Craig v. Alabama Department of Corrections et al

Filing 22

MEMORANDUM OPINION and ORDER the magistrate judge's report is adopted and the recommendation is accepted with regard to all claims against all dfts EXCEPT: pla's 8th amendment claims against defts Sanders, Headley, Davenport, Culliver, and Thomas for deliberate indifference to unsafe and undersecured conditions in the population dorms of St. Clair Correctional Facility in 2011 and 2012; and (2) the plas negligence and negligent supervision claims against defts Sanders, Headley, Davenpo rt, Culliver, and Thomas for breaching their duties to provide safe and secured conditions in the population dorms of St. Clair Correctional Facility in 2011 and 2012; The report and recommendation is REJECTED with regard to the excepted Eighth Amend ment claims for the reasons set out in this order.The court ORDERS that all claims against all defendants are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A(b), except:(1) the First Amendment retaliation claims against defendants Brow n and Headley, (2) the First Amendment conspiracy to retaliate claims against defendants Brown, Sanders and Richie,(3) the Procedural Due Process claims related to the plaintiffs indefinite isolation segregation against defendants Glass, Despane, Whi te, Hetzel, Bonner, Stinson, Hicks, Specks and Miree, and(4) the Eighth Amendment, negligence and negligent supervision claims against defendants Sanders, Headley, Davenport, Culliver and Thomas for the unsafe and undersecured conditions at St. Clair Correctional Facility from 2011 to 2012.The court further ORDERS that the remaining claims are REFERRED to the magistrate judge for further proceedings. Signed by Judge L Scott Coogler on 3/27/2017. (KAM)

FILED
2017 Mar-27 PM 03:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL JAMES CRAIG,
Plaintiff,
v.
ALABAMA DEPARTMENT
CORRECTIONS, et al.,
Defendants.

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Case No. 2:14-cv-00503-LSC-JEO

MEMORANDUM OPINION AND ORDER
The magistrate judge entered a report on December 5, 2016, recommending
all claims against all defendants be dismissed without prejudice pursuant to 28
U.S.C. § 1915A(b) for failing to state a claim upon which relief can be granted,
with the exception of the following:
(1)

the First Amendment retaliation claims against defendants Brown and
Headley,

(2)

the First Amendment conspiracy to retaliate claims against defendants
Brown, Sanders and Richie, and

(3)

the Procedural Due Process claims related to the plaintiff’s indefinite
isolation segregation against defendants Glass, Despane, White,
Hetzel, Bonner, Stinson, Hicks, Specks and Miree.

(Doc. 19). The magistrate judge further recommended the remaining claims be
referred back to the magistrate judge for further proceedings. (Id. at 84). The
plaintiff filed objections to the report and recommendation. (Doc. 20). He objects

to the recommended dismissal of: (1) his claims for monetary damages against the
defendants in their official capacities, and (2) his Eighth and Fourteenth
Amendment claims for psychological damages against defendants Sanders,
Headley, Davenport, Culliver and Thomas for their deliberate indifference to the
unsafe and undersecured dorm in which he was housed at St. Clair Correctional
Facility in 2011-2012. (Id.).
I.
A.

OBJECTIONS

Objection to the recommended dismissal of the claims for monetary
damages against the defendants in their official capacities
Although his argument is somewhat incoherent, the plaintiff seems to

suggest the magistrate judge only considered his claims for monetary damages
against the defendant Alabama Department of Corrections’ employees in their
official capacities, when he in fact sued these defendants for monetary damages in
their official and individual capacities. (Doc. 20 at 1-3). The plaintiff also argues
he can seek monetary damages from the defendants in their official capacities if
they “abused their official capacities,” citing “Article 4, Section 108 of” the 1901
Alabama Constitution and Code of Alabama, 1975, §§14-3-1, 14-3-50, and 14-114. (Id.).
The plaintiff is incorrect on both counts.

First, the magistrate judge

considered the plaintiff’s claims for monetary damages against the defendants in
their official and individual capacities. Second, and no matter how the plaintiff
2

attempts to characterize it, the defendants are entitled to Eleventh Amendment
immunity from damages liability to the extent they are sued in their official
capacities. See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (Art. I, Sec. 14, of the
Alabama Constitution provides that “the State of Alabama shall never be made a
defendant in any court of law or equity”); Will v. Michigan Dept. Of State Police,
491 U.S. 58, 71 (1989) (a lawsuit against a state official in his official capacity is
the same as a lawsuit against the state itself). As far as injunctive relief, the
plaintiff is no longer incarcerated at any of the facilities made the subjects of his
complaints. Therefore, his requests for injunctive relief are moot.
B.

Objection to the dismissal of the Eighth and Fourteenth Amendment
conditions of confinement claims against defendants Sanders,
Headley, Davenport, Culliver and Thomas for deliberate indifference
to his undersecured and unsafe dorm at St. Clair County Correctional
Facility in 2011 and 2012.
1.

