          Case: 14-11317   Date Filed: 01/27/2015   Page: 1 of 16


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11317
                        Non-Argument Calendar
                      ________________________

              D.C. Docket No. 2:11-cv-00953-WHA-SRW


SAMUEL EARL IVORY,

                                                           Plaintiff-Appellant,

CEDRIC PHILLIPS,

                                                                     Plaintiff,

                                 versus

WARDEN,
GOVERNOR OF ALABAMA,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

                                                        Defendants-Appellees.

                      ________________________

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

                           (January 27, 2015)
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Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:

       Samuel E. Ivory, an Alabama state prisoner proceeding pro se, appeals the

district court’s grant of summary judgment in favor of defendants Alabama

Governor Robert Bentley and Commissioner Kim Thomas of the Alabama

Department of Corrections (“ADOC”) in his 42 U.S.C. § 1983 civil-rights action

challenging the conditions of his confinement and his access to courts. After

careful review, we affirm.

                                               I.

       While imprisoned at the Perry County Correctional Facility (“Perry”) in

Perry County, Alabama, Ivory and Cedric Phillips 1 filed in the United States

District Court for the Southern District of Alabama a complaint alleging that

Bentley and Thomas were deliberately indifferent to prison conditions that posed a

serious risk to inmates’ health and safety at Easterling Correctional Facility

(“Easterling”), where he was to be transferred, and other ADOC facilities. 2 These

conditions included overcrowding; housing in buildings designed as gymnasiums;


       1
         Phillips filed the complaint along with Ivory but is not an appellant in this appeal.
Accordingly, the following facts relate primarily to Ivory.
       2
          Ivory also named James Mullins, the Warden of the Perry County Correctional Facility,
as a defendant. However, the complaint did not contain any allegations regarding Mullins or the
conditions at Perry, and Mullins was later dismissed by the district court without objection by
Ivory. On appeal, Ivory does not argue that this dismissal was improper, so we do not address it
further.
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insufficient beds; insufficient personal storage space; limited running water;

unsanitary and inadequate restrooms and showers; insufficient fire and rescue

countermeasures such as sprinkler systems, fire extinguishers, fire escapes, and

personnel with fire and rescue training; inadequate heating, cooling, and

ventilation; and inadequate security.

      Ivory alleged that these conditions violated the Fifth, Eighth, and Fourteenth

Amendments to the United States Constitution, and he requested injunctive relief

to cure the allegedly unconstitutional conditions and to prevent his transfer to

Easterling. Ivory contended that the defendants acted with deliberate indifference

because “the conditions are so obvious that the officials must have purposefully

ignored them,” and because Alabama prisons had been the subject of previous

litigation and newspaper articles. He also asserted that he had a right to access the

courts without fear of retaliation. Ivory was subsequently transferred to Easterling.

      The defendants filed a special report denying the complaint’s allegations.

They admitted that “Easterling houses a greater number of inmates than its

designed capacity,” but asserted that the ADOC has taken steps to ensure inmates

were not subjected to inhumane conditions. In support, they attached the affidavit

of the Easterling’s Warden, Louis Boyd. The affidavit stated in pertinent part,

             Inmates at Easterling Correctional Facility are not housed
             in buildings designed to be gymnasiums. All dormitories
             at [Easterling] have running water with each dormitory
             having at least five toilets and eight showers. The fire
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              evacuation routes are posted inside of each dormitory.
              Sprinkler systems along with fire extinguishers are
              inspected on a monthly basis. Easterling also has a crew
              composed of inmates who are assigned and receive
              training on extinguishing fires. The inmate restroom
              areas are cleaned on a daily basis, to include disinfectant.
              There are no inmates sleeping on cots at this facility.
              Inmates’ storage areas are in line with Administrative
              Regulation 338, “Inmate Property.”            All of the
              dormitories have adequate housing and at least four
              industrial size fans for each dormitory.

Furthermore, the defendants argued, Ivory had not alleged that the defendants had

knowledge of the conditions or that any act or omission by the defendants gave rise

to Ivory’s claims.

      On June 14, 2011, the magistrate judge entered an order converting the

special report to a motion for summary judgment and taking the motion under

submission. The magistrate judge directed the parties to file any evidence before

July 18, 2011.

      Ivory timely responded in opposition to the special report, and both Ivory

and Phillips filed supporting affidavits. In the response, Ivory acknowledged that

his allegations about insufficient beds, lack of access to running water, and

insufficient toilets and showers concerned another correctional facility, not

Easterling.

