Hoover v. Freeman et al
MEMORANDUM OPINION AND ORDER directing the clerk to correct the docket to identify: (1) defendant Cathleen Freeman by her actual name, Kathleen Freeman; and (2) defendant Steve McClendon by his actual name, James McLendon; further ORDERING that defen dants' 6/6/2013 46 MOTION to Substitute Affidavit of James McLendon is DENIED, but its 6/18/2013 48 motion to substitute McLendon's re-executed affidavit is GRANTED; further ORDERING that defendant's 41 MOTION for Summary Judgment is GRANTED. Signed by Honorable Judge Susan Russ Walker on 9/24/13. (djy, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CATHLEEN FREEMAN, et al.,
CIVIL ACTION NO. 3:11cv1022-SRW
MEMORANDUM OPINION and ORDER
This action is before the undersigned Magistrate Judge by written consent of all
parties, pursuant to 28 U.S.C. § 636(c). (See Doc. ## 18, 19). Plaintiff Donna Hoover sues
defendants Cathleen Freeman, Shannon Chambers and Steve McClendon1 – in their
individual capacities only – pursuant to 42 U.S.C. § 1983 and the Fourth and Fourteenth
Amendments. She alleges that each defendant is “an agent, employee, jailer or officer for
the Russell County Sheriff” and claims that each is liable to her for personally subjecting her
to excessive force and for failing to prevent the other defendants from doing the same after
the officer who arrested plaintiff for DUI on November 14, 2010, brought her to the Russell
County jail. (Doc. # 1). This action is presently before the court on the motion for summary
judgment filed by defendants on June 3, 2013 (Doc. # 41). By order entered on June 4, 2013,
The defendants identified in the complaint as Cathleen Freeman and Steve McClendon state
that their correct names are Kathleen Freeman and James McLendon. (Doc. # 41, p. 1 n. 1; see also
Defendants’ Exhibits F (Freeman affidavit) and H (McLendon unsworn statement) and Doc. # 46-1
(McLendon affidavit)). The court will direct amendment of the docket to identify defendants by their
the court advised plaintiff regarding summary judgment procedure and allowed her an
opportunity to file a response to the motion (Doc. # 45); however, plaintiff has failed to do
so. Upon consideration of defendants’ motion, the court concludes that it is due to be granted.
SUMMARY JUDGMENT STANDARD
Under the Federal Rules of Civil Procedure, “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Once the movant
adequately supports its motion, the burden shifts to the nonmoving party to show that specific
facts exist that raise a genuine issue for trial.” Dietz v. Smithkline Beecham Corp., 598 F.3d
812, 815 (11th Cir.2010). “Federal Rule of Civil Procedure 56 requires a party asserting that
a fact is genuinely disputed to support his assertion by citing to specific materials in the
record, and a failure to do so allows the district court to consider the facts as undisputed for
purposes of the motion for summary judgment.” Williams v. Slack, 438 Fed. Appx. 848, 849
(11th Cir. 2011)(citing Fed. R. Civ. P. 56(c)(1)(A), (e)(2)). In resolving a summary judgment
motion, “the evidence and all reasonable inferences from that evidence are viewed in the
light most favorable to the nonmovant, but those inferences are drawn only to the extent
supportable by the record.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir.
2010)(citations and internal quotation marks omitted).
The court imposed a deadline of June 3, 2013 for filing dispositive motions. (Doc. #
38). In support of the motion they filed on that date, defendants contemporaneously filed,
inter alia, a signed – but unsworn – statement from defendant McLendon (Doc. # 43-9).
Three days later, defendants moved to substitute McLendon’s sworn affidavit. (Doc. # 46).
Although McLendon had signed the statement before the motion was filed, defense counsel
explained that McLendon was unavailable to have it notarized in time for filing with the
motion. (Id.). However, the affidavit filed with the motion bore an attestation date of May
28, 2013, six days before the summary judgment motion was filed. (Doc. # 46-1). After the
court sought an explanation for the discrepancy from defense counsel (Doc. # 47), he
explained – attaching a declaration from the notary, the office manager for the Russell
County Sheriff – that McLendon executed the affidavit on June 4, 2013, but the notary had
misdated her attestation for May 28, 2013 (Doc. # 48, 48-1).2 Defendants moved to substitute
a replacement affidavit for McLendon, notarized on June 18, 2013, for the misdated affidavit
filed on June 6, 2013 (Doc. # 48, p. 5; Doc. # 48-2). In view of the notary’s declaration, the
court will consider the affidavit executed on June 18, 2013 (Doc. # 48-2) on the present
Defense counsel acknowledged that he should have caught the error before he filed the
document. (Doc. # 48).
Except for a new signature and notary attestation, the June 18, 2013, affidavit is identical to
McLendon’s unsworn statement filed with the summary judgment motion. In its order requiring an
explanation from defense counsel, the court advised plaintiff “to respond to the pending motion for
summary judgment as though McLendon’s unsworn statement is competent evidence that the court
may consider on the motion” and, further, noted the court’s intention to take the motion for summary
On the date that summary judgment motions were due, defendants also filed a “Notice
of Conventionally Filing Exhibits” advising the court that Exhibits A through D were videos
“on DVD format that have been mailed via United States Postal Service, first class postage
prepaid to Pro Se Plaintiff, and to the Clerk of the Middle District.” (Doc. # 44)(italics as in
original). When the DVDs failed to arrive in the court’s mail, the docket clerk telephoned
defense counsel’s office. On June 24, 2013, defendants filed an “Amended Notice of
Conventionally Filed Exhibits” (Doc. # 49), in which defense counsel states that he served
the DVDs on plaintiff by first class mail on June 3, 2013, as indicated in his original notice,
and hand-delivered a courtesy copy to chambers (which the undersigned has no record of
receiving at that time). However, he also represents that the DVDs were hand-delivered to
the Clerk with the amended notice – i.e., on June 24, 2013. Defendants do not now contend
that they mailed a set of the DVDs to the court by first class mail on June 3, 2013, as
represented in their original notice (Doc. # 44), and offer no cause – good or otherwise – for
their three-week delay in filing the DVDs. (See Doc. # 49). As a result of the delay, the
video evidence was presented to the Clerk on the very day on which plaintiff’s response to
the summary judgment motion was due. (See Doc. # 45). Defense counsel does not explain
how he knows that the DVDs were mailed to plaintiff on June 3, 2013, when it appears that
judgment under submission as previously scheduled whether or not it allowed defendants to
substitute McLendon’s affidavit. (Doc. # 45). Thus, the court has not offered plaintiff a second
opportunity to respond to the testimony presented in McLendon’s affidavit.