Objections based on the Alabama Constitution, Alabama
Statutory law, and Administrative Regulations

The plaintiff points to “Art. I Sec. 15” of the Alabama Constitution and
“Alabama Penal” Code §§ 14-3-1, 14-3-50, 14-3-51, and 14-11-4. (Doc. 20 at 3). 1
He then objects “to the ‘asinine, subjective, conclusionary (sic) myth,’ cloaked in

1

Although the plaintiff argues throughout his objections that he “cited” to various matters in his
pleadings, the plaintiff makes no effort to instruct the court where these citations are in his
pleadings by document and page number.
3

legal jargon,”2 that he did not state a plausible cruel and unusual punishment claim
concerning the lack of security in Q1 dorm St. Clair Correctional Facility (SCCF)
in 2011 and 2012. (Id. at 3) (citing Doc. 19 at 25 ‘report and recommendation’).
In support of the same objection, the plaintiff also declares he cited numerous
Alabama Department of Corrections Administrative Regulations. (Id. at 4, 6).
a.

Article 1, Section 15, Alabama Constitution

The plaintiff did not rely upon Article 1, Section 15 of the Alabama
Constitution in connection with his claims about the 2011-2012 unconstitutional
conditions of his confinement in SCCF’s Q1 dorm. The only mention of the
Alabama Constitution appears in the plaintiff’s second amended complaint, where
he perfunctorily declares that a Jefferson County Circuit Court Judge sentenced
him to life in prison with the possibility of parole “[p]ursuant to Article I-Section
6, Alabama 1901 Constitution.” (Doc. 13 at 11). Additionally, Article 1, Section
15 of the Alabama Constitution provides “[t]hat excessive fines shall not be
imposed, nor cruel or unusual punishment inflicted.” Thus, it is superfluous to the
plaintiff’s Eighth Amendment claim.

2

While the plaintiff may make good faith arguments to point out any error(s) of fact or law, he is
advised that scurrilous commentary is not appropriate and should not be made in any future
pleadings.
4

b.

Alabama Code §§ 14-3-1, 14-3-50, 14-3-51, 14-11-4 3

The plaintiff did not mention Alabama Code §§ 14-3-1, 14-3-50, 14-3-51,
and 14-11-4 in his complaints. Thus, the statutes cannot be used to argue errors of
fact or law in the magistrate judge’s report and recommendation.
The plaintiff did request the court pursue federal criminal charges against
defendant Culliver and the other defendants, but in so doing wrote, “All
A.L.D.O.C. Corrections officers, pursuant to Ala. Code 1975-Title 41 & 14,” are
“classif[ied] as ‘peace officers,’ with powers to arrest.” (Doc. 1 at 69-70). He
declares Culliver and other defendants failed to report that defendants Sanders and
Headley withheld evidence in the John Rutledge murder investigation, in violation
of “§14-3-9, Ala. Code, 1975.” (Id. at 70). Section 14-3-9 sets forth criminal
penalties for correctional employees who fail “to report all violations of the law
relating to prisons.”
Regardless, this court has no authority to refer the defendants for federal or
state criminal prosecution. To the extent the plaintiff may be attempting to argue
that citation to several state criminal penalties satisfies his burden to state a
The criminal penalties set forth in Alabama Code §§ 14-3-1, 14-3-50, and 14-3-51 were
repealed effective April 15, 2015. Section 14-11-4 “allows criminal penalties for ‘[a]ny guard . .
. having the charge, management or control of any convict who fails to discharge any of the
duties imposed upon him by law.” Laube v. Campbell, 215 F.R.D. 655. 658 (M.D. Ala. Mar. 27,
2003).
3

5

sufficient factual basis for his conditions of confinement claim at SCCF, his
objections are overruled. Blanket citations to statutory penal code sections are
inadequate substitutes for the specific factual allegations necessary to set forth an
Eighth Amendment conditions of confinement claim.
c.

Objections based on Administrative Regulations

The plaintiff argues the magistrate judge erred in reporting he “did not cite
any specific law, or regulation, on ‘guards failing to secure dorms [and] be on their
posts.” (Doc. 20 at 6). He asserts that he cited several provisions of the Alabama
Department of Corrections’ Administrative Regulations (AR) to support his
conditions of confinement claim: (1) AR “18, ‘Accountability logs;’” (2) AR 201,
‘Personnel Files;’” and (3) AR “208-Sec. V, # 28, ‘Officer Posts.’” (Doc. 20 at 4,
6).

