United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE.
WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE.
U.S.C. § 1983 action is pending before the court on an
amended complaint and amendment thereto filed by Carlos Carey
(“Carey”), a state inmate and frequent litigant
before this court. In the instant complaint, Carey challenges
actions which occurred at the Bullock Correctional Facility
in November and December of 2013. Amendment to the Compl.
- Doc. No. 10 at 2. Specifically, Carey alleges that the
defendants extended his segregation time, removed his
mattress from his segregation cell, advised other inmates he
was a snitch, attempted to bribe other inmates to cause him
harm and threatened him with violence in retaliation for his
voicing complaints to prison officials and filing/refusing to
dismiss a prior lawsuit in this court. Id. at 3-4.
Carey names Rene Mason, Clatys Jenkins, Dominic Whitley,
Cedric King, Clevon Randolph, Kenneth Jones and Sandra Giles,
all correctional officials employed at Bullock at the time
relevant to the complaint, as defendants. Carey seeks a
declaratory judgment, injunctive relief and monetary damages
for the alleged violations of his constitutional rights.
defendants filed a special report and supporting evidentiary
materials addressing Carey's claims for relief. In these
documents, the defendants deny they retaliated against Carey
for exercising his First Amendment rights.
receipt of the defendants' special report, the court
issued an order directing Carey to file a response to the
reports, including affidavits, sworn statements or other
evidentiary materials. Order of March 20, 2014 - Doc. No.
24 at 2. This order specifically cautioned Carey that
unless “sufficient legal cause” is shown within
fifteen days of entry of this order “why such action
should not be undertaken, . . . the court may at any time
[after expiration of the time for his filing a response to
this order] and without further notice to the parties (1)
treat the special report and any supporting evidentiary
materials as a motion for summary judgment and (2) after
considering any response as allowed by this order, rule on
the motion for summary judgment in accordance with the
law.” Id. at 2-3. Carey filed a sworn response
(Doc. No. 42) and affidavits (Doc. No. 43-1 at 1-2) in
opposition to the defendants' report.
to the order entered on March 20, 2014, the court deems it
appropriate to treat the defendants' report as a motion
for summary judgment. Thus, this case is now pending on the
defendants' motion for summary judgment. Upon
consideration of the defendants' motion for summary
judgment, the evidentiary materials filed in support thereof,
the amended complaint, the amendment to the complaint and the
responses to the defendants' report filed by Carey, the
court concludes that summary judgment is due to be granted in
favor of the defendants.
SUMMARY JUDGMENT STANDARD
judgment is appropriate ‘if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show there is no genuine
[dispute] as to any material fact and that the moving party
is entitled to judgment as a matter of law.'”
Greenberg v. BellSouth Telecomm., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam) (citation to former
rule omitted); Fed.R.Civ.P. Rule 56(a) (“The court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of
law.”). The party moving for summary judgment
“always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the [record, including
pleadings, discovery materials and affidavits], which it
believes demonstrate the absence of a genuine [dispute] of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593 (11th Cir. 1995) (moving party
has initial burden of showing there is no genuine dispute of
material fact for trial). The movant may meet this burden by
presenting evidence indicating there is no dispute of
material fact or by showing that the nonmoving party has
failed to present appropriate evidence in support of some
element of its case on which it bears the ultimate burden of
proof. Celotex, 477 U.S. at 322-324.
defendants have met their evidentiary burden and demonstrated
the absence of any genuine dispute of material fact with
respect to the claims presented by the plaintiff. Based on
the foregoing, the burden shifts to the plaintiff to
establish, with appropriate evidence beyond the pleadings,
that a genuine dispute material to his case exists. Clark
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P.
56(e)(3) (“If a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact by [citing to materials in the
record including affidavits, relevant documents or other
materials] the court may . . . grant summary judgment if the
motion and supporting materials -- including the facts
considered undisputed -- show that the movant is entitled to
it.”); Jeffery, 64 F.3d at 593-594 (internal
quotation marks omitted) (Once the moving party meets its
burden, “the non-moving party must then go beyond the
pleadings, and by its own affidavits [or statements made
under penalty of perjury], or by depositions, answers to
interrogatories, and admissions on file, ” demonstrate
that there is a genuine dispute of material fact.). This
court will also consider “specific facts” pled in
a plaintiff's sworn complaint when considering his
opposition to summary judgment. Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). A
genuine dispute of material fact exists when the nonmoving
party produces evidence that would allow a reasonable
fact-finder to return a verdict in its favor.
