Truss v. Thomas et al (INMATE 1)

Filing 36

OPINION. Signed by Honorable Judge Myron H. Thompson on 9/27/2012. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

LEARONARDO TRUSS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
WILLIE THOMAS, et al.,
Defendants.

CIVIL ACTION. NO.
2:09cv894-MHT
(WO)

OPINION
Plaintiff Learonardo Truss in this 42 U.S.C. § 1983
action

is

an

inmate

in

the

Alabama

prison

system

incarcerated at the Elmore Correctional Facility (ECF).
He complains that three defendants (ECF Warden Willie
Thomas and ECF Correctional Officers Charles McKee and
Willie Burton) violated his Eighth Amendment rights by
requiring him to get a haircut and thereby exposing him
to the risk of disease. Truss writes: “My complaint is
against a prison rule about getting your hair cut, it’s
unconstitutional, and a danger[]

to my health from blood

to blood infectious diseases.” Doc. # 1.

Truss seeks

only injunctive relief. The court has jurisdiction over
this case pursuant to its federal-question jurisdiction.
See 28 U.S.C. § 1331.
In accordance with the orders of the court, the
defendants filed an answer to the complaint and a special
report.

Truss was allowed the opportunity to respond to

the special report, and he has done so.1

In the order

affording Truss the opportunity to respond, the court
also informed him that at an appropriate time the court
may treat the special report as a Fed.R.Civ.P. 56 motion
for summary judgment; the court also informed Truss about
the proper manner in which to respond to such a motion.
The court now concludes it is appropriate to proceed
with resolution of the case on the motion for summary
judgment and, for the reasons below, concludes that the
motion should be granted.
1. Truss filed an untimely response and styled the
response as a motion to amend. The court denied the
motion to amend; however, the court construed the
response as a motion for leave to submit a response to
the special report; ordered that it be filed as such; and
granted that motion. See Doc. ## 18, 19, and 20.
2

I.

THE SUMMARY-JUDGMENT STANDARD

“Summary judgment is appropriate ‘if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show there
is no genuine [dispute] as to any material fact and that
the moving party is entitled to judgment as a matter of
law.’”2

Greenberg v. BellSouth Telecomm., Inc., 498 F.3d

1258, 1263 (11th

Cir. 2007) (per curiam) (citation

omitted); see also Fed.R.Civ.P. 56(a) (“The court shall
grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”).

The party

moving for summary judgment “always bears the initial
responsibility of informing the district court of the
basis for its motion, and identifying those portions of
the [record, including pleadings, discovery materials and

2. Effective December 1, 2010, the language of Rule
56(a) was amended. The word “dispute” replaced the word
“issue” to “better reflect[] the focus of a summaryjudgment determination.”
Fed.R.Civ.P. 56(a), Advisory
Committee Notes, 2010 Amendments.
3

affidavits], which it believes demonstrate the absence of
a genuine [dispute] of material fact.”
Catrett, 477 U.S. 317, 323 (1986).
this

burden

by

presenting

Celotex Corp. v.

The movant may meet

evidence

which

would

be

admissible at trial indicating there is no dispute of
material fact or by showing that the nonmoving party has
failed to present evidence in support of some element of
its case on which it bears the ultimate burden of proof.
Id. at 322-324.
Once the movant meets his evidentiary burden and
demonstrates the absence of a genuine dispute of material
fact,

the

establish,

burden
with

shifts

to

appropriate

the

non-moving

evidence

party

beyond

to
the

pleadings, that a genuine dispute material to his case
exists.

Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991); Celotex, 477 U.S. at 324; see also
Fed.R.Civ.P. 56(c) (“A party asserting that a fact cannot
be or is genuinely disputed must be support the assertion
by: (A) citing to particular parts of materials in the

4

record, including depositions, documents, electronically
stored

information,

affidavits

or

declarations,

stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other
materials; or (B) showing that the materials cited do not
establish the absence or presence of a genuine dispute,
or

that

an

adverse

party

cannot

evidence to support the fact.”).

produce

admissible

A genuine dispute of

material fact exists when the non-moving party produces
evidence that would allow a reasonable fact-finder to
return a verdict in his favor.

Greenberg, 498 F.3d at

1263.
In civil actions filed by inmates, federal courts
“must distinguish between evidence of
disputed facts and disputed matters of
professional judgment.
In respect to
the latter, our inferences must accord
deference to the views of prison
authorities.
Unless a prisoner can
point to sufficient evidence regarding
such issues of judgment to allow him to
prevail on the merits, he cannot prevail
at the summary judgment stage.”