The plaintiff makes the incoherent and conclusory argument that the

“regulations cited, are legally bound by ‘color of state law,’ via-Administrative
Procedures Act-Ala. Code Title 41,” and the criminal penalties addressed in
section I.B.1.b. supra. He declares he presented these citations to support his
allegations that “guards were not on their ‘posts’” when John Rutledge was
murdered in April 2012 and he was robbed in May 2012, but the guards were given
“zero reprimands . . . for failing in their duties to guard and protect.” (Id. at 4).
The plaintiff declares, “If that is not stating a legitimate claim, of ‘supervisory

6

retention,’ ‘neglect,’ and ‘deliberate indifference’” that can be substantiated by
records, “then what is?” (Id. at 5).4
First and foremost, the plaintiff’s objections alter the actual allegations he
made in his complaint. The plaintiff did not allege in his complaint that John
Rutledge was murdered in April 2012 and he was robbed in May 2012 because the
officers on duty abdicated their posts and were not reprimanded for their failures.5
Instead, the complaint alleges these incidents occurred because Q1 dorm had “zero
hall rovers at a desk 24 hours per day, and floor rovers only come through to
conduct shakedowns for contraband, count, [and] occasionally . . . dorm security
walk through[s].” (Doc. 1 at 6). Indeed, that allegation is the linchpin of his claim
that Q1 dorm was undersecured, because he compares the security level afforded
population dorms such as Q1 dorm to the “heavily secured” honor dorms, and
declares that the ADOC “has a mandated [and] constitutional duty” to provide the
population dorms with the same type of security afforded the honor dorms, i.e., “a
rover at [a] desk in the hall at all times, [and] rovers who frequent the floors.”
(Id.).

4

‘Neglect’ is not a legal claim. Since the plaintiff’s objections are based on the Eighth and
Fourteenth Amendments, it appears he means ‘supervisory liability’ when he refers to
“supervisory retention.” Nonetheless, and to the extent ‘supervisory retention’ is an objection
based on state law grounds, the court addresses the objection in section II. B.4., infra.
5

In addition to his failure make these allegations, the plaintiff did not identify as defendants the
officer(s) who were on duty at the time he was robbed of his store goods or make any Eighth or
Fourteenth Amendment claims against those officers.
7

Second, it is false that the plaintiff cited in his complaints to the specific
Administrative Regulations he now presents in his objections. He did not.
Finally, the plaintiff has mischaracterized the recommendation, as the
magistrate judge never reported the plaintiff had failed to “cite any specific law, or
regulation, on ‘guards failing to secure dorms [and] be on their posts,” as the
plaintiff now argues. (Doc. 20 at 6). The magistrate judge did point to the
plaintiff’s allegation that Lt. Graham admitted during questioning at his January
12, 2013, disciplinary hearing that “St. Clair dorms L through Q did ‘not have
security rovers, at all times, on the floor, as required by legal standards.’” (Doc. 19
at 17) (quoting Doc. 1 at 14). The magistrate judge also correctly reported the
plaintiff did not detail “the source of these standards,” but did assert “staff
accountability logs” would “corroborate [Graham’s] testimony.” (Id.).
Having clarified the record in addressing the foregoing objections, the court
turns to the plaintiff’s argument that he stated a plausible Eighth Amendment
claim.
2.

Objections based on whether a plausible Eighth Amendment
conditions of confinement claim has been alleged
a.

Objective prong- constitutional deprivation

The plaintiff argues his pleadings contain “specific detailed incidents”
sufficient to show Q1 dorm was undersecured and unsafe from 2011-2012 and
“beyond the time” period “of Q1,” which the court interprets as referring to the
8

plaintiff’s SCCF dorm housing prior to 2011-2012. (Doc. 20 at 3-5).6 The court
begins first with Q1 dorm years 2011 and 2012, the years for which the plaintiff
expressly requests damages (doc. 1 at 61) and the years examined by the
magistrate judge.
i.

Q1 Dorm: 2011-2012

In his objections, the plaintiff points to the April 2012 murder of John
Rutledge in Q1 dorm and the May 2012 robbery of his store goods in Q1 dorm,
both of which occurred “while zero guards were nowhere to be found for ‘hours.’”
(Doc. 20 at 4). He declares accountability logs will show the assigned guards were
not on post during these two incidents, nor were they reprimanded for their
failures.

(Id.).

However, as set forth supra, the plaintiff did not make this

particular allegation concerning the accountability logs in his pleadings.
The magistrate judge considered the April 2012 Rutledge murder and the
plaintiff’s May 2012 robbery when analyzing the plaintiff’s allegations that Q1
dorm was undersecured and unsafe during 2011 and 2012, the years for which the
plaintiff claims damages for psychological injury. (Doc. 19 at 29; Doc. 1 at 61).
The magistrate judge also reported the plaintiff’s allegation that he “witnessed
countless, brutal violent incidents where inmates were left unsupervised, to
6

To the extent the plaintiff is suggesting a time period after 2012, he admits he was no longer
incarcerated at SCCF after 2012. Thus, SCCF conditions after 2012 are immaterial and
irrelevant to his claims, and he cannot rely on ADOC incident reports and files created, news
reports published, or a Department of Justice investigation initiated “since” i.e., at some
unknown time after his “lawsuit” was filed in March 2014, to support this claim. (Doc. 20 at 7).
9

become mere ‘batons of unchecked violent pupils,’” but determined the plaintiff
had revealed no other specific incidents in Q1 dorm other than the two already
discussed.

