# Traywick v. Bentley (INMATE 2)

> District Court, M.D. Alabama · June 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10629932

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** June 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10629932

## How later opinions describe it (automated extraction)

- holding that damages are unavailable from state official sued in his official capacity
- holding that state officials sued in their official capacities are protected under the Eleventh Amendment from suit for damages
- holding that courts are to “give a wide range of deference to prison officials acting to preserve discipline and security.”

## Opinion text

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

KENNETH SHAUN TRAYWICK, )
#177252, )
)
Plaintiff, )
)
v. ) CASE NO. 2:16-CV-279-WKW-SMD
)
GOVERNOR ROBERT BENTLEY, et al., )
)
Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE
I. INTRODUCTION1
This 42 U.S.C. § 1983 action is pending before the Court on a Complaint filed on
April 18, 2016 by Kenneth Shaun Traywick (“Traywick”), an indigent state inmate,
challenging numerous actions which occurred while he was an inmate at Draper
Correctional Facility (“Draper”). (Doc. 1). By Order dated April 29, 2016, this Court
advised Plaintiff to file an amended complaint and that his case would proceed “only
against the defendants named and claims presented in the amended complaint.” (Doc. 2).
Thereafter, he filed an Amended Complaint. (Doc. 10). Specifically, Traywick alleges
that Defendants acted with deliberate indifference when they failed to protect him by
“placing him in an institution, and or dorm without personel [sic] from A.D.O.C. to see

1All documents and attendant page numbers cited herein are those assigned by the Clerk of the Court in the
docketing process.
over his safety” and for failing to protect him from the use of excessive force by
correctional officers against him on March 14, 2016. Id. at 5-6. He also alleges that
Defendants violated his constitutional rights when they used excessive force and “picked

the plaintiff up by legs and arms and tossed him on his back upon a concrete floor” into a
population dorm cell. Id. at 6. He further alleges that the defendants retaliated against him
by placing him in segregation and ordering the confiscation of his mail for complaining
about the “inadequate security and assault.” Id.
The named defendants are: former Governor Robert Bentley; Jefferson Dunn,

Commissioner of ADOC; Edward Ellington, Correctional Warden at Draper; Janet
LeJeune, ADOC Constituent Services Officer in Montgomery, Alabama; Tracey Smith,
Correctional Captain at Draper; Kahdra Davis, Correctional Lieutenant at Draper; Larry
Philyaw, Correctional Lieutenant at Draper; Samuel Johnson, Correctional Officer at
Draper; De’Teri Mayes, Correctional Officer at Draper; Deointequan Murray, Correctional

Officer at Draper; Kendrick Chappell, Correctional Officer at Draper; and Jackie Pettway,
Correctional Sergeant at Draper. Traywick seeks monetary damages from Defendants in
their individual and official capacities. (Doc. 10) at 7. Defendants filed a special report
(Doc. 35), including supporting evidentiary materials, which addressed the claims
presented by Traywick. In their report, Defendants deny they acted with deliberate

indifference to Traywick’s safety needs, participated in the actions which form the
plaintiff’s excessive force claim, or retaliated against Plaintiff.
2
After reviewing the special reports and exhibits, the United States Magistrate Judge
previously assigned to the case issued an Order (Doc. 36), directing Traywick to file a
response to Defendants’ special report, supported by affidavits or statements made under

penalty of perjury and other evidentiary materials. The Court specifically cautioned that
“unless within ten (10) days from the date of this order a party . . . presents sufficient
legal cause why such action should not be undertaken . . . the court may at any time
[after expiration of the time for the plaintiff filing a response to this order] and without
further notice to the parties (1) treat the special reports and any supporting evidentiary

materials as a motion for summary judgment and (2) after considering any response as
allowed by this order, rule on the motion for summary judgment in accordance with the
law.” (Doc. 36) at 2. Traywick then filed his Response. (Docs. 39; 40). Pursuant to the
Order, the undersigned magistrate judge now treats Defendants’ special report and
supplements thereto as a motion for summary judgment and concludes that summary

judgment is due to be granted in favor of Defendants.
II. SUMMARY JUDGMENT STANDARD
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir.
2007). “[A] party seeking summary judgment always bears the initial responsibility of
3
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.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Williamson
Oil Co., Inc. v. Phillip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003); Jeffery v.
Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995). The movant may meet this
burden by presenting evidence indicating there is no dispute of material fact or by
demonstrating that the nonmoving party has failed to present appropriate evidence in

support of some element of its case on which it bears the ultimate burden of proof. Celotex,
477 U.S. at 322-24. The moving party meets his burden by showing that the record lacks
evidence to support the nonmoving party’s case or that the nonmoving party would be
unable to prove his case at trial. Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011).
When the movant meets its evidentiary burden, the burden shifts to the other party

to establish, with appropriate evidence beyond the pleadings, that a genuine dispute of
material fact exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991);
Celotex, 477 U.S. at 324. Once the moving party meets its burden, “the non-moving party
must then go beyond the pleadings, and by its own affidavits [or sworn statements], or by
depositions, answers to interrogatories, and admissions on file,” demonstrate that there is

