Carmichael v. Dunn et al
Filing
178
Order entered on motions for summary judgment as set out. Signed by Chief Judge Kristi K. DuBose on 02/04/2020. (nah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEON CARMICHAEL, JR.,
Plaintiff,
v.
JEFFERSON DUNN, et al.,
Defendants.
:
:
:
:
:
:
:
CIVIL ACTION 1:17-00087-KD-MU
ORDER
This matter is before the Court on Plaintiff's Complaint (Doc. 1), Defendants' Motions for Summary Judgment (converted from Answers/Special Reports) (Docs. 39-42, 64-65, 83-84, 86, 102-103, 116117, 128-131 and 154-155 per Docs. 122, 123, 151, 156), and Plaintiff's Response (Doc. 176); and nonparty Mixon's Answer/Special Report (Docs. 128-129).
I.
Findings of Fact1
A.
Background & Carmichael's Allegations
This case is about a November 9, 2016 incident at Holman prison in Atmore, Alabama between
inmates and Alabama Department of Correction Riot Team (CERT) members. On February 22, 2017,
inmate Plaintiff Leon Carmichael, Jr. (Carmichael)2 initiated this action against Defendants Charles Arthur,3 Jeffrey Baldwin,4 Darryl Brown,5 Jermaine Bullard,6 Grant Culliver7 Jefferson Dunn,8 Ernest
1
The “facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of
the case.” Priester v. City of Riveria Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000).
2
Proceeding pro se and in forma pauperis.
ADOC Corr. Sergeant / CERT member. (Doc. 86 at 1).
4
ADOC Corr. Officer / CERT member. (Id.)
5
ADOC Corr. Officer / CERT member. (Id.; Doc. 65 (Aff. Brown)).
6
ADOC Corr. Officer / CERT member. (Doc. 86 at 2).
7
ADOC Associate Commissioner. (Doc. 40 at 2).
8
ADOC Commissioner. (Doc. 40 at 1).
3
Duren, 9 Akeem Edmonds, 10 Terry Edwards, 11 Darryl Fails, 12 Harry Finklea, 13 Demetrives Fleeton, 14
Danny Fountain, 15 Marcus Gaston, 16 James Griffin, 17 Anthony Hadley, 18 Michael Harrison, 19 Teddy
Jones,20 Ashley Kidd,21 DeJour Knight,22 Johnathan Langford,23 Aaron Lewis,24 Jasper Luitze,25 Larry
McCovery,26 Antonio McClain,27 Nathan McQuirter,28 Cordaro Melton,29 C. Mitchell,30 Jason Norris,31
Alfie Pacheco,32 Omar Parker,33 Gregory Patterson,34 John Pryor,35 Terry Raybon,36 Timothy Robinson,37
Clifton Sanders,38 Gary Scarborough,39 Otis Smith,40 Samuel Snelson,41 Jesse Stanford,42 Cynthia Stew-
9
ADOC Corr. Officer / CERT member. (Doc. 86 at 2).
ADOC Corr. Officer / CERT member. (Doc. 86 at 2).
11
ADOC Corr. Sergeant / CERT member. (Doc. 117 at 1; Doc. 117-1 at 1 (Aff. Edwards)).
12
ADOC Corr. Captain. (Doc. 40 at 2).
13
ADOC Corr. Sergeant / CERT member. (Doc. 86 at 2).
14
ADOC Corr. Sergeant / CERT member. (Id.)
15
ADOC Corr. Lieutenant / CERT member. (Id.)
16
ADOC Corr. Sergeant / CERT member. (Id.)
17
ADOC Corr. Lieutenant / CERT member. (Id.)
18
ADOC Corr. Sergeant / CERT member. (Id.)
19
ADOC employee / CERT member. (Doc. 154 at 2).
20
ADOC Corr. Officer. (Doc. 86 at 2).
21
ADOC Corr. Lieutenant at Holman. (Doc. 40 at 1).
22
ADOC Corr. Sergeant / CERT member. (Doc. 86 at 3).
23
Corizon Health, Inc. LPN Jonathan Langford, employed at Holman from 3/1/16-4/17. (Doc. 42 at 1 at
n.3). He has been a licensed LPN since March of 2007 and is currently licensed in the State of Alabama. (Id.)
10
24
ADOC Corr. Officer / CERT member. (Doc. 86 at 3).
ADOC Corr. Sergeant / CERT member. (Id.)
26
ADOC Corr. Lieutenant / CERT member. (Id.)
27
ADOC Corr. Captain / CERT member. (Id.)
28
ADOC Corr. Officer / CERT member. (Id.)
29
ADOC Corr. Sergeant / CERT member. (Doc. 131 at 5).
25
30
Carmichael's intended defendant is Phillip Mitchell, ADOC Correctional Warden I at Holman. (Doc.40
at 2; Doc. 86 at 3). The CLERK is DIRECTED to correct the docket to reflect Phillip Mitchell.
31
ADOC Corr. Sergeant / CERT member. (Doc. 86 a 3).
ADOC Corr. Lieutenant / CERT member. (Id.)
33
ADOC Corr. Sergeant / CERT member. (Id.)
34
ADOC Corr. Officer / CERT member. (Id. at 4).
35
ADOC Corr. Lieutenant / CERT member. (Id.)
36
ADOC Corr. Warden II at Holman. (Doc. 40 at 2).
37
ADOC Corr. Officer / CERT member. (Doc. 86 at 4).
38
ADOC Corr. Officer / CERT member. (Id.)
39
ADOC Corr. Warden / Officer at Holman. (Doc. 40 at 1; Doc. 86).
40
ADOC Corr. Captain / CERT Commander (Central). (Doc. 103 at 4; Doc. 103-1 (Aff. Smith)).
41
ADOC Corr. Officer/ CERT Leader (North Central). (Doc. 86 at 4; Doc. 64 (Aff. Snelson).
42
ADOC Corr. Sergeant / CERT member. (Doc. 131 at 5).
32
2
art,43 William Streeter,44 Steve Terry,45 J. Corbin Tunstall,46 Timothy Vignolo,47 Bradley Walker,48 N.
Walls,49 Dominic Whitley,50 and Jesse Wilson.51 Specifically, Carmichael asserts 42 U.S.C. § 1983 violations (use of excessive force, "impl[e]mentation of the procedures used," failure to protect/intervene,
and denial of medical care); "state law claims of assault & battery[;]" and claims for slander and harassment. (Doc. 1). The relief Carmichael seeks includes compensatory and punitive damages, $200,000 per
defendant, declaratory, injunctive, and trial by jury.
Per Carmichael, the force used against him on November 9, 2016 was rooted in an earlier incident.
On November 7, 2016, CERT members and other correctional officers entered his dorm (Bravo Unit or
B-Dorm) to conduct an institutional count of the inmates. (Doc. 1 at 5). At the time, inmates had “makeshift tents” on their beds to “gain some space" from other inmates with whom they share "the 5’x 6’ living
area.” (Id.) Officers ordered inmates to remove the tents. (Id.)
As alleged by Carmichael, two (2) days later on November 9, 2016, CERT entered Holman's BDorm (when he was still asleep), began harassing and assaulting inmates,52 and used excessive force
against him. (Doc. 1 at 5). Carmichael describes the incident as follows:
….I was awaken by loud screaming and yelling….the lights clicked on and I saw…the
ADOC riot team (Cert Team) in the dorm…jumping on inmates and yelling for everybody
to get on our stomachs, put our hands behind our heads and cross our legs. I immediately
turned on my stomach, put my hands behind my head and crossed my legs. All I could hear
43
ADOC Corr. Warden III at Holman. (Doc. 40 at 2).
ADOC Corr. Warden / Officer / CERT member. (Doc. 86 at 4).
45
ADOC Corr. Lieutenant / CERT member. (Id.)
46
ADOC Corr. Officer / CERT member. (Id.)
47
ADOC Corr. Officer at Holman. (Doc. 40 at 2).
48
ADOC Corr. Lieutenant / CERT member. (Id.)
44
49
Carmichael's intended defendant is LPN Ashley Wall. The CLERK is DIRECTED to correct the docket
to reflect Defendant Ashley Wall.
50
51
ADOC Corr. Officer. (Doc. 86 at 5).
ADOC Corr. Sergeant / CERT member. (Id.)
52
Carmichael alleges that CERT stated: ‘Where the GD’s, Crips and Bloods at now’, ‘Aryan Brotherhood
and Nations where yall at’, ‘on C.E.R.T. We will beat your Ass’, Yall Bitches and Fuck Niggers stood up the other
day Standup now'… ‘Yall stabbed Warden Davenport and Killed Officer Bettis, pull something out now on C.E.R.T.
we will beat your Ass.’” (Doc. 1 at 5-6).
3
was inmates being jumped on and screaming. …the riot team (Cert team) officers started
singling out inmates…and jumping on them…
A riot team officer came to my bed, put his hand in the middle of my back and said, "When
I tell you too…Put your hands behind your back." And I said ok. He then told me, "put
your right hand behind your back" and he put a tie cuff tightly on. Then…he did the same
thing on my left wrist….Then I heard Warden/Cert team officer Streeter say "I'm looking
for …Carmichael…Riot team (Cert team) officers throughout the dorm started yelling my
name and asking where I was….I said, "I'm Carmichael."….Streeter said, "Yeah, that’s
him. Bring him on up here too." The White officer grabbed me by my arm, pulled me off
my bed and slammed me on the floor. I was immediately punched in the face, stomped,
kicked and poked in my back and the back of my leg with a riot baton….I was snatched up
and walked up the [a]isle I was slapped by (Cert team) riot team officers on both sides of
the [a]isle….COI McQuieter [sic] walked up and said, "Hold that motherfucker up", the
White riot team officer (Cert team) officer hooked both of his arms threw [sic] mine from
behind and picked me up on my tip toes and Officer McQuieter [sic] speared me in my
chest, my ribs with his riot baton. I was again slammed to the floor, punched, slapped,
kicked and poked in the back and leg with riot batons….
I was dragged to the front of the dorm and thrown to the floor….There were 3 or 4 inmates
there already that had also been beaten…I was then taken to the bathroom area where several other inmates that had been beaten were. About 20 minutes later I was taken to the
infirmary. On the way there a riot team (Cert team) officer told me, " Don't say shit unless
asked a question. Keep your fucking mouth shut. Answer the nurse and that's it. Say anything and that's your ass!!". When I got in the infirmary the nurse asked me my name, AIS
#, took my blood pressure and my temperature. Without even looking at or examining me
she said, "okay he can go." I started to tell her that I couldn't breath [sic] and the riot team
(Cert team) officer slapped me in the mouth, busted my lip and said "Bitch didn't I tell you
to shut the fuck up? The nurse said you can go. Say something else and Im [sic] going to
fuck you up." I was taken from the infirmary and never examined for injuries….taken back
to B-Dorm and placed back in the bathroom area…later I was taken to segregation….