the DVDs that counsel apparently intended to send to the Clerk on the same day were never
mailed. Upon review of the docket, the court cannot conclude with confidence that defense
counsel mailed a set of the DVDs to plaintiff by first class mail on June 3, 2013. Because
it is not clear that plaintiff received the DVDs in a timely manner, and because defendants
have not sought leave of the court for the untimely filing of the evidence into the record, the
court declines to consider the videos designated as defendants’ Exhibits A through D.
Unsworn Interview Transcripts
Defendants have filed transcriptions of recordings of interviews conducted by an
investigator for the Russell County Sheriff’s Office of various witnesses – Towne, Hodges,
and Renfroe – appending them to the affidavits of the witnesses. However, the affidavits do
not reference the interview transcripts. Thus, the witnesses have not, under oath, adopted or
incorporated their previous statements as reflected in the transcriptions of the recorded
interviews. The transcriptions are not competent evidence on the present motion, and the
court has not considered them. (See Doc. # 43-5 (Towne aff.) and Doc. # 43-6 (transcribed
interview); Doc. # 43-12 (Hodges aff. at pp. 2-3 and transcribed interview at pp. 5-12); Doc.
# 43-13 (Renfroe aff. at pp. 2-4 and transcribed interview at pp. 5-13)).
Rule 56 requires that “[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion by ... citing to particular parts of materials in the record,” Fed.
R. Civ. P. 56(c)(1)(A)(emphasis added), by “showing that the materials cited do not establish
the absence or presence of a genuine dispute,” Fed. R. Civ. P. 56(c)(1)(B), or by showing
“that an adverse party cannot produce admissible evidence to support the fact,” id..
Defendants’ summary judgment brief cites those portions of the evidence of record that
defendants contend satisfy their burden on summary judgment, as is required by Rule 56(c)
and this court’s order. (See Defendants’ brief at pp. 4-10 (statement of facts); Doc. # 21, ¶
4 (Order stating, “Briefs must contain a statement of facts including specific references to
the record. The court will not consider documents or parts of documents that have not been
specifically cited by page number.”). Plaintiff has not responded to the present motion and,
therefore, has not cited any evidence at all in opposition to the motion.4 Accordingly, in
determining whether defendants have satisfied their burden of showing that there is no
genuine dispute of material fact, the court has considered no evidence other than the
“particular parts of the materials of record” cited by defendants in their brief, including the
footnotes. The court is not required to sift through the remainder of the record (including the
portions of plaintiff’s deposition testimony not cited by defendants) in search of evidence that
might defeat the motion. See Fed. R. Civ. P. 56(c)(3)(“The court need consider only the cited
materials, but it may consider other materials in the record.”)(emphasis added); Fed. R. Civ.
P. 56(e)(2)(“If a party ... fails to properly address another party’s assertion of fact as required
by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion[.]”);
Plaintiff cannot claim ignorance of Rule 56’s requirements for supporting factual positions on
summary judgment, as the court quoted subparagraph (c)(1) of the rule – in its entirety – in its order
of June 4, 2013. (Doc. # 45).
Daughtry v. Army Fleet Support, LLC, 925 F.Supp.2d 1277, 1284 (M.D. Ala.
2013)(declining to “scour [plaintiff’s] ... evidentiary submission, unguided by [plaintiff]
himself, for possible supporting evidence”)(citing Fed. R. Civ. P. 56(c)(1)(A), (c)(3)).
This is not to say that the court accepts all the facts as set forth by defendants in their
brief. In some instances, defendants have made statements of fact without citing evidence
of record,5 and cited portions of plaintiff’s deposition that do not constitute competent
evidence of the facts for which they are cited.6 They have also included facts that – while
supported by evidence – are shown by other cited evidence to be in dispute.7 Thus, in
resolving the present motion, the court has considered the underlying evidence cited by
defendant, except for the evidence the court has excluded expressly above and except for
See, e.g., Doc. # 42 at p. 5 of 28, n. 2 (citing a web address) and n. 3 (including no citation).
See, e.g., Doc. # 42 at p. 5 of 28, Fact # 9 (“Renfroe states that Plaintiff called him stating that
she was lost and had struck a pine tree. When he arrived they began to argue about leaving her
vehicle in the parking lot.”)(citing plaintiff’s deposition at p. 167, lines 7-22 and Renfro affidavit);
Renfroe aff. at ¶ 3 (“She ... called me after about two hours. She told me she had taken a bunch of
Xanax and had wrecked her car. I found her at Walgreens in Phenix City.”); Plaintiff’s depo. at p.
167, lines 7-22 (consisting of defense counsel reading a portion of the investigator’s transcribed
interview of Renfroe and plaintiff’s response (“Uh-huh”) to the question, “So they are setting the
scene now at this time that you were over there, correct?”); see also Doc. # 42 at p. 6 of 28, Fact #
15 (relying on defense counsel’s question during the deposition rather than plaintiff’s testimony).
