Bailey v. Hughes et al

Filing 65

MEMORANDUM OPINION AND ORDER granting the 32 34 36 Motions to Dismiss; dismissing all of Bailey's claims against all defendants, with prejudice, in their entirety; granting the 32 34 motions for attorney's fees; directing that def endants Hughes, Reed, Jones, and Reynolds file an itemization of amounts sought as attorney's fees and expenses, on or before 10/14/2011, as further set out; any response to the itemization of fees should be filed by plaintiff by 10/21/2011. Signed by Honorable Judge Mark E. Fuller on 9/30/2011. (br, )

IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES W. BAILEY, IV,
Plaintiff,
v.
ANDY HUGHES, et al.,
Defendants.

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Case No. 1:10-cv-689-MEF
(WO - PUBLISH)

MEMORANDUM OPINION AND ORDER
Plaintiff James W. Bailey ("Bailey") filed this lawsuit in response to allegedly
unconstitutional deprivations of rights while Bailey was in custody in the Houston County
Jail. Currently pending in this case are three motions to dismiss:
Doc. #32 - Motion to Dismiss by Andy Hughes, Commander Reed;
Doc. #34 - Motion to Dismiss by Sgt. [sic] Buchman, Sgt. Jones, Sgt. Reynolds;
Doc. #36 - Motion to Dismiss by Corrections Officer Armstrong, Corrections
Officer Chancey, Corrections Officer Harrison, Corrections Officer Laney;
The following defendants filed these motions pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure: Andy Hughes ("Hughes") in his
individual and official capacity as Houston County Sheriff; Keith Reed ("Reed"), in his
individual and official capacity as Commander for Jail Operations at the Houston County
Jail; Sergeants Cindy Buchmann ("Buchmann"), Beverly Reynolds ("Reynolds"), and

Glenn Jones ("Jones"), in their individual and official capacities as Sergeants at the
Houston County Jail; and Corrections Officers Joseph Armstrong ("Armstrong"), Adam
Chancey ("Chancey"), Kenneth Laney ("Laney"), and John Harrison ("Harrison") in their
individual and official capacities as Corrections Officers at the Houston County Jail.
Defendants' motions to dismiss are now pending before this Court. These motions
will be considered together, as the factual and legal basis for each motion is nearly
identical. For the following reasons, each motion is due to be GRANTED and this case is
due to be DISMISSED in its entirety, WITH PREJUDICE.
Additionally, defendants Hughes, Reed, Jones, and Reynolds have moved this
Court to award reasonable attorney’s fees under 42 U.S.C. 1988(b). This motion is due to
be GRANTED.

I. JURISDICTION AND VENUE
This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§
1331 (federal question), and 1343 (civil rights). The parties do not assert that this Court
lacks personal jurisdiction over them, and there is no dispute that venue is proper
pursuant to 28 U.S.C. § 1391.

II. LEGAL STANDARD
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Therefore, for
the purposes of adjudging a Rule 12(b)(6) motion to dismiss, the Court will accept as true

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all well-pleaded factual allegations and view them in the light most favorable to the
plaintiff. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008); Am. United
Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).
Federal Rule of Civil Procedure 8(a)(2) requires only that a complaint contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
However, to survive a motion to dismiss for failure to state a claim, the plaintiff must
allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009). The plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
at 559. It is not sufficient that the pleadings merely leave “open the possibility that a
plaintiff might later establish some set of undisclosed facts to support recovery.” Id. at
561 (internal quotation and alteration omitted).

A. Defendants Incorrectly Argue for a “Heightened” Pleading Standard
Defendants argue that plaintiffs bringing § 1983 claims in the Eleventh Circuit
face an even higher burden than Twombly and Iqbal impose. Doc. #35, at 8. Prior to
Iqbal, the Eleventh Circuit required that §1983 plaintiffs "allege with some specificity the

3

facts which make out its claim" and noted that this "heightened pleading requirement"
was particularly necessary in cases involving qualified immunity." GJR Invs., Inc. v.
Cnty. of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998).
However, in Randall v. Scott, an Eleventh Circuit panel explicitly held that Iqbal
had "effectively overturned" the Circuit's heightened pleading standard and that
"[p]leadings for § 1983 cases involving defendants who are able to assert qualified
immunity as a defense shall now be held to comply with the standards described in
Iqbal." 610 F.3d 701, 709 (11th Cir. 2010).
The Court disagrees with defendants' assertion that the Randall court wrongly
overturned prior Eleventh Circuit precedent. Defendants are correct that "Eleventh
Circuit rules explicitly forbid a panel from over turning the decision of another panel" and
that a Supreme Court decision must be clearly on point in order to overturn a prior
Eleventh Circuit panel. (Doc. #35 at 8, citing United States v. Smith, 122 F.3d 1355,
1359 (11th Cir. 1997); Garret v. Univ. of Ala. at Birmingham Bd. of Trs., 344 F.3d 1288,
1292 (11th Cir. 2003) (per curiam).
However, the Randall court decided that Iqbal was on point regarding the circuit's
heightened pleading standard. Randall, 610 F.3d at 709. It is not this Court's place to
second guess that decision. As such, Iqbal's plausibility standard, rather than the
Eleventh Circuit's overturned heightened pleading standard, is applicable to this case.

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III. FACTUAL AND PROCEDURAL BACKGROUND
Bailey was an inmate with the Alabama Department of Corrections at all times
relevant to this action. On or around August 13, 2008, Bailey was housed at the Houston
County Jail. Doc #1 at 9-10, ¶1. Bailey was housed in a cell with two other inmates and
Bailey's bed was on the floor in close proximity to the cell's toilet. Id. at 10, ¶2.
On the orders of Defendant Buchmann,1 Defendant Armstrong and Corrections
Officer Stephen Moon ("Moon") arrived at Bailey's cell to conduct a search for
contraband at around 10:50 PM. Before they began their search, Bailey asked Armstrong
what time it was, and Moon responded along the lines of "Nighttime you dumb f**k." 2
Id. Moon did not find any contraband in the cell, and the complaint indicates that Moon
looked "disappointed." Id. at 10, ¶3.
Upon completion of the search of the cell, Bailey and his cellmates were strip
searched. The strip search included orders that Bailey and his fellow inmates "squat and
cough in the presence of each other" and that Bailey "stand and spread his butt-cheeks in
front of the other cellmates." Id. at 10-11, ¶4. Bailey "reminded the officers that I have a
lawsuit against you and I am not going to play with you," and that "if they returned to my
1

Hughes's complaint indicates that Buchmann "purportedly" directed Armstrong
and Moon to search Bailey's cell (Doc #1 at 9-10, ¶1). Reading the alleged facts in the
light most favorable to the Plaintiff, the Court understands this to mean that Buchmann
ordered the search.
2
In his complaint, Bailey indicates that he later complained to a Sergeant about
"the comments made by Corrections Officer Moon." It is possible that Bailey is referring
to these comments. See infra note 6 and accompanying text.

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cell at any time, they need a sergeant / supervisor to come with them." 3 Id. at 11, ¶4.
Moon responded "Who do you think sent me down here?" Id. at 11, ¶5. Moon and
Armstrong then left Bailey's cell. Id.
Ten minutes later, Moon and Armstrong returned with Corrections Officer Leary
("Leary"). Armstrong was "holding in his right hand a black knife." Id. Leary asked
Bailey to come out of his cell. Bailey refused and repeated his request for a supervisor so
he could "report Correction Officer Moon's actions."4 Id. Leary again asked Bailey to
come out to "talk about it," id., and Bailey again refused. The officers left.
After another ten minutes, Armstrong, Moon, and Leary returned with Defendants
Chancey, Laney, and Harrison, as well as Corrections Officers Culbreth ("Culbreth"),
Jackson ("Jackson"), and Phillips (“Phillips”). Leary opened the door to Bailey's cell, and
Bailey could see that one officer was recording the proceedings with a video camera.
Armstrong was pointing an armed Taser at Bailey. Leary "asked" Bailey to get on his
knees. Id. at 12, ¶7. Bailey did not. Bailey instead asked if there was a sergeant present,
and was told that there was not. Id.
Leary then "advised" Bailey to get on his knees. Id. at 12, ¶8. Bailey did not.

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Here, Bailey cites to his previous lawsuit against, among others, Houston County
Jail officials and Corrections Officer Moon. See Complaint, ECF No. 1, Bailey v. Bonnin,
No. 1:05-cv-00419-MHT-TFM (M.D.Ala., filed May 5, 2005).
4
It is not clear from the complaint what actions Bailey intended to report. The
Court therefore assumes Bailey intended to report the strip search, which Bailey believed
to be unconstitutional.

