                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                             ________________________ U.S.                  COURT OF APPEALS
                                                                         ELEVENTH CIRCUIT
                                                                         November 1, 2005
                                     No. 03-13492
                                                                          THOMAS K. KAHN
                               ________________________                        CLERK

                           D.C. Docket No. 01-14148-CV-NCR

PERRY T. HILTON,

                                                                   Plaintiff-Appellant,

                                             versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
James Crosby,
CAMBELL, COI,
HAYES, COII,
M. E. BILLMAN, COII,
BILLMAN, Lieutenant, et al.,

                                                       Defendants-Appellees.
                             __________________________

                  Appeal from the United States District Court for the
                             Southern District of Florida
                            _________________________
                                 (November 1, 2005)

Before BIRCH and WILSON, Circuit Judges, and DOWD*, District Judge.

BIRCH, Circuit Judge:

       *
           Honorable David D. Dowd, Jr., United States District Judge for the Northern District of
Ohio, sitting by designation.
       Florida prisoner Perry T. Hilton appeals the dismissal of his numerous civil

rights claims, filed pursuant to 42 U.S.C. § 1983, against several employees of the

Florida Department of Corrections (“DOC”). We conclude that the district court

erred by dismissing one of Hilton’s claims and affirm the remaining district court

rulings. Accordingly, we AFFIRM IN PART and VACATE and REMAND IN

PART.

                                   I. BACKGROUND

       Hilton filed this civil action alleging constitutional violations by numerous

Department of Corrections employees.1 He asserted that correctional officers

Campbell, Hayes, and Billman retaliated against him for filing grievances by

failing to notify him that family members had arrived for visiting hours, spitting

on him and threatening him, placing him administrative confinement, and refusing

to feed him. He maintained that Officer Tifft spit tobacco juice in his face, said he

was “going to kick [Hilton’s] black ass,” and placed Hilton in administrative

confinement. R1-1 at 8. Hilton alleged that Officers Ferguson, Saucedo, White,

and Tifft refused to feed him during an eight-hour period of administrative


       1
            Hilton named as defendants Department of Corrections Secretary Michael Moore,
Okeechobee Correctional Institution (“OCI”) Warden Jimmy Prevatt, OCI Assistant Warden J.R.
Jenkins, and OCI Correctional Officers M. Billman, Campbell, Dennis, B. Ellerbee, E. Ferguson,
K. Foster, J. Franza, Hamilton, Hayes, Margekguin, Norman, Saucedo, Stucche, G. Thompson,
Randall Tifft, M. White, L. Wooden, and six John Does.

                                              2
confinement and denied him food for a six-day period of confinement. He argued

that Warden Prevatt was liable for failing to remedy the constitutional violations.2

       The magistrate judge found that Hilton’s assertion that he had not been

notified of his family members’ presence during visiting hours failed to state a

claim under § 1983 because it alleged only a “de minimus inconvenience,” and his

contention that Tifft had verbally harassed him and spit tobacco juice in his face

was not actionable as excessive force under § 1983. R1-8 at 9. The magistrate

judge also found that Hilton had failed to state a claim against Prevatt because

§ 1983 liability cannot be premised on vicarious liability. Accordingly, the

magistrate judge recommended dismissal of these claims under 28 U.S.C. §

§ 1915(e)(2)(B)(ii) for failure to state a claim. Over Hilton’s objections, the

district court accepted the magistrate judge’s recommendation.

       Prior to the district court’s ruling, the court had directed the marshal to

personally serve the complaint and summons upon Billman, Dennis, Ellerbee,



       2
            Hilton also argued that (1) Campbell and Hayes denied him access to the law library;
(2) Thompson verbally assaulted him upon his release from segregated confinement; (3) Ellerbee
and Foster verbally assaulted and threatened him; (4) Billman retaliated against him by ordering
Margekguin to issue him a corrective consultation for disobeying an order; (5) Dennis, Hamilton,
and Wooden fabricated disciplinary charges against him; (6) he was forced to endure 29 days of
disciplinary confinement without personal hygiene items; and (7) Prevatt unconstitutionally seized
and opened his legal mail. Because Hilton does not argue these issues on appeal, they are deemed
waived. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998) (noting that issues not
argued on appeal are deemed waived).

