         Case: 13-12909   Date Filed: 09/29/2014   Page: 1 of 17


                                                        [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-12909
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 3:12-cv-00065-DHB-WLB

RODERICK MCKISSICK,

                                                          Plaintiff-Appellant,

                                 versus

COMMISSIONER, GEORGIA DEPARTMENT
OF CORRECTIONS, et al.,

                                                                   Defendants,

WARDEN,
DAVID SPIRES,
Captain,
RODNEY MCCLOUD,
Unit Manager,

                                                      Defendants-Appellees.

                     ________________________

              Appeal from the United States District Court
                 for the Southern District of Georgia
                    ________________________

                          (September 29, 2014)
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Before WILSON, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:

      Roderick McKissick, a Georgia prisoner proceeding pro se, appeals the

district judge’s order granting three prison officials’ motion to dismiss his 42

U.S.C. § 1983 action. McKissick also has filed a motion for appointment of

counsel, which we construe as a motion for reconsideration of the denial of his

prior request for counsel in this court. We affirm the dismissal of McKissick’s

complaint and deny his motion for reconsideration.

                                    I. BACKGROUND

      In July 2012, McKissick, then an inmate at Telfair State Prison (“TSP”), 1

filed motions for leave to proceed in forma pauperis (“IFP”) and appointment of

counsel, and a pro se § 1983 civil rights complaint. McKissick’s complaint named

as defendants Georgia Department of Corrections (“GDC”) Commissioner Brian

Owens; TSP Warden David Frazier; Assistant Warden Rodney McCloud; Captain

David Spires; Deputy Wardens Dianne Dees, Samuel Sanders, and Annetta Toby;

and Officers White, Couley, and Davis. McKissick sought to raise eight claims for

relief, including (1) he had been housed in a shower for five days, in violation of

his rights to be free from cruel and unusual punishment and to equal protection;

(2) he had been denied adequate legal materials, in violation of his right of access

      1
          McKissick has been transferred to Macon State Prison.

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to the courts; (3) Kosher meals were improperly prepared, in violation of the Free

Exercise Clause; (4) grievances were investigated inadequately, in violation of his

right to due process; (5) food and tableware were handled in an unsanitary manner;

(6) cleaning materials were issued infrequently, in violation of his right to be free

from cruel and unusual punishment; (7) cells were ventilated inadequately, in

violation of the Eighth Amendment; and (8) he had been denied hygiene products,

in violation of the Eighth Amendment. The relief McKissick sought were

compensatory damages, a prison transfer, injunctive relief, and release from GDC

custody.

      In his motion for appointment of counsel, McKissick alleged he could not

afford counsel, and his incarceration greatly limited his ability to litigate his case.

He also asserted the issues involved in his case were “extremely complex” and

would require “significant research and investigation.” R. at 25. McKissick

represents his case would involve conflicting testimony, and counsel was needed to

present evidence and cross-examine witnesses adequately. Moreover, McKissick

alleged he had limited access to the prison law library, and he had limited legal

knowledge.

      A magistrate judge granted McKissick’s request for IFP status, subject to the

filing of additional financial documentation but denied McKissick’s motion for

appointment of counsel. Regarding McKissick’s request for counsel, the


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magistrate judge explained McKissick’s filings showed he was capable of

communicating with the court and presenting the essential merits of his position.

Moreover, McKissick’s concerns about evidence and witnesses were premature,

because the court had not yet screened his IFP complaint.2 The magistrate judge

advised McKissick could renew his request if it later became apparent counsel was

needed.

       After McKissick filed a prisoner account statement and consented to the

collection of fees from his account, the magistrate judge issued a report and

recommendation (“R&R”) recommending that McKissick’s complaint be

dismissed for failure to state a claim. McKissick filed R&R objections, in which

he included several additional factual allegations in support of his claims.

Consequently, the magistrate judge directed McKissick to file an amended

complaint containing all claims he sought to have considered.

