Cunningham v. Estes et al

Filing 41

MEMORANDUM OPINION AND ORDER Defendants motion for summary judgment, 37 , is GRANTED, as to the claims against Warden Estes, which are DISMISSED WITH PREJUDICE. As to all claims against Sergeant Ray,Lieutenant Noe, Captain Smith, and Officer Griffith, the motion is DENIED. Signed by Judge Abdul K Kallon on 05/15/2017. (KBB)

FILED
2017 May-15 AM 11:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ANTONIO CUNNINGHAM,
Plaintiff,
v.
WARDEN DEWAYNE ESTES, et
al.,
Defendants.

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Civil Action Number:
5:15-cv-1127-AKK

MEMORANDUM OPINION AND ORDER
Antonio Cunningham brings this action against Warden Dewayne Estes,
Lieutenant Guy Noe, Sergeant Ray, Officer Randy Griffith, and Captain Smith, in
their individual capacities, alleging violations of the Eighth Amendment based on
their failure to protect him from another inmate. See generally docs. 1; 8. The court
has for consideration Defendants’ motion for summary judgment, doc. 37, which is
fully briefed, docs. 37; 39, and ripe for review. For the reasons below, except for
Warden Estes’ motion, which is unopposed, doc. 39 at 1, the motion is due to be
denied.
I.

STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(a), summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
1

entitled to judgment as a matter of law.” To support a summary judgment motion,
the parties must cite to “particular parts of materials in the record, including
depositions,

documents,

electronically

stored

information,

affidavits

or

declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c). Moreover, “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation
and internal quotation marks omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
2

competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276 (11th Cir. 2002) (a court is not
required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citation omitted). Furthermore, “[a] mere ‘scintilla’ of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
II.

FACTUAL BACKGROUND

From 2011 to 2013, Cunningham shared a cell with Nakemah Grover at
Limestone Correctional Facility in Harvest, Alabama. Doc. 1 at 1–3. During that
time, Cunningham and Grover developed an “on-again, off-again” and “stormy”
romantic relationship. Id. at 3; see also docs. 37-2 at 14; 39 at 2. Their relationship
involved numerous disputes, some physical, and during which Grover openly
threatened Cunningham’s life. “Between September 6, 2012 and July 7, 2013, at
least eight incidents involving physical violence, threats of physical violence, or
both occurred between them.” Doc. 1 at 3; see doc. 32-7 at 24, 29; see also docs.
32-7 at 25 (sometimes Grover choked Cunningham); 39-1 at 1 (Inmate Xavier
3

Johnson, states that “[he] witnessed at least two incidents in which . . . Grover and
Cunningham had physical fights”); 39-1 at 3 (Inmate Roderick Hightower states
that “[he] saw several physical fights, as well as arguments, between them”).
The first incident relevant to this lawsuit occurred on September 6, 2012,
when an argument between Cunningham and Grover escalated into a physical
struggle that required other inmates to restrain Grover. Docs. 1 at 3; 37-2 at 23, 25.
The scuffle landed both in Captain Smith’s office, docs. 1 at 3; 37-2 at 23, 25,
where they began arguing again, and in Captain Smith’s presence, Grover
threatened to “cut [Cunningham’s] head off,” doc. 37-2 at 25. Later that day,
Cunningham asked Captain Smith to move him from the cell he shared with
Grover. Doc. 37-2 at 25. Captain Smith refused and sent Cunningham instead to
lockup (segregation), saying “Shut up, you fucking faggot,” “[y]ou want to go to
lockup?” and “[g]o pack your shit. Go to lockup.” Id. at 23, 25.
After his release from segregation, the prison returned Cunningham to the
cell he shared with Grover. Id. To no surprise, the friction between the two men
continued, and a series of incidents between October 3 and December 11, 2012, led
to Cunningham and Grover having to sign peace agreements, indicating that they
could live together without incident. See docs. 37-3; 37-5; 37-6. Cunningham
explains that he signed the agreements reluctantly because the only alternative the
officers offered was the segregation “lockup.” Doc. 37-2 at 20.
4

