OLIVER v. WHITTINGTON et al
ORDER granting 33 Defendants' Motion for Summary Judgment. The Clerk is DIRECTED to enter judgment in favor of Defendants and CLOSE the case. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 5/19/2023 (TES)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ANTHONY J. OLIVER,
Warden LAWRENCE WHITTINGTON,
CIVIL ACTION NO.
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Anthony J. Oliver filed a Complaint pursuant to 42 U.S.C. § 1983
alleging that Defendants Warden Lawrence Whittington, Captain Melissa Lawson,
Officer Rick Deese, Officer Joseph Weaver, Officer Zachary Stanfield, and Officer
Turner1 were deliberately indifferent to Plaintiff’s safety by failing to protect him from
serious injury and sexual attacks by other prison inmates in violation of his rights
Plaintiff incorrectly named Crystal Turner as a Defendant because her only “role was taking [Plaintiff] to
the hospital.” [Doc. 33-4, Oliver Depo. II, pp. 51:16–19]. Plaintiff testified that while he believes “a proper
defendant . . . is Steven Turner,” around “15 to 20 officers with the name Turner” worked at the prison.
[Id. at p. 52:6–9]. The civil docket page lists “Officer Heather Turner,” defense counsel noted in Plaintiff’s
deposition that “[i]t appears that Crystal Turner was the one who was identified and served,” and
Plaintiff refers to a “Jonathan Turner” in his Response to Defendants’ Motion for Summary Judgment. [Id.
at p. 51:23–24]; [Doc. 1-5]; [Doc. 36, pp. 3, 10]. In any event, Plaintiff hasn’t added any other defendant
since he filed his Complaint [Doc. 1], or otherwise corrected any mistake either party made during
discovery regarding identifying and serving the correct “Turner.” Accordingly, the Court GRANTS
Summary Judgment as to Crystal Turner—the only named Defendant with the last name Turner.
secured by the U.S. and Georgia Constitutions.2 [Doc. 1, pp. 8–11]. Specifically, Plaintiff
alleges that Defendants knew he identified as a woman even though he is a man,
assigned him to a general population cell with a “known sexual predator” anyway,
failed to complete mandatory security checks on the night another inmate attacked him,
falsified their signature on the log sheets, and then “tore up” a grievance Plaintiff filed
about the assault. [Id. at pp. 3–11]. After discovery, Defendants filed a Motion for
Summary Judgment. [Doc. 33]. Upon review of the record and applicable law, the Court
GRANTS Defendants’ Motion for the reasons stated below. [Doc. 33].
Although born biologically male, Plaintiff later decided to identify as a female.
[Doc. 33-4, Oliver Depo. II, pp. 7–8]. Plaintiff testified that he3 spoke to prison staff
members about his chosen gender identity upon arrival at Wilcox State Prison (“WSP”)
in August or September 2020. [Id. at pp. 8–9]. Specifically, Plaintiff first told an intake
nurse at WSP that he was transgender, and “then [he] saw the PREA Coordinator,
Karen Dunnigan,” when he first arrived in “August or September of 2020.”4 [Id. at p.
Plaintiff only sued Defendants in their individual capacities. [Doc. 1, ¶¶ 33–35].
Plaintiff, his counsel, and counsel for Defendants have exclusively and, more importantly, accurately
used masculine pronouns to refer to Plaintiff. In accordance with its practice to use factually correct
terms, the Court does the same.
Plaintiff testified that after he spoke with the intake nurse about being transgender, “the intake nurse
was then required to inform Karen Dunnigan, the PREA Coordinator, ‘cause it was [his] understanding
that all the LGBT inmates were kept in one dorm at Wilcox State Prison, [although] they were not.” [Doc.
33-4, Oliver Depo. II, p. 9:2–6].
8:15–22]. In addition to informing the intake nurse and PREA Coordinator, Plaintiff
identified himself as transgender with the GDC one other time—“initially, when [he]
was first turned over from the sheriff to GDC through Jackson State Prison.” [Id. at p.
Nothing in the record indicates that Plaintiff suffers from gender dysphoria.
Plaintiff readily admitted that he doesn’t take any medications to assist him in changing
his gender, hasn’t undergone hormone therapy, and hasn’t otherwise taken any step to
start the gender-transformation process in any obvious way while incarcerated.5 [Doc.
33-4, Oliver Depo. II, at pp. 7–8].
Plaintiff also claims that when he first arrived at WSP, he spoke with Warden
Whittington, who was taking over for the outgoing warden at the time. [Id. at pp. 35–
38]. Specifically, Plaintiff alleges he told Warden Whittington that he identified as a
woman and asked whether the prison had “a specific dorm for LGBTQ offenders.”6 [Id.
at p. 36:2–3]. Plaintiff testified that Warden Whittington responded, “no, I don’t have
one because if I did that, it would create a problem if I put all the LGBTQ inmates in one
During his deposition, Plaintiff testified that he saw two physicians in Florida around 2019 to discuss
the gender-transformation process. [Doc. 33-4, Oliver Depo. II, pp. 7–8]. Defense counsel then asked
Plaintiff, “Has there been any sort of transformation at all since then, or any medical sort of drugs, or
anything like that taken since 2019?” [Id. at p. 8:7–9]. Plaintiff responded, “I tried to start that process
while incarcerated in GDC, but it’s a very big hurdle to get over, and it’s not something the GDC wants to
pay for. And it’s—it’s really been a huge hurdle to try and get over.” [Id. at p. 8:10–14].
Counselor Brandon McDuffie, Plaintiff’s assigned counselor, was also present for this discussion. [Doc.
33-4, Oliver Depo. II, p. 37].
dorm.” [Id. at p. 36:3–5].7
On October 28, 2020, prison officials assigned Plaintiff to segregation in the J-1
building at WSP because Chatham County Sheriff John Wilcher told Warden
Whittington that Plaintiff sent threatening letters and emails to the Clerk of Chatham
County. [Doc. 33-5, Whittington Aff., ¶ 9]; [Doc. 33-6, Lawson Aff., ¶ 7]. Warden
Whittington didn’t tell Plaintiff why prison officials assigned him to segregation so that
they could protect the integrity of the investigation into Sheriff Wilcher’s allegations
against Plaintiff.8 [Doc. 33-5, Whittington Aff., ¶¶ 10–11].
For several weeks while Plaintiff was in segregation, Anquavious Morgan,
another inmate in segregation, “tr[ied] to entice [Plaintiff]” to move into his cell with
him and asked Plaintiff if he was homosexual through the window in their inmate
doors. [Doc. 33-3, Oliver Depo. I, pp. 22:24—23:2, 23:25—24:1]. However, Morgan
apparently did more than ask questions, he also made lewd threats. Specifically,
Plaintiff testified that Morgan told Plaintiff, “I’m going to fuck your tight, pink ass,”
and that “he was going to make arrangements for that to happen.” [Doc. 33-4, Oliver
But, Warden Whittington doesn’t recall it this way. In contrast, Whittington testified that he “had no
knowledge that [Plaintiff] is or claimed to be transgendered until [he] was informed that the alleged
assault by Morgan on [Plaintiff] had occurred.” [Doc. 33-5, Whittington Aff., ¶ 14]. As described later, the
Court accepts Plaintiff’s version of their conversation as required when considering motions for summary
This doesn’t necessarily conflict with Plaintiff’s testimony. Plaintiff said he “couldn’t find out” why he
was in segregation. [Doc. 33-4, Oliver Depo. II, p. 13:12]. At one point, he asked Warden Whittington why
he was in segregation, but Whittington responded by asking him why he was in there. [Id. at p. 13].
However, Plaintiff testified that he didn’t even think that Warden Whittington knew why he was in there.
[Id. at p. 14:3–6].
Depo. II, p. 17:5–9]. Plaintiff reported some of Morgan’s comments—namely, that he
kept offering Plaintiff drugs and insisted that he would get Plaintiff into his cell with
him—to Officer Carruthers. [Doc. 33-3, Oliver Depo. I, p. 25:12–20]. Plaintiff alleges that
“all” officers called Morgan the “booty bandit”—including Officers Turner and
Stanfield—and that “the staff listened to everything [Morgan] said.”9 [Id. at p. 24:20—
25:8]. In fact, according to Plaintiff, Morgan “was quite friendly with the prison
guards,” and “[t]he guards were always passing him contrabands [sic].” [Id. at p. 23:3–
Although Morgan asked Plaintiff if he was gay and offered him drugs, Plaintiff
testified that Morgan never made any violent threats toward him before the November
25th incident. [Id. at p. 25]. And although Plaintiff correctly described Morgan’s
comments as “filthy,” “derogatory,” and “all sexual,” he ultimately characterized and
considered them as “trash-talking.” [Doc. 33-4, Oliver Depo. II, pp. 16:20, 17:17, 17:24];
see also [Doc. 33-3, Oliver Depo. I, p. 24:15–24 (“And he was asking—he was asking me
if I wanted to engage in any sexual contact with him or sexual activity and that he can
get me moved into his cell.”)]. As Plaintiff explained, “there’s nothing to do in
Each Defendant denies having any knowledge of others in the prison referring to Morgan by this
moniker. [Doc. 33-5, Whittington Aff., ¶ 15]; [Doc. 33-6, Lawson Aff., ¶ 12]; [Doc. 33-7, Deese Aff., ¶ 21];
[Doc. 33-8, Weaver Aff., ¶ 16]; [Doc. 33-9, Stanfield Aff., ¶ 7]. According to Plaintiff, “one of the women
gave [Morgan] the nickname ‘Booty Bandit,’” and when he “first heard [the nickname] come out of an
officer’s mouth, it came from Officer Young and Carruthers [who is female].” [Doc. 33-3, Oliver Depo. I,
p. 25:7–8]; [Doc. 33-4, Oliver Depo. II, p. 23:13–18]. But, Plaintiff didn’t sue Officers Young and
segregation except talk through the door.” [Doc. 33-4, Oliver Depo. II, p. 18:8–9].