Every day…I also told them [Cert team officer, Sgt. Lt. and COI]…that I could not breath
[sic], I could barely walk or stand up and that I was in pain. They all told me to tell the
nurse at pill call. At pill call the nurses told me to fill out a sick call slip. Every day I filled
out and turned in sick call slips but was never taken to the infirmary….I continued to complain to every officer, the segregation review board Warden Raybon and the pill call nurses
every time they came around about me not being able to breath [sic], not being able to
stand, put pressure or walk on my right leg and the pain I was in. I keep putting in sick call
forms but nothing never happened. The day before Thanksgiving COI Officer
McCants…asked me if I wanted to go to sick call and I said yes.
When I got to sick call Nurse Dixon and Nurse Walls saw the extent of my injuries and
asked me how did it happen. I told them and they asked me had I been in the condition I
was in since Nov 9th and I said yes. Nurse Walls said take me to the infirmary immediately
to see the doctor….The Dr saw me and immediately asked me how long Id [sic] been like
I was and what happened. After I told him he too asked me had I been in a lock up
cell …since Nov. 9th and I said yes. …The Dr…had the X ray tech called to the institution
immediately, had 8 X rays done of my leg and ribs and called his supervisor who told him
4
to get me to the emergency room immediately after he informed his supervisor of the X
ray results and his examination of my injuries. Captain Fails tried to just bring me back to
segregation but the Dr told him that I had to be rushed to the emergency room….Captain
Fails was making excuses….the Dr instructed Captain Fails to have me placed on the infirmary medical ward. I was left on the medical ward from 11 something that morning until
after 7:00 pm after the Dr left before Captain Fails finally had Lt. Kidd and COI Villignoli
[sic] taken me to Atmore Hospital…The Dr had my leg X ray'd….three (3) hours later I
was given pain meds and muscle relaxer and told by the Dr that I had several broken ribs,
contusions and no broken bones in my leg….I NEVER did anything for this to happen to
me. I was also given two (2) disciplines and never taken to disciplinary court on either of
them. I asked Warden Raybon why I was assaulted…he told me that sometimes its [sic]
just best for me to keep my mouth closed….I was assaulted [and] denied medical treatment
for 2 weeks and placed in segregation for no reason what so ever [sic]…..
(Doc. 1 at 6-13 (emphasis added as to specifically named defendants)).
In response to the summary judgments, Carmichael submits his affidavit and the affidavits of two
(2) witnesses, to support his allegations. (Doc. 176-1 (Aff. Carmichael); Doc. 176-2 (Aff. Byer); Doc.
176-3 (Aff. Johnson)). Per Byer:
....I saw Carmichael laying on his bed. There was 5 or 6 Cert team officers around his bed. A White
Cert team officer snatched him off his bed and slammed him on the floor and they started punching
him, kicking him, and hitting him with their Riot Batons. After they beat him he was snactched
[sic] up and walked up the aisle to the front of the dorm between Cert. Team officers lined up on
both sides. Different Cert team officers slapped him as he was walking up dthe [sic] isle. As he
got to the front of ... the dorm I saw the White officer grab him by the arm from behind and I saw
Officer McQuirter, run up and start to poke Carmichael with his stick several times and he was
thrown and slammed back to the floor and they jumped on him again. I saw officer Bullard run
over to Carmichael and started jumping on him too. He hit him with a stick and then started punching him....
(Doc. 176-2 at 2 (Aff. Byer)). And per Johnson: "The Cert Team ... went inside B- dorm ... I could hear
the inmates yelling and screaming as they were being assaulted by the Cert Team while Warden Stewart,
Warden Mitchell and Captain Baldwin watched." (Doc. 176-3 at 2 (Aff. Johnson)).
B.
Defendants' Answers & Special Reports
Defendants have answered the suit denying the allegations against them and filed special reports
in support of their positions. Specifically, on December 7, 2017, ADOC Defendants Culliver, Dunn,
Fails, Kidd, Mitchell, Raybon, Scarbrough, Stewart and Vignolo answered, denying the allegations,
and filed special reports and affidavits in support of their positions. (Doc. 39; Doc. 40 (nine (9) ADOC
5
Defendants)). The Holman Duty Log (duty log) reveals CERT entered Holman at 6:48 a.m. with Streeter
and Fails, to conduct an institutional search of inmates. (Doc. 40-2 at 4). The November 9, 2016 timeline,
for the relevant defendants, states as follows:
6:19 a.m.
6:28 a.m.
6:40 a.m.
6:43 a.m.
6:48 a.m.
6:48 a.m.
7:25 a.m.
7:55 a.m.
10:10 a.m.
10:40 a.m.
11:50 a.m.
2:47 p.m.
3:15 p.m.
Scarbrough outgates inmate Abrams to Dr. Bryant
Wall enters Holman
institutional count in progress with Kidd supervising
Warden Stewart and Warden Mitchell enter Holman
CERT members and Warden Streeter enter Holman
Fails enters Holman
Kidd announces institutional count is clear
Warden Raybon enters Holman
Institutional count in progress with Kidd supervising
Kidd announces institutional count is clear
Pill call in progress with CERT members providing security on main hall
Nurse Dixon conducting pill call
LPN Wall and Dixon exit Holman
Inmate Abrams returned from outgate,
(Doc. 40-2 at 4-7).
Additionally, as part of these defendants' special report is the November 9, 2016 Incident report,
November 9, 2016 Duty Officer Report, disciplinary records,53 medical records, and nine (9) affidavits.
(Id.) The following is asserted within same:
•
Defendant Culliver asserts he was not at Holman. (Doc. 40-8 at 2 (Aff. Culliver)). Culliver
admits that "my responsibilities ... include overseeing the day to day operations of all male adult
correctional facilities in the state of Alabama and oversight of ...[CERT]....." (Id. at 1).
•
Defendant Dunn asserts he "has no personal knowledge" of the incident, did not handle the dayto-day operations at Holman, and did not see any grievance from Carmichael so "felt no need to
have the matter investigated."(Doc 40-1 at 1 (Aff. Dunn)). 54
•
Defendant Fails asserts: "I was present during the....time of the alleged incidents for assault and
battery, or excessive force....Once the CERT team commanders entered the dorm, they oversaw
the search...and I left the dorm and return [sic] to my Office." (Doc. 40-9 (Aff. Fails)). Fails also
states he did not deny Carmichael medical care.
53
Carmichael was charged with gathering in a threatening/intimidating manner on November 7, 2016, but
was found not guilty due to a due process violation (untimely service of the charges on him). (Doc. 40-10 at 1, 3).
54
Dunn does not specifically assert that he was absent from either Holman or B-dorm.
6
•
Defendant Kidd asserts that though at Holman, she was not present in the B-Dorm. (Doc. 40-3 at
1 (Aff. Kidd)). Kidd was assisting an institutional shakedown of female employees entering the
facility and "supervising the institutional count." The duty log confirms such for Kidd- supervising
the count from 6:40 a.m. - 7:25 a.m. (Doc. 40-2 at 4).
•
Defendant Mitchell asserts he was not present. (Doc. 40-4 at 2 (Aff. Mitchell)). This assertion
does not differentiate as to Mitchell's presence in the B-Dorm versus at Holman. The duty log
reveals that Mitchell entered Holman at 6:43 a.m., so the Court interprets this as Mitchell denying
his presence in B-Dorm.55
•
Defendant Raybon asserts he was not present because he arrived at Holman after the incident
occurred, at 8:00 a.m. (Doc. 40-5 at 1 (Aff. Raybon)). This is supported by the duty log showing
he arrived at 7:55 a.m. (five (5) minute difference). Raybon states that he did not deny medical
care to Carmichael and that his allegations are not truthful.
•
Defendant Scarbourgh asserts he was not present because he left Holman at 6:19 a.m. and did
not return until 3:15 p.m., which is supported by the duty log. (Doc. 40-2 at 1 (Aff. Scarbrough).
•
Defendant Stewart asserts she was not present. (Doc. 40-6 at 2 (Aff. Stewart)). This assertion
does not differentiate as to Stewart's presence in the B-Dorm versus at Holman. The duty log
reveals Stewart entered Holman at 6:43 a.m., so the Court interprets this as Stewart denying she
was present in B-Dorm.56
•
Defendant Vignolo asserts that while present at Holman and initially present in the B-Dorm, a
CERT Commander instructed him to exit B-Dorm and provide security on the Main Hall at some
point during the incident. (Doc. 40-7 at 1 (Aff. Vignolo)). Vignolo states that Carmichael did not
ask him for help or notify him of any injuries.
On December 15, 2017, Defendants Langford and Wall, Corizon Health, Inc. nurses who worked
at Holman, answered and filed a special report with declarations and an affidavit. (Doc. 41; Doc. 42).
This includes the affidavit of non-party Shirley Johnson, and declarations of defendants Langford and
Wall and non-parties Dr. Manual Pouparinas and Kimberly McCants:
•
Defendant Langford was an LPN at Holman and his first contact with Carmichael occurred on
11/25/16, when he provided medications and assessed his symptoms. (Doc. 42-3 (Decltn. Langford)). Langford did not detect that he needed medical attention, nor did Carmichael request same.
55
This is disputed. And per Johnson: "Cert... went inside B- dorm ... I could hear the inmates yelling and
screaming as they were being assaulted by the Cert Team while ... Warden Mitchell ... watched." (Doc. 176-3 at 2
(Aff. Johnson)).
56
This is disputed. And per Johnson: "Cert... went inside B- dorm ... I could hear the inmates yelling and
screaming as they were being assaulted by the Cert Team while ... Warden Stewart ... watched." (Id.)
7
•
Defendant Wall was an LPN at Holman and her first contact with Carmichael occurred on
11/23/16 for a sick call. (Doc. 40-17; Doc. 42-4 (Decltn. Wall)). At that time Carmichael complained of discomfort in his chest and right knee; she detected tenderness in the left rib area and a
nodule underneath his right nipple and noted he could not apply his weight on his right knee. She
referred him for a medical exam, and a doctor examined him, prescribed medication, ordered diagnostic tests, and referred him to a hospital for further assessment.
•
Non-Party Johnson57 was an LPN serving as the pharmacy manager at Holman on 11/9/16. (Doc.