A conflict in January 2013 led Grover to hide a weight bar in the cell to use
to “bust [Cunningham’s] brains out” one night. Docs. 1 at 4; 37-2 at 10–11. The
prison confiscated the weight bar when two other inmates reported Grover’s plan
to Lieutenant Noe.1 Docs. 1 at 4; 37-2 at 10–13. As a result, officers took Grover
and Cunningham to Lieutenant Noe, who instructed Sergeant Ray to “[s]eparate
their ass” and “[m]ake sure they don’t have [any] contact with each other.” Doc.
37-2 at 13; see also id. at 10; doc. 1 at 4. However, Sergeant Ray disregarded the
directive and returned Cunningham and Grover to their shared cell. Docs. 1 at 4;
37-2 at 10.
To show his displeasure over the disclosure of his plan to bludgeon
Cunningham, Grover physically confronted Cunningham and the two inmates he
blamed for reporting him. Doc. 37-2 at 12. Relevant here, Grover argued with
Cunningham in their cell, pushed Cunningham “against the wall,” and struck
Cunningham with his fist. Id. at 13. Cunningham pushed and hit Grover back, and
then ran to the gym. Id. Ultimately, the four inmates signed a peace agreement,
indicating that they could live together in B Dorm “without violence existing
between [them].” Doc. 37-4.

1

Although Lieutenant Noe is now a captain, see doc. 1 at 2, the court will use the title he held
during the events in this lawsuit.
5

Sometime in the spring of 2013, Cunningham ended the relationship, telling
Grover that he “wanted to separate from him, because . . . [Grover] was beginning
to scare [Cunningham].” Doc. 37-2 at 14. As Cunningham describes it, he feared
Grover, because “as [they] got into the relationship, [Grover] got violent.” Id. at
16. After ending the relationship, Cunningham “began the process of writing a
request to be separated from [Grover].” Id. at 14. Unfortunately, as is sometimes
the case with abusive partners, Grover’s physical threats escalated after the break
up. See id. at 14–16, 26; doc. 39-1. One inmate recalls that “[a]fter the relationship
between them ended, there developed hostility” between Cunningham and Grover.
Doc. 39-1 at 4. In fact, soon thereafter, an altercation landed Cunningham and
Grover in segregation. Doc. 39 at 2. When they returned to general population,
Sergeant Ray placed them in separate cells, albeit in the B Dorm, which meant that
“they [still] had daily access to each other.” Id. at 3; see also doc. 39-1 at 3. To
ensure his safety, Cunningham told the dorm and shift officers that he was “tired of
being bothered by Grover,” and wanted to be in a different dorm. Doc. 39-1 at 3–4.
On April 13, 2013, during an altercation in front of Captain Smith’s office
that required the intervention of other inmates, Grover threatened to kill
Cunningham. Docs. 1 at 4; 37-2 at 26. In response, the officer on duty — Officer
Moore — separated Cunningham and Grover for a period of time that day. Doc.
37-2 at 26. Sometime that day, Grover sent a request to Officer Moore for the
6

prison to separate him from Grover. Id.; see also doc. 39-1 at 1. After discussing
Cunningham’s request with Captain Smith, Officer Moore told Cunningham that
Captain Smith “couldn’t move [Cunningham], and that he wasn’t going to place
[Cunningham] in C Dorm, because the C Dorm . . . was for . . . the elders, or the
only dorm or something, and [Cunningham] had disciplinaries so [he] couldn’t be
placed over there.” Doc. 37-2 at 26. Officer Moore communicated with Captain
Smith again about the transfer request, but to no avail. Id.; see also doc. 39-1 at 1.
Later that night, Grover attempted to attack Cunningham with a razor in the
shower. Doc. 37-2 at 14–15, 17. As Cunningham showered, Grover tried to
approach Cunningham twice. Id. at 17. After Cunningham informed Grover on
both occasions that he did not want to speak to him, Grover returned a third time
with a double-blade razor (broken in half), stating “Bitch, I’m fixing to cut your
throat.” Id. at 14–15, 17. This incident ended when “the officer in the cube,”
located four feet from the shower, “beat on the glass” and “told [Grover] to get
away from the shower.” Id. at 15. Cunningham later informed the officer, who had
not seen the razor blade, that Grover had attempted to attack Cunningham with a
razor. Id. at 15–17. The officer removed Grover from the shower area, and reported
the incident to Lieutenant Noe, who instructed the officer to “lock [Grover’s] ass”
in his cell, which the officer did. Id. at 16–17.