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Bailey instead replied "As long as I'm in this cell, I'm restrained and I'm not coming out
unless a sergeant [or] supervisor is present." Id.
Leary then "advised" Bailey that if Bailey did not get on his knees, Leary would
shoot Bailey with the TASER. Id. at 12-13, ¶9. Again, Bailey did not do as Leary asked.
Instead, Bailey responded "I am in fear for my life and I am not coming out of this cell
unless a sergeant is present." Id. At this point, Bailey's complaint states that "Officer
Leary looked back at Corrections Officer Moon, they both smiled and he shot BAILEY in
the side."5 Id. at 13, ¶10. Bailey then pulled the Taser wires out, and ran out of his cell:
"as Bailey ran away from the officers he turned around, with his hands up and was shot
again in the leg. He went to the floor. As he went down, he was kneed in the back of the
head. He was again being shocked and an officer started to also shock him in the back."
Id. at 13-14, ¶11.
Bailey was left with a TASER barb in his thigh. About an hour after the events
described above, Bailey was transported to Southeast Alabama Medical Center, where the
barb was removed. Bailey was not given a tetanus shot, nor was the area where the barb
entered bandaged or treated with antibiotics. Id. at 14, ¶12. Bailey has a scar as a result

5

It is unclear who "he" is in this sentence. Up to this point, Armstrong is the only
person mentioned as having a TASER. However, it is unlikely that Armstrong was the
only officer carrying a TASER, as Bailey alleges that he was shocked additional times
over the course of this incident. Because it was Leary who threatened to shoot Bailey,
Leary, who was never properly served and has been dismissed from this lawsuit, was
likely the first to shoot Bailey.

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of this incident. Id. at 15, ¶15.
Upon his return to the Houston County Jail, Bailey told Sergeant Lee Ray Bonnin
("Bonnin") about the "comments made by Corrections Officer Moon." 6 Bonnin told
Bailey to shut up. (Id. at 14-15, ¶13) Bailey was then "placed in a cell . . . where there
was no toilet, no sink, no water, or food" and left there for "approximately 8 hours." Id.
Bailey was eventually taken back to Holman Prison. Defendants Hughes and
Buchmann asked the Department of Corrections to discipline Bailey for the behavior
described above. The complaint alleges that the Department of Corrections refused on
the basis of the failure of the Houston County Corrections Officers to follow proper
procedure in dealing with Bailey.

IV. DISCUSSION
A. Bailey's Claims
For the purpose of this analysis, the Court will refer to Defendants Hughes, Reed,
Buchmann, Jones, and Reynolds, collectively, as the "supervisory defendants." Doc. #52.
Defendants Armstrong, Chancey, Laney, and Harrison will be referred to as "The
corrections officer defendants." Doc. #53. All claims alleging Constitutional violations
are brought through 42 U.S.C § 1983.

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It is not clear what comments Bailey is referring to.

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1. Claims against all defendants
a. Creating a substantial risk of serious officer-on-inmate assaults at
the Houston County Jail. Doc. #1 at 16, Count I.
b. Malicious and sadistic use of excessive force in retaliation against
Bailey for his earlier lawsuit against Houston County Corrections
Officers, in violation of Bailey’s right to be free from cruel and
unusual punishment under the Eighth Amendment and his right to
freedom of speech under the First and Fourteenth Amendments. Id.
at 17, Count II; 21-22, Count IV.
c. Failure to intervene to prevent Bailey from being subjected to
excessive force in violation of the Eighth and Fourteenth
Amendments.7 Id. at 18, Count II; 25, Count VIII.
d. Defendants “malicious[] and sadistic[]” use of a TASER on
Bailey violated Bailey’s rights under the Fourth, Eighth, and
Fourteenth amendments of the Constitution.8 Id. at 22, Count VI.
e. Defendants violation of Bailey’s rights under the Eighth and
Fourteenth Amendments9 by purchase and use of stun guns
manufactured by TASER International, Inc. Id. at 26-28, Count IX.
2. Claims against supervisory defendants
a. Unconstitutional use of force in performing a strip-search on
Bailey. The Court reads this count to encompass both a claim for
direct participation by the supervisory defendants and a claim for
supervisory liability. Id. at 19, Count III.
b.

Supervisory defendants subjected Bailey to unconstitutionally

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See, infra, Part IV.B. (discussing disposition of Fourteenth Amendment claims
where claims are made under both the Eighth and Fourteenth Amendments).
8
See, infra, Part IV.B. (discussing disposition of Fourteenth Amendment claims
where claims are made under both the Eighth and Fourteenth Amendments).
9
See, infra, Part IV.B. (discussing disposition of Fourteenth Amendment claims
where claims are made under both the Eighth and Fourteenth Amendments).

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overcrowded conditions while Bailey was detained in the Houston
County Jail in violation of Bailey’s Eighth and Fourteenth
Amendment rights.10
c. An implicit failure to train claim based on Bailey’s response to
supervisory defendants motion to dismiss. Doc. #44 at 10.
3. Claims against correction officer defendants
a. Defendant Armstrong violated Bailey’s right to due process under
the Fourteenth Amendment by refusing to ask a sergeant to come to
Bailey’s cell upon Bailey’s request for a sergeant or a supervisor as
described above.11 Id. at 22, Count V.
b. Defendants Armstrong and Chancey violated Bailey’s Plaintiffs
Due Process Rights by using TASERs on Bailey.12 Id. at 24, Count
VII.
4. Claim Against Corrections Officer Defendants and Sergeants
Buchmann, Reynolds, and Jones
a. These defendants violated Bailey’s Eighth Amendment rights by
placing him in a “closet cell” for eight hours.

10

See, infra, Part IV.B. (discussing disposition of Fourteenth Amendment claims
where claims are made under both the Eighth and Fourteenth Amendments).
11
This claim is also made against Houston County, as well as Moon, who were
never made parties to this suit. This claim is also alleged against Leary, who has since
been dismissed from suit. Doc. #59.
12
This claims is also alleged against Corrections Officer Leary, whom has since
been dismissed from suit. Doc. #59.

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B. Neither The Fourteenth Amendment Nor the Fourth Amendment’s Prohibition
of Excessive Force Apply to Bailey's Claims, as Bailey Was a Convicted Inmates
Rather Than a Pre-Trial Detainee or a Free Citizen
Bailey attempts to bring a myriad of claims under both the Fourteenth and Eighth
Amendments. See, Parts IV.A.14, supra. As a preliminary matter, the Court must
distinguish between Bailey's claims under the Eighth and Fourteenth Amendments. To
the extent that Bailey brings claims under both the Eighth and Fourteenth Amendment,
the Fourteenth Amendment claims are due to be DISMISSED. Additionally, for reasons
discussed below, any excessive force claim under the Fourth Amendment must also be
DISMISSED.
Under Cottrell v. Caldwell, "claims involving the mistreatment of arrestees or
pretrial detainees in custody are governed by the Fourteenth Amendment's Due Process
Clause instead of the Eighth Amendment's Cruel and Unusual Punishment Clause, which
applies to such claims by convicted prisoners." 85 F.3d 1480, 1490 (11th Cir. 1996). The
Cottrell court also noted that the standard applicable to Eighth and Fourteenth amendment
claims is the same, "so decisional law involving prison inmates applies equally to cases
involving arrestees or pretrial detainees." Id.
Bailey argues that Cottrell stands only for the proposition that the same standard is
applicable to both Eighth and Fourteenth Amendment claims. Doc. #44 at 6-7.
Therefore, Bailey takes the position that, while "there may be a point where he must [sic]

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chose" as to whether he is a pre-trial detainee or a convicted inmate, that point is not the
pleadings stage. Id. The defendants argue in response that "where a specific
constitutional provision provides the substantive protection at issue, that constitutional
provision and not the more general substantive due process protection of the Fourteenth
Amendment is to be used." Doc. #52 at 2-3, citing Graham v. Connor, 490 U.S. 386, 395
(1989). The Defendants have the better of this argument.
The former Fifth Circuit has held that "the due process clause accords pretrial
detainees rights not enjoyed by convicted inmates. While a sentenced inmate may be
punished in any fashion not cruel and unusual, the due process clause forbids punishment
of a person held in custody awaiting trial but not yet adjudged guilty of any crime."
Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir. January, 1981)13 (emphasis added),
overruled on other grounds by Int'l Woodworkers of Am. v. Champion Int'l Corp., 790
F.2d 1174 (5th Cir. 1986).
Here, Bailey indicates that, after the incident at the Houston County Jail, he was
"taken back" to Holman Prison. Doc. #1 at 15, ¶14. As the defendants point out, a
detainee is not "taken back" to prison unless he is a convicted inmate. Doc. #33 at 9.
Bailey concedes in his response that "[i]t is undisputed that BAILEY was an inmate with
the Department of Corrections." Doc. #44 at 6. Because Bailey has been adjudged guilty
13

In Bonner v. City of Prichard, Ala., 661 F.2d 1205, 1209 (11th Cir. Nov. 3,
1981), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions
handed down prior to the close of business on September 30, 1981.

