Patton v. Etowah County, Alabama et al

Filing 27

MEMORANDUM OPINION AND ORDER GRANTING 23 MOTION to Dismiss Amended Complaint filed by Scott Hassell, Mike O'Bryant and Todd Entrekin, DENYING 21 MOTION to Dismiss Amended Complaint filed by Jonathan Shadwrick. Signed by Judge Virginia Emerson Hopkins on 1/5/2016. (JLC)

FILED
2016 Jan-05 PM 02:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
KENNETH WAYNE PATTON,
Plaintiff,
v.
ETOWAH COUNTY, ALABAMA,
TODD ENTREKIN, JONATHAN
SHADWRICK, SCOTT HASSELL,
and MIKE O’BRYANT,
Defendants.

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MEMORANDUM OPINION AND ORDER
This is an action under 42 U.S.C. § 1983 alleging that Plaintiff Kenneth
Wayne Patton’s (“Patton”) constitutional rights were violated while in custody at
the Etowah County Detention Center (“ECDC”). Pending before the court are two
motions to dismiss Patton’s Amended Complaint. (See docs. 21 & 23). The first is
by Defendant Jonathan Shadwrick (“Shadwrick”), doc. 21, the second by
Defendants Scott Hassell (“Hassell”), Mike O’Bryant (“O’Bryant”), and Todd
Entrekin (“Entrekin”) (collectively, “Supervisors”). (Doc. 23). The second motion
will be GRANTED and the complaint dismissed as to Hassell, O’Bryant, and
Entrekin, but the claim against Shadwrick will survive. Accordingly, his motion
will be DENIED.

I. Factual and Procedural Background
Since this is a motion to dismiss, all of the facts alleged in the complaint are
taken to be true. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007).
The parties in the case are Patton, a man who was assaulted while in custody at the
ECDC, doc. 20, ¶ 4, Entrekin, who was the Etowah County Sheriff at the time of
the events described in the complaint, id., ¶ 5, Hassell, Chief Deputy of Detention
at the ECDC, id., ¶ 6, O’Bryant, who was a Compliance Sergeant at the ECDC, id.,
¶ 7, and Shadwrick, the booking deputy at the ECDC. (Id., ¶ 8). All defendants are
sued in their individual capacities only, id., ¶¶ 4–8, and Entrekin, Hassell, and
O’Bryant are alleged to have been responsible for the promulgation and
enforcement of policy at the ECDC and its management. (Id., ¶ 4–7).
Patton was arrested on April 9, 2013 for a domestic violence offense and
was brought to the ECDC for booking. (Id., ¶ 9). While being booked, Patton twice
informed Shadwrick that he was a correctional officer and requested protective
custody through administrative segregation; i.e., segregation from the ECDC’s
general population. (Id., ¶¶ 10 & 12). Hassell authored the ECDC’s Policy and
Procedure (“The Policy”) governing administrative segregation of certain inmates,
including for the inmate’s safety, and this policy binds all members of the ECDC
staff. (Id., ¶¶ 13–17). The Policy indicates law enforcement officers may qualify
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for administrative segregation, but before a detainee may be placed in segregation,
the Officer in Charge and Classification Sergeant are to review the case to
determine whether it is warranted. (Id., ¶¶ 18 & 20–21). No such review was
conducted in Patton’s case. (Id., ¶ 19).
At the time of booking, Patton was intoxicated, verbally abusive, and
directed profanity at ECDC personnel and certain inmate workers, Denzil Beck
(“Beck”) and Henry Kicklighter. (Id., ¶ 22). Specifically, Patton referred to them as
“f***boys.” (Id., ¶ 23). Thereafter, Shadwrick placed Patton into holding cell #7
with Moses Reyes, who was known to Shadwrick to have violent propensities. (Id.,
¶¶ 24–27). Shadwrick intended the placement in holding cell #7 to punish Patton
for his disorderly conduct and foul language. (Id., ¶ 33).
After his placement in holding cell # 7, Beck punched his fist into his hand
to signal to Reyes to attack Patton; he did so in clear sight of Shadwrick. (Id., ¶
35). In short order, an argument ensued between Patton and Reyes that steadily
escalated, and despite overhearing the commotion, Shadwrick did not remove
Patton from the cell. (Id., ¶ 38). Reyes then began to beat Patton, and Shadwrick
delayed calling emergency personnel to stop the beating. (Id., ¶ 39). As a result of
the beating, Patton suffered cuts and lacerations to his face, a broken tooth and
nose, and he required surgery. (Id., ¶ 41). He also suffered unnecessary pain and
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suffering and mental distress. (Id.).
The complaint further alleges that Entrekin, Hassell, and O’Bryant ratified
and approved Shadwrick’s conduct because they failed to discipline him after an
internal investigation. (Id., ¶ 42). Patton further asserts that Shadwrick’s conduct
was consistent with a de facto jail policy of failing to administratively segregate
and provide protective custody to corrections officers who are threatened by other
inmates which is evidenced by internal investigations, documents, inmate
disciplinary reports, and statements from ECDC personnel that they regularly
failed to segregate detainees who requested protective custody. (Id., ¶ 42–45).
II. Discussion
42 U.S.C. § 1983 provides a cause of action for individuals whose
constitutional rights are violated under color of state law. Relevant here, a detainee
pleads a violation of his Fourteenth Amendment rights1 when the complaint
reflects 1) a substantial risk of bodily harm to the prisoner, 2) that the defendants
were deliberately indifferent to that risk, and 3) their deliberate indifference caused
the plaintiff’s harm. Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir.