7

The following day, Lieutenant Noe discussed the previous night’s events,
including the Cunningham-Grover situation, with Officer Howard, Lieutenant
Pickens, and Sergeant Bragg. Doc. 37-2 at 26. During that discussion, Lieutenant
Pickens “suggested that one, or both, be locked up until one was released for fear
that one or both would be injured or killed.” Id.; see also doc. 39-1 at 1 (“[Inmate
Johnson] overheard Lt. Pickens tell Capt. Noe that, if [Cunningham and Grover]
were not separated, one or both would be hurt or killed. Capt. Noe responded that
he would not move them.”). Despite this suggestion, Lieutenant Noe opted to keep
Cunningham and Grover together in B Dorm, and to tell the two only that he did
not want to hear anything else from them. Id.
The next incident occurred on June 10, 2013, when Cunningham and Grover
were involved in a verbal altercation. This incident resulted in both signing another
peace agreement, “agreeing that they can live together peacefully in [B Dorm]
population with no further incident.” Doc. 37-10. Like the other peace accords
before it, this one also did not provide any relief for Cunningham. Instead, just
three weeks later, on July 7, 2013, Grover slashed Cunningham’s throat with a
razor blade. Docs. 37-1; 39-1 at 2. Specifically, while Officer Randy Griffith was
on dorm duty, Grover surprised Cunningham from behind in the communal space
for B Dorm inmates, stating “Bitch, I’ll cut your throat,” and then slit
Cunningham’s throat with a razor. Doc. 37-2 at 4–5. The attack severed
8

Cunningham’s carotid artery and jugular veins, requiring Cunningham to receive
blood transfusions and to be airlifted to a hospital for surgery. Id. at 4.
Two days before this attack, inmate John F. Burton learned that Grover and
another inmate were plotting to cut his and Cunningham’s throats. Doc. 39-1 at 2.
Burton reported this information to Officer Griffith, who said, “[w]hatever happens
to you all homosexuals needs to happen. Now get away from this cage and me.”
Id.; see also id. at 4 (Inmate Hightower “recall[s that] Officer Griffith [did] make
at least one offensive and disparaging comment about gays, but [he] do[es] not
recall specifically what he said”). As a result, Officer Griffith took no action, and
did not report the threat to anyone else. Id. at 2.
III.

ANALYSIS

Cunningham alleges that Defendants violated his rights under the Eighth
Amendment by acting with deliberate indifference to a substantial threat to his life.
See generally docs. 1; 8; 39. Defendants seek summary judgment on qualified
immunity grounds.2 See generally doc. 37.

2

Defendants argue also that Cunningham cannot pursue vicarious liability claims against
Sergeant Ray, Lieutenant Noe, or Captain Smith, because Cunningham has failed to sufficiently
plead any supervisory liability. Doc. 37 at 11–12. It is not clear from the complaint, see docs. 1;
8, that Cunningham has asserted a vicarious liability claim. In any event, Cunningham failed to
respond to this argument, see generally doc. 39, and, as such, has waived any vicarious liability
claims he may have pleaded. See Endsley v. City of Macon, 321 F. App’x 811, 814 (11th Cir.
2008) (citing Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(“a legal claim or argument that has not been briefed will be deemed abandoned”).
9