See, e.g., Doc. # 42 at p. 8 of 28, Fact # 31 (setting forth Hodges’ account of her altercation
with plaintiff, describing plaintiff as the aggressor, relying on Hodges’ affidavit (and the
inadmissible transcript of the recording of her interview by the investigator)); id. at p. 8 of 28 n. 5
(citing plaintiff’s depo., p. 137, lines 14-18 (plaintiff’s affirmative response to the question, “Now,
your testimony is that she [the other inmate] attacked you for no reason; is that correct?”).
affidavit testimony that is inadmissible hearsay, conclusory, or speculative.8 It has resolved
any conflicts and drawn reasonable inferences from the evidence in plaintiff’s favor.
On the afternoon of November 14, 2010, plaintiff was at home with her five children
and her boyfriend, Bradley Renfroe, after attending church. Because it was the Sunday after
Veterans Day, and “they were talking about veterans” at church, plaintiff was very emotional;
she was yelling and cursing. She took several Xanax pills which, at first, had no effect on
her. Plaintiff got into her car and left to purchase alcohol. Because neither Harris County nor
Columbus sold alcohol on Sundays, she drove to Phenix City. Once she arrived in Phenix
For example, McLendon’s affidavit includes a statement regarding the charges for which
Towne arrested the plaintiff, and why Chambers used chemical spray and a baton on the plaintiff
while Freeman and Chambers were trying to change plaintiff into an inmate uniform, when there is
no indication in the testimony that he witnessed either incident. The witness affidavits include
conclusory statements such as “Ms. Hoover was extremely abusive and violent to the officers and
inmates ....” (Towne aff., ¶ 12; Freeman aff., ¶ 9; Chambers aff., ¶ 10; McLendon aff., ¶ 13) and
“She was extremely abusive, exhibited violent behavior, and was verbally disrespectful ...” (Pelfrey
aff., ¶ 4). Renfroe, who was not present at the jail or when plaintiff was arrested, testifies that he
“believe[s] that [plaintiff] was combative and was probably resisting arrest.” (Renfroe aff., ¶ 6). The
court has limited its consideration to the non-hearsay evidence of specific facts describing the events
giving rise to plaintiff’s claims, rather than the speculation of witnesses or the conclusory labels
witnesses have assigned to those facts. Additionally, although defendants have failed to authenticate
the medical records at Defendants’ Exhibits M, N, O, and P, plaintiff has lodged no objection to their
authenticity. Thus, the court finds that plaintiff has waived any such objection. Cf. Auto Drive-Away
Co. of Hialeah, Inc. v. I.C.C., 360 F.2d 446 (5th Cir. 1966)(objection to unsworn exhibits attached
to summary judgment affidavit waived on appeal by failure to object in district court). Assuming
their authenticity, such documents are not objectionable on the basis of the hearsay rule. See Fed.
R. Evid. 803(4), 803(6); see also Fed. R. Evid. 902(11).
See Affidavits of Towne, Freeman, Chambers, McLendon, Pelfrey, Hodges, and Renfroe;
specific portions of Plaintiff’s deposition testimony cited by defendants in their brief in support of
City, she suddenly had no idea where she was or what she was doing. Plaintiff pulled over
at a drugstore and called Renfroe; she told him that she did not know what to do. Plaintiff
told Renfroe the name of the businesses around her and the street names she saw on the street
signs. She then sat in her car and waited until he arrived. When Renfroe approached her car,
he was angry. A woman walked out of the store with her children and heard Renfroe yelling
at plaintiff. The woman yelled, “I am a police officer and you are disturbing the peace.”
Renfroe then told plaintiff, “[l]et’s go.” However, plaintiff was not in a “good frame of
mind” and Renfroe left without her. The woman then told plaintiff, “[W]e can’t arrest you
sitting here ... leave, go.” Plaintiff did so.
Immediately after plaintiff pulled out of the drugstore driveway, police officer
Christine Pressley pulled her over. Officer Jason Towne of the Dadeville Police Department10
then arrived on the scene; he observed that plaintiff was unsteady on her feet, her hair was
in disarray, and she was uttering vulgarities. Plaintiff failed the field sobriety tests
administered by Towne, and he and Pressley arrested plaintiff for driving under the influence
of a controlled substance. Towne transported plaintiff to the Russell County jail without
further incident. He put her into a holding cell with Keri Hodges, a detainee whom Towne
had arrested earlier that day. Towne saw that Hodges was lying on the bench, covered with
a blanket. Hodges then attacked plaintiff for no reason. Towne was in the process of
completing paperwork; he heard a commotion coming from the holding cell and saw plaintiff
Towne avers that he is “currently, and was at the time of the incident made the basis of the
Plaintiff’s Complaint, employed by the Dadeville Police Department.” (Towne aff., ¶ 2).
hitting Hodges. Towne went into the holding cell with Officers Kathleen Freeman and
Shannon Chambers, employees of the Russell County Sheriff’s Department, to separate
plaintiff and Hodges. Plaintiff refused to let go of Hodges, despite several orders to do so,
and Chambers “administered one quick burst of Freeze + P chemical spray” to force plaintiff
to release Hodges. Towne handcuffed plaintiff, and left her in the female intake area.
Plaintiff was then escorted into the booking area so that Towne could administer the
Drager blood alcohol test. Because of plaintiff’s earlier behavior, Sergeant McLendon – a
corrections officer with the Russell County Sheriff’s Office – “stood by” in the booking area.
Towne removed his handcuffs from plaintiff’s wrists, and she began uttering profanity at the
officers, including racial slurs directed at Chambers and Freeman. McLendon told plaintiff
to sit down on a bench. Plaintiff made repeated attempts to stand and, each time, McLendon
pushed her back down on the bench. The last time she attempted to stand, McLendon pushed
her onto the bench and held her down. He told her that if she did not cooperate, he would
put her back in restraints. Plaintiff then kicked McLendon in the thigh and hit him in the
cheek with her fist. McLendon “executed a brachial stun” and put plaintiff on the floor to
restrain her. Chambers and Towne came to assist. The officers handcuffed plaintiff again
and put her back on the bench, ordering her to stay there. Chambers had to restrain plaintiff
physically on the bench, and plaintiff kicked Chambers in the abdominal area. Chambers
used another “quick burst of Freeze + P chemical spray to subdue plaintiff and end the
assault. Chambers and Freeman took plaintiff from the booking room to a holding cell.11
Towne completed his paperwork and left the jail.