(Doc. 19 at 27, 29).

The magistrate judge recommended these

allegations were insufficient to establish “‘omnipresent inmate on inmate violence,
i.e. unsafe conditions, . . . in Q1 dorm during the applicable time period.” (Doc. 19
at 29).
The magistrate judge excluded the October 15, 2011, death of inmate Jabari
Bascomb at SCCF from the specific facts alleged by the plaintiff on the grounds he
did not allege the murder occurred in Q1 dorm. (Doc. 19 at 29 n. 4) (citing Doc. 1
at 23). The plaintiff does not dispute the Bascomb murder did not occur in Q1
dorm, but has generally objected on the basis that he did provide specific facts to
support this Eighth Amendment claim. 7
This court is of the opinion that restricting the plaintiff’s claims of pervasive
violence and lack of security to the plaintiff’s 2011 and 2012 predicament in Q1
dorm is too narrow an approach. Since it is important for the plaintiff to show the
fear of constant violence is ‘pervasive,’ the court’s focus should be broadened to
all population dorms, as the plaintiff alleges all SCCF population dorms had the
same lax security as his own.

Taking a liberal approach to the plaintiff’s

7

This court has independently reviewed the plaintiff’s pleadings and finds that the plaintiff also
declares inmate Jamie Bell was murdered, but does not state when it occurred. (Doc. 13 at 12).
Therefore, it shall not be considered.
10

pleadings, the court finds the plaintiff’s allegations concerning the Bascomb
murder in October 2011 should be considered in connection with the objective
prong of the plaintiff’s Eighth Amendment claim.
As for the plaintiff’s reliance on the accountability logs to support the
allegations he actually presented in his complaint, the magistrate judge accepted,
as does this court, the plaintiff’s representation that the logs would show Q1 dorm
did “‘not have security rovers, at all times, on the floor.’” (Doc. 19 at 17) (quoting
Doc. 1 at 14). The plaintiff did not specifically object to the magistrate judge’s
report that he “does not declare that rovers were never stationed for any time
periods in the Q1 dorm hall, and . . . provides no detail as to what he means by the
‘occasional’ walk-throughs in Q1 dorm versus the ‘frequent’ walk-throughs
conducted in the honor dorm.” (Id. at 31). Instead, he alters his allegations,
asserting the lack of security existed because guards do not man their posts, but are
given “zero reprimands . . . for failing in their duties to guard and protect.” (Doc.
20 at 4).
The ‘lack of security’ allegations in the plaintiff’s pleadings are almost
irreconcilable with the altered allegations in the plaintiff’s objections. Not once in
his pleadings did the plaintiff simply declare that the factual basis for the alleged
lack of security is that guards did not man their assigned posts but were not
reprimanded for it. What the plaintiff is really doing in his objections is asking the
11

court to substitute the allegations in his objections for those in his complaint, or
accept that the allegations in his objections are what he meant by the allegations in
his complaint. The court will, in this one instance, accept that the allegations in the
objections are a clarification of what the plaintiff meant in his pleadings.
As such, the factual allegations supporting the lack of security are follows.
Although the population dorms and honor dorms were officially assigned the same
security levels: (1) repeated inmate-on-inmate incidents occurred in the unsafe
population dorms because security officers habitually failed to man their assigned
posts, thus notifying the defendants of the need to correct the issue, or (2) in
reality, maintaining lax security in the unsafe population dorms was the custom or
policy of the defendants. See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.
2003). 8
ii.

Beyond the time period in Q1

The plaintiff argues he “cited, precise, pleaded facts,” as to how long he
lived in such” an “environment at St. Clair, beyond the time period of ‘Q-1.’”
(Doc. 20 at 5). He points to inmate Michael Costello, who was assaulted for hours
at SCCF in 2006 or 2007 “while guards left the dorm he was in ‘unguarded,’ and
the cube officer slept.” (Id. at 9). In his second amended complaint, the plaintiff
8

The court acknowledges these scenarios include the causation element of the plaintiff’s
supervisory liability claim against the defendants. Nonetheless, it illustrates the only possible
reconciliation between the pleadings and the objections as to the factual basis for the alleged lack
of security.
12

describes the almost three hour inmate-on-inmate assault Costello endured because
there were “zero guards inside the dorm” and the cube officer was sleeping. (Doc.
13 at 12). He offers this fact to support his allegation that “‘guards do not rover
the dorms 24 hours a day.’” (Id.).
Although not specifically mentioned in his objections, the plaintiff also
alleges in his second amended complaint that he was being housed in a segregation
unit on May 28, 2009, when a mentally ill SCCF inmate named Bassett stabbed
him in the shower because the cubicle officer decided to allow inmates to shower
without the presence of a security guard. (Id. at 13). The plaintiff could have
chosen to forego a shower, but decided to go ahead because it would be two days
before he was afforded another opportunity. (Id.). According to the plaintiff,
Bassett was “a known ‘lunatic’ willing to cut his own penis off [just a week before
he stabbed the plaintiff,] yet was housed among regular inmates.” (Id.). The
plaintiff declares that were he to submit affidavits, they will show “officers [were]
buying knives from Bassett for trade for tobacco products.” (Id.). The plaintiff
had to write I & I himself to report the stabbing, and most of the SCCF officials
attempted to downplay the incident (even to the point of initially denying the
plaintiff a body chart to document his injuries). (Id. at 14). The plaintiff does not
seek damages for the 2009 stabbing, but presents it to show that violence and lack
of security at SCCF in 2011 and 2012 was not an anomaly. (Id.).
13