On November 25, 2020,10 Officers Stanfield and Turner11 moved Plaintiff from an
individual cell to a two-person cell in segregation at the J-1 building with Morgan so
they could make room for other inmates.12 [Doc. 33-4, Oliver Depo. II, pp. 15–16, 22];
[Doc. 33-9, Stanfield Aff., ¶ 5]. Plaintiff told Officer Stanfield that he wasn’t going into a
cell with Morgan, the “Booty Bandit.” [Doc. 33-3, Oliver Depo. I, pp. 22:17—23:3, 26:12–
13]. Plaintiff testified that Officer Turner said they would tase or spray Plaintiff with
pepper spray if he didn’t move into Morgan’s cell. [Doc. 33-4, Oliver Depo. II, p. 20:15–
19]; see also [Doc. 33-3, Oliver Depo. I, pp. 26:25—27:2 (Plaintiff testified that at this
point, “Turner acknowledged he knew it was ‘booty bandit[.]’”)].
While Plaintiff confirmed he “was looking for an excuse not to get in” Morgan’s
cell, he explained he “had a legitimate reason.” [Doc. 33-4, Oliver Depo. II, p. 21:8–9].
Considering the particular record in this case, it’s somewhat difficult to ascertain the exact date and
time when Plaintiff’s allegations occurred. Plaintiff, understandably, testified that he “never look[s] at a
calendar,” and that “[w]e don’t have any clocks or calendars. I can only go by what staff says . . . .” [Doc.
33-3, Oliver Depo. I, p. 22:9–10]; [Doc. 33-4, Oliver Depo. II, p. 15:9–11]. That said, Plaintiff believes
officials moved him to Morgan’s cell “the morning of the 25 th, the day before Thanksgiving.” [Doc. 33-4,
Oliver Depo. II, 15:13–14]. However, during another part of his deposition, Plaintiff testified that “he
believe[s] Thanksgiving was on the 26th,” and that he moved into Morgan’s cell on “the morning of
Thanksgiving.” [Doc. 33-3, Oliver Depo. I, p. 22:9–14]. Doing the best that it can to determine the most
accurate timeline, the Court assumes that Plaintiff moved into Plaintiff’s cell on November 25, and that
the attack occurred at some point during the night of November 25 going into the morning of November
26. [Id. at p. 22:11–12 (“I was only in there for one night”)].
This time, Plaintiff described Turner as “Steven Turner, which is a man, he’s about six-foot-three, sixfoot-four, tall black man with glasses.” [Doc. 33-4, Oliver Depo. II, p. 15:16–18]. See supra, n.1.
At this time, the investigation concerning Plaintiff’s alleged threats towards the Clerk of Chatham
County was still ongoing. [Doc. 33-5, Whittington Aff., ¶¶ 9–11].
Specifically, a doctor signed a “bottom[-]bunk order” for Plaintiff, and he was “not
supposed to be on a top bunk at all.”13 [Id. at p. 9–11]. Because the officers knew Plaintiff
had a bottom-bunk profile, but spoke with Morgan beforehand and directed Plaintiff
into his room anyway, Plaintiff inferred that “the officers and Morgan had it worked
out where [Plaintiff] was going to be climbing on the top bed.” [Id. at pp. 21:13–15,
After moving into Morgan’s cell, “Morgan took off all his clothes down to his
underwear.” [Doc. 33-3, Oliver Depo. I, p. 29:10–17]. Plaintiff then flagged down Officer
Turner when he walked by and told him he needed to leave the cell. [Id. at p. 29].
However, Morgan kept yelling at Turner to leave Plaintiff in the cell, “[s]o Turner said,
‘I’ll be back.’” [Id. at p. 29:14–15]. Around this time, Plaintiff alleges that Morgan
persistently asked him sexual questions, but then they “talked about other stuff . . . just
to bypass the time because Stanfield and Turner told [Plaintiff] that Captain Lawson
was on her way to release [him].” [Doc. 33-4, Oliver Depo. II, p. 25:2-10].
Then, after about four hours of talking to Morgan in his cell, Officer Turner
pulled Plaintiff out of the cell so that medical staff could check him for Covid-19. [Doc.
33-3, Oliver Depo. I, pp. 29–30]; [Doc. 33-4, Oliver Depo. II, pp. 24–25]. Plaintiff
contends that he told Stanfield, Turner, and the nurse that he didn’t feel comfortable
Importantly, Plaintiff did not list his fear of sexual assault or physical injury as a “legitimate reason”
not to enter Morgan’s cell, only his bottom-bunk profile that would prevent him from sleeping on the top
with Morgan in his cell because he thought Morgan was going to do something, had
“his penis hanging out,” and made “a lot of sexual comments and statements about
doing stuff.”14 [Doc. 33-4, Oliver Depo. II, 25:15–24]. Specifically, Plaintiff testified that
he “started pleading with Turner outside the medical room not to go back to the Cell
212 with Morgan,” but Officer Turner “said it wasn’t his call.” [Doc. 33-3, Oliver Depo.
I, p. 30:19–21]. However, Plaintiff confirmed that at this point, which Plaintiff thought
was around 11:00 a.m. the morning before the attack,15 Morgan had yet to make any
specific threat toward him. [Doc. 33-4, Oliver Depo. II, p. 26:11–14].
When Plaintiff got back to Morgan’s cell after leaving medical, Morgan “was in
bed in his underwear masturbating as [Plaintiff] was walking in.” [Doc. 33-3, Oliver
Depo. I, p. 31:7–9]. Plaintiff testified that he pretended not to pay him any attention and
then used the bathroom. [Id. at p. 31:12–14]. Afterwards, he then tried “to call for
Stanfield or Turner to call Captain Lawson, because [he] just knew something was
wrong at this point.” [Id. at p. 31:17–20]. Around this time (10:30 or 11:00 a.m., because
“lunch came early that day”), Morgan asked Plaintiff if he wanted to give him oral sex,
and Plaintiff told him no. [Id. at pp. 32:21–25; 33:3–12]. After about 15 or 20 minutes
Plaintiff contends that he told Nurse Randy Chastain about some of Morgan’s sexual comments and
that Nurse Chastain noted his concerns in the medical records. [Doc. 33-4, Oliver Depo. II, pp. 25–26]
However, Plaintiff never put the medical records into evidence.
In another part of his deposition, Plaintiff testified that he believed he left medical to go back to his cell
around 9:30 a.m. [Doc. 33-3, Oliver Depo. I, pp. 30:24—31:4].
went by, and Morgan went “berserk,” accusing Plaintiff of being a child molester and
stating that Turner and Stanfield told him that Plaintiff was a child molester. 16 [Id. at p.
33:3–6]; see also [id. at pp. 27–28, 33].
After that discussion, Plaintiff told Morgan that he had a release order that
Captain Lawson signed that would release him from the segregation unit. [Doc. 33-3,
Oliver Depo. I, pp. 33–34]. However, Morgan told Plaintiff “[y]ou’re staying right here
with me” and that his release order didn’t matter. [Id. at p. 34:1–3].
Plaintiff applied for release from segregation in the middle of November 2020
and received the release order from Captain Lawson “[a]bout a week before the
incident.” [Id. at p. 34:4–6]. According to Plaintiff, Captain Lawson took Plaintiff’s
proposed release order and gave it to the warden who then signed it and gave it back to
Captain Lawson. [Id. at p. 34]. However, Plaintiff contradicted himself later in his
deposition. That is—Plaintiff testified that at some point after being in segregation, he
called a lawyer in Illinois, asked him to call the warden’s office to inform him that he
had “been sitting here for a while and no access [sic] to the law library,” and that
Plaintiff should be released from segregation. [Doc. 33-4, Oliver Depo. II, p. 14:9–13].
According to Plaintiff, Warden Whittington then came to his cell with “a request to be
released.” [Id. at p. 14:14–15]. Plaintiff filled it out, and Warden Whittington signed it,
To be clear, Plaintiff testified that he is not a registered sex offender. [Doc. 33-3, Oliver Depo. I, p. 33:15–
detached a copy and gave Plaintiff a receipt for it, and then gave the original to Captain
Lawson and told her to release Plaintiff.17 [Id. at p. 14:15–20].
In any event, Plaintiff alleges that Lawson refused to follow the warden’s order
and didn’t want to release him. [Doc. 33-3, Oliver Depo I, p. 34]. Plaintiff claims that he
was supposed to be released from segregation “immediately,” although that didn’t
happen.18 [Id. at p. 35]. When Captain Lawson came into Plaintiff’s building to hand out
Thanksgiving lunch, she was in a bad mood, told Plaintiff that she didn’t want to be
there, released only three or four inmates from segregation back to general population,
and told Plaintiff that although she had his release order, he wasn’t going anywhere.
[Id. at pp. 34–36]. Captain Lawson didn’t give Plaintiff a reason for not releasing him.
[Id. at p. 36:21–24].
Around 6:00 p.m., Plaintiff contends that he went to the door of his cell and told
prison officers—including Officer Deese—that he needed to leave the cell because he
didn’t feel safe and had a release order meant to remove him from segregation. [Doc.
33-3, Oliver Depo. I, p. 39]. Plaintiff claims that Officer Deese told him that he wasn’t
Warden Whittington testified that he “did not control regular transfer requests regarding housing of
inmates.” [Doc. 33-5, Whittington Aff., ¶ 13]. Instead, according to him, prison staff members forwarded
inmate transfer requests “to the Deputy Warden of Administration for review and either approval or
denial.” [Id.]. This may be technically correct. However, taking Plaintiff’s testimony as true, Warden
Whittington had at least some impact on placing and moving inmates within the prison.