a genuine dispute of material fact. Jeffery, 64 F.3d at 593-94 (internal quotation marks
omitted). The court will also consider “specific facts” pled in a plaintiff’s sworn complaint
4
when considering his opposition to summary judgment. Caldwell v. Warden, FCI
Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014). A genuine dispute of material fact exists
when the nonmoving party produces evidence that would allow a reasonable fact-finder to

return a verdict in its favor. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Pub. Educ. for
Bibb Cty., 495 F.3d 1306, 1313 (11th Cir. 2007). In civil actions filed by inmates, federal
courts “must distinguish between evidence of disputed facts and disputed matters of
professional judgment. In respect to the latter, our inferences must accord deference to the
views of prison authorities. Unless a prisoner can point to sufficient evidence regarding

such issues of judgment to allow him to prevail on the merits, he cannot prevail at the
summary judgment stage.” Beard v. Banks, 548 U.S. 521, 530 (2006) (internal citation
omitted).
To proceed beyond the summary judgment stage, an inmate-plaintiff may not rest
upon his pleadings but must produce “sufficient [favorable] evidence” which would be

admissible at trial supporting each essential element of his claim. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence [on which the nonmoving party
relies] is merely colorable . . . or is not significantly probative . . . summary judgment may
be granted.” Anderson, 477 U.S. at 249-50. “A mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be enough of a showing that the [trier

of fact] could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1576–77
(11th Cir. 1990) (internal citation omitted). Conclusory allegations based on a plaintiff’s
5
subjective beliefs are likewise insufficient to create a genuine dispute of material fact and,
therefore, do not suffice to oppose a motion for summary judgment. Harris v. Ostrout, 65
F.3d 912, 916 (11th Cir. 1995) (holding that grant of summary judgment is appropriate

where inmate produces nothing beyond “his own conclusory allegations” challenging
actions of the defendants); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (“Mere
verification of party’s own conclusory allegations is not sufficient to oppose summary
judgment.”); Evers v. General Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)
(“[C]onclusory allegations without specific supporting facts have no probative value.”).

Hence, when a plaintiff fails to set forth specific facts supported by requisite evidence
sufficient to establish the existence of an element essential to his case and on which the
plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in
favor of the moving party. Celotex, 477 U.S. at 322 (“[F]ailure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.”); Barnes v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on
any part of the prima facie case the plaintiff presents insufficient evidence to require
submission of the case to the trier of fact, granting of summary judgment is appropriate.);
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (holding that
summary judgment is appropriate where no genuine dispute of material fact exists). At the

summary judgment stage, this court must “consider all evidence in the record . . .
[including] pleadings, depositions, interrogatories, affidavits, etc.—and can only grant
6
summary judgment if everything in the record demonstrates that no genuine [dispute] of
material fact exists.” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir.
2012).

For summary judgment purposes, only disputes involving material facts are
relevant. United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the
substantive law applicable to the case. Anderson, 477 U.S. at 248. “Only factual disputes
that are material under the substantive law governing the case will preclude entry of

summary judgment.” Lofton v. Sec’y of the Dep’t of Children and Family Svs., 358 F.3d
804, 809 (11th Cir. 2004). “The mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue affecting the outcome
of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003)
(citation omitted). “[T]here must exist a conflict in substantial evidence to pose a jury

question.” Hall v. Sunjoy Indus. Group, Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011)
(citing Anderson, supra).
To demonstrate a genuine dispute of material fact, the party opposing summary
judgment “must do more than simply show that there is some metaphysical doubt as to the
material facts. . . . Where the record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence
7
before the court which is admissible on its face or which can be reduced to admissible form
indicates there is no genuine dispute of material fact and the party moving for summary
judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477

U.S. at 323-24. A court may grant summary judgment where the pleadings, evidentiary
materials and affidavits before the court show there is no genuine dispute as to a requisite
material fact. Id. To establish a genuine dispute of material fact, the nonmoving party
must produce evidence such that a reasonable trier of fact could return a verdict in his favor.
Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

“When opposing parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007).
Although factual inferences must be viewed in a light most favorable to the

nonmoving party and pro se complaints are entitled to liberal interpretation, a pro se litigant
does not escape the burden of establishing by sufficient evidence a genuine dispute of
material fact. Beard, 548 U.S. at 525; Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.
1990). Thus, Traywick’s pro se status alone does not mandate this Court’s disregard of
elementary principles of production and proof in a civil case. The undersigned has

undertaken a thorough and exhaustive review of all the evidence contained in the record.
After such review, the undersigned finds that Traywick has failed to demonstrate any
8
genuine dispute of material fact that precludes entry of summary judgment in favor of
Defendants.
III. FACTS

In his Amended Complaint, Plaintiff alleges that on March 14, 20162 he “requested
protective custody in fear for his life due to these conditions of inadequate security.” (Doc.
10) at 5. Specifically, he alleged that Governor Bentley, Commissioner Dunn, Warden
Ellington, and Janet LeJune, “implemented customs and policies that caused the plaintiff
to suffer injury and harm by . . . placing him in an institution, and or dorm without personel