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Where the inmate is merely detained pretrial, rather than pursuant to a lawful sentence,
it is the Fourteenth Amendment, rather than the Eighth, that provides protection for the prisoner
against deliberate indifference by prison officials to a substantial risk of bodily harm. Compare
Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003) (pretrial and Fourteenth Amendment),
with Estelle v. Gamble, 429 U.S. 97, 104 (1976) (post-conviction and Eighth Amendment).
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2013). As to the second element, deliberate indifference, the plaintiff must allege
facts showing that 1) the defendants were subjectively aware of the substantial risk
of bodily harm, 2) they disregarded that risk, and 3) their disregard was more than
negligent. Id. at 1331–32.
It is well-established that a section 1983 action for violation of the Eighth
and/or Fourteenth Amendment will lie when a prison official was subjectively
aware of a substantial risk that one prisoner would injure another, yet the prison
official failed to act to prevent the injury. Cf. Farmer v. Brennan, 511 U.S. 825,
833 (1994) (announcing the rule in the context of a Bivens action).2 But the heavy
lifting, for the prisoner, is in showing that the defendant was indeed subjectively
aware of the risk. See id. at 837–38.
In pleading the elements of a section 1983 action, and indeed any action, the
plaintiff must make “a short and plain statement of the claim showing that the
pleader is entitled to relief,” FED R. CIV. P. 8(a)(2), that “give[s] the defendant fair
notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550
U.S. 544 at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When the
complaint is attacked by a motion under Rule 12(b)(6), the factual allegations must

2

“[A] Bivens action is the federal analog to suits brought against state officials under [42
U.S.C. § 1983].” Hartman v. Moore, 547 U.S. 250, 264 n. 2 (2006).
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“raise a right to relief above the speculative level,” and the complaint must contain
more than “a formulaic recitation of the elements of a cause of action” or “labels
and conclusions.” Twombly, 550 U.S. at 555 (citations omitted). More to the point,
stating a claim requires a “complaint with enough factual matter (taken as true),”
id. at 556, to plausibly suggest that the plaintiff is entitled to relief—not merely (on
some conceivable set of facts) possibly entitled to relief. See id. at 557–58.
Notwithstanding the Supervisors’ suggestion to the contrary, “[a]fter Iqbal
it is clear that there is no ‘heightened pleading standard’ as it relates to cases
governed by Rule 8(a)(2), including civil rights complaints.” Randall v. Scott, 610
F.3d 701, 710 (11th Cir. 2010). So Twombly and Iqbal are all that matters, and
they require a court ruling on a motion to dismiss to undergo a two-step analysis,
wherein the court separates the complaint’s wheat from its chaff. First, the
“complaint’s conclusory legal allegations” must be discarded, and, second, the
well-pleaded factual allegations are examined to determine whether—when
accepted as true—they “plausibly give rise to an entitlement to relief.” Iqbal, 556
U.S. at 679. “Conclusory legal allegations” include “formulaic recitations of the
elements of a cause of action” and “naked assertions devoid of further factual
enhancement.” Id. at 678.

