United States District Court, Southern District of Alabama, Southern Division
K. DuBOSE, UNITED STATES DISTRICT CHIEF JUDGE
action is before the Court on the Motion for Summary Judgment
filed by Defendants Warden Walter Myers, Sergeant Emily
Whittle, Lieutenant Regina Bolar and Captain Daryl Fails and
supporting affidavits and the response in opposition filed by
Plaintiff Darryl Riggins and supporting evidence. (Docs. 26,
28) Upon consideration, and for the reasons set forth herein,
Defendants' motion is GRANTED in part, and DENIED in
part, as set forth herein.
Factual History 
2014, Plaintiff Darryl Riggins was an inmate in the custody
of the Alabama Department of Corrections. He was housed at
Holman Correctional Facility. At all relevant times, Walter
Myers was the Warden at Holman and Sgt. Whittle,
Bolar, and Capt. Fails were Correctional Officers employed at
Holman. They were among the Correctional Officers charged
with supervision of Riggins. (Doc. 1) Regina Hardy was a
nurse at the Holman Health Care Unit.
alleges that in or around July of 2014, Sgt. Whittle gave him
five cellular telephones. She instructed him to sell four
phones to inmates on her behalf for five hundred dollars
($500) each. Riggins retained one phone for his personal use.
27, 2014, Riggins wrote Warden Myers, Assistant Warden
Gwendolyn Givens, Capt. Fails, and Lt. Bolar, as follows:
Sgt. E. Whittle also gave me five (5) cell phones to sale
(sic) for her … I'm suppose to keep one
phone for myself and sale (sic) four (4) of them at
the prison value of $500.00 a piece and bring Sgt. E. Whittle
$2, 000.00 back.
thereafter, in August 2014, Riggins was “disciplined
for aiding Regina Hardy in violating the rules.” (Doc.
1, p. 4) At his deposition, Riggins testified that
Hardy was “caught” with contraband and accused of
bringing the contraband to Riggins. (Doc. 28-1, Riggins Depo.
p. 11-13) Riggins denied any knowledge of the type of
contraband or participation. However, he was found guilty of
aiding and abetting and placed in disciplinary segregation
for 45 days. (Id.)
August, while Riggins was in segregation for this offense,
prison officials confiscated the cell phones that Sgt.
Whittle had given Riggins to sell. Riggins testified that
another inmate had hidden the cell phones for Riggins while
he was in segregation. (Doc. 1, p. 4; Doc. 38-1, p. 11-13;
time on or after September 23, 2014,  and after Riggins was
released from segregation, Riggins wrote Warden Myers and the
Investigations and Intelligence Division of the ADOC
(I&I), as follows:
However, Sgt. Whittle also gave me 5 cell phones to sale
(sic) for her at $500.00 each and I could keep one
for myself but the cell phones were taken by the Riot Team in
August and since I can't pay Sgt. Whittle, she has
resulted to retaliation against me. I owe Sgt. Whittle $2,
about October 31, 2014, Sgt. Whittle “accosted”
him and demanded the payment for the cell phones. Since
Riggins did not have the money, Whittle slapped him in the
face, choked him and threatened him with further assaults if
he did not get the money. (Doc. 1, p. 4) Sgt. Whittle
scratched the back of Riggins' neck during the assault.
(Doc. 28, p. 14) Riggins reported Sgt. Whittle's
conduct to Lt. Bolar but was not allowed to seek medical
treatment. (Doc. 28-1, pp. 18, 20)
same day, October 31, 2014, Riggins sent a handwritten
complaint to Warden Myers, Assistant Warden Givens, and Capt.
Fails, as follows:
Greetings, on October 31, 2014, Sgt. E. Whittle did choke and
physically slap me in my face with an open palm when I told
her I wouldn't be paying her the $2, 000.00 I owed her
for the five (5) cell phones she gave me in the month of July
2014 to sale four (4) and keep one for myself.
Sgt. E. Whittle has been physically abusing me by hitting,
slapping and choking and even threatening to have spray me
with her mace and threatening to have me physically beaten by
others. I'm afraid of this officer and fear for my safety
around this officer.
Would some please stop this officer from physically attacking
/abusing me and threaten me with the same.
alleges that the next day, November 1, 2014, Sgt. Whittle
again confronted him about payment for the cell phones. (Doc.