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of a crime, he may be "punished in any fashion not cruel and unusual." Jones, 636 F.2d
at 1368.
Cottrell dictates that claims of mistreatment by pretrial detainees and convicted
prisoners are governed by the same standard. Cottrell, 85 F.3d at 1490. Cottrell does not
indicate that a person being held as a convicted inmate may retain the rights of a pre-trial
detainee, regardless of whether there are additional charges pending against the inmate.
As such, Bailey’s Fourteenth Amendment claims are due to be DISMISSED.
Additionally, because Bailey was at all times a convicted inmate and not a free
citizen or a pretrial detainee, the Eighth Amendment, and not the Fourth Amendment,
applies to Bailey’s excessive force claims. See Whitley v. Albers, 475 U.S. 312 (1986)
(evaluating use of force during a prison riot in the context of prisoner’s Eighth
Amendment rights); Hudson v. McMillian, 503 U.S. 1 (1992) (considering use of force
against shackled inmate under the Eighth Amendment).
Therefore, to the extent that Bailey claims defendants violated his Fourth
Amendment Rights through the use of excessive force, those claims are due to be
DISMISSED and defendants’ motions to dismiss regarding Bailey’s Fourth Amendment
claims are due to be GRANTED.

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C. The Supervisory Defendants are Entitled to Qualified Immunity in Their
Individual Capacities
The Supervisory Defendants contend that they should be granted qualified
immunity to all claims brought against them in their individual capacities. The Court
agrees, and all claims against the supervisory defendants in their individual capacities are
therefore due to be DISMISSED.
“Qualified immunity offers complete protection 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.’” Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Accord, Hope v. Pelzer, 536 U.S. 730 (2002). Qualified immunity
allows officials to carry out their duties “without fear of personal liability or harassing
litigation, protecting from suit all but the plainly incompetent or one who is knowingly
violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotation marks and citations omitted); Wood v. Kesler, 323 F.3d 872 (11th Cir. 2003).
Because this defense should be applied at the earliest possible stage of litigation, it is
proper for a district court to rule on a claim of qualified immunity asserted in a motion to
dismiss. Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003). The Court should
grant a motion to dismiss on qualified immunity grounds “if the plaintiff’s complaint fails
to allege a violation of a clearly established constitutional or statutory right.” Williams v.

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Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1300 (11th Cir. 2007).
To be eligible for qualified immunity, government officials must first show that
they were acting within their discretionary authority. Gonzalez, 325 at 124. Second, the
Court must determine whether plaintiff’s allegations, if true, establish a constitutional
violation. Hope v. Pelzer, 536 U.S. 730, 736 (2002) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). “If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries concerning qualified
immunity.” Saucier, 533 U.S. at 201. However, if the alleged conduct did violate
constitutional rights, the next step of the inquiry is to “look to the pleadings to see if the
plaintiff has successfully alleged the violation of a clearly established right.” O’Rourke v.
Hayes, 378 F.3d 1201, 1206 (11th Cir. 2004).

1. Supervisory Defendants Were Acting Within Their Discretionary
Authority
To receive qualified immunity, a government official must first prove that he was
acting within his discretionary authority. Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th
Cir. 2002). In the Eleventh Circuit, the test for determining whether an employee is
acting within his discretionary authority is a question of whether the actions complained
of are of a sort that fall within the official’s job responsibilities. Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). “Our inquiry is two-fold.

15

We ask whether the government employee was (a) performing a legitimate job-related
function (that is, pursuing a job-related goal), (b) through means that were within his
power to utilize.” Id.
As defendants point out in their reply brief, the inquiry is not whether the allegedly
illegal action was within the defendant’s authority, but rather whether the allegedly illegal
action was in the “general nature” of a job-related function and accomplished through
means within the official’s power to utilize. Doc. 52 at 4, citing Holloman, 370 F.3d at
1266. Additionally, the Supreme Court has “repeatedly said both that prison officials
have broad administrative and discretionary authority over the institutions they manage
and that lawfully incarcerated persons retain only a narrow range of protected liberty
interests.” Hewitt v. Helms, 459 U.S. 460, 467 (1983).
Purchasing TASERs, supervising corrections officers, and writing letters to the
Department of Corrections are well within the “arsenal of powers” provided to the
supervisory defendants to accomplish the goal of running a functional correctional
facility. Holloman, 370 F.3d at 1267. What’s more, the plaintiff’s complaint clearly
admits that each defendant, with the exception of Defendant Hughes, was “acting within
the line and scope of his employment at all times complained of herein.” Doc. #1 at 4-7.
The Court therefore concludes that, at all relevant times, the supervisory defendants were
acting within their discretionary authority.

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2. Supervisory Defendants Did Not Violate Bailey's Constitutional Rights
a. Respondeat Superior Liability is not Available under § 1983
To the extent that Bailey’s claims against the supervisory defendants are an
attempt to hold them vicariously liable for the actions of the corrections officers, Bailey’s
claims fail as a matter of law. Neither the express language of § 1983 nor the holdings of
the United States Supreme Court support liability on this basis.
Title 42, U.S.C. § 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
Merely employing an individual who causes harm is insufficient to invoke the
remedy of this statute. The United States Supreme Court adopted this holding over thirty
years ago. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (“we conclude that a
municipality cannot be held liable solely because it employs a tortfeasor—or, in other
words, a municipality cannot be held liable under § 1983 on a respondeat superior
theory”).

17

I. Bailey Does Not Allege Sufficient Facts to Support a Claim of
§ 1983 Liability Based on Unconstitutional Custom or Policy
Based on Bailey’s Response, Doc. #44, to Hughes and Reed’s Motion to Dismiss,
Bailey intends to allege a claim against the supervisory defendants based on either, (a)
unconstitutional customs or policies or, (b) a failure to train. To make these claims,
Bailey need not have articulated the claim in his complaint. Rather, he only needs to have
pled sufficient facts to make out a plausible claim on these grounds.14 However, Bailey
has not alleged sufficient facts to support a claim of unconstitutional policy or failure to
train and therefore any potential claims based on these grounds are due to be dismissed.
Under Monell v. Dept. of Social Svcs. of City of N.Y., government officials
can be sued directly under § 1983 for monetary, declaratory, or injunctive
relief where . . . the action that is alleged to be unconstitutional implements
or executes a policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body's officers. Moreover . . . local
governments . . . may be sued for constitutional deprivations visited
pursuant to governmental “custom” even though such a custom has not
received formal approval through the body's official decisionmaking
channels.”

14

Defendants note that Plaintiff’s complaint does not set forth specific claims for
failure to train or unconstitutional policy. While this is true, if Bailey’s factual allegations
provide a plausible basis for a claim of failure to train or unconstitutional policy, the fact
that these claims are not specifically enumerated among Bailey’s counts would not
prevent the claims from going forward. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (emphasis added)). In other
words, if Bailey has pled sufficient facts to support a claim, he need not call that claim by
its given name in the complaint in order for the claim to survive dismissal.

18

436 U.S. 658, 690-91 (1978).
Under this standard, the supervisory defendants could be held liable if Bailey
could prove the existence of a policy or custom that led to an unconstitutional deprivation
of rights. However, as Defendants point out in their reply brief, Doc. #52, Bailey’s
complaint does not allege any facts from which the Court could determine that such
policies or customs existed. Nowhere in Bailey’s recounting of the facts does he mention
that his being subject to excessive force, a failure to protect, a strip search, overcrowding,
or retaliation—to the extent that any of these violations occurred at all—was a result of a
policy or custom put in place by the supervisory defendants.
Rather, in his response to defendants’ motions to dismiss, Bailey states that these
claims should survive if the supervisory defendants’ “policies were the driving force
behind the actions of the [corrections] officers.” Doc. #44 at 11; Doc. #45 at 12. At best,
this statement amounts to no more than a “label or conclusion or a formulaic recitation of
the elements of a cause of action,” Iqbal, 129 S.Ct at 1949, or a “conclusory allegation[],
unwarranted deduction of facts or legal conclusions masquerading as facts,” none of
which are sufficient to prevent dismissal. Jackson v. BellSouth Telecomms., 372 F.3d
1250, 1262 (11th Cir. 2004).

