# Allen v. Reese (INMATE 1)

> District Court, M.D. Alabama · August 2, 2019

URL: https://www.frixlaw.com/law-library/cases/10629947

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** August 2, 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/10629947

## How later opinions describe it (automated extraction)

- stating that a verified complaint serves the same purpose of an affidavit for purposes of summary judgment
- holding that moving party has initial burden of showing there is no genuine dispute of material fact for trial
- holding that state officials sued in their official capacities are protected under the Eleventh Amendment from suit for damages
- holding that damages are unavailable from state official sued in his official capacity
- holding that 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

## Opinion text

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

ROBERT D. ALLEN, #252342, )
)
)
Plaintiff, )
)
v. ) CASE NO. 2:16-CV-720-MHT-WC
) (WO)
)
OFFICER M. REESE, 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 August
31, 2016 by Robert Allen, an indigent state inmate, challenging an action which occurred at Kilby
Correctional Facility on August 22, 2016, and the conditions of his confinement. (Doc. 1 at p. 2).
In his complaint, Allen alleges that Officer Reese acted with deliberate indifference to him when
he refused plaintiff’s request to use the toilet until the institutional “count” had “clear[ed]”. (Doc.
1 at pp.7-8). As a result, plaintiff alleges he had a bowel movement in his wheelchair. (Doc. 1 at
p. 7). He also alleges that defendants violated the Americans with Disabilities Act, 42 U.S.C. §
12101 et seq., and the Eighth Amendment because his prison dorm does not have sufficient
handicapped bathroom access nor does it have sufficient fire exits for wheelchairs. (Doc. 1 at p.

1All documents and attendant page numbers cited herein are those assigned by the Clerk of this court in the
docketing process.

10). The named defendants are Officer M. Reese, Warden Phyllis Billups, and Commissioner
Jefferson S. Dunn. Allen seeks monetary damages and injunctive relief in this cause of action.
The defendants filed a special report (Doc. 14, Exs. 1-4) that included relevant evidentiary
materials in support of this report, specifically affidavits and prison documents, addressing the
claims presented by Allen. In these documents, the defendants deny they acted with deliberate
indifference to Allen’s physical needs and deny that they have violated the ADA. Pursuant to

orders of this court, the defendants filed a supplemental special report with exhibits (Doc. 24) and
a second supplemental special report with exhibits (Doc. 28), including a CD, which this court has
viewed.2
After reviewing the special report and exhibits, the court issued an order on November 17,
2016, requiring Allen to file a response to the defendants’ special report, supported by affidavits
or statements made under penalty of perjury and other evidentiary materials. (Doc. 15). This order
specifically cautioned that “unless within fifteen (15) 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 report 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. 15 at 2–3). Allen
filed an unsworn response to this order (Doc. 16) with attachments made under penalty of perjury.
(Doc. 16-1 at 1-11). Pursuant to the directives of the order entered on November 17, 2016, the

2 By Order dated July 5, 2019, the Court allowed plaintiff to file a response within ten (10) days of his
receipt of the second supplemental special report. This report was filed on July 12, 2019. Plaintiff has
failed to file a response.
court now treats the defendants’ special report as a motion for summary judgment and concludes
that summary judgment is due to be granted in favor of the 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
[dispute] 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) (internal
quotation marks omitted); Rule 56(a), Fed. R. Civ. P. (“The court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”). The party moving for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of the [record, including pleadings, discovery materials and affidavits], which it
believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995)
(holding that moving party has initial burden of showing there is no genuine dispute of material
fact for trial). The movant may meet this burden by presenting evidence indicating there is no

dispute of material fact or by showing 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; Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (holding that
moving party discharges his burden by showing the record lacks evidence to support the
nonmoving party’s case or the nonmoving party would be unable to prove his case at trial).
When the defendants meet the evidentiary burden, as they have in this case, the burden
shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine
dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact [by citing to materials
in the record including affidavits, relevant documents or other materials], the court may . . . grant
summary judgment if the motion and supporting materials—including the facts considered
undisputed—show that the movant is entitled to it[.]”); Jeffery, 64 F.3d at 593–94 (holding that,

once a moving party meets its burden, “the non-moving party must then go beyond the pleadings,
and by its own affidavits [or statements made under penalty of perjury], or by depositions, answers
to interrogatories, and admissions on file,” demonstrate that there is a genuine dispute of material
fact). 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). This court will also consider “specific facts” pled in a plaintiff’s sworn
complaint when considering his opposition to summary judgment. Caldwell v. Warden, FCI

Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014); Barker v. Norman, 651 F.2d 1107, 1115 (5th
Cir. Unit A 1981) (stating that a verified complaint serves the same purpose of an affidavit for
purposes of summary judgment). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005).
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 such that summary judgment
is not warranted. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d
1306, 1313 (11th Cir. 2007). The evidence must be admissible at trial, and if the nonmoving
party’s evidence “is merely colorable . . . or is not significantly probative . . . summary judgment
may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986), Fed. R. Civ. P.
56(e). “A mere ‘scintilla’ of evidence supporting the supporting party’s position will not
suffice[.]” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at