[sic] ADOC to see over this safety.” Id. He further alleged that Lieutenant Kahdra Davis
denied his request for protective custody and ordered certain defendant Correctional
Officers to “physically place [him] with force in a population dorm.” Id. at 6.
He then alleged that Lieutenant Philyaw and Sergeant Pettway instructed other
officers to carry out this order and officers Johnson, Murray, Mayes and Thorton3, “picked

the plaintiff up by legs and arms and tossed him on his back upon a concrete floor” into a
population dorm cell. Id. He alleged that as a result of this assault he suffered from back
pain and loss of bladder control. Id. He also alleged that, in retaliation for his Complaint

2 The plaintiff identified May 14, 2016 as the relevant date in his Complaint. (Doc. 10) at 5. However, in
his Response to the Defendants’ Special Report, he stated that this was a typographical error and the actual
date was March 14, 2016. (Doc. 40) at 1.
3 The Amended Complaint directed to Officer Thorton was returned as undeliverable on July 25, 2016. The
Court ordered the General Counsel of ADOC to advise if she would accept service and represent Officer
Thorton. (Doc. 25). ADOC filed a response advising that because Officer Thorton was no longer employed
by the ADOC, it would not accept service or represent him. (Doc. 31). Accordingly, Officer Thorton is
not a defendant in this action.
9
concerning this assault and the “inadequate security,” he was placed in segregation and
Lieutenant Davis “ordered the confiscation of the plaintiff’s mail,” which Officer Chappell
carried out. Id.

Defendants deny that Plaintiff was thrown on his back onto a concrete floor in F-
Dormitory. Rather, Lt. Philyaw states in his affidavit that, upon finding Plaintiff in the
barber shop after he was ordered to relocate from B-Dormitory to F-Dormitory, the facts
occurred as follows:
Inmate Traywick refused to report back to F-Dorm. Sgt. Jackie Pettway
along with Officers Samuel Johnson, David Free, and me escorted inmate
Traywick back to F-Dorm without incident. Upon arrival at the dorm
entrance door, inmate Traywick kneeled down and placed his hands behind
his head and stated that he was not going inside the dorm. Officer Johnson
instructed inmate Traywick to stand to his feet. Inmate Traywick looked
around and observed that Sgt. Pettway, Officer Free and I were present.
Officer Johnson touched inmate Traywick on his left shoulder and instructed
him again to stand up and go inside F-Dorm. Inmate Traywick complied.
Officer Johnson then placed his personal property inside the dorm and
secured the gate. During this incident, no force was used on inmate
Traywick.

(Doc. 35-6). Although many of the details underlying this action are disputed, there is no
dispute that Plaintiff was ordered to relocate himself and his belongings from B-Dormitory
to F-Dormitory at Draper4 and that he refused to follow this direct order on more than one
occasion. (Doc. 10) at 5-6; (Doc. 35-2) at 1-2; (Doc. 35-4); (Doc. 35-5); (Doc. 35-11);

4 To be housed in B Dormitory, an inmate must have a “six (6) months clear record (disciplinary or behavior
citation)”. Because Plaintiff was found guilty of a disciplinary occurring on March 3, 2016, he was moved
from B-Dormitory to F-Dormitory. (Doc. 35-5) at 1, (Doc. 35-13) at 21-38.
10
(Doc. 35-12). Indeed, Plaintiff does not deny that he refused to report to F-Dormitory and
that, upon being escorted to F-Dormitory by correctional officers, he physically resisted
placement in his cell. As a result of disobeying a direct order, Plaintiff was placed in

segregation. Id.
On March 16, 2016, two days after the alleged excessive force and following
Traywick’s placement in segregation, a body chart was conducted on Traywick. This body
chart states “no markings noted on skin.” (Doc. 35-14) at 15. On the same day, Traywick
lodged a sick call request noting “I was thrown down on my back by ADOC officials on

3-14-16. Back pain is unbearable and have no blatter [sic] control.” (Doc. 35-14) at 14.
On March 18, 2016, Traywick was evaluated by medical staff and treated with ibuprofen.
The nursing encounter report noted that Plaintiff injured his back about five years ago. Id.
at 12-13.
On March 22, 2016, another body chart was performed on Plaintiff where he

declared “I’m on a hunger strike” and which stated “[n]o wounds noted on assessment.”
Id. at 11. Subsequent body charts performed on March 29 and March 30, 2016, also include
no references to a back injury or any reports of back pain. Rather, Plaintiff again reported
that he was not eating. Id. at 9-10. The record reflects that Plaintiff’s next complaint of
back pain did not occur until April 4, 2016 when he was treated by a nurse practitioner. Id.

at 8.

