               Case: 16-15637       Date Filed: 05/08/2018      Page: 1 of 10


                                                                  [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 16-15637
                              ________________________

                      D.C. Docket No. 5:12-cv-00153-WTH-PRL



JAY M. BLOCK,

                                                                  Plaintiff - Appellant,

                                            versus


A. POHLING, Sergeant
Marion Correctional Institution,

                                                                  Defendant - Appellee.
                              ________________________

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

                                       (May 8, 2018)

Before JILL PRYOR and HULL, Circuit Judges, and PROCTOR, * District Judge.



       *
       Honorable R. David Proctor, United States District Judge for the Northern District of
Alabama, sitting by designation.
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PER CURIAM:

      Jay M. Block was an inmate at the Marion Correctional Institution in Ocala,

Florida when Corrections Officer Robert Pohling made loud, derogatory

statements about Block’s homosexuality. These remarks, according to Block, led

Block to be raped and assaulted repeatedly by other inmates. Block filed a lawsuit

in federal court under 42 U.S.C. § 1983 alleging that Pohling violated the Eighth

Amendment through his deliberate indifference to a substantial risk of harm to

Block. Pohling moved for summary judgment on Block’s claim, and the district

court granted Pohling’s motion. Because Block cannot establish that Officer

Pohling caused his injuries, his § 1983 claim fails; we thus affirm the district court.

                               I.      BACKGROUND

      Block is an openly gay former inmate at the Marion Correctional Institution

in Ocala, Florida. After reporting to a number of prison officials that he had been

sexually harassed by another inmate, Block was placed in administrative

confinement on September 29, 2009. When he arrived in administrative custody,

Block was placed under the control of Pohling, a corrections officer. Upon his

arrival, Block met with Pohling and two other corrections officers. At that

meeting, Pohling called Block a “fruit, f*****, and a punk” in a loud voice. Doc.




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5 at 8. 1 Pohling also asked Block whether “he had ever jacked-off into a dirty

sock.” Id. Then Pohling asked Block if he was wearing a wire, expressing the

view that he, Pohling, “could be fired for how he had just spoken.” Id. Pohling’s

statements were loud enough that they could have been heard by other inmates

through the wire openings at face level of the nearby cell doors. 2 Communication

between cells is common at the Marion Correctional Institution, and from their

cells inmates can hear conversations and activity in the hallway.

        The following day, on September 30, 2009, inmate Timothy Hippolyte was

transferred to administrative confinement, and Pohling placed him in the cell with

Block. Hippolyte’s previous convictions for conduct that occurred in 2000

included lewd and lascivious indecent assault on a child and lewd and lascivious

battery on a child. When he was moved to Block’s unit, Hippolyte was serving a

sentence for failing to register as a sex offender. On his sentencing documents, he

was identified as a “violent felony offender of special concern.” Doc. 133-7 at 1.

In addition, Hippolyte had been punished for two infractions while in prison. The

first was for theft, and the second was for being disrespectful to a corrections

officer. The latter infraction led to his being placed in administrative confinement

with Block.

        1
            Citations to “Doc. #” refer to the numbered entries on the district court docket in this
case.
        2
       We note that Pohling denies making the statements Block attributes to him. But at
summary judgment, we must set forth Block’s version of events.
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      “Within moments” of being placed in Block’s cell, Hippolyte began

exposing himself repeatedly. Doc. 5 at 9. Hippolyte told Block that he had

engaged in “aggressive, assaultive, violent, and unprotected sex,” with other

inmates. Id. at 6-7. That night, Hippolyte approached Block, wrapped a bath

towel around his mouth and neck, pulled down his shorts, and raped him.

Hippolyte threatened Block that he must not seek help. Hippolyte repeatedly

assaulted Block over the following two days.

      Block was afraid to go to a corrections officer for help in light of Pohling’s

derogatory comments and because of “ongoing harassment” by Pohling and other

officers. Id. at 10. Through a nurse making rounds on October 5, 2009, Block

attempted to contact J.B. McFadin, a mental health specialist to whom he had

previously reported a sexual harassment incident, but the specialist never received

the message. On October 6, 2009, Block reported the assaults when he was taken

from his cell to a meeting room where he met with McFadin as part of a routine

visit. An incident report was prepared, and Block was not placed back in the cell

he shared with Hippolyte. A few days later, Pohling approached Block at shower

time and told him that if he “named any more officers or snitched further regarding

anything that was said or done to him while in Administrative Confinement . . .

[Pohling] would hurt [him] so bad he would find himself leaving the prison in a

wheelchair.” Id. at 12-13.


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      Block was sexually assaulted by an “unknown inmate” a few months later.

Id. at 13. The inmate was being transferred from another correctional facility to a

medical center, to which Block was also traveling. While Block and the unknown

inmate shared a vehicle to the medical center, the inmate exposed himself to Block

and attempted to force Block to perform oral sex on him.

      The report of an investigation conducted by prison officials reflects that

Block reported he was assaulted by multiple inmates. The report also notes that

Block is “homosexual,” “small in stature,” and “appears to be a very defenseless

individual.” Doc. 133-1 at 20. The report states that “[t]hese factors appear to be

the reason why he has been targetted [sic] by numerous inmates.” Id. As a result

of the assaults Block suffered in prison, he was diagnosed with post-traumatic

stress syndrome, anxiety, depression, complex rape trauma, aggravated startle

response, and bipolarity.