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ii. Bailey Does Not Allege Sufficient Facts to Support a Claim of
Deliberate Indifference to a Failure to Train
Inadequacy of training can serve to support a claim for liability under § 1983 and
the Eighth Amendment only if the supervisors responsible for training were deliberately
indifferent to a risk of serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 82829 (1994).
To support a claim under this high standard, Bailey must plead facts to show that
the supervisory defendants knew of and disregarded an “excessive risk to inmate health or
safety.” Id. at 837. In other words, the facts must show that the supervisory defendants
were “aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and [the supervisory defendants] also dr[e]w the inference.” Id; see
also A.P. ex rel Bazerman v. Feaver, 293 Fed. App’x. 635, 652 (11th Cir. 2008).
Here, Bailey pleads no facts to show that the supervisory defendants knew of any
failure to train or any other condition of Bailey’s custody that created a serious risk of
harm to Bailey. Needless to say, where Bailey does not plead that the supervisory
defendants knew of any such conditions, he certainly does not plead sufficient facts to
show that they also disregarded those conditions.
For the reasons stated above, any claim Bailey brings on a basis of respondeat
superior, failure to train, or unconstitutional custom or policy is due to be DISMISSED.

20

b. Bailey Does Not Allege Sufficient Facts to Show that The
Supervisory Defendants Used Excessive Force, Failed to Protect, Strip
Searched, or Retaliated Against Bailey, Either Directly or in Their
Capacities as Supervisors
To the extent that these claims seem to be brought, inexplicably, as direct
participation claims, Bailey alleges no facts to indicate that the supervisory defendants
were directly involved in Bailey’s cell-extraction, the search of his cell or his person, or
the ensuing use of TASER’s on Bailey after he ran from his cell. Any direct liability
claims are therefore due to be DISMISSED. To the extent that these claims are based on
either respondeat superior, failure to train, illegal custom or policy, or other vicarious
liability theories, the claims are due to be DISMISSED for the reasons discussed in part
IV.C.2.a, supra, and the additional reasons discussed below.
To establish supervisory liability in this circuit, a plaintiff must show that either
the supervisor personally participated in the alleged unconstitutional conduct or that there
is a “causal connection between the actions of a supervising official and the alleged
constitutional deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). As
indicated above, Bailey has not alleged personal participation on the part of any of the
supervisory defendants. Therefore, Bailey must plead facts that plausibly show a causal
relationship in one of three ways: (1) Supervisor had notice of a widespread history of
abuse which he neglected to correct, (2) Supervisor implemented a custom or policy that
resulted in deliberate indifference to constitutional rights, or (3) the facts support “the

21

inference that the supervisor directed . . . subordinates to act unlawfully or knew that the
subordinates would act unlawfully and failed to stop them from doing so. Gonzales v.
Reno, 325 F.3d 1228, 1234-35 (11th Cir. 2003).
Bailey has not alleged a widespread history of abuse of which any of the
supervisory defendants had notice, nor does Bailey’s complaint mention any sort of
policy in place at the Houston County Jail, much less a policy which resulted in deliberate
indifference to constitutional rights.15 Lastly, the only facts Bailey has pled that “support
the inference that the supervisor directed . . . subordinates to act unlawfully” is his
allegation that, when Bailey told Moon and Armstrong that they had to have a supervisor
with them anytime they interacted with Bailey, Doc. #1 at 11 ¶¶ 5-6, Moon responded
“[w]ho do you think sent me down here?” Id. Bailey goes on to say that Sergeant
Buchmann “purportedly directed Officers Moon and Armstrong to conduct a single cell
search for contraband.” Id. at 10. This falls far short of alleging that Sergeant
Buchmann, much less any of the other supervisory defendants, directed the corrections
officers to act unlawfully, as is required for a claim of supervisory liability.
Even taken in the light most favorable to Bailey, accepting all allegations as true,
Moon’s statement is not enough to infer that one of the supervisory defendants ordered

15

The one possible exception to the absence of any policy allegations is that
Bailey alleges it was unconstitutional to arm corrections officers with TASERs. Because
the use of TASERs in correctional facilities has been held constitutional, see infra Part
IV.C.2.d, this policy claim lacks any legal merit.

22

Moon and Armstrong to act unlawfully or knew they would do so. Indeed, Bailey’s
allegations do not support an inference that Moon and Armstrong acted unlawfully at all.
See infra Part IV.D.
For these reasons, all of Bailey’s claims regarding the liability of the supervisory
defendants for excessive force, failure to protect, unlawful strip search, and retaliation are
due to be DISMISSED.

c. Bailey Does Not Allege Sufficient Facts to Show That The
Supervisory Defendants Subjected Bailey to Overcrowded Prison
Conditions
Much of the analysis in Part IV.C.2.a.i, supra, concerning a failure to train creating
inhumane conditions of confinement, is also applicable to a discussion of the supervisory
defendant’s liability for overcrowded prison conditions.
First, however, Bailey does not allege sufficient facts to show that the institution in
which he was confined was, in fact, overcrowded. As defendants correctly point out,
Bailey’s complaint at best allows the inference that “there were more people in the
Plaintiff’s cell than there were bunks.” Doc. #33 at 14.
The Court applies the same deliberate indifference standard to Plaintiff’s
overcrowding claim as to Plaintiff’s failure to train claim. The Eleventh Circuit has held
that to establish an Eighth Amendment claim based on prison conditions, an inmate must
meet both an objective component, which requires that the conditions be “sufficiently

23

serious,” and a subjective component, which requires that officials acted with “deliberate
indifference to health or safety.” Fischer v. Ellegood, 238 Fed. App’x 428, 433 (11th Cir.
2007). Additionally, “[o]nly those deprivations denying the minimal civilized measure
of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment
violation.” Hudson v. McMillian, 503 U.S. 1, 9 (1992).
Bailey’s allegations, taken in the light most favorable to him, do not satisfy the
objective standard. The Ellegood case itself is illustrative. In Ellegood, the Plaintiff
alleged, inter alia, that “[s]ome cells had as low as four inmates in them while other cells
had as many as seven [and] inmates were not only forced to sleep on bare cement floors
but also on other inmates’ mattresses and linens (which had not been washed after others’
use of those linens).” Ellegood, 238 Fed. App’x at 433. The Ellegood court noted that
“[e]ven double capacity . . . does not violate the Constitution absent ‘deprivations of
essential food, medical care, or sanitation,” and that there was “no reason to believe that
sleeping on the floor or on unwashed bed linens . . . amounts to either a deprivation of
‘essential sanitation . . . or an Eighth Amendment violation in [its] own right.” Id; see
also Alfred v. Bryant, 378 Fed. App’x 977, 980 (11th Cir. 2010) (holding that requiring an
inmate to sleep in a cell with a broken toilet and no mattress for eighteen days did not
violate the Eighth Amendment).

24

Bailey does not allege that his cell was doubly crowded. He only alleges that he
slept on a mattress near a toilet. Because the Eleventh Circuit has previously held that
even sleeping on a bare floor is not a violation of the Eighth Amendment, even taking all
of Bailey’s allegations as true, his overcrowding claims do not rise to the level of a
Constitutional violation.
Coupling these cases with the sparse facts Bailey alleges to make out his claim of
overcrowding, the Court concludes that Bailey’s claim that he was subjected to
overcrowded prison conditions in violation of the Eighth Amendment is due to be
DISMISSED.

d. Bailey Wrongly Contends that The Use of TASERs is
Unconstitutional
Bailey seems to allege both that the use of TASERs in a correctional facility is
unconstitutional in and of itself, and that the supervisory defendants in this particular
lawsuit had a particular unconstitutional policy of using TASERs on inmates as a means
of retaliation. As discussed above, Bailey does not allege that the supervisory defendants
promulgated any policy or custom regarding the retaliatory use of TASERs.
Additionally, Bailey fails to make out a claim of the necessary “deliberate indifference”
regarding any possible failure to properly train corrections officers in the use of TASERs.
For these reasons any unconstitutional policy or failure to train claim is due to be

25

DISMISSED. For the reasons discussed below, any claim that the use of TASERs is
unconstitutional in its own right is also due to be DISMISSED.
The Eleventh Circuit has explicitly held that the use of TASERs is constitutional in
a variety of circumstances. In Draper v. Reynolds, the Eleventh Circuit held that a police
officer’s use of a TASER to administer a one-time shock was a reasonable use of force in
light of the “totality of the circumstances” of a traffic stop. 369 F.3d 1270, 1278 (11th
Cir. 2004). The plaintiff in Draper was admittedly more combative than Bailey was in
the instant case, repeatedly yelling at the police officer and using profanity. Id.
However, the Draper court also noted that part of what warranted the use of a TASER
was the plaintiff’s repeated refusal to comply with the officer’s verbal commands. Id. By
Bailey’s own admission, he repeatedly refused the verbal commands—commands that
might be more accurately construed as polite requests—even to the point where Bailey
knew he would be shocked if he refused an additional time. Doc. #1 at 12-13, ¶¶ 8-10.
At most, Bailey was shocked four times, though his allegations make it sound like it was
more likely three times. Id. In light of the fact that Bailey was an inmate, was noncompliant, and then, by his own admission, ran out of his cell and past a group of
corrections officers after one shock failed to subdue him, three to four shocks is not
unreasonable under the “totality of the circumstances.”