11
On March 23, 2016, Segregation Officer Kendrick Chappell informed Lieutenant
Davis that he had located a suspicious piece of mail in the segregation cubicle. (Doc. 35-
5) at 2; (Doc. 35-10). The envelope identified James Cooley as the sender and Tabby White

as the recipient. (Doc. 35-5) at 2; (Doc. 35-10); (Doc. 35-13) at 74. However, inmate
Cooley was not assigned to the segregation unit but instead was assigned to B-Dormitory.
(Doc. 35-5) at 2; (Doc. 35-10). It was determined that Plaintiff was the author of the letter.
(Doc. 35-5) at 2; (Doc. 35-10). The three-page letter contained in the envelop stated “P.S.
I placed someone’s name on return address cause I’m afraid they will try and intercept my

mail.” (Doc. 35-13) at 73. The letter also stated that Plaintiff had received a disciplinary
action and was planning to file a lawsuit against the ADOC for failing to follow their
standard operating procedures. (Doc. 35-13) at 71-73. Plaintiff later received a
disciplinary action for conspiracy to commit a rule violation but was ultimately found not
guilty of that infraction after a full due process hearing. (Doc. 35-13) at 76-92.

IV. DISCUSSION
A. Absolute Immunity
To the extent Traywick requests monetary damages from Defendants in their official
capacities, they are entitled to absolute immunity. Official capacity lawsuits are “in all
respects other than name, . . . treated as a suit against the entity.” Kentucky v. Graham,

473 U.S. 159, 166 (1985). As the Eleventh Circuit has held,
the Eleventh Amendment prohibits federal courts from entertaining suits by
private parties against States and their agencies [or employees]. There are
12
two exceptions to this prohibition: where the state has waived its immunity
or where Congress has abrogated that immunity. A State’s consent to suit
must be unequivocally expressed in the text of [a] relevant statute. Waiver
may not be implied. Likewise, Congress’ intent to abrogate the States’
immunity from suit must be obvious from a clear legislative statement.

Selensky v. Alabama, 619 F. App’x 846, 848–49 (11th Cir. 2015) (internal quotation marks
and citations omitted). Thus, a state official may not be sued in his official capacity unless
the state has waived its Eleventh Amendment immunity, see Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100 (1984), or Congress has abrogated the State’s immunity,
see Seminole Tribe v. Florida, 517 U.S. 44, 59 (1996). “Neither waiver nor abrogation
applies here. The Alabama Constitution states that “the State of Alabama shall never be
made a defendant in any court of law or equity.” Ala. Const. Art. I, § 14. The Supreme
Court has recognized that this prohibits Alabama from waiving its immunity from suit.”
Selensky, 619 F. App’x at 849 (citing Alabama v. Pugh, 438 U.S. 781, 782 (1978) (waiver
of immunity is prohibited by the Alabama Constitution)). “Alabama has not waived its
Eleventh Amendment immunity in § 1983 cases, nor has Congress abated it.” Holmes v.
Hale, 701 F. App’x 751, 753 (11th Cir. 2017) (citing Carr v. City of Florence, Ala., 916
F.2d 1521, 1525 (11th Cir. 1990)). In light of the foregoing, Defendants are entitled to
sovereign immunity under the Eleventh Amendment for claims seeking monetary damages

from them in their official capacities. Selensky, 619 F. App’x at 849; Harbert Int’l, Inc. v.
James, 157 F.3d 1271, 1277 (11th Cir. 1998) (holding that state officials sued in their
official capacities are protected under the Eleventh Amendment from suit for damages);
13
Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995) (holding that
damages are unavailable from state official sued in his official capacity). Thus, the
undersigned will now address Plaintiff’s claims brought against Defendants in their

individual capacities.
B. Respondeat Superior
To the extent Plaintiff alleges that Bentley, Dunn, Ellington, and LeJune, are liable
to him in their supervisory positions based on a theory of respondeat superior, those claims
must fail. Indeed, the law is well established; supervisory officials cannot be held liable in

§1983 actions under any theory of respondeat superior or vicarious liability. See, Belcher
v. City of Foley, 30 F.3d 1390, 1396-97 (11th Cir. 1994). Accordingly, the Court concludes
that Plaintiff’s claims premised upon a theory of respondeat superior are due to be
dismissed.
Plaintiff also alleged that Bentley, Dunn, Ellington, and LeJune, “implemented

customs and policies that caused Plaintiff to suffer injury and harm by . . . placing him in
an institution, and or dorm without personel [sic] ADOC to see over this safety.” (Doc.
10) at 5. Plaintiff, however, fails to allege how he has been injured due to a lack of ADOC
personnel. Rather, his allegations of injury are premised on Defendants’ failure to keep
him safe from an alleged assault by prison guards which occurred when Plaintiff refused

to enter his assigned cell. Accordingly, the undersigned will turn to Plaintiff’s deliberate
indifference claims.
14
C. Deliberate Indifference
1. Standard of Review
“A prison official’s duty under the Eighth Amendment is to ensure reasonable

safety, a standard that incorporates due regard for prison officials’ unenviable task of
keeping dangerous men in safe custody under humane conditions.” Farmer v. Brennan,
511 U.S. 825, 844-45 (1994) (internal quotation marks and citations omitted). Officials
responsible for prison inmates may be held liable under the Eighth Amendment for acting
with “deliberate indifference” to an inmate’s health and safety when the official knows that

the inmate faces “a substantial risk of serious harm” and with such knowledge disregards
the risk by failing to take reasonable measures to abate it. Id. at 828. A constitutional
violation occurs only “when a substantial risk of serious harm, of which the official is
subjectively aware, exists and the official does not respond reasonably to the risk.” Cottone
v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003). “It is not, however, 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.” Farmer, 511 U.S. at 834. “Within [a prison’s]
volatile community, prison administrators are to take all necessary steps to ensure the
safety of . . . the prison staffs and administrative personnel. . . . They are [also] under an
obligation to take reasonable measures to guarantee the safety of the inmates themselves.”