“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations omitted);
see also Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005).
“Qualified immunity allows government employees to carry out their discretionary
duties without fear of litigation, protecting from suit all but the plainly incompetent
or one who is knowingly violating the federal law.” Mercado, 407 F.3d at 1156
(quotations omitted). “‘Qualified immunity balances two important interests—the
need to hold public officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.’” Case v. Eslinger, 555 F.3d 1317, 1325
(11th Cir. 2009) (quoting Pearson, 555 U.S. at 231). Relevant here, qualified
immunity protects officials from suit, not just from litigation; that is, if the claims
against them can be resolved at the summary judgment phase, the court must do so.
See Pearson, 555 U.S. at 231–32.
A. Defendants Acted Within Their Discretionary Authority
To invoke qualified immunity, an officer “must . . . establish that he was
acting within the scope of his discretionary authority.” Case, 555 F.3d at 1325.
Defendants assert that they easily clear this hurdle, because “[e]verything alleged
10

in [the] pleadings in this case describes Defendants as doing what correctional
officials do.” Doc. 37 at 10. To make this showing, Defendants “must show that
th[eir] actions were (1) undertaken pursuant to the performance of [their] duties,
and (2) within the scope of [their authority].” Harbert Int’l, Inc., v. James, 157
F.3d 1271, 1282 (11th Cir. 1998). “A bald assertion that the acts were taken
pursuant to the performance of duties and within the scope of duties will not
suffice.” Id. (citation and quotations omitted). Rather, “[the] court must ask
whether the act[s] complained of, if done for a proper purpose, would be within, or
reasonably related to, the outer perimeter of an official’s discretionary duties.” Id.
Specifically, “[t]he scope of immunity ‘should be determined by the relation of the
[injury] complained of to the duties entrusted to the officer.’” Id. (internal
quotations omitted). Stated differently, rather than asking whether Defendants
failed to act, or if their actions were unconstitutional, this court must ask instead
whether the officers’ individual duties included responding to a substantial threat
on an inmate’s life. See id. at 1282–83 (citation omitted). Therefore, because
Cunningham concedes that such a response was, indeed, within the discretionary
authority of the officers, see doc. 39 at 6, Defendants have satisfied the first prong.
B. Cunningham Overcomes The Defense Of Qualified Immunity
In light of Defendants establishing that they acted within their discretionary
authority, “[t]he burden shifts to [Cunningham] to overcome the defense of
11

qualified immunity.” Case, 555 F.3d at 1325 (citation omitted). To do so,
Cunningham must show that (1) Defendants violated a constitutional right and (2)
that the right was clearly established at the time of the alleged violation. Pearson,
555 U.S. at 236; Hope v. Pelzer, 536 U.S. 730, 736–39 (2002). “[T]his twopronged analysis may be done in whatever order is deemed most appropriate for
the case.” Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010).
To begin, Cunningham correctly states, see doc. 39 at 6, that the law clearly
establishes that “prison officials have a duty . . . to protect prisoners from violence
at the hands of other prisoners” pursuant to the Eighth Amendment. Farmer v.
Brennan, 511 U.S. 825 (1993); Bowen v. Warden Baldwin State Prison, 826 F.3d
1312, 1320 (11th Cir. 2016). After all, “[b]eing violently assaulted in prison is
simply not ‘part of the penalty that criminal offenders pay for their offenses against
society.’” Farmer, 511 U.S. at 834 (internal citation omitted).
Next, the court considers whether Defendants violated Cunningham’s right
to be protected from violence at the hands of other prisoners. Although prison
officials have a duty to “take reasonable measures to guarantee the safety of the
inmates,” Farmer, 511 U.S. at 832 (citation and quotations omitted), “[not] every
injury suffered by one prisoner at the hands of another . . . translates into
constitutional liability for prison officials responsible for the victim’s safety,” id. at
834. A prison official only violates the Eighth Amendment “when a substantial risk
12

