United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
Steven Smith, an Alabama prison inmate proceeding pro
se and in forma pauperis, filed a complaint
under 42 U.S.C. § 1983. This action has been referred to
the undersigned for appropriate action pursuant to 28 U.S.C.
§ 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). After
careful review, it is recommended that Defendant Corizon,
LLC's Motion for Summary Judgment be GRANTED. It is
further recommended that the Motion for Summary Judgment of
Defendants, Salter, Bolar, Brown, and Dailey, be GRANTED, and
that Plaintiff Smith's action be dismissed with
Summary of Allegations.
alleges in the complaint that on June 11, 2016, he was
assaulted and stabbed by another inmate in Holman
Prison's B dorm when no guard was present at his
stationed post. (Doc. 1 at 4). The guard, Officer Salter, is
alleged to have been outside the dorm gate at the time the
attack occurred. (Id. at 4-5). Smith claims that the
attacker (nicknamed “Toe Toe”) assaulted him from
behind with a knife (stabbing his left shoulder) and chased
him with a broken broomstick. (Id. at 4). Smith ran
from the assailant, jumping the wall in the center of the
dorm, to get to the gated entrance to the dorm. (Id.
at 5). As soon as Smith approached the entrance gate, the
cubicle officer rolled the door open, and Smith ran out of
the dorm. (Doc. 33 at 19). As Smith exited the dorm, he
alleges he saw Officer Salter and Lieutenant Bolar standing
outside of the bars looking into the dorm. (Id.).
Smith was immediately taken to the prison's infirmary,
where the examination revealed a stab wound to his left
shoulder and abrasions to his arms and legs. (Doc. 30-9 at
13). Smith was then transferred to Atmore Community
Hospital's Emergency Room, where xrays of his shoulder
confirmed there was no fracture, dislocation, or joint damage
and that the puncture wound did not require sutures. (Doc.
30-9 at 37, 39-40). Smith claims the prescribed treatment for
his injury was to daily clean and bandage the stab wound for
25 days. (Id.). Smith alleges, however, that he only
received wound treatment eleven (11) days out of the
prescribed twenty-five (25) days, resulting in the
development of an infection in the stab wound.
the days Smith missed his wound treatment was July 4, 2016.
Smith alleges on this date he was lured out of his cell by
Officer Dailey and into the shift officer where Lieutenant
Brown assaulted him. (Doc. 24 at 1). Smith asserts that while
he was handcuffed with his hands behind his back, Lieutenant
Brown knocked him backwards, where he fell over a
“locker box.” (Doc. 1 at 10). Officer Daily
helped Smith up, but following the alleged assault, Smith was
not taken to the infirmary for a body chart to check for
injuries from his fall or for the scheduled wound cleaning.
(Id.; Doc. 33 at 21-22).
brings this suit against Defendants for violations of the
Eighth Amendment of the constitution. Smith claims Gavin Salter
and Regina Bolar are liable for failing to protect him from
the inmate attack on June 11, 2016; Corizon, LLC is liable
for its failure to provide adequate medical care; Deveron
Brown for using excessive force against him on July 4, 2016
and Ervin Dailey for his failure to intervene in the assault
by Lieutenant Brown. (Docs. 1, 24). For relief, Smith
requests $600, 000.00 in punitive damages and $10, 000.00 in
compensatory damages from each defendant in their individual
and official capacities. (Doc. 1 at 7).
have answered the suit and denied all allegations against
them and asserted immunity defenses. (Docs. 10, 30). In
combination with their Answer, Defendants have court on July
21, 2017, that the claims against these defendants should be
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and
(ii). (See Docs. 21, 22). submitted Special Reports,
which include evidentiary support in the form of affidavits,
medical records, and prison records. (Docs. 17, 30). The
court has converted Defendants' pleadings into motions
for summary judgment, and Smith has responded to the motions.
(See Docs. 23, 31, 33). These motions are now ripe
for consideration. (Docs. 23, 31).
Summary Judgment Standard.
Judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158,
1165 (2009) ("[S]ummary judgment is appropriate even if
'some alleged factual dispute' between the parties
remains, so long as there is 'no genuine issue of
material fact.'"(emphasis omitted)).
party asking 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
'pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
' which it believes demonstrate the absence of a genuine
issue of material fact." Celotex, 477 U.S. at
323. The movant can meet this burden by presenting evidence
showing there is no dispute of material fact, or by showing,
or pointing out to, the district court 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.
Once the moving party has met its burden, Rule 56(e)
"requires the nonmoving party to go beyond the pleadings
and by [its] own affidavits, or by the 'depositions,
answers to interrogatories, and admissions on file, '
designate 'specific facts showing that there is a genuine
issue for trial.'" Id. at 324. To avoid
summary judgment, the nonmoving party "must do more than
show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). On the other hand, the evidence of the nonmovant must
be believed and all justifiable inferences must be drawn in
its favor. See Anderson, 477 U.S. at 255.
ThyssenKrupp Steel USA, LLC v. United Forming, Inc.,
926 F.Supp.2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013)
requirement to view the facts in the nonmoving party's
favor extends only to "genuine" disputes over
material facts. A genuine dispute requires more than
"some metaphysical doubt as to material facts."