Hudson v. Palmer, 468 U.S. 517, 526-27 (1984) (internal quotation marks omitted). The
Eleventh Circuit has, however, consistently stressed that a “prison custodian is not the
15
guarantor of a prisoner’s safety.” Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th
Cir. 1990); Purcell ex rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313 (11th Cir.
2005) (same). “Only [a] prison official’s deliberate indifference to a known, substantial

risk of serious harm to an inmate violates the Eighth Amendment.” Harrison v. Culliver,
746 F.3d 1288, 1298 (11th Cir. 2014) (internal quotation marks and citation omitted).
“[D]eliberate indifference describes a state of mind more blameworthy than negligence”
and, therefore, ordinary lack of due care for a prisoner’s health or safety will not support
an Eighth Amendment claim. Farmer, 511 U.S. at 837. “In order to state a § 1983 cause

of action against prison officials based on a constitutional deprivation [under the Eighth
Amendment], there must be at least some allegation of a conscious or callous indifference
to a prisoner’s rights, thus raising the tort to a constitutional stature.” Williams v. Bennett,
689 F.2d 1370, 1380 (11th Cir. 1982).
The law is well settled that establishment of both objective and subjective elements

are necessary to demonstrate an Eighth Amendment violation. Caldwell, 748 F.3d at 1099.
With respect to the requisite objective elements of a deliberate indifference claim, an
inmate must first show “an objectively substantial risk of serious harm . . . exist[ed].
Second, once it is established that the official is aware of this substantial risk, the official
must react to this risk in an objectively unreasonable manner.” Marsh v. Butler Cty., Ala.,

268 F.3d 1014, 1028-29 (11th Cir. 2001), abrogated on other grounds by Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007). As to the subjective elements, “the official must both
16
be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. . . . The Eighth Amendment does not
outlaw cruel and unusual conditions; it outlaws cruel and unusual punishments. . . . [A]n

official’s failure to alleviate a significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be condemned as the infliction
of punishment.” Farmer, 511 U.S. at 837-38 (internal quotation marks omitted); Campbell
v. Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999) (citing Farmer, 511 U.S. at 838) (“Proof
that the defendant should have perceived the risk, but did not, is insufficient.”); Cottrell v.

Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (same). The conduct at issue “must involve
more than ordinary lack of due care for the prisoner’s interests or safety. . . . It is obduracy
and wantonness, not inadvertence or error in good faith, that characterize the conduct
prohibited by the Cruel and Unusual Punishments Clause[.]” Whitley v. Albers, 475 U.S.
312, 319 (1986).

To be deliberately indifferent, Defendants must have been “subjectively
aware of the substantial risk of serious harm in order to have had a
‘“sufficiently culpable state of mind.”’” Farmer, 511 U.S. at 834-38, 114
S.Ct. at 1977-80; Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324-
25, 115 L.Ed.2d 271 (1991). . . . Even assuming the existence of a serious
risk of harm and legal causation, the prison official must be aware of specific
facts from which an inference could be drawn that a substantial risk of serious
harm exists – and the prison official must also “draw that inference.”
Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). A defendant’s subjective
knowledge of the risk must be specific to that defendant because “imputed or collective
17
knowledge cannot serve as the basis for a claim of deliberate indifference. . . . Each
individual Defendant must be judged separately and on the basis of what that person [knew
at the time of the incident].” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).

Moreover, “[t]he known risk of injury must be a strong likelihood, rather than a mere
possibility before a [state official’s] failure to act can constitute deliberate indifference.”
Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (internal quotation marks and
citations omitted). Thus, “[m]erely negligent failure to protect an inmate from attack does
not justify liability under section 1983.” Id. Even where a prison official perceives a

serious risk of harm to an inmate, the official “may still prevail if he responded reasonably
to the risk, even if the harm ultimately was not averted.” Comstock v. McCrary, 273 F.3d
693, 706 (6th Cir. 2001) (internal quotation marks and citation omitted). In sum, prison
officials cannot be held liable under the Eighth Amendment unless there is an objectively
substantial risk of harm to an inmate, the defendants have knowledge of this substantial

risk of harm and with this knowledge consciously disregard the risk. Farmer, 511 U.S. at
837.
2. Failure to Protect
To survive Defendants’ motion for summary judgment, Traywick must first
demonstrate an objectively substantial risk of serious harm existed to him and “that the

defendants disregarded that known risk by failing to respond to it in an objectively
reasonable manner.” Johnson v. Boyd, 568 F. App’x 719, 721 (11th Cir. 2014), citing
18
Caldwell, 748 F.3d at 1100. If he establishes these objective elements, Traywick must then
satisfy the subjective component. This requires Traywick to show “that [each] defendant
subjectively knew that [he] faced a substantial risk of serious harm. The defendant must