of serious harm, of which the official is subjectively aware, exists and the official
does not respond reasonably to the risk.” Bowen, 826 F.3d at 1320 (citation and
quotations omitted). Stated differently, “prison officials who actually knew of a
substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted.”
Farmer, 511 U.S. at 844.
Consequently, “[t]o survive summary judgment on [a] section 1983, Eighth
Amendment claim, [a] [p]laintiff [is] required to produce sufficient evidence of (1)
a substantial risk of serious harm; (2) the defendants’ deliberate indifference to that
risk; and (3) causation.” Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003).
Because Defendants concede that a substantial risk of serious harm existed, see
doc. 37 at 5, the court must decide only whether Cunningham has presented
sufficient evidence to show deliberate indifference to a known, serious risk and
causation. Doc. 39 at 5–9.
1. Deliberate Indifference
To prove deliberate indifference, Cunningham must show that Defendants:
(1) subjectively knew that he faced a substantial risk of serious harm; and (2)
disregarded that known risk by failing to respond in an objectively reasonable
manner. Bowen, 826 F.3d at 1320. Subjective knowledge requires that a defendant
“must both be aware of the facts from which the inference could be drawn that a
13

substantial risk of serious harm exists, and he must also draw the inference.”
Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014)
(quoting Farmer, 511 U.S. at 837). “Whether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence.” Id. at 1100
(internal quotations and citations omitted). “[I]t remains open to the officials to
prove that they were unaware even of an obvious risk to inmate health or safety.”
Farmer, 511 U.S. at 844. Indeed, “[a]lthough notice of threats is certainly relevant,
prison officials may not escape liability just because an injured inmate did not
inform anyone that he was being threatened or that he faced an attack from another
inmate.” Lane v. Philbin, 835 F.3d 1302, 1308 (11th Cir. 2016). Put simply, “the
failure to give advance notice is not dispositive. [Cunningham] may establish
[Defendants’] awareness by reliance on any relevant evidence.” Farmer, 511 U.S.
at 848.
Here, Defendants argue that they are not liable because “there is no evidence
that [Cunningham] told these Defendants about Grover and no evidence the [sic]
any of these Defendants signed or had any knowledge about the Peace
Agreements.” Doc. 37 at 5. The record belies Defendants’ contentions as to the
subjective knowledge of the harm Grover posed and as to whether they responded
reasonably to the known risk.
14

a. Sergeant Ray
There is sufficient evidence for a jury to find that Sergeant Ray knew that
Grover posed a substantial risk to Cunningham’s safety. Specifically, in January
2013, after an incident in which Grover hid a weight bar in the cell he shared with
Cunningham with the intent to “bust [Cunningham] upside the head,” Lieutenant
Noe instructed Sergeant Ray to separate Grover and Cunningham and to “[m]ake
sure they don’t have any contact with each other.” Doc. 37-2 at 13. Sergeant Ray
failed to follow this directive. Id. A few months later, after another altercation that
landed both inmates in segregation, Sergeant Ray finally reassigned Cunningham
and Grover to separate cells to address the threat. Docs. 37-2 at 16–17; 39 at 2–3.
Based on this evidence, a reasonable jury could find that Sergeant Ray subjectively
knew that Grover posed a substantial risk of serious harm to Cunningham.
As to whether Sergeant Ray responded reasonably to the known risk,
although Sergeant Ray eventually moved Grover to another cell, he acted with no
urgency or effectiveness. Specifically, despite Lieutenant Noe’s instructions in
January, 2013, Sergeant Ray failed to take even minimal steps to separate
Cunningham and Grover. See docs. 1 at 4; 37-2 at 10. Moreover, when Sergeant
Ray finally acted after a subsequent altercation, he only reassigned Grover to a
separate cell in the same dorm and tier as Cunningham. Docs. 37-2 at 16–17; 39 at
2–3. By leaving Cunningham in the same tier of B Dorm as Grover, Sergeant Ray
15

