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Gardner v. Calhoun County Sheriff's Office

United States District Court, N.D. Alabama, Eastern Division

December 5, 2014

KENNETH ALLEN GARDNER, SR., Plaintiff,
v.
CALHOUN COUNTY SHERIFF'S OFFICE et al., Defendants

Kenneth A Gardner, Sr, Plaintiff, Pro se, Anniston, AL.

For Calhoun County Sheriff's Office, Williams, Officer, Lt Abernathy, Star, Sgt, Garlike, Sgt, Defendants: Fred Lee Clements, Jr, LEAD ATTORNEY, WEBB & ELEY PC, Montgomery, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

T. MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.

The plaintiff, Kenneth Allen Gardner, Sr., was incarcerated in the Calhoun County Jail when he filed this pro se action pursuant to 42 U.S.C. § 1983 on November 30, 2012. (Doc. 1).[1] He alleges that at that facility, defendants Officer Williams, Lt. Abernathy, Sgt. Starr, and Sgt. Garlike subjected him to cruel and unusual punishment. (Id. at 3-5). As compensation for the alleged constitutional violations, the plaintiff seeks monetary and injunctive relief. (Id. at 5). In accordance with the usual practices of this Court and 28 U.S.C. § 636(b)(2), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991).

I. Procedural History

On April 1, 2013, an Order for Special Report was entered directing the defendants to respond to the allegations in the plaintiff's complaint. (Doc. 5). On August 1, 2013, the defendants filed a special report accompanied by copies of applicable portions of the plaintiff's inmate file and the affidavit of Jail Administrator Eric Starr. (Doc. 22). The defendants also filed an answer. (Doc. 23). On October 1, 2013, the undersigned entered an order construing the defendants' special report as a motion for summary judgment, and instructed the plaintiff to respond to the motion within twenty (20) days from the entry date of the order. (Doc. 24). The plaintiff filed no response. On May 29, 2014, the undersigned entered a report and recommendation, recommending that summary judgment be granted in favor of the defendants. (Doc. 26). The plaintiff was afforded twenty (21) days to object to the recommendation. (Id. at 11). The plaintiff filed no objections.

The defendants' special report, the order construing the report as a motion for summary judgment, and the summary judgment report and recommendation were mailed to the plaintiff at the Calhoun County Jail. However, according to exhibits submitted by the defendants in their special report, he was released from that facility on April 11, 2013. See supra , n.1. Since the plaintiff provided a home address in his complaint, on July 1, 2014, the summary judgment report and recommendation was withdrawn, and the clerk was directed to send a copy of the defendants' motion for summary judgment (docs. 22 & 23) to the plaintiff at his home address. (Doc. 28). The plaintiff was notified he would have thirty days to respond to the motion for summary judgment, filing affidavits or other material if he chose. (Id. at 3). He also was advised of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. (Id. at 2-3) (citing Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985)). The plaintiff has not responded.

II. Standard of Review

Because the special report of the defendants is being considered a motion for summary judgment, the court must determine whether the moving parties, the defendants, are entitled to judgment as a matter of law. Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(e) . In making that assessment, the court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden of proof is upon the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). Once that initial burden has been carried, however, the non-moving party may not merely rest upon his pleading, but must come forward with evidence supporting each essential element of his claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990). As the Eleventh Circuit has explained:

Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prima facie case. " In such a situation, there can be 'no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." [citations omitted]. Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

898 F.2d at 1532.

III. Undisputed Facts

Applying the above standard to the facts before the court, the following facts are undisputed or, if disputed, are taken in a light most favorable to the plaintiff. On August 10, 2012, the plaintiff was arrested for Domestic Violence, Unlawful Manufacture of Methamphetamine, Possession of a Controlled Substance, and Possession of Drug Paraphernalia. (Doc. 22-1, Ex. A at 1-9). At his preliminary hearing on September 10, 2012, the plaintiff was in the courtroom and asked Officer Williams to take him to the restroom. (Doc. 1 at 3, 5). Officer Williams refused the request and when the plaintiff could no longer wait, he urinated on the floor. (Id. at 3). The plaintiff was removed from the courtroom and returned to the jail where he was stripped naked, put in a " turtle suit" in the suicide room, and given only a blanket made of the same material as the turtle suit. (Id. at 3-4). The suicide room is " a room about 4 feet wide and 9 feet long, " containing only " an overhead bright light[.]" (Id. at 4). Therefore, the plaintiff had no way " to wash [his] hands or . . . " use the bathroom." (Id.).