The court finds that these two incidents should not be considered when
analyzing whether the SCCF population dorms were pervasively violent and
undersecured in 2011-2012. The incidents are isolated, the 2006-2007 Costello
incident is remote from the time period made the basis of his complaint, and the
plaintiff’s May 2009 stabbing did not occur in the SCCF population dorms, but in a
segregation unit.
iii.

Conclusion

“A prisoner has a right to be protected from the constant threat of violence.”
Jones v. Diamond, 636 F.2d 1364, 1373 (5th Cir. 1981).9 “‘A pervasive risk of
harm may not ordinarily be shown by pointing to a single incident or isolated
incidents, but it may be established by much less than proof of a reign of violence
and terror.” Shrader v. White, 761 F.2d 975, 978 (4th Cir. 1985) (quoting Withers
v. Levine, 615 F.2d 158, 161 (4th Cir. 1980)). The court finds the plaintiff has
alleged enough specific facts to plausibly satisfy the objective prong of his
conditions of confinement claim at SCCF from 2011 to 2012. Additionally, the
plaintiff asserts “complete discovery” of the Alabama Department of Corrections’
internal files will provide corroborative evidence of “the perpetual, hazardous, lifethreatening, unguarded” conditions he suffered at SCCF in 2011-2012. (Doc. 13 at
9

The Eleventh Circuit adopted as binding precedent all former Fifth Circuit decisions issued
prior to October 1, 1981, Bonner v. City of Prichard, 661 F.2d 1206,1209 (11th Cir. 1981) (en
banc).
14

14). “[W]here a pro se pleading alleges specific facts, it should not be dismissed
unless it appears ‘beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’” Riley v. Jeffes, 777 F.2d
143, 148 (3rd Cir. 1985) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)
(internal citation omitted)). The plaintiff has provided specific facts to support the
objective prong of this claim.
b.

Subjective Prong - Deliberate Indifference

The magistrate judge read the plaintiff’s complaints to allege that Captain
Sanders, Warden Headley, Warden Davenport, Director/Coordinator Grant
Culliver and Prison Commissioner Kim Thomas “became fully aware” of the lack
of security at SCCF “after acknowledgment of back to back periodic violent
incidents” in “G-yard” dormitories, including the October 2011 murder of Jabari
Leon Bascomb and the John Rutledge murder in April 2012. (Doc. 19 at 27-28,
31) (citing Doc. 1 at 23-24, 59; Doc. 13 at 11). However, according to the
plaintiff, these defendants “were deliberately indifferent because, unlike inmates in
the drug program and honor dorms, they did not station a rover at a desk in the hall
of Q1 dorm at all times, and the rovers did not frequent the floors as often.” (Doc.
19 at 28) (citing Doc. 1 at 6, 24).
The court has found one additional allegation concerning defendant Thomas
in the plaintiff’s complaint. He alleges that Thomas, “since the beginning of his
15

tenure, ... has fully known, the unsafe conditions at St. Clair, and understaffing,
leaving dorms vulnerable, adversely becoming havens of violence.” (Doc. 1 at
60). The plaintiff does not provide any specific facts to support this assertion. In
any event, the magistrate judge reported Prison Commissioner Kim Thomas’
response to the unsafe conditions at St. Clair was to tour the facility with press
members in March 2012, and issue a press release in June 2012 declaring budget
cuts and underfunding were the cause of the conditions. (Doc. 19 at 31) (citing
Doc. 1 at 59-60).
The magistrate judge reported the plaintiff had “made no mention” of any
particular response from Captain Sanders, Warden Headley, Warden Davenport
and Director Grant Culliver. (Id.). Instead, he determined that the plaintiff had
alleged Thomas received additional funding during 2012, but there were “zero
significant changes in the areas of understaffed, undersecured dorms.” (Doc. 19 at
31) (quoting Doc. 1 at 60).
The magistrate judge concluded the plaintiff had failed to establish the
defendants were both aware of a substantial risk of harm to him in Q1 dorm, and
failed to reasonably respond to that risk. (Doc. 1 at 33). He wrote,
The plaintiff describes no particular incident(s) of inmate on
inmate violence in Q1 dorm after April 27, 2012, but even if the court
presumes further incidents occurred, the plaintiff has not alleged facts
to establish that the response by each defendant was not reasonable.
Instead, he asserts the changes made were insignificant, but does not
set forth what those changes were or associate any of the defendants
16

