm.
We review de novo the dismissal of a complaint for failure to state a claim
for relief and a summary judgment. Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
2003) (failure to state a claim); Midrash Sephardi, Inc. v. Town of Surfside, 366
F.3d 1214, 1223 (11th Cir. 2004) (summary judgment). We construe liberally pro
se pleadings, Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003), accept as true
the allegations in the complaint, and draw all reasonable inferences in favor of the
plaintiff, Hill 321 F.3d at 1335; Midrash, 366 F.3d at 1223.
Hoever failed to state a claim that the officers violated his right to due
process. A prisoner is entitled to due process only when a change in his conditions
of confinement is so severe that it lengthens his term of imprisonment or when he
is deprived of a benefit ordinarily bestowed on inmates and the deprivation
“imposes atypical and significant hardship . . . in relation to the ordinary incidents
of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 487 (1995). Hoever was
placed in disciplinary confinement for 20 days for disrespecting an officer, was
deprived of his personal and legal mail, and lost eligibility for some prison
privileges, but “[d]iscipline by prison officials in response to . . . [Hoever’s]
misconduct falls within the expected perimeters of” prison life and did not
implicate the liberty interests protected by the Due Process Clause, id. at 485. See
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Rodgers v. Singletary, 142 F.3d 1252, 1252–53 (11th Cir. 1998) (confinement for
two months pending the resolution of disciplinary charges did not amount to a
prisoner being “deprived of a constitutionally protected liberty interest”); Chandler
v. Baird, 926 F.2d 1057, 1060 (11th Cir. 1991) (“[T]he Due Process Clause does
not directly protect an inmate from changes in the conditions of his confinement,
. . . as long as the condition to which the prisoner is subjected is not otherwise
violative of the Constitution or outside the sentence imposed upon him . . . .”).
Hoever alleged that he was “denied [his] rights to call witnesses in his defense
[during his discipline hearing] and punish[ed] . . . without . . . [receiving] proper
process,” but he did not have “a protected liberty interest that . . . entitle[d] him to
. . . procedural protections,” see Sandin, 515 U.S. at 487.
Hoever also failed to state a claim that Officer Serrato infringed on Hoever’s
rights to free speech and to access the courts. Hoever alleged that Officers Serrato
and Kriss inventoried and stored Hoever’s personal and legal mail and that Hoever
later requested the materials from Kriss. No plausible inference could be drawn
from Serrato’s conduct that he intended to “chill[], inhibit[], or interfere[] with
[Hoever’s] ability to speak” or associate with his family, see Al-Amin v. Smith, 511
F.3d 1317, 1334 (11th Cir. 2008), or to “frustrate[] or impede[] [Hoever’s] efforts
to pursue a nonfrivolous legal claim,” see Bass v. Singletary, 143 F.3d 1442, 1445
(11th Cir. 1998).
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Hoever waived his right to contest the dismissal of his complaint that Kriss
interfered with his access to the courts. The district court dismissed Hoever’s
complaint for failure to allege an actual injury. See id. at 1445; see also Chandler,
926 F.2d 1063 (if “alleged deprivations are of a minor and short-lived nature and
do not implicate general policies” then “an inmate [must] articulate facts indicating
some prejudice such as being unable to do timely research on a legal problem or
being procedurally or substantively disadvantaged in the prosecution of a cause of
action”). The district court twice invited Hoever to “submit an amended complaint
. . . [containing] facts which would support []his [access to courts] claim,” but he
omitted that claim from his amended pleading. Hoever “waived [his] right to
complain about [the dismissal] . . . after . . . [foregoing] the opportunity to” present
additional allegations to support his claim. See Tamimi v. Howard Johnson Co.,
807 F.2d 1550, 1555 (11th Cir. 1987).
Hoever abandoned his complaint that Kriss infringed his right to free speech.
“An amended pleading supersedes the former pleading; the original pleading is
abandoned by the amendment, and is no longer a part of the pleader’s averments
against his adversary.” Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V
OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (internal quotation
marks and citation omitted). Although the two orders issued by the district court
informed Hoever that it had yet to rule on his “First Amendment claims for free
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speech and free exercise of religion,” Hoever addressed only the Free Exercise
Clause in his amended complaint. Because Hoever omitted the issue of free speech
from his amended complaint, that issue was “no longer a part of [his] averments
against [Kriss].” See id. We deem abandoned Hoever’s complaint about the
violation of his right to free speech. See id.
