             Case: 15-13431   Date Filed: 04/04/2017   Page: 1 of 8


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-13431
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 2:12-cv-00360-MHT-CSC

LEARONARDO TRUSS,

                                                             Plaintiff-Appellant,

                                   versus

WARDEN,
CHARLES MCKEE,
LEON BOLLING,

                                                          Defendants-Appellees.

                         ________________________

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

                                (April 4, 2017)

Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Learonardo Truss, a state prisoner proceeding pro se, appeals from the

district court’s grant of summary judgment in favor of Warden Leeposey Daniels,
              Case: 15-13431    Date Filed: 04/04/2017   Page: 2 of 8


Warden Leon Bolling, and Captain Charles McKee (collectively, “the prison

defendants”) in his 42 U.S.C. § 1983 action, alleging violations of the Eighth

Amendment and state-law negligence claims at Elmore Correctional Facility

(“Elmore”). On appeal, Truss argues that he created a triable issue of fact as to

whether the prison defendants were deliberately indifferent to the risks concerning

his exposure to tuberculosis (“TB”) in an overcrowded prison and the use of

unsanitary hair clippers by prison barbers. After thorough review, we affirm.

      We review the district court’s grant of summary judgment de novo, viewing

the facts in the light most favorable to the non-moving party. Harrison v. Culliver,

746 F.3d 1288, 1297–98 (11th Cir. 2014). A district court should grant summary

judgment where 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. Id. A legal

claim or argument that is not briefed on appeal is deemed abandoned. Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

      The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments.” U.S. Const. amend. VIII. The Supreme Court has held that a prison

official’s deliberate indifference to a prisoner’s serious medical needs constitutes

the type of cruel and unusual punishment proscribed by the Eighth Amendment.

Farrow v. West, 320 F.3d 1235, 1242 (11th Cir. 2003) (citing Estelle v. Gamble,

429 U.S. 97, 104 (1995)).      To survive summary judgment on a deliberate-


                                         2
              Case: 15-13431     Date Filed: 04/04/2017   Page: 3 of 8


indifference claim, a plaintiff is “required to 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 Cty., 50 F.3d 1579, 1582 (11th Cir.

1995). As for the first element, whether a particular condition of confinement

results in a “substantial risk of serious harm” is assessed under an objective

standard and requires a showing of extreme conditions that pose an unreasonable

risk of serious injury to an inmate’s future health or safety. Lane v. Philbin, 835

F.3d 1302, 1307 (11th Cir. 2016).

      As for the second element, we’ve explained that deliberate indifference has

the following components: (1) subjective knowledge of an objective risk of serious

harm; (2) a disregard of that risk; (3) by conduct that is more than mere negligence.

Farrow, 320 F.3d at 1245. The existence of a policy may constitute evidence that

prison officials were not deliberately indifferent to the risks posed by exposure to

TB. Helling v. McKinney, 509 U.S. 25, 35–37 (1993). Deliberate indifference is

medical care that is “so grossly incompetent, inadequate, or excessive as to shock

the conscience or to be intolerable to fundamental fairness.” Rogers v. Evans, 792

F.2d 1052, 1058 (11th Cir. 1986).




                                         3
                Case: 15-13431       Date Filed: 04/04/2017       Page: 4 of 8


       Here, the district court did not err in granting summary judgment in favor of

the prison defendants. 1       As for his first claim concerning TB, accepting that

Truss’s exposure to TB constitutes a “substantial risk of serious harm,” we can find

no dispute of fact indicating that the prison defendants were deliberately indifferent

to that risk. Hale, 50 F.3d at 1582. We accept that there is ample evidence in the

record that the prison defendants were aware of the risks associated with TB -- and

the particular prevalence of those risks in an admittedly overcrowded prison dorm.

Truss submitted sworn responses to the prison defendants’ special reports and

submitted several other inmates’ affidavits, all of which claimed that the prison

defendants were aware of the TB outbreak. Truss also points to statements from

the prison defendants’ own affidavits in which they acknowledged that they were

aware of the TB outbreak.

       However, Truss has failed to produce any evidence that the prison

defendants disregarded the risks associated with TB in an overcrowded prison.

The undisputed record shows that Elmore Correctional Facility had policies in

place mandating: (1) TB testing upon an inmate’s initial intake screening; (2)

periodic TB testing thereafter; (3) an investigation about with whom an inmate

diagnosed with active TB has been in contact; (4) isolation of inmates with active

1
  As an initial matter, because Truss did not make any reference in his brief on appeal to his
negligence claims or his generic Eighth Amendment claims concerning the manner in which he
received his TB medication and the lack of an on-site healthcare facility, he has abandoned those
issues on appeal. Access Now, 385 F.3d at 1330.
                                                4
              Case: 15-13431    Date Filed: 04/04/2017   Page: 5 of 8


TB; and (5) the administration of INH (prophylactic TB medication) for nine

months for an inmate who receives a positive TB test result to prevent active TB

from developing. As the Supreme Court recognized in Helling, 509 U.S. at 35–37,

the existence of reasonable policies like these constitutes evidence that the prison

defendants were not deliberately indifferent to the risks posed by an inmate’s

exposure to TB. Moreover, the undisputed record shows that these procedures

were followed at Elmore for two inmates who were diagnosed with active TB, and

for Truss when he was diagnosed with latent TB.