26

Additionally, the Seventh Circuit, in precedent this Court considers persuasive, has
noted that “it is not hard to imagine any number of scenarios that would justify the [use
of] . . . taser guns” in “a jail or prison setting.” Lewis v. Downey, 581 F.3d 467, 477 (7th
Cir. 2009). Here, this was a tense situation in a correctional facility involving a noncompliant prisoner who actively fled out of his cell and past several corrections officers
after a warning that he would be shocked for continued non-compliance. Under these
circumstances, it is not the Court’s place to say that this was not a situation that justified
the use of a non-deadly weapon whose use has been ruled constitutional in any number of
scenarios.
All of Bailey’s claims based on the use or issuance of TASERs are therefore due to
be DISMISSED.

3. Defendants Did Not Violate Any "Clearly Established" Constitutional
Right
Even if Bailey’s pleadings presented a plausible claim that the supervisory
defendants violated Bailey’s constitutional rights—which, as indicated in Part IV.C.2,
they do not—Bailey also fails to establish that any right violated was clearly established.
Law can be “clearly established” in three ways. First, the words of a relevant
constitutional provision or statute may themselves be specific enough to clearly establish
the applicable standard of conduct, even in the total absence of case law. Storck v. City of

27

Coral Springs, 354 F.3d 1307, 1318 (11th Cir. 2003).

Second, preexisting case law

may serve to establish the boundaries of constitutionally improper conduct. Vinyard, 311
F.3d at 1351. Case law need not arise out of factually identical situations to clearly
establish law for purposes of the qualified immunity analysis. Id. at 1351. Rather, broad
legal principles established in case law may serve to clearly establish the law even for
cases arising out of factually different situations. Id. Third, in the absence of case law
with a broad holding sufficient to provide fair notice, individual cases may serve to
clearly establish the law arising out of materially similar factual circumstances. Id. at
1351-52. In short, as the Eleventh Circuit has held, “[u]nless a government agent’s act is
so obviously wrong, in the light of pre-existing law, that only a plainly incompetent
officer or one who was knowingly violating the law would have done such a thing, the
government actor has immunity from suit.” Storck, 354 F.3d at 1318.
Bailey fails to establish a violation of a “clearly established” right under any of
these three tests. First, Bailey does not point to any specific statutory or Constitutional
provision that would establish the conduct at issue as unlawful or unconstitutional, and
this Court is not aware of any such provision. Second, Bailey points to no series of
precedents to establish “broad legal principles” making the conduct at issue
unconstitutional. Lastly, Bailey does not point to a single case with materially similar
facts in which a court has held similar conduct to be unlawful. Rather, as discussed

28

throughout this order and opinion, case law that has addressed similar factual
circumstances indicates that the conduct at issue was constitutional.
Therefore, there has been no violation of a clearly established constitutional right,
and for this reason, as well as those discussed in Part IV.C.2, supra, all claims against the
supervisory defendants in their individual capacities are due to be DISMISSED.

D. The Corrections Officers Are Entitled To Qualified Immunity In Their
Individual Capacities
Like the supervisory defendants, the corrections officer defendants also claim that
they are entitled to qualified immunity. The test to apply to the corrections officer
defendants is the same as that set forth in Part IV.C, supra. To be entitled to qualified
immunity, the corrections officers must have been (A) acting within their discretionary
authority, and either (B) have committed no violation of a constitutional right, or © if,
based on the allegations, a constitutional right was violated, that right must not have been
clearly established at the time of the violation.

1. The Corrections Officers Were Acting Within Their Discretionary
Authority
Under the standard set forth in Part IV.C.1, supra, the corrections officer
defendants were acting within their discretionary authority in committing all of the acts
alleged in Bailey’s complaint. See also Harbert Int’l., Inc. v. James, 157 F.3d 1271, 1282

29

(11th Cir. 1998) (“a court must ask whether the act complained of, if done for a proper
purpose, would be within, or reasonably related to, the outer perimeter of an official’s
discretionary duties”). As this Court has previously noted, “the determination that an
officer was acting within his discretionary authority is quite a low hurdle to clear.”
Godby v. Montgomery Cnty. Bd. Of Educ., 996 F. Supp. 1390, 1401 (M.D. Ala. 1999).
Everything the corrections officer defendants are alleged to have done was at least
in the “outer perimeter” of their discretionary duties; indeed, all of the following seem to
constitute the very core of a corrections officer’s duties: conducting a cell search, a strip
search, using reasonable force (in the form of a shock from a TASER) on a non-compliant
inmate and then using the same force to stop the inmate from fleeing from his cell, and
confining the inmate after a disciplinary incident. To the extent that any of these acts
require further analysis, that analysis is undertaken in Part 2, below.

2. The Corrections Officers Did Not Violate Bailey's Constitutional Rights
a. Bailey Does Not Allege Sufficient Facts To Show The Corrections
Officers Used Excessive Force Against Him or Failed to Intervene
When Excessive Force Was Used
To determine whether a defendant used excessive force in violation of the Eighth
Amendment, the Court must determine “whether force was applied in a good faith effort
to maintain or restore discipline or maliciously or sadistically for the very purpose of

30

causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1984).16 The corrections officer
defendants’ Memorandum in Support of their Motion to Dismiss, Doc. #37, does an
excellent job of laying out the relevant standard to apply to this situation, and the Court
adopts most of the reasoning laid out in that brief.
The Supreme Court has held that
corrections officers must balance the need “to maintain or restore
discipline” through force against the risk of injury to inmates [and] . . .
[p]rison administrators . . . should be accorded wide-ranging deference in
the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain
institutional security.
Hudson v. McMillian, 503 U.S. 1, 6 (1992) (internal quotations and citations omitted).
In determining whether a given use of force was wanton or unnecessary, the Court
must consider (1) the need for the application of force, (2) the relationship between the
need and the amount of force used, (3) the threat reasonably perceived by the prison
official, (4) any efforts made to temper the severity of a forceful response, and (5) the
extent of the injury suffered by the inmate. Whitley, 475 U.S. at 320-21. Lastly, a court
must keep in mind “the deference normally extended to prison officials in acting to insure
the proper administration, safety and security of a penal institution.” Ort v. White, 813
F.2d 318, 22 (11th Cir. 1987). The Supreme Court has noted that this deference “extends

16

While Whitley was a Fourteenth Amendment case, the standard to be applied in
Eighth and Fourteenth Amendment cases regarding excessive force is the same. Cottrell
v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).

31

to a prison security measure taken in response to an actual confrontation with riotous
inmates, just as it does to prophylactic or preventive measures intended to reduce the
incidence of these or any other breaches of prison discipline.” Whitley, 475 U.S. at 322.
As the corrections officer defendants point out in their brief, Doc. #37 at 15,
Bailey’s complaint does not make out specific allegations of who used force against him.
This is significant because some of the corrections officers who were at Bailey’s cell
during this incident are not defendants in this lawsuit. Bailey seems to allege that
Armstrong, Leary, or Moon administered the first shock. Doc. #1 at 12-13, ¶¶ 9-10.
Bailey then alleges that, after running out of his cell, he was shocked two or three more
times, while being kneed in the back of the head. Bailey does not give any indication as
to whether these actions were undertaken by the corrections officers who are a part of this
lawsuit, or by corrections officers Moon, Leary, or Phillips, who are not.
Even assuming that Bailey’s complaint properly alleges that the defendants in this
suit used the force in question, Bailey’s excessive force and failure to intervene claims are
due to be dismissed. The corrections officers only used force on Bailey after he had
repeatedly refused to come out of his cell following the search. Id. Even then, Bailey
was only shocked once before he, by his own admission, pulled the TASER wires out and
ran out of the cell. Id. Only during what could easily be construed as an attempt at
escape, while Bailey’s cell door was open and with Bailey’s cellmates, mentioned earlier