5

Beard

v.

Banks,

citation

548

U.S.

omitted).

defendant’s

521,

530

(2006)

Consequently,

properly

supported

to

motion

(internal
survive

for

a

summary

judgment, a plaintiff is required to produce “sufficient
[favorable] evidence” which would be admissible at trial
supporting
Anderson
(1986).

her

v.

claims

Liberty

of

constitutional

Lobby,

Inc.,

477

violations.

U.S.

242,

249

“If the evidence [on which the non-moving party

relies] is merely colorable ... or is not significantly
probative ... summary judgment may be granted.”
249-250.

In

other

words,

“[a]

mere

Id. at

‘scintilla’

of

evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the
[trier of fact] could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir.
1990).

Conclusory

allegations

based

on

subjective

beliefs are likewise insufficient to create a genuine
issue of material fact and, therefore, do not suffice to
oppose a motion for summary judgment.

6

Waddell v. Valley

Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th
Cir. 2001); see also Holifield v. Reno, 115 F.3d 1555,
1564

n.6

(11th

Cir.

1997)

(plaintiff’s

“conclusory

assertions ..., in the absence of [admissible] supporting
evidence,

are

insufficient

to

withstand

summary

judgment”); Harris v. Ostrout, 65 F.3d 912, 916 (11th
Cir. 1995) (grant of summary judgment appropriate where
inmate

produces

allegations”

nothing

challenging

beyond

“his

actions

of

own
the

conclusory

defendants);

Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984)
(“mere verification of party’s own conclusory allegations
is not sufficient to oppose summary judgment”).
Hence, when a plaintiff fails to set forth specific
facts

supported

by

requisite

evidence

sufficient

to

establish the existence of an element essential to his
case and on which the plaintiff will bear the burden of
proof at trial, summary judgment is due to be granted in
favor of the moving party.

Celotex, 477 U.S. at 322

(“[F]ailure of proof concerning an essential element of

7

the nonmoving party’s case necessarily renders all other
facts

immaterial.”);

Barnes

v.

Southwest

Forest

Industries, Inc., 814 F.2d 607, 609 (11th Cir. 1987) (if
on

any

part

of

the

prima-facie

case

the

plaintiff

presents insufficient evidence to require submission of
the case to the trier of fact, granting of summary
judgment is appropriate).
For

summary-judgment

purposes,

involving material facts are relevant.

only

disputes

United States v.

One Piece of Real Property Located at 5800 SW 74th
Avenue, Miami, Florida, 363 F.3d 1099, 1101 (11th Cir.
2004).

What is material is determined by the substantive
Anderson, 477 U.S. at 248;

law applicable to the case.
see

also

Lofton

v.

Secretary

of

the

Department

of

Children and Family Services, 358 F.3d 804, 809 (11th
Cir. 2004) (“Only factual disputes that are material
under

the

preclude

substantive
entry

of

law

summary

governing

the

judgment.”).

case

will

“The

mere

existence of some factual dispute will not defeat summary

8

judgment unless that factual dispute is material to an
issue affecting the outcome of the case.”

McCormick v.

City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.
2003) (citation omitted).

To demonstrate a genuine issue

of material fact, the party opposing summary judgment
“must

do

more

than

simply

show

that

there

is

metaphysical doubt as to the material facts....

some
Where

the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is
no ‘genuine issue for trial.’”

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In

cases

which

is

reduced

to

where

admissible

the
on

evidence

its

face

before

or

the

which

court

can

be

admissible form indicates that there is no genuine issue
of material fact and that the party moving for summary
judgment is entitled to it as a matter of law, summary
judgment
(summary

is

proper.

judgment

Celotex,
appropriate

477

U.S.
where

at

323-324

pleadings,

evidentiary materials and affidavits before the court

9

show there is no genuine issue as to a requisite material
fact); Waddell, 276 F.3d at 1279 (to establish a genuine
issue of material fact, the non-moving party must produce
evidence such that a reasonable trier of fact could
return a verdict in his favor).
Although factual inferences must be viewed in a light
most

favorable

to

the

non-moving

party

and

pro

se

complaints are entitled to liberal interpretation by the
courts, a pro se litigant does not escape the burden of
establishing by sufficient evidence a genuine issue of
material fact.

