Wimbush v. Conway

THERIAN CORNELIA WIMBUSH, Plaintiff-Appellant, v. R.L. (BUTCH) CONWAY, Gwinnett County Jail, SERGEANT THORNTON,DEPUTY WHITE, CAPTAIN THOMAS, DEPUTY MYRON WALKER,SERGEANT BARBER, DEPUTY INNOCENT, DEPUTY OBLEIN,DEPUTY CULBRETH, DEPUTY DAWN CLARK, DEPUTY MARTIN CAMPBELL,CAPTAIN SHAPIRO, Defendants-Appellees,MARK CAMPBELL et al., Defendants.

No. 17-13047

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

April 11, 2019

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 1:16-cv-00363-LMM Appeal from the United States District Court for the Northern District of Georgia

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:

Therian Cornelia Wimbush, a Georgia inmate, appeals pro se several orders entered by the district court in an action she brought pursuant to 42 U.S.C. § 1983 to challenge the conditions of her confinement at the Gwinnett County Jail (the "Jail"). Wimbush brings this appeal following a grant of summary judgment in favor of the 12 defendants, Sheriff R. L. (Butch) Conway, Sergeant James Thornton, Deputy Mark White, Captain Mark Thomas, Deputy Myron Walker, Sergeant Kelvin Barber, Deputy Martine Innocent, Deputy Jeffrey Oblein, Deputy Sean Culbreth, Deputy Dawn Clark, Deputy Martin Campbell, and Captain Myles Shapiro (collectively, the "County Officers"). On appeal, Wimbush argues that the district court erred by (1) dismissing, at the pleading stage, her "claims related to punishment of a pretrial detainee and the named defendant perpetrators," (2) denying her emergency motion for injunctive relief, (3) denying her leave to amend her complaint, (4) denying her request for appointment of counsel, (5)dismissing her mail policy and religious freedom claims for failure to exhaust administrative remedies, and (6) granting defendants' motion for summary judgment on her claim that she was she was denied all contact with her co-defendant husband and assessing costs against her. Appellant's Br. at 5. After careful review, we affirm.

I. BACKGROUND

Wimbush was charged in Georgia state court with several counts of cruelty to children. See Wimbush v. State, 812 S.E.2d 489, 499 (Ga. Ct. App. 2018). While detained at the Jail awaiting trial, Wimbush filed a pro se complaint in federal district court against various Jail officials, alleging that they violated her constitutional rights as a pretrial detainee by, among other things, punishing her for violating Jail rules; subjecting her to the Jail's inmate mail policy, which limited nonlegal mail to metered postcards; separating her in the Jail from her co-defendant husband; and infringing upon her religious freedom. In sum, the complaint alleged that more than 30 conditions of Wimbush's confinement amounted to unconstitutional punishment of a pretrial detainee. Wimbush requested declaratory and injunctive relief, as well as monetary damages.

Before the complaint was served on the defendants, a magistrate judge screened it pursuant to 28 U.S.C. § 1915A. The magistrate judge ordered Wimbush to submit an amended complaint that complied with certain conditionsset forth in the order. Specifically, the magistrate judge ordered her to allege against the various defendants only claims related to events arising out of the same transaction or occurrence. See Fed. R. Civ. P. 20(a)(2).¹ Wimbush moved for reconsideration, but the magistrate judge denied her motion and again ordered her to amend her complaint pursuant to his earlier order.

Wimbush then filed an amended complaint in which she alleged many of the same claims and listed as defendants not only the County Officers, but also other officials and entities who are not parties to this appeal.² Before service of process, the magistrate judge screened Wimbush's amended complaint pursuant to 28 U.S.C. § 1915A and issued a Report and Recommendation ("R&R") recommending that the district court dismiss the amended complaint without prejudice for failure to comply with the court's earlier order. Alternatively, the magistrate judge recommended that the district court allow only two of Wimbush's claims to proceed and dismiss the rest for failure to state a claim. Over Wimbush'sobjections, the district court adopted the R&R's alternative recommendation, modifying it slightly. The court allowed three of her claims to proceed, including the claims that (1) she was denied all contact with her co-defendant husband, (2) her incoming nonlegal mail was limited to postcards ("mail policy claim"), and (3) her rights to religious freedom were violated when the defendants accused her of misusing her prayer rug and ordered her to provide doctrinal support for her fast ("religious freedom claim"). The court dismissed her remaining claims pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim.