Specifically, Plaintiff testified: “[Warden Whittington] gave it to [Captain Lawson] on a Tuesday. I was
supposed to be released the—the upcoming Thursday. The day—the night before the sexual assault
occurred. And eventually, I was released after the sexual assault.” [Doc. 33-4, Oliver Depo. II, p. 14:21–
going anywhere and to “take that up with the captain tomorrow.” [Id. at p. 39:9–10].
Plaintiff also testified that around 6:30 or 7:00 p.m., when Deese and Weaver walked by
his cell, Morgan had not made any threats toward him. [Doc. 33-4, Oliver Depo. II, p.
58]. Around 9:00 p.m., when Plaintiff saw Officer Weaver signing the log sheets,
Plaintiff told Officer Weaver that he didn’t feel safe and wanted to go to another cell.
[Doc. 33-3, Oliver Depo. I, p. 39]. Like Officer Deese, Officer Weaver told him to “talk to
the captain tomorrow.” [Id. at p. 39:19].
Critically, in response to Defendants’ Statement of Undisputed facts, Plaintiff
indisputably, clearly, and unambiguously admitted that “[a]ny threats made by Morgan
to Oliver prior to November 25, 2020, though sexual in nature, were characterized by
Oliver as ‘trash-talking’ and were not communicated to any Defendant.” [Doc. 36-1, ¶
30 (emphasis added)]. Just as importantly, Plaintiff also unequivocally admitted that
“[n]o specific threats were made to Oliver by Morgan on November 25, 2020, prior to
when Oliver was attacked that evening.” [Id. at p. 8, ¶ 31].
Morgan attacked and raped Plaintiff at some point between 9:00 p.m. on
November 25, 2020, and the early morning hours of November 26, 2020.19 See generally
Specifically, Plaintiff testified that, “After [Morgan] smoked something, it was probably 8:30, 9:00,
maybe eight o’clock. [Morgan] pulled me from the top bunk and began punching me.” [Doc. 33-4, Oliver
Depo. II, p. 28:18–20]. Again, it is somewhat difficult to determine the precise timeline of events in this
case. According to Plaintiff, he was moved into Morgan’s cell in the morning on the same day he was
attacked. [Doc. 33-3, Oliver Depo. I, pp. 21–22]. However, Defendant Stanfield stated in his affidavit that
his shift ended around 6:00 p.m. on the night of the attack, “which was directly after [he] moved Oliver
into the cell with Morgan.” [Doc. 33-9, Stanfield Aff., ¶ 10]. In any event, neither party disputes that
Plaintiff only spent one night in Morgan’s cell, and Morgan attacked Plaintiff on that night.
[Doc. 33-3, Oliver Depo. I]; [Doc. 33-4, Oliver Depo. II]. Morgan had been consuming
drugs before raping and attacking Plaintiff and “was extremely high on marijuana.”
[Doc. 33-3, Oliver Depo. I, p. 37:23–24]; [Doc. 33-4, Oliver Depo. II, pp. 26–28].
Specifically, Morgan pulled Plaintiff from the top bunk in the cell, body-slammed him
to the ground (breaking his back), and then raped him orally and anally. [Doc. 33-4,
Oliver Depo. II, pp. 28–34]. Morgan then forced Plaintiff to drink chemicals to eliminate
traces of Morgan’s semen. [Id.].
The Court will discuss additional facts and allegations as they become relevant in
the analysis below.20
The parties dispute several facts in this case. The Court mentions a few of them here. First, the parties
dispute whether Defendants knew whether Plaintiff was transgender before Morgan raped him. See [Doc.
33-5, Whittington Aff., ¶ 14]; [Doc. 33-6, Lawson Aff., ¶ 11]; [Doc. 33-7, Deese Aff., ¶ 20]; [Doc. 33-8,
Weaver Aff., ¶ 15]; [Doc. 33-9, Stanfield Aff., ¶ 11]. Second, Plaintiff testified that he told Defendants
Deese and Weaver that he needed to get away from Morgan and “needed to be removed from the cell,”
but that Deese and Weaver “just kept on walking.” [Doc. 33-4, Oliver Depo. II, p. 58:2–4]. However,
Defendant Deese stated that “[a]t no time [prior to Morgan attacking Plaintiff] did [he] have contact with
Oliver, nor did [he] hear [Plaintiff] state that he needed to be removed from his cell with inmate
Anquavious Morgan.” [Doc. 33-7, Deese Aff., ¶¶ 8–11]. Defendant Weaver said the same. [Doc. 33-8,
Weaver Aff., ¶ 12]. The parties also dispute whether Defendants Deese and Weaver falsified the logs that
GDC policy required them to sign. See [Doc. 36, pp. 6–7]; [Doc. 33-7, Deese Aff., ¶ 23]; [Doc. 33-8, Weaver
Aff., ¶ 18]. Finally, Plaintiff testified that “[w]hen Deese looked in” Plaintiff’s cell after Morgan attacked
him, “he saw blood on the back of [his] pants, and he said, ‘okay, I’m going to get you out, sit tight.’”
[Doc. 33-4, Oliver Depo. II, p. 62:18–20]. However, Defendant Deese stated in his affidavit that he “did not
observe any blood or any other fluids on the person of Oliver or in the cell that [he] secured.” [Doc. 33-7,
Deese Aff., ¶ 15]. But, “[a]n issue of fact is ‘material’ if, under the applicable substantive law, it might
affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259–60 (11th Cir.
2004); United States Sugar Corp. v. Commerce & Indus. Ins. Co., 22-21737-Civ-Scola, 2023 WL 2757027, at *4
(S.D. Fla. Apr. 3, 2023).
As outlined in the legal standard below, “on summary judgment, the district court must accept as fact all
allegations the [nonmoving] party makes, provided they are sufficiently supported by evidence of
record.” Sconiers v. Lockhart, 946 F.3d 1256, 1263 (11th Cir. 2020) (internal citations omitted). The Court
Summary Judgment Standard
A court must 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). A factual dispute is not genuine unless, based on
the evidence presented, “‘a reasonable jury could return a verdict for the nonmoving
party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002)
(quoting U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The moving party bears the
initial responsibility of informing the court of the basis for its motion.” Four Parcels, 941
F.2d at 1437 (citations and punctuation omitted). The movant may cite to particular
parts of materials in the record, including “‘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.” Id. (punctuation
omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); Fed. R. Civ. P.
“When the nonmoving party has the burden of proof at trial, the moving party is
not required to ‘support its motion with affidavits or other similar material negating the
Courts may consider all materials in the record, not just those cited by the parties. Fed. R. Civ. P.
opponent’s claim’ in order to discharge this ‘initial responsibility.’” Four Parcels, 941
F.2d at 1437–38 (quoting Celotex, 477 U.S. at 323). Rather, “the moving party simply may
show—that is, point out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.” Id. (quoting Celotex, 477 U.S. at 324) (cleaned up).
Alternatively, the movant may provide “affirmative evidence demonstrating that the
nonmoving party will be unable to prove its case at trial.” Id. at 1438.
If this initial burden is satisfied, the burden then shifts to the nonmoving party,
who must rebut the movant’s showing “by producing . . . relevant and admissible
evidence beyond the pleadings.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d
1292, 1315 (11th Cir. 2011) (citing Celotex, 477 U.S. at 324). The nonmoving party does
not satisfy its burden “if the rebuttal evidence ‘is merely colorable, or is not significantly
probative’ of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249–50). “A mere
scintilla of evidence supporting the [nonmoving] party’s position will not suffice.” Allen
v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citations and punctuation
omitted). Further, where a party fails to address another party’s assertion of fact as
required by Federal Rule of Civil Procedure 56(c), the Court may consider the fact
undisputed for the purposes of the motion. Fed. R. Civ. P. 56(e)(2). However,
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Anderson,
477 U.S. at 255. Succinctly put,
[s]ummary judgment is not a time for fact-finding; that task is reserved for
trial. Rather, on summary judgment, the district court must accept as fact
all allegations the [nonmoving] party makes, provided they are sufficiently
supported by evidence of record. So[,] when competing narratives emerge
on key events, courts are not at liberty to pick which side they think is more
credible. Indeed, if “the only issue is one of credibility,” the issue is factual,
and a court cannot grant summary judgment.
Sconiers v. Lockhart, 946 F.3d 1256, 1263 (11th Cir. 2020) (internal citations omitted).
Stated differently, “the judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. “The evidence of the [nonmovant] is to be believed, and
all justifiable inferences are to be drawn in his favor.” Id. at 255. And “if a reasonable
jury could make more than one inference from the facts, and one of those permissible
inferences creates a genuine issue of material fact, a court cannot grant summary
judgment”; it “must hold a trial to get to the bottom of the matter.” Sconiers, 946 F.3d at
Defendants’ Motion for Summary Judgment
In support of their Motion, Defendants contend that they are entitled to qualified
immunity because they “are not aware of a single United States Supreme Court,
Eleventh Circuit[,] or Georgia Supreme Court case that clearly establishes that their
conduct as shown by the evidence in this case amounts to a violation of law.” [Doc. 332, p. 14].
“The defense of qualified immunity completely protects government officials
performing discretionary functions from suit in their individual capacities unless their
conduct violates clearly established statutory or constitutional rights of which a
reasonable person would have known.” Marbury v. Warden, 936 F.3d 1227, 1232 (11th
Cir. 2019) (citations and quotations omitted). Since neither party disputes that
Defendants acted within the scope of their discretionary authority as correctional
officers working at WSP at all relevant times, the burden shifts to Plaintiff to show that
Defendants violated a constitutional right and that the right was clearly established at
the time of the alleged violation.