with the changes. He asks the court to decide that the unknown
changes were unreasonable because the plaintiff’s desired method of
correcting the problem, which he states is required by an unidentified
legal standard, was not adopted. This the court cannot do. Indeed, the
only incident described by the plaintiff post-April 2012 is that he was
robbed but not harmed in May 2012, and Captain Sanders
immediately punished the perpetrators with isolation and validated
them as enemies. (Doc. 13 at 16).
Further, while the plaintiff was initially unsuccessful in
applying for the honor dorm, after he completed an entry prerequisite
in late October 2012, Warden Headley approved his transfer. (Doc. 1
at 7-8). The plaintiff did not return to a population dorm at St. Clair
after October 2012[.]
(Doc. 19 at 32).
In his objections, the plaintiff argues the magistrate judge “obfuscat[ed]” and
“blatantly ignor[ed]” facts because he alleges in his complaints that the defendants
“were fully aware of the” unsafe and undersecured conditions at SCCF for “seven
years” prior to inmate Rutledge’s April 2012 murder and his robbery in May 2012.
(Doc. 20 at 9). The plaintiff did not make such a clear statement in his pleadings,
and the court is at a loss as to how he arrived at the figure.
Nonetheless, as set out in the previous subsection, in his second amended
complaint, the plaintiff did point to the 2006-2007 assault of inmate Michael
Costello. (Doc. 13 at 12). In his objections, the plaintiff declares he did so to
show defendant Sanders, an administrator at the time, knew the assault occurred
because corrections officers left the dorm unguarded while the cube officer slept.
(Doc. 20 at 9). From this platform, the plaintiff declares this incident notified
17

Sanders of the pervasive risk of harm at SCCF and that guards were leaving their
posts unmanned as early as 2006 or 2007. (Doc. 20 at 9). Moreover, “Costello
filed a lawsuit alleging Eighth and Fourteenth Amendment claims against Alabama
Department of Corrections officials,” and the Department of Corrections and
Parole Board responded by “mitigat[ing]” a “tailored a remedy” for the violations
in the form of “parole.” (Doc. 13 at 12). 10 The plaintiff then declares “equal
protection” and “cruel and unusual punishment” was upheld for Costello and
“should be upheld for him.” (Doc. 20 at 10).
The court has examined the plaintiff’s pleadings. (Docs. 1, 3, 13). Nowhere
does the plaintiff identify defendant Sanders as the administrator at the time inmate
Costello was attacked, nor does he make any connection between Sanders or any
other named defendant with the attack. Additionally, and as set forth in the
objective prong of the analysis, supra, the Costello assault is but one incident and
it occurred at least four to five years before the time period applicable to the
plaintiff’s claims in this case. The same analysis also holds true with regard to the
plaintiff’s May 2009 assault from a subjective prong standpoint.11

10

Because of the way the plaintiff organized his own claims, the magistrate judge considered the
Costello incident to be part and parcel of his claim that his sentence had been “undermined.”
(Doc. 19 at 82-84).
11

The May 2009 stabbing incident is located in the same section of his pleadings as the Costello
incident. (Doc. 13 at 11-17, Section “L”).
18

The court does find, however, that the time period utilized by the magistrate
judge was too narrow. If Commissioner Thomas himself toured SCCF in March
2012 with members of the press, it stands to reason Thomas was aware of the
conditions at SCCF for a period of time before that date. Thomas blamed the
conditions on budget cuts, which is a clear indication they were systemic for
purposes of 1915A review. Since the facility tour occurred in March 2012, the
budget cuts to which he was referring had to have been, at the very least, cuts
during 2011 and 2012, the years for which the plaintiff claims damages. Finally, it
is a reasonable inference that if Thomas, as the Commissioner of the Department
Corrections, was aware of the substantial risks of harm to population inmates at
SCCF in 2011-2012, the subordinate defendants were aware of the conditions
earlier than that. The court finds there is a reasonable inference from the facts that
notice for the defendants rests on: (1) repeated inmate incidents occurring because
security officers habitually failed to man their post in unsafe population dorms,
and/or (2) decision(s) to implement a custom or policy of lax security in the unsafe
population dorms.
The court also finds that, for screening purposes, the plaintiff has adequately
pleaded facts to show the defendants refused to respond reasonably to the known
risk.

Construed broadly, the plaintiff asserts the defendants implemented no

changes or zero significant changes during the time period at issue. This is an
19

unreasonable response to the risk, particularly when it is clear the defendants did
not try to implement or enforce the security measures enforced in the honor dorms.
The plaintiff’s allegations are sufficient to infer that implementation or
enforcement of even a portion of the honor dorm security measures in the
population dorms would have taken only a modest amount of time, effort and
funds, but the defendants continually refused to do so despite the substantial risk of
harm to the plaintiff.
c.

