David Williams v. Scott Horner

1 The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2896
___________
William Eugene Webb, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
William Hedrick, et al., *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: September 20, 2010
Filed: November 5, 2010
___________
Before GRUENDER, BRIGHT, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
Federal inmate William Eugene Webb appeals the district court’s1 adverse grant
of summary judgment on his action brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Upon de novo review,
Mumid v. Abraham Lincoln High Sch., 618 F.3d 789, 793 (8th Cir. 2010), we affirm.
Webb seeks damages from multiple employees at United States Medical Center
for Federal Prisoners in Springfield, Missouri (“MCFP-Springfield”): security officer

-- 1 of 4 --

2 Webb made additional claims in his complaint, but he pursues only these four
on appeal.
-2-
Jeff Sims; unit-team manager Scott Klinzing; unit-team counselor Darrell Bradley;
medical practitioners Mark Pearson and Thomas Hare; and warden William Hedrick.
Webb claims violations of the First and Eighth Amendments, alleging that Pearson
acted with deliberate indifference when he approved of Webb’s transfer from MCFP-
Springfield in 2003, all the defendants conspired to transfer him from MCFP-
Springfield in 2003 and 2004 in retaliation for engaging in protected conduct, Sims
and Bradley retaliated against him by transferring him to administrative segregation,
and Hedrick failed to respond to Webb’s complaints of retaliation and inadequate
medical care.2
Webb failed to create a genuine issue of fact on his claim that Pearson acted
with deliberate indifference when he approved of Webb’s transfer from MCFP-
Springfield in 2003. To establish deliberate indifference, Webb must demonstrate that
“he suffered objectively serious medical needs, and the officials actually knew of but
deliberately disregarded those needs.” Johnson v. Hamilton, 452 F.3d 967, 972-73
(8th Cir. 2006). Webb has asserted no facts from which to infer that Pearson knew of
Webb’s allegedly serious medical need. The facts that Webb does allege—that
Pearson relied on outdated medical information and never reexamined Webb before
authorizing his transfer—prove the opposite. At most, the facts Webb alleges support
a claim that Pearson acted negligently in failing to reexamine Webb before transfer,
but negligence alone is not actionable under the Eighth Amendment. Estelle v.
Gamble, 429 U.S. 97, 106 (1976).
As to Webb’s retaliation Bivens claims, we agree with the district court that
retaliation for engaging in protected conduct was not a “but for” factor in Webb’s
transfers from MCFP-Springfield. In raising a retaliatory transfer claim Webb
“face[s] a substantial burden in attempting to prove that the actual motivating factor

-- 2 of 4 --

3 Moreover, Webb had not engaged in protected activity before his 2004
transfer. Webb alleges that he was transferred in 2004 after providing legal assistance
to another inmate. However, “an inmate simply does not have the right to provide his
fellow inmates with legal assistance,” and a transfer based on such assistance “would
not constitute the violation of a protected right.” Gassler v. Rayl, 862 F.2d 706, 708
(8th Cir. 1988).
-3-
for his transfer was the impermissible retaliation.” Goff v. Burton, 7 F.3d 734, 737
(8th Cir. 1993) (quotations omitted). Even at summary judgment, “the burden is on
the prisoner to prove that but for an unconstitutional, retaliatory motive the transfer
would have not occurred.” Sisneros v. Nix, 95 F.3d 749, 752 (8th Cir. 1996) (quoting
Goff, 7 F.3d at 738)). Here, there is record evidence that Webb was returned to his
permanent medical facility in 2003 and 2004 because he no longer needed the medical
care at MCFP-Springfield. Even if retaliation was one factor in the decision to
transfer Webb, Webb has not shown that his transfer would not have occurred “but
for” the retaliation. See Kind v. Frank, 329 F.3d 979, 981 (8th Cir. 2003) (finding
retaliation not a “but for” cause of transfer where record demonstrated that inmate was
disciplined and transferred due to pattern of misbehavior); Ponchik v. Bogan, 929
F.2d 419, 420 (8th Cir. 1991) (rejecting retaliatory-transfer claim even where
retaliation was clearly factor in transfer).3
Similarly, Webb’s claim against Sims and Bradley fails because retaliation was
not a “but for” factor in Webb’s placement in administrative segregation pending
investigation. Webb alleges that he was placed in administrative segregation because
Sims, assisted by Bradley, fabricated an incident report in retaliation for Webb filing
administrative grievances. Webb has not alleged, however, any facts to indicate that
Sims or Bradley had personal involvement in his placement in administrative
segregation, and both men deny any connection. Regardless of whether the two
fabricated the disciplinary charge against Webb, neither was responsible for Webb’s
placement in administrative segregation pending investigation. See Griggs v. Norris,

-- 3 of 4 --

4 To the extent Webb argues that his placement in administrative segregation
based on a false disciplinary charge constituted cruel and unusual punishment, he
misunderstands the Eighth Amendment requirement. The prohibition against cruel
and unusual punishment is focused on the conditions of the administrative
segregation, not on the reasons for placement there. See Brown v. Nix, 33 F.3d 951,
954-55 (8th Cir. 1994). Webb does not allege that the conditions of the administrative
segregation were unconstitutional.
5 The Appellees also argue that Webb’s claims are barred because he failed to
exhaust his administrative remedies. Because we uphold the district court’s grant of
summary judgment on the merits, we do not answer this question.
-4-
297 F. App’x 553, 555 (8th Cir. 2008) (unpublished per curium); accord White v.
Bledsloe, 368 F. App’x 273, 275 (3d Cir. 2010) (unpublished per curium). 4
Finally, Webb’s retaliation and deliberate indifference claims against Hedrick
fail because Bivens liability cannot be established solely on a theory of respondeat
superior. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). Webb alleges that Hedrick
retaliated against Webb when Hedrick failed to respond to Webb’s multiple
complaints of retaliation by Hedrick’s staff. Under Bivens, however, Hedrick’s
inaction must itself have had a retaliatory motivation, see id. at 1948-49, and Webb
has produced no evidence to suggest Hedrick had the requisite intent. Webb also
alleges that Hedrick acted with deliberate indifference when he did not respond to
Webb’s complaints of inadequate medical care. As a non-medical professional,
however, Hedrick is not personally liable for his medical staff’s treatment decisions,
see Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002), and under Bivens, he
cannot be held vicariously liable for their actions, see Iqbal, 129 S. Ct. at 1948. 5
Accordingly, we affirm the district court’s grant of summary judgment.
______________________________

-- 4 of 4 --