Eighth Amendment Claim
Violent assaults in prison are not “part of the penalty that criminal offenders pay
for their offenses against society.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation
omitted). And, no one disputes that prison officials must reasonably protect prisoners
from violence at the hands of other prisoners and that a prison official’s deliberate
indifference to a substantial risk of serious harm violates the Eighth Amendment. Id. at
828, 833 (citation omitted). That said, “[i]t is not . . . every injury suffered by one
prisoner at the hands of another that translates into constitutional liability for prison
officials responsible for the victim’s safety.” Id. at 834 (emphasis added).
To establish a § 1983 claim for deliberate indifference, the prisoner must first
“show that he is incarcerated under conditions posing a substantial risk of serious
harm.” Id. (citation omitted). Second, “a prison official must have a ‘sufficiently
culpable state of mind’ . . . one of ‘deliberate indifference’ to [the prisoner’s] health or
safety[.]” Id. (citations omitted). Even if the prisoner shows an Eighth Amendment
violation, the prisoner must also be able to demonstrate “causation” between that
violation and the prison official’s conduct. Marbury, 936 F.3d at 1233. In short, “[t]o
survive summary judgment on a deliberate indifference failure-to-protect claim,
‘[Plaintiff] must produce sufficient evidence of (1) a substantial risk of serious harm; (2)
. . . [D]efendant[s’] deliberate indifference to that risk; and (3) causation.’” Mosley v.
Zachary, 966 F.3d 1265, 1270 (11th Cir. 2020) (citing Caldwell v. Warden, FCI Talladega, 748
F.3d 1090, 1099 (11th Cir. 2014)).
Substantial Risk of Serious Harm
Turning first to whether Plaintiff faced a substantial risk of serious harm, this
element “is assessed objectively and requires [Plaintiff] to show ‘conditions that were
extreme and posed an unreasonable risk of serious injury to his future health or
safety.’” Marbury, 936 F.3d at 1233 (quoting Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir.
2016)). “[A]n excessive risk of inmate-on-inmate violence at a jail creates a substantial
risk of serious harm.” Lane, 835 F.3d at 1307 (citations omitted). However, “occasional,
isolated attacks by one prisoner on another may not constitute” an Eighth Amendment
violation. Id. Instead, it is “confinement in a prison where violence and terror reign
[that] is actionable.” Id.
There are two ways by which Plaintiff can show an objectively substantial risk of
serious harm: (1) by presenting an individual risk that is personal to him, or (2) by
showing an environmental risk based on generally dangerous prison conditions. See
Bugge v. Roberts, 430 F. App’x 753, 758 (11th Cir. 2011); Marbury, 936 F.3d at 1234
(citations omitted) (“To establish deliberate indifference based on a generalized risk, the
plaintiff must show ‘that serious inmate-on-inmate violence was the norm or something
close to it.’”). Here, Plaintiff must proceed on the individualized-risk track because he
failed to submit any evidence into the record showing that WSP is a generally
However, Plaintiff fails to show an objectively substantial risk personal to him.
See generally [Doc. 1]; [Doc. 36]. Instead, Plaintiff seems to argue that simply because he
is a man that claims to be a woman, he was at a substantial risk of serious injury from
Morgan or other inmates. Plaintiff seemingly would have the Court plow new
Constitutional ground to require all prison officials to provide every transgender
prisoner with additional protections simply because they identify as the opposite
In addition to Plaintiff’s transgender status, Plaintiff attempts to argue that he
was in danger because of Morgan’s statements and past behavior. But the evidence in
this record doesn’t support that conclusion. To begin, Plaintiff testified that before
Even if Plaintiff attempted to take this route and argue that WSP is a generally dangerous institution, he
would not be successful because “he has made no allegations regarding the specific features of the prison
that would make it particularly violent.” Marbury, 936 F.3d at 1235.
moving into Morgan’s cell, Morgan did not make any threats of violence towards him.
[Doc. 33-3, Oliver Depo. I, p. 25]; [Doc. 36-1, ¶ 31]. Instead, he described Morgan’s
comments as “trash-talking,” “filthy,” and “all sexual” and further, he admitted that he
never relayed this “sexual” trash talk to any Defendant. [Doc. 33-4, Oliver Depo. II, p.
17:17, 17:24]; [Doc. 36-1, ¶ 30]. Had he told Defendants that Morgan specifically
threatened to rape or sexually assault him, that would likely have been enough to
survive summary judgment. However, Plaintiff specifically admitted that he never
reported any threat to any Defendant. [Doc. 36-1, ¶¶ 30–31].23
In the Eleventh Circuit, “[t]here must be a ‘strong likelihood’ of injury, ‘rather
Notwithstanding Plaintiff’s admissions that he never told any Defendant of any threat or of the sexual
remarks that Morgan made to him, Plaintiff attempts to deny that he never told certain Defendants of
threats to his safety in paragraphs 17, 20, 23, and 26 of his Response [Doc. 36-1] to Defendants’ Statement
of Undisputed Facts. It is important to note that Plaintiff never submitted an affidavit in opposition to
Defendants’ motion. It is axiomatic that a party cannot make contradictory statements so as to create a
genuine issue of material fact sufficient to defeat a motion for summary judgment.
However, general, blatantly contradicted and merely “[c]onclusory, uncorroborated
allegations by a plaintiff in [his verified complaint or] an affidavit . . . will not create an
issue of fact for trial sufficient to defeat a well-supported summary judgment
motion.” Solliday v. Fed. Officers, 413 F. App’x 206, 207 (11th Cir. 2011) (citing Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)). In addition, conclusory
allegations based on purely subjective beliefs of a plaintiff and assertions of which he lacks
personal knowledge are likewise insufficient to create a genuine dispute
of material fact. See Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997).
Chambers v. Meeks, 2:18-CV-558-SRW, 2021 WL 2926289, at *3 (M.D. Ala. July 12, 2021). See also Denney v.
City of Albany, 247 F.3d 1172, 1184 (11th Cir. 2001) (holding that Plaintiffs’ admissions made in connection
with Defendants’ statement of material facts in support of their motion for summary judgment conflicted
with Plaintiffs’ argument, and that the court “could decide the appeal on this basis alone”); Jones v.
Gerwens, 874 F.2d 1534, 1537 n. 3 (11th Cir. 1989) (treating fact as conceded, in accordance with local
district court rule, where party opposing summary judgment failed to controvert the fact as described in
the movant’s statement of undisputed material facts); American Nat’l Bank v. FDIC, 710 F.2d 1528, 1536
(11th Cir. 1983) (applying doctrine of judicial estoppel, which applies “to the calculated assertion of
divergent sworn positions”).
than a mere possibility’” before liability under the Eighth Amendment will attach.
Brooks v. Warden, 800 F.3d 1295, 1301 (11th Cir. 2015). Plaintiff’s deliberate indifference
claim fails because he has not demonstrated a genuine issue of material fact as to
whether he faced a strong likelihood of a substantial risk of injury based on sexual trash
talk that no defendant knew anything about. And Plaintiff hasn’t identified a single case
holding that “trash talk,” even "filthy,” “all sexual” “trash talk,” automatically rises to a
level that, if actually communicated to a prison official, would put those prison officials
on notice of a strong likelihood of a substantial injury.
Plaintiff never offered any evidence that other inmates had told him about an
occasion when Morgan had ever raped or attacked another inmate.24 In fact, Plaintiff
hasn’t offered any evidence at all that Morgan had ever raped or assaulted anyone prior
to the night he raped him. Although Plaintiff referred to Morgan as a “known sexual
predator” in his Complaint [Doc. 1, ¶ 12], and then described him as having
“propensities of sexually assaulting other offenders who were gay, bisexual[,] or
transgender inmates” in his Response to Defendants’ Motion for Summary Judgment,
[Doc. 36, p. 3], when it came time to back up these bold accusations with actual
However, on deposition, Plaintiff testified that he remembers that Morgan “had one [cellmate], one
day, and the female officers had to rush him out of there real fast.” [Doc. 33-4, Oliver Depo. II, p. 18:16–
18]. Everyone told the other inmate not to go into the cell with Morgan, but “the guy didn’t know any
better. He was probably in there maybe eight or nine hours.” [Id. at p. 19:5–7]. Plaintiff said that he didn’t
know the specifics behind why the other inmate had to leave the cell “on such a short, short notice,” but
that he could “only imagine” because Morgan is “a high-violent, gang member.” [Id. at p. 19:10–22].
Needless to say, this vague and speculative description of an earlier incident doesn’t help Plaintiff’s case.
admissible evidence, he offered none. It goes without saying that when it comes to
opposing a motion for summary judgment, one must rely on evidence, not rhetoric.
Simply saying that someone is a sexual predator isn’t enough.
And accepting Plaintiff’s allegations as true—that Morgan made “trash-talking”
comments to him and that others called him the “Booty Bandit”—Plaintiff still fails to
show how Morgan was in any way more likely to rape and attack him than any other
inmate, especially because Plaintiff admitted he never told any Defendant about any
threats or even the sexual comments. [Doc. 33-4, Oliver Depo. II, p. 17:17]; [Doc. 36-1,
Based on binding precedent, mere possibilities of an assault are never enough—
Plaintiff needed to plausibly allege a strong likelihood of serious harm. Brooks, 800 F.3d
at 1301. Here, when it comes to actual evidence, Plaintiff can at best show that he was a
transgender inmate who was housed with another inmate who made filthy trash talk
about sexual things. He offers no admissible evidence that Morgan was a “known
sexual predator” or that Morgan had ever sexually assaulted any inmate. This evidence
does not rise to a sufficient level to show that he was “incarcerated under conditions
posing a substantial risk of serious harm.” Mosley, 966 F.3d at 1270 (citations omitted).
Simply put, his Eighth Amendment claim fails.