       In January 2013, McKissick filed an amended complaint, in which he

asserted he was suing each defendant in his or her official capacity. He again

sought to raise eight claims. In Claim 1, McKissick alleged the defendants

violated his rights to be free from cruel and unusual punishment and to equal


       2
          A federal court must review a civil complaint filed by a prisoner to ensure it raises
cognizable claims and is not frivolous. See 28 U.S.C. § 1915A; see also 28 U.S.C.
§ 1915(e)(2)(B) (requiring a federal court to dismiss a case brought by a litigant proceeding IFP
if the action or appeal is frivolous, fails to state a claim, or seeks monetary relief against a
defendant who is immune from such relief).

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protection by housing him for five days in an unsanitary shower, in retaliation for

his refusal to be placed in the general population. In Claims 2 and 8, McKissick

asserted the defendants unlawfully restricted his legal mail and deprived him of

adequate legal supplies and research materials, in violation of his rights to due

process and access to the courts. In his remaining claims, which are not at issue on

appeal, McKissick again alleged violations of his religious rights and prison

grievance procedures, mishandling of food and tableware, unsanitary conditions in

segregation cells, inadequate ventilation, and deprivation of hygiene products.

      McKissick alleged the following facts in support of his first claim. On

February 10, 2012, Warden Frazier asked McKissick why he was “refusing

population.” R. at 159. McKissick responded he had enemies in the prison. The

warden asked whether McKissick thought he and other inmates were running the

prison. McKissick stated he did not run anything and suggested the warden could

transfer him to another prison. Warden Frazier responded with a series of crude

comments stating prisoners were not in charge of the prison, and he would teach

them “about playing games” by requiring them to stay in the showers. R. at 160.

Warden Frazier then told several officers, including Unit Manager McCloud and

Captain Spires, to put McKissick and other inmates in the showers until further

notice. None of the officers objected.




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       Later that day, Captain Spires escorted McKissick to the F-1 dormitory,

where Unit Manager McCloud told Captain Spires to put McKissick in a “top

shower.” R. at 160. When they arrived at the shower, McKissick objected it was

“nasty.” R. at 161. He asked whether Captain Spires was aware housing inmates

in showers for an extended period of time violated prison policy and the United

States Constitution. Captain Spires responded: “Well, we don’t have that down

here.” R. at 161.

       McKissick attached 150 exhibits to his complaint and included in the

complaint a brief description of each exhibit. 3 In several of these descriptions,

McKissick alleged (1) he had been housed in a shower “around human waste,” and

“in the proximity of other humans’ waste,” which included semen, feces, blood,

phlegm, and urine, R. at 161-62; (2) the showers had no toilets or sinks;

(3) McKissick had to “eat, sleep, urinate and defecate” in the shower, R. at 162;

and (4) he had informed several prison officials of these conditions.

       One of the exhibits to McKissick’s amended complaint was a February 21,

2012, grievance complaining of his confinement in the shower. The response to

the grievance, which appears to have been signed by Warden Frazier, stated:


       3
         The exhibits included (1) various prison grievances, witness statements, affidavits,
inmate requests, and appeals filed by McKissick and the responses to those submissions; (2) a
prison memorandum assigning McKissick to the “F-1 shower,” R. at 199; (3) request forms for
legal documents, Open Records Act inquiries, and indigent postage; and (4) lists of prohibited
items, commissary items, and property inventories.

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      When you arrived at Telfair S.P., you were assigned to E2-12
      [illegible]. You did not know the identity of the other inmates
      assigned to the dorm because you never reported to it. You were
      placed in a segregation shower, pending bed space in the admin/seg
      unit. Cleaning supplies & chemicals are issued to admin/seg inmates
      every Tuesday and Thursday. It is your responsibility to clean your
      living quarters.

R. at 194.

      As to his claims regarding legal materials, McKissick alleged various

officials impeded his access to legal mail and law library materials and failed to

respond adequately to his Open Records Act requests, his requests for legal

postage, and his complaints about his limited access to legal materials. McKissick

requested one form of relief in his amended complaint: $3 million in compensatory

damages for the “pain and suffering” he had been “forced to endure . . . in the

overall situation for over 10 months.” R. at 190.