                                                3
Ferguson, Hamilton, Margekguin, Saucedo, Tifft, White, and Wooden. After

service was returned unexecuted for Dennis, Hamilton, Margekguin, White, and

Wooden, Hilton asked that the court direct Moore to provide him with the home

addresses of these officers. The court denied Hilton’s motion and noted that

“[d]iscovery must be sought from defendants . . . pursuant to the Federal Rules of

Civil Procedure.” R2-55 at 1.

      Billman, Ellerbee, Ferguson, and Saucedo moved for summary judgment,

arguing, inter alia, that Hilton’s assertion that he had been placed in administrative

confinement in retaliation for filing a grievance lacked merit because prison

records indicated that Hilton was confined for disobeying an order. The officers

further maintained that Hilton was never denied food during his administrative

confinement, but that he refused an evening meal and had advised Saucedo that he

was on a hunger strike. Finally, the officers noted that Dennis, Hamilton,

Margekguin, White, and Wooden were not subject to the summary judgment

motion since they had not been served.

      In support of their motion, the officers attached a report of administrative

confinement detailing the events surrounding Hilton’s placement in administrative

confinement. According to the report, Tifft ordered that Hilton be placed in

confinement after Hilton disobeyed verbal orders to remain silent and then

                                          4
continued to raise his voice and argue with Tifft. R2-107, Exh. A at A4. They

also attached copies of the grievances in which Hilton complained that he was not

given dinner on two days and was denied all meals for six days. R2-107, Exh. B

at H & J.

      Hilton responded that Tifft’s statement that he had disobeyed a verbal order

was a fabrication, and that he never refused a meal or indicated that he was on a

hunger strike. He attached an affidavit stating that he was “placed in

administrative confinement in retaliation for exercising [his] First Amendment

rights.” R3-115, Exh. A at Hilton’s affidavit. He also, however, attached a copy

of an 8 May 1999 grievance with a response which explained that he was “not

placed in A.C. for filing a grievance. You were placed in AC for your actions

while being counseled with by Capt. Tifft. Your disorderly behavior warranted

your placement in A.C.” R3-115, Exh. C.

      Approximately three months after all motions to add parties or claims were

due to be filed, Hilton moved for a declaratory judgment, arguing that mailroom

employee Victoria Powell had refused to notarize his legal mail in retaliation for

filing the § 1983 action. He also claimed that prison officials had held his

outgoing legal mail in an unrelated criminal appeal for 31 days, and that he was

terminated from his position as medical orderly in retaliation for filing a grievance

                                          5
concerning the holding of his legal mail. Hilton requested an order directing that

the retaliation against him cease and demanding his reinstatement as a medical

orderly.

      The magistrate judge found that Hilton’s segregation claim was without

merit because Hilton had failed to rebut the defendants’ evidence that Hilton had

been placed in administrative confinement for disobeying a verbal order. The

magistrate judge next found that Hilton’s food-deprivation claim was barred under

42 U.S.C. § 1997e for his failure to exhaust administrative remedies because he

had failed to file an informal or formal grievance. Next, the magistrate judge

found that Hilton’s claims against Dennis, Hamilton, Margekguin, White, and

Wooden were subject to dismissal under Federal Rule of Civil Procedure 4(m)

because those defendants had not been served within 120 days after his complaint

was filed. Finally, the magistrate judge found that Hilton was not entitled to a

declaratory judgment because the actions of which he complained were remote in

time to the events at issue in the § 1983 action and the named individuals were not

defendants in the pending case. Accordingly, the magistrate judge recommended

(1) granting summary judgment in favor of Billman, Ellerbee, Ferguson, Saucedo,

and Tifft on Hilton’s segregation claim; (2) dismissing Hilton’s food-deprivation

claim under § 1997e; (3) dismissing Hilton’s claims against Dennis, Hamilton,

                                         6
Margekguin, White, and Wooden under Rule 4(m); and (4) denying Hilton’s

motion for a declaratory judgment. Although Hilton objected, the district court

adopted the magistrate judge’s recommendation and entered judgment

accordingly. Hilton now appeals.