The plaintiff alleges he was " almost forgotten about a few times" during the eight-day period. (Id.). As a result, he did not get fed on a few occasions, and had to beg for water, a shower, and to use the restroom. (Id.). The plaintiff declares that he " had to hold on to [his] drink carton so [he] could relieve himself most of the time" because " most of the time [he] would ask to go to the restroom . . . they would tell [him] in a min[ute], " but would not reappear " 2 or 3 hours" and by then it was " too late." (Id.).

Based upon these facts, the plaintiff maintains he was subjected to cruel and unusual punishment while in the Calhoun County Jail. (Id. at 5). He wants " to [e]nsure no one else has to endure" what he did, demands $50, 000 for his pain and suffering, and that the charges against him be " abolished." (Id.).

Pursuant to a plea agreement, on April 11, 2013, the plaintiff pleaded guilty to felony possession of drug paraphernalia and assault second degree. (Doc. 22-5 at 5-8). He received two concurrent 15 year sentences, split, with time served on the split. (Id. at 5, 7). Two other charges, possession of controlled substance and possession of drug paraphernalia, were dismissed nolle prosequi. (Id. at 3). The plaintiff was placed on probation and released to " APD." (Id. at 4). The inmate release form reads that " APD will extradite." (Id. at 2).

The plaintiff admits Calhoun County Jail has a " prisoner grievance procedure." (Id. at 2). He declares he " asked for a form to file a gr[ie]vance but was told [he] couldn't wasn't [sic] allowed to file a complaint." (Id.). All defendants are deputies in the Calhoun County Jail.

IV. Analysis

A. Exhaustion of Administrative Remedies

1. The defendants' motion to dismiss

The defendants move to dismiss the plaintiff's case on the basis that he failed to exhaust the administrative remedies available to him at the Calhoun County Jail. (Doc. 22 at 6-9; Doc. 22-5 at, 4-6). In support of their motion, the defendants submitted the affidavit of Jail Administrator Eric Starr. (Doc. 22-5, Ex. E). Starr attests the jail " has a procedure for handling requests and grievances from inmates." (Id. at 4). The grievance procedure is set out in the Inmate Handbook, a copy of which is given to an inmate " at booking." (Id. at 5). The Jail has separate forms for requests, grievances and medical matters. (Id. at 4).

" It is the policy of the Calhoun County Sheriff's Office that members of the Calhoun County Jail staff receive and answer any written grievances or requests by inmates to any employee of the Calhoun County Sheriff." (Id.). Moreover,

[a] cart is pushed through the jail by a corrections officer twice daily and inmates may place their grievance or request form in the boxes on this cart. The cart has two locked boxes with an opening in the top for the forms, one is labeled for Inmate Request Forms and the other is labeled for grievances. All grievances and inmate requests are routed to the Jail Administrator or the Lieutenant and, if necessary, forwarded by him or her to the proper authority.

(Id.).

The Inmate Handbook instructs inmates to " address grievances to the Jail Administrator or Lieutenant." (Id. at 5). Jail officials must respond to the grievance " as soon as possible" and " write their response on an inmate form, giving findings regarding approval or disapproval of a complaint, then sign and date their response, return a copy to the inmate, and place a copy in the inmate's jail file." (Id.). " If an inmate is unsatisfied with the response to a grievance, the inmate may appeal the decision to the Sheriff within five days of the decision by the jail administrator or the Lieutenant." (Id.).

Starr declares that the plaintiff's inmate file only displays two inmate request forms, neither of which are related to the allegations of his complaint. (Id. at 4-6). He also states the plaintiff's inmate file does not contain any other Inmate Request Forms or any Grievance Forms. (Id.).

The plaintiff did not respond to the defendants' motion. Nonetheless, in his 42 U.S.C. § 1983 complaint, which was signed under penalty of perjury, the plaintiff alleges he was told he was not allowed to file a complaint when he asked for a grievance form. (Doc. 1 at 2, 5).

2. Analysis

In 1996, Congress enacted the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (" PLRA") in an attempt to control the flood of prisoner lawsuits. Title 42 U.S.C. § 1997e (a), as amended by the Prison Litigation Reform Act of 1995, provides:

No 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.