42-1 (Aff. Johnson)). On 11/9/16, she received instructions to complete a body chart on Carmichael due to the unavailability of other nursing staff. She did not detect any injury, bruising, lacerations or markings of any kind on his body. His vital signs were largely normal, with only a
slightly elevated temperature which did not indicate trauma or significant internal injuries. He did
not complain of injury, discomfort or attempt to speak with her. She did not observe an officer
slap him or threaten him to keep him from communicating with anyone. Johnson contends that he
had seen a busted lip, she would have documented it, reported any mistreatment, and ensured he
could convey any concerns. Per Johnson, Carmichael's allegations are completely false.
•
Non-Party McCants asserts that since 4/17/16, she has been employed as the Health Services
Administrator at Holman. (Doc. 42-5 (Decltn. McCants)). McCants states that Carmichael never
submitted a medical grievance or appeal regarding any medical issues.
•
Non-Party Pouparinas (physician and Medical Director at Holman) asserts that Carmichael's sick
call request slip dated 11/10 may be incorrect as inmates often put incorrect dates on slips. (Doc.
42-2 (Decltn. Pouparinas)). Upon learning of Carmichael's request for medical care through the
11/10 slip, the staff scheduled an appointment for 11/23. He is not of aware of any staff member
ignoring any complaints from Carmichael between 11/10 and 11/23.
On March 8, 2018, Defendants Brown (ADOC officer / CERT member) and Snelson (ADOC
officer / CERT leader) filed affidavits stating as follows:58
•
Defendant Brown states he was present and assisted CERT in securing inmates in flex cuffs behind the back, and escorted inmates through the dorm. (Docs. 65 (Aff. Brown); 84-3 (Aff. Brown)).
•
Defendant Snelson states he was present and assisted CERT in securing inmates in flex cuffs
behind the back, and escorted inmates through the dorm. (Docs. 64 (Aff. Snelson) (also attesting
to his "monitoring" of CERT members); 84-25 (Aff. Snelson)). Snelson states he never saw Carmichael "to my knowledge" and never used any force on him.
57
She "do[es] not routinely provide nursing care[]" though may if "circumstances...require." (Id.)
58
Brown and Snelson filed a subsequent Supplemental Answer and Special Report (Docs. 83, 84).
8
On June 15, 2018, 31 CERT defendants 59 (including Warden/CERT member Defendant
Streeter) appeared, answered denying the allegations, and filed a special report (adopting/incorporating
the ADOC report/exhibits (Doc. 40), with affidavits in support. (Doc. 83; Doc. 84 at 1, 5 at notes 1 and
2; Doc. 40-12 at 5-35; Docs. 84-1 to 84-31 (affidavits)). As an initial matter, these Defendants endeavor
to adopt/incorporate all of Doc. 40's exhibits including 11 unsigned/unsworn and 21 signed/unsworn statements.60 Such is improper and they have not been considered.61 The Court has considered the 31 signed
and sworn affidavits.62 These documents reveal the following assertions:
•
Defendant Arthur (ADOC SGT / CERT Commander) asserts he was present. (Doc. 84-1 (Aff.
Arthur)). Per Arthur (emphasis added):
.... November 9, 2016 at approximately 6:35 a.m., ... CERT ...entered B-Dormitory to arrest
the suspects ... from ... November 7, 2016, and to confiscate the prison made weapons. ...
59
Charles Arthur, Jeffery Baldwin, Daryl Brown, Jermaine Bullard, Ernest Duren, Akeem Edmonds, Harry
Finklea, Demetrives Fleeton, Danny Fountain, Marcus Gaston, James Griffin, Anthony Hadley, Teddy Jones,
DeJour Knight, Aaron Lewis, Jasper Luitze, Antonio McClain, Larry McCovery, Jason Norris, Alfie Pacheco, Omar
Parker, Gregory Patterson, John Pryor, Timothy Robinson, Clifton Sanders, Samuel Snelson, William Streeter,
Steve Terry, Corbin Tunstall, Bradley Walker, and Jesse Wilson.
60
Unsworn: Doc. 40-12 at 4 (McQuirter); Doc. 40-12 at 6 (McClain); Doc. 40-12 at 7 (Gaston); Doc. 4012 at 8 (Pachecho); Doc. 40-12 at 10 (Knight); Doc. 40-12 at 11 (McCovery): Doc. 40-12 at 12 (Fountain); Doc.
40-12 at 15 (Pryor); Doc. 40-12 at 16 (Ballard); Doc. 40-12 at 19 (Whitley); Doc. 40-12 at 20 (Finklea); Doc. 4012 at 22 (Patterson); Doc. 40-12 at 23 (Terry); Doc. 40-12 at 24 (Wilson); Doc. 40-12 at 26 (Griffin); Doc. 40-12
at 27 (Stanford); Doc. 40-12 at 28 (Arthur); Doc. 40-12 at 31 (Jones); Doc. 40-12 at 32 (Hadley); Doc. 40-12 at 34
(Walker); Doc. 40-12 at 35 (Dennis). Unsigned and unsworn: Doc. 40-12 at 5 (Harrison); Doc. 40-12 at 9 (Fleeton);
Doc. 40-12 at 13 (Baldwin); Doc. 40-12 at 14 (Brown); Doc. 40-12 at 17 (Snelson); Doc. 40-12 at 18 (Sanders);
Doc. 40-12 at 21 (Parker); Doc. 40-12 at 25 (Luitze); Doc. 40-12 at 29 (Lewis); Doc. 40-12 at 30 (Tunstall); Doc.
40-12 at 33 (Edmonds).
61
See, e.g., Dudley v. City of Monroeville, Ala., 446 Fed. Appx. 204, 207 (11th Cir. 2011) (“Unsworn
statements do not meet the requirements of Rule 56, so the district court could not—and properly did not—rely on
the content of the citizen's statement[]”); Vondriska v. Cugno, 368 Fed. Appx. 7, 8–9 (11th Cir. 2010) (“....to support
a motion for summary judgment under Rule 56(e), testimony must be sworn, competent and on personal knowledge,
and set out facts that would be admissible in evidence at trial[]”); McCaskill v. Ray, 279 Fed. Appx. 913, 915 (11th
Cir. 2008) (litigant’s unsworn allegations were not admissible on motion for summary judgment); Avirgan v. Hull,
932 F.2d 1572, 1577 (11th Cir. 1991) (same).
62
(Docs. 84-1 (Aff. Arthur); Doc. 84-2 (Aff. Baldwin); Doc. 84-3 (Aff. Brown); Doc. 84-4 (Aff. Bullard);
Doc. 84-5 (Aff. Duren); Doc. 84-6 (Aff. Edmonds); Doc. 84-7 (Aff. Finklea); Doc. 84-8 (Aff. Fleeton); Doc. 84-9
(Aff. Fountain); Doc. 84-10 (Aff. Gaston); Doc. 84-11 (Aff. Hadley); Doc. 84-12 (Aff. Jones); Doc. 84-13 (Aff.
Knight); Doc. 84-14 (Aff. Lewis); Doc. 84-15 (Aff. Luitze); Doc. 84-16 (Aff. McClain); Doc. 84-17 (Aff.
McCovery); Doc. 84-18 (Aff. Norris); Doc. 84-19 (Aff. Parker); Doc. 84-20 (Aff. Pacheco); Doc. 84-21 (Aff.
Patterson); Doc. 84-22 (Aff. Pryor); Doc. 84-23 (Aff. Robinson); Doc. 84-24 (Aff. Sanders); Doc. 84-25 (Aff.
Snelson); Doc. 84-26 (Aff. Streeter); Doc. 84-27 (Aff. Terry); Doc. 84-28 (Aff. Tunstall); Doc. 84-29 (Aff. Walker);
Doc. 84-30 (Aff. Wilson); Doc. 84-31 (Aff. Griffin)). See also Doc. 64 (Aff. Snelson), Doc. 65 (Aff. Brown)).
9
... CERT ... entered .... there appeared to be over 100 inmates in there, many of whom were
aggressively and angrily jumping up and down and ready to confront us. .... inmates had
succeeded in running a CERT team out of that dorm (2) two days before .... and fully expected to be successful again.
.... some of the inmates in there were also talking real loud and cursing. They were swapping beds and many inmates had weapons. One inmate was lying on his bed with three (3)
knives under him. Also, inmate made tents were still up ... and inmates were jumping out
from behind these tents with weapons.
.... all inmates were given orders to lie down on their assigned beds and to place their hands
behind their backs. ... Carmichael... was acting out again .... near an area where someone
was heard hollering "knife" with other combative and noncompliant inmates. ... Carmichael
was angrily defiant and refused to comply with direct and repeated orders that were given
for him to lie down on his a signed bed and put his hands, behind his back.
Given the overall threatening circumstances including ... Carmichael's hostile conduct and
his outright refusal to comply with direct and repeated orders, officers were left with no
choice but to use the minimal physical force needed, which included basic riot baton movements, to gain control over Carmichael and this increasingly dangerous situation.
The use of force was terminated once ... Carmichael's resistance ceased and ... Carmichael
was able to be placed in the appropriate restraints. The minimum amount of force necessary
was used to control the situation. ... Carmichael was escorted on foot to the health care unit
where he was medically evaluated the morning of November 9, 2016. He was reassigned
to segregation where he was escorted on foot. Disciplinary action was initiated against ...
Carmichael for gathering in a threatening or intimidating manner, unauthorized possession
of a weapon or device that could be used as a weapon, inciting a riot or rioting, and failure
to obey a direct order of an ADOC employee. The CERT team searched ... Carmichael's
assigned living area and discovered and confiscated a knife.
At no time did I.....observe any type of abusive or excessive force being used against
... Carmichael. I did not use any type of force against ... Carmichael...all allegations ....
are false and full of malice. All actions on my behalf were made in a professional manner
and within the scope of my duties.
•
Defendant Baldwin (ADOC OFF / CERT Commander) asserts he was present and instructed
CERT to dress in full riot gear (helmet with shields, arm/elbow pads, ballistic vests and knee/shin
guards) and to give direct orders to inmates to lie face down on their beds and cross their legs at
the ankles. (Doc. 84-2 (Aff. Baldwin)). Baldwin instructed the ballistic shields to enter into the
dorm first, followed by the 12 gauge shotguns with less lethal ammunition and 37 mm less lethal
gas guns to be staged strategically at the front. Baldwin instructed CERT rovers to enter and patrol
the two aisles inside to ensure all inmates were in compliance with the orders issued. Ballard instructed CERT rovers to secure all inmates with flex cuffs behind the back and to search all inmates
and their property for weapons and contraband, once secured. The minimal amount of force was
used on inmates that were non-compliant. The force used was necessary and justified to gain control of the inmates to be secured, at which point all force stopped. Any inmate that force was used
10
on was taken to infirmary for medical evaluations and body charts. Inmates that were identified by
Warden Streeter for having weapons and causing problems in B-block were placed in segregation.