32

in the complaint in the context of the contraband search, Doc. #1 at 10, ¶4, presumably
looking on, did the corrections officer use more force on Bailey to bring him to the
ground and subdue him. Id. at 13-14 ¶11.
The only indication that the forced used in this incident might have been malicious
or sadistic is Bailey’s allegation that "Officer Leary looked back at Corrections Officer
Moon, they both smiled and he shot BAILEY in the side." Doc. #1 at 13, ¶10. As
discussed above, however, Bailey was warned extensively that he would be shocked if he
continued to refuse the officers’ requests. Thus, the initial shock was administered for a
legitimate disciplinary purpose, not solely for “the very purpose of causing [Bailey]
harm” as is required to establish an Eighth Amendment violation. Johnson v. Breeden,
280 F.3d 1308, 1314 (11th Cir. 2002).
Bailey asserts that Whitley is inapplicable to Bailey’s claims, because the
underlying facts in Whitley concerned an actual prison riot. Doc. #43. However, in
addition to the language from Whitley, quoted above, noting that judicial deference
extends to measures undertaken by prison officials both in response to breaches of prison
discipline as well as preventative or prophylactic measures, Whitley, 475 U.S. at 321, the
McMillian Court later noted that “[m]any of the concerns underlying our holding in
Whitley arise whenever guards use force to keep order. Whether the prison disturbance is
a prison riot or a lesser disruption, corrections officers must balance the need to maintain

33

or restore discipline through force against the risk of injury to inmates.” McMillian, 503
U.S. at 6 (internal quotations omitted). Therefore, the “malicious and sadistic” standard
applies to Bailey’s claims just as it does to those made in Whitley. In his Response to
Defendants’ Motion to Dismiss, Bailey also says he makes a case that defendants actions
were malicious and sadistic, Doc. #43 at 8. However, there is nothing to support this
claim other than a mere label of the sort explicitly disfavored by Twombly, 550 U.S. at
559, and Bailey’s response merely cites to parts of his complaint that assert that label.
Doc. #43 at 8.
Bailey’s reliance on the Eleventh Circuit’s holding in Fundiller v. City of Cooper
City is also misplaced. There, an officer’s use of force to protect himself was deemed
unreasonable where it was necessitated by the officer’s own “unjustified physical abuse.”
777 F.2d 1436, 1441-42 (11th Cir. 1985). As defendants point out, however, Doc. #53 at
7, that case involved an undercover officer who began firing at the plaintiff without
identifying himself as a police officer. Fundiller, 777 F.2d at 1441. Here, there can be no
question that Bailey knew who the defendants were and that they had authority over him
while he was incarcerated; in other words, that they were not unidentified assailants who
had come to his jail cell to maliciously assault him.
Because it is clear that Bailey cannot establish a claim of excessive force by any
defendant in light of his non-compliance with the requests of the corrections officer

34

defendants and later flight from his cell, the Court need not spend much time addressing
Bailey’s contentions that he does not have to identify who did what to him or was in a
position to intervene. Because there was no excessive force, there was no need for any of
the defendants to intervene, and it does not matter who committed the alleged acts,
because none of them were committed maliciously or sadistically, but rather were
undertaken in the interest of maintaining discipline and security in a correctional facility.
For the reasons stated above, Bailey’s claims of excessive force and failure to
intervene are due to be DISMISSED, therefore, defendants’ motion on these claims, Doc.
#37, is due to be GRANTED.

b. Bailey Does Not Allege Sufficient Facts to Indicate That The
Corrections Officer Defendants Performed an Unconstitutional Strip
Search
In determining whether a given search of an inmate’s person violates the inmate’s
rights, this Court returns to the theme of deference to prison officials mentioned in earlier
sections. In a case holding that body-cavity searches of inmates were constitutional the
Supreme Court also held that jailers and corrections officials should be “accorded wide
deference in the adoption and execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to maintain institutional security.”
Bell v. Wolfish, 441 U.S. 520, 558 (1979).

35

The Bell Court held that, to determine whether a given inmate search, particularly
a strip-search, was reasonable and therefore constitutional, a court must balance “the need
for the particular search against the invasion of personal rights that the search entails,”
considering “the scope of the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.” Id. at 559. The
Court also noted “[a] detention facility is a unique place fraught with serious security
dangers. Smuggling of money, drugs, weapons, and other contraband is all too common.”
Id. In light of this pronouncement, it is worth noting that Bailey alleges all of the searchrelated incidents in his complaint were undertaken as part of a contraband search. Doc.
#1 at 10.
The Eleventh Circuit explicitly adopted Bell’s holding in Powell v. Barrett. In
Powell, the Eleventh Circuit, sitting en banc, held that a strip search of five inmates,
crowded with others into a group shower and searched in front of one another without
reasonable suspicion that these particular inmates were concealing contraband, was
constitutional under Bell, and that, indeed, the circumstances of these searches was less
intrusive than those at issue in Bell. Powell v. Barrett, 541 F.3d 1298, 1301-02, 1313
(11th Cir. 2008) (noting that the Supreme Court upheld visual body-cavity inspections in
Bell, as compared to the visual “front and back” inspection employed in Powell).

36

The factual allegations in the complaint do not indicate that the search Bailey was
subjected to was any more intrusive or abusive than those conducted in Bell or Powell.
Bailey alleges that he was told “to stand in spread his butt-cheeks while in front of the
other cellmates. Moon then made Bailey squat and cough in an inappropriate way in
front of the other inmates.” Doc. #1 at 11, ¶4.
By comparison, the procedure held Constitutional in Bell involved a policy
requiring that a male inmate “lift his genitals and bend over to spread his buttocks for
visual inspection.” Bell, 441 U.S. at 558, n. 39. The Supreme Court also noted that the
inmate was never touched during the procedure at issue in Bell. Id. In that regard, the
“visual search procedure” upheld in Bell is consistent with the search undergone by
Bailey, as Bailey does not allege that any of the guards ever touched him during what, by
all indications, was a routine contraband search. This Court is unable to find
Constitutional significance in the fact that Bailey was made to “cough in an inappropriate
way.”
Bailey’s Response to Defendants’ Motion to Dismiss notes that “searches [under
Bell] may in fact be illegal searches based upon the criteria set out in the case.” Doc. #43
at 14. However, nothing in either the allegations or in Bailey’s response alleges sufficient
facts to hold that the search at issue here was illegal.

37

For the reasons described above, the Court finds that the search conducted on
Bailey was reasonable in light of the fact that it was initiated to find contraband, in a
correctional facility, and conducted in a manner consistent with case law on constitutional
searches. Bell, 441 U.S. at 559. Bailey’s claims regarding an unconstitutional search are
therefore due to be DISMISSED and defendants’ motions regarding this claim are due to
be GRANTED.

c. Bailey Does Not Allege Sufficient Facts to Show the Corrections
Officers or Sergeants Buchmann, Reynolds, and Jones
Unconstitutionally Confined Him 17
Bailey’s claims regarding generally overcrowded conditions at the Houston
County Jail are disposed of in Part IV.C.2.c, supra. This section relates solely to Bailey’s
claim that these defendants unconstitutionally confined Bailey when they placed him in a
17

The “Factual Allegations” portion of Bailey’s complaint does not indicate who
placed Bailey into the “closet cell.” See generally Doc. #1. Indeed, Sergeants Jones and
Reynolds are not mentioned in the “Allegations” section at all; their names first appear on
page sixteen, in Bailey’s first “Count.” In “Count XIV,” Bailey alleges that this grouping
of defendants placed Bailey in the cell.
In light of this contrast between the facts and the counts, it is difficult to determine
how to construe this pleading in a light most favorable to Bailey. On the one hand, if it
took three Sergeants and seven corrections officers (three of whom are not defendants) to
place Bailey in the cell, it seems highly unlikely that Bailey was not resisting in some
way. On the other hand, if this mob of law enforcement officers was not directly
involved with putting Bailey in the cell, and Bailey makes these allegations based on a
desire to include as many defendants as possible in his complaint, it is more likely that
some of these defendants will be entitled to attorney’s fees under 42 U.S.C. § 1988. See
Part V.F, infra.
For the sake of argument, the Court assumes that Bailey submitted meekly as ten
prison officials assisted in directing him to his temporary cell.