      Despite this undisputed evidence, Truss has not put forth evidence to show

that the prison defendants failed to comply with the established procedures for

diagnosing and preventing TB or that those procedures were constitutionally

inadequate. Rogers, 792 F.2d at 1058. Instead, the sworn statements he relies on

claim that prison officials failed to separate inmates who had been exposed to TB

(as opposed to those who had been diagnosed with active TB), limited their access

to fresh air inside the overcrowded dorms, and did not allow face masks. But these

statements do not show that Elmore did not follow its procedures for dealing with

TB; notably, for example, they do not say that inmates with active TB were housed

with the other inmates. Nor do the statements indicate that Elmore’s procedures

were inadequate. Instead, in relying on these statements, Truss merely quibbles

with the sufficiency of the procedures or the way in which they were implemented


                                         5
              Case: 15-13431     Date Filed: 04/04/2017    Page: 6 of 8


in this case. But this does not mean he has shown a dispute of fact about deliberate

indifference -- one that would require him to show that the care he received in

response to the TB exposure was “so grossly incompetent, inadequate, or excessive

as to shock the conscience.” Rogers, 792 F.2d at 1058.

      Truss also claims that the overcrowding of the prison demonstrated the

prison defendants’ deliberate indifference. It is true that the prison defendants

acknowledged that the prison was overcrowded and that this could make it more

difficult to contain an outbreak of TB. However, as we’ve detailed, Elmore had

policies in place for preventing and treating TB -- by separating inmates with

active cases and investigating with whom they had been in contact, initially

screening inmates for TB and periodically testing them thereafter, and

administering INH for nine months for any inmates who tested positive for TB,

even if it was not active. Truss has not shown a dispute of fact indicating that the

prison defendants were indifferent to the risks associated with overcrowding, at

least not to an extent that was “so grossly incompetent, inadequate, or excessive as

to shock the conscience.” Id.

      As for Truss’s second deliberate-indifference claim regarding Elmore’s

alleged use of unsanitary hair clippers, he failed to show either a substantial risk of

serious harm or the defendant’s deliberate indifference. To show a substantial risk

of serious harm, Truss argues that the use of unsanitary clippers could lead to


                                          6
              Case: 15-13431     Date Filed: 04/04/2017    Page: 7 of 8


infection and the spread of disease. But, importantly, he failed to point to any

evidence that any harm had resulted or was likely to result. He therefore did not

show that he was subjected to objectively extreme conditions that posed an

unreasonable threat of serious harm to his health. Lane, 835 F.3d at 1307.

      But even assuming the risks associated with unsanitary clippers would

constitute a substantial risk of serious harm, he failed to show either that the prison

defendants were subjectively aware of such risk or that they disregarded it.

Farrow, 320 F.3d at 1245. The record shows that: (1) the prison barber shop used

clippercide and barbercide to prevent the spread of disease; (2) the tools used in the

barber shop were disinfected daily by the inmate barbers; (3) there were

“Institution Barber Shop and Beauty Salon Guidelines” in place and weekly

inspections were conducted to ensure compliance; and (4) there was a training

program in place for the inmates hired to work in the barber shop. The existence

of the barber shop guidelines, which specifically required scrupulous cleaning of

all instruments after use, constitutes evidence that the prison defendants were not

deliberately indifferent or any risks associated with unsanitary clippers.         See

Helling, 509 U.S. at 35–37.

      Truss points to the affidavits of various other inmates who stated that they

have never seen the inmate barbers sanitize the clippers. While this may create a

factual issue as to whether the procedures that were in place were dutifully


                                          7
              Case: 15-13431    Date Filed: 04/04/2017   Page: 8 of 8


followed, it does not indicate that the prison defendants were subjectively aware

that this was occurring. Rather, the undisputed evidence established that the prison

defendants were unaware of any improper sanitation of barbering tools. Truss

therefore failed to show any dispute of fact concerning the defendant’s subjective

knowledge of the purported risk of serious harm he identified. Farrow, 320 F.3d at

1245. Accordingly, because Truss failed to produce evidence that would create a

triable question of fact as to whether the prison defendants were deliberately

indifferent to a substantial risk of serious harm, the district court did not err in

granting summary judgment. Harrison, 746 F.3d at 1297–98.

      AFFIRMED.




                                         8