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A. The Claim Against Shadwrick Survives
Shadwrick’s motion to dismiss alleges three grounds for dismissal: 1) the
complaint fails to plead sufficient facts to satisfy Rule 8 in light of Twombly and
Iqbal; 2) Shadwrick is entitled to Qualified Immunity; and 3) in any event,
Shadwrick did not violate Patton’s constitutional rights. None of these arguments
are meritorious.
i. The Twombly/Iqbal Objection Fails
Patton’s factual allegations clearly describe a violation by Shadwrick of his
Fourteenth Amendment rights, so Shadwrick’s Twombly/Iqbal objection fails.
Discarding the complaint’s chaff (legal conclusions and naked assertions), as Iqbal
requires, the following allegations remain: First, Shadwrick was twice informed
that Patton was a corrections officer, which meant he was eligible for
administrative segregation.3 Second, Shadwrick placed Patton into a cell with an
inmate Shadwrick knew had violent propensities. Third, Shadwrick observed an
inmate, Reyes—who Patton had previously insulted—make a threatening gesture

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Although Patton makes much of the fact that the ECDC’s internal policies were
violated, it is unclear, and he has cited no authority for guidance, how the failure to follow
internal procedures affects the Eighth or Fourteenth Amendment calculus. If anything, the court
is of the opinion that such behavior is merely (and, really, only a little) probative of a prison
official’s deliberate indifference, but it is not sufficient in itself to violate the Eighth or
Fourteenth Amendments. There is a difference between a failure to behave prudently—one
might call it acting negligently—and the deliberate indifference required by the Supreme Court.
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about Patton to Reyes. Fourth, Shadwrick was aware of Patton’s beating at the
hands of Reyes, but he purposefully delayed in calling for emergency assistance.
Taken together, these allegations show that Shadwrick was aware of a risk that
Patton would be attacked, because Shadwrick knew that Patton was part of a class
of persons eligible for administrative segregation (a fact that is at least marginally
probative of a known risk of injury to Patton), Shadwrick knew Reyes had violent
propensities, and Shadwrick saw Beck threaten Patton. By far the most important
factor, however, is that Shadwrick observed Patton being beaten and intentionally
delayed in calling for emergency assistance to stop the beating. If that is not
deliberate indifference to a substantial risk of bodily harm, then nothing is.
ii. Patton’s Constitutional Rights Were Violated
Because determining that Shadwrick is not entitled to qualified immunity
necessarily requires finding that Patton’s constitutional rights were violated, see
Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (government agents shielded from
liability unless they violate an individual’s clearly established constitutional
rights), the court will consider this issue first, and then proceed to the qualified
immunity analysis.
As stated earlier, a prison official “must take reasonable measures to
guarantee the safety of inmates,” Farmer, 511 U.S. at 832, and this includes “a
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duty to protect prisoners from violence at the hands of other prisoners.” Id. at 833
(citation omitted). This duty is breached when the prison official is deliberately
indifferent to a prisoner’s substantial risk of bodily harm, thereby violating the
prisoner’s Eighth and/or Fourteenth Amendment rights. See id. at 828. Deliberate
indifference requires a subjective awareness of the risk of harm. See id. at 837. In
the complaint, Patton alleges that Shadwrick was aware that Reyes was beating
Patton, but Shadwrick intentionally delayed calling for assistance. Beyond being
subjectively aware of a risk of harm, Shadwrick was subjectively aware of ongoing
harm, yet he delayed in calling for assistance. Taking the allegation as true, the
complaint clearly states a violation of Patton’s Fourteenth Amendment rights.
iii. Shadwrick is Not Entitled to Qualified Immunity at this Stage
“Qualified immunity offers complete protection for individual public
officials performing discretionary functions ‘insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir.
2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Subsumed within
this standard are two questions: first, whether the official was acting in his
discretionary capacity, and, second, whether the federal law he has violated was
clearly established. The parties do not appear to dispute that Shadwrick was acting
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in his discretionary capacity, so the only issue is whether the a prison official’s
deliberate indifference to the threat of violence against an inmate violates clearly
established law.
Law is clearly established where it is “earlier developed in such a concrete
and factually defined context to make it obvious to all reasonable government
actors, in the defendant’s place, that what he is doing violates federal law.”
Lassiter v. Alabama A & M Univ. Bd. Of Trustees, 28 F.3d 1146, 1149 (11th Cir.
1994) (en banc) (internal quotation marks omitted). Here, the Courts of
Appeal—and the Supreme Court—are unanimous in their condemnation of a
