United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
Brent Jacoby is an inmate of the Alabama Department of
Corrections ("ADOC"). He filed this 42 U.S.C.
§ 1983 action alleging that prison officials at Ventress
Correctional Facility ("Ventress") in Clayton,
Alabama failed to protect him from assault by fellow inmate
Kenneth Palmore in May 2014, failed to have an adequate
grievance system, and violated his due process rights. Docs.
1, 36 & 37. Plaintiff names as defendants Kim T. Thomas,
James Carlton, Dorothy Scott, Brian Gordon, James Nolin,
Keone Curry, Jimmy Spann, Pamela Harris, and Camelia Cargle.
Doc. 1. Plaintiff sues Defendants in their official and
individual capacities. Doc. 1 at 12. Plaintiff requests
injunctive relief and damages. Doc. 1 at 1 & 12.
filed an answer, special report, supplemental answer and
special report, and evidentiary materials addressing
Plaintiffs claims for relief. Docs. 23, 24, 41 & 42. Upon
receipt of Defendants' reports, the court directed
Plaintiff to file a response, including sworn affidavits and
other evidentiary materials, and specifically cautioning
Plaintiff that "at some time in the future the court
will treat Defendants' reports and Plaintiffs response as
a dispositive motion and response." Doc. 43 at 1.
Plaintiff responded to Defendants' reports and materials.
Docs. 31 & 51.
court now will treat Defendants' reports as a motion for
summary judgment. Upon consideration of the motion, the
responses, and the evidentiary materials filed in support and
in opposition to the motion, the court concludes that
Defendants' motion for summary judgment is due to be
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 omitted). 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). The movant may
meet this burden by presenting evidence indicating that 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) (holding that the court should consider
facts pled in a plaintiffs sworn complaint when considering
summary judgment). A 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.
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). Only
disputes involving material facts are relevant, materiality
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,
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; Feliciano v. City of
Miami Beach, 101 F.3d 1244, 1253 (11th Cir. 2013)
("To be sure, [plaintiffs] sworn statements are
self-serving, but that alone does not permit us to disregard
them at the summary judgment stage. .. . 'Courts
routinely and properly deny summary judgment on the basis of
a party's sworn testimony even though it is
self-serving.'") (citation omitted).
"Conclusory, uncorroborated allegations by a plaintiff
in an affidavit or deposition will not create an issue of
fact for trial sufficient to defeat a well supported summary
judgment motion." Solliday v. Fed. Officers,
413 Fed.Appx. 206, 207 (11th Cir. 2011) (citing Earley v.
Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.
1990)); see also Holifield v. Reno, 115 F.3d 1555,
1564 n.6 (11th Cir. 1997) (holding that conclusory
allegations based on subjective beliefs are likewise
insufficient to create a genuine dispute of material fact).
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 that this court disregard elementary
principles of production and proof in a civil case. Here,
Plaintiff fails to demonstrate a requisite genuine dispute of
material fact so as to preclude summary judgment on his
claims against Defendants. See Matsushita, 475 U.S.
argue that Plaintiffs claims against them in their official
capacities are barred by the Eleventh Amendment. Doc. 24 at
12. Official 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). State officials may not be sued in their official
capacities for money damages unless the state has waived its
Eleventh Amendment immunity or unless Congress has abrogated
the state's immunity, and neither has occurred in this
case. See Lancaster v. Monroe Cnty., 116 F.3d 1419,
1429 (11th Cir. 1997) (citing Seminole Tribe v.
Florida, 517 U.S. 44, 59 (1996) (discussing abrogation
by Congress); Pennhurst St. School & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (discussing Eleventh
Amendment immunity); Carr v. City of Florence, 916
F.2d 1521, 1525 (11th Cir. 1990) (finding that Alabama has
not waived Eleventh Amendment immunity)). In light of the
foregoing, Defendants are state actors entitled to sovereign
immunity under the Eleventh Amendment for Plaintiffs claims
seeking monetary damages from them in their official
capacities. The claims for money damages brought against
Defendants in their official capacities are therefore due to
request for injunctive relief against Defendants is due to be
dismissed as moot because Plaintiff is now located at Kilby
Correctional Facility and is longer incarcerated at Ventress.