ensured that both inmates continued to have “daily access to each other.” Doc. 39
at 3. Given Sergeant Ray’s knowledge of the violent history between Cunningham
and Grover, and his failure to place Cunningham and Grover into different dorms,
on different tiers of B Dorm, or to further limit their daily access to one another
while living on the same tier, a reasonable jury could find that Sergeant Ray failed
to act reasonably to protect Cunningham from the substantial risk of serious harm
that Grover posed to him.
b. Lieutenant Noe
There is sufficient evidence also for a jury to find that Lieutenant Noe knew
that Grover posed a substantial risk to Cunningham. To start, Lieutenant Noe
learned about Grover’s plan in January 2013 to “bust [Cunningham’s] brains out.”
Doc. 37-2 at 10–11. After this incident, Lieutenant Noe instructed Sergeant Ray to
“[m]ake sure [Cunningham and Grover] don’t have [any] contact with each other.”
Id. at 13. Moreover, a few months later, after receiving a report that Grover had
attempted to attack Cunningham in the shower with a razor, Lieutenant Noe
instructed the officer to “lock [Grover’s] ass” in his cell. Id. at 16–17. The
following day, Lieutenant Noe discussed the attack with fellow officers, during
which another lieutenant “suggested [to Lieutenant Noe] that one, or both, be
locked up until one was released [from prison] for fear that one or both would be
injured or killed.” Id. Based on this evidence, a reasonable jury could find that
16

Lieutenant Noe subjectively knew that Grover posed a substantial risk of serious
harm to Cunningham.
As to whether Lieutenant Noe responded reasonably to the threat Grover
posed, although Lieutenant Noe initially instructed Sergeant Ray in January 2013
to “[m]ake sure [Cunningham and Grover] don’t have [any] contact with each
other,” id. at 10–11, 13, there is also evidence that he failed to ensure that Sergeant
Ray complied with the directive and that he did not take the threat seriously. For
example, a few months after he issued the directive to Sergeant Ray, after Grover
attempted to slit Cunningham’s throat with a razor in the shower, another
lieutenant warned Lieutenant Noe to separate Grover and Cunningham indefinitely
“for fear that one or both would be injured or killed.” Id. at 26; doc. 39-1 at 1.
Despite this suggestion, Lieutenant Noe refused to act — he failed to separate
Cunningham and Grover into different dorms or tiers within B Dorm, place either
in segregation, limit their interactions in the common areas of B Dorm, or restrict
Grover’s access to razors. See docs. 37-2 at 16–17, 26; 39 at 7; see also doc. 39-1
(“Noe responded that he would not move them.”). Moreover, even if Lieutenant
Noe believed that the actions he took — i.e., first directing Sergeant Ray to
separate Cunningham and Grover, and then directing another officer later to
temporarily lock Grover in his cell — were sufficient steps, the ensuing statement
by another lieutenant should have demonstrated that Grover remained a threat to
17

Cunningham. Based on Lieutenant Noe’s refusal to implement preventative
measures to protect Cunningham, a reasonable jury could find that Lieutenant Noe
failed to act reasonably to protect Cunningham from the substantial risk of serious
harm that Grover posed to him.
c. Captain Smith
There is also sufficient evidence for a jury to find that Captain Smith knew
that Grover posed a substantial risk to Cunningham’s safety. As an initial matter,
after Grover threatened to “cut [Cunningham’s] head off,” Captain Smith warned
Grover that if he did not stop threating Cunningham, he would place Grover in
disciplinary segregation. Doc. 37-2 at 23, 25. Despite this warning, the threats
continued, including one in April 2013 in front of Captain Smith’s office during
which Grover threatened to kill Cunningham. After this incident, the officer on
duty relayed Cunningham’s request to Captain Smith for placement in another
dorm. Id. at 26. Even after Captain Smith rejected the request — stating that he
“couldn’t move [Cunningham], and that he wasn’t going to place [Cunningham] in
C Dorm, because the C Dorm was for . . . the elders, or the only dorm or
something, and [Cunningham] had disciplinaries so [he] couldn’t be placed over
there,”3 id., the officer approached Captain Smith again about the transfer request,