38

“closet cell.” Doc. #1 at 36, Count XIV. This unconstitutional confinement claim is also
due to be DISMISSED.
The corrections officers’ decision to segregate Bailey from his cellmates and the
general population of the Houston County Jail following an incident where Bailey was
uncooperative and attempted to flee his cell is one that is entitled to discretion. Whitley v.
Albers, 475 U.S. at 312, 321-22; see also Part IV.D.2.a, supra (discussing deference to
prison officials).
As to the conditions of Bailey’s eight-hour confinement in a “closet-cell,” this
Court finds that the conditions alleged were not unconstitutional.
As the defendants point out in their Brief in Support of Motion to Dismiss, Doc.
#37, the Supreme Court has implicitly held that a sixty-three square foot cell could
constitutionally hold two prisoners. Doc. #37 at 18-19, citing Rhodes v. Chapman, 452
U.S. 337, 343, 348-49 (1981). As defendants note, this amounts to approximately a fourby-four square foot space for each inmate, or approximately the size of a walk in closet.
Id. Also worthy of note is that the Rhodes Court’s holding was based on a “practice, not a
temporary condition.” Rhodes, 452 U.S. at 344.
Additionally, in order to amount to “cruel and unusual punishment” under the
Eighth Amendment, the inmate must meet the two-part objective / subjective test set out
in Part IV.C.2.c, supra. In other words, the inmate must show that, (1) a condition of

39

confinement must be “extreme” and “ that a condition of his confinement pose[s] an
unreasonable risk of serious damage to his future health or safety” and, (2) that the
officials who subjected the inmate to this condition were deliberately indifferent to the
risk posed to the inmate. Fischer v. Ellegood, 238 Fed. App’x 428, 433 (11th Cir. 2007);
Chandler v. Crosby, 379 F.3d 1278, 1289-90 (11th Cir. 2004).
Bailey’s claim does not meet either the subjective, nor the objective component of
the test. Bailey has alleged nothing to indicate that his temporary placement in a small
cell posed an unreasonable risk of serious damage to his future health or safety. All
Bailey alleges is that he was placed in the cell. Bailey does not even allege that he was in
need of any of the facilities (sink, toilet, medical attention) that were not provided during
this temporary confinement. Even if the conditions alleged satisfied the objective
standard by posing a serious risk to Bailey’s future well-being, there is no indication that
any of the defendants were deliberately indifferent to this risk as Bailey does not even
allege that, by placing him in the small cell, defendants were acting for “the very purpose
of causing harm or with knowledge that harm [would] result.” Farmer v. Brennan, 511
U.S. 825, 835 (1994); see also Alfred v. Bryant, 378 Fed. App’x 977, 980 (11th Cir. 2010)
(collecting cases where prisoners’ conditions of confinement claims did not rise to the
level of Eighth Amendment violation).

40

For the reasons discussed above, all claims of unconstitutional confinement by
Bailey against all defendants are due to be DISMISSED.

d. Precedent Establishes That The Use of TASERs is Constitutional
For the reasons discussed in Part IV.C.2.d, supra, any claims relating to the
correction officer defendants use of TASERs is hereby due to be DISMISSED.

e. Bailey Does Not Allege Sufficient Facts to Show He Was Retaliated
Against in Violation of the First Amendment
To prevail on a First Amendment retaliation claim, Bailey must allege facts to
support three elements: (1) that his speech was constitutionally protected; (2) that he
suffered an adverse action that would deter an average person of ordinary firmness from
engaging in such speech; and (3) that there is a causal relationship between the alleged
retaliatory action and the protected speech. Smith v. Mosley, 532 F.3d 1270, 1276 (11th
Cir. 2008). Defendants concede that plaintiff has satisfied the first two elements, but
contend that Bailey has not established a causal connection between the events described
in his complaint and his filing of a lawsuit in this court three years ago.
In May 2005, Bailey filed a lawsuit against, among others, Houston County Jail
Officials and Corrections Officer Moon.18 See Complaint, ECF No. 1, Bailey v. Bonnin,
No. 1:05-cv-00419-MHT-TFM (M.D.A.L., filed May 5, 2005). In the instant suit, Bailey
18

Moon is the only defendant in Bailey’s first lawsuit mentioned in Bailey’s
current complaint, though Moon is not a defendant in this lawsuit.

41

alleges that, after Moon and Armstrong completed the search of Bailey’s cell and person,
Bailey "reminded the officers that I have a lawsuit against you and I am not going to play
with you," and that "if they returned to my cell at any time, they need a sergeant /
supervisor to come with them." Doc. #1 at 11, ¶ 4. According to Bailey’s allegations,
only Moon and Armstrong were aware of Bailey’s previous suit, and Armstrong did not
become aware of the suit until after the contraband search was completed or nearly
completed. Sergeant Buchmann, who is alleged to have ordered the search, is not alleged
to have been aware of Bailey’s previous suit.
Bailey’s allegations make it impossible to establish a causal connection because
the facts, as recounted in the paragraph above, are not sufficient to make out the link
between the contraband search and Bailey’s previous lawsuit. At best, Bailey may make
out a claim that Moon, a defendant in the previous lawsuit, was retaliating against Bailey,
but Moon is not a defendant in this suit. Therefore, Bailey’s retaliation claim fails due to
his failure to plead facts which plausibly establish a causal connection.
Even if Bailey’s allegations could somehow be read to make out a causal
connection between the behavior complained of and Bailey’s previous lawsuit, Bailey’s
retaliation claim would fail for two additional reasons: the temporal gap between the
filing of Bailey’s original lawsuit and the incident complained of precludes finding of a

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causal connection, and the fact that the complained of action would have occurred even in
the absence of Bailey’s previous lawsuit.
In the employment law context, the Eleventh Circuit has held that a substantial
delay between the protected speech and the adverse action precludes a retaliation claim as
a matter of law. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)
(holding that plaintiff’s retaliation claim failed to establish causal connection where
plaintiff was fired three months after accusing her supervisor of sexual harassment).
There is no reason to think that this standard would apply any differently in the context of
this case, and it is worthy of note that the temporal gap in Thomas was a mere three
months, whereas here the adverse action occurred more than three years after the filing of
Bailey’s initial lawsuit.
Additionally, there is no guarantee that the actions undertaken by the defendants
here would not have occurred absent Bailey’s earlier lawsuit as required under Mosley.
532 F.3d at 1278 (“If the defendant can show that he would have taken the same action in
the absence of the protected activity, he is entitled to prevail”). The contraband search
was allegedly ordered by a Sergeant who is not alleged to have had knowledge of the
earlier lawsuit. On the facts alleged, Bailey himself brought about everything that
happened after the initial search through his initial failure to comply with the requests of
the corrections officers and his later flight from his cell. The Court finds nothing in

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Bailey’s complaint that sufficiently alleges that the incident complained of would have
unfolded any differently had Bailey not filed his earlier lawsuit.
For the reasons stated above, Bailey’s retaliation claims are due to be
DISMISSED.

f. Bailey Did Not Have a Right to Have a Supervisor Present During
the Alleged Incident
Bailey’s mere insistence, both on the night in question and in his complaint, that he
was entitled to have a supervisor present during all of his interactions with correctional
officers does not grant him such a right. As Defendants point out, if inmates had a right
to have every interaction with prison personnel directly monitored by a supervisor, the
efficient operation of correctional facilities would be greatly hindered. Additionally,
Bailey’s complaint may be read to imply that he believes he has a right to have a
supervisor present as a result of his earlier lawsuit,19 but there is nothing in the record of
that case to indicate that this Court ever granted Bailey such relief. For these reasons, all
of Bailey’s individual capacity claims against all defendants are due to be DISMISSED.

19

Bailey’s statement to Officers Moon and Armstrong, “I have a lawsuit against
you and I am not going to play with you and . . . [sic] if they returned to my cell at any
time they need a sergeant supervisor to come with them” seems to make such an
implication.

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E. Baileys Official Capacity Claims Against All Defendants Are Due to Be Dismissed
1. Supervisory Defendants Are Entitled To Eleventh Amendment Immunity
Against Suits For Money Damages
A suit against a state officer in his official capacity is effectively a suit against the
state. Hafer v. Melo, 502 U.S. 21, 25 (1991). To determine whether an individual is a
state official covered by Eleventh Amendment immunity, courts must consider the law of
the state. Mt. Healthy City Sch. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). Under
Alabama law, including provisions of the Alabama Constitution, a sheriff is an executive
officer of the state. Parker v. Amerson, 519 So. 2d 442, 442–43 (Ala. 1987). Alabama
jailers have been held to be state officials entitled to Eleventh Amendment immunity
because, like Sheriff’s deputies, they are “responsible to the sheriff for their performance
of state-mandated duties.” Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1429-30
(11th Cir. 1997). This same analysis applies to corrections officers and prison officials.
Id; see also Hope v. Allen, No. 2:07cv210-MHT, 2009 WL 1688177 (M.D. Ala., June 16,
2009) (adopting magistrate judge’s recommendation that corrections officer defendants
be entitled to Eleventh Amendment immunity). Accordingly, Eleventh Amendment
immunity bars § 1983 suits for money damages against defendants in their official
capacities.

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2. Defendants Are Not "Persons" For The Purposes of a § 1983 Suit for
Money Damages
The defendants also argue that, as state officials, they are not considered
“persons” for purposes of § 1983 when sued in their official capacity for money damages.
The Court agrees. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)
(“Neither a State nor its officials acting in their official capacities are ‘persons’ under §
1983.”); Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 n.3 (11th Cir. 1990). For
this reason as well, then, Bailey’s official capacity claims for monetary damages are due
to be dismissed.