Garczynski, 573 F.3d at 1165 (internal citations
omitted). A "mere scintilla" of evidence is
insufficient; the nonmoving party must produce substantial
evidence in order to defeat a motion for summary judgment.
Id. In addition, "[t]here is no burden upon the
district court to distill every potential argument that could
be made based upon the materials before it on summary
judgment." Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995). More
importantly, where "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, 127 S.Ct. 1769, 1776, 167
L.Ed.2d 686 (2007); see also Logan v. Smith, 439
Fed.Appx. 798, 800 (11th Cir. Aug. 29, 2011) ("In cases
where opposing parties tell different versions of the same
events one of which is blatantly contradicted by the
record-such that no reasonable jury could believe it-a court
should not adopt the contradicted allegations."
(citations omitted) (unpublished)).
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 were acting under color of state law,
and Smith seeks redress pursuant to the Eighth Amendment.
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, 89 L.Ed.2d
251 (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, 69 L.Ed.2d 59 (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, 128 L.Ed.2d 811 (1994) (quoting Hudson v.
Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d
Failure to Protect Claim.
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, 511 U.S.
at 844-45 (citations omitted). However, "a prison
custodian is not the guarantor of a prisoner's
safety", Purcell ex rel. Morgan v. Toombs
Cnty., 400 F.3d 1313, 1321 (11th Cir. 2005) (citation
omitted), and "[i]t is not 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." Farmer, 511 U.S. at
834. Prison officials must "take reasonable measures to
guarantee the safety of the inmates", Hudson v.
Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82
L.Ed.2d 393 (1984), but there is no liability for "an
official's failure to alleviate a significant risk that
he should have perceived but did not. . . ."
Farmer, 511 U.S. at 838. It is not enough that an
inmate proves that the defendant should have known of the
risk, but did not, as actual knowledge is the key. See,
e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th
claims that the lack of Defendant Salter's security
presence in his dorm on June 11, 2016, caused his
attack; thus, Smith must show that Defendant
Salter not only left his post but that he did so with the
knowledge that Smith was at risk of a serious injury. Taking
Smith's allegations as true, there is simply no probative
evidence sufficient to show deliberate indifference of
“an objectively substantial serious risk of harm”
posed by inmate “Toe Toe” (or any inmate) to
Smith prior to the attack on June 11, 2016. Cf.,
McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir.
1991), overruled in part on other grounds by Farmer,
511 U.S. at 828 (A plaintiff "normally proves actual
knowledge of impending harm by showing that he complained to
prison officials about a specific threat to his
safety."). Specifically, Smith presents no evidence that
even he was aware or fearful of a possible attack at the time
it occurred.Additionally, Smith has failed to show
Defendant Salter "had subjective knowledge of a
generalized, substantial risk of serious harm from inmate
violence." Hale v. Tallapoosa Cnty., 50 F.3d
1579, 1583 (11th Cir. 1995). In fact, the record is void of
facts proving or indicating any subjective knowledge or
recklessness on the part of Defendants Salter and Bolar. And,
it is incumbent on Smith to make such an evidentiary showing
that a defendant drew the inference and "knowingly or
recklessly 'disregard[ed the] risk [of harm] by failing
to take reasonable measures to abate it, '"
Hale, 50 F.3d at 1583 (quoting Farmer, 511
U.S. at 848, 114 S.Ct. at 1984), as "[m]erely negligent
failure to protect an inmate from attack does not justify
liability under § 1983. . . . The known risk of injury
must be a strong likelihood, rather than a mere possibility
before a guard's failure to act can constitute deliberate
indifference." Brown v. Hughes, 894 F.2d 1533,
1537 (11th Cir.) (citations and internal quotations omitted),
496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990).
Accordingly, Smith's failure to protect claim is not
actionable under § 1983, and it is recommended that
summary judgment be granted in favor of Defendant Salter on
Failure to Intervene Claim.
complaint, Smith also claims that Defendants Salter and Bolar
are liable for failing to protect him when they watched him
being attacked and failed to act. Specifically, Smith
Bolar stood outside B dorm with Officer Salter and just
watched the inmate assault me. They never called a code nor
did they ever apprehend the inmate.
(Doc. 1 at 5). As previously stated, however, the record is
void of facts to establish a failure to protect claim.
Pro se pleadings, however, are to be read liberally
to determine “whether jurisdiction to consider[them]
can be founded on a legally justifiable base.”
Fernandez v. United States, 941 F.2d 1488,
1491 (11th Cir.1991); see also United States v.
Jordan, 915 F.2d 622, 624-25 (11th Cir.1990) (The Court
has an “obligation to look behind the label of a motion
filed by a pro se inmate and determine whether the
motion is, in effect, cognizable under a different remedial
statutory framework.”). Based on a reading of
Smith's allegations, the undersigned determines that he
is attempting to assert a claim against Defendants for their
alleged failure to intervene in the attack; therefore, the
undersigned will review the claim as such.
test put forth in this Circuit to establish if liability may
attach to an officer who fails to intervene in an
inmate-on-inmate fight is whether: 1) the inmate's
physical assault created a substantial, objective risk of
injury, (2) of which a defendant is subjectively aware, (3)
the defendant was in a position to intervene, and (4) the
defendant did not ...