Greenberg, 498 F.3d at 1263; Allen v. Bd. of
Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1313 (11th Cir.
In civil actions filed by inmates, federal courts
must distinguish between evidence of disputed facts and
disputed matters of professional judgment. In respect to the
latter, our inferences must accord deference to the views of
prison authorities. Unless a prisoner can point to sufficient
evidence regarding such issues of judgment to allow him to
prevail on the merits, he cannot prevail at the summary
Beard v. Banks, 548 U.S. 521, 530 (2006) (internal
citation omitted). To proceed beyond the summary judgment
stage, an inmate-plaintiff is required to produce
“sufficient [favorable] evidence” which would be
admissible at trial supporting his claims of constitutional
violations. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986); Fed.R.Civ.P. 56(e). “If the
evidence [on which the nonmoving party relies] is merely
colorable . . . or is not significantly probative . . .
summary judgment may be granted.” Anderson,
477 U.S. at 249-250. “A mere ‘scintilla' of
evidence supporting the opposing party's position will
not suffice; there must be enough of a showing that the
[trier of fact] could reasonably find for that party.
Anderson v. Liberty Lobby, 477 U.S. 242');">477 U.S. 242 [ ]
(1986).” Walker v. Darby, 911 F.2d
1573, 1576-1577 (11th Cir. 1990). Conclusory allegations
based on subjective beliefs are likewise insufficient to
create a genuine dispute of material fact and, therefore, do
not suffice to oppose a motion for summary judgment.
Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th
Cir. 1997) (A plaintiff's “conclusory assertions .
. ., in the absence of [admissible] supporting evidence, are
insufficient to withstand summary judgment.”);
Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995)
(grant of summary judgment appropriate where inmate produces
nothing beyond “his own conclusory allegations”
challenging actions of the defendants); Fullman v.
Graddick, 739 F.2d 553, 557 (11th Cir. 1984)
(“Mere verification of party's own conclusory
allegations is not sufficient to oppose summary
judgment.”); Evers v. Gen. Motors Corp., 770
F.2d 984, 986 (11th Cir. 1985) (“[C]onclusory
allegations without specific supporting facts have no
probative value.”). Hence, when a plaintiff fails to
set forth specific facts supported by requisite evidence
sufficient to establish the existence of an element essential
to his case and on which the plaintiff will bear the burden
of proof at trial, summary judgment is due to be granted in
favor of the moving party. Celotex, 477 U.S. at 322
(“[F]ailure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.”); Barnes v. Sw. Forest Indus.,
Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any part
of the prima facie case the plaintiff presents insufficient
evidence to require submission of the case to the trier of
fact, granting of summary judgment is appropriate.);
Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th
Cir. 2000) (en banc) (summary judgment appropriate where no
genuine dispute of material fact exists). At the summary
judgment stage, this court must “consider all evidence
in the record . . . [including] pleadings, depositions,
interrogatories, affidavits, etc. -- and can only grant
summary judgment if everything in the record demonstrates
that no genuine [dispute] of material fact exists.”
Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151,
1154 (11th Cir. 2012).
summary judgment purposes, only disputes involving material
facts are relevant. United States v. One Piece of Real
Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363
F.3d 1099, 1101 (11th Cir. 2004). What is material is
determined by the substantive law applicable to the case.
Anderson, 477 U.S. at 248; Lofton v. Sec'y
of the Dep't of Children and Family Servs., 358 F.3d
804, 809 (11th Cir. 2004) (“Only factual disputes that
are material under the substantive law governing the case
will preclude entry of summary judgment.”). “The
mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to
an issue affecting the outcome of the case.”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003) (citation omitted). To demonstrate a
genuine dispute of material fact, the party opposing summary
judgment “must do more than simply show that there is
some metaphysical doubt as to the material facts. . . . Where
the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no
‘genuine [dispute] for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). In cases where the evidence before
the court which is admissible on its face or which can be
reduced to admissible form indicates there is no genuine
dispute of material fact and the party moving for summary
judgment is entitled to it as a matter of law, summary
judgment is proper. Celotex, 477 U.S. at 323-324
(summary judgment appropriate where pleadings, evidentiary
materials and affidavits before the court show no genuine
dispute as to a requisite material fact); Waddell v.
Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279
(11th Cir. 2001) (To establish a genuine dispute of material
fact, the nonmoving party must produce evidence such that a
reasonable trier of fact could return a verdict in his
factual inferences must be viewed in a light most favorable
to the nonmoving party and pro se complaints are
entitled to liberal interpretation, a pro se
litigant does not escape the burden of establishing by
sufficient evidence a genuine dispute of material fact.
Beard, 548 U.S. at 525; Brown v. Crawford,
906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff's
pro se status alone does not mandate this
court's disregard of elementary principles of production
and proof in a civil case.
court has undertaken a thorough and exhaustive review of all
the evidence contained in the record. After such review, the
court finds that Carey has failed to demonstrate a genuine
dispute of material fact in order to preclude the entry of
summary judgment in favor of the defendants.
extent Carey sues the defendants in their official
capacities, they are immune from monetary damages. Official
capacity lawsuits are “in all respects other than name,
. . . treated as a suit against the entity.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985).
“A state official may not be sued in his official
capacity unless the state has waived its Eleventh Amendment
immunity, see Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79
L.Ed.2d 67 (1984), or Congress has abrogated the state's
immunity, see Seminole Tribe v. Florida, [517 U.S.
44, 59], 116 S.Ct. 1114, 1125, 134 L.Ed.2d 252 (1996).
Alabama has not waived its Eleventh Amendment immunity,
see Carr v. City of Florence, 916 F.2d 1521, 1525
(11th Cir. 1990) (citations omitted), and Congress has not
abrogated Alabama's immunity. Therefore, Alabama state
officials are immune from claims brought against them in
their official capacities.” Lancaster v. Monroe
Cty., 116 F.3d 1419, 1429 (11th Cir. 1997).
light of the foregoing and under the facts of this case, the
defendants are entitled to sovereign immunity under the
Eleventh Amendment for claims seeking monetary damages from
them in their official capacities. Lancaster, 116
F.3d at 1429; Jackson v. Ga. Dep't of Transp.,
16 F.3d 1573, 1575 (11th Cir. 1994); Parker v.
Williams, 862 F.2d 1471 (11th Cir. 1989).
August 22, 2013, defendant Whitley charged Carey with five
(5) disciplinary infractions for various violations of
administrative rules. Defs.' Exh. H - Doc. No.
23-8 at 11-63. The charges lodged against Carey included
(i) failure to obey a direct order due to his failure to
leave defendant Mason's office when ordered to do so,
(ii) assault on a person associated with ADOC for spitting on
defendant Whitley, (iii) insubordination for cursing
defendant Mason, (iv) intentionally creating a security,
safety or health hazard by spitting on defendant
Whitley's shirt, and (v) disorderly conduct when he
referred to defendant Whitley in a racially derogatory
manner. Id. After receiving a disciplinary hearing
on each charge, the hearing officer, defendant Randolph,
found Carey guilty of the charged offenses. The punishment
imposed upon Carey for his violations of the rules included a
cumulative total of 180 days of confinement in disciplinary
segregation. In addition, it is standard operating procedure
to remove mattresses from the cells of inmates confined in
disciplinary segregation Monday through Friday from 7:00 a.m.
until 4:00 p.m. See Defs.' Exh. D - Doc. No.
23-4 at 4-5.
CLAIMS FOR RELIEF
alleges that in November and December of 2013 the defendants
verbally threatened and harassed him for filing a previous
lawsuit and complaining of actions by correctional officers.
Specifically, Carey alleges that Warden Mason responded to
his complaints against the officers by telling his cell mate
“to watch what you say around [Carey] because he will
tell me everything I need to know” in ear shot of other
inmates which led to problems with his cell mate and other
inmates. Amendment to the Amended Complaint - Doc. No.
10 at 2-3. Carey further alleges that officers King,
Whitley and Randolph threatened him with violence and
continually tried to bribe other inmates to harm him.
Id. at 3. Finally, Carey contends that when he
advised Capt. Jenkins of the behavior of the officers,
Jenkins advised Carey “he was a member of the Blood
gang” and threatened Carey with reprisal by members of
this gang. Id. Carey further alleges that Jenkins
retaliated against him by increasing his segregation
“time from 45 days to 6 months and then took my
mattress so that I am sleeping on the floor. My mattress now
is taken every day.” Id.
defendants adamantly deny taking any action against Carey in
retaliation for filing a lawsuit or due to his complaints
regarding the actions of correctional officials. The
affidavits and evidentiary materials submitted by the
defendants, including documents contained in Carey's