           Case: 14-10150   Date Filed: 05/25/2016   Page: 1 of 16


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10150
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:10-cv-00502-MTT



MARVIN TURNER,

                                                            Plaintiff–Appellant,

versus

WARDEN,
GDCP,
DEPUTY WARDEN GLEN JOHNSON,
GDCP,
WILLIAM POWELL,
EARNEST MINTZ,
Special Management Unit Manager, GDCP,
MAJOR MICHAEL MOORE,
GDCP,
WESLEY BAKER,
Chief Counselor, GDCP,
COUNSELOR BENJAMIN MURPHY,
GDCP,
COUNSELOR RICKY FOSKEY,
SMU Counselor, GDCP,
HOOBLER,
former SMU Counselor, GDCP,
JAMES BROWN,
             Case: 14-10150      Date Filed: 05/25/2016    Page: 2 of 16


Grievance Coordinator, GDCP,
COUNSELOR GARY CALDWELL,
GDCP,
DEPUTY WARDEN VICTORIA MALONE,
GDCP,

                                                              Defendants–Appellees,

COMMISSIONER, DEPARTMENT OF CORRECTIONS,

                                                                           Defendant.

                           ________________________

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

                                   (May 25, 2016)

Before WILLIAM PRYOR, JULIE CARNES, and FAY, Circuit Judges.

PER CURIAM:

      Plaintiff Marvin Turner appeals the district court’s order granting summary

judgment to Defendants on his Eighth and Fourteenth Amendment claims arising

from his confinement in Georgia Diagnostic and Classification Prison’s (“Georgia

Diagnostic”) special management unit (“SMU”). After careful review, we affirm.

I.    Background

      Plaintiff is serving a life sentence without the possibility of parole for

murder. During his incarceration, Plaintiff racked up a number of disciplinary

reports for escaping, assaulting prison officers, possessing a weapon, and setting a


                                           2
              Case: 14-10150      Date Filed: 05/25/2016     Page: 3 of 16


fire. After Plaintiff’s escape, he was placed in the SMU at Georgia State Prison in

Reidsville. He was later transferred to the SMU at Georgia Diagnostic in Jackson.

      The SMU houses inmates with a history of disciplinary problems and who

are deemed security or escape risks. It consists of six wings, each of which

contains 32 single-man cells. Inmates are first assigned to E-wing, the most

restrictive section, and then progress to F-wing, D-wing, and on to C, B, and A-

wings. In E-wing, inmates are allowed to have only state-issued property, such as

a uniform, mattress, and books from the prison library. They cannot have any

personal property, nor can they have televisions. As inmates move through the

less-restrictive wings, their personal property is returned to them, including

magazines, personal clothing, games, or cards; they receive color televisions; and

they no longer have to wear handcuffs and leg irons when they come out of the

cell. Ultimately, an inmate is eligible to be transferred back to the general

population after progressing through each wing. But if an inmate receives a

disciplinary report, fails to follow instructions, or refuses to participate in cell

inspections, he may be sent back to E-wing. No matter which wing they are in,

though, all inmates in the SMU receive recreation time, showers, meals, visitation,

legal materials, and medical care.

      Plaintiff did not receive any kind of orientation to inform him of the

procedures in place at Georgia Diagnostic’s SMU. But he did learn from the


                                            3
              Case: 14-10150     Date Filed: 05/25/2016    Page: 4 of 16


warden that if he moved through the less restrictive wings, he would be transferred

back to the general population. And, while he argues that there was no rule that he

had to participate in daily inspections of his cell, he learned that he could be placed

back in a more restrictive wing if he refused to comply.

      Between November 2009 and October 2010, Plaintiff moved all the way up

to A-wing, where he was allowed to have all his personal property and a television

in his cell. But then Plaintiff refused to participate in the daily inspections because

he believed they were not mandated by prison policy. As a result, Plaintiff was

moved back to E-wing from October 1 until November 19, 2010. While Plaintiff

was in E-wing, he received visitation from his niece and mother four times,

received meals, and had opportunities for outdoor recreation.