•
Defendant Brown (ADOC OFF / CERT member) asserts he was present and assisted in restraining multiple unidentified inmates with flex cuffs behind their backs and escorted them to the front
of the dorm. (Doc. 84-3 (Aff. Brown)).
•
Defendant Bullard (ADOC OFF / CERT member) asserts he was present and entered to arrest
Carmichael. (Doc. 84-4 (Aff. Bullard)). Carmichael had communicated an intent to inflict harm
to staff with a weapon and engaged in conduct with other hostile inmates which created a substantial risk of institutional security. Carmichael became combative and refused to comply with the
orders which lead to CERT's usage of physical force that included basic riot baton movements to
gain control. The use of force was terminated once his resistance ceased and he was placed in
restraints. The minimum amount of force necessary was used to control the situation. Carmichael
was medically evaluated and reassigned to segregation pending disciplinary action. Bullard did
not observe any abusive or excessive force being used against Carmichael by CERT and claims
that all allegations are false and full of malice because the actions were made in a professional
manner and within the scope of his duties.
•
Defendant Duren (ADOC SGT / CERT member) -- same assertions as Arthur supra. He denies
using any force against Carmichael. (Doc. 84-5 (Aff. Duren)).
•
Defendant Edmonds (ADOC OFF / CERT member) asserts he was present and assigned the 12gauge bean bag, less lethal shotgun, positioned at the front left of the dorm. (Doc. 84-6 (Aff.
Edmonds)). He maintained that post and did not observe any abuse, assaults, or excessive force.
•
Defendant Finklea (ADOC SGT / CERT member) --- same assertions as Arthur supra. He denies
using any force against Carmichael. (Doc. 84-7 (Aff. Finklea)).
•
Defendant Fleeton (ADOC SGT / CERT member) asserts he was present but did not observe any
abuse, assault, or use of excessive force. (Doc. 84-8 (Aff. Fleeton)). He believes Carmichael’s
claims are unfounded.
•
Defendant Fountain (ADOC LT / CERT member) -- same assertions as Arthur supra. He denies
using any force against Carmichael. (Doc. 84-9 (Aff. Fountain)).
•
Defendant Gaston (ADOC SGT / CERT member) asserts he was present but did not use any force
on Carmichael. (Doc. 84-10 (Aff. Gaston)).
•
Defendant Griffin (ADOC LT / CERT member) asserts he was present in B-dorm, was assigned
carried a shotgun with less lethal ammo, "held security" on top of the bathroom wall with his
shotgun at "port arms," and did not use any force on Carmichael. (Doc. 84-31 (Aff. Griffin)).
•
Defendant Hadley (ADOC SGT / CERT member) -- same assertions as Arthur supra. He denies
using any force against Carmichael. (Doc. 84-11 (Aff. Hadley)).
11
•
Defendant Jones (ADOC OFF / CERT member) asserts he was present and assisted CERT. (Doc.
84-12 (Aff. Jones)). He states he was "up front with the chemical agents[]" and did not see any
force used on Carmichael or use any force on him, adding the allegations are without merit.
•
Defendant Knight (ADOC SGT / CERT member) asserts he was present but did not use any force
of Carmichael and has "no knowledge" of the incident. (Doc. 84-13 (Aff. Knight)).
•
Defendant Lewis (ADOC OFF / CERT member) asserts he was present and assisted CERT escort
inmates from their beds to the shower area, with some inmates hiding under their beds, and did not
observe any abuse, assault or excessive force. He believes Carmichael's claims are unfounded.
(Docs. 83-14 (Aff. Lewis)).
•
Defendant Luitze (ADOC SGT / CERT member) asserts he was present and assigned the 37 mm
less lethal gas gun and manned the post at the front right of the dorm. (Doc. 84-15 (Aff. Luitze)).
He maintained that post and did not use force.
•
Defendant McClain (ADOC CAPT / CERT member) asserts was present but did not use any
force on Carmichael. (Doc. 84-16 (Aff. McClain)).
•
Defendant McCovery (ADOC LT / CERT member) asserts he was present but did not use any
force against Carmichael and all of the force he used was reported/documented. (Doc. 84-17 (Aff.
McCovery)).
•
Defendant Norris (ADOC SGT / CERT member) asserts that he was present, assigned to a conduct a shakedown, but did not use any force. (Doc. 84-18 (Aff. Norris)).
•
Defendant Pacheco (ADOC LT / CERT member) -- same assertions as Arthur supra. He denies
using any force against Carmichael. (Doc. 84-20 (Aff. Pacheco)).
•
Defendant Parker (ADOC SGT / CERT member) asserts he was present and was assigned to
man the 37 mm less lethal gas gun and positioned at front and center of the dorm. (Doc. 84-19
(Aff. Parker)). He observed several unidentified inmates not complying with orders. The CERT
rovers in full riot gear were able to control and restrain them. Because of the gear, he could not
identify CERT members and exact locations. He maintained his post and did not use any force.
•
Defendant Patterson (ADOC LT / CERT member) asserts he was present but did not use any
force on Carmichael and has "no knowledge of this incident." (Doc. 84-21 (Aff. Patterson)).
•
Defendant Pryor (ADOC LT / CERT member) asserts he was present but did not use any force
against Carmichael, and the force he used was reported/documented. (Doc. 84-22 (Aff. Pryor)).
•
Defendant Robinson (ADOC OFF / CERT member) asserts he was present and assisted CERT
escort inmates from their beds to the shower area, and with some inmates hiding under their beds,
but did not observe any abuse, assault, or use of excessive force. (Docs. 84-23 (Aff. Robinson)).
•
Defendant Sanders (ADOC OFF / CERT member) asserts he was present but did not observe any
abuse, assault, or use of excessive force, and he does not know, nor can he identify Carmichael,
adding that the allegations against him are false. (Doc. 84-24 (Aff. Sanders)).
12
•
Defendant Streeter (ADOC WARDEN / CERT member) -- same assertions as Arthur supra. He
denies using any force against Carmichael. (Doc. 84-26 (Aff. Streeter)).63
•
Defendant Terry (ADOC OFF / CERT member) asserts he was present but did not use any force
on Carmichael and has "no knowledge" of the incident. (Doc. 84-27 (Aff. Terry)).
•
Defendant Tunstall (ADOC OFF / CERT member) asserts he was present and assisted CERT
secure inmates with flex cuffs behind their backs and escort them to the front of the dorm to be
positively identified, prior to searching them and their property for weapons/contraband. He did
not observe any abuse, assault, or use of excessive force. (Doc. 84-28 (Aff. Tunstall)).
•
Defendant Walker (ADOC LT /CERT member) asserts he was present but did not use any force
on Carmichael. (Doc. 84-29 (Aff. Walker)).
•
Defendant Wilson (ADOC SGT / CERT member) asserts he was present with CERT to arrest all
inmates identified as suspects for the Nov. 7 incident and to conduct an institutional count. (Doc.
84-30 (Aff. Wilson)). Per Wilson:
We ordered all inmates to take down all the clotheslines that were hanging. Some inmates
complied but most did not. We began taking down the clotheslines on our own. Another
Officer was taking a clothesline down off of an inmate's bed and broke the broom handle
that the line was tied to. When the approximately 114 inmates inside B-Dorm observed this
they all rose up off their beds and began shouting obscenities and threatening us. Numerous
inmates made death threats to us and were making statements such as "We run this bitch!",
"This is 2016. Fuck the police!" and "We on ready' We will jump this bitch off in here!"
These are only a few that I recall hearing. Several inmates were observed with knives and
broomsticks in their hands to be utilized as weapons. our only option at this time was to
attempt to deescalate the situation so we could walk out of the dorm with our lives. We
were inside the dorm for approximately 5 minutes attempting to talk our way out. We were
outnumbered ... 114 inmates and ... 10 officers. I have never been so afraid for my life like
I was during this uprising. Thankfully, we were able to exit the dorm safely. The rest of the
day and November 8th was utilized conducting an investigation to determine the inmates
who had the weapons and who were making the threats. ... Carmichael... was identified as
a suspect from the incident and it was determined that ... Carmichael communicated intent
to inflict harm to staff with a weapon and also played a leadership role. ... once entry was
made inside of the dormitory, all inmates were given orders to lie down on their assigned
beds and to place their hands behind their backs. ... Carmichael and numerous other inmates
failed to comply with the orders given. .... I did not use any force on .... Carmichael. At no
time did I observe any excessive force being used against .... Carmichael by .. CERT ... I
have not violated any of ... Carmichael's rights and any and all allegations made by ...
Carmichael are false and full of malice. All actions on my behalf were made in a professional manner and within the scope of my duties.
63
Carmichael's narrative disputes this.
13
On July 11, 2018 and February 22, 2019, Defendant McQuirter (CERT member) and Defendant
Whitley (officer) appeared, answered, and filed a special report, denying the allegations and submitting
affidavits. (Doc. 86; Doc. 86-1 (Aff. McQuirter); Doc. 86-2 (Aff. Whitley); Doc. 102 (answer)). Defendant McQuirter makes the same assertions as Arthur supra, and denies using any force against Carmichael.64 Defendant Whitley assisted CERT in searching the dorms, but did not see any force used on
Carmichael and did not use any force on him.
On February 22, 2019, Defendant Smith (ADOC Correctional Captain / CERT Commander (Central)), appeared, answered and filed a special report, denying the allegations and submitting affidavit in
support. (Doc 102; Doc. 103; Doc. 103-1 (Aff. Smith)). Per Smith, he was not present during the search
and so did not and could not have used force on Carmichael.
On September 18, 2019, Defendant Edwards (former ADOC Correctional Sergeant / CERT
member), appeared, answered and filed a special report, denying the allegations and submitting affidavit
in support. (Doc. 116; Doc. 117; Doc. 117-1 (Aff. Edwards)). Per Edwards, he was present but did not
observe any abuse, assault or use of excessive force against Carmichael, and does not know him or can
identify him, and the allegations against him are false.
On November 15, 2019, Defendant Melton (former ADOC Correctional Officer / CERT member)
and Defendant Stanford (ADOC Correctional Sergeant / CERT member), they have appeared, answered
and filed a special report denying the allegations and submitting affidavits in support. (Doc. 130; Doc.