In Alexander v. Hawk, 159 F.3d 1321 (11th Cir. 1998), the Eleventh Circuit Court of Appeals discussed the amendment of 42 U.S.C. § 1997e (a) by the PLRA, concluding that " Congress now has mandated exhaustion" and that " exhaustion is now a pre-condition to suit [by prisoners]." 159 F.3d at 1325-26. The Court of Appeals for the Eleventh Circuit has also made it very clear that a district court may not waive this exhaustion requirement. Id. at 1326. In Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001), the Supreme Court, interpreting the intent of Congress, concluded that exhaustion of administrative remedies is now mandatory even if the procedures to do so do not meet certain " minimum acceptable standards" of fairness and effectiveness, and courts cannot excuse exhaustion even when it would be " appropriate and in the interests of justice." Id. at 740 n.5.

" [T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). " Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Complete exhaustion of administrative remedies is required even if the administrative process cannot provide the plaintiff with the relief he seeks. Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to " affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Nussle, 534 U.S. at 525; see also Booth, 532 U.S. at 739.

The issue of exhaustion must be addressed prior to a review of the defendants' motion for summary judgment. As stated by the Eleventh Circuit,

a defense of failure to properly exhaust available administrative remedies under the PLRA should be treated as a matter in abatement. Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008). This means that procedurally the defense is treated " like a defense for lack of jurisdiction, " although it is not a jurisdictional matter. Id. As a result, deciding a motion to dismiss for failure to exhaust administrative remedies is a two-step process. Cf. Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (describing the " two forms" of attacks--facial and factual--on subject matter jurisdiction).
First, the court looks to the factual allegations in the defendant's motion to dismiss and those in the plaintiff's response, and if they conflict, takes the plaintiff's version of the facts as true." If, in that light, the defendant is entitled to have the complaint dismissed for failure to exhaust administrative remedies, it must be dismissed. See Bryant, 530 F.3d at 1373-74 (concluding that there was a genuine issue of material fact about the availability of administrative remedies before addressing the propriety of the district court acting as a factfinder to resolve the issue); cf. Lawrence, 919 F.2d at 1529 (" Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." (citation, alterations, and quotation marks omitted)). This process is analogous to judgment on the pleadings under Federal Rule of Civil Procedure 12(c).
If the complaint is not subject to dismissal at the first step, where the plaintiff's allegations are assumed to be true, the court then proceeds to make specific findings in order to resolve the disputed factual issues related to exhaustion. Bryant, 530 F.3d at 1373-74, 1376; cf. Lawrence, 919 F.2d at 1529. The defendants bear the burden of proving that the plaintiff has failed to exhaust his available administrative remedies. See Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 921, 166 L.Ed.2d 798 (2007) (" We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints."); Dixon v. United States, 548 U.S. 1, 8, 126 S.Ct. 2437, 2443, 165 L.Ed.2d 299 (2006) (stating that, as a " general evidentiary rule, " the burdens of production and persuasion are given to the same party); Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir.2007) (" Jones does not spell out the proper burden of proof to use in evaluating exhaustion claims, but circuits that treated exhaustion as an affirmative defense prior to Jones have all put the burden of proof on defendants, to the extent that they addressed the issue."); id. (citing cases). Once the court makes findings on the disputed issues of fact, it then decides whether under those findings the prisoner has exhausted his available administrative remedies.

Turner v. Burnside, 541 F.3d 1077, 1082 -1083 (11th Cir. 2008).

Beginning with the first step, it is undisputed that the plaintiff never filed a grievance form. Nonetheless, the allegations in his complaint, which the court accepts as true for purposes of resolving this issue, show that the plaintiff tried to utilize the jail's grievance procedure by asking for a form to file a grievance, but was told by jail officials that he was not allowed to do so.

The PLRA requires exhaustion of " available" administrative remedies. 42 U.S.C. § 1997e (a). Although the Eleventh Circuit has not had occasion to address the question of availability in the context of the particular circumstances presented by the plaintiff, it has expressly noted that other circuits have held that " a remedy that prison officials prevent a prisoner from 'utiliz[ing]' is not an 'available' remedy under § 1997e (a)." Bryant v. Rich, 530 F.3d 1368, 1373 n. 6 (11th Cir. 2008) (quoting Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (holding that administrative remedy was not available when inmate failed to utilize prison appeal process after the denial of a grievance because the grievance clerk told the inmate he did " not have the right to appeal")). See also, Dale v Lappin, 376 F.3d 652, 656 (7th Cir. 2004) (" If prison employees refuse to provide inmates with those forms when requested, it is difficult to understand how the inmate has any available remedies.") Since the plaintiff has alleged that an administrative remedy was unavailable to him, the complaint is not due to be dismissed.

