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Patterson v. Kelley

United States Court of Appeals, Eighth Circuit

September 5, 2018

Patric Patterson Plaintiff- Appellant
Wendy Kelley, Deputy Director Arkansas Department of Correction; Randy Watson, Varner Unit Defendants Kennie Bolden; Jeremy Andrews; Willie Bankston; Richard Mazzanti; Christie Simpson, Sergeant, Varner Unit, ADC; Anthony Bradley, Captain, Varner Unit, ADC Defendants - Appellees

          Submitted: April 12, 2018

          Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff

          Before GRUENDER, ARNOLD, and GRASZ, Circuit Judges.


         Patric Patterson brought this pro se civil rights action seeking monetary damages for injuries sustained when he was attacked by a fellow inmate at an Arkansas prison. He now appeals the district court's[1] denial of appointed counsel and adverse grant of summary judgment on his failure-to-protect claims against various corrections officials. For the reasons that follow, we affirm.


         On March 15, 2014, Patterson was housed in Barracks 13, an "open barracks" at the Arkansas Department of Correction's ("ADC") Varner Unit. That afternoon, Patterson and fellow inmate Michael Black had an altercation. Patterson subdued Black but released him after Black said, "Ok, it's over." Taking Black at his word and not wanting to be seen as a "snitch," Patterson did not to report the incident to prison officials. Unfortunately, his trust proved unfounded. Just after 3 a.m. the next morning, Black went to Patterson's bunk while he was sleeping and struck him repeatedly with a boot in a laundry bag. Over the course of this minute-long beating, Black also intermittently kicked Patterson. Black then returned several minutes later to deliver a few additional blows to Patterson, who had fallen to the ground and was nonresponsive. Patterson eventually received medical attention, but only after he managed to report the incident nearly ten minutes after the beating began. As a result of his injuries, Patterson underwent multiple surgeries and now has a glass eye.

         Richard Mazzanti was the duty officer assigned to Barracks 13 and 14 on the night of the attack. The officer at this post is generally positioned in a control booth located between the ends of the two 54-bed barracks, but the officer is also responsible for monitoring a hallway that runs along one side of Barracks 13 and 14. The hallway's glass walls allow the officer to see inside the barracks, including areas not visible from the control booth. That night, Mazzanti performed a visual check of the barracks from either the control booth or the hallway every thirty minutes, as required by ADC policy. A subsequent internal investigation confirmed that his post and all others were properly staffed during the relevant timeframe.

         In March 2015, Patterson filed a verified, pro se complaint pursuant to 42 U.S.C. § 1983 against the Director of the ADC, Mazzanti, and six other officials at the Varner Unit. The complaint claims that Black was able to assault Patterson "as a result of the fact that there was no security in the barracks." In particular, the complaint highlights an ADC policy prohibiting officers from entering the barracks alone. The complaint also alleges that Mazzanti "was not present in the booth or in the vicinity of the barracks" at the time of the attack, although Patterson later acknowledged in deposition testimony that he had no knowledge of Mazzanti's "comings and goings."

         The complaint asserts that the policy of assigning one officer to monitor two barracks was "inadequate" and that the officers' conduct, taken together, constituted "a crystal clear case of 'failure to protect.'" The complaint then identifies three "causes" of the incident:[2] (1) Manzzanti was "inattentive to his duties" despite "[k]nowing the propensity for violence in an unattended barracks"; (2) supervisory officials "knew that one . . . security officer was not enough security for two . . . barracks, housing 54 inmates each"; and (3) that each of the "defendants know that there are not enough staff members (security) to adequately maintain security, and provide direct supervision for the number of barracks there are and the number of inmates housed in those barracks."

         After commencing the action, Patterson represented himself without issue for several months. During this time period, he filed a successful application to proceed in forma pauperis, gathered evidence to support his claims through interrogatories and affidavits, identified and substituted defendant-officials for John Doe defendants, and exhibited a good command of relevant law. But in response to the defendants' first motion for summary judgment, Patterson moved for appointed counsel. The magistrate judge denied this motion, finding that the "claims are not legally or factually complex" and that Patterson had proven a capable advocate. The district court also denied the motion for summary judgment as to all but two of the defendants, allowing the case to proceed.

         Several months later, the remaining defendants moved to extend their deadline for dispositive motions by twenty days "due to the complexity of the claim involved, the amount of damages sought by the Plaintiff and the number of defendants involved." After the magistrate judge granted the extension on the basis of "good cause shown," Patterson filed a second motion for appointed counsel, which highlighted the court's apparently inconsistent findings as to the complexity of the case. The magistrate judge denied this second request, concluding that Patterson failed to show cause for reconsidering the denial of his original motion.

         The defendants again moved for summary judgment, arguing that they were entitled to qualified immunity as to the failure-to-protect claims. Along with his response in opposition, Patterson attached a variety of documentary evidence. As relevant here, Patterson submitted Mazzanti's interrogatory answer, which stated that he had "performed visual checks approximately every 30 minutes from the hallway and my control booth" and further confirmed that he was in one of those two locations at the time of the assault. But an affidavit from a fellow inmate claimed that officers regularly skipped security checks and noted that they "can't even see the whole barracks from those little windows [in the security booth]." Similarly, in his own affidavit, Patterson attested that "[o]fficers never came in the [barracks] unless it was count time or they had their own agenda"; that officers regularly logged security inspections that were not actually performed; and that "[t]he rack/bed where [he] was assaulted 23 times with a weapon and stomped on 6 times . . . cannot be seen from the booth." The end result, Patterson suggested, was that he had witnessed "many violent attacks, robberies, gambling, and homosexual activities" during his time at the Varner Unit.

         The district court referred the matter to the magistrate judge, who issued a report and recommendation ("R&R") concluding that the defendant-officials were entitled to summary judgment. The R&R bifurcated its analysis of Patterson's failure-to-protect claim, first considering whether the defendants failed to protect Patterson against any specific threat before addressing whether they were deliberately indifferent to a general threat to prisoners in Barracks 13 and 14. Given that Patterson himself did not anticipate Black's attack, the magistrate judge found that the failure-to-protect claim concerning this specific threat failed. As to the general threat, the R&R began by addressing Patterson's allegations against Mazzanti. The magistrate judge concluded that, even if Manzzanti was completely inattentive to his duties on the night of the attack, his conduct was at worst grossly negligent, which is not enough to constitute a violation of the Eighth Amendment. See Tucker v. Evans, 276 F.3d 999, 1001-02 (8th Cir. 2002). The R&R then rejected Patterson's suggestion that Varner's open-barracks policy violates the "constitutional minimum conditions" we discussed in Smith v. Arkansas Department of Corrections, 103 F.3d 637, 648 (8th Cir. 1996), a case which applied only to the policies and practices at Arkansas's Cummins Unit at a time when that facility was under specific remedial court orders, see Tucker, 276 F.3d at 1002-03. Moreover, the R&R noted, Patterson failed to adduce any evidence that the defendants were subjectively indifferent to any risks. Thus, the magistrate judge concluded that Patterson's failure-to-protect claims failed.

         The district court adopted the R&R in full and granted summary judgment on the remaining claims. Patterson now appeals, arguing that the district court[3] abused its discretion in denying his motions for appointed counsel and erred in granting the officers summary judgment. We address these challenges in turn.


         Patterson's primary claim on appeal is that the district court improperly refused his request for appointed counsel. As a result, Patterson argues, he was unable to marshal the facts to effectively support his claim. "We review the denial of a motion for appointment of counsel for an abuse of discretion, according the district court a good deal of discretion to determine whether representation is warranted given the nature of the case and the litigants." Ward v. Smith, 721 F.3d 940, 942 (8th Cir. 2013) (per curiam) (internal quotation marks omitted).

         As Patterson himself acknowledged, pro se litigants have neither a constitutional nor a statutory right to appointed counsel in civil cases. See Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). Instead, district courts may appoint counsel in such cases if convinced that an indigent plaintiff has stated a non-frivolous claim, see 28 U.S.C. § 1915(e), and where "the nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel," see Johnson v. Williams, 788 F.2d 1319, 1322 (8th Cir. 1986). "The relevant criteria for determining whether counsel should be appointed include the factual complexity of the issues, the ability of the indigent person to investigate the facts, the existence of conflicting testimony, the ability of the indigent person to present the claims, and the complexity of the legal arguments." Phillips, 437 F.3d at 794. Here, the district court considered these factors in rejecting Patterson's request for counsel, specifically finding that the facts and legal issues were not sufficiently complex to justify the appointment of counsel and that Patterson had proven capable of representing himself.

         On appeal, Patterson makes four arguments to show that the district court abused its discretion in making this determination. Three plainly fail. First, Patterson claims that, as an inmate, he was unable to interview witnesses and secure relevant information. Second, he suggests that his inartfully worded interrogatories allowed defendants to give evasive answers. And third, although his appointed appellate counsel concedes that Patterson did "a fair job of researching the law," she argues that "this is complex ...

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