both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and [they] must also draw the inference.” Id. (internal citation
omitted).
To survive a motion for summary judgment, a plaintiff must submit evidence
that the defendant-official had subjective knowledge of the risk of serious
harm. McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). In
determining subjective knowledge, a court is to inquire whether the
defendant-official was aware of a “particular threat or fear felt by [the]
[p]laintiff.” Carter v. Galloway, 352 F.3d 1346, 1350 (11th Cir.2003)
(emphasis added). Moreover, the defendant-official “must be aware of
specific facts from which an inference could be drawn that a substantial risk
of serious harm exists — and the prison official must also draw that
inference.” Id. at 1349 (quotations omitted).).

Johnston v. Crosby, 135 F. App’x 375, 377 (11th Cir. 2005) (emphasis in original). Based
a careful review of all the evidence, the undersigned concludes that Plaintiff fails to even
allege, much less offer any proof, that Defendants were aware he was at risk for suffering
an assault from prison guards. Rather, Plaintiff claims that he was harmed because there
were not sufficient numbers of ADOC personnel assigned to Draper to keep him safe.
Accordingly, the undersigned concludes that summary judgment is due to be granted in
favor of Defendants on the claim alleging they acted with deliberate indifference to
Traywick’s safety.

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3. Excessive Force
Claims of excessive force by prison officials against convicted inmates are governed
by the Eighth Amendment’s proscription against cruel and unusual punishment. Campbell

v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). “The Eighth Amendment’s prohibition of
cruel and unusual punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is not of a sort repugnant to
the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal
quotations and citations omitted). “‘Not every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional
rights.’” Sims v. Artuz, 230 F.3d 14, 22 (2nd Cir. 2000) (quoting Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir. 1973)).
The standard applied to an Eighth Amendment excessive force claim contains both

a subjective and objective component. Hudson, 503 U.S. at 8. The subjective component
requires that prison “officials act[ed] with a sufficiently culpable state of mind.” Id.
(internal quotations omitted). To establish the subjective element, a plaintiff must
demonstrate the “necessary level of culpability, shown by actions characterized by
wantonness.” Sims, 230 F.3d at 21. With respect to the objective component, a plaintiff

must show that “the alleged wrongdoing was objectively harmful enough to establish a
constitutional violation.” Hudson, 503 U.S. at 8. In addition, “the use of excessive physical
force against a prisoner may constitute cruel and unusual punishment [even] when the
20
inmate does not suffer serious injury.” Id. at 4. “Injury and force . . . are only imperfectly
correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten
by guards does not lose his ability to pursue an excessive force claim merely because he

has the good fortune to escape without serious injury.” Wilkins v. Gaddy, 559 U.S. 34, 38
(2010). Summarizing the excessive force standard in the prison context, the Eleventh
Circuit wrote:
[u]nder the Eighth Amendment, force is deemed legitimate in a custodial
setting as long as it is applied “in a good faith effort to maintain or restore
discipline [and not] maliciously and sadistically to cause harm.” Whitley v.
Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2nd Cir.1973)); see also
Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
To determine if an application of force was applied maliciously and
sadistically to cause harm, a variety of factors are considered including: “the
need for the application of force, the relationship between that need and the
amount of force used, the threat reasonably perceived by the responsible
officials, and any efforts made to temper the severity of a forceful response.”
Hudson, 503 U.S. at 7-8, 112 S.Ct. 995; see also Whitley, 475 U.S. at 321,
106 S.Ct. 1078; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996). From
consideration of such factors, “inferences may be drawn as to whether the
use of force could plausibly have been thought necessary, or instead evinced
such wantonness with respect to the unjustified infliction of harm as is
tantamount to a knowing willingness that it occur.” Whitley, 475 U.S. at 321,
106 S.Ct. 1078 (quoting Johnson, 481 F.2d at 1033).
Skrtich v. Thornton, 280 F.3d 1295, 1300-1301 (11th Cir. 2002).
Recently, the Eleventh Circuit applied the Whitley factors in an a §1983 action
brought by a pro se prisoner for injuries he received during the inspection of his cell after
he failed to follow an order from the defendant prison officers. Miles v. Jackson, 757 F.
21
App’x. 828 (11th Cir. 2018). In Miles, the court identified the five factors relevant in
determining whether force was applied “maliciously or sadistically” as “(1) the need for
the application of force; (2) the relationship between that need and the amount of force

used; (3) the threat ‘reasonably perceived by the responsible officials,’ . . . (4)’any efforts
made to temper the severity of the use of a forceful response,’” and “(5) [t]he absence of
serious injury.” Id., at 829 citing Hudson, 503 U.S at 7; quoting Whitley, 475 U.S. at 321.
Moreover, the Eleventh Circuit has stated that “[w]hen evaluating whether the force
used was excessive, we give broad deference to prison officials acting to preserve

