Alverson v. Allen et al (INMATE 1)

Filing 59

MEMORANDUM OPINION AND ORDER directing as follows: (1) The defendants' 12 motion for summary judgment with respect to the plaintiff's constitutional claims for monetary damages lodged against them in their official capacities be GRANTED a s the defendants are entitled to absolute immunity from these claims; (2) The 12 motion for summary judgment filed on behalf of Officer Knox as to the plaintiff's excessive force claim against this defendant in all aspects of his individual ca pacity be DENIED; (3) The 12 motion for summary judgment filed on behalf of defendants Richard Allen, Louis Boyd, Carter Davenport, Kenneth Sconyers, Jeffery Knox, Phelix Woods, Ibeth Jones, Marvin Scaife, Kathy Holt, Sherry Seals, and Tyrone Barro w, with the exception of the plaintiff's excessive force claim against Officer Knox, be GRANTED; (4) This case be set for a set for a jury trial on the plaintiff's claim of excessive force lodged against Officer Knox. Signed by Honorable Judge Terry F. Moorer on 8/23/12. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RODNEY ALVERSON,
AIS #132431,
Plaintiff,
v.

RICHARD ALLEN, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 2:09cv780-TFM
(WO)

MEMORANDUM OPINION and ORDER
I. INTRODUCTION
In this 42 U.S.C. § 1983 action, Rodney Alverson (“Alverson”), a state prisoner,
challenges the constitutionality of actions taken against him at the Easterling Correctional
Facility (“Easterling”). Alverson names Richard Allen, former Commissioner of the
Alabama Department of Corrections (“ADOC”);

Louis Boyd, Warden III;

Carter

Davenport, Warden II; Kenneth Sconyers, Jeffery Knox, Phelix Woods, Ibeth Jones, and
Marvin Scaife, correctional officers; Kathy Holt, Director of ADOC Central Records; Sherry
Seals, Classification Specialist Supervisor; and Tyrone Barrow, Classification Specialist as
defendants in this cause of action. Specifically, Alverson asserts the following claims:
(1)

The defendants denied him access to the courts by failing to provide adequate
legal supplies, confiscating evidentiary materials, and placing him in the hot
dorm.

(2)

The defendants violated his right to Equal Protection in violation of the
Fourteenth Amendment.

(3)

The defendants retaliated against him for filing a federal lawsuit by conducting
a shakedown of his cell and refusing to transfer him to another correctional
facility.

(4)

Officer Knox subjected him to the use of excessive force in violation of his
Eighth Amendment right to be free from cruel and unusual punishment.

(5)

The defendants violated his First Amendment right to exercise his religion by
placing him in the hot dorm.

(6)

The defendants acted with deliberate indifference to his health by delaying his
treatment in the health care unit.

Alverson seeks a declaratory judgment, injunctive relief and monetary damages.
The defendants filed a Special Report and relevant supporting evidentiary materials
addressing Alverson’s claims for relief. Pursuant to the orders entered in this case, the court
deems it appropriate to construe these reports as a motion for summary judgment. Order of
September 30, 2009 - Doc. No. 13. Thus, this case is now pending on the Motion for
Summary Judgment filed by the defendants. Upon consideration of this motion, the
evidentiary materials filed in support thereof, and Alverson’s Response to the Motion, the
court concludes that the Motion for Summary Judgment is due to be denied with respect to
the excessive force claim against Officer Knox and granted with respect to the remaining
2

claims.
II. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
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) (per curiam) (citation to former rule omitted); FED.R.CIV.P. 56(a) (“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.”).1 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 [- now dispute -] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The movant may meet this burden by presenting evidence indicating there is no dispute of
material fact or by showing that the nonmoving party has failed to present evidence in
support of some element of its case on which it bears the ultimate burden of proof. Id. at

1

Effective December 1, 2010, Rule 56 was “revised to improve the procedures for presenting and deciding
summary-judgment motions.” FED.R.CIV.P. 56 Advisory Committee Notes. Under this revision, “[s]ubdivision (a)
carries forward the summary-judgment standard expressed in former subdivision (c), changing only one word -genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of a summary-judgment determination.”
Id. “‘Shall’ is also restored to express the direction to grant summary judgment.” Id. Thus, although Rule 56
underwent stylistic changes, its substance remains the same and, therefore, all cases citing the prior versions of the
rule remain equally applicable to the current rule.

