United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Cunningham brings this action against Warden Dewayne Estes,
Lieutenant Guy Noe, Sergeant Ray, Officer Randy Griffith, and
Captain Smith, in their individual capacities, alleging
violations of the Eighth Amendment based on their failure to
protect him from another inmate. See generally docs.
1; 8. The court has for consideration Defendants' motion
for summary judgment, doc. 37, which is fully briefed, docs.
37; 39, and ripe for review. For the reasons below, except
for Warden Estes' motion, which is unopposed, doc. 39 at
1, the motion is due to be denied.
STANDARD OF REVIEW
Fed.R.Civ.P. 56(a), summary judgment is proper “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.” To support a summary judgment motion,
the parties must cite to “particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56(c).
Moreover, “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324
(citation and internal quotation marks omitted). A dispute
about a material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S. H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in the non-moving party's favor when sufficient
competent evidence supports the non-moving party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276 (11th Cir. 2002) (a
court is not required to resolve disputes in the non-moving
party's favor when that party's version of events is
supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.”
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citation omitted). Furthermore,
“[a] mere ‘scintilla' of evidence supporting
the opposing party's position will not suffice; there
must be enough of a showing that the jury could reasonably
find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
2011 to 2013, Cunningham shared a cell with Nakemah Grover at
Limestone Correctional Facility in Harvest, Alabama. Doc. 1
at 1-3. During that time, Cunningham and Grover developed an
“on-again, off-again” and “stormy”
romantic relationship. Id. at 3; see also
docs. 37-2 at 14; 39 at 2. Their relationship involved
numerous disputes, some physical, and during which Grover
openly threatened Cunningham's life. “Between
September 6, 2012 and July 7, 2013, at least eight incidents
involving physical violence, threats of physical violence, or
both occurred between them.” Doc. 1 at 3; see
doc. 32-7 at 24, 29; see also docs. 32-7 at 25
(sometimes Grover choked Cunningham); 39-1 at 1 (Inmate
Xavier Johnson, states that “[he] witnessed at least
two incidents in which . . . Grover and Cunningham had
physical fights”); 39-1 at 3 (Inmate Roderick Hightower
states that “[he] saw several physical fights, as well
as arguments, between them”).
first incident relevant to this lawsuit occurred on September
6, 2012, when an argument between Cunningham and Grover
escalated into a physical struggle that required other
inmates to restrain Grover. Docs. 1 at 3; 37-2 at 23, 25. The
scuffle landed both in Captain Smith's office, docs. 1 at
3; 37-2 at 23, 25, where they began arguing again, and in
Captain Smith's presence, Grover threatened to “cut
[Cunningham's] head off, ” doc. 37-2 at 25. Later
that day, Cunningham asked Captain Smith to move him from the
cell he shared with Grover. Doc. 37-2 at 25. Captain Smith
refused and sent Cunningham instead to lockup (segregation),
saying “Shut up, you fucking faggot, ”
“[y]ou want to go to lockup?” and “[g]o
pack your shit. Go to lockup.” Id. at 23, 25.
his release from segregation, the prison returned Cunningham
to the cell he shared with Grover. Id. To no
surprise, the friction between the two men continued, and a
series of incidents between October 3 and December 11, 2012,
led to Cunningham and Grover having to sign peace agreements,
indicating that they could live together without incident.
See docs. 37-3; 37-5; 37-6. Cunningham explains that
he signed the agreements reluctantly because the only
alternative the officers offered was the segregation
“lockup.” Doc. 37-2 at 20.
conflict in January 2013 led Grover to hide a weight bar in
the cell to use to “bust [Cunningham's] brains
out” one night. Docs. 1 at 4; 37-2 at 10-11. The prison
confiscated the weight bar when two other inmates reported
Grover's plan to Lieutenant Noe. Docs. 1 at 4; 37-2 at 10-13.
As a result, officers took Grover and Cunningham to
Lieutenant Noe, who instructed Sergeant Ray to
“[s]eparate their ass” and “[m]ake sure
they don't have [any] contact with each other.”
Doc. 37-2 at 13; see also Id. at 10; doc. 1 at 4.