      In his affidavit, Ivory stated that, due to overcrowded conditions at

Easterling, he was unable to get his evening medicine five times in less than two


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months because the prison employees did not stay at their posts long enough to

serve the long lines. If a prisoner complained to an employee, Ivory asserted, he

would be placed in a “hot dorm,” and then removed from the prison population to a

secluded area that did not have access to religious services, visitation, or access to

a law library. The secluded area also did not have a correctional officer, according

to Ivory, so “inmates are subject to being raped or beaten.” Ivory further described

an incident in which he attempted to use Easterling’s temporary law library after

the permanent one had burned down, but the officers told him he first would have

to fill out a request slip describing why he needed to use the library. He also

attested that the water caused itchy rashes and that “everyone believes the water is

full of bacteria.”

       In his affidavit, Phillips attested that the dining hall was too small to

accommodate the large number of prisoners that the officers took in at a time,

which led to conflict between inmates, and that it was unsanitary (infested with

insects; tables “never clean”; floors “always wet, slimy, and slippery”). Phillips

also asserted that (1) the dorms that housed inmates were “extremely [h]ot,” and

there was one ice cooler and sometimes not enough ice for everyone, leading

“stronger inmates [to] prey on the weaker ones”; (2) the two-hour time slot each

day for showering was inadequate for each of the 110 to 120 inmates in one side of

the dorm to shower, increasing the risk of scabies and tuberculosis outbreaks;


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(3) the prison illegally took $1 of every money order sent to a prisoner by his

family, without the family’s knowledge, for a “processing fee”; and (4) contrary to

Warden Boyd’s affidavit, Phillips had not seen fire extinguishers in the dorms, nor

was he aware of any personnel or inmates who were certified by a licensed fire

college on fire evacuation.

       Before ruling on summary judgment, the district court in the Southern

District, pursuant to the magistrate judge’s recommendation to which no objections

were filed, transferred the case to the Middle District for a more convenient forum

because Bentley, Thomas, and Easterling were all in the Middle District of

Alabama. After transfer, a magistrate judge in the Middle District vacated the

Southern District’s June 14, 2011, order construing the special report as a motion

for summary judgment. The judge then directed the parties to file responses within

fifteen days why the court should not treat the special report and any evidentiary

materials as a motion for summary judgment. No responses were filed.3

       Thereafter, the magistrate judge, treating the special report as a motion for

summary judgment, issued a recommendation that the motion be granted. The

magistrate judge concluded that Ivory had not established that the conditions of his

confinement denied him the minimal civilized measure of life’s necessities or


       3
          In April 2013 and June 2013, the magistrate judge denied Ivory’s requests to amend his
complaint regarding his access-to-courts claim, but permitted him to file a supplement to his
previous response to the special report. Ivory did so, but did not submit any additional evidence.
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subjected him to a wanton and unnecessary infliction of pain. Ivory also failed to

demonstrate deliberate indifference by the named defendants, the magistrate judge

concluded, because he did not identify any particular incident or condition of

which the defendants were aware from which an inference could be drawn that a

substantial risk of serious harm existed. Regarding the access-to-courts claim, the

judge found that Ivory had not shown that he had suffered any actual injury.

      The district court overruled Ivory’s objections, adopted the magistrate

judge’s recommendation, and granted summary judgment to the defendants. After

the court denied Ivory’s motion to alter or amend the judgment, Fed. R. Civ. P.

59(e), this timely appeal followed. See Fed. R. App. P. 4(a)(4).

                                          II.

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

considering the facts and drawing all reasonable inferences in the light most

favorable to the non-moving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291,

1303 (11th Cir. 2009).     Summary judgment is appropriate when “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.” Fed. R. Civ. P. 56(a).

      The moving party bears the initial burden of showing, by reference to

materials on file, that there are no genuine issues of material fact for trial. Jeffery

v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995); see Fed. R. Civ. P.


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56. Once this burden is met, “the non-moving party must then go beyond the

pleadings, and by its own affidavits, or by depositions, answers to interrogatories,

and admissions on file,” show that there is such a genuine issue for trial. Jeffery,

64 F.3d at 593-94 (internal quotation marks omitted). We also credit “specific

facts” pled in a plaintiff’s sworn complaint when considering his opposition to

summary judgment. Caldwell v. Warden, FCI Talledega, 748 F.3d 1090, 1098

(11th Cir. 2014). A dispute is “genuine” if a reasonable jury could return a verdict

in favor of the non-moving party. Allen v. Bd. of Public Educ. for Bibb Cnty., 495

F.3d 1306, 1313 (11th Cir. 2007). Although pro se filings are entitled to liberal

construction, pro se litigants are not excused from the burden under summary-

judgment standards of establishing that a genuine issue of material fact exists.

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

                                        III.

      Ivory first takes issue with the transfer and subsequent handling of his case.

He further argues that the evidence created genuine issues of material facts as to

whether the prison conditions violated his Eighth and Fourteenth Amendment

rights and whether he has been denied access to the courts after the law library at

Easterling caught fire. We address each contention separately.