3

322-324.
When the moving parties meet their evidentiary burden, 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) (“If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact by [citing to
materials in the record including affidavits, relevant documents or other materials] the court
may ... grant summary judgment if the motion and supporting materials -- including the facts
considered undisputed -- show that the movant is entitled to it.”) A genuine dispute of
material fact exists when the nonmoving party produces evidence that would allow a
reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263.
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). Consequently, to
survive the defendants’ properly supported motion for summary judgment, Alverson is
required to produce “sufficient [favorable] evidence” which would be admissible at trial
supporting his claim(s) for relief. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
FED.R.CIV.P. 56(e). “If the evidence [on which the nonmoving party relies] is merely
4

colorable ... or is not significantly probative ... summary judgment may be granted.” Id. at
249-250. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the [trier of fact] could reasonably find for
that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L. Ed. 2d 202
(1986).” Walker v. Darby, 911 F.2d 1573, 1576-1577 (11th Cir. 1990). Conclusory
allegations based on subjective beliefs are likewise insufficient to create a genuine issue of
material fact and, therefore, do not suffice to oppose a motion for summary judgment.
Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001);
Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (plaintiff’s “conclusory
assertions ..., in the absence of [admissible] supporting evidence, are insufficient to withstand
summary judgment.”); Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (grant of
summary judgment appropriate where inmate produces nothing beyond “his own conclusory
allegations” challenging actions of the defendants); Fullman v. Graddick, 739 F.2d 553, 557
(11th Cir. 1984) (“mere verification of party’s own conclusory allegations is not sufficient
to oppose summary judgment....”). Hence, when a plaintiff fails to set forth specific facts
supported by requisite evidence sufficient to establish the existence of an element essential
to his case and on which the plaintiff will bear the burden of proof at trial, summary
judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322
(“[F]ailure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.”); Barnes v. Southwest Forest Industries, Inc.,
5

814 F.2d 607, 609 (11th Cir. 1987) (If on any part of the prima facie case the plaintiff
presents insufficient evidence to require submission of the case to the trier of fact, granting
of summary judgment is appropriate).
For summary judgment purposes, only disputes involving material facts are relevant.
United States v. One Piece of Real Property Located at 5800 SW 74th Avenue, Miami,
Florida, 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the
substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of the
Department of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004) (“Only
factual disputes that are material under the substantive law governing the case will preclude
entry of summary judgment.”). “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). To demonstrate a genuine dispute of material fact, the party opposing
summary judgment “must do more than simply show that there is some metaphysical doubt
as to the material facts.... Where the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the
evidence before the court which is admissible on its face or which can be reduced to
admissible form indicates that there is no genuine dispute of material fact and that the party
moving for summary judgment is entitled to it as a matter of law, summary judgment is
6

proper. Celotex, 477 U.S. at 323-324 (Summary judgment is appropriate where pleadings,
evidentiary materials and affidavits before the court show there is no genuine dispute as to
a requisite material fact); Waddell, 276 F.3d at 1279 (To establish a genuine dispute of
material fact, the nonmoving party must produce evidence such that a reasonable trier of fact
could return a verdict in his favor).
Although factual inferences must be viewed in a light most favorable to the
nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a
pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
dispute of material fact. 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 mandate this court’s
disregard of elementary principles of production and proof in a civil case. In this case,
Alverson has demonstrated a genuine dispute of material fact in order to preclude entry of
summary judgment on his excessive force claim. The defendants, however, are entitled to
summary judgment on Alverson’s remaining claims.

III. DISCUSSION
A. Absolute Immunity to Constitutional Claims
With respect to the alleged constitutional violations Alverson lodges against the
defendants in their official capacities, they are entitled to absolute immunity from monetary
damages. Official capacity lawsuits are “in all respects other than name, . . . treated as a suit
7

against the entity.” Kentucky v. Graham, 473 U. S. 159, 166 (1985). “A state official may
not be sued in his [or her] official capacity unless the state has waived its Eleventh
Amendment immunity, see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), or Congress has abrogated the state’s
immunity, see Seminole Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct. 1114, 1125, 134
L.Ed.2d 252 (1996). Alabama has not waived its Eleventh Amendment immunity, see Carr
v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (citations omitted), and Congress
has not abrogated Alabama’s immunity. Therefore, Alabama state officials are immune from
claims brought against them in their official capacities.” Lancaster v. Monroe County, 116
F.3d 1419, 1429 (11th Cir. 1997). 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 for asserted violations of Alverson’s constitutional
rights. Lancaster, 116 F.3d at 1429; Jackson v. Georgia Department of Transportation, 16
F.3d 1573, 1575 (11th Cir. 1994).

B. Access to Courts
Alverson complains that defendants denied him access to the courts by failing to
provide him extra legal kits from the library, refusing to provide him at least eighty (80)
sheets of paper and additional envelopes, supplying him no more than two stamps were
week, not allowing him to charge paper and other office supplies to his prisoner “P.O.M.D.”
8