                                 II. DISCUSSION

      Hilton raises six issues on appeal. First, he alleges that the district court

erred by dismissing under 28 U.S.C. § 1915(e)(2)(B)(ii) his retaliation claim

against Billman, Campbell, and Hayes. Second, Hilton argues that the court erred

by dismissing his excessive force claim against Tifft and Warden Prevatt, also

under § 1915(e)(2)(B)(ii). Third, Hilton maintains that the court erred by granting

summary judgment in favor of Billman, Ellerbee, Ferguson, Saucedo, and Tifft on

his claim that he had been placed in administrative confinement in retaliation for

filing a grievance. Fourth, Hilton asserts that the court erred by dismissing his

food-deprivation claim under § 1997e. Fifth, Hilton alleges that the court abused

its discretion by dismissing his claims against Dennis, Hamilton, Margekguin,

White, and Wooden under Rule 4(m). Finally, Hilton argues that the court abused

its discretion by denying his motion for a declaratory judgment. We discuss each

issue in turn.

A. Retaliation

                                          7
      We review de novo dismissals under § 1915(e)(2)(B)(ii), “viewing the

allegations in the complaint as true.” Mitchell v. Farcass, 112 F.3d 1483, 1490

(11th Cir. 1997). Dismissal is appropriate under § 1915(e)(2)(B)(ii) only when a

plaintiff “can prove no set of facts that would entitle him to relief.” See id.; see

also 28 U.S.C. § 1915(e)(2)(B)(ii).

      “To state a first amendment claim for retaliation, a prisoner need not allege

violation of a separate and distinct constitutional right.” Thomas v. Evans, 880

F.2d 1235, 1242 (11th Cir. 1989). “The gist of a retaliation claim is that a prisoner

is penalized for exercising the right of free speech.” Id.; see also Bridges v.

Russell, 757 F.2d 1155, 1156 (11th Cir. 1985) (holding that a prisoner stated a

claim of retaliation based on being transferred to another facility even though

prisoners have no liberty interest in remaining at a particular facility).

      The district court dismissed Hilton’s retaliation claim under

§ 1915(e)(2)(B)(ii) based on the magistrate judge’s finding that Hilton had been

denied only one hour of visitation and, thus, had suffered only a de minimus

injury. The question of whether Hilton’s alleged loss of visitation time constituted

a constitutional violation is irrelevant, however, for purposes of considering his

retaliation claim because the gist of his claim was that he was retaliated against for

filing a prison grievance. See Thomas, 880 F.2d at 1242. Hilton alleged in his

                                           8
complaint that Campbell, Billman, and Hayes retaliated against him for filing

grievances by failing to notify him that family members had arrived for visiting

hours. Viewing the allegations in the complaint as true, Hilton’s complaint stated

a claim of retaliation; thus, the district court’s dismissal of this claim under

§ 1915(e)(2)(B)(ii) was erroneous.3 See Bridges, 757 F.2d at 1157.