discipline and security.” Pearson v. Taylor, 665 F. App’x 858, 863 (11th Cir. 2016) (citing
Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990); Hudson, 503 U.S. at 7 (holding
that courts are to “give a wide range of deference to prison officials acting to preserve
discipline and security.”). In addition, the determination “must not be made in the glow of
hindsight.” Griffin v. Troy State Univ., 128 F. App’x 739, 742 (11th Cir. 2005) (citation

omitted). “Prison guards may use force when necessary to restore order and need not wait
until disturbances reach dangerous proportions before responding.” Bennett, 898 F.2d at
1533. Generally, correctional officers are authorized to use force when a prisoner “fails to
obey an order. Officers are not required to convince every prisoner that their orders are
reasonable and well-thought out before resorting to force.” Pearson, 665 F. App’x at 864

(internal citation omitted).

22
In considering the application of the Whitley factors to the instant case, the
undersigned recognizes at the outset that there is no dispute Plaintiff refused to follow an
order to relocate to F-Dormitory and physically resisted Defendants’ efforts to place him

in his new cell. Specifically, the evidence shows that after being ordered to return to F-
Dormitory, he was physically escorted to his cell without incident. (Doc. 35-4; Doc. 35-
6). Upon reaching the cell, Plaintiff “kneeled down and placed his hands behind his head
and stated that he was not going inside the dorm.” (Doc. 35-6, 35-7). Plaintiff does not
dispute these facts. Rather, he claims that Defendants “picked the plaintiff up by legs and

arms and tossed him on his back upon a concrete floor” into a population dorm cell. (Doc.
10 at p. 6). Although Defendants deny any force was used on Plaintiff to secure his
placement in his cell in F-Dormitory (Doc. 35-4; Doc. 35-5; Doc. 35-6; Doc. 35-7; Doc.
35-8; Doc. 35-9), the Court must accept Plaintiff’s statement as evidence to be considered
on a motion for summary judgment. See Sears v. Roberts, 922 F. 3d 1199, 1206 (11th Cir.

2019). Thus, assuming Defendants used force on Plaintiff as he claims, the undersigned
concludes that an inmate’s failure to failure to follow orders from correctional officers
justifies the use of some force. Indeed, the Eleventh Circuit has affirmed the “need” for
force where the plaintiff first failed to obey an order and then “evaded [the officer’s]
attempt to get him to comply”. Miles, 757 F. App’x at 830 (citing Bennett, 898 F.2d at

1533) (“The need for the use of force [was] established by the undisputed evidence that
[the prisoner] created a disturbance.”).
23
The question then becomes whether the need to ensure Plaintiff’s compliance with
the order justified the amount of force used. Id. In this specific instance, the evidence
shows that Officer Johnson “touched inmate Traywick on his left shoulder and instructed

him again to stand up and go inside F-Dorm.” (Docs. 35-6, 35-7). Plaintiff failed to
comply with this order and was “tossed on his back upon a concrete floor.” (Doc. 10 ) at
6. In Miles, the Eleventh Circuit recognized that the “use of a takedown” which included
the prisoner being tackled onto his bed and then onto the floor in his cell was not excessive
when the prisoner “failed to obey a jailer’s orders.” 757 F. App’x at 829-30. Furthermore,

the undersigned notes Plaintiff fails to present any evidence that the force used against him
was malicious or sadistic. Indeed, force is deemed legitimate in a custodial setting as long
as it is applied “in a good faith effort to maintain or restore discipline [and not] maliciously
and sadistically to cause harm.” Whitley, 475 U.S. at 320-21. Thus, the undersigned
concludes that the questions of the need for force and its proportionate use are answered in

favor of Defendants.
The undersigned also concludes that the third and fourth Whitley factors weigh
against Plaintiff. Although there is no evidence that Plaintiff reacted violently when
dealing with officers, it is undisputed that Plaintiff was being relocated from B-Dormitory
to F-Dormitory as a result of a disciplinary infraction. (Doc. 35-5) at 1. Thus, the

undersigned concludes that the officers could reasonably perceive Plaintiff presented some
threat. Finally, the undersigned concludes that officers’ use of force was tempered because
24
prior to using any force against Plaintiff, Officer Johnson “touched inmate Traywick on his
left shoulder and instructed him again to stand up and go inside F-Dorm.” (Docs. 35-6,
35-7).

Finally, the Court considers the extent of the injury suffered by Plaintiff. He alleges
that as a result of this assault he suffered from back pain and loss of bladder control. (Doc.
10) at 6. However, the body chart taken on Plaintiff two days after the incident shows no
markings on his body. (Doc. 35-14) at 15. Four days after the incident, Traywick was
again evaluated by medical staff and treated with ibuprofen. The nursing encounter report

noted that Plaintiff had injured his back about five years ago. Id. at 12-13. Subsequent
body charts performed on Plaintiff on March 22, 29, and 30, include no complaints of back
injury or pain, but rather include Plaintiff’s reports that he was on a “hunger strike” and
would not eat. Id. at 9-11. The record reflects that Plaintiff’s next complaint of back pain
did not occur until April 4, 2016 when he was treated by a nurse practitioner. Id. at 8.