      Block filed a pro se complaint against Pohling in federal district court under

42 U.S.C. § 1983, arguing that Pohling violated his Eighth Amendment rights

through deliberate indifference to a substantial risk of harm. After filing his

complaint, Block requested that the magistrate judge appoint counsel to assist him

in conducting discovery, but the magistrate judge denied his request. Pohling

moved for summary judgment. The magistrate judge recommended granting

Pohling’s motion for summary judgment on the ground that Block had failed to


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show that there was a substantial risk of serious harm and that, even if he had

established such a risk, he had not shown that Pohling was deliberately indifferent

to that risk. The district court adopted the magistrate judge’s recommendation over

Block’s objections. This is Block’s appeal.

                        II.    STANDARD OF REVIEW

      We review a district court’s order granting summary judgment de novo.

Jones v. UPS Ground Freight, 683 F.3d 1283, 1291 (11th Cir. 2012). Summary

judgment is appropriate only where “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). We “tak[e] all of the facts in the record and draw[] all reasonable inferences

in the light most favorable to the non-moving party.” Peppers v. Cobb Cty., 835

F.3d 1289, 1295 (11th Cir. 2016).

                               III.   DISCUSSION

      “A prison official’s deliberate indifference to a substantial risk of serious

harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S.

825, 828 (1994) (internal quotation marks omitted). To establish a deliberate

indifference claim for damages under § 1983, an inmate must show that (1) there

was a substantial risk of serious harm, (2) the defendant was deliberately

indifferent to that risk of harm, and (3) a causal connection between the

defendant’s conduct and the violation. Lane v. Philbin, 835 F.3d 1302, 1307 (11th


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Cir. 2016). “For our purposes, the Eighth Amendment defines the contours of the

first two elements and § 1983 delimits the third.” LaMarca v. Turner, 995 F.2d

1526, 1535 (11th Cir. 1993).

      In deciding this appeal, we assume arguendo that Block established the first

two prongs of his deliberate indifference claim. We thus assume first that

describing an inmate in derogatory terms indicating he is homosexual in the

proximity of other inmates—or “branding” him, as Block refers to it—presents a

substantial risk of serious harm to that inmate, especially given Block’s small

stature. Second, we assume that Pohling, as a prison employee and the alleged

speaker of those offensive remarks, was subjectively aware of the substantial risk

of danger his announcement posed to an inmate and that he disregarded that risk.

Assuming these first two prongs were satisfied, we nonetheless hold that Block’s

deliberate indifference claim cannot survive summary judgment because he failed

to establish the third prong, which requires him to show that Pohling caused the

harm he suffered.

      Section 1983 “requires proof of an affirmative causal connection between

the actions taken by a particular person under color of state law and the

constitutional deprivation.” LaMarca, 995 F.2d at 1538 (internal quotation marks

omitted). The constitutional deprivation must, in turn, be “a legal cause of [the

plaintiff’s] injuries.” Williams v. Bennett, 689 F.2d 1370, 1381 (11th Cir. 1982).


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Here, Block failed to establish that Pohling caused his injury because he offered no

evidence that any other inmate heard Pohling’s derogatory comments and thus that

those comments were linked to the violent attacks Block suffered. Although Block

testified that “inmates housed within administrative confinement could have

clearly heard” Pohling’s outburst, he adduced no evidence—in the form of his

testimony or otherwise—that any other inmate actually heard Pohling’s comments.

Doc. 113 at 6 (emphasis added). The evidence reflects that Pohling’s statements

were loud, the upper portions of inmates’ cells were covered with wire only, and

communication among inmates was common. This evidence does not show that

Pohling caused the attacks on Block, however, because a link between Pohling’s

words and the attacks on Block is lacking.

      Even if a jury could reasonably infer that other inmates actually heard

Pohling’s remarks, uncontradicted evidence shows that Hippolyte did not hear

Pohling’s statements. Hippolyte was transferred to Block’s administrative

confinement unit the day after Block arrived there, and thus the derogatory

outburst by Pohling took place the day before Hippolyte arrived. For Block to

establish that Pohling caused his injury, therefore, a jury would have to infer both

that an inmate actually heard Pohling’s comments and that an inmate told




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Hippolyte about those comments before Hippolyte assaulted Block. But there is

simply no basis in the record for such an inference. 3

       The cases upon which Block relies, in which courts have held that

“branding” inmates may establish a constitutional violation, do not present the

causation problem that Block has here. In Harmon v. Berry, for example, Harmon

alleged that a corrections officer told other inmates that Harmon had “informed on

[them]” and that they were receiving “harsher disciplinary penalties than they

otherwise would” because of what Harmon had said, which led to a threat on

Harmon’s life. 728 F.2d 1407, 1408 (11th Cir. 1984). Unlike in this case, the

inmate who threatened Harmon stated that he had heard from the defendant officer

that Harmon was a snitch, thus providing a direct link between the officer’s

conduct and the resulting harm. On these facts, we reversed the district court’s

order dismissing Harmon’s allegations as frivolous. Id. There is no such link here.

       We condemn the repugnant statements that Block attributes to Pohling and

the violent attacks Block endured. But because Block cannot link Pohling’s

offensive words to the injuries he suffered, he has failed to establish an Eighth

Amendment deliberate indifference claim.

       3
          To the extent Block’s § 1983 claim is also based on his sexual assault by the unknown
inmate a few months after Pohling assaulted and raped him, there is no evidence connecting that
assault to Pohling’s comments, either. Block testified that the unknown inmate who assaulted
him was being transferred from another correctional facility to a medical center in a vehicle.
There is no evidence that the inmate ever: was at Marion Correctional Institution, interacted
with anyone there, or otherwise heard about Pohling’s comments.

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                                IV.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of Pohling.

      AFFIRMED.




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