      Plaintiff also testified that he was twice placed in a “strip cell” in October

2010. A strip cell is used for violent inmates who pose a threat to themselves or

others, but confinement is supposed to last no more than eight hours and is not

supposed to be used as punishment. When an inmate is placed in a strip cell, all

personal and state-issued property is confiscated and the inmate is given only a

paper gown and booties to wear. One time Plaintiff was left naked in a strip cell

for twelve hours. Later, he was placed in a strip cell naked for ten days and was

left without any food for a 24-hour period.




                                           4
                 Case: 14-10150       Date Filed: 05/25/2016      Page: 5 of 16


         In November 2010, Plaintiff was moved from E-wing to C-wing and his

personal property was returned to him. On December 28, 2010, Plaintiff filed this

action under 42 U.S.C. § 1983, alleging numerous constitutional violations related

to his confinement in the SMU and strip cell.1 Defendants include the warden and

various prison officials at Georgia Diagnostic. Following a frivolity review and

the dismissal of several claims and defendants, only Plaintiff’s individual-capacity

Eighth and Fourteenth Amendment claims remained. The court granted summary

judgment to Defendants on the Eighth Amendment claims and the due process

claim based on confinement in the SMU. See Turner v. Upton, No. 5:10-CV-502

(MTT), 2013 WL 4852689, at *14 (M.D. Ga. Sept. 10, 2013). The court let

Plaintiff’s due process claim related to his ten-day confinement in a strip cell

proceed to trial. See id. A jury later found in favor of Defendants.

         Plaintiff appeals the court’s summary judgment order and its dismissal of

several defendants for failure to serve.

II.      Discussion

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

all inferences in favor of the nonmoving party. Leigh v. Warner Bros., Inc., 212

F.3d 1210, 1214 (11th Cir. 2000). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together


1
    On March 1, 2011, Plaintiff was transferred to Macon State Prison.
                                                 5
                Case: 14-10150       Date Filed: 05/25/2016       Page: 6 of 16


with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue of

fact is ‘material’ if, under the applicable substantive law, it might affect the

outcome of the case.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,

1259–60 (11th Cir. 2004).

       A.      Due Process Claim

       Plaintiff insists that the district court resolved factual disputes and failed to

view the evidence in the light most favorable to him. Plaintiff also complains

about the conditions of the SMU,2 asserts that Defendants failed to periodically

review his confinement status, and argues at length that prison officials did not

follow the prison’s standard operating procedures and thus operated the SMU

arbitrarily. For these reasons, he argues that his due process claim should have

survived summary judgment.

       To show that Defendants placed Plaintiff in the SMU without due process,

Plaintiff must first establish that he had a liberty interest in freedom from

confinement in the SMU. A liberty interest protected by the Fourteenth

Amendment may arise from the Due Process Clause itself, or state law may create
2
  Plaintiff argues that his initial placement without a hearing in the SMU at Georgia State Prison
and his subsequent transfer to Georgia Diagnostic violated due process. But Defendants, all of
whom are officials at Georgia Diagnostic, played no role in these decisions. And because
Plaintiff did not name as defendants any Georgia State Prison officials who were actually
responsible for his initial placement in the SMU and transfer, we do not review these claims.
                                                6
              Case: 14-10150      Date Filed: 05/25/2016    Page: 7 of 16


a liberty interest. See Sandin v. Conner, 515 U.S. 472, 483–84 (1995). A liberty

interest can arise from the “Due Process Clause of its own force” if a prisoner’s

liberty is restrained in a way that exceeds the sentence imposed by the court. See

id. at 484; cf. Vitek v. Jones, 445 U.S. 480, 487–94 (1980) (prisoner had liberty

interest in not being involuntarily confined to mental hospital without a finding

that he was mentally ill and could not secure adequate treatment in correctional

facility); Kirby v. Siegelman, 195 F.3d 1285, 1290–92 (11th Cir. 1999) (prisoner

who had never been convicted of a sex crime had liberty interest in not being

classified as a sex offender without due process protections). But the Supreme

Court “ha[s] held that the Constitution itself does not give rise to a liberty interest

in avoiding transfer to more adverse conditions of confinement.” Wilkinson v.

Austin, 545 U.S. 209, 221 (2005); see also Meachum v. Fano, 427 U.S. 215, 225

(1976) (“Confinement in any of the State’s institutions is within the normal limits

or range of custody which the conviction has authorized the State to impose.”).