131; Doc. 131-1 (Aff. Melton); Doc. 131-2 (Aff. Stanford)). Per Melton, he was present as he responded
to a call for an active disturbance as a member of CERT and was assigned to carry the shield and led
CERT rovers around the dorm to restrain all non-compliant inmates. (Doc. 131-1 (Aff. Melton)). Melton
placed the riot shield at the front of the dorm with CERT member Parker and assisted securing inmates in
the dorm with flex cuffs to the rear (behind the back) and escorting secured inmates to the front of the
64
Carmichael disputes this in his narrative. Byer also specifically names McQuirter -- as witnessing him
hit Carmichael with a baton. (Doc. 176-2 at 2 (Aff. Byer)).
14
dorm to be positively identified prior to searching them and their property for weapons and contraband.
(Id.) Per Stanford, he was present with CERT but did not use any force against Carmichael and all force
he used was reported/documented. (Doc. 131-2 (Aff. Stanford)).
On January 8, 2020, Defendant Harrison (ADOC employee / CERT member (Doc. 154 at 2)
appeared, answered and filed a special report, stating that while present, he "does not recall observing
anyone use force" on Carmichael and would be unable to identify him. (Doc. 154 at 11; Doc. 155).65
Generally, Defendants collectively contend that on November 7, 2016, Warden Streeter conducted
an investigation regarding inmates causing a disturbance toward the staff at Holman -- CERT ordered
inmates to remove the sticks and blankets tied to their beds (tents). (Doc. 40 at 5 (citing Doc. 40-11 at
3)). On November 9, 2016, Warden Stewart requested CERT enter Holman for an institutional search,
due to the number of inmate assaults and prison made weapons in the facility. (Id. (citing Doc. 40-6 (Aff.
Stewart))). Inmates were ordered to lie down on their beds and place their hands behind their backs. (Id.
at 6). Per Defendants, Carmichael refused to comply with lawful orders to do so. (Id. (citing Doc. 40-11
at 3)). As such, "[a] minimum amount of force was used and restraints were placed" on him. (Id. at 6
(citing Doc. 40-4 (Aff. Mitchell))). The ADOC Disciplinary Report for November 9, 2016 states: "Carmichael....was given several orders by the...CERT teams, to report to his assigned bed, lie down on his
stomach, and place his hands behind your back....Carmichael failed to comply with the orders given."
(Doc. 40-10 at 1). Carmichael was found not guilty regarding this disciplinary report because the hearing
was not held within the prescribed time frame. (Doc. 40-10 at 3). Per use of force protocol at Holman
and an ADOC requirement, Carmichael was taken to the Health Care Unit for an assessment (Doc. 40-3
at 2 (Aff. Kidd); Doc. 40-4 at 2 (Aff. Mitchell); (Doc. 40-16 at 2 (Aff. LPN Johnson)).
As background, with regard to medical care/treatment, Defendants assert that Carmichael's excessive force claims are unsupported by the body chart completed for him within hours of the 6:35 a.m.
65
Harrison states in his report that his affidavit "shall be filed at a later date." (Doc. 154 at 2).
15
incident (at 9:00 a.m.), adding that his body chart shows no injuries. And according to non-party Johnson,66 who completed the body chart, she saw "no markings," "he did not complain of any injury or discomfort whatsoever," and Carmichael made "made no statements indicating he was injured." (Doc. 4013 (Body Chart); Doc. 40-16 at 2 (Aff. Johnson); Doc. 40-17 at 4). Per Johnson "my education, training
and experience qualified me to complete body charts and assess inmates for visible signs of injury, bruising or lacerations." (Id. at 2). Johnson states that she:
...did not detect any indications of an injury, bruising, laceration or marking of any kind whatsoever on his body....his vital signs were largely normal, with only a slightly elevated temperature
which did not indicate trauma or significant internal injuries....Carmichael...did not complain of
any injury or discomfort...or, from my observation, ever attempt to speak with me......
(Doc. 40-16 (Aff. Johnson at 2)).
On November 10, 2016, Carmichael submitted a Sick Call Request and notified prison officials
that "I think my rib is cracked. Its [sic] hard and hurts to breath [sic], cough, sneeze, move or lay down."
(Doc. 40-17 at 3). Carmichael received no medical care or treatment in response to this Sick Call Request.
Carmichael received no medical care/treatment until November 23, 2016. (Doc. 40-17 at 1). This, despite
Carmichael's contention that he repeatedly reported injuries and a need for medical care/treatment.
On November 23, 2016, Carmichael again reported injuries -- noting injuries to his right knee and
left side, as trauma from an altercation -- he was unable to apply weight to his right leg or walk on his
right leg and had acute burning pain. (Doc. 40-17). The Nurse referred Carmichael to a doctor for an
assessment for rib and knee pain -- discoloration was noted to the knee and that his right side was tender
to touch. (Id.) Carmichael was transported to Atmore Community Hospital ER as a "certified medical
emergency" with chest pain and a hematoma: the radiology report indicated he had normal left rib series
and mild osteoarthritis in his right knee, his diagnosis was that he fractured multiple ribs on his left side
and bruised his right knee and lower leg. (Id.; Doc. 40-14). Carmichael reported being "hit in jail by a
66
Non-party Johnson was the Holman pharmacy manager and "do[es] not routinely provide nursing
care...although I may provide nursing care to inmates as circumstances may require." (Doc. 40-16 (Aff. Johnson)).
16
guard...in prison hit with a baton." (Doc. 40-14 at 14). Carmichael reported being "involved in disagreement with CERT 2 weeks ago." (Doc. 40-17 at 9). The doctor examining Carmichael found a very tender
left side chest wall and at ribs 5-6 and that his right knee had an 8 inch bruise encompassing it. (Id.) The
ER doctor's notes state: "[p]ain on Llower ribs, worked up earlier at jail and it showed bruised ribs and
healing fracture from 11/2/16." (Doc. 40-14 at 15-17).67
Further, the ADOC Incident Report for "failure to obey a direct order of ADOC employee" provides details of the November 9, 2016 search, as well as facts leading to the incident, stating:
...CERT Team Commander...Streeter concluded an investigation into inmates making
threats with weapons and a possible disturbance toward the staff at Holman....On November 7, 2016...CERT members entered B-Dormitory and ordered all inmates to remove
sticks and tied up blankets from their beds. The inmates refused to comply and became
very hostile and aggressive toward the CERT members. The inmates gathered in a threatening and intimidating manner around the CERT members stating, “This is 2016, and we
run this, slavery is over with, we already done killed one of y’all.” Several unidentified
inmates were observed with handmade knives in their possession. The CERT members
were able to exit the dormitory without incident. The inmates with handmade knives were
later identified by the CERT members through IMAS. On November 9, 2016, at approximately 6:35 a.m......CERTs entered B-Dormitory to arrest the suspects......All inmates were
given orders to report to their assigned beds, lie down, and place their hands behind their
back. The following inmates failed to comply with the orders given....Leon Carmichael
B/165648....CERT....used force to include impact weapons and physical force on the above
mentioned inmates to get them to comply with the orders given....The inmates were arrested and escorted to the health care unit for medical assessments.....
(Doc. 40-11 at 3). The narrative summary indicates that the search resulted in the confiscation of 30
handmade knives; 11 inmates charged with failure to obey a direct order of an ADOC employee and
allowed to remain in population pending the disciplinary action; and 21 inmates, including Carmichael,
transferred to segregation pending disciplinary actions for failing to obey a direct order, gathering in a
threatening/intimidating manner, and unauthorized possession of a weapon or device that could be used
as a weapon (as identified as a participant in the November 7th incident). (Id. at 4). See also Doc. 40-12
at 1-3 (11/9/16 Duty Officer Report (D.Fails))).
67
Defendants suggest that any injuries result from Carmichael being sexually assaulted by an inmate earlier
-- that he is trying "to hide the fact that his injuries were caused by a [prior] forced sexual encounter in prison (or,
in the alternative, a consensual sexual encounter in prison)." (Doc. 40 at 8-9).
17
II.
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Rule 56(c)(1)-(4) provides as follows:
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object
that the material cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.
The movant bears the “initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine
issue of material fact.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the non-movant fails to make “a sufficient showing on an
essential element of her case with respect to which she has the burden of proof,” the moving party is
entitled to summary judgment. Celotex, 477 U.S. at 323. “In reviewing ... the nonmov[ant's]... burden, the
court must stop short of weighing the evidence and making credibility determinations of the truth of the
18
matter…. '[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.'” Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998–999 (11th Cir. 1992).
III.
Conclusions of Law
A.
Immunity Defenses
To the extent Carmichael is proceeding against these defendants in their official capacities, the
Court finds as follows. The Eleventh Amendment, which specifically prohibits suits against "the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State," has long been held
to apply "equally to suits against a state brought in federal court by citizens of that state." Harbert Int'l,
Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998). "The state need not be formally named as a defendant
for the amendment to apply; state officials sued in their official capacity are also protected by the amendment." Id. (citing Kentucky v. Graham, 473 U.S. 159, 166-167 (1985)). Indeed, it is well settled that the
Eleventh Amendment bars Section 1983 claims for monetary damages against the state or an agency of
the state. Gafford v. Dunn, 2016 WL 7650680, *4 (N.D. Ala. Dec. 8, 2016), Report and Recommendation
adopted by 2017 WL 57428 (N.D. Ala. Jan. 5, 2017)) (citing Alabama v. Pugh, 438 U.S. 781 (1978)).
Unless there has been a “legitimate abrogation of immunity by Congress or a waiver of immunity by the
state being sued, the Eleventh Amendment is an absolute bar to suit by an individual against a state or its
agencies in federal court.” Id. (quoting Gamble v. Florida Dept. of Health & Rehab. Servs., 779 F.2d 1509,
1511 (11th Cir. 1986)).68
68
Eleventh Amendment immunity may also apply to certain equitable forms of relief, “if the relief in essence requires a state to expend money to for past action” but it “does not apply to actions against state actors for
purely prospective injunctive relief, even if that relief may have an ancillary effect on state treasuries.” Gafford,
2016 WL 7650680 at *4 (citing Edelman v. Jordan, 415 U.S. 651, 666 (1974) and Ex Parte Young, 209 U.S. 123
(1908)). Under the exception recognized in Ex parte Young, courts may allow “suits against state officers seeking
prospective equitable relief to end continuing violations of federal law.” Id. (citation omitted). Carmichael seeks
equitable relief in the form of a requirement that Defendants take “affirmative action” in the future to discontinue
their “unconstitutional and unlawful act, policies, or practices.” However, on summary judgment Carmichael did
not provide any evidence in support of this argument to indicate that prospective equitable relief is appropriate.