However, Sergeant Ray disregarded the directive and returned
Cunningham and Grover to their shared cell. Docs. 1 at 4;
37-2 at 10.
his displeasure over the disclosure of his plan to bludgeon
Cunningham, Grover physically confronted Cunningham and the
two inmates he blamed for reporting him. Doc. 37-2 at 12.
Relevant here, Grover argued with Cunningham in their cell,
pushed Cunningham “against the wall, ” and struck
Cunningham with his fist. Id. at 13. Cunningham
pushed and hit Grover back, and then ran to the gym.
Id. Ultimately, the four inmates signed a peace
agreement, indicating that they could live together in B Dorm
“without violence existing between [them].” Doc.
in the spring of 2013, Cunningham ended the relationship,
telling Grover that he “wanted to separate from him,
because . . . [Grover] was beginning to scare
[Cunningham].” Doc. 37-2 at 14. As Cunningham describes
it, he feared Grover, because “as [they] got into the
relationship, [Grover] got violent.” Id. at
16. After ending the relationship, Cunningham “began
the process of writing a request to be separated from
[Grover].” Id. at 14. Unfortunately, as is
sometimes the case with abusive partners, Grover's
physical threats escalated after the break up. See
Id. at 14-16, 26; doc. 39-1. One inmate recalls that
“[a]fter the relationship between them ended, there
developed hostility” between Cunningham and Grover.
Doc. 39-1 at 4. In fact, soon thereafter, an altercation
landed Cunningham and Grover in segregation. Doc. 39 at 2.
When they returned to general population, Sergeant Ray placed
them in separate cells, albeit in the B Dorm, which meant
that “they [still] had daily access to each
other.” Id. at 3; see also doc. 39-1
at 3. To ensure his safety, Cunningham told the dorm and
shift officers that he was “tired of being bothered by
Grover, ” and wanted to be in a different dorm. Doc.
39-1 at 3-4.
April 13, 2013, during an altercation in front of Captain
Smith's office that required the intervention of other
inmates, Grover threatened to kill Cunningham. Docs. 1 at 4;
37-2 at 26. In response, the officer on duty - Officer Moore
- separated Cunningham and Grover for a period of time that
day. Doc. 37-2 at 26. Sometime that day, Grover sent a
request to Officer Moore for the prison to separate him from
Grover. Id.; see also doc. 39-1 at
1. After discussing Cunningham's request with
Captain Smith, Officer Moore told Cunningham that Captain
Smith “couldn't move [Cunningham], and that he
wasn't going to place [Cunningham] in C Dorm, because the
C Dorm . . . was for . . . the elders, or the only dorm or
something, and [Cunningham] had disciplinaries so [he]
couldn't be placed over there.” Doc. 37-2 at 26.
Officer Moore communicated with Captain Smith again about the
but to no avail. Id.; see also doc. 39-1 at
that night, Grover attempted to attack Cunningham with a
razor in the shower. Doc. 37-2 at 14-15, 17. As Cunningham
showered, Grover tried to approach Cunningham twice.
Id. at 17. After Cunningham informed Grover on both
occasions that he did not want to speak to him, Grover
returned a third time with a double-blade razor (broken in
half), stating “Bitch, I'm fixing to cut your
throat.” Id. at 14-15, 17. This incident ended
when “the officer in the cube, ” located four
feet from the shower, “beat on the glass” and
“told [Grover] to get away from the shower.”
Id. at 15. Cunningham later informed the officer,
who had not seen the razor blade, that Grover had attempted
to attack Cunningham with a razor. Id. at 15-17. The
officer removed Grover from the shower area, and reported the
incident to Lieutenant Noe, who instructed the officer to
“lock [Grover's] ass” in his cell, which the
officer did. Id. at 16-17.
following day, Lieutenant Noe discussed the previous
night's events, including the Cunningham-Grover
situation, with Officer Howard, Lieutenant Pickens, and
Sergeant Bragg. Doc. 37-2 at 26. During that discussion,
Lieutenant Pickens “suggested that one, or both, be
locked up until one was released for fear that one or both
would be injured or killed.” Id.; see
also doc. 39-1 at 1 (“[Inmate Johnson] overheard
Lt. Pickens tell Capt. Noe that, if [Cunningham and Grover]
were not separated, one or both would be hurt or killed.
Capt. Noe responded that he would not move them.”).