252). Only disputes involving material facts are relevant, materiality is determined by the
substantive law applicable to the case. Anderson, 477 U.S. at 248.
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). “The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. At the summary judgment
stage, this court should accept as true “statements in [the plaintiff’s] verified complaint, [any]
sworn response to the officers’ motion for summary judgment, and sworn affidavit attached to that

response[.]” Sears v. Roberts, 2019 WL 1785355, *3 (11th Cir. April 24, 2019); United States v.
Stein, 881 F.3d 853, 857 (11th Cir. 2018) (holding that a plaintiff’s purely self-serving and
uncorroborated statements “based on personal knowledge or observation” set forth in a verified
complaint or affidavit may create an issue of material fact which precludes summary judgment);
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (citations omitted) (“To
be sure, [Plaintiff’s] sworn statements are self-serving, but that alone does not permit [the court]
to disregard them at the summary judgment stage . . . . Courts routinely and properly deny
summary judgment on the basis of a party’s sworn testimony even though it is self-serving.”).
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. Chamption 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. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). In
cases where the evidence 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; Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir.
2001) (holding that 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). “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) (citation omitted). “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, 126 S.Ct. at 2576; Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus,
Allen’s pro se status alone does not mandate this court’s disregard of elementary principles of
production and proof in a civil case.

The court has undertaken a thorough and exhaustive review of all the evidence contained
in the record. After such review, the court finds that Allen has failed to demonstrate a genuine
dispute of material fact in order to preclude entry of summary judgment in favor of the defendants.
III. FACTS
In his complaint, the plaintiff alleges that on August 22, 2016, Correctional Officer Reese
denied his request to use the toilet until the institutional “count” had “clear[ed]”. (Doc. 1 at pp.7-
8). As a result, plaintiff alleges he had a bowel movement in his wheelchair. (Doc. 1 at p. 7).
Specifically, plaintiff alleges he explained to Reese “that he was a cancer patient . . . [was] in a
wheel chair, . . . [had] take[n] chemo-treatment, with medication which cause[d] the need to go to
the toilet. Reese told Allen to get out of his face – I don’t care, you will not use the toilet.” Id.

As an exhibit to the special report, the defendants submitted the affidavit of Mario Reese
wherein he states as follows:
On the alleged date in question, on Second Shift’s institutional count, I gave a direct
order for all inmates in A-Dorm to remain on their assigned beds until the count
was cleared. The institutional count is conducted on each shift to ensure no inmates
have escaped. After I instructed all inmates to remain on their beds, only then did
inmate Allen get off his bed and start towards the bathroom. I gave inmate Allen a
direct order to go back to his bed and he replied “No, I don’t have too.” I gave
inmate Allen another direct order to return to his assigned bed until the count
cleared and he then complied. Once the count cleared inmates were allowed to
resume normal activities. Inmate Allen did not report this alleged incident to me.
I have no knowledge of inmate Allen having a bowel movement in his chair.

(Doc. 14-3). In his response to the defendants’ special report, Allen claims that, after defecating
on himself in his wheelchair, defendant Reese denied him the opportunity to shower or to report
the incident to the shift office. (Doc. 16 at p. 1). Allen also provides the statements of six other
inmates stating that they witnessed part or all of these events. (Doc. 16-1 at p. 5-10).
Allen also alleges that defendants violated the Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq., and the Eighth Amendment because his prison dorm does not have sufficient
handicapped bathroom access or sufficient fire exits for wheelchairs. (Doc. 1 at p. 10).
Specifically, he alleges that the
“restricted front exit is to {sic} small for wheel chairs to safely exit. The
rear exit door can’t be open {sic} from inside by officials for fire exiting.
There’s only one wheel chair ramp and it is blocked by overcrowding of
beds, tables, fans, and mass numbers of inmates assign to A-Dorm.”

(Doc. 1 at p. 10). He also alleges “that A-Dorm don’t {sic} have the ADA means to provide for
the mass numbers of ADA inmates house {sic} in A-Dorm for toilets.” Further, in his response to
the defendants’ special report, Allen claims that “there is one handicap toilet and everyone uses it
when it works . . . I can not wait in line for 30 minutes and sometimes more.” (Doc. 16-1 at p. 3).
As an exhibit to the special report, the defendants submitted the affidavit of Warden Phyllis
Billups, wherein she states that “[w]heelchair accessible toilets are available for inmates to use in
A Dorm. . . . [and] [t]here is an emergency evacuation plan established at Kilby should inmates
need to be evacuated.” (Doc. 14-4 at p.2). The defendants also submitted as an exhibit to the
second supplemental special report a CD with photographs and video of Dorm A pertaining to
Allen’s claims about wheelchair access in Dorm A. The Court has viewed the photographs and
video and concludes that they conclusively demonstrate the following:
1) An inmate in a wheelchair of normal width can enter and exit Dorm A from the main
hallway.
2) An inmate in a wheelchair of normal width is able to proceed easily along the walkway
between bunks in Dorm A and to and from his own bunk.
3) An inmate in a wheelchair of normal width can navigate the fire exit door at the rear of
Dorm A.