His inability to establish the first element could end the analysis. However, out
of an abundance of caution, the Court will, for argument’s sake, assume that even if the
facts of this case could demonstrate a substantial risk of serious harm, there is nothing
in the record to show that Defendants were aware of—or were deliberately indifferent
Deliberate Indifference to a Substantial Risk of Serious Harm
The second element—whether Defendants were deliberately indifferent to the
substantial risk of serious harm—“has both a subjective and an objective component.”
Marbury, 936 F.3d at 1233; Mosley, 966 F.3d at 1270. That is, Plaintiff must show both
that Defendants actually—or subjectively—knew that he faced a substantial risk of
serious harm and that they disregarded that known risk by failing to respond to it in an
objectively reasonable manner. Mosley, 966 F.3d at 1270 (citations omitted). Even if
Plaintiff can establish that Defendants actually knew of a substantial risk to his safety,
Defendants “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 844–45.
Plaintiff’s Specific Claims Against Each Defendant
In short, and by Plaintiff’s own clear admission, Morgan didn’t make any threats
of violence towards Plaintiff before he was moved into the same cell with Morgan.
[Doc. 36-1, ¶ 31]. And, as the Court has repeatedly mentioned, Plaintiff admitted that he
never communicated any sexual threat of any sort to any Defendant. [Id. at ¶ 30].
Therefore, to survive summary judgment, Plaintiff must provide evidence showing that
Defendants learned of threats of violence to Plaintiff that Morgan made after Plaintiff
moved into his cell. He hasn’t. To show why, let’s break down whether each Defendant
could have known about any potential threat to Plaintiff’s safety after Plaintiff moved
into Morgan’s cell.
First, Defendant Whittington testified that he “at no point” spoke with Plaintiff
about threats he received from other inmates, but that “[a]ny conversations [he] did
have with [Plaintiff] prior to the assault by Morgan were limited to [Plaintiff] asking
why he was in segregation and when he could be transferred back to the general
population.” [Doc. 33-5, Whittington Aff., ¶¶ 5, 12]. If Plaintiff ever did alert Warden
Whittington of any threat from Morgan, Warden Whittington testified that he would
have immediately removed Plaintiff from his specific cell and placed him in protective
custody while the Sexual Assault Response Team (“SART”) investigated any potential
danger to him. [Id. at ¶ 6]. Plaintiff himself testified in his deposition that he “never
spoke to [Whittington] about—about him, about Morgan.” [Doc. 33-4, Oliver Depo. II,
p. 35:5–6]. Instead, Plaintiff simply said that “Warden Whittington was already
knowledgeable who [Morgan] was . . . .”25 [Id. at p. 35:6–7]. Plaintiff testified that before
the attack, any conversation he had with Warden Whittington—excluding his
discussion about his transgender status upon his arrival at WSP—was limited to why
When defense counsel asked Plaintiff in his deposition, “Mr. Oliver, so you didn’t have any
conversations with Warden Whittington about Morgan prior to your attack, correct?” Plaintiff responded,
“No, I did not.” [Doc. 33-4, Oliver Depo. II, p. 35:18–21].
officials placed him in segregation in the J-building. [Id. at pp. 34–35]. In other words,
Plaintiff did not speak with Warden Whittington at all about Morgan prior to the attack.
Additionally, Plaintiff testified that he didn’t know if Warden Whittington was at the
prison when he was attacked. [Id. at pp. 39:9—40:3].
Because Plaintiff never spoke to Warden Whittington about threats Morgan
made—or about Morgan at all—Plaintiff fails to show how Warden Whittington was
deliberately indifferent to Plaintiff’s safety. This holds true even if Warden Whittington
knew about his transgender status from the first day Plaintiff arrived at WSP.
Finally, in Plaintiff’s Complaint, he alleges that he “filed a grievance concerning
failure to protect him from rape, physical[,] and sexual attack and has appealed the
denial of the grievance.” [Doc. 1, ¶ 24]. Specifically, he alleged that when Warden
Whittington learned that Plaintiff filed a grievance, he “tore up the grievance in front of
Plaintiff and the entire dorm,” said, “’I don’t want to see this [filing of grievance]
anymore, queerbait,’” and then brought Plaintiff back to the segregation unit. [Id. at ¶¶
25–26]. Plaintiff claimed in his Complaint that he then filed a subsequent grievance, and
Whittington “tore up” that one, too. [Id. at ¶ 27].
It’s unclear how Plaintiff’s allegations regarding Whittington tearing up his
grievances relate to his deliberate indifference claim.26 But, accepting them as true, none
In his depositions, Plaintiff goes into detail when he describes how Defendant Whittington tore up his
grievances. However, Plaintiff has only made one claim—deliberate indifference to and failure to protect
Plaintiff from a known risk. He hasn’t made a claim of retaliation for making the grievance in violation of
of Plaintiff’s factual allegations relating to Whittington tearing up his grievances show
how he was in any way deliberately indifferent to a serious risk of harm towards
Next, Defendant Lawson. Plaintiff makes many allegations against her that are
either unsupported by evidence or unrelated to any claim of deliberate indifference.
First, Plaintiff admitted that Defendant Lawson wasn’t at WSP when Morgan attacked
Plaintiff. [Doc. 36-1, ¶ 18]. Plaintiff also testified that “the only time that [he] saw
his First Amendment rights. In sum, the events surrounding his grievances that occurred after the rape
and physical assault are irrelevant to his sole Eighth Amendment claim except to the extent that they
show Plaintiff exhausted his administrative remedies.
On deposition, Plaintiff testified that he filed his first grievance “protesting the issue of [Plaintiff] being
in the cell with [Morgan],” sometime after officials placed him into Morgan’s cell. [Doc. 33-4, Oliver
Depo. II, p. 40:11–15]. Because Morgan attacked Plaintiff on the first and only night that they shared a
room, the Court assumes Plaintiff filed this grievance at some point after being placed in Morgan’s cell on
November 25, 2020. He gave that grievance to PREA Coordinator Karen Dunnigan, who then signed it
and gave Plaintiff a receipt for it. [Id. at pp. 8:17–19, 40:16–18]. He later spoke with Warden Whittington
about why he was still in segregation despite his release order. [Id. at pp. 40–41]. Whittington said
Plaintiff should be in general population but seemingly did nothing about it. [Id.]. In any event, this
conversation concerned Plaintiff’s placement in segregation, and Whittington did not tear up Plaintiff’s
first grievance during this conversation. [Id. at p. 41:12–14]. And although Plaintiff’s counsel confirmed
that Plaintiff had given him a number of grievances that he had filed and promised to get them to
opposing counsel, the record doesn’t contain any grievances at all. [Id. at p. 71].
Regardless, “simply failing to respond to or denying a grievance does not, in and of itself, make a prison
official liable for an alleged constitutional violation ‘brought to light by the grievance.’” Harris v. Dixon,
No. 3:22-CV-667-BJD-LLL, 2022 WL 4182532, at *3 (M.D. Fla. Sept. 13, 2022) (quoting Jones v. Eckloff, No.
2:12-cv-375-FTM-29DNF, 2013 WL 6231181, at *4 (M.D. Fla. Dec. 2, 2013)). Additionally, inmates have “no
constitutionally protected liberty interest in access to the prison’s grievance procedure[; therefore, a
plaintiff] cannot base a § 1983 claim on [a defendant’s] response to his grievances.” Moore v. McLaughlin,
569 F. App’x 656, 659 (11th Cir. 2014) (citing Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011)); see
also Mathews v. Moss, 506 F. App’x 981, 984 (11th Cir. 2013) (finding the plaintiff failed to state a claim
because he merely “alleged that his prison grievances were either ignored or wrongly decided or that
prison officials did not properly follow the prison’s own grievance procedures”).
[Lawson] was after the attack when the GBI showed up” and that he didn’t speak to
Lawson at all about any threats from Morgan before the attack. [Doc. 33-4, Oliver Depo.
II, p. 47:15–21]. Because she was the facility-on-call-duty officer during the week
Morgan attacked Plaintiff, she wasn’t present at WSP during the attack and “was only
called to Wilcox after the alleged assault had occurred.” [Doc. 33-6, Lawson Aff., ¶ 5].
All of that said, Plaintiff’s claims against Lawson seem to boil down to the fact
that she allegedly knew Plaintiff was transgender and that Morgan was a known sexual
predator, and she directed Stanfield and Turner to place Plaintiff in Morgan’s cell
anyway. See [Doc. 36, p. 8].
Plaintiff admitted at one point on deposition that he was unsure whether he ever
told Lawson about his transgender status. [Doc. 33-4, Oliver Depo. II, p. 49:14–19].
However, he testified at a later point that he told Captain Lawson he had a right to wear
his shirt to the showers because he was “classified as transgender.” [Id. at p. 56:10–24].
Because Plaintiff is the nonmoving party, the Court accepts that Lawson knew Plaintiff
Though he didn’t mention this in his Complaint, Plaintiff argues in his Response
that “Capt. Lawson long suspected Plaintiff of being a federal informant for the Federal
Bureau of Investigation,” and seemingly used this as her reason for ordering Stanfield
and Turner to place Plaintiff into a cell with Morgan. [Doc. 36, p. 2]. However, Plaintiff
offers nothing in the record to support his uncorroborated allegations and speculations
about Defendant Lawson. As the Court previously noted, Plaintiff offers nothing to
show that Morgan was a “known sexual predator,” or how Defendant Lawson knew of
Morgan’s desire to harm Plaintiff. Additionally, Plaintiff offers nothing but his
speculation that Defendant Lawson thought that the FBI was using Plaintiff as a snitch.
A party can’t simply say what someone else knew or observed or thought and expect
the Court to accept that alone as admissible evidence. Thus, the Court finds that these
speculations do not support his claim for deliberate indifference to a known safety risk.