Beard, 548 U.S. at 525, 126 S.Ct. at

2576; Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.
1990).

Thus, a plaintiff’s pro se status alone does not

mandate this court’s disregard of elementary principles
of production and proof in a civil case.

10

II. DISCUSSION
It is undisputed that ECF has and enforces a standard
operating procedure (SOP) that requires that inmates
maintain their hair:
“Inmates will keep their hair clean and
neatly trimmed. Their hair cannot extend
over their ears or shirt collar. Their
hair cannot be packed or plaited, and
fades are not allowed. Their sideburns
cannot extend beyond the middle of their
ear;
and
designer,
pencil-thin,
pencil-drawn, or thinned sideburns are
not allowed.”
ECF SOP 522, III.B.2.
Truss complains that there are blood-borne diseases
carried by other inmates and that compelling him to get
his hair cut violates his Eighth Amendment right because
hair clippers used by barbers are not properly sanitized.
According

to

him,

“The

hair

clipper

is

a

dangerous

instrument when they have blood or some other substance
on them.

That could cause death or physical injury.”

Doc. # 1, at 8.

11

The affidavits submitted by the defendants show that
inmate barbers are provided sanitizing agents and are
instructed to clean and sanitize the clippers used to cut
hair

after

each

haircut;

additionally,

inmates

are

instructed to use a sanitizing solution on their scalps
before a haircut.
In response to the motion for summary judgment, Truss
puts forward several factual contentions.

First, he

states that the inmate barber who cut his hair “did not
properly use ‘the clipper side’” of the hair clippers.
Truss

then

cites

to

a

document

he

calls

“universal

precautions and recommendation for salon professionals.”
This document apparently cautions that sharp objects pose
the greatest risk for exposure to disease and therefore
require

use

cleaning.

of

“hospital

level

disinfectant”

Truss then states,

“Plaintiff has 132 names of the inmates
of the Elmore Correctional Facility,
that has not never saw inmate barber use
any, ‘clipper side’ or other sanitizing
or sterilization on the hair clippers.”

12

for

Doc. # 18, at 4. Thus, Truss contends the defendants
violated

his

constitutional

“exercise

due

care

by

the

infectious hair clipper[s]

rights
use

of

by

failing

unsanitary

to cut his hair.”

to

blood

Id. at 7.

Section 1983 provides a cause of action for anyone
subjected “to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws” by a
person acting under color of state law. 42 U.S.C. § 1983.
The Eighth Amendment imposes a duty on prison officials
to provide “humane conditions of confinement” and to
“take reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
“A

prison

official's

‘deliberate

indifference’

to

a

substantial risk of serious harm to an inmate violates
the Eighth Amendment,” id. at 828, and thus gives rise to
a § 1983 claim.

And, in this particular instance, it is

undeniable that the Eighth Amendment protects against
future harm to inmates.

Helling v. McKinney, 509 U.S.

25, 32 (1993).

13

To survive summary judgment on a § 1983 claim, a
plaintiff must “produce sufficient evidence of (1) a
substantial risk of serious harm; (2) the defendants'
deliberate indifference to that risk; and (3) causation.”
Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th Cir.
1995).

The first element is an objective standard.

Hudson v. McMillian, 503 U.S. 1, 8–9, (1992).

The second

element,

“deliberate

a

subjective

standard

that

“(1)

subjective

has

indifference,”

three

components:

is

knowledge of a risk of serious harm; (2) disregard of
that

risk;

(3)

by

conduct

that

is

more

than

mere

negligence.” McElligott v. Foley, 182 F.3d 1248, 1254
(11th Cir. 1999).

As to this element,

“a prison official cannot be found
liable under the Eighth Amendment for
denying an inmate humane conditions of
confinement unless the official knows of
and disregards an excessive risk to
inmate health or safety; the official
must both be aware of facts from which
the inference could be drawn that a
substantial risk of serious harm exists,
and he must also draw the inference.”
Farmer, 511 U.S. at 837.
14

With respect to the first element (the objective
standard), the court will assume without deciding that
the use of barbering tools that have not been sterilized
or

that

have

been

improperly

sterilized

creates

a

substantially serious risk of future harm that meets the
objective standard.