28-1, p. 29-30) Riggins states that Sgt. Whittle only
threatened him on this occasion and did not “do
anything” or “beat” him that day.
with the events related to the five cell phones, Riggins
alleges that Sgt. Whittle called him to the health care unit
on three separate occasions during July 2014, for the purpose
of having non-consensual sexual intercourse with Nurse Regina
Hardy. (Doc. 1) The last of the three incidents occurred on
July 25, 2014. Riggins testified that he “saw the money
being transferred” from Hardy to Sgt. Whittle;
“$100.00 each time.” (Doc. 1; Doc. 28-1, p. 14)
27, 2014, Riggins wrote to Warden Myers, Assistant Warden
Givens, Capt. Fails, and Lt. Bolar about the incidents,
stating that “[t]his is my third complaint and nothing
has been done to stop this sexual abuse. Would someone please
stop this abuse and get me the proper medical treatment and
allow me to talk to I&I Investigator[.]” (Doc.
28-3) Riggins did not provide any letters or documents to
support his first two complaints. Riggins also wrote that
Hardy had given him her panties on July 25, 2014.
August 19, 2014, Riggins reported the sexual assault to
I&I and gave the panties to the Investigator. (Doc. 28-4)
At some time after September 23, 2014, Riggins wrote to
Warden Myers and I&I, to complain about the sexual
assault of July 25, 2014 and the sexual assaults “on
two other occasions before that.” (Doc. 28-4) He also
wrote that the mental health counselor he spoke with on
September 23, 2014, “seems to think it's something
to play about.” (Doc. 28-4).He alleges that the
Investigator found that the sexual contact was substantiated.
(Doc. 1, p. 4)
20, 2016, Riggins filed the instant complaint against Warden
Myers, Sgt. Whittle, Capt. Fails, Lt. Bolar and Nurse Hardy.
(Doc. 1) Pursuant to 42 U.S.C. § 1983, Riggins brings
five counts wherein he alleges violations of the Eighth
Amendment's prohibition against cruel and unusual
Count 1, Riggins alleges that Sgt. Whittle subjected him to
cruel and unusual punishment in violation of the Eighth
Amendment. Specifically, Riggins alleges that Sgt. Whittle
acted with deliberate indifference to his constitutional
rights by forcing him to have sex with Nurse Hardy and by
assaulting and threatening him regarding payment for the cell
Count II, Riggins alleges that Capt. Fails and Lt. Bolar
violated their “Eighth Amendment duty to make
safe[.]” (Doc. 1) Riggins alleges that these
Defendants, with supervisory authority over Sgt. Whittle, had
knowledge of the sexual assaults and physical assaults,
i.e., an excessive risk to Riggins' health and
safety, but disregarded the known risk, and did not take any
action to protect him. He alleges that they acted with
deliberate indifference to a known risk, and therefore,
subjected him to cruel and unusual punishment.
Count III, Riggins alleges “supervisory
liability” as to Capt. Fails and Lt. Bolar based on
their supervision of Sgt. Whittle. He alleges that they knew
of the sexual assaults and physical assaults regarding the
cell phones, but breached their duty to intervene and stop
the assaults. Riggins alleges that these Defendants acted
with deliberate indifference to a known risk, and violated
his Eighth Amendment right not to be subjected to cruel and
Count IV, Riggins alleges that Warden Myers, Capt. Fails, and
Lt. Bolar failed to provide protective measures. He alleges
that these defendants had supervisory authority over Sgt.
Whittle and knew of the sexual assaults and physical assaults
and threats regarding the cell phones because of his
“written complaints of July 25, 2014 and October 31,
2014, among others[.]” (Doc. 1) Riggins alleges that
these Defendants failed to implement any procedures to
protect him from Whittle; and therefore, they acted with
deliberate indifference to a known risk, and subjected him to
cruel and unusual punishment.
Count V, Riggins alleges that Warden Myers and Capt. Fails,
in their official capacities, failed to provide protective
measures. He alleges that they knew of the risk of harm
created by the trade in contraband cell phones because of a
2011 riot at Holman that occurred when contraband cell phones
were confiscated. He also alleges that they knew that cell
phones were being brought into Holman as early as 2011, but
disregarded this known risk to inmate safety by failing to
implement any procedures to protect the inmates. Riggins
alleges that this lack of protective measures resulted in the
physical assault by Whittle, i.e. cruel and unusual
also brings two counts under state law. In Count VI, Riggins
claims negligence against Warden Myers, Capt. Fails, Sgt.
Whittle. He alleges that Warden Myers, Capt. Fails
and Sgt. Whittle had a duty to maintain a safe and secure
environment and a duty to promptly report or investigate
complaints of sexual misconduct or physical abuse by the
correctional staff, but breached that duty. He also alleges
that Sgt. Whittle had a duty not to subject him to sexual and
physical abuse, but breached that duty. In Count VII, Riggins
claims assault and battery against Sgt. Whittle for slapping
and choking him on October 31, 2014 and November 1, 2014.