The second step requires this court to assess whether the defendants have met their burden to prove the plaintiff failed to exhaust his administrative remedies. A review of the parties pleadings establishes that the defendants have not. The defendants admit grievances are required to be submitted on a written grievance form, do not dispute that grievance forms are only available when requested, and further do not dispute the plaintiff was told he could not file a complaint when he requested a grievance form.

3. Conclusion

For the foregoing reasons, this court RECOMMENDS the defendants' motion to dismiss the plaintiff's complaint for failure to exhaust administrative remedies be DENIED.

B. Conditions of Confinement

1. Calhoun County Sheriff's Office

In the style of his complaint, the plaintiff names the Calhoun County Sheriff's Office as a defendant, but does not list that entity as a defendant in the " Defendants" section of the form. Even if he had, the Calhoun County Sheriff's Office is not an entity subject to suit under 42 U.S.C. § 1983. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). Accordingly, it is recommended that the Sheriff's Office be dismissed as a defendant.

2. Injunctive Relief

As part of his request for relief, the plaintiff requests that the charges against him be abolished. However, the plaintiff already has entered into a plea bargain agreement in connection with those claims. Moreover, and importantly, the criminal action taken against the plaintiff is separate from and bears no relationship to the civil claims in this action. Therefore, the relief he requests is not available. Even if the criminal case bore any relationship with this civil action, it would be due to be dismissed without prejudice. In Heck v. Humphrey, the United States Supreme Court wrote,

In order to recover damages [or declaratory relief] for a constitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid [a] § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.

512 U.S. 477, 486, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The plaintiff does not allege that his convictions have been reversed or expunged by any court. For all of the foregoing reasons, it is recommended that the plaintiff's request for abolishment of any criminal action taken against him by the State of Alabama be denied.

Additionally, insofar as he seeks injunctive relief to preclude similar treatment in the future, the claim is too speculative and hypothetical to support relief. A claim for prospective injunctive relief must allege an imminent harm. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Los Angeles v. Lyons, 461 U.S. 95, 101-102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). " An allegation of future injury satisfies this prong of standing so long as the alleged injury is 'imminent' or 'real and immediate' and not merely 'conjectural' or 'hypothetical.' [Citations omitted]. An injury is imminent if it is likely to occur, and likely to do so immediately. 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003). In this case, the plaintiff is no longer in the custody of the Calhoun County Jail. The likelihood that he will be subjected to similar treatment by these defendants is conjectural, not imminent. He is not entitled to prospective injunctive relief.

3. Official Capacity

To the extent the plaintiff requests monetary damages for the constitutional claims considered against each defendant in his official capacity, the defendants' motion for summary judgment is due to be granted. It is well settled that the Eleventh Amendment to the United States Constitution bars Section 1983 claims in federal court against the state or an agency of the state. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Supreme Court in Pugh, stated:

[T]here can be no doubt . . . that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82 L.Ed. 268 (1937). Respondents do not contend that Alabama has consented to this suit, and it appears that no consent could be given under Art. I, sec. 14, of the Alabama Constitution, which provides that " the State of Alabama shall never be made a defendant in any court of law or equity."

438 U.S. at 782. " Absent a legitimate abrogation of immunity by Congress or a waiver of immunity by the state being sued, the Eleventh Amendment is an absolute bar to suit by an individual against a state or its agencies in federal court. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)." Gamble v. Florida Dep't of Health & Rehabilitative Services, 779 F.2d 1509, 1511 (11th Cir. 1986). The Eleventh Amendment therefore applies to claims for injunctive and declaratory relief as well as claims for monetary relief. Edelman v. Jordan, 415 U.S. at 662-71 (monetary relief); Alabama v. Pugh, 438 U.S. at 782 (injunctive relief).[2] In Alabama, sheriffs and sheriffs' deputies are shield by the state's Eleventh Amendment immunity. See Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1429 (11th Cir. 1997) (" [W]e held that under Alabama law deputy sheriffs are state officials entitled to Eleventh Amendment immunity when sued in their official capacities."), citing Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990). Because the instant action involves only a claim for monetary damages against a sheriff and deputies

Accordingly, the motion for summary judgment filed by the defendant is due to be granted as a matter of law. The remainder of this report and recommendation presumes each defendant is sued in his individual capacity.