Thus, a prisoner does not have “an interest [based on the Due Process Clause] in

being confined to a general population cell, rather than the more austere and

restrictive administrative segregation quarters.” Hewitt v. Helms, 459 U.S. 460,

466–67 (1983), modified on other grounds by Sandin, 515 U.S. at 481. Because

Plaintiff was only placed in a more restrictive section of the prison, he has failed to




                                           7
                Case: 14-10150     Date Filed: 05/25/2016   Page: 8 of 16


show that his incarceration in the SMU exceeded the sentence imposed by the

court.

         Instead, to establish a due process claim, Plaintiff must show that he had a

state-created liberty interest in avoiding particular conditions of confinement

arising from state policies or regulations. See Wilkinson, 545 U.S. at 222. In other

words, he must show that the conditions in the SMU “impose[d] atypical and

significant hardship[s] on [him] in relation to the ordinary incidents of prison life.”

Sandin, 515 U.S. at 484. “[T]he touchstone of the inquiry into the existence of a

protected, state-created liberty interest in avoiding restrictive conditions of

confinement is not the language of regulations regarding those conditions but the

nature of those conditions themselves” compared to ordinary prison. Wilkinson,

545 U.S. at 223.

         Plaintiff relies on Wilkinson v. Austin, where the Supreme Court held that

prisoners had a liberty interest in avoiding confinement in a “Supermax” prison

because the conditions there constituted an atypical and significant hardship. Id. at

224. Specifically, almost all human contact was prohibited, including conversation

between cells; a light in the cell was on for 24 hours per day; exercise was only

allowed in a small indoor room; confinement was indefinite and was only reviewed

annually; and placement in the Supermax facility disqualified otherwise eligible

inmates from parole consideration. Id. at 223–24. The Supreme Court explained


                                            8
              Case: 14-10150     Date Filed: 05/25/2016   Page: 9 of 16


that, “[w]hile any of these conditions standing alone might not be sufficient to

create a liberty interest, taken together they impose an atypical and significant

hardship within the correctional context.” Id. at 224.

      According to the undisputed evidence, the conditions in the SMU were

similar to those in the general population. Plaintiff regularly received meals and

five hours of outdoor recreation time each week. He was allowed to shower three

times per week. Unless he was in the most restrictive wing, he was allowed to

have his personal property and in some wings even had a television in his cell.

Plaintiff was not denied human contact and even received visitation on the

weekends. These conditions are a far cry from those in Wilkinson.

      Plaintiff further asserts that he was denied sleep because the prison kept the

lights on during the day when he preferred to sleep. He says it was quiet during

the day, but it was more difficult to sleep at night because prisoners in the SMU

made a lot of noise. So, he preferred to stay up at night and do legal work. But his

preference to sleep during the day does not create an atypical and significant

hardship. Even though prisoners disturbed Plaintiff at night by making noise, he

has not shown how this differs from normal prison conditions. Nor does he claim

that the lights in the cell prevented him from sleeping like in Wilkinson. See id. at

214 (light remained on in cell at all times, and inmates who attempted to shield the

light to sleep were subject to further discipline). On the contrary, he complains


                                          9
                Case: 14-10150        Date Filed: 05/25/2016        Page: 10 of 16


that the night light in his cell was not bright enough for him to read and write.

Therefore, the conditions in the SMU did not prevent him from sleeping.

       In Wilkinson, officials reviewed the appropriateness of prisoners’

confinement in the Supermax only once a year after an initial 30-day review. Id. at

224. Here it is undisputed that Plaintiff progressed through the less restrictive

wings, so his confinement conditions were not static. If he progressed to A-wing,

he knew he would be eligible for transfer to the general population. On the other

hand, he knew that he would be placed in a more restrictive wing if he did not obey

the guards’ orders. He also unsuccessfully appealed his assignment to the SMU in

December 2009. Even if he had not appealed his placement in the SMU,

Plaintiff’s confinement status was adjusted depending on his behavior, meaning his