McLendon, the supervisor, instructed Chambers and Freeman to remove plaintiff’s
clothing and have her put on an inmate uniform. Plaintiff did not cooperate. She walked
toward the two officers in what they perceived as a “hostile” manner. They told her, several
times, to sit down. She disregarded their instructions, and Chambers administered the Freeze
+ P spray. Plaintiff began kicking Chambers and pulling Freeman’s hair. Freeman applied
pressure to plaintiff’s right arm and wrist to gain control, but plaintiff continued to fight.
Chambers then struck plaintiff’s left leg twice with her baton. The two officers forced
plaintiff down on the bed and removed her clothing. Plaintiff refused to put on the inmate
uniform. She “was instructed to ‘stay back until [Freeman and Chambers] exited the holding
cell.’” The jail staff covered a window with paper thereafter to obstruct the view of male
inmates, and they also set up an observation log.
At approximately 4:30 a.m. the next morning, McLendon and Freeman responded to
a report that plaintiff was trying to kill herself. They saw that she had tied one leg of the
uniform pants to the air vent and the other leg around her neck. Plaintiff had taken weight
off her legs, but the pants had broken away from the air vent. Freeman entered the cell and
retrieved the jail uniform. She saw no visible injuries on or around plaintiff’s neck, and
plaintiff did not appear to Freeman to be injured. At 8:10 a.m., plaintiff was taken to the
Towne describes the two officers who took plaintiff from the booking room to the cell as
“female officers.” (Towne aff., ¶ 10).
medical unit of the jail. She used profanity to the staff, including the staff nurse, the
physicians, and the officers who were present. At the physician’s direction, the nurse gave
plaintiff a Haldol shot to calm her down.
Renfroe saw plaintiff the day after she was released from jail. He observed bruises
on her back but does not recall seeing any bruises or swelling on plaintiff’s face. Late in the
evening on November 16, 2010, plaintiff sought treatment at the St. Francis Hospital for
complaints of anxiety, depression, stress, and PTSD. The physician diagnosed an
exacerbation of PTSD, prescribed Ambien and Naprosyn, and referred plaintiff to “New
Horizon” for follow-up treatment. Plaintiff returned to the emergency room just after 11:00
p.m. on November 19, 2010, three days after her previous visit. She reported that she “was
arrested [and] had [a] tranquilizer shot in her left hip and has had pain since[.]” She
complained of left-sided back pain and right wrist pain. An x-ray of her right wrist revealed
“a healing fracture within the distal diaphysis of the ulna with callus formation[,]” “no acute
fractures[,]” and intact wrist alignment. The examining physician assessed a right wrist
fracture, acute myofascial lumbar strain, and “multiple contusions to legs, arms, face[.]” He
prescribed medications and a wrist splint, and discharged plaintiff home in stable condition
just after midnight.
Plaintiff alleges that defendants have violated her rights under the “Fourth and
Fourteenth Amendments to the Constitution of the United States.” (Complaint, ¶ 1).
Defendants contend that they are entitled to qualified immunity on plaintiff’s claims.
To establish their entitlement to qualified immunity, defendants bear the burden of
establishing that they were acting within the scope of their discretionary authority when they
committed the allegedly unconstitutional acts. Harbert International, Inc. v. James, 157 F.3d
1271, 1281 (11th Cir. 1998). To do so, each defendant must show that his or her actions
were: “(1) undertaken pursuant to the performance of his [or her] duties, and (2) within the
scope of his [or her] authority.” Id. at 1282. At the summary judgment stage, a defendant
must make that showing “by competent summary judgment materials of objective
circumstances that would compel [the] conclusion” that the defendant took the complained
of action in performing his or her duties, and that the action was within the scope of his or
her authority. Id. (quoting Barker v. Norman, 651 F.2d 1107, 1124-25 (5th Cir. Unit A July
30, 1981)). The proper inquiry is “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. The scope of immunity should be determined by the relation of the
[injury] complained of to the duties entrusted to the officer.” Id. (citations and internal
quotation marks omitted; alteration in Harbert); see also Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004)(phrasing the inquiry as “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.”).
Defendants acknowledge that they bear the burden on the issue of whether they were
acting within their discretionary authority. (Doc. # 42, p. 23-24). However, defendants do
not meet that burden directly by pointing to the “competent summary judgment materials”
of record that demonstrate that each defendants’ duties included supervising and maintaining
control of inmates at the Russell County jail. Instead, they note that their burden involves a
“low hurdle,” Id. at. p. 24 (citation omitted). Next, they frame the issue in a manner that
presupposes the answer, as follows: “So, the question is ‘what is the act complained of’ in
the instant case that gives the Defendants discretionary authority? The ‘act complained of’
is that they employed excessive force against Plaintiff while acting as Correctional Officers
at the Russell County Jail.” (Id.)(emphases added). Without discussing the evidence that they
contend satisfies their burden, defendants conclude, “Obviously, the Defendants were acting,
then, within the scope of their duties and within their discretionary authority and, thus, clear
this low hurdle.” (Id.).