The County Officers filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) seeking, among other things, dismissal of Wimbush's mail policy and religious freedom claims for failure to exhaust her administrative remedies. Before the court ruled on this motion, Wimbush filed an "Emergency Motion for Injunction," alleging that officials were preventing her from using the law library and requesting that the court enjoin the officials from restricting her access. The magistrate judge issued another R&R recommending that the district court deny Wimbush's emergency motion for injunction and grant the County Officers' motion to dismiss. Wimbush objected. Before the district court ruled on her objections, Wimbush filed a combined motion for leave to amend her complaint for a second time and for appointment of counsel. The district court overruled Wimbush's objections, adopted the R&R, denied her emergency motionfor an injunction, dismissed her mail policy and religious freedom claims, and denied her combined motion for leave to amend and for appointment of counsel.

Following discovery, the County Officers moved for summary judgment on Wimbush's claim that she was she was denied all contact with her co-defendant husband. The magistrate judge issued an R&R recommending that the County Officers' motion for summary judgment be granted ("Summary Judgment R&R"). Wimbush did not immediately object. Noting the absence of any objections, the district court adopted the Summary Judgment R&R, granted summary judgment to the County Officers on that claim, and entered a final judgment. The court also taxed the County Officers' costs against Wimbush.³

Before the district court granted summary judgment and entered final judgment, Wimbush had delivered to prison officials for mailing two additional filings. In one, Wimbush objected to the magistrate judge's Summary Judgment R&R. In the other, Wimbush again moved for leave to amend and for appointment of counsel. In support, Wimbush argued, in part, that she wished to add multiple claims, including her previously dismissed mail policy claim, for which she alleged she had, by then, "fully exhausted her administrative remedies." Doc. 83 at ¶ 8.⁴She also argued that she was not legally trained and needed the assistance of counsel. Before the district court could address either filing, Wimbush delivered to prison officials for mailing a motion for reconsideration of the court's order adopting the Summary Judgment R&R, arguing that she had timely filed both her objections and her second combined motion for leave to amend and for appointment of counsel.

The district court granted Wimbush's motion to reconsider. After reviewing the Summary Judgment R&R de novo, the court adopted it over Wimbush's objections. The court also denied her second combined motion for leave to amend and for appointment of counsel.

This is Wimbush's appeal.

II. STANDARDS OF REVIEW

We review de novo a district court's sua sponte dismissal of a claim pursuant to 28 U.S.C. § 1915A(b)(1), Leal v. Ga. Dep't of Corr., 254 F.3d 1276, 1278-79 (11th Cir. 2001). "We review a district court's interpretation of the . . . exhaustion requirement de novo." Whatley v. Smith, 898 F.3d 1072, 1082 (11th Cir. 2018) (emphasis added). "However, we review the district court's factual findings on the issue of exhaustion for clear error." Id. We review de novo a district court's grant of a summary judgment motion. Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005).

We review for abuse of discretion a district court's denial of a motion for a preliminary injunction, Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016), denial of a motion for leave to amend, Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999), denial of a motion for appointment of counsel, Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999), and award of costs to a prevailing party. E.E.O.C. v. W&O, Inc., 213 F.3d 600, 619-20 (11th Cir. 2000).

III. DISCUSSION

Wimbush appeals several of the district court's orders. Specifically, she argues that the district court erred by (1) "dismissing [pursuant to 28 U.S.C. § 1915A(b)(1)] [her] claims related to punishment of a pretrial detainee and the named defendant perpetrators," (2) denying her emergency motion for injunctive relief, (3) denying her leave to amend her complaint, (4) denying her request for appointment of counsel, (5) dismissing her mail policy and religious freedom claims for failure to exhaust administrative remedies, and (6) granting defendants' motion for summary judgment on her claim that she was she was denied all contact with her co-defendant husband, as well as assessing against her the defendants' attorney's fees. Appellant's Br. at 5. In addition to rebutting Wimbush's arguments, the County Officers argue that we should hold her in contempt of court, strike her brief, and dismiss her appeal because her brief was untimely filed and failed to comply with aspects of Federal Rules of Appellate Procedure 28(a) and32(a). We disagree with the County Officers' contention that Wimbush's brief was untimely.⁵ And to the extent she has violated Rule 28(a) or Rule 32(a), which respectively govern...