                                        A.




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       Ivory contends that it was an abuse of discretion for the Middle District to

vacate the June 14, 2011, order construing the defendants’ special report as a

motion for summary judgment.4 As the Middle District explained, however, the

court vacated the order upon transfer so that the case could “proceed in accordance

with the standing practice of th[e] court that construction of a special report not be

actually converted to a motion for summary judgment until entry of a

Recommendation.” At no point did the Southern District deny the defendants’

construed motion for summary judgment or set the case for trial, despite Ivory’s

assertions to the contrary. Nor was the transfer of the case an abuse of discretion,

in light of the location of both the defendants and the Easterling facility. See 28

U.S.C. §§ 1391(b), 1404(a).

                                               B.

       The Eighth Amendment, applicable to the states through the Fourteenth

Amendment, “set[s] limits on the treatment and conditions that states may impose

on prisoners.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1571 (11th Cir. 1985).
       4
          In his brief, Ivory also makes passing references to the idea that he should have been
permitted pre-trial discovery to prove the allegations in his complaint, but he does not develop
this argument further and so likely has abandoned the issue. See Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (issues not briefed by a pro se litigant are deemed abandoned); see
also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682-83 (11th Cir. 2004) (“passing
references” to an issue without further argument or citation to authority may constitute
abandonment). In any case, Ivory is not entitled to relief for any purported denial of discovery
because he does not appear to have raised any discovery issues before the district court, nor does
he identify what additional evidence he would have sought or discovered or how that evidence
“would create a genuine issue of material fact precluding summary judgment.” Harbert Int’l,
Inc. v. James, 157 F.3d 1271, 1280 (11th Cir. 1998).


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Under that provision, the states may not impose conditions that “deprive inmates of

the minimal civilized measure of life’s necessities,” or that may do so in the future.

Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399 (1981); see Helling

v. McKinney, 509 U.S. 25, 33-34, 113 S. Ct. 2475, 2480-81 (1993) (“That the

Eighth Amendment protects against future harm to inmates is not a novel

proposition.”); Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004). A state

violates the Eighth Amendment if fails to furnish prisoners with “the basic human

needs,” including “reasonable safety,” Helling, 509 U.S. at 33, 113 S. Ct. at 2480-

81, and “reasonably adequate food, clothing, shelter, and sanitation,” Hamm, 774

F.2d at 1572.

      We have explained that a two-part analysis governs Eighth Amendment

challenges to conditions of confinement. Chandler, 379 F.3d at 1289. First, the

prisoner must show that the conditions of his confinement are objectively “serious”

or “extreme.” Id. This means that the prisoner must show, at the very least, that “a

condition of his confinement poses an unreasonable risk of serious damage to his

future health or safety.” Id. (brackets and internal quotation marks omitted).

      Second, the prisoner must show that the defendant prison officials

subjectively acted with “deliberate indifference” with regard to the condition at

issue. Id.; see Wilson v. Seiter, 501 U.S. 294, 298-300, 111 S. Ct. 2321, 2324-25

(1991) (holding that a conditions-of-confinement claim under the Eighth


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Amendment requires an inquiry into the prison officials’ state of mind). Under this

standard, the Supreme Court has explained, “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.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979

(1994). Therefore, to be held liable for “deliberate indifference” to inhumane

conditions, “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.” Id.

      Before proceeding to the merits of Ivory’s conditions claim, we note that it

is unclear whether the district court discharged its summary-judgment

responsibilities by “consider[ing] all evidence in the record,” including the specific

facts in Ivory’s and Phillip’s affidavits, before granting summary judgment. See

Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2002) (“The

District Court must consider all evidence in the record when reviewing a motion

for summary judgment—pleadings, depositions, interrogatories, affidavits, etc.—

and can only grant summary judgment if everything in the record demonstrates that

no genuine issue of material fact exists.”). These affidavits were not mentioned in

conjunction with the conditions-of-confinement claim in either the magistrate

judge’s recommendation or in the district court’s order granting summary


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judgment.    Nevertheless, we conclude that granting summary judgment was

proper, for reasons we explain below.

      Construing the evidence in the light most favorable to him, Ivory failed to

raise a genuine issue of material fact with regard to the objective component of his

deliberate-indifference claim. Among other conditions alleged in his complaint,

Ivory averred that Easterling did not have adequate fire-safety protections. We

have no doubt that a complete lack of fire extinguishers or other fire-safety

measures could pose an unreasonable risk of serious harm to an inmate’s health or

safety. But Warden Boyd’s affidavit refuted Ivory’s allegations and stated that the

facility had sprinkler systems, fire extinguishers, and inmates who had received

training on extinguishing fires, thereby shifting the burden to Ivory to present

evidence of specific facts in genuine dispute. See Jeffery, 64 F.3d at 593-94. The

only specific evidence offered by Ivory as to the lack of fire-safety measures

comes from Phillips’ affidavit, which merely attests to Phillips’s lack of awareness

of any such measures.      The affidavit does not explain any factual basis for

Phillips’s assertion, and Phillips’s lack of awareness does not contradict the

assertion in Boyd’s affidavit that such measures, in fact, existed. Accordingly, no

genuine issue exists with regard to fire-safety measures.