3

There is no evidence in the record regarding whether the C Dorm was the only other dorm at
the prison or if only the C Dorm had a vacancy. See doc. 37-2 at 26 (Cunningham stating that
18

id. Based on this evidence, a reasonable jury could find that Captain Smith
subjectively knew that Grover posed a substantial risk of serious harm to
Cunningham.
There is also evidence in the record for a jury to find that Captain Smith
failed to respond reasonably to the threat. Specifically, when Cunningham asked
Captain Smith to place him in a different cell and to separate him from Grover
after Grover threatened to cut his head off, Captain Smith refused, directed a slur at
Cunningham, and sent Cunningham instead to lockup (segregation): “Shut up, you
fucking faggot,” “[y]ou want to go to lockup?” and “[g]o pack your shit. Go to
lockup.” Id. Moreover, although Captain Smith subsequently cited the threat
Grover may pose to the inmates in C Dorm as a reason for not moving
Cunningham, see id. at 26, there is evidence in the record that other options may
have been available. For example, Captain Smith may have had the option to
separate them into different tiers of B Dorm or to further limit their daily access to
one another while living in B Dorm. Although the court is sympathetic to the
difficult task of running a prison, and to Captain Smith’s legitimate need to protect
Captain Smith told him that he could not place Cunningham in C Dorm, because “C Dorm . . .
was for . . . the elders, or the only dorm or something.”). However, because Defendants present
no argument or explanation contending the number of dorms, the number of available beds, why
they could not have transferred Grover or Cunningham to those other dorms, if any, and because
the court must construe the evidence and draw all reasonable inferences in the light most
favorable to the non-moving party, see Anderson, 477 U.S. at 255; Adickes, 398 U.S. at 157, the
court cannot infer from this record that Defendants had valid reasons for not considering the
placement of Cunningham into other existing dorms.
19