Doc. 60. The transfer or release of a prisoner renders moot
any claims for injunctive or declaratory relief. See
County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979); see also Cotterall v. Paul, 755 F.2d 777,
780 (11th Cir. 1985) (holding that past exposure to illegal
conduct does not in and of itself prove a pending case or
controversy regarding injunctive relief if unaccompanied by
any continuing present injury or real and immediate threat of
repeated injury). Consequently, Plaintiffs request for
equitable relief is moot.
Lack of Grievance Procedure
complains that the inmate grievance system violated the First
Amendment. Doc. 1 at 4. Plaintiff also states that the
"facility is notorious for ignoring grievances,"
not handing out grievance forms, and other wrongs related to
the grievance system. Doc. 1 at 8. To the extent Plaintiffs
complaint about the grievance system is related to his Eighth
Amendment claim regarding the inmate assault, the court will
address his allegations regarding the grievance system along
with Plaintiffs Eighth Amendment failure to protect claim.
Plaintiffs First Amendment claim that the grievance system is
inadequate lacks merit because "a prisoner does not have
a constitutionally-protected liberty interest in an inmate
grievance procedure." Thomas v. Warner, 237
Fed.Appx. 435, 437 (11th Cir. 2007) (citing Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994); Flick v.
Alba, 932 F.2d 728, 729 (8th Cir. 1991)); see also
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"). Thus, the quality of
the inmate grievance procedure, standing alone, does not
provide a basis for relief in this cause of action, and
Defendants are due to be granted summary judgment on
Plaintiffs claim regarding the grievance system.
claims that Defendants were deliberately indifferent to his
safety when they failed to protect him from assault by inmate
Palmore on May 31, 2014. Doc. 1 at 5. Defendants assert they
are entitled to qualified immunity on Plaintiffs claims
against them in their individual capacities for monetary
damages. Doc. 24 at 2 & 4-10. They further argue that
they cannot be held liable based on vicarious liability. Doc.
24 at 10-12. Finally, they argue that, pursuant to 42 U.S.C.
§ l997e(e), Plaintiff cannot recover money damages
because his physical injuries were de minimis. Doc.
24 at 11-12. The court begins its analysis with
Defendants' argument for qualified immunity.
immunity offers complete protection from civil damages for
government officials sued in their individual capacities if
their conduct does not violate "clearly established
statutory or constitutional rights of which a reasonable
person would have known." Hope v. Pelzer, 536
U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Qualified immunity is not merely a
defense against liability but rather immunity from suit, and
the Supreme Court "repeatedly [has] stressed the
importance of resolving immunity questions at the earliest
possible stage in litigation." Pearson v.
Callahan, 555 U.S. 223, 231-32 (2009) (quotation marks
and citations omitted). To receive qualified immunity, the
public official must first prove that he was acting within
the scope of his discretionary authority when the allegedly
wrongful acts occurred. Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002). There is no dispute that
Defendants here were acting within the course and scope of
their discretionary authority when the incidents occurred.