19
The parties do not dispute that the Defendants, employed as correctional officers or medical providers for the State of Alabama via the ADOC, are state actors. Accordingly, the defendants, employed
by the State of Alabama at the time, are immune from suit in their official capacities. See Parker v.
Williams, 862 F.2d 1471, 1476 at note 4 (11th Cir. 1989), overruled on other grounds in Turquitt v.
Jefferson Cty. Ala., 137 F.3d 1285 (11th Cir. 1998) (“[S]uits against an official in his or her official capacity are suits against the entity the individual represents[]”). Thus, the summary judgments as to the
defendants in their official capacities are GRANTED.
Regarding individual capacity claims, "[q]ualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates
'clearly established statutory or constitutional rights of which a reasonable person would have known.'"
Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739
(2002)). The evidence indicates the defendants were acting within their discretionary authority at all times
when the incident occurred, and Carmichael does not dispute such. (Doc. 176 at 21). Thus, defendants
are entitled to qualified immunity unless Carmichael can show that their conduct violated a clearly established statutory or constitutional right of which a reasonable person would have known. Belcher v. City
of Foley, Ala., 30 F.3d 1390, 1395 (11th Cir. 1994). Therefore, the Court will now address whether this
action identifies any constitutional violation. See, e.g., Horton v. Morgan Cty. Sheriff's Dept., 2016 WL
6576986, *6-7 (N.D. Ala. Nov. 7, 2016) (discussing same).
As an initial matter, to the extent the Complaint names Defendants Wall and Langford in Carmichael's claims of excessive force and/or failure to protect, there are no facts in the Complaint or evidence
of record to support said claims, resulting in summary judgment being GRANTED in their favor on same.
B.
Section 1983: Excessive Force
Carmichael alleges Section 1983 claims for excessive force against the defendants, both supervi-
sory officials and non-supervisory officials. “In order for a plaintiff to establish a claim under 42 U.S.C.
20
§ 1983, he must prove (1) a violation of a constitutional right, and (2) that the alleged violation was committed by a person acting under the color of state law.” Martinez v. Burns, 459 Fed. Appx. 849, 850–851
(11th Cir. 2012) (citing Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005)). The parties do not
dispute Defendants (correctional officers / medical providers for the State of Alabama) are state actors.
Thus, Carmichael must establish the defendants personally acted to deprive him of a constitutional right.
Additionally, “[i]t is well established in this circuit that supervisory officials are not liable under
§ 1983 for the unconstitutional acts of their subordinates 'on the basis of respondeat superior or vicarious
liability.'" Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (citation omitted). If a supervisor’s
liability cannot be established based on the supervisor’s personal participation in the complained acts, a
plaintiff must show a causal connection between the supervisor’s actions and the alleged constitutional
deprivation. Oliver v. ADOC, 2019 WL 3402038, *2 (S.D. Ala. Jun. 28, 2019), Report & Recommendation adopted by 2019 WL 3400695 (S.D. Ala. Jul. 26, 2019) (emphasis added):
... supervisory liability under § 1983 occurs either when the supervisor personally participates in
the alleged unconstitutional conduct or when there is a causal connection between the actions of a
supervising official and the alleged constitutional deprivation. .....
See also Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). A causal connection may be established
when: 1) 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) a supervisor's custom or policy results in deliberate indifference to constitutional rights; or 3) 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. Valdes v. Crosby, 450 F.3d 1231, 1237 (11th Cir. 2006) (citing Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003)). "The standard by which a supervisor is held liable in his individual capacity
for the actions of a subordinate is extremely rigorous.” Oliver, 2019 WL 3402038 at *2 (citing Cottone,
326 F.3d at 1360). A custom is established by showing "a longstanding and widespread practice [such
that it] is deemed authorized by the policymaking officials because they must have known about it but
failed to stop it." Brown v. City of Ft. Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (A custom
21
requires showing a practice so settled and permanent that it takes on the force of law). “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.” West v. Tillman, 496 F.3d 1321,
1329 (11th Cir. 2007) (citation omitted).
1.
Defendants Not Present
As to the first criteria, personal participation, Defendants Culliver, Dunn, Fails, Kidd, Mitchell,
Raybon, Scarbrough, Smith, Stewart and Vignolo, assert that they were not present at either Holman
and/or in B-Dorm at the time of the incident. See supra. The uncontradicted evidence indicates that
ADOC officials Culliver, Fails, Kidd, Raybon, Scarbrough and Smith were either not present at Holman at the time, or were not present in the B-Dorm. See supra Section I. Carmichael has failed to allege
otherwise. Additionally, while Dunn has not submitted an affidavit confirming his presence (that he was
not present either at Holman or at B-Dorm), Carmichael does not allege that he personally participated in
the alleged acts. Moreover, Vignolo attests to being stationed in the Main Hall as security versus being
present in B-Dorm, and Carmichael has failed to allege otherwise. Carmichael does not allege that Vignolo personally participated.
As to Defendants Wall and Langford, the Complaint is completely devoid of any allegations that
support such claims against them.
Stewart and Mitchell deny they were present in B-dorm during the alleged used of excessive
force. Carmichael alleges that both were present, as attested to by fellow inmates Byer and Johnson (Doc.
176 at 16), but no allegation is made that they personally participated in the alleged excessive force.
Because Carmichael has failed to allege personal participation by these defendants, Carmichael
must show a causal connection between the supervisors’ actions and the alleged constitutional deprivation.
With two possible exceptions, Mitchell and Stewart, the record is devoid of evidence establishing that
these defendants are causally connected to CERT's actions. Consequently, Carmichael's claim fails as to
22
Culliver, Dunn, Fails, Kidd, Langford, Raybon, Scarbrough, Smith, Vignolo and Wall, such that the
summary judgments are GRANTED on Carmichael’s excessive force claim.
2.
Defendants not present and who deny using any force
As for CERT defendants Edmonds, Griffin, Jones, Luitze, and Parker, these defendants assert
impossibility due to their physical presence ("maintained" or being "stationed") elsewhere and based on
their specific allegations that they did not use any force on Carmichael. Namely, these defendants contend
that they were assigned specific duties/posts which precluded their ability to engage with any inmates
during the search (i.e., they did not engage with Carmichael during the incident). (Doc. 84 at 19-20). The
record indicates that Griffin was posted at the bathroom wall, and Edmonds, Jones, Luitze, Parker were
posted at the front of B-dorm. See supra.69 These officers affirm via affidavits that they secured their
posts and did not use force on any inmates in B-Dorm on November 9th. In response, Carmichael has
failed to address these affirmations or rebut them in any way, and the record is void of any indication or
suggestion that these defendants personally used force against Carmichael. Carmichael's summary judgment response simply notes where defendants Edmonds, Griffin, Luitze and Parker were assigned/stationed (failing to even address Jones). (Doc. 176 at 4). Consequently, Carmichael has failed to carry his
burden of showing a genuine issue of material fact exists as to whether or not these CERT defendants used
excessive force against him. Zatler v. Wainwright, 802 F.2d 397, 401 11th Cir. 1986) (“[S]ection 1983
requires proof of an affirmative causal connection between the official’s acts or omissions and the alleged
constitutional deprivation[]”). Accordingly, the summary judgments of defendants Edmonds, Griffin,
Jones, Luitze, and Parker is GRANTED for Carmichael’s claim of excessive force.
3.
Defendants who were present but deny using any force
CERT Defendants Arthur, Duren, Finklea, Fountain, Gaston, Hadley, Knight, McClain,
69
Edmonds assigned to a position at the left of B-Dorm and did not use any force during the incident. (Doc.
84-6). Parker remained at his position at the front center of B-Dorm. (Doc. 84-19). Griffin stood watch atop the
bathroom wall. (Doc. 84-31). Luitze maintained his post at the front right of B-Dorm. (Doc. 84-15).
23
McCovery, Norris, Pacheco, Patterson, Pryor, Snelson, Stanford, Terry, Walker, Whitley and Wilson deny using any force against Carmichael, and affirm such by affidavits. See supra. In response to
summary judgment, Carmichael makes no allegations and offers no evidence to refute their contentions
as well as fails to connect any of these defendants to his excessive force allegations. Bennett v. Parker,
898 F.2d 1530, 1533 (11th Cir. 1990) (finding that a conclusory allegation without supporting evidence
"should be discounted[]")). Beyond acknowledgment that these defendants are CERT members who participated in the incident, the record is void of facts connecting them personally to Carmichael’s claims.
LaMarca v. Turner, 995 F.2d 1526, 1536 (11th Cir. 1993) (A plaintiff must connect an official’s act or
omission to the alleged constitutional deprivation to establish liability). While the Court is required to
draw all reasonable inferences in favor of the non-movant at this juncture, those inferences must still be
based on facts in the record. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). Carmichael
has not provided such facts of record to rebut summary judgment. Thus, Carmichael has failed to establish
a causal connection between these defendants and the alleged harm. Thus, Arthur, Duren, Finklea,
Fountain, Gaston, Hadley, Knight, McClain, McCovery, Norris, Pacheco, Patterson, Pryor, Snelson, Stanford, Terry, Walker, Whitley and Wilson motions for summary judgments are GRANTED
on Carmichael’s claim of excessive force.
C.
Section 1983: Failure to Protect/Intervene
Carmichael asserts failure to protect claims against all of the Defendants. A prison official violates
the Eighth Amendment when he or she acts with deliberate indifference to a substantial risk of serious
harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). "[A]n officer who is present at the
scene [of an altercation] and who fails to take reasonable steps to protect the victim of another officer's
use of excessive force can be held liable for his nonfeasance." Hadley v. Gutierrez, 526 F.3d 1324, 1330
(11th Cir. 2008) (citation omitted). However, an officer may "only" be liable for failing to protect if he
was "in a position to intervene[,]" but failed to do so. Priester v. City of Riviera Beach, Fla., 208 F.3d
919, 924 (11th Cir. 2000).
24
As stated supra, Defendants Culliver, Dunn, Fails, Kidd, Raybon, Scarbrough, Smith, and
Vignolo, were not present either at Holman and/or in the B-Dorm at the time of the incident. Carmichael
has failed to allege otherwise or show that these defendants personally participated in the use of force
against him. See supra. Carmichael has also failed to allege a causal connection between an action of
any of these defendants and the alleged force used. Carmichael has further failed to plead any facts indicating that these defendants were in a position to take reasonable steps to protect him and/or to intervene
but failed to do so. Thus, there can be no liability for these defendants for failing to protect/intervene as
to Carmichael. Hartley, 193 F.3d at 1269; Brown, 906 F.2d at 671.
As to Defendants Wall and Langford, the Complaint is completely devoid of any allegations that
support such claims against them.
Summary judgment is GRANTED in favor of Culliver, Dunn, Fails, Kidd, Langford, Raybon,
Scarbrough, Smith, Vignolo and Wall, on Carmichael’s claim of failure to protect.
D.
Eighth Amendment: Denial/Delay of Medical Care
Carmichael alleges that he was denied medical care (including delayed medical care) by Defend-
ants Fails, Kidd, Mitchell, Raybon, Stewart and Vignolo; nurses Langford and Wall; and all CERT
defendants.70 Specifically, Carmichael alleges:
...a lot of the injured inmates were refused a body chart and treatment by the nurses on duty, and
was instructed to sign up for sick call, causing the inmates not to receive a body chart and treatment
until days after the assault....
***
...about 20 minutes later [after allegedly being injured]..I was taken to the to the infirmary. On the
way there a riot team (Cert team) officer told me, " Don't say shit unless asked a question. Keep
your fucking mouth shut. Answer the nurse and that's it. Say anything and that's your ass!!". When
I got in the infirmary the nurse asked me my name, AIS #, took my blood pressure and my temperature. Without even looking at or examining me she said, "okay he can go." I started to tell her
that I couldn't breath [sic] and the riot team (Cert team) officer slapped me in the mouth, busted
my lip and said "Bitch didn't I tell you to shut the fuck up? The nurse said you can go. Say something else and Im [sic] going to fuck you up." I was taken from the infirmary and never examined
70
Carmichael alleged that unnamed nurses (1, 2, 3, 4) "refuse[d] to provide a body chart and Medical care
to the inmates assaulted[]" on November 9, 2016. (Doc. 1 at 20 at ¶13). However, no other correctional nurses
have been made defendants in this case.
25
for injuries….taken back to B-Dorm and placed back in the bathroom area…later I was taken to
segregation….
Every day…I also told them [Cert team officer, Sgt. Lt. and COI]…that I could not breath [sic], I
could barely walk or stand up and that I was in pain. They all told me to tell the nurse at pill call.
At pill call the nurses told me to fill out a sick call slip. Every day I filled out and turned in sick
call slips but was never taken to the infirmary….I continued to complain to every officer, the
segregation review board Warden Raybon and the pill call nurses every time they came around
about me not being able to breath [sic], not being able to stand, put pressure or walk on my right
leg and the pain I was in. I keep putting in sick call forms but nothing never happened. The day
before Thanksgiving COI Officer McCants…asked me if I wanted to go to sick call and I said yes.
When I got to sick call Nurse Dixon and Nurse Walls saw the extent of my injuries and asked me
how did it happen. I told them and they asked me had I been in the condition I was in since Nov
9th and I said yes. Nurse Walls said take me to the infirmary immediately to see the doctor….The
Dr saw me and immediately asked me how long Id [sic] been like I was and what happened. After
I told him he too asked me had I been in a lock up cell …since Nov. 9th and I said yes. …The
Dr…had the X ray tech called to the institution immediately, had 8 X rays done of my leg and ribs
and called his supervisor who told him to get me to the emergency room immediately after he
informed his supervisor of the X ray results and his examination of my injuries. Captain Fails tried
to just bring me back to segregation but the Dr told him that I had to be rushed to the emergency
room….Captain Fails was making excuses….the Dr instructed Captain Fails to have me placed on
the infirmary medical ward. I was left on the medical ward from 11 something that morning until
after 7:00 pm after the Dr left before Captain Fails finally had Lt. Kidd and COI Villignoli [sic]
taken me to Atmore Hospital…The Dr had my leg X ray'd….three (3) hours later I was given pain
meds and muscle relaxer and told by the Dr that I had several broken ribs, contusions and no
broken bones in my leg…I was assaulted [and] denied medical treatment for 2 weeks and placed
in segregation for no reason what so ever [sic]…..
(Doc. 1 at 9-13). Thus, as alleged, Carmichael's medical claim is one for deliberate indifference to his
medical needs due to the delay/denial in his treatment/care from November 9 (the date of the incident) to
November 23 (the date on which he received treatment).
Additionally, in response to summary judgment, Carmichael alleges "cover-up[s]" at the prison,
and that "[t]he medical records maintained by the defendants places not only their personal credibility in
question, but renders suspect all of the official documents maintained by the ADOC, including investigative reports, logs, employee affidavits executed by people facing liability, and other 'evidence.' It is totally
inexplicable why Carmichael’s body chart reflects that he sustained no injuries, made no complaints about
breathing difficulties, and all of his vital signs were within normal ranges, but then the hospital records
show otherwise." (Doc. 176 at 18, 20).
26
The Eighth Amendment prohibits, applicable to the states through the Fourteenth Amendment,
prohibits “cruel and unusual punishments.” U.S. Const. amend. VIII; Bingham v. Thomas, 654 F.3d 1171,
1175 (11th Cir. 2011). The Eighth Amendment does not permit a state actor’s “deliberate indifference to
serious medical needs of prisoners.” Bingham, 654 F.3d at 1175. A prison official acts with deliberate
indifference to an inmate's safety when he “knows of and disregards an excessive risk to inmate health or
safety[.]” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Similarly, a prison official acts with deliberate
indifference to an inmate's medical needs by denying or delaying access to medical care. Erickson v.
Pardus, 551 U.S. 89, 90 (2007).
As summarized in Riggins v. Stewart, 2019 WL 4725158, *11 (S.D. Ala. Sept. 26, 2019):
Deliberate indifference to an inmate's serious medical need violates the Eight Amendment's prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285,
50 L. Ed. 2d 251 (1976). However, not all denial of medical treatment equates to a constitutional
violation. Id. at 105, 97 S. Ct. 285. To establish deliberate indifference to a medical need, a plaintiff
must allege facts to need the objective and subjective prongs discussed previously. That is, first,
the existence of an “objectively serious medical need.” Farrow v. West, 320 F.3d 1235, 1243 (11th
Cir. 2003). A serious medical need is “‘one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the necessity for
a doctor's attention.’” Id. (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th
Cir. 1994), overruled in part on other grounds by Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct.
2508, 153 L. Ed. 2d 666 n. 9 (2002)). “In either of these situations, the medical need must be one
that, if left unattended, pos[es] a substantial risk of serious harm.” Id. (internal quotation marks
and citation omitted). Second, a plaintiff must satisfy the subjective requirement of an Eighth
Amendment denial of medical care claim by demonstrating “deliberate indifference” to a serious
medical need, that is: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that
risk; (3) by conduct that is more than mere negligence.” Richardson v. Johnson, 598 F.3d 734, 737
(11th Cir. 2010).
See also e.g., Alsobrook v. Alvarado, 477 Fed. Appx. 710, 712 (11th Cir. 2012) ("[w]hen viewing the
allegations in the amended complaint in the light most favorable to Alsobrook, we find....sufficient facts
to demonstrate that his injuries [ ] constituted a serious medical need that Medina knew about but delayed
for almost two hours in taking him for medical treatment, causing further injury, when there was no justifiable reason for the delay[]") (footnote omitted); Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317
(11th Cir. 2010) ("a 'serious medical need' is 'one that is diagnosed by a physician as requiring treatment
or one that is so obvious that a lay person would recognize the need for medical treatment[]'"); Bozeman
27
v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (subjective knowledge requires that defendant "'must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,
and [ ] must also draw the inference[]'") (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994) (emphasis
added); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (deliberate indifference may be met
where a prisoner is subjected to repeated examples of delayed or denied medical care and when personnel
fail to respond to a known medical problem).
First, with regard to Defendants Langford and Wall, Carmichael makes no specific claims against
these correctional nurses -- with regard to their denial/delay of medical care. (Doc. 1 at 20 at ¶¶ 11-12).
As to Defendant Wall, the only evidence of record indicates that she did not even see Plaintiff until November 23, 2016, when she assessed him and referred him to a provider on the medical staff for additional
care. (Doc. 42-4 (Decltn. Wall)). Carmichael also agrees that Wall acted in response to seeing his medical
condition the first time she saw him and the extent of his injuries. After which other medical care occurred
"immediately" (sent to the doctor, to the X-ray tech, to the emergency room). (Doc. 1 at 11). Concerning
Defendant Langford, Carmichael makes no allegations against him in the Complaint. The only evidence
of record indicates that Langford did not see Carmichael until November 25, 2016, that he did not receive
any complaint from Carmichael, and that he did not have any other indication that Carmichael required
medical attention or that had failed to receive adequate medical care. (Doc. 42-3 (Decltn. Langford)). As
such, Langford’s and Wall's motion for summary judgment on Carmichael’s claim of denial/delay of
medical is GRANTED.
E.
Other Claims
Carmichael alleges state law claims for assault and battery, and claims for slander and harassment,
against all defendants. Defendants do not substantively address these claims, instead asserting that the
Court should grant summary judgment on the federal claims prompting a declination to exercise supplemental jurisdiction over any state law claims. (Doc. 40 at 16-17; Doc. 84 at 22-23; Doc. 103 at 23; Doc.
117 at 23; Doc. 131 at 23; Doc. 154 at 16).
28
1.
State Law Claims for Assault and Battery
Carmichael's state law assault and battery claims are rooted in his Section 1983 claim -- namely,
the very same incident and allegedly violative acts (use of excessive force against him). As explained in
Howard v. Hudson, 2014 WL 5500731, *12 (S.D. Ala. Oct. 30, 2014):
In Alabama, the elements of an assault and battery claim are:
“‘[A]n intentional, unlawful offer to touch the person of another in a rude or angry manner
under such circumstances as to create in the mind of the party alleging the assault a well
founded fear of an imminent battery, coupled with the apparent present ability to effectuate
the attempt if not prevented.’" .... A successful assault becomes a battery, which consists
of the touching of another in a hostile manner.
Wright v. Wright, 654 So.2d 542, 544 (Ala.1995). In a civil case, the elements of battery are: 1)
that the defendant touched the plaintiff; 2) that the defendant intended to touch the plaintiff; and
3) that the touching was conducted in a harmful or offensive manner. Ex parte Atmore Community
Hosp., 719 So.2d 1190, 1193 (Ala.1998). Additionally, “[a] battery consists in an injury actually
done to the person of another in an angry or revengeful or rude or insolent manner, as by spitting
in the face, or in any way touching him in anger, or violently jostling him out of the way, or in
doing any intentional violence to the person of another.” Surrency v. Harbison, 489 So.2d 1097,
1104 (Ala.1986). See also Perkins v. City of Creola, 2010 WL 1960915, *18 (S.D.Ala. May 14,
2010) (same).