B. Excessive Force

        “[A] de minimus use of force cannot support a claim for excessive use of

force.” Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002). Hilton does

not contest the district court’s finding that the tobacco spitting incident involving

Tifft caused him only a de minimus injury. Additionally, no legal authority

supports Hilton’s proposition that Tifft’s alleged statement, that he was going to

“kick [Hilton’s] black ass,” amounts to a constitutional violation. Thus, the

district court properly dismissed Hilton’s excessive force claim against Tifft.4




       3
             We note that, although the “Report of Investigation” submitted by Billman, Tifft,
Saucedo, Ferguson, and Ellerbee in support of summary judgment addressed this incident, R2-107,
Ex. A at 3 (referencing an interview with Hilton on 16 September 1999); Ex. B at 19 (“I was never
notified of my visit until five minutes . . . .”). The exhibits do not include copies of any grievances
filed by Hilton regarding the officers’ failure to advise him of his family’s visits. It is, therefore,
unclear as to whether the district court considered any such grievances as to this issue.
       4
            Because Hilton has failed to state a claim for excessive force, we need not reach Hilton’s
additional argument that Tifft was not entitled to qualified immunity. See Conn v. Gabbert, 526 U.S.
286, 290, 119 S. Ct. 1292, 1295 (1999).

                                                  9
      Regarding his excessive force claim against Prevatt, Hilton contends for the

first time on appeal that Prevatt is liable for failing to adequately train and

supervise his subordinates. It is well-established that issues not raised in the

district court will not be considered on appeal. See Narey v. Dean, 32 F.3d 1521,

1526-27 (11th Cir. 1994) (setting forth five exceptions to this rule). Because

Hilton’s claim against Prevatt does not fall within one of the exceptions set forth

in Narey, this claim is deemed waived. Furthermore, because Hilton has failed to

present any evidence showing that Prevatt participated in the alleged

unconstitutional acts or that there was a causal connection between Prevatt and the

alleged constitutional violation, Hilton was not entitled to relief against Prevatt

based on respondeat superior. See Cross v. State of Ala., State Dep’t of Mental

Health & Mental Retardation, 49 F.3d 1490, 1508 (11th Cir. 1995) (holding that a

supervisor is liable only if he or she personally participates in the alleged

constitutional deprivation or there is a causal connection between actions of the

supervising official and the alleged constitutional violation).

C. Summary Judgment

      Hilton alleges for the first time on appeal that the defendants’ failure to

comply with his discovery requests precluded him from obtaining necessary

evidence to support his claim. We review de novo a district court’s grant of

                                           10
summary judgment, viewing the evidence in the light most favorable to the party

opposing the motion. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.

1997). Summary judgment is proper where “there is no genuine issue as to any

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

Id. (quoting Fed. R. Civ. P. 56(c)).

      Besides self-serving and conclusory allegations, Hilton has offered nothing

to rebut the evidence showing that he was placed in administrative confinement

for disobeying a verbal order rather than for filing a grievance.

D. Food Deprivation

      “We review de novo a district court’s dismissal . . . for failure to exhaust

available administrative remedies under § 1997e(a) of the PLRA [Prison Litigation

Reform Act].” Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000). Section

1997e of the PLRA states that “[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Brown,

212 F.3d at 1207 (holding that “when a state provides a grievance procedure for its

prisoners, . . . an inmate alleging harm suffered from prison conditions must file a




                                          11
grievance and exhaust the remedies available under that procedure before pursuing

a § 1983 lawsuit”).

      In Florida, “[i]nmates shall utilize the informal grievance process prior to

initiating a formal grievance.” Fla. Admin. Code Ann. r. 33-103.005(1) (2004). If

it is not feasible for the inmate to file a grievance within the relevant time period,

he will be granted an extension if he “made a good faith effort to file in a timely

manner.” Id. r. 33-103.011(2). If “[the] inmate decides to file a formal grievance,

he . . . shall do so by completing [and submitting to the warden] Form DC1-303,

Request for Administrative Remedy or Appeal.” Id. r. 33-103.006(1)-(a).