the vulnerable elderly prisoners in C Dorm from Cunningham, Captain Smith has
provided no explanation for why he could not have moved Cunningham to one of
the other dorms in the prison, if any, see supra note 3, or why, at the very least, he
could not have found ways to further limit Grover’s access to Cunningham within
B Dorm. Accordingly, a reasonable trier of fact could find that Captain Smith
failed to act reasonably to protect Cunningham from the substantial risk of serious
harm that Grover posed to him.
d. Officer Griffith
There is also sufficient evidence for a jury to find that Officer Griffith knew
that Grover posed a substantial risk to Cunningham’s safety. As an initial matter,
Officer Griffith’s contention that Cunningham never notified him of Grover’s plan,
see doc. 37 at 5–6, is unavailing because “the failure [of Cunningham] to give
advance notice [of the threat] is not dispositive. [Cunningham] may establish
[Officer Griffith’s] awareness by reliance on any relevant evidence.” Farmer, 511
U.S. at 848. The relevant evidence here occurred just two days before Grover slit
Cunningham’s throat, when inmate Burton notified Officer Griffith about Grover’s
plot. Doc. 39-1 at 2. Burton’s report is sufficient to establish awareness, especially
where, as here, Officer Griffith does not challenge inmate Burton’s contention. See
id. at 844 (“it remains open to the officials to prove that they were unaware even of
an obvious risk to inmate health or safety.”).
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As to whether Officer Griffith responded reasonably to the threat, after
receiving notice from inmate Burton, Officer Griffith did nothing to protect
Cunningham. Docs. 37-2 at 5; 39-1 at 2. In fact, there is no indication that he
reported the threat, that he searched Grover or his cell for sharp objects that Grover
could use as weapons, that he paid closer attention to Cunningham or Grover in the
common areas, or that he took any steps to protect Cunningham. Docs. 1 at 5; 39-1
at 2. Instead, allegedly, Officer Griffith told Burton, “[w]hatever happens to you all
homosexuals needs to happen . . . ,” docs. 1 at 5; 39-1 at 2, and purportedly
“abandoned his post” when Grover attacked Cunningham two days later, doc. 37-2
at 22. Based on these allegations, a reasonable jury could find that Officer Griffith
failed to act reasonably to protect Cunningham from the substantial risk of serious
harm that Grover posed to him.
In sum, a jury could infer from these facts that each individual defendant
acted with deliberate indifference to the substantial risk that Grover posed to
Cunningham’s safety by finding that each subjectively knew of and failed to
respond reasonably to that risk.
2. Causal Connection
“[T]o state a claim for deliberate indifference under § 1983, there must be a
causal connection between the constitutional violation and the state actor’s
conduct.” Martinez v. Burns, 459 F. App’x 849, 851 (11th Cir. 2012) (citing Zatler
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v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986) (requiring “proof of an
affirmative causal connection between the official’s acts or omissions and the
alleged constitutional deprivation”)). “Such a causal connection may be established
by showing that the state actor was personally involved in the acts that resulted in
the violation of the constitutional right.” Id. (citation omitted); see also Gonzalez v.
Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (“Supervisory liability . . . occurs
either when the supervisor personally participates in the alleged constitutional
violation or when there is a causal connection between actions of the supervising
official and the alleged constitutional violation.”). “[T]he inquiry into causation
must be a directed one, focusing on the duties and responsibilities of each
individual defendant whose acts or omissions are alleged to have resulted in the
constitutional deprivation.” Zatler, 802 F.2d at 401 (quoting Williams v. Bennett,
689 F.2d 1370, 1380 (11th Cir. 1982)).
Defendants (minus Officer Griffith) argue that there is no causal connection
between their actions and the alleged constitutional deprivation, because they did
not personally participate in the actions that led to the assault. Doc. 37 at 11–12.
However, for the reasons stated more fully in Section III(B)(1), the record belies
Defendants’ contentions, and warrants a finding that each of them had direct
contact with Cunningham and Grover, and personally responded to various
altercations between them. See Zatler, 802 F.2d at 401. More specifically, first, a
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reasonable trier of fact could find that Sergeant Ray’s failure to separate
Cunningham and Grover in January 2013, see doc. 37-2 at 10–11, 13, despite a
clear directive from Lieutenant Noe, escalated the hostility between the two and
fostered the circumstances that led to the July 7, 2013 attack. Second, even though
Lieutenant Noe ordered Sergeant Ray to separate Cunningham and Grover in
January 2013, and, in April 2013, instructed another officer to lock Grover in his
cell after Grover attempted to attack Cunningham in the shower, there is sufficient
evidence to create a jury issue on whether Lieutenant Noe’s actions contributed to
Cunningham’s injuries. As an initial matter, there is no evidence before the court
regarding what actions, if any, Lieutenant Noe took to ensure compliance with his
directives. Moreover, Lieutenant Noe deliberately refused to heed advice from a
fellow lieutenant to place Cunningham or Grover in segregation “until one was
released for fear that one or both would be injured or killed.” See id. at 10 –11, 13,
16–17, 26; see also docs. 39 at 7; 39-1.
Third, although Captain Smith witnessed Grover threaten to kill
Cunningham, Captain Smith refused Cunningham’s request in September 2012 for
transfer to a different cell, and in April 2013, refused Cunningham’s request for a
transfer to a different dorm. Doc. 37-2 at 25–26. Based on these refusals, which
left Cunningham open to future attacks, a reasonable jury could find that Captain
Smith personally participated in the actions that resulted in the alleged
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constitutional deprivation. Finally, although he does not contend otherwise, based
on Officer Griffith’s dismissive and derogatory response to inmate Burton’s report
to him that Grover planned to slit Cunningham’s throat, see doc. 39-1 at 2, a
reasonable jury could find a causal connection between Officer Griffith’s actions
and the attack just two days later.
IV.

CONCLUSION AND ORDER

For the aforementioned reasons, Defendants’ motion for summary judgment,
doc. 37, is GRANTED as to the claims against Warden Estes, which are
DISMISSED WITH PREJUDICE. As to all claims against Sergeant Ray,
Lieutenant Noe, Captain Smith, and Officer Griffith, the motion is DENIED.
DONE the 15th day of May, 2017.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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