Defendants’ burden is, as they themselves argue, not difficult to meet. It is,
nonetheless, an evidentiary burden that defendants must satisfy by pointing to competent
summary judgment evidence. Harbert, 157 F.3d at 1282; Fed. R. Civ. P. 56(c)(1). The “acts
complained of” are the uses of force and the deprivation of clothing during plaintiff’s
detention. To shift the burden of proof to plaintiff on their qualified immunity defense,
defendants must affirmatively show that supervising detainees at the Russell County Jail was
within the scope of each defendant’s duties, and that the means they employed were within
their authority. Harbert, 157 F.3d at 1281 (“To establish the defense of qualified immunity,
the burden is first on the defendant to establish that the allegedly unconstitutional conduct
occurred while he was acting within the scope of his discretionary authority. If, and only if,
the defendant does that will the burden shift to the plaintiff to establish that the defendant
violated clearly established law.”)(citation omitted).
While it would have been a simple matter for defendants to address the scope of their
duties and authority expressly in their affidavits, they have failed to do so. Accordingly, the
court must itself sift through the evidence defendants have cited on the present motion to
determine whether it is sufficient to satisfy their burden on their qualified immunity defense.
All three defendants state that, at the time of the incidents at issue, they were employed by
the “Russell County Sheriff’s Department.” (McLendon aff., ¶ 2; Freeman aff., ¶ 2;
Chambers aff., ¶ 2). McLendon adds that he was “employed ... as a corrections officer, with
the rank of Sergeant[.]” (McLendon aff., ¶ 2). Chambers and Freeman refer to each other
by the title “Officer,” and McLendon also uses that title in referring to both Chambers and
Freeman. (Chambers aff.; Freeman aff.; McLendon aff.). Freeman testifies that she and
Chambers “were instructed by the supervisor to remove Hoover’s clothing and have her put
on a blue jumper” (Freeman aff., ¶ 6); Chambers testifies that she and Freeman were
instructed to do so by McLendon (Chambers aff., ¶ 8). While this evidence is sparse, the
court concludes that it is just barely sufficient – viewed in the context of the governing law
– to satisfy each defendants’ burden. Under Alabama law, the county sheriff bears the
responsibility for controlling and protecting the inmates in the county jail and for supervising
and directing those he or she employs to carry out that responsibility. Ala. Code §§ 14-6-1,
et. seq.; see Turquitt v. Jefferson County, Ala., 137 F.3d 1285 (11th Cir. 1998)(“Under the
Alabama Code, the sheriff has control over the inmates of the jail, the employees of the jail,
and the jail itself. ... The sheriff appoints, directs, and controls the deputies and jailers who
work at the jail.”). McLendon is a “corrections officer” employed by the sheriff and, on the
shift in question, both Chambers and Freeman were officers working at the jail under his
supervision. This evidence is sufficient to demonstrate that – at the time of their encounters
with the plaintiff – all three defendants had job duties that included controlling and
protecting inmates at the jail. In view of these duties, the means they employed (use of
pepper spray and a baton, applying physical force, and removing the uniform from an
inmate’s cell) – “examined on a general level rather than in this specific application – were
legitimate prerogatives of [their] jobs.” Holloman, 370 F.3d at 1267. In other words, when
defendants performed these acts, they were “exercising powers that legitimately form a part
of their jobs.” Id. at 1266-67; see also Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th
Cir. 2004)(“To determine whether an official was engaged in a discretionary function, we
consider whether the acts the official undertook ‘are of a type that fell within the employee’s
job responsibilities.’ That is easy here. Because making an arrest is within the official
responsibilities of a sheriff’s deputy, Terry was performing a discretionary function when he
arrested Crosby.”)(quoting Holloman, 370 F.3d at 1265).
Because defendants have met their burden – albeit by a slim margin – of showing that
they were acting within the scope of their discretionary authority,12 the burden of proof shifts
to plaintiff to establish that the defendants are not entitled to qualified immunity. Skop v.
City of Atlanta, Georgia, 485 F.3d 1130, 1136-37 (11th Cir. 2007). To do so, plaintiff must
show that defendants’ conduct violated a clearly established constitutional right. Fennell v.
Gilstrap, 559 F.3d 1212, 1216 (11th Cir. 2009).
The Source of Plaintiff’s Rights
Plaintiff claims that defendant violated her rights protected by the Fourth and
Fourteenth Amendments. (Complaint, ¶¶ 1, 45). She maintains that, “[p]ursuant to the Fourth
and Fourteenth Amendments to the Constitution of the United States, [she] has a right to be
free from the use of unreasonable and excessive force and a right to bodily integrity,
respectively.” (Id., ¶ 51). Defendants do not respond to plaintiff’s allegation that the Fourth
Amendment is a source of her allegedly infringed right “to be free from the use of
unreasonable and excessive force[,]” nor do they acknowledge her claim to “a right to bodily
integrity” under the Fourteenth Amendment. They argue only that their conduct does not
violate the excessive force standard applicable to pretrial detainees under the Fourteenth
Upon its review of Eleventh Circuit case law, the court concludes that the Fourth
Amendment does not govern plaintiff’s excessive force claim. Plaintiff makes no allegation
Plaintiff does not allege that the defendants were not acting within the scope of their
discretionary authority (see Complaint), and has not opposed the present motion.
of improper conduct occurring before her altercation with Hodges in the holding cell. Thus,
under the law of this circuit, the right to be free from excessive force in the present case
arises under the due process clause of the Fourteenth Amendment. See Fennell, 559 F.3d at
1215 n. 4 (claim of excessive force during a “pat-down” search immediately following the
plaintiff’s arrival at the jail, in the presence of the arresting officer, was “governed by the
Fourteenth Amendment”); Cottrell v. Caldwell, 85 F.3d 1480, 1483, 1490 (11th Cir.
1996)(applying Fourteenth Amendment standard to a claim of mistreatment of plaintiff’s
decedent as he was “being transported in the back of a police car after his arrest[;]” stating,
“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.”); but see Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008)(assuming that the
Fourth Amendment governs a claim challenging a policy or practice of strip-searching
arrestees “as a part of the process of booking them into the general population of a detention
facility”); Hicks v. Moore, 422 F.3d 1246, 1253 n. 7 (11th Cir. 2005)(assuming – in a case
decided nine years after Cottrell and in the absence of contrary argument by the defendants
– that plaintiff was “still being seized” during the booking process at the jail, after the
arresting officer had turned her over to the jailers, so that the Fourth Amendment “objective
reasonableness” standard governed her claims of mistreatment).