      The record reveals that Hilton failed to submit an informal or formal prison

grievance in conjunction with his claim that he was denied all meals for a six-day

period. See Brown, 212 F.3d at 1207. Hilton’s contention, that he was denied

grievance forms during his term of administrative confinement, does not entitle

him to relief because he fails to allege that he was unable to obtain these forms

once he was released from confinement. The district court did not, therefore, err

in dismissing this claim under § 1997e.

E. Dismissal Under Rule 4(m)

      We review a district court’s dismissal for failure to timely serve a summons

and complaint for abuse of discretion. Brown v. Nichols, 8 F.3d 770, 775 (11th

                                          12
Cir. 1993) (analyzing former Fed. R. Civ. P. 4(j)). “If service of the summons and

complaint is not made upon a defendant within 120 days after the filing of the

complaint, the court . . . shall dismiss the action without prejudice as to that

defendant or direct that service be effected within a specified time.” Fed. R. Civ.

P. 4(m).

        After service was returned unexecuted on Dennis, Hamilton, Margekguin,

White, and Wooden, Hilton moved the court to order defendant Moore to provide

him with the home addresses of these officers. The court denied Hilton’s motion,

stating that “[d]iscovery must be sought from defendants in the case pursuant to

the Federal Rules of Civil Procedure.” R2-55 at 1. More than one year later, the

court dismissed Dennis, Hamilton, Margekguin, White, and Wooden under Rule

4(m) for Hilton’s failure to properly serve them. After dismissal, Hilton attempted

to provide the court with Hamilton’s contact information, but this information was

properly refused because Hilton failed to show good cause for the delay. See Rule

4(m).

        Hilton now alleges that he was unable to serve these defendants for two

reasons: (1) because they failed to comply with his request for production of

documents and (2) because the DOC falsely told him that these officers were no

longer employed by DOC. Hilton’s first argument fails because his document

                                          13
request did not seek any contact information regarding the unserved defendants.

Hilton’s second argument fails because he did not present any evidence showing

the DOC was untruthful regarding the employment status of the unserved

defendants. Accordingly, the district court properly dismissed these defendants

under Rule 4(m).

F. Declaratory Judgment

      We review a district court’s “denial of declaratory relief for an abuse of

discretion.” McCullagh v. Dean Witter Reynolds, Inc., 177 F.3d 1307, 1308 (11th

Cir. 1999). “In a case of actual controversy within its jurisdiction, . . . any court of

the United States, upon the filing of an appropriate pleading, may declare the

rights and other legal relations of any interested party seeking such declaration.”

28 U.S.C. § 2201(a). “The procedure for obtaining a declaratory judgment

pursuant to Title 28, U.S.C., § 2201, shall be in accordance with [the Federal

Rules of Civil Procedure].” Fed. R. Civ. P. 57.

      Hilton moved for declaratory judgment based on his contention that prison

officials racially discriminated against him by withholding his outgoing legal mail

and terminating him from his medical orderly position. His motion, however,

violated the Federal Rules of Civil Procedure because it added parties and claims

that were not included in his complaint and was filed approximately three months

                                           14
after the expiration of the period allotted by the district court for adding additional

parties and claims. Hilton also failed to present any evidence in support of either

claim. Accordingly, the district court properly denied Hilton’s declaratory

judgment motion.

                                III. CONCLUSION

      We conclude that the district court erred by dismissing Hilton’s retaliation

claim against Billman, Campbell, and Hayes under § 1915(e)(2)(B)(ii), and vacate

the district court’s order as to this claim. We affirm the district court’s remaining

rulings: (1) dismissing Hilton’s excessive force claim against Prevatt and Tifft

under § 1915(e)(2)(B)(ii); (2) granting summary judgment in favor of Billman,

Ellerbee, Ferguson, Saucedo, and Tifft regarding administrative confinement; (3)

dismissing Hilton’s food-deprivation claim under § 1997e; (4) dismissing Dennis,

Hamilton, Margekguin, White, and Wooden under Rule 4(m); and (5) denying

Hilton’s motion for a declaratory judgment.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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