account after his funds were depleted, and temporarily placing him in the hot dorm without
access to the law library.
The law directs that incarcerated persons are entitled to "a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the courts."
Bounds v. Smith, 430 U.S. 817, 825 (1977). In Lewis v. Casey, 518 U.S. 343 (1996), the
Supreme Court clarified and limited the right to assistance recognized in Bounds.
Specifically, the Court held that "an inmate alleging a violation of Bounds must show actual
injury" arising from the alleged inadequacies in the law library, legal assistance program or
access provided by officials. Lewis, 518 U.S. at 349. In identifying the particular right
protected by Bounds, the Court explained that "Bounds established no ... right [to a law
library or to legal assistance]. The right that Bounds acknowledged was the (already wellestablished) right of access to the courts.... [P]rison law libraries and legal assistance
programs are not ends in themselves, but only the means for ensuring 'a reasonably adequate
opportunity to present claimed violations of fundamental constitutional rights to the courts.'"
Id. at 350-351 (emphasis in original) (citations omitted). The Court further opined Bounds
did not require "that the State ... enable the prisoner to discover grievances, and to litigate
effectively once in court.... To demand the conferral of such sophisticated legal capabilities
upon a mostly uneducated and indeed largely illiterate prison population is [not something]
... the Constitution requires." Id. at 354 (emphasis in original).
The Court similarly rejected the argument that the mere claim of a systemic defect,
9

without a showing of actual injury, presented a claim sufficient to confer standing. Id. at
349. Moreover, Lewis emphasized that a Bounds violation is related to the lack of an
inmate's capability to present claims. 518 U.S. at 356. "Bounds, which as we have said
guarantees no particular methodology but rather the conferral of a capability -- the capability
of bringing contemplated challenges to sentences or conditions of confinement before the
courts. When any inmate ... shows that an actionable claim of this nature which he desired
to bring has been lost or rejected, or that the presentation of such a claim is currently being
prevented, because this capability of filing suit has not been provided, he demonstrates" the
requisite actual injury. Lewis, 518 U.S. at 356. Finally, the Court discerned that the injury
requirement is satisfied only when an inmate has been denied "a reasonably adequate
opportunity to file nonfrivolous legal claims challenging [his] convictions or conditions of
confinement.... [I]t is that capability, rather than the capability of turning pages in a law
library, that is the touchstone." Id. at 356-357. "[T]he Constitution does not require that
prisoners ... be able to conduct generalized research, but only that they be able to present
their grievances to the courts - a more limited capability that can be produced by a much
more limited degree of legal assistance." Id. at 360. The Court admonished that federal
courts should allow prison officials to determine the best method of ensuring that inmates are
provided a reasonably adequate opportunity to present their nonfrivolous claims of
constitutional violations to the courts.

Id. at 356.

A federal district court must

"'scrupulously respect[] the limits on [its] role,' by 'not ... thrust[ing] itself into prison
10

administration' and instead permitting '[p]rison administrators [to] exercis[e] wide discretion
within the bounds of constitutional requirements.' [Bounds, 430] U.S. at 832-833, 97 S.Ct.
at 1500." Id. at 363.
The record in this case establishes corrections personnel gave Alverson access to legal
materials during his confinement at Easterling and in no way inhibited his preparation, filing
or processing of any legal causes of action. Nothing in the record demonstrates the actions
about which Alverson complains improperly impede or adversely affect his efforts to pursue
non-frivolous legal claims. Alverson utterly and completely fails to come forward with any
evidence that the actions about which he complains deprived him of the capability of pursing
claims in this or any other court. Consequently, Alverson does not establish he suffered the
requisite injury, Lewis, 518 U.S. at 356, and the defendants are therefore entitled to summary
judgment on his access to courts claim. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir.
2006) (access to courts claim fails because plaintiff did not show any actual injury);
Chandler v. Baird, 926 F.2d 1057 (11th Cir. 1991) (inmate entitled to no relief on access to
courts claim in "the absence of any indications of ultimate prejudice or disadvantage. . . .").

C. Equal Protection
Alverson alleges the actions of the defendants violate his right to equal protection.
This claim entitles Alverson to no relief.
“Despite the tendency of all rights ‘to declare themselves absolute to their logical
11

extreme,’ there are obviously limits beyond which the equal protection analysis may not be
pressed.... The Fourteenth Amendment ‘does not require absolute equality or precisely equal
advantages,’... nor does it require the State to ‘equalize [prison] conditions.’” Ross v. Moffitt,
417 U.S. 600, 611-612 (1974); Hammond v. Auburn University, 669 F.Supp. 1555, 1563
(M.D. Ala. 1987) (“The Equal Protection Clause of the Fourteenth Amendment does not
require all persons to be treated either identically or equally.”). To establish a claim
cognizable under the Equal Protection Clause, “a prisoner must [at a minimum] demonstrate
that (1) he is similarly situated to other prisoners who received more favorable treatment; and
(2) the state engaged in invidious discrimination against him based on race, religion, national
origin, or some other constitutionally protected basis. Jones v. Ray, 279 F.3d 944, 946-47
(11th Cir. 2001); Damiano v. Florida Parole and Prob. Comm’n, 785 F.2d 929, 932-33
(11th Cir. 1986).” Sweet v. Secretary, Department of Corrections, 467 F.3d 1311, 1318-1319
(11th Cir. 2006). “[O]fficial action will not be held unconstitutional solely because it results
in a ... disproportionate impact.... Proof of ... discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.”

Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 264-265 (1977). “‘Discriminatory
purpose’ ... implies more than intent as volition or intent as awareness of consequences. It
implies that the decision maker ... selected ... a particular course of action at least in part
‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (footnote and
12

citation omitted); see also Hernandez v. New York, 500 U.S. 352, 359 (1991). Evidence
which merely indicates disparity of treatment or even arbitrary administration of state
powers, rather than instances of purposeful or invidious discrimination, is insufficient to
show discriminatory intent. McKleskey v. Kemp, 481 U.S. 279, 292 (1987).
The court has a properly supported motion for summary judgment from the
defendants; hence, Alverson bears the burden to produce evidence which would be
admissible at trial sufficient to show the defendants provided more favorable treatment to
other similarly situated individuals and acted in this manner due to intentional discrimination.
Celotex, 477 U.S. at 322-324; Anderson, 477 U.S. at 249 (to preclude summary judgment,
plaintiff must present significant probative evidence showing defendant provided more
favorable treatment to similarly situated persons and did so as the result of intentional
discrimination); E & T Realty Company v. Strickland, 830 F.2d 1107, 1114 (11th Cir. 1987),
cert. denied, 485 U.S. 961 (1988) (Intentional discrimination on the part of the defendant in
providing the challenged disparate treatment is required. “Mere error or mistake in
judgment” or “[e]ven arbitrary administration of a statute, without purposeful discrimination,
does not violate the equal protection clause.”). The plaintiff cannot rest on conclusory
allegations of a constitutional violation to defeat summary judgment nor is “[t]he mere
existence of a scintilla of evidence in support of [his] position” sufficient to avoid summary
judgment. Anderson, 477 U.S. at 252.
Alverson fails to identify any similarly situated inmate who received more favorable

13

treatment from the defendants. Thus, Alverson’s “equal protection claim necessarily fails
first because he has not shown that he was treated differently from other, similarly situated
prisoners.” Sweet, 467 F.3d at 1319. This assertion likewise provides no basis for relief
because [Alverson] has not alleged ... that he was treated differently on
account of some form of invidious discrimination tied to a constitutionally
protected interest. He has not even claimed that he was treated differently
from others because of race, religion, or national origin. . . . See Snowden v.
Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944) (“The unlawful
administration ... of a state statute fair on its face, resulting in its unequal
application to those who are entitled to be treated alike, is not a denial of equal
protection unless there is shown to be present in it an element of intentional or
purposeful discrimination.”); McQueary v. Blodgett, 924 F.2d 829, 835 (9th
Cir.1991) (rejecting a claim that a state prisoner’s equal protection rights were
violated because he received a longer sentence than some other prisoners and
holding that “a mere demonstration of inequality is not enough; the
Constitution does not require identical treatment. There must be an allegation
of invidiousness or illegitimacy in the statutory scheme before a cognizable
claim arises: it is a settled rule that the Fourteenth Amendment guarantees
equal laws, not equal results.” (internal quotation marks omitted)); see also
Cruz v. Skelton, 543 F.2d 86, 92-93 (5th Cir.1976) (affirming dismissal of
prisoner’s equal protection claim because there was no allegation of
“‘invidious discrimination’ based on such considerations as race, religion,
national origin, or poverty”).
Sweet, 467 F.3d at 1319 (emphasis in original). Thus, summary judgment is due be granted
in favor of the defendants on Alverson’s claim alleging a violation of his equal protection
rights.
D. Retaliation
Alverson claims that the defendants retaliated against him for filing a federal lawsuit

14

by conducting a shakedown of his cell.2 The defendants, however, contend that the
shakedown was conducted to determine whether Alverson was wrongfully accumulating
legal supplies for improper bartering or for the purpose of engaging in the unlawful practice
of law on behalf of other inmates. Alverson also claims that defendants Holt, Seals, and
Barrow retaliated against him for filing a lawsuit against them by refusing to transfer him to
another correctional facility.
To proceed on a claim for retaliation and withstand the entry of summary judgment,
an “inmate must establish ... three elements: (1) his speech was constitutionally protected;
(2) the inmate suffered adverse action such that the [defendant’s] allegedly retaliatory
conduct would likely deter a person of ordinary firmness from engaging in such speech; and
(3) there is a causal relationship between the retaliatory action and the protected speech. See
Bennett v. Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005).” Smith v. Mosley, 532 F.3d
1270, 1276 (11th Cir. 2008); Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999). With
respect to the causal relationship element, a prisoner must demonstrate that correctional
officials intended to retaliate for his exercise of a right protected under the First Amendment
and, but for the retaliatory motive, the adverse act complained of would not have occurred.

2

In his Response, Alverson also argues that the defendants retaliated against him for filing a lawsuit
by refusing to provide him additional paper. As previously discussed, nothing in the record demonstrates that
the lack of additional paper and legal supplies improperly impeded or adversely affected his efforts to pursue
non-frivolous legal claims. In addition, the defendants assert that they did not provide additional paper
because inmates are not allowed to purchase paper from the prison store on credit, he had used his allotted
number of legal kits for the month, and he had recently received a six-week advancement of paper. This court
therefore finds that the defendants have asserted a legitimate, non-retaliatory reason for refusing to provide
additional legal supplies to Alverson.