As to plaintiff’s claimed right to bodily integrity, the Eleventh Circuit has recognized
that inmates “retain certain fundamental rights of privacy[,]” including a “constitutional right
to bodily privacy.” Fortner v. Thomas, 983 F.2d 1024, 1029-30 (11th Cir. 1993)(internal
quotation marks and citations omitted). “The United States Constitution does not expressly
guarantee a right to privacy, but the Supreme Court has held that a right to privacy does exist
within the liberty component of the Fourteenth Amendment.” Padgett v. Donald, 401 F.3d
1273, 1280 (11th Cir. 2005).13 Plaintiff’s allegations of being forced to remain naked in her
cell while McLendon and others “peer[ed]” at her implicates her right to bodily privacy and,
therefore, also arises under the due process clause of the Fourteenth Amendment. To the
extent that she challenges her conditions of confinement on the basis of her forced nudity,
this claim also arises under the Fourteenth Amendment. Wilson v. Blankenship, 163 F.3d
1284, 1291 (11th Cir.1998)(a pretrial detainee’s claim about confinement conditions is
analyzed under the Due Process Clause of the Fourteenth Amendment).
The Eleventh Circuit has summarized the law applicable to plaintiff’s “excessive
force” claims as follows:
The Due Process Clause of the Fourteenth Amendment protects pretrial
detainees, like [plaintiff], from the use of force that “shocks the conscience,”
which is force that is applied “maliciously and sadistically for the very purpose
of causing harm.” Danley v. Allen, 540 F.3d 1298, 1306–07 (11th Cir. 2008),
overruled on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009).
The Padgett court observed that “Fortner’s holding ... comports with the Supreme Court’s
recognition that people have a protected privacy interest in avoiding disclosure of certain personal
matters – there, the exposure of their naked bodies.” Padgett, 401 F.3d at 1281.
* * * * *
In Eighth and Fourteenth Amendment excessive force cases, the “core
judicial inquiry” is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.”
Wilkins v. Gaddy, __U.S. __, 130 S.Ct. 1175, 1178, 175 L.Ed.2d 995
(2010)(quotation marks omitted). In determining whether the force was
applied maliciously and sadistically to cause harm, courts consider several
factors, including: “a) the need for the application of force; b) the relationship
between the need and the amount of force that was used; c) the extent of the
injury inflicted upon the prisoner; d) the extent of the threat to the safety of
staff and inmates; and e) any efforts made to temper the severity of a forceful
response.” Fennell, 559 F.3d at 1217. We consider these factors “as reasonably
perceived by” the correctional officer based on the facts known to him at the
time and “give a wide range of deference to prison officials acting to preserve
discipline and security.” Id. (quotation marks omitted in second quotation).
Nonetheless, deference to correctional officers is not absolute and does not
insulate from review actions taken in bad faith or for no legitimate purpose.
Ort v. White, 813 F.2d 318, 322 (11th Cir. 1987).
Skelly v. Okaloosa County Board of County Commissioners, 456 Fed. Appx. 845, 847-848
(11th Cir. 2012)(footnotes omitted). “A jailor’s use of force against a pretrial detainee is
excessive under the Fourteenth Amendment if it ‘shocks the conscience.’ The use of force
does not ‘shock the conscience’ if it is applied ‘in a good faith effort to maintain or restore
discipline.’” Fennell, 559 F.3d at 1217 (citations omitted). Due to the nature of the subjective
intent required to prove a Fourteenth Amendment excessive force claim – i.e., that the
defendant applied the force maliciously and sadistically to cause harm – any conduct
sufficient to establish such a claim violates a “clearly established” constitutional right.
Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir.2002)(“[W]here this type of [Eighth
Amendment excessive force] constitutional violation is established there is no room for
qualified immunity. It is not just that this constitutional tort involves a subjective element,
it is that the subjective element required to establish it is so extreme that every conceivable
set of circumstances in which this constitutional violation occurs is clearly established to be
a violation of the Constitution[.]”).
Viewed in light of the relevant factors, the evidence before the court on the present
motion – viewed in the light most favorable to the plaintiff and drawing all reasonable
inferences in her favor – does not permit a reasonable conclusion that any defendant either
used force “maliciously and sadistically to cause harm” (Wilkins, 130 S.Ct. 1178), or failed
in his or her duty to intervene as another defendant did so. As set forth above, the actions
giving rise to plaintiff’s excessive force claims occurred as follows:
1. Use of force in the holding cell. The first application of force occurred when
Towne, Freeman, and Chambers went into the holding cell to separate Hodges and plaintiff.
While Hodges had instigated the fight, what Towne saw was plaintiff hitting Hodges. After
plaintiff refused to obey several orders to let go of Hodges, Chambers sprayed her with “one
quick burst” of chemical spray, and Towne handcuffed her. In view of plaintiff’s failure to
obey orders to release Hodges, the use of some degree of force was necessary to protect
Hodges and restore discipline. Chambers’ minimal use of force – i.e., a single burst of
chemical spray – enabled the officers to bring the situation under control without the need
for a more forceful response. The evidence before the court on the present motion does not
permit a reasonable conclusion that Chambers used the chemical spray other than in a good
faith attempt to restore discipline. See Scroggins v. Davis, 346 Fed. Appx. 504 (11th Cir.
