United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. JORDEN, UNITED STATES MAGISTRATE JUDGE
U.S.C. § 1983 action is pending before the court on an
amended complaint filed by Eric Blanding, an indigent state
inmate, challenging actions which occurred during a prior
term of incarceration at the Easterling Correctional
Facility. Specifically, Blanding challenges the lack of a
grievance procedure in the state prison system, general
conditions at Easterling, an attack by another inmate, his
access to an attorney visit, the due process provided to him
in a disciplinary proceeding, the adequacy of investigations
conducted by correctional officials, the failure of
classification personnel to grant him a particular custody
classification, and alleged violations of administrative
regulations. Doc. 25-1 at 5-12. Blanding names as defendants
Kim Thomas, the former Commissioner of the Alabama Department
of Corrections; and Derrick Carter, Karla Jones, Sherry
Lightner, Stacey Ott, Larry Peavey, Kenneth Drake, Jimmie
Wilson, James Deloach, Brian Thompkins and James Griffin, all
of whom were correctional officials employed at Easterling
during the relevant period of time. Blanding seeks monetary
damages for the alleged violations of his constitutional
rights. Doc. 25-1 at 13.
defendants filed special reports, supplemental special
reports and relevant evidentiary materials in support of
these reports-including affidavits, prison documents and
medical records-addressing the claims presented by Blanding.
In their reports, the defendants deny acting in violation of
Blanding's constitutional rights.
reviewing the initial special reports filed by the
defendants, the court issued an order on October 9, 2015
directing Blanding to file a response to each of the
arguments set forth by the defendants in their reports,
supported by affidavits or statements made under penalty of
perjury and other evidentiary materials. Doc. 53 at 2. The
order specifically cautioned that "unless within fifteen
(15) days from the date of this order a party . . . presents
sufficient legal cause why such action should not be
undertaken ... the court may at any time [after expiration of
the time for the plaintiff filing a response to this order]
and without further notice to the parties (1) treat the
special reports 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." Doc. 53 at
2-3. Blanding filed an unsworn response to this order on
March 28, 2016. Doc. 62. In this response, Blanding merely
listed his claims for relief and presented nothing to dispute
the arguments or evidentiary materials submitted by the
defendants. Doc. 62 at 1-2. The court likewise provided
Blanding an opportunity to file a response to the
defendants' supplemental special reports. Doc. 69.
Blanding was advised to do so in compliance with the
directives of the October 9, 2015 order. Doc. 69. Blanding
filed no response to the defendants' supplemental special
to the directives of the orders entered in this case, the
court now treats the defendants' reports collectively as
a motion for summary judgment and 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) (internal quotation marks
omitted); Rule 56(a), Fed.R.Civ.P. ("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 issue [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) (holding that 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 322-24; Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (holding
that the moving party discharges its burden by showing the
record lacks evidence to support the nonmoving party's
case or the nonmoving party would be unable to prove its case
the defendants meet their evidentiary burden, as they have in
this case, 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); Jeffery, 64 F.3d at 593-94 (holding that,
once a 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). 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 judgment stage." Beard v.
Banks, 548 U.S. 521, 530 (2006) (internal citation
omitted). This court will also consider "specific
facts" pleaded in a plaintiffs sworn complaint when
considering his opposition to summary judgment. Caldwell
v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir.
genuine dispute of material fact exists when the nonmoving
party produces evidence that would allow a reasonable
factfinder to return a verdict in its favor such that summary
judgment is not warranted. Greenberg, 498 F.3d at
1263; Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495
F.3d 1306, 1313 (11th Cir. 2007). "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). "[T]here must exist a conflict in
substantial evidence to pose a jury question." Hall
v. Sunjoy Indus. Group, Inc., 764 F.Supp.2d 1297, 1301
(M.D. Fla. 2011) (citation omitted). "When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary
judgment." Scott v. Harris, 550 U.S. 372, 380
factual inferences must be viewed in a light most favorable
to the plaintiff 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. See Beard, 548
U.S. at 525; Brown v. Crawford, 906 F.2d 667, 670
(11th Cir. 1990). Thus, Blanding's pro se status
alone does not compel this court to disregard 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 this review, the
court finds that Blanding has failed to demonstrate a genuine
dispute of material fact in order to preclude entry of
summary judgment in favor of the defendants.
extent Blanding lodges claims against the defendants in their
official capacities and seeks monetary damages, the
defendants are entitled to absolute immunity.
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). As the
Eleventh Circuit has held,
the Eleventh Amendment prohibits federal courts from
entertaining suits by private parties against States and
their agencies [or employees]. There are two exceptions to
this prohibition: where the state has waived its immunity or
where Congress has abrogated that immunity. A State's
consent to suit must be unequivocally expressed in the text
of [a] relevant statute. Waiver may not be implied. Likewise,
Congress' intent to abrogate the States' immunity
from suit must be obvious from a clear legislative statement.
Selensky v. Alabama, 619 Fed.Appx. 846, 848-49 (11th
Cir. 2015) (internal quotation marks and citations omitted).
Thus, a state official may not be sued in his official
capacity unless the state has waived its Eleventh Amendment
immunity, see Pennhurst St. School &
Hospital v. Halderman, 465 U.S. 89, 100 (1984), or
Congress has abrogated the State's immunity, see
Seminole Tribe v. Florida, 517 U.S. 44, 59.
Neither waiver nor abrogation applies here. The Alabama
Constitution states that "the State of Alabama shall
never be made a defendant in any court of law or
equity." Ala. Const, art. I, § 14. The Supreme
Court has recognized that this prohibits Alabama from waiving
its immunity from suit.
Selensky, 619 Fed.Appx. 849 (citing Pugh,
438 U.S. at 782). "Alabama has not waived its Eleventh
Amendment immunity in § 1983 cases, nor has Congress
abated it." Holmes v. Hale, 701 Fed.Appx. 751,
753 (11th Cir. 2017) (citing Carr v. City of
Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990)).
In light of the foregoing, the defendants are entitled to
sovereign immunity under the Eleventh Amendment for claims
seeking monetary damages from them in their official
capacities. Selensky, 619 Fed.Appx. 849; Harbert
Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir.
1998) (holding that state officials sued in their official
capacities are protected from suit for damages under the
Eleventh Amendment); Edwards v. Wallace Comm.
College, 49 F.3d 1517, 1524 (11th Cir. 1995) (holding
that damages are unavailable from a state official sued in
his official capacity).
Lack of Grievance Procedure
complains that the Alabama Department of Corrections does not
provide a grievance procedure. Doc. 25-1 at 5. This claim is
without merit because an inmate grievance procedure is
"not constitutionally mandated." Baker v.
Rexroad, 159 Fed.Appx. 61 (11th Cir. 2005); McCray
v. Mallory, 931 F.2d 54 (4th Cir. 1991) (holding that
Plaintiffs claim challenging sufficiency of inmate grievance
procedure "is frivolous" as such procedure is not
constitutionally required); Flowers v. Tate, 925
F.2d 1463 (6th Cir. 1991) (holding that an inmate "does
not have a constitutional right to an effective grievance
procedure"); Mann v. Adams, 855 F.2d 639, 640
(9th Cir. 1988) (holding that there "is no legitimate
claim of entitlement to a grievance procedure");
Miller v. Jones, 791 F.Supp. 240, 241-42 (E.D. Mo.
1992) (finding that inmate's allegation of "wrongful
denial of a grievance [fails to state a viable claim for
relief in a § 1983 action because he] has no
constitutional right to a grievance procedure"). Thus,
the failure of the Alabama Department of Corrections to
establish an inmate grievance procedure can provide no basis
for relief in this cause of action.
Failure to Protect-Deliberate Indifference to Safety
complains that the defendants failed to protect him from
attack by inmate George Black in November 2014. "A
prison official's duty under the Eighth Amendment is to
ensure reasonable safety, a standard that incorporates due
regard for prison officials' unenviable task of keeping
dangerous men in safe custody under humane conditions."
Farmer v. Brennan, 511 U.S. 825, 844-45 (1994)
(internal quotation marks and citations omitted). Officials
responsible for prison inmates may be held liable under the
Eighth Amendment for acting with "deliberate
indifference" to an inmate's safety when the
official knows that the inmate faces "a substantial risk
of serious harm" and with such knowledge disregards the
known risk by failing to take reasonable measures to abate
it. Id. at 828. A constitutional violation occurs
only "when a substantial risk of serious harm, of which
the official is subjectively aware, exists and the official
does not respond reasonably to the risk." Cottone v.
Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003). "It is
not, however, every injury suffered by one prisoner at the
hands of another that translates into constitutional
liability for prison officials responsible for the
victim's safety." Id. at 834. "Within
[a prison's] volatile 'community, ' prison
administrators are to take all necessary steps to ensure the
safety of. . . the prison staffs and administrative
personnel. . . . They are [also] under an obligation to take
reasonable measures to guarantee the safety of the inmates
themselves." Hudson v. Palmer, 468 U.S. 517,
526-27 (1984). The Eleventh Circuit has, however, stressed
that a "prison custodian is not the guarantor of a
prisoner's safety." Popham v. City of
Talladega, 908 F.2d 1561, 1564 (11th Cir. 1990);
Purcell ex rel. Estate of Morgan v. Toombs Cnty.,
Ga., 400 F.3d 1313 (11th Cir. 2005) (same). "Only
'[a] prison official's deliberate indifference to a
known, substantial risk of serious harm to an inmate violates
the Eighth Amendment.'" Harrison v.
Gulliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (quoting
Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028-29
(11th Cir. 2001), abrogated on other grounds by Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007). "In order to
state a § 1983 cause of action against prison officials
based on a constitutional deprivation [under the Eighth
Amendment], there must be at least some allegation of a
conscious or callous indifference to a prisoner's rights,
thus raising the tort to a constitutional stature."
Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir.
is settled that both objective and subjective elements are
necessary components of a violation of the protections
afforded by the Eighth Amendment. Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014). With
respect to the objective elements of a deliberate
indifference claim, an inmate must first show "an
objectively substantial risk of serious harm . . . exist[ed].
Second, once it is established that the official [was] aware
of this substantial risk, the official must [have] react[ed]
to this risk in an objectively unreasonable manner."
Marsh, 268 F.3d at 1028-29. As to the subjective
elements, "the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference. . .
. The Eighth Amendment does not outlaw cruel and unusual
'conditions'; it outlaws cruel and unusual
'punishments.' . . . [A]n official's failure to
alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot under
our cases be condemned as the infliction of punishment."
Farmer, 511 U.S. at 837-38; Campbell v.
Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999) (citing
Farmer, 511 U.S. at 838) ("Proof that the
defendant should have perceived the risk, but did not, is
insufficient."); Cottrell v. Caldwell, 85 F.3d
1480, 1491 (11th Cir. 1996) (same). The conduct at issue
"must involve more than ordinary lack of due care for
the prisoner's interests or safety. ... It is obduracy
and wantonness, not inadvertence or error in good faith, that
characterize the conduct prohibited by the Cruel and Unusual
Punishments Clause, whether that conduct occurs in connection
with establishing conditions of confinement, supplying
medical needs, [providing security for inmates], or restoring
official control over a tumultuous cellblock."
Whitley v. Alters, 475 U.S. 312, 319(1986).
To be deliberately indifferent, Defendants must have been
"subjectively aware of the substantial risk of serious
harm in order to have had a '"sufficiently culpable
state of mind.'"" Farmer, 511 U.S. at
834-38, 114 S.Ct. at 1977-80; Wilson v. Setter, 501
U.S. 294, 299, 111 S.Ct. 2321, 2324-25, 115 L.Ed.2d 271
(1991). . . . Even assuming the existence of a serious risk
of harm and legal causation, the prison official must be
aware of specific facts from which an inference could be
drawn that a substantial risk of serious harm exists-and the
prison official must also "draw that inference."
Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.
Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir.
2003). A defendant's subjective knowledge of the risk
must be specific to that defendant because "imputed or
collective knowledge cannot serve as the basis for a claim of
deliberate indifference. . . . Each individual Defendant must
be judged separately and on the basis of what that person
[knew at the time of the incident]." Burnette v.
Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008). Moreover,
"[t]he known risk of injury must be a strong likelihood,
rather than a mere possibility before a [state
official's] failure to act can constitute deliberate
indifference." Brown v. Hughes, 894 F.2d 1533,
1537 (11th Cir. 1990) (internal citations and quotation marks
omitted). Thus, "[m]erely negligent failure to protect
an inmate from attack does not justify liability under
section 1983." Id.
to proceed beyond the properly supported motion for summary
judgment filed by the defendants, Blanding must first
demonstrate an objectively substantial risk of serious harm
existed to him from his attacker-inmate George Black- and
"that the defendant[s] disregarded that known risk by
failing to respond to it in an objectively reasonable
manner." Johnson v. Boyd, 568 Fed.Appx. 719,
721 (11th Cir. 2014) (citing Caldwell, 748 F.3d at
1100). If he establishes these objective elements, Blanding
must then satisfy the subjective component. To do so,
Blanding "must [show] that the defendant[s] subjectively
knew that [he] faced a substantial risk of serious harm.
defendant[s] must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and [they] must also draw the inference."
Id. (internal citation omitted).
To survive a motion for summary judgment, a plaintiff must
submit evidence that the defendant-official had subjective
knowledge of the risk of serious harm. McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). In
determining subjective knowledge, a court is to inquire
whether the defendant-official was aware of a
"particular threat or fear felt by [the]
[p]laintiffr Carter v. Galloway, 352 F.3d 1346, 1350
(11th Cir. 2003) (emphasis added). Moreover, the
defendant-official "must be aware of specific facts from
which an inference could be drawn that a substantial risk of
serious harm exists-and the prison official must also draw
that inference." Id. at 1349 (quotations
Johnston v. Crosby, 135 Fed.Appx. 375, 377 (11th
providing a factual background for his failure to protect
claim, Blanding maintains that during his confinement at
Holman Correctional Facility in the latter part of 2008 or
January 2009 he witnessed inmate Leslie James, a known member
of the Crips gang, stab an officer and the officer "then
protected himself by using necessary force to subdue
James[.]" Doc. 25-1 at 8. Blanding maintains that he
testified on behalf of the officer, which caused friction
with inmate "Demont Tucker whom was the head leader of
the Crips gang at that time [and] went on to attempt to have
Mr. Blanding killed by issuing a gang style hit out on him by
other gang members and labeling Blanding a
'snitch.'" Doc. 25-1 at 8. Blanding alleges that
after his transfer to St. Clair Correctional Facility in 2009
an inmate attacked him, and that he believes the attack
occurred because of the hit placed on him by inmate Tucker.
Doc. 25-1 at 8. Blanding suffered multiple injuries during
this attack, leading to his transfer to Easterling. Doc. 25-1
at 8. Blanding's narrative continues, in relevant part,
Blanding and Tucker ended up [together] at Easterling.
While at Easterling Blanding and Tucker ended up running into
each other [on October 9, 2014]. Again, the nonsense started
up . . . and Tucker began calling Blanding a snitch in front
of everyone and stating your dead. Another hit was put on
Blanding and he immediately ran to see classification
officers Stacey Ott and Sherry Lightner demanding Protective
Custody. He explained everything that was going on with these
. . . Warden Carter was then called into the office and [the
allegation regarding his testifying on behalf of an officer
at Holman, the validation of inmate Leslie James as his
enemy, and the prior attack at St. Clair were] verified on
the computer. Cater, Ott and Lightner all still refused
Blanding Protective Custody even though he gave up the name
of who was ordering these hits. They even refused to lock up
Demont Tucker pending an investigation and or transfer Tucker
or Blanding to avoid any more violent assaults and or a
Doc. 25-1 at 8-9. Blanding further states that "2
[unidentified] Crips approached [him] and threatened to stab
him if anything happens to Tucker. So Blanding goes to tell
Officer Wilson but again he is denied permission to go to . .
. Protective Custody." Doc. 25-1 at 9.
contends that his wife and attorneys contacted correctional
officials seeking action based on his requests for protection
from inmate Tucker and other unidentified inmates, but