restrictions were reviewed far more often than in Wilkinson. 3

       In short, there is no combination of factors demonstrating that Plaintiff’s

incarceration in the SMU imposed an atypical and significant hardship compared

to ordinary prison.4 Consequently, Plaintiff had no liberty interest in avoiding




3
  To further distinguish Wilkinson, Plaintiff’s assignment to the SMU did not affect his parole
status, as he is not eligible for parole.
4
  We further find that the district court properly viewed the evidence in Plaintiff’s favor, and
Plaintiff fails to point to any material factual disputes regarding his claims. Plaintiff insists that
there were no policies in place governing the operation of the SMU or requiring him to
participate in inspections, but Sandin made clear that we must consider Plaintiff’s conditions, not
the existence or language of prison regulations. See Sandin, 515 U.S. at 484.
                                                 10
             Case: 14-10150     Date Filed: 05/25/2016    Page: 11 of 16


confinement in the SMU, and the district court correctly granted summary

judgment to Defendants on this claim.

      B.     Eighth Amendment Claims

      Plaintiff next argues that the court erred by finding that the conditions of the

SMU and strip cell did not violate the Eighth Amendment. He argues that he was

deprived of basic human needs and that Defendants acted with deliberate

indifference to the risks he faced in such conditions. The Eighth Amendment

protects against “cruel or unusual punishments.” U.S. Const. amend. VIII. The

“cruel and unusual punishments” standard applies to the conditions of a prisoner’s

confinement. Rhodes v. Chapman, 452 U.S. 337, 345–46 (1981). To establish a

violation of the Eighth Amendment, a prisoner must first show that a condition is

an objectively “cruel and unusual deprivation,” and second, that the officials

responsible for the condition had the subjective intent to punish. Taylor v. Adams,

221 F.3d 1254, 1257 (11th Cir. 2000).

      As for the first element, the challenged condition must be extreme and “pose

an unreasonable risk of serious damage to [an inmate’s] future health” or safety.

Helling v. McKinney, 509 U.S. 25, 35 (1993). The Eighth Amendment thus

guarantees that prisoners will not be “deprive[d] . . . of the minimal civilized

measure of life’s necessities.” Rhodes, 452 U.S. at 347. Yet if prison conditions




                                          11
             Case: 14-10150      Date Filed: 05/25/2016    Page: 12 of 16


are merely “restrictive and even harsh, they are part of the penalty that criminal

offenders pay for their offenses against society.” Id.

      We have recognized “that administrative segregation and solitary

confinement do not, in and of themselves, constitute cruel and unusual

punishment.” Sheley v. Dugger, 833 F.2d 1420, 1428–29 (11th Cir. 1987).

Construing the facts in Plaintiff’s favor, Plaintiff has failed to show that the

conditions of his confinement created an unreasonable risk of harm to his health or

safety. Even though he argues that he was left in a strip cell for ten days without

clothing, there is still no evidence that he faced any serious harm. Indeed, his only

complaint was that he was cold, but “a prisoner’s mere discomfort, without more,

does not offend the Eighth Amendment.” Chandler v. Crosby, 379 F.3d 1278,

1295 (11th Cir. 2004). The prison temperature was set at 78 degrees in the

summer and 74 in the winter, and Plaintiff does not assert that he experienced

anything beyond mere discomfort, let alone that he was exposed to extreme

temperatures in October when he was placed in the strip cell. Cf. Dixon v.

Godinez, 114 F.3d 640, 644 (7th Cir. 1997) (freezing temperatures that allowed ice

to form on cell walls and that persisted both day and night for several winters could

violate the Eighth Amendment). And although he says he was not given any food

for a 24-hour period, he was not regularly deprived of adequate nutrition and

points to no evidence that his health was jeopardized due to this single deprivation.


                                           12
               Case: 14-10150        Date Filed: 05/25/2016        Page: 13 of 16


Consequently, these conditions do not rise to the level of cruel and unusual

deprivations. Summary judgment on these claims was proper.5

       C.      Service of Process

       After the district court ordered service on Defendants, the requests for

waiver of service for four of them were returned unexecuted because those

defendants no longer worked at Georgia Diagnostic. The court ordered Plaintiff to

provide current mailing addresses if he wanted to proceed with his claims.

Plaintiff wrote two letters to the court explaining that he could not provide the

defendants’ addresses because he was incarcerated. He suggested that the Georgia

Department of Corrections or Office of the Attorney General would have that

information. Over a year later, the court entered an order to show cause why the

claims against the unserved defendants should not be dismissed and faulted

Plaintiff for failing to diligently pursue his claims against the unserved defendants.