2009)(use of one burst of pepper spray on an inmate who disobeyed a direct order and made
an aggressive move toward a guard was not excessive force).14, 15
2. First use of force in the booking room. McLendon testifies that he “stood by” in
the booking room due to plaintiff’s previous behavior. He told plaintiff to sit down on the
bench, but she repeatedly tried to stand. He pushed her back down on the bench each time
and, on the last such occasion, held her down on the bench and told her that he would put her
back in restraints if she did not cooperate. Plaintiff kicked him in the leg and struck his
cheek with her closed fist; he executed a brachial stun blow and put her down on the floor
to restrain her. Chambers came to assist him in restraining the plaintiff. The officers
handcuffed plaintiff again. In this instance, the use of force was necessitated by plaintiff’s
refusal to remain seated, despite multiple orders to do so, and by her assault on McLendon.
It appears from plaintiff’s medical record that she suffered bruising to the right side of her
neck, bruising elsewhere on her body and, possibly, a fractured wrist16 that may have resulted
The evidence before the court on the present motion does not demonstrate that defendants
acted (or failed to act) “maliciously and sadistically” to cause further discomfort from the effects of
the spray, as in Nasseri v. City of Athens, Alabama, 373 Fed. Appx. 15 (11th Cir. 2010) or Danley
v. Allen, 540 F.3d 1298 (11th Cir. 2008), nor does it demonstrate that plaintiff suffered any injury
as a result of the spray.
While the court has evaluated this use of chemical spray under the five factors set forth in
Whitley v. Albers, 475 U.S. 312 (1986) to determine whether it “shocks the conscience,” the court
notes that plaintiff does not allege it as a basis for her claim. See Complaint, Doc. # 1, ¶¶ 15-16.
The evidence before the court on the present motion does not suggest that plaintiff complained
of wrist pain when she was taken to the jail’s medical unit. Plaintiff did not seek treatment for her
from her scuffle with McLendon.17 Even assuming that all of the injuries documented in the
record were a result of this incident, plaintiff has failed to show that any defendant exerted
more force than was necessary to restrain the plaintiff, let alone that any of the defendants
applied force maliciously and sadistically for the purpose of inflicting harm.
3. Second use of force in the booking room. The officers put plaintiff back on the
bench and ordered her to stay there. Chambers physically restrained plaintiff on the bench,
and plaintiff kicked her in the stomach. Chambers used another “quick burst” of chemical
spray. As with Chambers’ first use of chemical spray, the evidence does not permit a
reasonable conclusion that the use was excessive, in view of plaintiff’s assault on Chambers.
The use of chemical spray to gain control of the plaintiff under the circumstances presented
by the summary judgment evidence does not violate the Fourteenth Amendment. See
4. Use of force in undressing the plaintiff. Plaintiff refused to change into the inmate
uniform. She walked toward Chambers and Freeman, and disregarded several orders to sit
wrist the first time she went to the emergency room after her release and the physician indicated by
checkmarks on the physical examination form that her extremities were “non-tender,” with normal
range of motion, no edema and “no signs of injury.” (Defendants’ Exhibit M, Doc. # 43-14, p. 5 of
14). The wrist x-ray performed on plaintiff’s ER visit three days thereafter showed “a healing
fracture ... with callus formation” and “no acute fractures[.]” (Defendants’ Exhibit P, Doc. # 43-17,
p. 8 of 15).
The court assumes, for purposes of the present motion, that the injuries documented in
plaintiff’s medical record resulted from defendants’ actions at the jail. There is no evidence
permitting any conclusion regarding whether plaintiff’s injuries resulted from her altercation with
Hodges, the booking room incident involving McLendon, or the incident in the cell when Chambers
and Freeman removed plaintiff’s clothing.
down. Chambers sprayed plaintiff with chemical spray. Plaintiff began kicking Chambers
and pulling Freeman’s hair. Freeman applied pressure to plaintiff’s right arm and wrist to
gain control, but plaintiff continued to fight. Chambers then struck plaintiff’s left leg twice
with her baton. The officers forced plaintiff down on the bed and removed her street
clothing. Plaintiff refused to wear the jail uniform. The undisputed evidence demonstrates
the need for the application of force in this instance and the fact that the safety of the officers
was at risk – Chambers used the chemical spray on plaintiff as she advanced on them and
disregarded several orders to sit down. Neither officer exerted any physical force on plaintiff
until plaintiff attacked them both. Chambers resorted to use of her baton to strike plaintiff
after plaintiff continued to fight despite Freeman’s use of pressure on plaintiff’s arm and
wrist. The injury inflicted on plaintiff does not demonstrate that the force used by the
officers was excessive, in view of plaintiff’s aggression and her repeated failure to comply
with orders. The evidence before the court on the present motion does not permit a
reasonable conclusion that Freeman or Chambers applied force maliciously and sadistically
to cause plaintiff harm.
Right to Bodily Privacy
Within her excessive force claim, plaintiff complains of being left naked in her cell
for several hours while McLendon, other officers, and inmates “peer[ed] at Plaintiff as if she
were on display at a zoo!” (Complaint, ¶¶ 27-29, 50). Plaintiff asserts “a right to bodily
integrity,” in addition to her “right to be free from the use of unreasonable and excessive
force[.]” (Id., ¶ 51). Plaintiff’s claim of being left naked for several hours does not relate
to the use of force at all but, rather, to an alleged violation of her right to bodily privacy. In
Boxer X v. Harris, 437 F.3d 1107 (11th Cir. 2006), a male prisoner complained that a guard
of the opposite sex compelled him to masturbate while she watched. The district court
dismissed the claim pursuant to 28 U.S.C. § 1915 for failure to state an Eighth Amendment
claim. The Eleventh Circuit agreed that the plaintiff’s allegations did not state an Eighth
Amendment claim (id. at 1111) but reversed the judgment of dismissal, stating:
We joined other circuits recognizing a prisoner’s constitutional right to bodily
privacy in Fortner v. Thomas, 983 F.2d 1024 (11th Cir. 1993). In Fortner,
“female officers ... solicit[ed] ... [male prisoners] to masturbate and otherwise
exhibit their genitals for the female officers’ viewing.” Id. at 1027. We held
that this violated the prisoner’s right to privacy. Id. at 1030. Fortner outlined
a very narrow privacy right involving people’s “‘special sense of privacy in
their genitals’” and noted that “‘involuntary exposure of them in the presence
of people of the other sex may be especially demeaning and humiliating.’” Id.