Conclusions of Law
Summary Judgment Standard
to Rule “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.” Fed.R.Civ.P. 56(a). The party moving
for summary judgment bears the “initial responsibility
of informing the district court of the basis for [their]
motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
' which [they] believe demonstrate the absence of a
genuine issue of material fact.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991) (bracketed text added) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). If the moving
party does not have the burden of proof at trial, they may
show that “there is an absence of evidence to support
the nonmoving party's case.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th
Cir. 1991) (citations omitted). Alternatively, the moving
party may support its “motion for summary judgment with
affirmative evidence demonstrating that the nonmoving party
will be unable to prove its case at trial.”
Id. If the moving party meets this burden, the
non-movant, as the party bearing the burden of proof at
trial, must set forth specific facts, supported by citation
to the evidence, to support the elements of the case at
trial, and therefore, establish that there is a genuine issue
for trial. Fed.R.Civ.P. 56(c). See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 252 (1986).
the Court must “resolve all issues of material fact in
favor of the [non-movant], and then determine the legal
question of whether the [movant] is entitled to judgment as a
matter of law under that version of the facts.”
McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir.
2004) citing Durruthy v. Pastor, 351 F.3d 1080, 1084
(11th Cir. 2003). “[A]ll reasonable doubts about the
facts and all justifiable inferences are resolved in favor of
the non-movant.” Citizens Trust Bank v. Lett,
2015 WL 4254561, at *1 (N.D.Ala. 2015). The Court is
obligated to construe the record, including all evidence and
factual inferences, in the light most favorable to the
nonmoving party. See Skop v. City of Atlanta, 485
F.3d 1130, 1136 (11th Cir. 2007).
the mere existence of any factual dispute will not
automatically necessitate denial of a motion for summary
judgment; rather, only factual disputes that are material
preclude entry of summary judgment. Lofton v. Secretary
of Dept. of Children and Family Services, 358 F.3d 804,
809 (11th Cir. 2004). “An issue of fact is material if
it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case.
It is genuine if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving
party.” Reeves v. C.H. Robinson Worldwide,
Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation
omitted). A genuine dispute of material fact exists “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Allen v. Bd. of
Public Education for Bibb County, 495 F.3d 1306, 1313
(11th Cir. 2007).
Eighth Amendment claims brought pursuant to 42 U.S.C.
order for a plaintiff to establish a claim under 42 U.S.C.
§ 1983, he must prove (1) a violation of a
constitutional right, and (2) that the alleged violation was
committed by a person acting under the color of state
law.” Martinez v. Burns, 459 Fed.Appx. 849,
850-851 (11th Cir. 2012) (citing Holmes v. Crosby,
418 F.3d 1256, 1258 (11th Cir. 2005)). The parties do not
dispute that Defendants, as correctional officers for the
State of Alabama were acting under color of law.
Eighth Amendment, applicable to the states through the
Fourteenth Amendment, governs the conditions under which
convicted prisoners are confined and the treatment they
receive while in prison.” Id. (citing
Farrow v. West, 320 F.3d 1235, 1242 (11th Cir.
2003); Bass v. Perrin, 170 F.3d 1312, 1316 (11th
Cir. 1999)). The Amendment states that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” U.S. Const.
amend. VIII. “ ‘[T]he unnecessary and wanton
infliction of pain ... constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.' ”
Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078
(1986) (some internal quotation marks omitted). “Among
‘unnecessary and wanton' inflictions of pain are
those that are ‘totally without penological
justification.'” Rhodes v. Chapman, 452
U.S. 337, 346, 101 S.Ct. 2392, 2399 (1981).
prisoners, “[t]he Eighth Amendment can give rise to
claims challenging specific conditions of confinement, the
excessive use of force, and the deliberate indifference to a
prisoner's serious medical needs.” Thomas v.
Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010) (citations
omitted). Additionally, “[b]eyond just restraining
prison officials from inflicting ‘cruel and unusual
punishments' upon inmates, ‘[t]he Amendment also
imposes duties on these officials, who must ... “take
reasonable measures to guarantee the safety of the
inmates.” ' ” Bowen v. Warden Baldwin
State Prison, 826 F.3d 1312, 1319-20 (11th Cir. 2016
(quoting Farmer v. Brennan, 511 U.S. 825, 832, 114
S.Ct. 1970 (1994) (quoting Hudson v. Palmer, 468
U.S. 517, 526-27, 104 S.Ct. 3194 (1984)).