      The magistrate judge issued an order concluding McKissick’s claims were

individual-capacity claims, notwithstanding his assertion he was suing the

defendants in their official capacities. The magistrate judge also found McKissick

arguably had stated a viable claim for deliberate indifference against Warden

Frazier, Unit Manager McCloud, and Captain Spires, based on his alleged five-day

confinement in the prison showers. Consequently, the magistrate judge ordered

service of process to be effected on those three defendants.




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      The magistrate judge simultaneously issued an R&R recommending that

McKissick’s remaining claims be dismissed. The magistrate judge determined

McKissick’s remaining claims against Warden Frazier and his only claim against

Commissioner Owens each failed, because they sought to impose supervisory

liability without a causal connection. McKissick had not stated claims against

Deputy Wardens Dees, Sanders, and Toby, because he also had not shown a causal

connection between any of their actions and his alleged constitutional deprivations.

      The magistrate judge concluded McKissick had not stated an Eighth

Amendment claim regarding any of his remaining conditions-of-confinement

allegations, including those concerning meal preparation and unsanitary and

inadequately ventilated cells. McKissick’s claim based on access to legal materials

failed because he had alleged no injury to a non-frivolous legal action caused by

any defendants. He also had alleged insufficient facts to state § 1983 retaliation or

a conspiracy claim against any defendant. McKissick likewise had failed to state

claims based on the mishandling of grievances, religious issues, and deprivation of

property.

      McKissick filed R&R objections, in which he repeated many of his prior

allegations. He also explained he previously had requested appointed counsel,

because of the severe limitations on his access to legal-research materials, office

supplies, and postage. The district judge adopted the R&R over McKissick’s


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objections and dismissed all claims other than his shower-confinement claims

against Warden Frazier, Unit Manager McCloud, and Captain Spires (the

“defendants”).

      The defendants filed a pre-answer motion to dismiss and argued McKissick

had alleged no adverse consequences resulting from his confinement in the

showers, which was fatal to his Eighth Amendment claim. Because McKissick

had alleged no physical injury, his action also was barred by the Prison Litigation

Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), whether he sought compensatory or

nominal damages. The defendants alternatively contended they were entitled to

qualified immunity, because they were acting within their discretionary authority,

and their alleged actions did not violate clearly established law.

      McKissick opposed the defendants’ motion to dismiss. Responding to their

claim that he had not alleged an injury, McKissick asserted: “The malicious

infliction of cruel and unusual punishment is irreparable injury unto his

constitutional rights being atrocious[ly] denied, deprived and violated that there is

no healing from the constitutional violations at all.” R. at 495. McKissick also

challenged the defendants’ claim to qualified immunity. On the same day he

opposed the defendants’ motion to dismiss, McKissick filed motions (1) for an

order to direct defendants to answer his amended complaint and (2) to allow

discovery to proceed.


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        The magistrate judge issued an R&R recommending the defendants’ motion

to dismiss be granted, and McKissick’s motions be denied as moot. The magistrate

judge concluded the defendants were entitled to qualified immunity. The

magistrate judge also highlighted that McKissick had alleged no injury resulting

from his confinement. Moreover, the magistrate judge noted, a response to

McKissick’s February 21, 2012, grievance stated McKissick had been given

cleaning supplies twice per week, while housed in the shower. McKissick filed a

sur-reply to the defendants’ motion to dismiss as well as R&R objections, in which

he reasserted several of his prior factual allegations and legal arguments.

        The district judge adopted the R&R, granted the defendants’ motion to

dismiss, and denied as moot McKissick’s motions for discovery and to require the

defendants to file an answer. McKissick timely appealed; this court granted his

request for IFP status but denied his request for appointed counsel on April 1,

2014.

        McKissick argues on appeal that the magistrate judge’s denial of appointed

counsel violated his right of access to the courts, since he was unable to prepare

adequate filings because of his inexperience and lack of legal materials. He

represented the magistrate judge was more concerned with having funds deducted

from McKissick’s account than with justice. He claims his request was denied




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unlawfully “as a strategic tactic to conspire with corrupt prison authorities.”

Appellant’s Br. at 2.