As to Defendants Wall and Langford, the Complaint is completely devoid of any allegations that
support such claims against them. Moreover, defendants who were not physically present at Holman
and/or the B-Dorm at the time (i.e., it would have been impossible for them to have assaulted and/or
battered Carmichael due to their physical absence) are also due summary judgment. Likewise, CERT
Defendants Edmonds, Griffin, Jones, Luitze, and Parker, were assigned specific posts which precluded
engagement with any inmates during the search (i.e., they did not engage at all with Carmichael), such
that any use of force against Carmichael was an impossibility. Accordingly, summary judgment is
GRANTED in favor of Culliver, Dunn, Edmonds, Fails, Griffin, Kidd, Jones, Langford, Luitze, Parker, Raybon, Scarbrough, Smith, Vignolo and Wall, on Carmichael's state law assault and battery
claims.
Moreover CERT Defendants Arthur, Duren, Finklea, Fountain, Gaston, Hadley, Knight,
McClain, McCovery, Norris, Pacheco, Patterson, Pryor, Snelson, Stanford, Terry, Walker, Whitley
29
and Wilson deny using any force against Carmichael, and affirm such by affidavits. See supra. Carmichael offers no evidence to refute their contentions and also fails to connect any of these defendants to his
excessive force allegations. As such, summary judgments are GRANTED in favor of Arthur, Duren,
Finklea, Fountain, Gaston, Hadley, Knight, McClain, McCovery, Norris, Pacheco, Patterson, Pryor,
Snelson, Stanford, Terry, Walker, Whitley and Wilson as to Carmichael's state law assault and battery
claims.
2.
Slander & Harassment
Carmichael alleges claims for slander and harassment against all defendants. However, as noted
supra, these claims are stated only in his request for relief via use of the words "slander" and "harassment."
Nevertheless, regarding slander, Carmichael's complaint is similar to that in J.M. v. Selma City Bd. of
Ed., 2016 WL 7030452, *8 (S.D. Ala. Nov. 16, 2016), Report & Recommendation adopted by 2016 WL
7031901 (S.D. Ala. Dec. 1, 2016):
In Alabama, alleged defamation is considered by the Court as either slander or libel. Blevins v.
W.F. Barnes Corp., 768 So. 2d 386, 390 (Ala. Civ. App. 1999). To state a case of either slander or
libel, a party must show that a defamatory communication was made. See, e.g., id. The elements
of a defamatory communication are
1) a false and defamatory statement concerning the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault amounting at least to negligence; and 4)
either actionability of the statement irrespective of special harm or the existence of special
harm caused by the publication of the statement.
Drill Parts and Service Co., Inc. v. Joy Mfg. Co., 619 So. 2d 1280, 1289 (Ala. 1993) citing McCaig
v. Talladega Publishing Co., 544 So. 2d 875, 877 (Ala. 1989). Plaintiff has made no allegation as
to what statement or statements made ..... were defamatory.... Plaintiff has made no allegation as
to when Defendants made any unprivileged communication of a defamatory nature to a third
party.....Since a material element of a defamation cause of action has not been pleaded, this claim
necessarily fails. See Mack, 486 Fed.Appx. at 6.
Carmichael has failed to allege, plead, or identify any false and defamatory statement about him,
made via an unprivileged communication to a third party, to support a claim for slander. And to the extent
Carmichael endeavors to assert a federal slander claim, such is not cognizable. See, e.g., Charles v. Scarberry, 340 Fed. Appx. 597, 599–600 (11th Cir.2009). See also Thompson v. Barbour Cty. Sheriff's Dept.,
30
2009 WL 89284, *2 (M.D. Ala. Jan. 12, 2009): "....the law is well settled that a 42 U.S.C. § 1983 action
cannot be predicated upon the theory of slander.... Paul v. Davis, 424 U.S. 693 ... (1976); see also Von
Stein v. Brescher, 904 F.2d 572 (11th Cir.1990)."
For harassment, while Carmichael does not specify the type, he appears to attempt to assert a
constitutional violation given his allegations of verbal and physical threats. However, as noted in Grimage
v. Hilliard, 2016 WL 7049247, *9 (M.D. Fla. Dec. 5, 2016):
....Such allegations do not state a claim of federal constitutional dimension. See Hernandez v. Fla.
Dep't of Corr., 281 Fed.Appx. 862, 866 (11th Cir. 2008) (per curiam) (citing Edwards v. Gilbert,
867 F.2d 1271, 1274 n.1 (11th Cir. 1989)) (“Hernandez's allegations of verbal abuse and threats
by the prison officers did not state a claim because....verbal abuse alone is insufficient to state a
constitutional claim.")....
“[M]ere threatening language and gestures of a custodial office do not, even if true, amount
to constitutional violations.” Coyle v. Hughes, 436 F.Supp. 591, 593 (W.D. Okl[a]. 1977).
“Were a prisoner ... entitled to a jury trial each time that he was threatened with violence
by a prison guard, even though no injury resulted, the federal courts would be more burdened than ever with trials of prisoner suits....” Bolden v. Mandel, 385 F.Supp. 761, 764
(D. Md. 1974). See Johnson v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir. 1973) (the use of
words, no matter how violent, does not comprise a section 1983 violation).
McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.).....
See also e.g., Richburg v. Department of Corr., 2019 WL 6769003, *3 (M.D. Ala. Nov. 8, 2019), Report
& Recommendation adopted by 2019 WL 6769308 (M.D. Ala. Dec. 11, 2019) (same). Based on foregoing, Carmichael's civil harassment claim lacks merit. As such, Carmichael's slander and harassment
claims against all Defendants are DISMISSED.
F.
Declaratory and Injunctive Relief
Carmichael requests entry of a declaratory judgment and injunctive relief as to all of the defend-
ants. However, the record indicates that as of April 13, 2017, Carmichael was transferred from Holman
Correctional Facility to Donaldson Correctional Facility, and Carmichael has not alleged that he will or is
likely to return to Holman. (Doc. 6). Due to Carmichael's transfer, his declaratory and injunctive relief
requests are moot. As set forth in Lolley v. Louisiana Corr. Servs., 2012 WL 2154500 (S.D. Ala. Jun. 13,
2012):
31
......his claim for injunctive relief is moot. Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.1985)
(“[A]n inmate's claim for injunctive and declaratory relief in a section 1983 action fails to present
a case or controversy once the inmate has been transferred.”); Harrison v. Culliver, 2008 WL
2788352, at *3 (S .D.Ala. Jul. 17, 2008) (same); see also Harkless v. Toney, 2012 WL 1946506,
at *6 (S.D.Ala. Mar. 16, 2012) (“Because a claim for injunctive relief is a prospective remedy,
when the threat of future harm dissipates, the plaintiff's claims for equitable relief become moot
because the plaintiff no longer needs protection from future injury.”) (quoting Adler v. Duval Cnty.
Sch. Bd., 112 F.3d 1475, 1477 (11th Cir.1997) (internal punctuation omitted))....
See also Spears v. Thigpen, 846 F.2d 1327, 1328 (11th Cir.1988) (“Absent class certification, an inmate's
claim for injunctive and declaratory relief in a § 1983 action fails to present a case or controversy once
the inmate has been transferred[]”).
Moreover, the relief (declaratory and injunctive) sought by Carmichael is prospective (future looking). "Declaratory relief is by its nature prospective." McGee v. Solicitor Gen. for Richmond Cty., Ga.,
727 F.3d 1322, 1325 (11th Cir. 2013). "In contrast....[to] a claim for money damages [that] looks back in
time and is intended to redress a past injury." Adler v. Duval Cnty. Sch. Bd., 112 F.3d 1475, 1477 (11th
Cir. 1997). To have standing to seek declaratory relief, a plaintiff "'must show a sufficient likelihood that
he will be affected by the allegedly unlawful conduct in the future.'" Koziara v. City of Casselberry, 392
F.3d 1302, 1305 (11th Cir. 2004). "[T]he continuing controversy.....it must be real and immediate, and
create a definite, rather than speculative threat of future injury." Emory v. Peeler, 756 F.2d 1547, 1552
(11th Cir. 1985). A remote possibility of a future injury occurring is not adequate. Id. Likewise,
“[b]ecause injunctions regulate future conduct, a party has standing to seek injunctive relief if the party
alleges...a real and immediate – as opposed to a merely conjectural or hypothetical---threat of future injury.” Church v. City of Huntsville, 30 F. 3d 1332, 1337 (11th Cir. 1994) (emphasis in original). Carmichael has not made a specific showing (or even an allegation) of any likelihood of being subjected to
unlawful conduct (or future injuries) by a named Defendant in the future. See City of Los Angeles v.
Lyons, 461 U.S. 95, 104 (1983) (merely asserting that one may again be subject to unlawful conduct does
not generally give rise to standing to demand prospective relief). And as noted supra, Carmichael was
32
transferred from Holman and is currently incarcerated at a different facility. For these reasons Carmichael’s requests for declaratory and injunctive relief are dismissed as MOOT.
IV.
Conclusion71
It is ORDERED that the above-referenced motions for summary judgment are GRANTED as
follows:
1) Official capacity claims against all of the defendants - GRANTED;
2) Individual capacity claims:
a) Eighth Amendment excessive force claim -- GRANTED as to Defendants Arthur, Culliver,
Dunn, Duren, Edmonds, Fails, Finklea, Fountain, Gaston, Griffin, Hadley, Jones, Kidd, Knight,
Langford, Luitze, McClain, McCovery, Norris, Pacheco, Parker, Patterson, Pryor, Raybon, Scarbrough, Smith, Snelson, Stanford, Terry, Vignolo, Walker, Wall, Whitley and Wilson;
b) Eighth Amendment failure to protect claim -- GRANTED as to Defendants Culliver, Dunn,
Fails, Kidd, Langford, Raybon, Scarbrough, Smith, Vignolo and Wall;
c) Eighth Amendment denial/delay of medical care claim -- GRANTED as to Defendants
Langford and Wall;
d) State law assault and battery claims --GRANTED as to Defendants Arthur, Culliver, Dunn,
Duren, Edmonds, Fails, Finklea, Fountain, Gaston, Griffin, Hadley, Jones, Kidd, Knight, Langford,
Luitze, McClain, McCovery, Norris, Pacheco, Parker, Patterson, Pryor, Raybon, Scarbrough,
Smith, Snelson, Stanford, Terry, Vignolo, Walker, Wall, Whitley and Wilson;
e) slander and harassment claims –DISMISSED as to all Defendants; and
f) Declaratory and/or injunctive relief claims -- MOOT.
DONE and ORDERED this the 4th day of February 2020.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE
The motions for summary judgment of the defendants on the claims NOT
granted in this order remain under advisement.
71
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?