4. Conditions of Confinement

Prison conditions amount to cruel and unusual punishment[3] only when they result in " unquestioned and serious deprivation of basic human needs." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). While it is the duty of jail officials to furnish prisoners with " reasonably adequate" food, clothing, shelter, and sanitation, Newman v. Alabama, 559 F.2d 283, 286 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), the Constitution " does not mandate comfortable prisons, " Rhodes v. Chapman, 452 U.S. at 349, nor permit inhumane ones. See also Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). As the Eleventh Circuit Court of Appeals observed in Newman : " [T]he Constitution does not require that prisoners be provided any and every amenity which some person may think is needed to avoid mental, physical, and emotional deterioration." 559 F.2d at 291. " Inmates cannot expect the amenities, conveniences and services of a good hotel." Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988).

[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.

Rhodes v. Chapman, 452 U.S. at 347.

" To be deliberately indifferent, a [jail] official must knowingly or recklessly disregard an inmate's basic needs." LaMarca v. Turner, 995 F.2d at 1535. In order to establish that an official was deliberately indifferent, " a plaintiff must prove that the official possessed knowledge both of the infirm condition and of the means to cure that condition, 'so that a conscious, culpable refusal to prevent the harm can be inferred from the defendant's failure to prevent it.'" Id. at 1535 (quoting Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Accord Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Taking the plaintiff's allegations in a light most favorable to him, defendant Williams refused to allow the plaintiff him to use the restroom, and the plaintiff urinated on himself in court. (Doc. 1 at 4). Although the plaintiff asserts he was treated with " hostility" when being taken from the courtroom, he does not describe what is meant by the word. He does not allege that he was physically mistreated. He also alleges he was stripped and put in a suicide smock and that the conditions in the suicide cell were spartan. (Id.). During the eight day period he remained in the cell, the plaintiff was " almost forgotten about a few times." (Id.). As a result, he did not get fed on a few occasions, and he had to beg for water, a shower, and to use the restroom. (Id.). The plaintiff declares that he " had to hold on to [his] drink carton so [he] could relieve himself most of the time" because " most of the time [he] would ask to go to the restroom . . . they would tell [him in a min[ute], " but would not reappear for " 2 or 3 hours" and by then it was " too late." (Id.).

The plaintiff names as defendants Officer Williams, Lt. Abernathy, Sgt. Starr, and Sgt. Garlike. While he has identified the allegations against defendant Williams, he does not specifically attach the allegations regarding the conditions he endured to defendants Williams, Abernathy, Starr or Garlike. On the other hand, the only named defendant who submitted an affidavit and documentary evidence in support of the special report filed by the defendants is defendant Starr.

1. Defendant Lt. Starr

Defendant Starr is the Calhoun County Jail Administrator. (Doc. 22-5 at 2). " As jail administrator, [he] carr[ies] out the policies and procedure that have been established by Calhoun County Sheriff Larry Amerson. Sheriff Amerson has delegated the day-to-day operations of the Calhoun County Jail to [him]." (Id.). As " Jail Administrator, [he also] is the custodian of records, " and is familiar with the policies and procedures outlined in the Inmate Handbook. (Id. at 4-6). However, defendant Starr's affidavit shows that he was not personally involved in and has no personal knowledge of the allegations supporting the plaintiff's claim. Therefore, his attestations concerning those conditions are inadmissible.

Starr did submit the " Calhoun County Jail Suicide Watch" log for the plaintiff, however. (Doc. 22-2 at 2-3). That log, which begins on September 13, 2012, and ends on September 21, 2012, does not reflect clear notations the plaintiff was served three meals per day, or given water and opportunity to use the restroom -- either on a regular basis or as requested. (Id.). On September 13, 2012, it appears jail officials checked on the plaintiff at least hourly or every few hours between 3:15 p.m. and 8:40 p.m. (Id. at 2). During this time, log entries establish that the plaintiff was observed, he refused a tray and juice, was taken to the restroom once, talked, and was allowed to take a shower. (Id.). None of the named defendants signed the log entries, and there is no indication that they were involved with plaintiff's treatment. (Id.).