Conclusion

For the reasons set out above, the magistrate judge’s report and
recommendation is rejected as to this claim.
3.

Objections based on whether the plaintiff stated a plausible
Fourteenth Amendment conditions of confinement claim
a.

Substantive Due Process

The plaintiff objects in conclusory fashion to the dismissal of his Fourteenth
Amendment substantive due process claim.

However, “[w]here a particular

Amendment ‘provides an explicit textual source of constitutional protection’
against a particular sort of government behavior, ‘that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing
these claims.’” Albright v. Oliver, 510 U.S. 266, 813 (1994) (quoting Graham v.
Connor, 490 U.S. 386, 395 (1989)).

The Eighth Amendment is specifically

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intended to provide a plaintiff relief when unconstitutional conditions of
confinement are alleged. The plaintiff objection is overruled.
b.

Equal Protection

To the extent the plaintiff is attempting to state an Equal Protection claim
based upon Costello’s circumstances, the claim shall not be considered. The
plaintiff did not present such a claim in his pleadings, and was notified on August
14, 2104, that no new amendments would be allowed. (Doc. 14).
Alternatively, the Equal Protection clause does not require that all decisions
regarding inmate housing 12 or parole be the same. To establish an equal protection
claim, a prisoner must 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

12

Although he voices no objections, to the extent the plaintiff may have been attempting to state
an Equal Protection claim against defendant Davenport (the plaintiff’s allegations are restricted
to asserting the claim in behalf of deceased inmate Rutledge) for Davenport’s failure to provide
the same level of security to population inmates as honor dorm inmates at SCCF, (doc. 1 at 7677), the plaintiff’s claim also fails. The plaintiff alleges Davenport is “totally responsible for
security” [and] reasonable legal safety mandates of the entire prison, yet” he failed to ‘equally
protect all inmates with the same security as the Faith Based Honor Dorm.” (Id.). The plaintiff
infers population dorms inmates are similarly situated to honor dorm inmates. The only
similarities between the two groups are that they both house inmates. The plaintiff’s own
pleadings show that there are many requirements to be housed in the honor dorm, and these
appear to be based on good behavior and rehabilitative lifestyle choices. (Id. at 7-8). The
pleadings as a whole display the opposite is true of population dorm inmates. These differences
show the inmates are not similarly situated. While the plaintiff observes the honor dorms are
“predominately white” and the population dorms are “80% black,” (id.at 6), he does not allege
present any facts to show that defendant Davenport purposely decided to provide less security to
population inmates on the basis of race or any other constitutionally impermissible reason.
Therefore, this claim is due to be dismissed.
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some other constitutionally protected basis.”

Sweet v. Secretary, Dept. of

Corrections, 467 F.3d 1311, 1318-1319 (11th Cir. 2006) (citing 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)).
The plaintiff and inmate Costello are not similarly situated because the
plaintiff was not subjected to the vicious assault that purportedly led to Costello’s
parole. Further, the plaintiff has not alleged facts to establish that any failure to
consider him for parole was based on “an unjustifiable standard such as race,
religion, or other arbitrary classification.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.
Ct. 501, 506 (1962). The law is well settled that the mere differential treatment of
inmates fails to constitute a violation of the Equal Protection Clause. E & T Realty
v. Strickland, 830 F.2d 1107 (11th Cir. 1987); Jones v. Deese, 2008 WL 906574
(2008). Thus, the plaintiff’s equal protection is due to be dismissed under ' 1915A
for failure to state a claim.
4.

State law claims

Although the plaintiff’s objections contain the term ‘neglect’ and the phrase
‘supervisory retention’ in connection with his conditions of confinement claims
against the SCCF defendants, he does not clearly and succinctly assert that he
made state law claims against the defendants and he is objecting to the dismissal of
those claims. Review of the plaintiff’s pleadings provides little assistance as they
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are a jumbled composition of excess and disjointed legal and factual words and
phrases.13

Regardless, and in this once instance, the court will consider an

objection to the dismissal of any intended state law negligence and negligent
supervision and retention claims against defendants Sanders, Headley, Davenport,
Culliver and Thomas, with the underlying allegations being the unsafe conditions
and lack of security at SCCF from 2011 to 2012.
To prove negligence in Alabama, the plaintiff must show “(1) a duty to a