      Regarding the other conditions of confinement, whether considered

individually or in combination, we conclude that Ivory has not put forward specific


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facts by which we could conclude that a reasonable jury could find the challenged

conditions so objectively “serious” or “extreme” as to pose an unreasonable risk of

serious harm to Ivory’s future health or safety. See Chandler, 379 F.3d at 1289.

While the allegations are troubling, the evidence regarding the temperature,

ventilation, overcrowding, and supervision at Easterling fails to identify with

specificity the nature of the conditions and their impact on Ivory’s health or safety.

      In any case, even if Ivory had established an “excessive risk to inmate health

or safety,” liability cannot be imposed “solely because of the presence of

objectively inhumane prison conditions.” Farmer, 511 U.S. at 838, 114 S. Ct. at

1979. Ivory has not alleged any specific facts or produced any evidence indicating

that the named defendants, Bentley and Thomas, subjectively knew of and

disregarded a substantial risk so as to make out an Eighth Amendment claim. See

Chandler, 379 F.3d at 1289-90. Ivory’s contention that the conditions were so

obvious that the defendants had to have known about them is insufficient without

some proof of actual knowledge or circumstantial evidence by which such an

inference of knowledge could be drawn. See Farmer, 511 U.S. at 841-43, 114 S.

Ct. at 1981-82. Although the defendants may have known of similar conditions in

Alabama prisons generally as a result of other litigation or newspaper articles,




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there is nothing in the record to show that Bentley and Thomas knew of the

specific conditions at Easterling challenged by Ivory. 5

                                                C.

       Prisoners have a constitutional right of access to the courts. Bounds v.

Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977). This right “requires prison

authorities to assist inmates in the preparation and filing of meaningful legal papers

by providing prisoners with adequate law libraries or adequate assistance from

persons trained in the law.” Id. at 828, 97 S. Ct. at 1498. But in order to establish

a violation of that right, “a prisoner must show an actual injury,” a requirement that

derives from the doctrine of standing. Lewis v. Casey, 518 U.S. 343, 349, 116 S.

Ct. 2174, 2179 (1996).

       We have explained that “[a]ctual injury may be established by

demonstrating that an inmate’s efforts to pursue a nonfrivolous claim were

frustrated or impeded by a deficiency in the prison library or in a legal assistance

program or by an official’s action.” Barbour v. Haley, 471 F.3d 1222, 1225 (11th

Cir. 2006). General factual allegations of injury will not suffice at the summary-

judgment stage; rather the plaintiff “must set forth by affidavit or other evidence



       5
           To the extent that Ivory challenges the conditions at ADOC facilities generally, he
lacks standing to do so because there is no evidence that other facilities present a substantial risk
to Ivory’s health or safety. See Helling, 509 U.S. at 33-34, 113 S. Ct. at 2480-81; McGowan v.
Maryland, 366 U.S. 420, 430, 81 S. Ct. 1101, 1107 (1961) (litigants have standing to assert only
their own constitutional rights).
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specific facts, which for purposes of the summary judgment motion will be taken

to be true.” Id. (citation omitted).

      Ivory has not demonstrated that he was denied access to courts because he

has presented no evidence showing that he was denied the capability of pursuing

his claims in federal or state court, and thus sustained an actual injury. See Lewis,

518 U.S. at 349, 116 S. Ct. at 2179; Barbour, 471 F.3d at 1225. Rather, Ivory fully

participated in the instant action, filing responses to the defendants’ summary

judgment motion, objections to the magistrate judge’s report and recommendation,

and a motion to alter, amend, or reconsider the district court’s order granting

summary judgment to defendants. To the extent that Ivory claims to have suffered

actual injury in connection with post-conviction proceedings concerning his arrest

and conviction over fifteen years ago, he has not identified any way in which the

asserted denial of his access to courts injured his prosecution of these post-

conviction proceedings. Nor has Ivory offered any evidence to substantiate his

assertion that prison authorities retaliated against him for pursuing a meritorious

claim by burning down the law library. Therefore, the district court did not err in

granting summary judgment on Ivory’s access-to-courts claim.

                                         IV.

      In short, we affirm the grant of summary judgment in favor of Bentley and

Thomas.


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AFFIRMED.




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