15

Woods, 60 F.3d at 1166; Smith, 532 F.3d at 1278.
Alverson’s claim that the defendants retaliated against him for filing a lawsuit against
ADOC officials establishes that he was engaged in a protected activity. See O’Bryant v.
Finch, 637 F.3d 1207 (11th Cir. 2011) (citing Smith v. Mosley, 532 F.3d 1270 (11th Cir.
2008); Al-Amin, supra. The defendants respond that the shakedown was conducted to
investigate whether Alverson was bartering with other inmates. Bartering and trading is
against ADOC Rules. (Doc. No. 12, Def’s Ex. A.) The undisputed facts demonstrate that
the defendants shook down Alverson’s cell only after Alverson requested 80 sheets of paper
and additional legal kits from the law library.3 Under the circumstances, the court finds that
the defendants articulate a legitimate, non-retaliatory reason to justify the shakedown of
Alverson’s cell.
Alverson’s claim that the classification specialists retaliated against him for filing a
lawsuit by refusing to transfer him to Staton Correctional Facility likewise must fail.
Alverson argues that defendants Holt, Seals, and Barrow denied his transfer to Staton
Correctional Facility and subsequently transferred him to Draper Correctional Facility
because he filed a federal lawsuit against them. (Doc. No. 36, p. 16.) It is undisputed that
ADOC classification specialists do not have the authority to approve or deny transfers to

3

Alverson admits that between June and August of 2009 he purchased food from the prison
canteen which he used to “buy paper, pens, stamps and envelopes from other inmates, plus [he] had
to use the food items to pay back inmates for stamps, paper, and envelopes he borrowed from
them....” (Doc. No. 36, pp. 3-4.)
16

other institutions. The Central Classification Review Board decides where to transfer an
inmate. (Attach. to Doc. No. 12, Affids. of Tyrone Barrow & Carter F. Davenport.)
Alverson presents a mere conclusory allegation that the defendants’ actions were retaliatory.
Consequently, Alverson fails to establish that the defendants retaliated against him and,
therefore, summary judgment should be granted on this claim.
To the extent Alverson argues that the defendants should have transferred him to a
different correctional facility, he is entitled to no relief. A convicted prisoner has no
constitutionally protected right to confinement in a particular penal facility. Meachum v.
Fano, 427 U.S. 215, 224 (1976). Thus, an inmate may be confined in any correctional
facility without implicating the prisoner’s constitutional rights. Id.; see also Montanye v.
Haymes, 427 U.S. 236, 242 (1976). Although the plaintiff’s confinement at Easterling or
Staton may have entailed “more burdensome conditions” than that of another facility such
confinement is “‘within the normal limits or range of custody which the conviction has
authorized the State to impose.’ [Meachum, 427 U.S. at 225]; see also Montanye v. Haymes,
427 U.S. 236, 242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).” Sandin v. Conner, 515
U.S. 472, 478 (1995). Consequently, the failure to transfer Alverson to a more favorable
correctional facility does not rise to the level of a constitutional violation and such claim
therefore provides no basis for relief in this 42 U.S.C. § 1983 action.

E. Excessive Force
17

At this stage of the proceedings, the court must “take the facts alleged in the complaint
as true and construe them in the light most favorable to [Alverson]. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008).” Danley v. Allen, 540 F.3d 1298, 1304 (11th Cir.
2008). In this light, the facts are that on August 13, 2009, while walking to the D-Dorm to
retrieve an inmate pass to the administration building, Alverson was stopped by Officer
Knox. (Doc. No. 1, p. 10.) Alverson asked Officer Knox to call Lieutenant Woods in the
administration building and ask whether he would approve a store credit for the purchase of
writing supplies from the prison store. (Id., at 11.) Officer Knox responded that Alverson
should obtain his legal supplies from the law library. (Id.) When Alverson explained that
he had already received his allotted number of legal kits from the library, Officer Knox told
Alverson that he was tired and frustrated and ordered him to return to D-Dorm. (Id.)
Alverson began walking toward the dormitory and said, “I’ll handle it myself.” (Id.) Officer
Knox ordered Alverson to stop. (Id.) When Alverson stopped and turned around, Officer
Knox began choking Alverson. (Id.) While shaking Alverson back and forth, Officer Knox
said, “Inmate I told you to go back to your g-dd-m dorm, I didn’t tell you to say anything
els[e].” (Id.) Alverson kept his hands behind his back and did not resist. (Id, p. 12.)
Immediately after the incident, Alverson demanded that Officer Knox take him to the health
care unit. (Id.) Officer Knox, however, refused to do so and ordered him to return to his
dorm. (Id.)
Alverson went to the shift office and asked Officers Wright and Lawson to take him