13

The court has perused the plaintiff’s pleadings at length to find clearly delineated state law
claim(s) against defendants Sanders, Headley, Davenport, Culliver and Thomas pertaining to
SCCF conditions in 2011-2012. The plaintiff made no mention of any state tort law claims
against Sanders in his complaint. (Doc. 1 at 30-32). The plaintiff did set forth state law claims
wrongful death, general negligence, negligent retention and supervision and negligent liability
against defendants Headley and Davenport, but these claims were made in behalf of deceased
inmate Rutledge (id. at 28, 77), and the plaintiff is not authorized to represent another inmate or
act in the deceased inmate’s behalf. The plaintiff began his claims against defendant Culliver by
declaring he was “liable for deliberate indifference, and negligent liability, depriving (sic) the
plaintiff of federal guaranteed protections.” (Id.). In the allegations following, the plaintiff does
not mention negligence in his civil claims against Culliver, (id.at 63-68), the allegations
supporting those civil claims do not specifically concern the conditions of confinement at SCCF
(id.), and his demand for monetary relief from Culliver is based on the First, Fifth, Eighth and
Fourteenth Amendment violations, (id. at 68-69). As for defendant Thomas, the plaintiff makes
state law tort law claims in Rutledge’s behalf, and in his own behalf declares in conclusory
fashion that Thomas “is liable for negligent liability, supervisory liability, deliberate
indifference, deprived (sic) the plaintiff of 8th and 14th Amendment protections.” (Id. at 61).
The plaintiff does name the SCCF defendants in Section L of his second amended
complaint. (Doc. 13 at 11). The plaintiff does not object to the magistrate judge’s interpretation
of the claim as presenting the novel theory that various unconstitutional claims in his complaint
against the St. Clair defendants and other defendants “undermined” his sentence. Toward the
end of Section L, the plaintiff asserts, “The defendants, all, via-supervisory retention, culpable
neglect, general negligence[], deliberate indifference, have [and] continue to undermine the
original jurisdiction of the Jefferson County Circuit Court sentencing.” (Id. at 17). He demands
a safe environment or a “mitigate[d]. . . remedy from the environment,” presumably in reference
to the mitigated tailored remedy (parole) received by inmate Costello. (Id.). Finally, the plaintiff
demands compensatory and punitive from defendants for constitutional violations and state torts.
(Id.).
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foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4)
damage or injury.” Crowne Investments, Inc. v. Bryant, 638 So.2d 873, 878 (Ala.
1994) (citation omitted). “To sustain a claim for negligent or wanton hiring or
supervision, training and/or retention, the plaintiff must establish that the allegedly
incompetent employee committed a common-law, Alabama tort.” Leahey v.
Franklin Collection Serv., Inc., 756 F. Supp. 2d 1322, 1328–29 (N.D. Ala. 2010)
(citations and quotation marks omitted).
The facts supporting the Eighth Amendment claim against defendants
Sanders, Headley, Davenport, Culliver and Thomas concerning the unsafe and
undersecured conditions in SCCF population dorms between 2011-2012 are
sufficient to state plausible negligence and negligent supervision claims against the
defendants for breach of a legal duty owed to him, i.e., maintaining a relatively
safe and secure environment for the inmates in their custody. As a proximate
cause of the breach, the plaintiff alleges he suffered harm by “indefinite living in a
penitentiary subjected to death, [and] constant imminent threat to life, for lack of
reasonable safety and security.” (Doc. 13 at 11). See AALAR, Ltd., Inc. v. Francis,
716 So. 2d 1141, 1147 (Ala. 1998) (“[T]he current state of Alabama law . . . limits
recovery for emotional injury to those plaintiffs who sustain a physical injury as a
result of a defendant’s negligent conduct, or who are placed in immediate risk of
physical harm by that conduct.”).

Accordingly, defendants Sanders, Headley,
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Davenport, Culliver and Thomas shall be directed to respond to the state law
negligence and negligent supervision claims against them.

II.

CONCLUSION

Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation, and the objections thereto, the
magistrate judge’s report is hereby ADOPTED and the recommendation is
ACCEPTED with regard to all claims against all defendants EXCEPT: (1) the
plaintiff’s Eighth Amendment claims against defendants Sanders, Headley,
Davenport, Culliver, and Thomas for deliberate indifference to unsafe and
undersecured conditions in the population dorms of St. Clair Correctional Facility
in 2011 and 2012; and (2) the plaintiff’s negligence and negligent supervision
claims against defendants Sanders, Headley, Davenport, Culliver, and Thomas for
breaching their duties to provide safe and secured conditions in the population
dorms of St. Clair Correctional Facility in 2011 and 2012.
The report and recommendation is REJECTED with regard to the excepted
Eighth Amendment claims for the reasons set out in this order.
The court ORDERS that all claims against all defendants are DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1915A(b), except:
(1)

the First Amendment retaliation claims against defendants Brown and
Headley,
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(2)

the First Amendment conspiracy to retaliate claims against defendants
Brown, Sanders and Richie,

(3)

the Procedural Due Process claims related to the plaintiff’s indefinite
isolation segregation against defendants Glass, Despane, White,
Hetzel, Bonner, Stinson, Hicks, Specks and Miree, and

(4)

the Eighth Amendment, negligence and negligent supervision claims
against defendants Sanders, Headley, Davenport, Culliver and
Thomas for the unsafe and undersecured conditions at St. Clair
Correctional Facility from 2011 to 2012.

The court further ORDERS that the remaining claims are REFERRED to
the magistrate judge for further proceedings.
DONE and ORDERED on March 27, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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