      Regarding the dismissal of his complaint, McKissick argues he was

subjected to inhumane treatment, when he was confined in a shower surrounded by

human waste and other filth. He asserts the magistrate judge and district judge

violated his right to due process by failing to address his opposition to the

defendants’ motion to dismiss, failing to address his R&R objections, and failing to

review the exhibits to his complaint. McKissick also contends the district judge

contradicted an unidentified previous ruling concerning the unsanitary conditions

of his confinement. He argues the dismissal of his complaint showed the judge

was conspiring with the state to conceal unconstitutional activities and obstruct

justice. Defense counsel’s assertion, that harsh conditions are part of the penalty

paid by criminals, showed state officials have no concern for prisoners’ treatment.

McKissick’s brief also refers to the Racketeer Influenced and Corrupt

Organizations (“RICO”) Act, 18 U.S.C. §§ 1961-1968, but he does not explain

how or to whom it applies in this case. Finally, McKissick argues various

unidentified prison officials obstructed justice and violated several of his rights by

withholding legal postage and supplies from McKissick, who is indigent, and by

“delaying indigent legal mail process” until a filing deadline had expired, resulting




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in the district judge’s ruling on his claims with an incomplete record. Appellant’s

Br. at 5.

                                 II. DISCUSSION

A. Motion for Reconsideration of Denial of Appointed Counsel

       Because McKissick previously sought appointed counsel in this court, we

construe his second motion as seeking reconsideration of our prior denial of his

request for counsel. Cf. 11th Cir. R. 35-4(a) (stating we will construe a petition for

rehearing en banc of the denial of a motion for appointment of counsel as a motion

for reconsideration). A motion to reconsider, vacate, or modify an order must be

filed within 21 days of the entry of the order. 11th Cir. R. 27-2. McKissick’s

motion was filed on June 30, 2014, nearly three months after the April 1, 2014,

order denying appointed counsel, and he has not provided any information

explaining or justifying the delay. Therefore, his motion for reconsideration of our

denial of his request for counsel is denied as untimely. See id.

B. Magistrate Judge’s Denial of Request for Appointed Counsel

       We review the denial of a motion for appointment of counsel for abuse of

discretion. Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th Cir. 2013) (per

curiam). A plaintiff in a civil case has no constitutional right to counsel. Bass v.

Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). Under 28 U.S.C. § 1915(e)(1), a

judge may appoint counsel for an indigent plaintiff. 28 U.S.C. § 1915(e)(1); Bass,


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170 F.3d at 1320. Appointment of counsel in a civil case is a privilege requiring

exceptional circumstances, such as the presence of facts and legal issues so novel

or complex they require the assistance of a trained practitioner. Kilgo v. Ricks, 983

F.2d 189, 193 (11th Cir. 1993). The key is whether the pro se litigant needs

assistance presenting the essential merits of his case to the court. Id. The

following factors are considered when determining whether exceptional

circumstances exist: (1) the type and complexity of the case; (2) whether the

litigant is capable of adequately presenting his case; (3) whether the litigant is in a

position adequately to investigate his case; and (4) whether the evidence will

consist in large part of conflicting testimony requiring skill in the presentation of

evidence and in cross-examination. See Ulmer v. Chancellor, 691 F.2d 209, 213

(5th Cir. 1982) (incorporated by Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.

1990)).

      In his initial complaint, McKissick listed eight separately delineated claims

for relief, and he identified the constitutional right applicable to seven of those

claims. He also identified the relief he sought. None of the claims in the initial

complaint appeared novel or complex. See Kilgo, 983 F.2d at 193. Although the

claims were largely conclusory, they did not evince an inability by McKissick to

communicate adequately with the court. See id.; Ulmer, 691 F.2d at 213.

McKissick alleged no facts in his motion or initial complaint suggesting substantial


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factual investigation would be needed. See Ulmer, 691 F.2d at 213. His assertions

concerning the need to present evidence and cross-examine witnesses were

premature, since the court had not yet screened his initial IFP complaint. See 28

U.S.C. §§ 1915(e)(2)(B), 1915A. Although McKissick provided additional factual

allegations regarding his prior request for counsel in his R&R objections, he never

renewed his request, despite the magistrate judge’s instruction that McKissick was

free to do so. McKissick has not shown an abuse of discretion in the denial of his

request for counsel.