18

to the health care unit. (Id.) The officers advised Alverson that they would arrange for him
to go to the health care unit after the afternoon prisoner count was taken. (Id.) Fifty-five
minutes after the alleged assault, an officer escorted Alverson to the health care unit. (Id.)
Upon leaving the health care unit, Officer Wright told Alverson that he was under
disciplinary investigation and ordered him to go to the hot dorm. (Id.)
Officer Knox argues that he is entitled to qualified immunity with respect to
Alverson’s excessive force claim. However, the law of this Circuit precludes a defense of
qualified immunity in cases alleging excessive force in violation of the Eighth Amendment
because the use of force “maliciously and sadistically to cause harm” is clearly established
to be a constitutional violation. Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002),
citing Hudson v. McMillian, 503 U.S. 1 (1992), and Whitley v. Albers, 475 U.S. 312 (1986).
Thus, a qualified immunity defense is not available when a plaintiff alleges the use of
excessive force and the only question for a federal district court is whether the plaintiff has
alleged facts sufficient to survive a motion for summary judgment. Skrtich, 280 F.3d at
1302; see also Hudson, 503 U.S. at 9-10; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir.
1996). Accordingly, this court will consider whether the Alverson’s allegation that Officer
Knox maliciously and sadistically used excessive force against him, which the court must
take as true for purposes of summary judgment, sets forth a violation of his Eighth
Amendment rights.
Under the Eighth Amendment, force is deemed legitimate in a custodial setting
as long as it is applied “in a good faith effort to maintain or restore discipline
19

[and not] maliciously and sadistically to cause harm.” Whitley v. Albers, 475
U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2nd Cir.1973)); see also Hudson v. McMillian, 503
U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). To determine if an
application of force was applied maliciously and sadistically to cause harm, a
variety of factors are considered including: “the need for the application of
force, the relationship between that need and the amount of force used, the
threat reasonably perceived by the responsible officials, and any efforts made
to temper the severity of a forceful response.” Hudson, at 7-8, 112 S.Ct. 995;
see also Whitley, 475 U.S. at 321, 106 S.Ct. 1078; Harris v. Chapman, 97 F.3d
499, 505 (11th Cir.1996). From consideration of such factors, “inferences may
be drawn as to whether the use of force could plausibly have been thought
necessary, or instead evinced such wantonness with respect to the unjustified
infliction of harm as is tantamount to a knowing willingness that it occur.”
Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (quoting Johnson, 481 F.2d at 1033).
Skrtich, 280 F.3d at 1300-1301.
Alverson alleges that Officer Knox choked him while repeatedly shaking him back
and forth for no reason and while he posed no threat to the officer. The body chart submitted
by the defendants indicates Alverson reported to the healthcare unit on the afternoon of the
incident complaining that Officer Knox choked him and that his neck was “a little sore.”
(Doc. No. 12-6, ADOC Body Chart dated August 13, 2009.) A nurse noted “a little redness
below [Alverson’s] ear [and] down [his] neck.” (Id.)
Officer Knox admits that he used some force against Alverson; however, he denies
that the use of force was excessive. Specifically, Officer Knox alleges that he grasped the
collar of Alverson’s shirt after Alverson refused to obey a direct order to stop walking. (Doc.
No. 12-6, Officer Knox’s Affid., p. 1.) Viewing the facts in the light most favorable to
Alverson, as is required at this stage of the proceedings, the court concludes Officer Knox

20

is not entitled to qualified immunity as the plaintiff has alleged facts sufficient to survive a
motion for summary judgment. Skrtich, 280 F.3d at 1301. Consequently, the Motion for
Summary Judgment with respect to the excessive force claim lodged against Officer Knox
in his individual capacity is due to be denied.

F. Deliberate Indifference to Health
Alverson complains the defendants acted with deliberate indifference to a serious
medical need by delaying treatment for his injuries after the incident with Officer Knox
occurred. The defendants deny they acted with deliberate indifference to Alverson’s medical
condition.
To prevail on a claim concerning an alleged denial of adequate medical treatment, an
inmate must, at a minimum, show that the defendants acted with deliberate indifference to
his serious medical needs. Estelle v. Gamble, 429 U.S. 97 (1976); Taylor v. Adams, 221 F.3d
1254 (11th Cir. 2000); McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999); Waldrop v.
Evans, 871 F.2d 1030, 1033 (11th Cir. 1989); Rogers v. Evans, 792 F.2d 1052, 1058 (11th
Cir.1986). Specifically, medical personnel may not subject an inmate to “acts or omissions
sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle,
429 U.S. at 106; Mandel v. Doe, 888 F.2d 783, 787 (11th Cir.1989). When seeking relief
based on deliberate indifference, an inmate is required to establish “an objectively serious
need, an objectively insufficient response to that need, subjective awareness of facts