Plaintiff did not respond, but he later objected to the defendants’ dismissal in

response to the magistrate judge’s report and recommendation. The district court

adopted the R&R and dismissed the unserved defendants.

       We review for abuse of discretion a court’s dismissal for failure to timely

serve a defendant under Federal Rule of Civil Procedure 4(m). Lepone-Dempsey v.

5
  With respect to Plaintiff’s strip cell due process claim, Plaintiff appeals the district court’s
decision to allow nominal damages but exclude compensatory damages in the absence of bodily
injury. Because Plaintiff lost on his claim at trial and does not appeal the jury’s defense verdict,
we need not address his damages argument.
                                                 13
                Case: 14-10150   Date Filed: 05/25/2016    Page: 14 of 16


Carroll Cty. Comm’rs, 476 F.3d 1277, 1280 (11th Cir. 2007). This standard

requires this Court to “affirm unless [it] find[s] that the district court has made a

clear error of judgment, or has applied the wrong legal standard.” Rance v.

Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009).

      Under Rule 4(m), the district court “must dismiss the action without

prejudice . . . or order that service be made within a specific time” if the defendant

has not been served within 120 days of the filing of the complaint. Fed. R. Civ. P.

4(m). The court must extend the time for service, however, if the plaintiff shows

“good cause” for the failure. Id. For prisoners proceeding in forma pauperis,

“[t]he officers of the court shall issue and serve all process.” 28 U.S.C. § 1915(d).

We have held that the U.S. Marshals Service’s failure to serve a defendant on

behalf of an in forma pauperis plaintiff, through no fault of that plaintiff,

constitutes “good cause” under Rule 4(m). Rance, 583 F.3d at 1288. We have

further held:

      It is unreasonable to expect incarcerated and unrepresented prisoner-
      litigants to provide the current addresses of prison-guard defendants
      who no longer work at the prison. Thus, . . . as long as the court-
      appointed agent can locate the prison-guard defendant with reasonable
      effort, prisoner-litigants who provide enough information to identify
      the prison-guard defendant have established good cause for Rule 4(m)
      purposes.

Richardson v. Johnson, 598 F.3d 734, 739–40 (11th Cir. 2010); see also Fowler v.

Jones, 899 F.2d 1088, 1095–96 (11th Cir. 1990) (prisoner-litigant proceeding in


                                           14
             Case: 14-10150      Date Filed: 05/25/2016    Page: 15 of 16


forma pauperis not at fault for failure of service when he acted reasonably by

requesting service on the appropriate defendant and attempting to remedy any

service defects he knew about).

      According to the record, service was attempted only once on the four

defendants. The district court did not make a finding that the defendants could not

be located with reasonable effort. Even so, we find no reversible error. The above

analysis of the merits of Plaintiff’s constitutional claims applies equally to the

unserved defendants. Cf. Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001)

(“Several courts have held that where ‘a defending party establishes that plaintiff

has no cause of action . . . this defense generally inures also to the benefit of a

defaulting defendant.’” (quoting United States v. Peerless Ins. Co., 374 F.2d 942,

945 (4th Cir. 1967))). Plaintiff has had ample opportunity to support his claims

with evidence and to respond to Defendants’ arguments that they did not violate

his constitutional rights. The conditions of Plaintiff’s confinement and his alleged

lack of due process did not depend on any particular allegations against the

unserved defendants. To remand this case for the district court either to direct

further efforts to serve defendants or to make a finding that these defendants

cannot be located would be futile and a waste of judicial resources. See Columbia

Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 802–03 (9th Cir. 1995)

(affirming sua sponte summary judgment in favor of nonappearing party when


                                           15
             Case: 14-10150     Date Filed: 05/25/2016    Page: 16 of 16


plaintiffs “had a full and fair opportunity to brief and present evidence on the

issues raised by [defendant],” the same issues controlled as to the nonappearing

defendant, and plaintiffs did not suggest that their case against that defendant

would be any different). We affirm the dismissal of the unserved defendants.

III.   Conclusion

       For the foregoing reasons, we affirm the court’s order granting summary

judgment to Defendants and dismissing the unserved defendants.

       AFFIRMED.




                                          16
