United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
Russ Walker, United States Magistrate Judge.
consolidated 42 U.S.C. § 1983 action is pending before
the court on complaints filed by Byron Ray Phillips
(“Phillips”), an indigent state
inmate. Phillips challenges separate actions which
occurred at the Ventress Correctional Facility on or about
August 22, 2015, September 17, 2015 and September 26,
2015. Although the pleadings filed by Phillips
are far from models of clarity, the court interprets the
complaints to contain the following claims for relief: (i)
deliberate indifference to plaintiff's safety - i.e.,
failure to protect him from altercations with other inmates
on August 22, 2015, September 17, 2015 and September 26,
2015, and (ii) unnecessary use of mace to quell the
altercation on September 26, 2015. Phillips names Karla
Jones, Capt. Pamela Harris, Lt. Bradley Walker, Lt. Althea
Townsend, Sgt. Curtis Simmons, Officer Jimmy Rumph and Capt.
Jimmy Thomas, all correctional officials employed at Ventress
at the time relevant to the complaint, as
defendants. Phillips seeks monetary damages for the
alleged violations of his constitutional rights.
defendants filed a special report, supplements thereto and
supporting evidentiary materials addressing the claims for
relief presented by Phillips. In these documents, the
defendants deny violating Phillips' constitutional
rights. The court issued orders directing Phillips to file
responses to the defendants' reports, to include
affidavits, sworn statements or other evidentiary materials.
Doc. 12 at 2 & Doc. 41 at 2. These orders specifically
cautioned Phillips that unless “sufficient
legal cause” is shown within fifteen days of
entry of either order “why such action should
not be undertaken, … the court may at any
time [after expiration of the time for his 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. 41 at 3. Phillips filed
an unsworn response to the defendants' initial special
report, Doc. 15, but filed no response to the defendants'
supplemental special reports.
to the orders entered in this case, the court deems it
appropriate to treat the defendants' reports as a motion
for summary judgment. Thus, this case is now pending on the
defendants' motion for summary judgment. Upon
consideration of the defendants' motion for summary
judgment, the evidentiary materials filed in support thereof,
the complaints and the response filed by Phillips, the court
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 moving party discharges his burden by
showing the record lacks evidence to support the nonmoving
party's case or the nonmoving party would be unable to
prove his case at trial).
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” pled in a plaintiff's sworn complaint when
considering his opposition to summary judgment. Caldwell
v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir.
2014). However, “mere conclusions and unsupported
factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England,
432 F.3d 1321, 1326 (11th Cir. 2005). 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 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 (2007); Feliciano v.
City of Miami Beach, 707 F.3d 1244, 1253-54 (11th Cir.
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, the plaintiff'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 review of all the evidence
contained in the record. After this review, the court finds
that Phillips has failed to demonstrate a genuine dispute of
material fact in order to preclude entry of summary judgment
in favor of the defendants.
extent Phillips requests monetary damages from the defendants
in their official capacities, they are entitled to absolute
immunity. 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). 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.
Id. Likewise, Congress' intent to abrogate the
States' immunity from suit must be obvious from a clear
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 State 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 (1996).
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. at 849 (citing Alabama
v. Pugh, 438 U.S. 781, 782 (1978) (consent is prohibited
by the Alabama Constitution). “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. at 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 under the Eleventh
Amendment from suit for damages); Edwards v. Wallace
Community College, 49 F.3d 1517, 1524 (11th Cir. 1995)
(holding that damages are unavailable from state official
sued in his official capacity).
DISCUSSION OF CLAIMS FOR RELIEF 
Failure to Protect from Other Inmates.
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 quotations and citations omitted). Officials
responsible for inmates may be held liable under the Eighth
Amendment for acting with “deliberate
indifference” to an inmate's safety when the
official knows the inmate faces “a substantial risk of
serious harm” and with such knowledge disregards the
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.
Jean, 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.” Farmer, 511 at 834.
“Within [a prison's] volatile
‘community,' prison administrators are to take all
necessary steps to ensure the safety of … the prison
staff 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, “stress[ed] that a ‘prison
custodian is not the guarantor of a prisoner's
safety.” Purcell ex rel. Estate of Morgan v. Toombs
County, Ga., 400 F.3d 1313 (11th Cir. 2005), citing
Popham v. City of Talladega, 908 F.2d 1561, 1564
(11th Cir. 1990). “Only ‘[a] prison
official's deliberate indifference to a known,
substantial risk of serious harm to an inmate violates the
Eighth Amendment.'” Harrison v. Culliver,
746 F.3d 1288, 1298 (11th Cir. 2014); citing Marsh v.
Butler Cnty., Ala., 268 F.3d 1014, 1028 (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 resulting from cruel and unusual
punishment, 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.
requires both objective and subjective elements to
demonstrate an Eighth Amendment violation. Caldwell v.
Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir.
2014). An inmate must first show that “an objectively
substantial risk of serious harm … exist[ed]. Second,
once it is established that the official is aware of this
substantial risk, the official must react 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[.]” Whitley v.
Albers, 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.
Seiter, 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.
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).
“The 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) (citations and internal quotation marks
omitted). Moreover, “[m]erely negligent failure to
protect an inmate from attack does not justify liability
under section 1983.” Id.
correctional officers may be held directly liable under
§ 1983 if they fail or refuse to intervene when a
constitutional violation occurs in their presence… .
However, in order for liability to attach, the officer must
have been in a position to intervene.” Terry v.
Bailey, 376 Fed.Appx. 894, 896 (11th Cir.2010) (citing
Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir.
1998)). The plaintiff has the burden of showing that the
defendant was in a position to intervene but failed to ...