21

signaling the need and an actual inference of required action from those facts.” Taylor, 221
F.3d at 1258; McElligott, 182 F.3d at 1255 (for liability to attach, the official must know of
and then disregard an excessive risk to the prisoner). Thus, deliberate indifference occurs
only when a defendant “knows of and disregards an excessive risk to inmate health or safety;
the [defendant] 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.” Farmer, 511
U.S. at 837; Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (defendant must have
actual knowledge of a serious condition, not just knowledge of symptoms, and ignore known
risk to serious condition to warrant finding of deliberate indifference). Furthermore, “an
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 838.
In articulating the scope of inmates’ right to be free from deliberate
indifference, ... the Supreme Court has ... emphasized that not ‘every claim by
a prisoner that he has not received adequate medical treatment states a
violation of the Eighth Amendment.’ Estelle, 429 U.S. at 105, 97 S.Ct. at 291;
Mandel, 888 F.2d at 787. Medical treatment violates the eighth amendment
only when it is ‘so grossly incompetent, inadequate, or excessive as to shock
the conscience or to be intolerable to fundamental fairness.’ Rogers, 792 F.2d
at 1058 (citation omitted). Mere incidents of negligence or malpractice do not
rise to the level of constitutional violations. See Estelle, 429 U.S. at 106, 97
S.Ct. at 292 (‘Medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.’); Mandel, 888 F.2d at 787-88 (mere
negligence or medical malpractice ‘not sufficient’ to constitute deliberate
indifference); Waldrop, 871 F.2d at 1033 (mere medical malpractice does not
constitute deliberate indifference). Nor does a simple difference in medical
opinion between the prison’s medical staff and the inmate as to the latter’s
diagnosis or course of treatment support a claim of cruel and unusual
22

punishment. See Waldrop, 871 F.2d at 1033 (citing Bowring v. Godwin, 551
F.2d 44, 48 (4th Cir.1977)).
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991); Taylor v. Adams, 221 F.3d 1254,
1258 (11th Cir. 2000) (citation and internal quotations omitted) (To show deliberate
indifference to a serious medical need, a plaintiff must demonstrate that [the] defendants’
response to the need was more than “merely accidental inadequacy, negligence in diagnosis
or treatment, or even medical malpractice actionable under state law.”). Moreover, “whether
government actors should have employed additional diagnostic techniques or forms of
treatment ‘is a classic example of a matter for medical judgment’ and therefore not an
appropriate basis for liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537,
1545 (11th Cir. 1995); Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001) (“A difference
of opinion as to how a condition should be treated does not give rise to a constitutional
violation.”); Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985) (mere fact
inmate desires a different mode of medical treatment does not amount to deliberate
indifference violative of the Constitution); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.
1981) (prison medical personnel do not violate the Eighth Amendment simply because their
opinions concerning medical treatment conflict with that of the inmate-patient). Self-serving
statements by a plaintiff do not create a question of fact in the face of contradictory,
contemporaneously created medical records. See Bennett v. Parker, 898 F.2d 1530 (11th Cir.
1990).
In addition to the above described requisite elements, when an inmate’s deliberate
23

indifference claim relates to a delay in treatment, this court must also consider “(1) the
seriousness of the medical need; (2) whether the delay worsened the medical condition; and
(3) the reason for the delay.” Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007).
In a case alleging that delay in medical treatment shows deliberate indifference, the plaintiff
“must place verifying medical evidence in the record to establish the detrimental effect of
delay in medical treatment to succeed.” Hill v. DeKalb Regional Youth Detention Center,
40 F.3d 1176, 1187-1188 (11th Cir. 1994), overruled in part on other grounds, Hope v.
Pelzer, 536 U.S. 730, 739 n.9 (2002).
Alverson presents no evidence indicating that his condition materially worsened
during the fifty-five (55) minutes between the alleged altercation with Officer Knox and his
treatment in the health care unit. The health care records indicate that, other than Alverson
“[having] a little redness below ear down neck,” there were no hand prints, fingerprints,
bruising, marks or swelling on his body. (Doc. No, 12-6.) In addition, the nurse noted that
Alverson stated, “My neck is a little sore but I am fine.” (Id.)
Under the circumstances of this case, it is clear that the course of treatment undertaken
by the defendants did not violate Alverson’s constitutional rights. The medical care Alverson
received was adequate and certainly not “so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to the fundamental fairness.” Harris, 941 F.2d
at 1505. Although Alverson alleges he should have been escorted to the health care unit
immediately after the incident occurred, this assertion, without more, fails to establish

24

deliberate indifference. Garvin, 236 F.3d at 898 (difference of opinion regarding manner in
which condition should be treated fails to demonstrate a constitutional violation); Adams, 61
F.3d at 1545 (whether medical personnel “should have employed additional ... forms of
treatment ‘is a classic example of a matter for medical judgment’ and therefore not an
appropriate basis for liability under the Eighth Amendment.”); Hamm, 774 F.2d at 1505
(inmate’s desire for some other form of medical treatment does not constitute deliberate
indifference violative of the Constitution); Franklin, 662 F.2d at 1344 (simple divergence of
opinions between medical personnel and inmate-patient do not violate the Eighth
Amendment).
Alverson fails to present any evidence which indicates the defendants knew that a
delay in treating his conditions created a substantial risk to his health and that with this
knowledge consciously disregarded such risk. The record is therefore devoid of evidence,
significantly probative or otherwise, showing that the defendants acted with deliberate
indifference to Alverson’s medical condition. Consequently, summary judgment is due to
be granted in favor of the defendants. Carter, 352 F.3d at 1350.