(citing Lee v. Downs, 641 F.2d 1117, 1119 (4th Cir. 1981)). We have
reaffirmed the privacy rights of prisoners emphasizing the harm of compelled
nudity. See Padgett v. Donald, 401 F.3d 1273, 1281 (11th Cir. 2005).
Boxer X v. Harris, 437 F.3d at 1110-11. The Court further observed that it has,
“[n]onetheless, ... ‘continue[d] to approach the scope of the privacy right on a case-by-case
basis.’” Id. at 1111 (quoting Fortner, 983 F.2d at 1030).
As noted above, to overcome defendants’ qualified immunity defense, plaintiff must
establish that defendants violated her clearly established constitutional right. Plaintiff may
not do so by relying merely on the allegations of her complaint. See Fed. R. Civ. P. 56(c)(1).
The evidence before the court on the present motion demonstrates that, after Chambers and
Freeman removed plaintiff’s clothing and plaintiff refused to don the jail uniform, “[a]n
observation log was set up to monitor [plaintiff], and paper was placed over the window to
obstruct the view by male inmates.” (McLendon aff., ¶ 9). Freeman removed plaintiff’s
inmate uniform from the cell later on, after she and McLendon – the supervisor on duty –
responded to a report that plaintiff was trying to kill herself, and saw that plaintiff had
attempted to hang herself from the air vent using the uniform pant legs. (McLendon aff., ¶
12; Freeman aff., ¶ 8).
The Eleventh Circuit’s bodily privacy cases cited above (Boxer X and Fortner) both
involved factual scenarios much more egregious than that presented by the evidence in this
case. See Boxer X, 437 F.3d at 1109 (male inmate complained that a female guard, “made
him strip and masturbate for her enjoyment”); Fortner, 983 F.2d at 1027 (“The appellants
claim that the female officers flirt, seduce, solicit, and aroused them to masturbate and
otherwise exhibit their genitals for the female officers’ viewing.”). In this case, plaintiff cites
no evidence that any male other than McLendon observed her while she was unclothed, that
McLendon saw her naked at any time other than when he responded to her cell after
receiving a report that she was trying to kill herself, or that McLendon behaved
inappropriately when he saw her unclothed. Additionally, it is undisputed that plaintiff was
naked of her own volition at the time that McLendon saw her. She had a jail uniform in her
possession and, instead of wearing it, tried to hang herself with it. Plaintiff has failed to
establish that, under clearly established law, McLendon’s viewing plaintiff in the nude under
these circumstances violated plaintiff’s constitutional right to bodily privacy. See Letcher
v. Turner, 968 F.2d 508, 510 (5th Cir. 1992)(finding no constitutional violation in female
guard’s presence during strip search of male prisoner “where a maximum show of force was
required because of the earlier unruly behavior of the inmates”; endorsing the principle set
forth in its earlier decision in Barnett v. Collins, 940 F.2d 1530 (5th Cir. 1991)(Table, No.
91-1038, unpublished), cert. denied 502 U.S. 1077 (1992), that “no constitutional violation
occurs when naked male inmates a viewed by female guards if the presence of female guards
is required to protect a legitimate government interest such as maintaining security at a
correctional facility”). Therefore, defendants are entitled to qualified immunity on plaintiff’s
claim that they violated her constitutional right to bodily privacy.
Conditions of Confinement
Plaintiff’s allegations of forced nudity during her detention may be read to challenge
her conditions of confinement. “The Eighth Amendment’s prohibition on conditions of
confinement that amount to cruel and unusual punishment also applies to pre-trial detainees
through the Fourteenth Amendment’s due process clause.” Bennett v. Chitwood, 519 Fed.
Appx. 569, 573-75 (11th Cir. 2013)(citing Wilson v. Blankenship, 163 F.3d 1284, 1291 (11th
Cir.1998) and Hamm v. DeKalb County, 774 F.2d 1567, 1573–74 (11th Cir.1985)). “In
analyzing confinement conditions about which a pretrial detainee complains, a court must
decide whether the detention officials intentionally imposed the restriction for a punitive
purpose or whether it is reasonably incidental to a legitimate government objective. If a
restriction is not reasonably related to a legitimate goal – if it is arbitrary or purposeless – a
court may infer that the purpose of the government action is punishment.” Wilson, 163 F.3d
As discussed above, it is undisputed that plaintiff chose not to wear the jail uniform
until the point at which it was removed from her cell after she used it to try to hang herself
from the air vent. She cites no evidence of record demonstrating any injury resulting from
the deprivation of clothing, nor does she indicate how long thereafter she remained without
clothing. She cites no evidence that might give rise to a finding that defendants took
plaintiff’s jail uniform away to punish her rather than for the legitimate purpose of preventing
her from harming herself with it. Thus, to the extent plaintiff that challenges her conditions
of confinement, she has failed to overcome the defendants’ qualified immunity defense.
For the reasons set forth above, it is
ORDERED that the Clerk is DIRECTED to correct the docket to identify:
(1) defendant “Cathleen Freeman” by her actual name, Kathleen Freeman; and (2) defendant
“Steve McClendon” by his actual name, James McLendon. It is further
ORDERED that defendants’ June 6, 2013 motion to substitute the affidavit of James
McLendon (Doc. # 46) is DENIED, but its June 18, 2013 motion to substitute McLendon’s
re-executed affidavit (Doc. # 48) is GRANTED. It is further
ORDERED that defendants’ motion for summary judgment (Doc. # 41) is
GRANTED. A separate judgment will be entered.
DONE, this 24th day of September, 2013.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
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