3. Bailey Does Not Have Standing To Pursue Official Capacity Claims for
Injunctive Relief
Bailey seeks “preliminary and permanent injunctions . . . requiring [sic] Defendant
to set in place strict guidelines for the use of tasers” and “preliminary and permanent
injunctions against Defendants . . . restricting them from carrying tasers on their person or
allowing them to have tasers under their control while dealing with Bailey.” Doc. #1 at
38-39.
Bailey’s requests for injunctive relief must be denied because Bailey’s has not pled
sufficient facts to show that any of the defendants have committed an actionable wrong,
and because Bailer does not have standing to pursue the injunctive relief sought.20
20

To the extent that Bailey seeks an injunction requiring corrections officer
defendants to make guidelines concerning the use of TASERs, this relief must be denied

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“To be entitled to permanent injunctive relief from a constitutional violation, a
plaintiff must first establish the fact of the violation.” Newman v. State of Ala., 683 F,2d
1312, 1319 (11th Cir. 1982). For all of the reasons discussed throughout this Order and
Opinion, Bailey has failed to establish that any constitutional violation occurred. Bailey’s
claims for injunctive relief should be denied for this reason alone.
Even if Bailey had established a constitutional violation, his claim for injunctive
relief would still fail for lack of standing. A plaintiff seeking the jurisdiction of the
federal courts must show a personal stake in the outcome. Baker v. Carr, 369 U.S. 186,
204 (1962). The plaintiff must have sustained, or be about to sustain, some direct injury.
Golden v. Zwickler, 394 U.S. 103, 109-10 (1969). “Past exposure to illegal conduct does
not in itself show a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414
U.S. 488, 495-96 (1974).
As in City of Los Angeles v. Lyons, the path back from granting Bailey’s requested
relief to the redress of his alleged injury is far too speculative for Bailey to be a proper
plaintiff. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-07. In Lyons, the court held
that plaintiff lacked standing to pursue an injunction barring all use of chokeholds by the
LAPD, despite the fact that Plaintiff had been the subject of an illegal chokehold by a Los

because the corrections officer defendants have no authority to promulgate such
guidelines.

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Angeles police officer. The Court reasoned that the plaintiff in Lyons was unlikely to
again be stopped by a Los Angeles police officer who would “illegally choke him into
unconsciousness.” Id. at 105. Therefore, there was not substantial risk enough that the
plaintiff would suffer future injury from the LAPD to warrant standing in a claim for a
permanent injunction. Here, it is equally unlikely that Bailey, currently an inmate
serving a life sentence at Holman Prison, Doc. # 48 at 3, would be returned to the
Houston County Jail and engage in behavior similar enough to that alleged in his
complaint that it would again provoke corrections officers at that facility to use their
TASERs on him.
For these reasons, Bailey’s claims for injunctive relief are due to be DISMISSED.

F. Attorneys Fees and Costs
Defendants Hughes, Reed, Jones and Reynolds have moved this court to award
them attorney’s fees under 42 U.S.C. § 1988, which states that “[i]n any action or
proceeding to enforce a provision of [42 U.S.C. § 1983] the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C.
§ 1988(b).
These defendants argue that the court should award fees because Bailey’s claims
against them are frivolous; that is, they are “so lacking in arguable merit as to be

48

groundless or without foundation,” Sullivan v. School Bd. Of Pinellas Cnty., 773 F.2d
1182, 1188 (11th Cir. 1985).
The decision to award fees is within the discretion of the district court, 42 U.S.C. §
1988(b), and is to be made on a case-by-case basis. Head v. Medford, 62 F.3d 351, 356
(11th Cir. 1995). Courts should consider, inter alia, (1) whether the plaintiff established a
prima facie case; (2) whether the defendant offered to settle, and (3) whether the action
was decided on dispositive motions rather than at a trial on the merits. Id.
Here, Bailey has failed to establish a prima facie case against these defendants.
The only specific actions these plaintiffs are alleged to have taken is that Hughes and
Reed purchased and issued TASERs, and Sherriff Hughes wrote a letter to the
Department of Corrections asking that Bailey be disciplined for his conduct at Houston
County Jail. See generally Doc. #1. Reed, Jones and Reynolds are not mentioned in the
factual allegations at all. Id. at 9-15. Rather, they are only named in the Counts section
of Bailey’s complaint. Where a plaintiff sues a defendant and makes no allegations
against that defendant, there is no prima facie case.
Additionally, to the extent that plaintiff may argue his claims against these
defendants were based on a theory of vicarious liability, such claims are entirely without
merit. Respondeat superior liability is unavailable under § 1983 as a matter of law. Part
IV.C.2.a, supra. Defendant pled no facts regarding a failure to train or an illegal custom

49

or policy promulgated by these defendants. Id. To reiterate, Bailey has not pled that any
of these defendants did anything that remotely resembles a constitutional violation.
In response to defendants’ motion for attorney’s fees, in a section headed “The
District Court will have to determine whether Sheriff Hughes and Reed are entitled to
Attorney’s Fees,” Doc. #48 at 5, Bailey cites a standard for the award of attorney’s fees to
a prevailing defendant that has not been adopted by the Eleventh Circuit in the context of
a claim for fees under § 1988. See id, citing Christianburg Garment Co. v. EEOC, 434
U.S. 412, 421 (1978) (holding that fees should be awarded under employment
discrimination enforcement statute if the action is “found to be unreasonable, frivolous,
meritless, or vexatious”).
In § 1988 cases, the Eleventh Circuit has adopted other language from
Christianburg as its standard for awarding fees to prevailing defendants. See Head, 62
F.3d at 355 (“prevailing defendants . . . may be awarded attorney's fees only when a court
finds that the plaintiff's claim was ‘frivolous, unreasonable, or without foundation, even
though not brought in subjective bad faith.’ (quoting Christianburg Garment Co. v.
EEOC, 434 U.S. 412, 417 (1978))). After citing irrelevant language from Christianburg,
Bailey concludes this section of his response by noting “[i]t is the Court’s discretion as to
whether it will award attorney’s fees.” Id.21

21

The Court agrees.

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The other two aspects of the Eleventh Circuit’s Head test are also satisfied.
Defendants have not offered to settle with Bailey, and, pursuant to this order, this case is
being resolved on a dispositive motion, with defendants prevailing, rather than with a trial
on the merits.
The Eleventh Circuit has held that the standard for awarding attorney’s fees to a
prevailing defendant under 42 U.S.C. § 1988 is “stringent,” and that such an award should
be made only if the plaintiff’s claims are “frivolous, unreasonable, or without foundation,
even though not brought in subjective bad faith.” Christianburg, 434 U.S. at 421. Even
under this demanding standard, because Bailey pleads no facts by which a court could
find a plausible violation of a constitutional right by these defendants, the Court holds
that these defendants are entitled to reasonable attorney’s fees.

VI. CONCLUSION
In accordance with the terms of this opinion, it is hereby ORDERED that:
(1) Motion to Dismiss by Andy Hughes, Commander Reed, Doc. #32, is
hereby GRANTED;
(2) Motion to Dismiss by Sgt. [sic] Buchman, Sgt. Jones, Sgt. Reynolds,
Doc. #34, is hereby GRANTED;
(3) Motion to Dismiss by Corrections Officer Armstrong, Corrections
Officer Chancey, Corrections Officer Harrison, Corrections Officer Laney,
Doc. #36, is hereby GRANTED;

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(4) All of Bailey’s claims against all defendants are DISMISSED, with prejudice,
in their entirety;
(5) Defendants Hughes, Reed, Jones, and Reynolds motion for attorney’s
fees under 42 U.S.C. § 1988 is GRANTED.
(6) On or before October 14, 2011, these Defendants shall file an itemization of
the amounts sought as attorney’s fees and expenses with supporting documentation
including affidavits establishing the nature of the tasks undertaken by counsel, the
amount of time each task took, the reasonableness of the time spent on the matter,
and the reasonableness of the hourly rates requested. Any affidavit addressing the
reasonableness of the hourly rate sought must come from an attorney, other than
counsel of record, who has knowledge about the current rates for this type of work
in the relevant legal market, Dothan, Alabama. These submissions should include
specific and detailed evidence from which the Court can determine the
reasonableness of the time spent on different parts of the lawsuit which set out
with sufficient particularity the general subject matter of the time expenditures so
that the court can assess the time claimed for each activity. These submissions
must also include itemized documentation of any expense for which Defendant
seeks an award. Any response by the Plaintiff to Defendants’ itemization of
attorney’s fees shall be filed by October 21, 2011.
(7) A separate final judgment will be entered consistent with this Memorandum
Opinion and Order.
Done this the 30th day of September, 2011.

/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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