G. The Exercise of Religion in the Hot Dorm
Alverson contends that he was not allowed to attend church while housed in the hot
dorm. (Doc. No. 1, p. 16.) "[C]entral to all other corrections goals is the institutional
consideration of internal security within the corrections facilities themselves." Pell v.

25

Procunier, 417 U.S. 817, 823 (1974). However, this concern must be balanced against the
constitutional rights of inmates which are not stripped away at the prison gate one of which
includes the right to free exercise of religion. See Johnson v. Avery, 393 U.S. 483, 486
(1969). In determining whether prison rules and regulations pass constitutional muster,
courts apply a lesser standard of scrutiny when reviewing alleged violations of protected
rights out of deference to the complexities of prison administration with which federal courts
are not adept at dealing. See Turner v. Safley, 482 U.S. 78, 81 (1987). Under Turner,
federal action by prison officials that infringes upon a prisoner's First Amendment rights is
valid if it is reasonably related to legitimate penological interests. Id. at 89.
Here, Alverson complains that he was not allowed to attend church while housed in
the hot dorm. He has failed to allege that this inadequacy, however, was not reasonably
related to the prison’s legitimate interests nor has he alleged that he was not permitted to
actually engage in any sort of weekly religious observance within the hot dorm. Indeed, it
is undisputed that inmates housed in the restricted privileges dorm are allowed to possess
religious materials and to worship within their assigned dorm. Further, Alverson has not
demonstrated that his temporary inability to go to a specific location in order to engage in the
worship of his religion unduly burdened his ability to engage in the free exercise of his
religion.4 Accordingly, the Motion for Summary Judgment with respect to Plaintiff’s religion
4

See 42 U.S.C. § 2000cc, et seq. (2000) - the Religious Land Use and Institutionalized Persons Act
of 2000 (“RLUIPA”). The statute prescribes that “[n]o government shall impose a substantial burden on the
religious exercise” of prisoners unless the government can demonstrate that the burden both serves a
compelling government interest and is the least restrictive means of advancing that interest. 42 U.S.C. §
26

claim is due to be granted in favor of the defendants.

H. Prisoner Co-Payments
To the extent Alverson argues that his constitutional rights have been violated because
a co-payment is deducted from the funds available in his prison account each time he seeks
medical treatment, the court concludes he fails to allege a constitutional violation. An
essential element of a 42 U.S.C. § 1983 action is that the conduct complained of deprived the
plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United
States. Conlogue v. Shinbaum, 949 F.2d 378, 380-81 & n.5 (11th Cir. 1991). The actions
about which the plaintiff complains, standing alone, do not violate the constitution. The mere
fact that the plaintiff is assessed co-payments for an examination by a doctor or a nurse does
not in any way deprive the plaintiff of a protected right, privilege or immunity. Shapley v.
Nevada Bd. of State Prison Commissioners, 766 F.2d 404, 408 (9th Cir. 1985) (imposition
of fee for medical treatment provided to an inmate does not amount to a constitutional
violation); Jones-Bey v. Cohn, 115 F.Supp.2d 936, 940 (N.D. Ind. 2000); Bester v. Wilson,
2000 WL 1367984 at *8 (S.D. Ala. August 18, 2000) (“[T]he charging of a fee to prisoners
for medical treatment from their funds has been held to be constitutional when challenged

2000cc- 1(a) (2000).

27

on several due process and Eighth Amendment grounds.”). The evidence in this case does
not establish that the plaintiff was denied medical treatment because he was unable to pay
the fee. Thus, the plaintiff has failed to allege a violation of his constitutional rights.
Consequently, the motion for summary judgment with respect to this claim should be granted
in favor of the defendants.

IV. CONCLUSION
Accordingly, it be and is hereby
ORDERED as follows:
1. The defendants’ motion for summary judgment with respect to the plaintiff’s
constitutional claims for monetary damages lodged against them in their official capacities
be GRANTED as the defendants are entitled to absolute immunity from these claims.
2. The motion for summary judgment filed on behalf of Officer Knox as to the
plaintiff’s excessive force claim against this defendant in all aspects of his individual
capacity be DENIED.
3. The motion for summary judgment filed on behalf of defendants Richard Allen,
Louis Boyd, Carter Davenport, Kenneth Sconyers, Jeffery Knox, Phelix Woods, Ibeth Jones,
Marvin Scaife, Kathy Holt, Sherry Seals, and Tyrone Barrow, with the exception of the
plaintiff’s excessive force claim against Officer Knox, be GRANTED.
4. This case be set for a set for a jury trial on the plaintiff’s claim of excessive force
28

lodged against Officer Knox.
DONE this 23rd day of August, 2012.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

29