See, e.g., Johnson v. Epps, ___

F.3rd ___, 2012 WL 2360133 (5th Cir. June 21, 2012)
(allegation that prison barbers were required to use and
reuse

clippers

and

razors

contaminated

with

blood

sufficient to state a claim under the Eighth Amendment).
However, Truss’s claim falters on the subjective
standard because Truss has failed to present evidence
sufficient to show that any of the three defendants had
knowledge of a risk of serious harm and disregarded that
risk.

First, it is undisputed that inmate barbers are

required to sterilize the instruments that they use to
cut inmates’ hair.

There is no evidence showing that

Warden Thomas had any knowledge about any problems with

15

sterilization

generally

or

with

respect

to

Truss’s

haircut.
This brings the court, then, to an explication of
what Truss says (or does not say) about the knowledge of
Correctional Officers McKee and Burton. In his complaint,
Truss states that getting his hair cut creates danger
“from blood to blood infectious diseases.”
4.

Doc. # 1, at

He then characterizes the hair clippers that are used

as “blood infected.”

Id. at 5. When Truss was escorted

to Officer McKee’s office to discuss Truss’s reluctance
to get a haircut, Truss again characterized the barbering
tools as “blood infected hair clippers.”

Id. at 7.

All

of this took place before Truss was taken to a barber,
and notably Truss does not state that the hair clippers
used to cut his hair had blood on them or were not
sterilized.

Truss does state:

“The hair clippers [are]

... dangerous instruments when they have blood or some
other substance on them.
physical injury.”

That could cause death or

Id. at 8.

16

And that, of course, is

precisely

what

the

court

has

already

observed

with

respect to the objective element of the Truss’s Eighth
Amendment claim, but that fact does not satisfy the
knowledge-and-indifference subjective element.
Truss’s

response

to

the

defendants’

motion

summary judgment suffers the same deficiencies.

for

Truss

claims that he brought this action because of “the use of
unsanitary blood infected hair clippers to cut his hair.
Doc. # 18, at 1.

Truss argues factually that the inmate

barber improperly used the hair clippers after the barber
was told by one of the defendants to use the clippers
correctly.

Truss states: “The defendant, W.M. Burks,

III told inmate ... [barber] to use the ‘clipper side’
before and after inmate Truss’s haircut, inmate . . .
[barber] did not properly use the ‘clipper side.’” Id. at
3.

Obviously, the barber’s misuse of the clippers is not

laudable,

but

what

is

important

here

is

that

Truss

provides no evidence to show that any of the three

17

defendants knew either that the clippers were misused or,
more importantly, that the clippers were not sanitized.
Perhaps

in

an

attempt

to

shore

up

the

lack

of

evidence about the subjective element of his claim, Truss
states that he has “132 names of the inmates of the
Elmore Correctional Facility, that ... never saw ... any
... institutional barber use any ‘clipper side’ or any
other sanitizing or sterilization on the hair clipper.”
Id.

at

4.

However,

that

he

has

evidence

in

his

possession is not sufficient, and Truss does not explain
why he could not present an affidavit from some of those
inmates.

More interestingly, Truss does not state what

knowledge he had about sterilization before his own hair
was cut.
In summary, the court concludes that Truss has failed
to

make

the

requisite

showing

that

the

defendant

correctional officers had knowledge of a risk of serious
harm and disregarded that risk.

Without dispute, the

evidence before the court does show that the prison

18

system requires sterilization of barbering equipment, see
Helling, supra (existence of a policy may constitute
evidence that prison officials were not deliberately
indifferent to the risks posed by exposure to disease),
and, by Truss’s own admission, at least one of the
defendants insisted on proper barbering techniques.

The

defendants are entitled to summary judgment on Truss’s
Eighth Amendment claim.
In his response to the defendants’ motion for summary
judgment, Truss attempts to raise claims for the first
time, including claims that the defendants violated one
of their own regulations, Doc. # 18, at 14, and also
opened

his

legal

mail.

Id.

at

18.

"At

the

summary

judgment stage, the proper procedure for plaintiffs to
assert

a

new

claim

is

to

amend

the

complaint

in

accordance with Fed.R.Civ.P. 15(a). A plaintiff may not
amend

... [his] complaint through argument in a brief

opposing summary judgment." Gilmour v. Gates, McDonald &
Co., 382 F.3d 1312, 1315 (11th Cir. 2004).

19

These claims

are

not

properly

before

the

court

and

will

not

be

considered. The defendants are therefore entitled to
summary judgment on Truss’s Eighth Amendment claim.
An appropriate judgment will be entered.
DONE, this the 27th day of September, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE