United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR., CHIEF UNITED STATES MAGISTRATE JUDGE
Charles William Bracy (“Plaintiff”) is a
former inmate of the Alabama Department of
Corrections (“ADOC”). He brings this action
pursuant to 42 U.S.C. § 1983, challenging his placement
in segregation and the conditions of his confinement while he
was an inmate at Kilby Correctional Facility
(“Kilby”) in Mt. Meigs, Alabama. Doc. 1 at 2.
Plaintiff's allegations include claims that he suffered
violations of the Due Process Clause, Equal Protection
Clause, and Eighth Amendment. Plaintiff seeks declaratory and
injunctive relief as well as damages. Docs. 1 at 5, 20-1, 21,
60, 61, 86. Plaintiff names as defendants Jefferson S. Dunn,
Cassandra Conway, Kathy Holt, Phyllis Billups, Leon Bolling,
Timothy Logan, John Richardson, Jeffery Williams, Grantt
Culliver, and Terrance G. McDonnell (“Defendants”).
Plaintiff sues Defendants in their individual and official
capacities. Doc. 33 at 2.
to the orders of this court, Defendants filed answers,
special reports, supplemental special reports, and
evidentiary materials addressing the claims for relief raised
in the complaint. Docs. 27, 35, 42, 45, 51, 69, 82, 85, 88,
99, 100, 102, 128, 135, 139, 140, 147, 161, 162, 171, 172,
174, 194, 195, 207. In their various reports, Defendants
assert that Plaintiff fails to state a claim for relief,
respondeat superior is not a basis for relief, there is no
merit to Plaintiff's claims, they are entitled to
Eleventh Amendment immunity and qualified immunity, Plaintiff
cannot recover damages for mental or emotional injury because
he does not allege a physical injury as required by 42 U.S.C.
§ 1997e(e), and Plaintiff did not properly exhaust his
available administrative remedies before filing suit as
required by 42 U.S.C. § 1997e(a).
court directed Plaintiff to respond to Defendants'
reports. Docs. 52, 196. The court advised Plaintiff it may,
in the future, treat Defendants' report and
Plaintiff's response as a dispositive motion and
response. Doc. 52 at 2. The court advised Plaintiff that his
response should be supported by affidavits or statements made
under penalty of perjury or appropriate other evidentiary
materials, and it advised him of the proper manner in which
to respond to the reports. Id. at 2-3. Plaintiff
responded. Docs. 33, 53, 81, 167, 201, 204.
case is now pending before the court on Defendants'
motion to dismiss based on lack of exhaustion under 42 U.S.C.
§ 1997e(a), and Defendants' motion for summary
judgment under Federal Rule of Civil Procedure 56. Upon
consideration of the motions, Plaintiff's responses, and
the evidentiary materials filed in support of and in
opposition to the motions, the court concludes that
Defendants' motion to dismiss is due to be denied, and
Defendants' motion for summary judgment is due to be
granted in part and denied in part.
42 U.S.C. § 1997e(a)
argue Plaintiff's claims are due to be dismissed pursuant
to the exhaustion requirement of the Prison Ligation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a). Doc. 27
at 16. Under § 1997e(a), “[n]o 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.” The exhaustion requirement is an
affirmative defense; it is not jurisdictional or a pleading
requirement. See Jones v. Bock, 549 U.S. 199, 216
(2007); Woodford v. Ngo, 548 U.S. 81, 101 (2006)
(“the PLRA exhaustion requirement is not
jurisdictional”); Bryant v. Rich, 530 F.3d
1368, 1374-75 & n.10 (11th Cir. 2008). If the defense is
raised in a motion for summary judgment, it must be treated
as a motion to dismiss under Federal Rule of Civil Procedure
12. Bryant, 530 F.3d at 1374-75. The court conducts
a two-step inquiry in applying § 1997e(a). See
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
First, the court considers the parties' versions of the
facts, and if they conflict, takes the plaintiff's
version as true. Id. at 1082. If, based on the
plaintiff's version, the claim is unexhausted, the court
must dismiss the claim. See Id. Second, if the case
cannot be dismissed based on plaintiff's version and
there are factual disputes, “the court then proceeds to
make specific findings in order to resolve the disputed
factual issues related to exhaustion. The defendants bear the
burden of proving that the plaintiff has failed to exhaust
his available administrative remedies.” Id.
states there is no grievance or appeal procedure he could
use, therefore the PLRA does not apply to his case. Doc. 33
at 4. Defendants identify no administrative remedy that
Plaintiff could exhaust. Consequently, the court concludes,
Defendants have not met their burden to show Plaintiff failed
to exhaust his administrative remedies before filing suit
regarding his claims. Defendants' motion to dismiss based
on § 1997e(a) is therefore due to be denied.
SUMMARY JUDGMENT STANDARD OF REVIEW
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). “Summary judgment is appropriate
‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show there is no [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 Fed.R.Civ.P. 56
omitted; “issue” altered to “dispute”
to reflect the stylistic change in the current rule). 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) (alterations
added). 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
evidence in support of some element of its case on which it
bears the ultimate burden of proof. Id. at 322-24.
have met their evidentiary burden and demonstrated the
absence of any genuine dispute of material fact. Thus, the
burden shifts to Plaintiff to establish, with appropriate
evidence beyond the pleadings, that a genuine dispute
material to the case exists. 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 . . . .”); see
also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090,
1098 (11th Cir. 2014) (court considers facts pled in a
plaintiff's sworn complaint when considering his
opposition to summary judgment”). 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.
The evidence must be admissible at trial, and if the
nonmoving party's evidence “is merely colorable . .
. or is not significantly probative . . . summary judgment
may be granted.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986); Fed.R.Civ.P. 56(e).
“A mere ‘scintilla' of evidence supporting
the opposing party's position will not suffice . . .
.” Walker v. Darby, 911 F.2d 1573, 1577 (11th
Cir. 1990) (citing Anderson, 477 U.S. at 252).
Conclusory allegations based on subjective beliefs are
likewise insufficient to create a genuine dispute of material
fact. Holifield v. Reno, 115 F.3d 1555, 1564 n.6
(11th Cir. 1997) (per curiam) (plaintiff's
“conclusory assertions . . ., in the absence of
[admissible] supporting evidence, are insufficient to
withstand summary judgment”). Only disputes involving
material facts are relevant, and what is material is
determined by the substantive law applicable to the case.
Anderson, 477 U.S. at 248. 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).
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.”
Anderson, 477 U.S. at 255. Although factual
inferences must be viewed in a light most favorable to the
nonmoving party and pro se complaints are entitled to liberal
interpretation by the court, a pro se litigant does not
escape the burden of sufficiently establishing a genuine
dispute of material fact. Brown v. Crawford, 906
F.2d 667, 670 (11th Cir. 1990). Thus, a plaintiff's pro
se status alone does not mandate this court's disregard
of elementary principles of production and proof in a civil
case. In this case, Plaintiff fails to demonstrate a
requisite genuine dispute of material so as to preclude
summary judgment on all but one of his claims. See
Matsushita, 475 U.S. at 587.
SUMMARY OF MATERIAL FACTS
entered Kilby in June 2013, to serve a twenty-year sentence
for manufacture of a controlled substance and a fifteen-year
sentence for manufacture of a controlled substance. Docs.
27-3 at 10, 139-1 at 12. He was transferred to the W.E.
Donaldson Correctional Facility (“Donaldson”) in
Bessemer, Alabama, on October 7, 2015. Doc. 54. Plaintiff now
resides at an address outside the custody of the ADOC. Doc.
the time relevant to the claims, Defendants were employed by
the ADOC. Jefferson Dunn (“Dunn”) became
Commissioner of the ADOC on April 1, 2015, and before that he
had no contact with the ADOC and appointed Deputy
Commissioner of the ADOC on March 1, 2011. Doc. 27-1 at 1.
Jeffery Williams (“Williams”) was Deputy
Commissioner of Governmental Relations with the ADOC. Doc.
69-2 at 1. Cassandra Conway (“Conway”) has been
the ADOC Director of Classification since June 1, 2013. Doc.
27-2 at 1. Grantt Culliver (“Culliver”) was
Associate Commissioner for Operations in the ADOC. Doc. 69-3.
Terrance McDonnell (“McDonnell”) was Associate
Commissioner of Plans and Programs; in July 2014, the ADOC
Classification Division was added to his responsibilities,
and McDonnell retired in 2016. Doc. 135-1 at 1. Kathy Holt
(“Holt”) was Director of Central Records, and she
retired on December 31, 2012. Doc. 51-1. Phyllis Billups
(“Billups”) was Warden III at Kilby. Doc. 27-4.
Leon Bolling (“Bolling”) was Warden II at Kilby.
Doc. 27-5. Timothy Logan (“Logan”) was a
Correctional Captain at Kilby. Doc. 27-6. John Richardson
(“Richardson”) was a Correctional Sergeant at
Kilby. Doc. 27-7.
Close Custody Segregation
at Kilby in 2013, Plaintiff had a pending charge against him
for drug trafficking and, because of his past criminal
history, he faced a potential sentence of life without parole
(“LWOP”) on the pending charge. Docs. 27-2 at 1,
27-3 at 2.
2013, under ADOC Classification Manual § 18.104.22.168,
inmates held on a detainer warrant for an offense which is
likely to result in a sentence of death or LWOP were held in
close custody until the resolution of the offense. Doc. 27-3
at 5, 8. “Close custody” was “the most
restrictive custody level to which an inmate can be assigned
. . . .” Doc. 27-3 at 6. Section 22.214.171.124 provided:
Detainers. Inmates being held on a detainer
warrant for a capital offense or an offense which is likely
to result in LWOP will be held in Close custody until the
resolution of the offense. This does not apply to LWOP
sentences that have been reversed and remanded for retrial
from the death sentence or out-of-state cases . . . .
Placement into Close custody under these circumstances is a
matter of internal security and does not imply any
presumption of guilt.
Doc. 27-3 at 5 (dated October 2010).
same time, Classification Manual § 126.96.36.199 provided that
inmates serving LWOP “will be observed in Close custody
for at least a thirty (30) day period. . . .” Doc. 27-3
at 6. Standard Operating Procedure (“SOP”) VI-7
Segregation Unit also contemplated LWOP inmates being placed
in medium custody:
[LWOP] inmates entering Kilby will be placed and housed in a
single cell while at Kilby unless the Central Review Board
has approved medium custody and the Warden of Kilby has
personally authorized the LWOP inmate to be housed in a
designated dormitory setting, unless assigned to a dormitory
setting, LWOP inmates will be handled as Close or higher
custody at all times.
Doc. 27-9 at 4 (dated May 27, 2015). Jimmy Thomas, Warden II
at Kilby, who is not a defendant in this case, said Plaintiff
was subject to the above wording of SOP VI-7 Segregation Unit
when Plaintiff arrived at Kilby in 2013. Doc. 139-1 at 12.
Inmates in close custody administrative segregation have
fewer privileges and are subject to greater security
procedures than inmates in medium custody administrative
segregation. Doc. 128-1 at 8-11 (sealed).
September 17, 2013, Plaintiff was notified that the
reclassification team would meet the next day to recommend
that he be placed in close custody. Doc. 27-3 at 3. Plaintiff
was present at the hearing held on September 18, 2013, and he
said he wished he had a lawyer. Doc. 27-3 at 4. He was told
he did not have a sentence yet of LWOP, just the possibility.
Id. At the end of the hearing, it was recommended
that Plaintiff be placed in close custody/Level 5. Doc. 27-3
at 7. Plaintiff's previous ADOC classification risk
assessment was Level 1. Doc. 27-3 at 8. On October 4, 2013,
Mike Slatton, who is not a defendant in this case, approved
the classification. Docs. 27-2 at 2, 27-3 at 7-8. On June 22,
2015, Conway, the Director of Classification, stated that
Plaintiff was properly classified. Doc. 27-2 at 2.
October 4, 2013, Plaintiff was classified as a special needs
inmate with mental health code (“MH”) MH 1, and
he was taking psychological medications. Doc. 27-3 at 9. On
July 28, 2015, Dr. David Tytell, Chief Psychologist of the
ADOC, met with Plaintiff to obtain his mental health status
pursuant to a court order. Doc. 35-2 at 3. Dr. Tytell stated
on August 3, 2015, that Plaintiff was being treated for
bipolar disorder, that the diagnosis was accurate and
fitting, and that Plaintiff “appear[ed] to be
relatively stable at this time with his mental health
disorder.” Doc. 35-2 at 2. Plaintiff has stated that
solitary confinement damaged him, and he took “heavy
anti- psychotic medications to sleep or reduce
anxiety.” Doc. 33 at 18. Plaintiff's mental health
was reviewed periodically during his time at Kilby, and his
mental health treatment while in segregation is not the
subject of this lawsuit. Doc. 35-2 at 4-45.
August 17, 2015, the classification manual was amended to
remove the exception for inmates whose convictions were
reversed and remanded or had out-of-state cases. It also was
amended to allow inmates facing potential LWOP offenses to be
placed in medium custody. Doc. 102-1 at 7-8 (dated Aug. 17,
September 2, 2015, based on the change to the classification
manual, Plaintiff was approved for medium custody and
“transfer[red] to an approved SL V facility.”
Docs. 85-2 at 4, 85-3 at 2. On October 7, 2015, Plaintiff was
transferred to Donaldson. Doc. 85-2 at 1. About a month
later, the Classification Specialist recommended that
Plaintiff remain in medium custody due to pending detainers
for drug offenses. Doc. 85-2 at 2. Plaintiff states he was
released into the general population at Donaldson. Doc. 163-5
who became the ADOC Commissioner on April 1, 2015, stated
that he does not control the daily operation of Kilby; he
does not know Plaintiff; he does not recall a complaint from
Plaintiff; and, to his knowledge, has had no contact with
Plaintiff. Doc. ...