prison official acting with deliberate indifference to the risk of an inmate’s harm at
the hands of a fellow prisoner. Farmer, 511 U.S. at 833. When the Supreme Court
speaks directly to an issue, the law is as clearly established as it could possibly be.
Cf. Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011) (“Qualified immunity gives
government officials breathing room to make reasonable but mistaken judgments
about open legal questions.”) (emphasis added).
Of course, discovery may reveal that none of these allegations are true, but
that is an issue for summary judgment or trial, not a motion to dismiss, where wellpleaded factual allegations must be taken as true. At this stage, the motion to
dismiss as to the claims against Shadwrick must be denied.
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B. The Claims Against Entrekin, Hassell, and O’Bryant (“Supervisors”) Fail
Like Shadwrick’s motion to dismiss, the Supervisors’ motion to dismiss
alleges three grounds for dismissal: 1) the complaint fails to plead sufficient facts
to satisfy Rule 8 in light of Twombly and Iqbal; 2) the Supervisors are entitled to
Qualified Immunity; and 3) in any event, they did not violate Patton’s
constitutional rights. Because the court concludes that the complaint fails to allege
sufficient facts to establish that the Supervisors violated Patton’s constitutional
rights, there is no need to consider whether his rights were actually violated by the
Supervisors, nor whether they would be entitled to qualified immunity.
Here, the chief allegations against the Supervisors are that Hassell authored
the ECDC policy that made Patton eligible for administrative segregation, doc. 20,
¶ 17, they ratified Shadwrick’s conduct by failing to discipline him when his
conduct was consistent with a de facto jail policy of failing to administratively
segregate and provide protective custody to corrections officers and detainees who
are threatened by other inmates, id., ¶ 42, they similarly ratified Shadwrick’s
conduct when he behaved consistently with a de facto policy of punishing
disruptive pretrial inmates, id., ¶ 43, they ratified Shadwrick’s and Reyes’s conduct
by refusing to prosecute Shadwrick and Reyes after an internal investigation, id., ¶
44, and they were aware through internal investigations, documents, inmate
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disciplinary reports, and statements from ECDC personnel that the ECDC regularly
failed to segregate detainees who requested protective custody. (Id., ¶ 45).
Further, they were aware that correction officers are at substantial risk of
bodily harm from other inmates, id., ¶ 46, that Shadwrick would violate federal law
by not segregating inmates, id., ¶ 47, and they regularly failed to discipline
correction officials in response to “known incidents” of failing to segregate
inmates. (Id., ¶ 48).These factual allegations culminate in assertions that the
Supervisors permitted, encouraged, and ratified a pattern or practice of failing to
provide protective custody through administrative segregation for correctional
officers who request it or are threatened by other inmates. (Id., ¶¶ 54–55).
The most critical point of law in this case is that there is no supervisory
liability under section 1983 under a theory of respondeat superior. Iqbal, 556 U.S.
at 676. Rather, the officials’ individual actions must violate the constitution; id.,
[s]upervisory liability lies where the defendant personally participates in the
unconstitutional conduct or there is a causal connection between such conduct and
the defendant’s actions.” Harper v. Lawrence County, 592 F.3d 1227, 1236 (11th
Cir. 2010). Such a causal connection may be established in one of three ways: 1)
“when a history of widespread abuse puts the responsible supervisor on notice of
the need to correct the alleged deprivation, and he fails to do so;” 2) “the
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supervisor’s custom or policy... result[s] in deliberate indifference to constitutional
rights;” or 3) “when facts support an inference that the supervisor directed the
subordinates to act unlawfully or knew that the subordinates would act unlawfully
and failed to stop them from doing so.” Id. It appears that Patton alleges the
Supervisors’ conduct satisfies all three of these alternative criteria, but the
complaint fails to satisfy Rule 8(a)(2).
Essentially, all of Patton’s allegations that the Supervisors ratified
Shadwrick’s conduct or knew of his proclivity to violate prisoner’s constitutional
rights are legal conclusions, since they are not supported by factual allegations.
Iqbal requires that legal conclusions be ignored, so this knocks out paragraphs
42–44, 47, and 54–55. Paragraph 45 appears designed to buttress a claim of
widespread abuse, and disparate references to the jail’s de facto policies violating
prisoner’s constitutional rights are evocative of a claim that the officials instituted a
custom or policy in violation of prisoners’ constitutional rights. Alas, Patton’s
“widespread abuse” and “custom or policy” nexuses are also so devoid of factual
enhancement that they are due to be ignored.
Iqbal itself brings into sharp relief the factual deficiency of the complaint.
There, the plaintiff alleged that the defendants “‘knew of, condoned, and willfully
and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a