Accordingly, the undersigned concludes that the medical evidence does not support
Plaintiff’s allegations of an extensive injury. Miles, 757 F. App’x at 830 (finding no
“serious injury” where the only treatment was Tylenol). Accordingly, the undersigned
concludes that summary judgment is due to be granted on Plaintiff’s excessive force claim.
D. RETALIATION

Plaintiff alleges that Defendants retaliated against him by placing him in segregation
and ordering the confiscation of his mail for complaining about the “inadequate security
25
and assault.” (Doc. 10) at 6. To proceed on a claim for retaliation and withstand the entry
of summary judgment, the Eleventh Circuit has held that
an inmate must establish these elements: (1) his speech was constitutionally
protected; (2) the inmate suffered adverse action such that the [defendants’]
allegedly retaliatory conduct would likely deter a person of ordinary firmness
from engaging in such speech; and (3) there is a causal relationship between
the retaliatory action and the protected speech. See Bennett v. Hendrix, 423
F.3d 1247, 1250, 1254 (11th Cir. 2005).

Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008). With respect to the causal
relationship element, a prisoner must demonstrate that correctional officials intended to
retaliate for his exercise of a right protected under the First Amendment and, but for the
retaliatory motive, the adverse act complained of would not have occurred. Smith, 532
F.3d at 1278-1279 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977)).
An inmate has the initial burden of establishing a prima facie case of unlawful
retaliation by showing “that his conduct was constitutionally protected and that this
conduct . . . was a ‘motivating factor’” behind the adverse action of the defendant. Mt.
Healthy, 429 U.S. at 287. Merely alleging the ultimate fact of retaliation, however, is
insufficient. Cain v. Lane, 857 F.2d 1139, 1142, n.6 (7th Cir. 1988); Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995)5. Taking Plaintiff’s allegations as true, as the Court must

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted
as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.
26
on summary judgment, the undersigned concludes Plaintiff fails to state a claim for
retaliation based upon the confiscation of his mail from the segregation cubicle, where he
was housed, because he has failed to demonstrate that his constitutional rights were

violated by Defendants’ actions. Indeed, the United States Supreme Court has held that
the “Fourth Amendment proscription against unreasonable searches does not apply within
the confines of the prison cell.” Hudson, 468 U.S. at 526. The undisputed facts show that
Chappell noticed some “suspicious mail in the segregation cubicle” as it contained the
return address of a prisoner who was housed in B-Dormitory, not segregation. (Doc. 35-

5) at 2; (Doc. 35-10). Accordingly, the undersigned concludes that, because Plaintiff has
failed to demonstrate that Defendants violated his constitutional rights by searching his
mail, summary judgment is due to be granted in favor of Defendants on this retaliation
claim.

Plaintiff also alleges that Defendants retaliated against him by placing him in
segregation. Taking Plaintiff’s allegations as true, the undersigned concludes that he fails
to state a claim for retaliation based upon his placement in segregation because he cannot
demonstrate that placement in segregation violated his constitutional rights. See Mt.
Healthy, 429 U.S. at 287. Indeed, the Eleventh Circuit has held that there is no

constitutional violation where the plaintiff has no “liberty interest in freedom from
confinement in administrative segregation.” Al-Amin v. Donald, 165 F. App’x, 733, 737
(11th Cir. 2006) (“Confinement to administrative segregation, under conditions
27
substantially similar to those experienced by the general population of the prison, does not
implicate liberty interests.”) The undisputed facts show that Plaintiff was placed in
segregation for failure to follow a direct order. (Doc. 10) at 5-6; (Doc. 35-2) at 1-2; (Doc.

35-4); (Doc. 35-5); (Doc. 35-11); (Doc. 35-12). Moreover, Plaintiff fails to adduce any
facts from which this Court could find a violation of his liberty interests. Accordingly, the
undersigned concludes that, because Plaintiff has failed to demonstrate that Defendants
violated his constitutional rights by placing him in segregation, summary judgment is due
to be granted in favor of Defendants on the retaliation claim.

V. CONCLUSION
Accordingly, it is the RECOMMENDATION of the undersigned Magistrate Judge
that:
1. Defendants’ motion for summary judgment be GRANTED.

2. Judgment be GRANTED in favor of Defendants.
3. This case be DISMISSED with prejudice.
4. No costs be taxed.
The parties may file objections to this Recommendation on or before July 10, 2019.
A party must specifically identify the factual findings and legal conclusions in the

Recommendation to which the objection is made. Frivolous, conclusive, or general
objections to the Recommendation will not be considered. Failure to file written objections
to the Magistrate Judge’s findings and recommendations in accordance with the provisions
28
of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District
Court of legal and factual issues covered in the Recommendation and waives the right of
the party to challenge on appeal the District Court’s order based on unobjected-to factual

and legal conclusions accepted or adopted by the District Court except upon grounds of
plain error or manifest injustice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark
Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790,
794 (11th Cir. 1989).
DONE this 26th day of June, 2019.

/s/ Stephen M. Doyle
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10629932. Public record. Not legal advice.