On September 14, 2012, jail officials checked on the plaintiff at least five times between 7:20 a.m. and 12:10 p.m. (Id.). During this time, the plaintiff went to the restroom twice and was observed and talked to three times. (Id.). The next log entry does not occur until 10:00 p.m., and it reads that the plaintiff was taken to the restroom. (Id.). He was observed resting at midnight. (Id.). There is no mention of food service on that day. (Id.). None of the named defendants signed the log entries that day. (Id.).

There are only three log entries on September 15, 2012, and two log entries on September 16, 2012. (Id.). The time on the first long entry (the plaintiff was observed lying down), on September 15 is not discernible, and the remainder show the plaintiff was taken to the restroom at 11:07 p.m. and was talking at 11:47 p.m. (Id.). At 3:15 a.m. on September 16, the plaintiff was awakened and indicated he was okay, and at 7:16 (unknown whether a.m. or p.m.), the plaintiff was standing and requesting the " sgt." (Id.). None of the named defendants signed the log entries those two days. (Id.).

There is only one entry on September 17, 2014. (Id.). At 9:12 a.m. on that date, an official, who is not a named defendant, talked with the plaintiff. (Id.).

On September 18, 2014, there are four entries between 7:20 and 1:30 (unknown whether a.m. or p.m.). (Id.). During this time, the entries show that the plaintiff was fed, given his medication, and was talking. (Id.). None of the named defendants signed the log entries that day. (Id.).

On September 19, 2014, the plaintiff was taken to his cell after a shower at 9:45 and observed lying down at 12:25. (Id.). Whether these entries occurred at morning, afternoon, or night is unknown, but none of the named defendants signed the entries. (Id.).

Between 1:25 (unknown whether a.m. or p.m.) and 9:45 p.m. on September 20, 2014, the entries show the plaintiff was twice observed lying down and once noted to be calm. (Id.). Again, none of the named defendants signed the entries. (Id.).

Finally, on September 21, 2014, the plaintiff was checked on eight times by a non-defendant jail official between 6:43 a.m. and 6:30 p.m. (Id. at 2-3). The plaintiff was listed as either sleeping, lying down, or talking, and he was allowed to shower. (Id.).

The plaintiff presents no allegations or evidentiary support to show that Starr was personally involved in his care during the eight day period. Nor does any documentation submitted by defendant Starr. It appears, therefore, that defendant Starr has been named as a defendant simply because he is the Jail Administrator. The plaintiff is attempting to implicate Starr through the concept of respondeat superior, or supervisory liability; however, " [t]here is no respondeat superior liability under § 1983." Harris v. Ostrout, 65 F.3d 912, 917 (11th Cir. 1995) (citing Monell v. Dep't of Social Services, 436 U.S. 658, 690-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and LaMarca v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993)). " The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous." Braddy v. Florida Dep't of Labor & Empl. Sec., 133 F.3d 797, 802 (11th Cir. 1998). Supervisory personnel may be held accountable for the constitutional violations of their subordinates upon proof that they (1) were directly involved in the wrongdoing; (2) failed to remedy a wrong after learning of it through report or appeal; (3) created or allowed a policy under which the violation occurred; or (4) were grossly negligent in managing the subordinates who caused the wrongdoing. Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). The plaintiff has not alleged or presented evidentiary support to establish a genuine disputed issue of material fact establishing any of these factors in connection with defendant Starr. Therefore, it is recommended that defendant Starr's motion for summary judgment be granted.

3. Defendant Officer Williams

Defendant Williams refused to allow the plaintiff to use the restroom while the plaintiff was in court, and as a result, he urinated on himself. (Doc. 1 at 4). Although the plaintiff alleges that he was treated with " hostility" after he wet himself, he does not state with specificity what the nature of the hostility was or whether it came from defendant Williams. (Id.). Nor does he describe any physically mistreatment.

Instead, at best, the plaintiff's allegations show that defendant Williams may have been negligent or made an error in judgment when he did not take the plaintiff to restroom when asked. Even assuming as true plaintiff's description of Officer Williams' failure to take him to the restroom, it shows only negligence and not treatment so serious as to rise to the level of an Eighth or Fourteenth Amendment violation. While it may be regretted that plaintiff was not taken to a restroom, this falls far short of showing cruel and unusual punishment or deliberate indifference to his well-being. Accordingly, this court recommends that this claim against defendant Williams be dismissed.