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matter of policy, solely on account of [his] religion, race, and/or national origin and
for no legitimate penological interest.’” 556 U.S. at 680. The Court concluded that
“[t]hese bare assertions” should be treated like a “formulaic recitation of the
elements of a constitutional” violation claim, and accordingly are not presumed to
be true. Id. at 681.
The complaint in this case alleges that “Intentionally or with deliberate
indifference, defendants Entrekin, Hassell, and O’Bryant permitted, encouraged
and ratified a pattern or practice for failing to provide protective custody,” doc. 20,
¶¶ 54–55, “through administrative segregation for correctional officers who request
such protection” id., ¶ 54, and “to inmates who are threatened by other inmates at
the ECDC.” (Id., ¶ 55). These claims are supported by allegations that Shadwrick
was not disciplined because “his conduct was consistent with a de facto jail policy
of punishing pretrial inmates that allegedly display disorderly conduct and use foul
language” and “of failing to administratively segregate and provide protective
custody to corrections officers and detainees who are threatened by other inmates.”
(Id., ¶¶ 42–43 (not italicized in original)). These allegations are not, in any
meaningful way, better supported than those in Iqbal and are therefore not entitled
to a presumption of truth. As such, there are no facts remaining to support a claim
that the Supervisors instituted a custom or policy violating Patton’s constitutional
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rights.
The widespread abuse theory satisfies the requirement that an official be
subjectively aware of the risk of harm to a prisoner, because it “impute[s]”
constructive knowledge of the risk “to the supervisory official.” Bowen v. Watkins,
669 F.2d 979, 988 (5th Cir. 1982). Thus, the allegations of widespread abuse must
be particular enough to raise an inference of the Supervisor’s subjective knowledge
“above the speculative level,” Twombly, 550 U.S. at 555, to plausibly state a claim
and thereby survive a motion to dismiss. The allegations in this case are too
perfunctory to create a plausible inference that the Supervisors were deliberately
indifferent to widespread and recurring harm.
Patton’s claim that the Supervisors were “aware through internal
investigations, documents, inmate disciplinary reports, and statements from ECDC
personnel that the ECDC regularly failed to segregate detainees who requested
protective custody,” doc. 20, ¶ 45, is a naked assertion that this kind of incident has
occurred before, notably unsupported by mention of a single other incident. Cf.
West v. Tilman, 496 F.3d 1321, 1329 (11th Cir. 2007) (“The deprivations that
constitute widespread abuse sufficient to notify the supervising official must be
obvious, flagrant, rampant and of continued duration, rather than isolated
occurrences.”). At bottom, the allegations supporting Patton’s widespread abuse
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claim amount to a very long-winded way of saying that “there is widespread abuse
in the jail.” However, “courts are not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S at 555 (citation and internal
quotation marks omitted).
Finally, embedded within his other allegations, it appears that Patton argues
that a supervisor’s failure to punish a subordinate’s unconstitutional conduct is
sufficient to establish that the supervisor ratified the subordinate’s actions. (See,
e.g., doc. 20, ¶¶ 43–44). But this does not appear to be the law, because the
Supervisors must “cause the constitutional violation; that is, [they] must officially
sanction or order the action. ” Salvato v. Miley, 790 F.3d 1286, 126 (11th Cir.
2015) (citations and internal quotation marks omitted) (emphasis added). Where
the alleged ratification is premised upon “a single incident,” the plaintiff “must
demonstrate that local policymakers had an opportunity to review the subordinate’s
decision and agreed with both the decision and the decision’s basis.” Thomas ex
rel. Thomas v. Roberts, 261 F.3d 1160, 1174 n. 12 (11th Cir. 2001), cert. granted,
judgment vacated sub nom. Thomas v. Roberts, 536 U.S. 953 (2002), opinion
reinstated, 323 F.3d 950 (11th Cir. 2003).
Awareness of the constitutional violation coupled with a failure to punish
after the fact is insufficient, cf. Salvato, 790 F.3d at 1295 (awareness of the
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violation coupled with a failure to investigate after the fact is insufficient), and
Patton has not alleged that the Supervisors approved Shadwrick’s action before he
took it. Holding the Supervisors liable purely for a failure to discipline “would
result in de facto respondeat superior liablility,” City of Canton, Ohio, v. Harris,
489 U.S. 378, 392 (1989), and that result is forbidden.
III. Conclusion
The allegations against Shadwrick easily satisfy Twombly and Iqbal, and
Patton’s right to be free from deliberate indifference to his safety, which
Shadwrick violated, is clearly established. Shadwrick’s motion to dismiss is
therefore DENIED. As to Patton’s claims against Entrekin, Hassell, and O’Bryant,
Twombly and Iqbal prohibit his conclusory allegations from surviving the
Supervisors’ motion, so it is GRANTED.
DONE and ORDERED this 5th day of January, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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