Hoever failed to state a plausible claim for relief based on the Eighth
Amendment. To prove a violation of the Eighth Amendment, Hoever had to
establish that “the condition he complain[ed] of [was] sufficiently serious to violate
the Eighth Amendment” such that it “pose[d] an unreasonable risk of serious
damage to his future health or safety” and that prison personnel were deliberately
indifferent to his condition. See Chandler v. Crosby, 379 F.3d 1278, 1289 (11th
Cir. 2004). Hoever alleged that the officers deprived Hoever of lunch. Hoever did
not assert that missing one meal worsened his health.
Hoever also failed to state a claim against Colonel Belleis and Deputy Chief
Hall. “[I]t is well established in this Circuit that supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates on the basis of
respondeat superior or vicarious liability.” Keith v. DeKalb Cty., Ga., 749 F.3d
1034, 1047 (11th Cir. 2014) (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th
Cir. 2003)). Liability attaches only if a supervisor “directly participated in the
unconstitutional conduct” or there is a causal connection between the supervisor’s
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actions and the alleged constitutional violation. See Cottone, 326 F.3d at 1360. To
prove a causal connection, Hoever had to establish that the supervisors’ “custom or
policy . . . resulted in deliberate indifference to constitutional rights,” or that a
reasonable inference exists that “the supervisor[s] directed [their] subordinates to
act unlawfully or knew that [they] would act unlawfully and failed to stop them
from doing so.” See id. Hoever failed to identify a policy that resulted in a
constitutional violation, and his allegation that the supervisors denied grievances
against their subordinates was insufficient to establish that the supervisors
instigated or encouraged unlawful conduct.
Hoever could not recover compensatory or punitive damages from Kriss.
Hoever waived any complaint that he had against Kriss in her official capacity
when, in response to the motion to dismiss, Hoever disclaimed “that he [was]
su[ing] Defendants in their official capacity for monetary damages.” After the
district court dismissed most of Hoever’s complaint, the only causes of action that
remained involved Kriss’s infringement on Hoever’s rights to free speech and to
the free exercise of religion. The Prison Litigation Reform Act bars a prisoner from
commencing a “civil action . . . for mental or emotional injury suffered while in
custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). Hoever
did not allege he suffered a physical injury because of Kriss’s constitutional
violations, so Hoever’s recovery was necessarily limited to nominal damages. See
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Harris v. Garner, 216 F.3d 970, 984–85 (11th Cir. 2000). Hoever argues that he
incurred a sinus injury when exposed to chemical agents while in disciplinary
confinement, but he challenged the conditions of his confinement on the ground it
violated his right to due process. Because no due process violation occurred,
Hoever was not entitled to any damages on the basis of his sinus injury.
Hoever failed to establish that Kriss violated his rights under the Free
Exercise Clause. To survive summary judgment, Hoever had to establish that Kriss
imposed a “substantial burden” on his religious practices. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 565 (1993) (“[o]ur cases
have established that [t]he free exercise inquiry asks whether government has
placed a substantial burden on the observation of a central religious belief or
practice” (internal quotation marks omitted)). Our definition of “substantial
burden” is derived from precedents interpreting the Religious Land Use and
Institutionalized Persons Act and the Religious Freedom Restoration Act, which
“provide greater protection for religious exercise than is available under the First
Amendment,” Holt v. Hobbs, 135 S. Ct. 853, 859–60 (2015). See Midrash, 366
F.3d at 1226–27 (discussing precedents of the United States Supreme Court and
this Court). Those precedents hold that a substantial burden occurs if the conduct
complained of “completely prevents the individual from engaging in religiously
mandated activity, or . . . requires participation in an activity prohibited by
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religion” and, at a minimum, must have “something more than an incidental effect
on religious exercise.” Id. at 1227; see also Thomas v. Review Bd. of Ind. Emp’t
Sec. Div., 450 U.S. 707, 717–18 (1981). Hoever’s deprivation of a Bible written in
English and devotional materials did not thwart his religious exercise. He testified
that, while in disciplinary confinement, he “prayed” and “quote[d] some [Bible]
verses [he] remembered.” Hoever later prepared an affidavit stating that “reading
[his] daily devotional and the [accompanying] Bible texts . . . is [his] spiritual
food” and he “compared” his failure to engage in his studies to “an abomination
and becoming a periah [sic] of the Christian faith.” Hoever’s averments established
that engaging in daily studies was beneficial, not mandatory. We cannot say that
the brief denial of Hoever’s study materials imposed a “substantial burden” on his
religious practice.
We AFFIRM the partial dismissal and partial summary judgment against
Hoever’s complaint.

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