C. Dismissal of McKissick’s Complaint

      We review a district judge’s granting of a motion to dismiss de novo and

accept the allegations in the complaint as true and construe them in the light most

favorable to the plaintiff. See Timson v. Sampson, 518 F.3d 870, 872 (11th Cir.

2008). Compensatory damages under § 1983 may be awarded only for actual

injuries caused by the defendants’ illegal conduct and cannot be based on the

abstract value of the constitutional rights that were violated. Slicker v. Jackson,

215 F.3d 1225, 1230-31 (11th Cir. 2000); see Whiting v. Traylor, 85 F.3d 581, 586

& n.10 (11th Cir. 1996) (explaining recovery of § 1983 damages is limited to those

injuries proved to be caused by the defendants). Under the PLRA, a prisoner may

not bring a federal civil action for damages for mental or emotional injury suffered

while in custody absent a showing of physical injury. 42 U.S.C. § 1997e(e);


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Harris v. Garner, 190 F.3d 1279, 1287-88, 1290 (11th Cir.), vacated, 197 F.3d

1059 (11th Cir. 1999) (en banc), reinstated in relevant part, 216 F.3d 970, 972,

985 (11th Cir. 2000) (en banc).

      We generally will not consider an issue that was not presented to the district

judge. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.

2004). Although pro se briefs are to be construed liberally, a pro se litigant who

offers no substantive argument on an issue in his initial brief abandons that issue

on appeal. See Timson, 518 F.3d at 874. We may affirm on any ground that

appears in the record. Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th

Cir. 2012).

      In his amended complaint, McKissick sought only one form of relief: $3

million in “compensatory damages” for unidentified “pain and suffering.” R. at

190. Regardless of whether he arguably alleged some mental or emotional injury,

McKissick has alleged no physical injury resulting from any of the defendants’

actions. Cf. Al-Amin v. Smith, 637 F.3d 1192, 1196-97 & n.5 (11th Cir. 2011)

(explaining that applying the physical-injury requirement only in cases in which a

plaintiff affirmatively has alleged mental or emotional injuries would lead to

illogical results). Even if nominal damages would be available in this case under

the PLRA, McKissick has abandoned any possible claim for them by failing to

raise this claim on appeal. See Timson, 518 F.3d at 874. He also has abandoned


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his equal-protection claim based on his confinement in a shower and all other

claims in his amended complaint by failing to address these issues on appeal. See

id.

      The record directly refutes McKissick’s assertions the magistrate judge and

district judge failed to address his opposition to the defendants’ motion to dismiss

and his R&R objections. McKissick has not identified the prior decision he alleges

the district judge contradicted. Nor has he shown a right to relief based on his

conclusory assertions the district judge has conspired with the state and defense

counsel’s legal arguments show state officials have no concern for prisoners’

treatment. He has given no arguments concerning his brief reference to the RICO

Act, which he appears to have asserted for the first time on appeal. See id.; Access

Now, Inc., 385 F.3d at 1331. Accordingly, McKissick has not shown the district

judge erred when he dismissed his § 1983 claims. See 42 U.S.C. § 1997e(e);

Slicker, 215 F.3d at 1229; Harris, 190 F.3d at 1287-88.

D. Obstruction of Justice

      McKissick’s obstruction-of-justice claims concerning the defendants’

conduct during the district court proceedings are not properly before us, because he

did not raise them before the district judge. See Access Now, Inc., 385 F.3d at

1331. In addition, McKissick has failed to identify the prison officials who

committed the alleged obstructive acts, and he has not explained what facts or


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arguments he was unable to present to the district judge as a result of any alleged

obstruction. See Timson, 518 F.3d at 874. McKissick thus has failed to show how

his obstruction-of-justice claims entitle him to relief on appeal. We affirm the

dismissal of McKissick’s amended complaint and deny his motion for

reconsideration of our prior denial of his request for counsel.

      AFFIRMED; MOTION DENIED.




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