4. Defendants Officer Williams, Sgt. Abernathy and Sgt. Garlike

Neither Williams, Abernathy or Garlike filed an affidavit or other evidentiary documentation in support of the special report. On the other hand, the plaintiff does not assert that any action or inaction by any of these defendants resulted in the conditions he stated that he had to endure. In response to their motion to dismiss, plaintiff has not produced any evidence creating a genuine issue of material fact showing that any of these defendants knew of, participated in, or approved of any unconstitutional treatment of the plaintiff.

Alternatively, even if the plaintiff was wrongfully stripped and placed in a spartan cell, missed a " few" meals and had to " beg for water" while in the suicide cell, these conditions, while harsh, do not rise to an Eighth Amendment claim. This is true even though the Suicide Log does not display that the plaintiff was fed three times per day and regularly given a liquid beverage because the plaintiff himself does not allege that he became weak or malnourished as a result of what he self-describes as only missing a " few" meals during the eight day period. Thus, although the logs do not regularly record when he was fed, the plaintiff's allegations, taken as true, only display that he missed a few meals. Moreover, neither the plaintiff nor the Suicide Logs show the named defendants were personally involved in the plaintiff's care on the days in question and were deliberately indifferent to his nutritional needs. Even if the court were draw the opposition conclusion, the plaintiff has not alleged severe enough deprivations to be in violation of the Eighth Amendment.

The plaintiff also does not attest he was not afforded adequate water, or was ever refused water when he requested it. He does not describe any period(s) of time that he went without water or remained deprived of water after requesting it during the eight day period. Therefore, the absence of log recordings pertaining to liquids in the Suicide Log does not create a genuine disputed issue of material fact establishing that the plaintiff was subjected to unconstitutional levels of deprivation in connection with his water intake or that the named defendants were deliberately indifferent to his basic needs.

Next, the Suicide Logs reflect that the plaintiff was allowed to shower at least three times during the eight days he remained in the suicide cell. The plaintiff has not disputed the validity of the information contained in the log. While the plaintiff may have preferred to shower on a daily basis, the facts, as they presently stand, show he was allowed to clean himself, on average, every other day. Again, while this condition may seem harsh, it is not so severe as to rise to an Eighth Amendment conditions-of-confinement claim. Nor do the logs reflect that any named defendant was personally involved in or aware of the plaintiff's desire for a shower, and deliberately or recklessly refused to provide him one. Again, even if the opposite conclusion is drawn, the plaintiff has not established a severe deprivation.

Finally, the plaintiff alleges he was " forgotten" for long periods of time, which resulted in his inability to use the restroom when needed. He declares he had to wait up to " two or three" hours to use the restroom after asking to be taken. As a result, the plaintiff retained his empty drink cartons in order to be able to relieve himself in them. Still, even when the plaintiff's allegations in a light most favorable him are considered, the absence of recordings pertaining to restroom breaks in the Suicide Log does not create a genuine disputed issue of material fact establishing that the plaintiff was subjected to unconstitutional levels of deprivation in connection with bathroom breaks. The plaintiff does not reveal how often and for what periods of time he was forgotten and does not state how many times he waited " two or three" hours after asking to go to the restroom before he was taken. When these allegations are taken in a light most favorable to the plaintiff, the absence of recorded restroom breaks in the Suicide Log are insufficient to create a genuine disputed issue of material fact as to whether the plaintiff's situation rose to the level of Eighth Amendment proportions.

The court acknowledges that the conditions were harsh, and it does not sweep aside the discomfort felt by the plaintiff in his plight, but his allegations simply do not display a condition severe enough for Eighth Amendment purposes. Moreover, the plaintiff does not specifically allege, and the Logs do not reflect any named defendants' personal involvement in his care during the period he was held in the suicide cell. Even if the court were to assume otherwise, the plaintiff has failed to establish an unconstitutional condition of confinement occurred in connection with any of his alleged deprivations. Defendants are entitled to summary judgment on this conditions-of-confinement claim.

RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that the defendants' special report be treated as a motion for summary judgment and, as such, GRANTED and this action be DISMISSED WITH PREJUDICE.

Any party who objects to this report and recommendation must, within fourteen (14) days from the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) ( en banc ). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Objections not meeting the specificity requirement set out above will not be considered by a district judge.

A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from the final judgment entered by or at the direction of the district judge.

The Clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff.


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