Plaintiff must, therefore, allege facts that, when read in a
light most favorable to him, show that Defendants are not
entitled to qualified immunity. Cottone v. Jenne,
326 F.3d 1352, 1358 (11th Cir. 2003).
satisfy his burden, a plaintiff must show two things: (1)
that a defendant committed a constitutional violation and (2)
that the constitutional right a defendant violated was
"clearly established." Crosby v. Monroe
Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004). "To be
clearly established, a right must be sufficiently clear that
every reasonable official would [have understood] that what
he is doing violates that right. In other words, existing
precedent must have placed the statutory or constitutional
question beyond debate." Reichle v. Howards,
132 S.Ct. 2088, 2093 (2012) (quotation marks and citations
omitted). "Clearly established law" means (1)
"a materially similar case has already been
decided"; (2) "a broader, clearly established
principle that should control the novel facts of the
situation"; or (3) "the conduct involved in the
case may so obviously violate the constitution that prior
case law is unnecessary." Gaines v. Wardynski,
871 F.3d 1203, 1208-09 (11th Cir. 2017) (quotation marks and
citations omitted). The controlling authority is from
"the United States Supreme Court, the Eleventh Circuit,
or the highest court in the relevant state." See
Id. at 1209. "Qualified immunity gives government
officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or
those who knowingly violate the law." Messerschmidt
v. Millender, 565 U.S. 535, 546 (2012) (quotation marks
and citations omitted). The Eleventh Circuit "has stated
many times that if case law, in factual terms, has not staked
out a bright line, qualified immunity almost always protects
the defendant." Gaines, 871 F.3d at 1210.
"Exact factual identity with the previously decided case
is not required, but the unlawfulness of the conduct must be
apparent from pre-existing law." Coffin v.
Brandau, 642 F.3d 999, 1013 (11th Cir. 2011). If a
plaintiff cannot establish both elements to satisfy his
burden, the defendants are entitled to qualified immunity,
and the court may analyze the elements "in whatever
order is deemed most appropriate for the case."
Rehberg v. Paulk, 611 F.3d 828, 839 (11th Cir. 2010)
(citing Pearson, 555 U.S. at 241-42).
Summary of Material Facts
purposes of considering Defendants' motion for summary
judgment, the court views the facts in the light most
favorable to Plaintiff, the nonmoving party. Plaintiff was an
inmate at Ventress in 2014. During the time relevant to his
claims, Thomas was the ADOC Commissioner. Gordon was the ADOC
Prison Rape Elimination Act ("PREA") Compliance
Manager. At Ventress, Carlton was a Warden, Scott was a
Lieutenant, Nolin was a Sergeant, Cargle and Harris were
Captains, and Curry and Spann were Correctional Officers.
Docs. 24-2, 24-3, 24-4, 24-5, 42-1, 42-3, 42-5, 42-6 &
failure to protect claim centers on two incidents on May 31,
2014, the second of which was Palmore's physical attack
on Plaintiff. Doc. 51 at 3. In his verified complaint,
Plaintiff states that he is a bisexual white male. Doc. 1 at
5. Plaintiff is "very feminine" and "at a
greater risk of harm than other inmates." Doc. 51 at 6.
In May 2014, he was housed in Dorm 1 along with inmate
Palmore. Doc. 51 at 6. Plaintiff alleges that Palmore
"has a reputation for being a violent assaultive inmate
and for having sexually assaulting and harassing other
inmates at other prisons and has this on his disciplinary
record." Doc. 51 at 6. Palmore had two previous PREA
complaints against him at a different institution. Doc. 42-5
at 3 & 5. Plaintiff states that Palmore wanted to be in a
homosexual relationship with Plaintiff, and for about two
weeks "Palmore would not take rejection from"
Plaintiff and instead tried to intimidate Plaintiff or offer
Plaintiff money for sexual favors. Doc. 1 at 5.
Plaintiff refused his advances, Palmore told Plaintiff on May
31, 2014 that "bitch I'm gonna kill you,
you['re] always gonna be mine," and then Palmore
opened Plaintiffs lock box, taking Plaintiffs cigarettes,
lock, and key, and telling him, "you want it come get
it." Doc. 1 at 6. Plaintiff began having an anxiety
attack, could not breathe, and began crying out of fear,
frustration, and humiliation. Doc. 1 at 6. He ran out the
door and reported the incident to Officer Curry, and
specifically invoked PREA. Id. Plaintiff states he
"reported everything" to Curry, Nolin, Scott,
"& or Bennett." Doc. 1 at 6. Palmore admitted to
Nolin that he took Plaintiffs property, and according to
Plaintiff, also told Nolin "that's my
girlfriend." Doc. 1 at 6. Plaintiff states that he was
not in a relationship with Palmore and instead was in a
relationship with inmate Aloysius Henry. Doc. 1 at 6.
Plaintiff submitted a statement from Henry in which Henry
maintains that he "was in a homosexual ...