Plaintiff also argues that Lawson didn’t follow the warden’s orders by refusing
to release Plaintiff from segregation even though Plaintiff had a release order that the
warden signed and gave back to Lawson. [Doc. 33-3, Oliver Depo. I, p. 34]. But, even if
taken as true, that fact would not support a finding of a violation of a Constitutional
Finally, Plaintiff alleges that Lawson encouraged him to commit suicide
“immediately after the incident,” because “she thought that [Plaintiff] was making up
the allegations.”28 [Doc. 33-4, Oliver Depo. II, pp. 47:21—48:2]. Again, even if Lawson
encouraged Plaintiff to commit suicide—unprofessional and cruel to say the least—it is
unclear how this in any way relates to his claim that prison officials were deliberately
Specifically, Plaintiff testified that officials left him in a “one-man cell . . . with no electricity” in
segregation “while inmate Morgan got released.” [Doc. 33-4, Oliver Depo. II, p. 48:10–12]. While Plaintiff
was in that cell, Lawson told Plaintiff that “she works at a funeral home in town. And that if [Plaintiff]
committed suicide, she’d give [him] a really good deal on a used coffin.” [Id. at p. 48:17–24].
indifferent to his safety when they placed him in Morgan’s cell or left him in Morgan’s
In short, Plaintiff fails to overcome summary judgment on any of his claims
against Defendant Lawson.
Like Lawson, Officer Stanfield wasn’t at WSP during the attack because “[his]
shift ended around 6:00 p.m., which was directly after [he] moved [Plaintiff] into the
cell with Morgan.” [Doc. 33-9, Stanfield Aff., ¶ 10]. Plaintiff alleges that “[a]t the
direction of Lawson, Turner and Stanfield forced Plaintiff into being housed in a cell
with a known sexual predator.” [Doc. 1, ¶ 30]. However, when asked, “[d]oes Stanfield
have any knowledge about threats from Morgan towards you?” Plaintiff responded, “I
don’t know.”29 [Doc. 33-4, Oliver Depo. II, p. 53:23–25]. Based on this answer, Plaintiff’s
allegations that Stanfield knew of a risk to Plaintiff from Morgan fall short.
However, as on many other occasions, Plaintiff’s deposition testimony seems to
contain many contradictions. For example, Plaintiff alleges that when Stanfield and
Turner ordered Plaintiff to move into Morgan’s dorm, he told them that Morgan was
the “Booty Bandit.” [Doc. 33-3, Oliver Depo. I, p. 26:13]. Then, according to Plaintiff,
However, when it comes to Defendant Stanfield’s knowledge of his transgender status, Plaintiff
testified that the door sheets that policy required him to sign noted his transgender status. [Doc. 33-4,
Oliver Depo. II, p. 54]. But, Plaintiff never submitted these door sheets into evidence. Plaintiff testified
that he also told Officer Stanfield he was transgender when he told him that he had a right to wear a shirt
to the showers as opposed to just his underwear. [Id. at p. 54]. Stanfield oversaw inmate showers in the Jbuilding on Mondays, Wednesdays, and Fridays. [Id. at p. 55].
“Stanfield became extremely angry and violent, and he specifically told [Plaintiff], I
been [sic] here for 14 hours. You’re gonna go in there as I tell you, or I’m gonna tase you
and spray you right now . . . .” [Id. at p. 26:14–17]. During his Covid-19 check, when he
briefly left Morgan’s cell, Plaintiff told Stanfield that he didn’t feel “comfortable” with
Morgan in his cell. [Doc. 33-4, Oliver Depo. II, p. 25:21]. However, Plaintiff clearly
admitted that Morgan hadn’t made any specific threat of violence toward Plaintiff at
this point. [Id. at p. 26:11–14].
Although the Court accepts Plaintiff’s contentions that Stanfield knew he was
transgender, Plaintiff has failed to show that Stanfield had any knowledge about any
threats from Morgan towards him. [Id. at pp. 53–54]. Because Stanfield didn’t know
about any dangers from Morgan, Plaintiff fails to show how Stanfield was deliberately
indifferent to any potential risk of harm facing him.
Officers Deese & Weaver
That leaves Defendants Deese and Weaver—the two Defendants actually at WSP
during the attack—as remaining Defendants who could have been on notice of a
substantial risk of serious harm to Plaintiff.
Plaintiff unsurprisingly disputes much of the testimony from Defendants in their
affidavits. With Plaintiff’s version of the facts and Defendants’ version, we clearly have
“competing narratives [that] emerge on key events.” Sconiers, 946 F.3d at 1263. The
Court, therefore, is “not at liberty to pick which side [it] think[s] is more credible.” Id.
No, what the Court must do is “accept as fact all allegations” that Plaintiff made, as “the
[nonmoving] party,” to the extent “they are sufficiently supported by evidence of
record.” Id. (citing Anderson, 477 U.S. at 251). In Plaintiff’s view, “Officers Deese and
Weaver falsified their log sheets signing the logs as if they did their security checks
when they did not.”30 [Doc. 36, p. 6]. Defendants, unsurprisingly, deny this. See [Doc.
33-7, Deese Aff., ¶ 23]; [Doc. 33-8, Weaver Aff., ¶ 18]. Regardless, even viewing the facts
in a light favorable to Plaintiff, Plaintiff’s own deposition reveals why he can’t
overcome qualified immunity for Defendants Deese and Weaver or survive summary
According to Plaintiff, when Deese and Weaver came by his cell around 6:30 or
7:30 p.m., he told them that they needed to remove him from the cell with Morgan.
[Doc. 33-4, Oliver Depo. II, p. 58]. However, Plaintiff testified that “[t]hey just kept on
walking.” [Id. at p. 58:1–5]. Critically, Plaintiff testified that Morgan had made no
specific threats toward him by this time. [Id. at p. 58]; see also [Doc. 36-1, ¶¶ 30–31].
Plaintiff saw Deese a second time around 8:30 or 9:00 p.m. and attempted to talk to him
again, and Deese ignored him this time, too. [Doc. 33-4, Oliver Depo. II, pp. 60–61].
Earlier in his testimony, Plaintiff testified that he saw Weaver sign the log sheets around
9:00 p.m. and told him he didn’t feel safe, but Weaver told him to “talk to the captain
According to Plaintiff, the prison officers are “supposed to come by every 30 minutes and sign a halfhour log sheet attached to a clipboard on the front of the cell.” [Doc. 33-3, Oliver Depo. I, p. 40:1–3].
tomorrow.” [Doc. 33-3, Oliver Depo. I, p. 39:14–21]. Again, Morgan had made no
specific threats toward him by this time. [Doc. 33-4, Oliver Depo. II, pp. 60–61].
According to Plaintiff, when he saw Deese again around 1:00 or 1:30 a.m., Morgan had
already assaulted him. [Id. at pp. 58–59]. “Morgan had fell [sic] asleep permanently,”
and Plaintiff shoved a note in Deese’s face that said he had been raped. [Id. at 58–60].
This is another point where the timeline becomes slightly unclear. Plaintiff also
testified that he believes the attack occurred around 9:30 p.m. [Doc. 33-4, Oliver Depo.
II, pp. 58–59]. Around this time, he “was e-mailing the PREA hotline” from an inmate
tablet he had. [Id. at p. 59:1–3]. Plaintiff also testified that, “[t]he last time [he] saw Deese
was at 9:38, and that was the time [he] told [Deese that he] had been raped, and [Deese]
didn’t do anything. [Deese] just kept on walking. [Deese] was by himself.” [Id. at p.
59:4–7]. Plaintiff believes Deese “disappeared between 9:38 [p.m.] and 1:30 [a.m.].” [Id.
at p. 61:22–24]. However, Plaintiff initially called him “Officer Something Else because
[Deese] wears a coat with a different name tag on it.” [Id. at p. 59:8–10]. He said that he
didn’t know if that was why Deese didn’t respond to him.31 [Id. at p. 59:10–13]. In any
event, and consistent with his later testimony, Plaintiff testified that “it wasn’t until
later after the incident, maybe one o’clock, one-thirty,” when he gave a note to Deese
Plaintiff further muddies his version of the timeline—and his claims—in his Response to Defendants’
Motion for Summary Judgment. That is, he argues that Deese and Weaver did not conduct their security
checks “during the hours of 9:00 p.m. until 1:30 a.m.” [Doc. 36, p. 6]. In other words, if Plaintiff’s version
of the timeline in his Response is true, he didn’t speak to Deese about the rape at 9:38 p.m. As stated
earlier, Plaintiff hasn’t presented a claim of deliberate indifference to a serious medical need.
informing him that he had been raped. [Id. at p. 59:14–17]. Plaintiff testified that after he
gave Deese the note, Deese—and a team of six or seven officers—arrived at his cell
around 40 minutes later. [Id. at pp. 62–63].
Although Plaintiff claims that Deese and Weaver falsified the log sheets they
were supposed to sign, his timeline largely tracks with Deese’s affidavit. 32 Deese
testified that he “reported for duty around 6:00 p.m.” on November 25, 2020, to conduct
security checks in the J-1 building. [Doc. 33-7, Deese Aff., ¶ 4]. However, he also
assisted with security in other buildings that night because the prison was shortstaffed.33 [Id. at ¶ 6]. Because of the lack of staff in the prison, security-check rounds
could take up to 90 minutes in each building. [Id. at ¶ 7]. Deese began his first inmate
count of the J-1 building around 7:00 p.m. [Id. at ¶ 8]. Deese testified that at no point
during this inmate count did Deese speak with Plaintiff about any potential threats to
his safety. [Id. at ¶ 8]. Around 9:00 p.m., Deese conducted his second count of the J-1
building. [Id. at ¶ 9]. Like the first count, Plaintiff “gave no warning to [Deese], verbal or
otherwise, that he was in any danger from Morgan or that he feared for his safety in his
cell placement with Morgan.” [Id.]. Deese didn’t observe or hear of any assault by
Morgan on Plaintiff as it was occurring. [Id. at ¶ 11]. However, around 1:30 a.m., when
The Court outlines Deese’s and Weaver’s affidavits for the sake of showing consistency between
Plaintiff’s account and Defendants’. It relies on Plaintiff’s version to the extent there is a discrepancy.
According to Plaintiff, Captain Lawson kept telling inmates on the night of the attack “that 80% of
personnel was on vacation.” [Doc. 33-3, Oliver Depo. I, p. 37:11–13].
Deese started his third count of the J-1 building, Plaintiff slid a note through his cell
door to Deese “that said he had been raped by his cellmate, Morgan.” [Id. at ¶ 10].
Deese then notified his supervisors, and prison staff moved other inmates around in
order to place Plaintiff and Morgan in separate cells. [Id. at ¶ 12]. Deese “then secured
the cell where [Plaintiff] and Morgan were housed, so that GDC investigators could
collect any available evidence.” [Id. at ¶ 14].
Like Deese, Officer Weaver was also present at WSP the night Morgan attacked
Plaintiff. [Doc. 33-8, Weaver Aff., ¶ 4]. However, when Weaver reported for duty
around 6:00 p.m. on the night of November 25, 2020, he conducted rounds on the J-2
building. [Id.]. That night, Weaver also assisted other officers “in making sure [they]
had constant eyes on” two inmates on suicide watch, which “slowed [his] normal pace
down to complete those rounds.” [Id. at ¶ 7]. Weaver didn’t know Morgan attacked
Plaintiff until around 1:30 a.m. on November 26, 2020, when Deese told him about it.34
[Id. at ¶¶ 8, 13]. He then notified his supervisor with Deese. [Id. at ¶ 10].
Back to Plaintiff’s testimony. He testified that, “[b]efore the attack, [he] told
Deese, there’s something not right about this guy. He’s on—on narcotics, drugs, and
[he] needed to be moved out.” [Doc. 33-4, Oliver Depo. II, p. 65:18–20]. Plaintiff points
Plaintiff testified that Deese and Weaver would alternate 30-minute checks and sign the log sheets
between the J-1 and J-2 buildings. [Doc. 33-4, Oliver Depo. II, p. 62]. Plaintiff also testified that when
Deese looked in Plaintiff’s cell and saw blood on the back of Plaintiff’s pants, “[h]e called Lieutenant
Brown, Lieutenant Bryant, and Sergeant Sullivan. And he brought Weaver from the other side because
according to Lieutenant Brown, everybody was familiar with how violent Morgan is.” [Id. at p. 62:18–24].
to these comments as providing Deese and Weaver with notice of the risk to Plaintiff’s
safety that Morgan posed. [Id. at p. 65].
On that point, Plaintiff’s comments to Deese and Weaver sound like those the
plaintiff in Carter v. Galloway made. 352 F.3d 1346, 1348 (11th Cir. 2003). There, the
plaintiff “complained about [his cellmate] acting crazy, wanting to fake a hanging, and
making a statement that Plaintiff would help in the fake hanging ‘one way or another.’”
Id. at 1349. However, the Eleventh Circuit held that these statements didn’t “provide a
sufficient basis to make the inferential leap that a substantial risk of serious harm to
Plaintiff existed.” Id. at 1350. The Circuit went on to say
Defendants arguably should have placed Plaintiff elsewhere but “merely
negligent failure to protect an inmate from attack does not justify liability
under section 1983 . . . .” Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.
1990). Defendants only possessed an awareness of [Plaintiff’s cellmate’s]
propensity for being a problematic inmate; to find Defendants sufficiently
culpable would unduly reduce awareness to a more objective standard,
rather than the required subjective standard set by the Supreme Court. Such
a generalized awareness of risk in these circumstances does not satisfy the
subjective awareness requirement.
Telling Defendants Deese and Weaver that he needed to be moved out or that his
cellmate was using drugs is the epitome of making them aware of generalized, as
opposed to individual-specific, risks. And, because Defendants at most knew of some
potential general risks, they were not on notice of a specific risk individualized to
Additionally, Plaintiff tries to make much of the fact that Deese and Weaver
“were supposed to sign the hourly-log sheets, and they did not.” [Doc. 33-4, Oliver
Depo. II, p. 65:4–5]. Plaintiff also argues that if Deese and Weaver were at their desks,
they would have heard him yelling for help. [Id. at p. 65]. Again, Plaintiff believes Deese
“disappeared between 9:38 [p.m.] and 1:30 [a.m.].” [Id. at p. 61:22–24]. Even if Deese and
Weaver falsified their signatures on their log sheets or were away from their desks, that
would not be enough for Plaintiff to show deliberate indifference.35 Taylor v. Adams, 221
F.3d 1254, 1259 (11th Cir. 2000) (“Failure to follow procedures does not, by itself, rise to
the level of deliberate indifference because doing so is at most a form of negligence.”);
Sanders v. Starling, No. 21-12622, 2022 WL 6644768, at *3 (11th Cir. Oct. 11, 2022) (“In
any event, shortcomings in the nurses’ documentation or their adherence to protocol
amount to a claim that they violated prison regulations, not the Eighth Amendment.”);
Carter, 352 F.3d at 1350; Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir. 1995)
(affirming grant of summary judgment where jailer failed to make required rounds
every 30 minutes and pretrial detainee was severely beaten).
Again, Plaintiff admitted that he did not communicate any threats to any
Defendant before the assault. Although he potentially testified differently in his
As to Plaintiff’s transgender status, he testified that Deese and Weaver knew he was transgender
because “they’re assigned as the regulars for the second shift,” and Plaintiff would tell them he didn’t
want to go to the showers without a shirt. [Doc. 33-4, Oliver Depo. II, pp. 66–67]. He also told them he
“didn’t consent to being searched by a man” the morning he reported the sexual assault. [Id. at p. 66:19–
20]. On this latter point, telling Deese and Weaver that he was transgender after the assault cannot
logically show that they knew he was transgender before the assault.
depositions, he cannot create a genuine issue of material fact by taking contradictory
positions. The fact remains that he admitted he never communicated any threats to
Deese and Weaver. And, Plaintiff offers nothing more to show that Defendants Deese
and Weaver knew of a particular risk to his safety. His claims for deliberate indifference
fail as to these Defendants as well.
Plaintiff’s General Allegations
Plaintiff’s statements that Defendants should have known he was in danger lack
supporting evidence of prior rapes Morgan has committed, specific threats Morgan
made towards Plaintiff that would make a risk to his safety evident, or any other
evidence that would have led any of the named Defendants to know that Plaintiff’s
health, safety, or life was in danger. Plaintiff similarly asserts that Defendants should
have known he was at a higher risk of facing danger simply because he said he was
transgender. The Eleventh Circuit instructs that “the fact that  officers deviated from
policy or were unreasonable in their actions—even grossly so—does not relieve [the
plaintiff] of the burden of showing that the officers were subjectively aware of the risk;
in other words, he cannot say, ‘Well, they should have known.’” Goodman v. Kimbrough,
718 F.3d 1325, 1334 (11th Cir. 2013).
In Goodman, the Eleventh Circuit explained that “[w]ere we to accept that theory
of liability, the deliberate indifference standard would be silently metamorphosed into a
font of tort law—a brand of negligence redux—which the Supreme Court has made
abundantly clear it is not.” Goodman, 718 F.3d at 1334. The Circuit also added that
“[a]lthough we view the evidence and draw all inferences in the light most favorable to
[the plaintiff], we cannot reasonably base an inference on mere supposition, and
nothing in this record creates a genuine issue of fact as to whether [the defendant
officers] were subjectively aware of a substantial risk of serious harm to [the plaintiff].”
That’s the case here, and it’s distinguishable from cases where the individual
defendants had a clear awareness of the specific danger of an inmate-on-inmate attack.
See Caldwell, 748 F.3d at 1101 (holding summary judgment inappropriate where
defendants knew of attacker’s violent past, of specific “targeting” of the plaintiff, and
that plaintiff “feared for his life” when prison officials returned him to a cell with the
attacker). For example, in Nelson v. CorrectHealth Muscogee, LLC, the plaintiffs—the
deceased’s surviving spouse and representative of his estate—survived summary
judgment on their deliberate indifference claims against a correctional officer and nurse.
No. 4:20-CV-213 (CDL), 2022 WL 17417983 (M.D. Ga. Dec. 5, 2022). There, “Nelson was
a pretrial detainee in the Muscogee County Jail when his cellmate, Jayvon Hatchett,
killed him.” Id. at *1.
Citing Rodriguez v. Secretary for the Department of Corrections, 508 F.3d 611, 621–22
(11th Cir. 2007), the district court held that “[a] plaintiff can establish a substantial risk
of serious harm by showing that jail officers knew of a specific threat against an inmate.
But a specific threat is not necessary if there is enough other information to show a
specific risk of serious harm.” Id. at *5 (citations omitted). Despite there being no
evidence that Hatchett made any specific threats of violence to anyone in the jail during
his incarceration, the court held that “a reasonable jury could conclude that
[defendants] both had enough information to infer that Hatchett posed a substantial
risk of serious harm to white inmates because of the nature of his underlying crime.” Id.
at *6. That is, the officials knew that
(1) Hatchett violently attacked [an] AutoZone clerk by stabbing him
repeatedly; (2) Hatchett attacked the clerk without provocation, targeting
him solely because he was white; (3) the only reason Hatchett stabbed the
clerk was because he was white; (4) Hatchett’s sole motivation for his attack
of the clerk was his irrational response to the racially charged atmosphere
connected to the widespread publicity of whites killing blacks. Despite this
knowledge, neither [the correctional officer nor the nurse] passed the
critical information to the Jail officials who were responsible for
determining if Hatchett posed a safety risk to others.
Id. at *6.
In other words, the district court held that even though the plaintiff didn’t
inform them of specific threats Hatchett had made, they knew Hatchett posed a risk but
“decided to do nothing” about it. Id. That’s not the case here. Plaintiff provides no
evidence that any prison official knew of any prior sexual crimes Morgan had
committed. It’s also unclear whether Morgan had raped any other inmate during his
incarceration or anyone at all prior to his incarceration.36 And although “a specific threat
is not necessary” to survive summary judgment on a deliberate indifference claim, at
least some “other information to show a specific risk of serious harm” is. Id. at *5. In
other words, Plaintiff must present evidence to “support a reasonable jury’s finding that
[the prison officials] harbored a subjective awareness that [Plaintiff] was in serious
danger.” Goodman, 718 F.3d at 1332; see also Farmer, 511 U.S. at 838 (“[A]n official’s
failure to alleviate a significant risk that he should have perceived but did not . . . cannot
under our cases be condemned as the infliction of punishment.” (emphasis added)). Put
simply, Plaintiff fails to present such evidence.
Eleventh Circuit precedent establishes that “officials must possess enough details
about a threat to enable them to conclude that [the threat] presents a strong likelihood
of injury, not a mere possibility.” Marbury, 936 F.3d at 1236 (citations omitted). “The
unfortunate reality is that threats between inmates are common and do not, under all
circumstances, serve to impute actual knowledge of a substantial risk of harm.” Id.
Pursuant to Federal Rule of Evidence 201, the Court takes judicial notice of the Georgia Department of
Corrections website, which indicates that an “Anquavious Morgan” is not currently incarcerated. Find an
Offender, Georgia Department of Corrections, https://gdc.ga.gov/GDC/Offender/Query (last visited May
19, 2023). However, an “Aquavious Laronn Morgan” is currently incarcerated for robbery by sudden
snatch and false statements to the government at Telfair State Prison. Id. He served prior sentences for
robbery and burglary. Id. This means either 1) that “Anquavious Morgan” is no longer incarcerated, or 2)
that “Aquavious Morgan” is the correct spelling. The second seems more likely, especially given that
Aquavious Morgan was convicted in Lowndes County, Georgia for each of his crimes, and Plaintiff
testified that Morgan “said he was from the Valdosta area,” “robbed some old lady,” and “talked about
killing a prosecutor from the Valdosta area.” Id.; [Doc. 33-3, Oliver Depo. I, p. 38:10–15]. Valdosta is in
Lowndes County. Assuming without deciding that “Aquavious Morgan” is the correct name of Plaintiff’s
attacker, Plaintiff fails to present information that would have put officials on notice of any specific risk of
serious harm Morgan posed.
(citations omitted). Successful deliberate indifference claims will generally require some
further reason—beyond a prisoner informing prison officials of the threat—that could
permit prison officials to conclude that a particular threat evidenced a substantial
threat, as opposed to the mere possibility, of serious harm. Id. In other words, the
prisoner must communicate more than the generic problems of prison life to alert the
prison official that something needs to change. And in the Eleventh Circuit, “more than
a mere awareness of an inmate’s generally problematic nature” is required to
substantiate a claim for deliberate indifference. Johnson v. Boyd, 701 F. App’x 841, 845
(11th Cir. 2017) (citation omitted); Carter, 352 F.3d at 1350 (holding that there must be
much more than mere awareness of an inmate’s generally problematic nature).
As for the required “further reason” beyond informing officials of some threat
that would lead them to conclude that a substantial threat of serious harm actually
existed, Plaintiff didn’t supply one. And “unless the [prison] official knows of and
disregards an excessive risk to inmate health of safety[,]” that prison official “cannot be
found liable under the Eighth Amendment for denying an inmate humane conditions of
confinement.” Mosley, 966 F.3d 1271 (citation omitted). Eighth Amendment case law
requires that “the [prison] official must both be aware of facts from which an inference
could be drawn that a substantial risk of serious harm exists, and [that prison official]
must also draw the inference.” Id. (citing Farmer, 511 U.S. at 837). Indeed, the Eleventh
Circuit held in Rodriguez, that where a “prisoner informed prison staff that members of
his former gang had threatened to kill him upon release into the general prison
population,” this information “was enough to place” the prison officials “on notice of a
substantial risk of harm.” Marbury, 936 F.3d at 1236–37 (11th Cir. 2019) (citing Rodriguez,
508 F.3d at 612–15, 621–22). However, “Rodriguez observed that a vague statement like ‘I
have a problem with another inmate in this compound,’ absent some information ‘about
the nature of the anticipated risk,’ would not have created a genuine issue of fact
regarding deliberate indifference to a substantial risk of serious harm.” Id. at 1237
(quoting Rodriguez, 508 F.3d at 619 n.15).
Vague statements—like telling prison officials about Morgan’s nickname or that
he didn’t feel safe or comfortable in Morgan’s cell—are precisely what Plaintiff told the
prison officials. The Court once again returns to Plaintiff’s admission that he never
made any Defendant aware of any threats of violence made by Morgan to him at any
point before the attack.37
Sure, the Court accepts as fact (because it is “sufficiently supported by”
Plaintiff’s deposition) that Plaintiff told WSP officials that he “needed to be removed
from the cell” to “get away from [Morgan].” [Doc. 33-4, Oliver Depo. II, p. 58:2–9].
However, this does not affect Defendants’ entitlement to summary judgment because
Again, Plaintiff did not speak to any Defendant about any potential threat of violence Morgan made to
him before officers moved him into a cell with Morgan. However, when attorney Jason Knowles asked
Plaintiff in his deposition whether he reported that Morgan “kept insisting that he was going to” make
Plaintiff join him in his cell or use marijuana with him, Plaintiff said he reported that to Officer
Carruthers. [Doc. 33-3, Oliver Depo. I, p. 25:12–18]. Officer Carruthers is not a named Defendant in this
case. In any event, Plaintiff did not even characterize that as a threat of violence. [Id. at p. 25:9–13].
he has failed to present evidence to “support a reasonable jury’s finding that
[Defendants] harbored a subjective awareness that [he] was in serious danger.” Marbury,
936 F.3d at 1238 (emphasis added). At most, Plaintiff has sufficiently shown “some risk
of harm,” but that is insufficient for a deliberate indifference claim. Id. (citations
omitted). The evidence in this case “would allow a jury to conclude that [Defendants
and the other WSP officials were] put on notice that [Plaintiff] faced some unspecified
risk of harm to his well-being—not that [they were] aware he faced the type of
substantial risk of serious harm necessary to establish deliberate indifference.” Id.
As the Eleventh Circuit Court of Appeals stated in Marbury, “[t]o allow” a
deliberate indifference claim like Plaintiff’s “to proceed absent sufficient evidence that .
. . [D]efendants were subjectively aware that he faced a substantial risk of serious harm
would elide the ‘subtle distinction’ between deliberate indifference and mere
negligence.” 936 F.3d at 1238 (citing Goodman, 718 F.3d at 1333–34). Based on the facts of
this case, there simply isn’t enough to show that Defendants knew that Plaintiff faced a
substantial risk of serious harm. Accordingly, because Plaintiff cannot show that
Defendants violated a constitutional right, Defendants are entitled to qualified
To be sure, no prisoner, including Plaintiff, should ever be raped or violently
assaulted simply because they are in prison. And, the Court is well aware of the serious
allegations made against the Georgia Department of Corrections in various media
reports and based on its own experience. The GDOC faces serious systemic issues that
surely demand the immediate attention of the Governor, Attorney General, Georgia
General Assembly, and potentially the United States Department of Justice. However,
on this record, and after objectively and dispassionately applying the current binding
precedent to the undisputed facts of this case, the Court can only find that the
Defendants that Plaintiff chose to sue did not violate his Eighth Amendment rights.
Based on the foregoing, the Court GRANTS Defendants’ Motion for Summary
Judgment [Doc. 33]. The Court DIRECTS the Clerk of Court to enter JUDGMENT
SO ORDERED, this 19th day of May, 2023.
S/ Tilman E. Self, III__________________
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
Plaintiff also claimed that Defendants violated “the Constitution and laws of the State of Georgia.”
[Doc. 1, ¶ 34]. Other than his bare-bones allegation that Defendants violated the Georgia Constitution, he
never alleges any specific state-law violation. Initially, any claim based solely on the Georgia Constitution
fails, as there is no equivalent to § 1983 under Georgia law. See Howard v. Miller, 476 S.E.2d 636, 639 (Ga.
Ct. App. 1996) (“We have no equivalent to 42 U.S.C. § 1983, which gives a claim against a state officer
individually for certain unconstitutional acts.”). Nevertheless, “[t]he Georgia Constitution provides that
state officers and employees ‘may be liable for injuries and damages if they act with actual malice or with
actual intent to cause injury in the performance of their official functions.’” Goodwin v. Crawford Cty., No.
5:18-cv-00030-TES, 2020 WL 873920, at *13 (M.D. Ga. Feb. 21, 2020) (quoting Ga. Const., art. 1, § 2, ¶
IX(d)). Thus, without demonstrating that Defendants acted with actual malice or with actual intent to
cause injury while on the job, it is unlikely that Plaintiff would pierce Defendants’ entitlement to official
immunity. In any event, Plaintiff has abandoned his state-law claims because he never argued them in his
Response [Doc. 36] to Defendants’ Motion for Summary Judgment. See Wilkerson v. Grinnell Corp., 270
F.3d 1314, 1322 (11th Cir. 2001) (finding claim abandoned, and affirming grant of summary judgment, as
to claim presented in complaint but not raised in initial response to motion for summary judgment).
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