4) The rear fire exit door is capable of being opened by officers from inside the dorm (the
key to which is kept at all times on a “key board” in the Dorm A cubicle, which is
manned 24 hours a day and 7 days a week).
5) Although there is only a single ramp that leads from the rear fire exit door to the grassy
area behind Dorm A, that ramp is nearly 5 feet wide and is wide enough for a wheel
chair and inmates walking side by side to safely exit using the ramp in the event of a
fire or other emergency.
(Doc. 28-1).
IV. ABSOLUTE IMMUNITY
To the extent Allen requests monetary damages from the 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 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 School & Hospital 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) (consent 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, the 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); Edwards v. Wallace Community College, 49 F.3d 1517, 1524 (11th Cir.
1995) (holding that damages are unavailable from state official sued in his official capacity).
Thus, the Court will now address the plaintiff’s claims brought against defendants in their
individual capacities.
V. DISCUSSION
A. 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).
“[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 County, 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 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 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). 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.
When considering a plaintiff’s Eighth Amendment claim for exposure to human waste the
“frequency and duration of the condition, as well as the measures employed to alleviate the
condition, must be considered when analyzing the objective component.” Grimes v. Thomas, 2014
WL 554700 *7 (N.D. Ala. Feb. 12, 2014) citing Hutto v. Finney, 437 U.S. 678, 686-87, 98 S. Ct.
2565, 2571, 57 L.Ed.2d 522 (1978). Indeed, an inmate’s exposure to human waste can be
sufficiently serious enough to satisfy the objective component of an Eighth Amendment claim. Id.
(citing McBride v. Deer, 240 F. 3d 1287, 1292 (10th Cir. 2001)). “Although ‘courts have been
especially cautious about condoning conditions that include an inmate’s proximity to human
waste,’ Fruit v. Norris, 905 F. 2d 1147, 1151 (8th Cir. 1990), it is also apparent that ‘toilets can be

unavailable for some period of time without violating the Eighth Amendment.’ Johnson v. Lewis,
217 F. 3d 726, 733 (9th Cir. 2000).” Grimes, 2014 WL 554700 *7. Moreover, the United States
Supreme Court recognized an Eighth Amendment violation where the inmate plaintiff was
confined to a hitching post for seven hours during which time he was deprived of any water or
bathroom breaks. Hope v. Pelzer, 536 U.S. 730, 738 (2002).
2. Analysis
The plaintiff alleges that he was denied access to the toilet on August 22, 2016, by Officer
Reese. He admits that the denial occurred during the institutional count and does not allege that
his access was denied following conclusion of the count. (Doc. 1 at pp. 7-8). Indeed, Officer
Reese confirmed that the inmates’ “normal activities” were allowed following the count. (Doc.
14-3 at p. 2). However, plaintiff complains that this wait caused him to defecate on himself in his

wheelchair and that he was not allowed to take a shower. The plaintiff does not state the specific
amount of time he was denied toilet access, nor does he state the amount of time he was prohibited
from showering. (Doc. 16 at p. 1). The plaintiff also alleges that he is denied access to the
bathroom on a regular basis in Dorm A because he has to “wait in line for 30 minutes and
sometimes more” to use the handicapped bathrooms. (Doc. 16-1 at p. 3).
The plaintiff’s allegations make clear that he complains about a single incident that resulted
in his exposure to his own waste and that on this occasion he was denied a shower, but he does not
state the amount of time that elapsed. He also complains generally about the time he has to wait
in line to use the handicapped toilets, alleging a wait for 30 minutes or more. (Doc. 16-1 at p. 3).
Thus, in these instances, the frequency and the duration of the alleged deprivations are not serious

enough to establish an Eighth Amendment violation. Grimes, 2014 WL 554700 *5-7 (finding no
Eighth Amendment violation where, due to installation of a flushing device, Plaintiff’s toilet
regularly contained his cellmate’s feces and urine and Plaintiff had to choose between waiting an
hour or more to flush the toilet or to use the polluted toilet and have his cellmate’s waste splash on
him).
Indeed, Eighth Amendment violations “typically require the presence of intolerable
conditions, far worse than those Plaintiff alleges.” Id. at *7 (collecting cases); see McCord v.
Maggio, 927 F. 2d 844, 848 (5th Cir. 1991) (finding Eighth Amendment violation where a prisoner
was forced to live and sleep for two years in an unlit cell with sewage backup and roach
infestation); McBride, 240 F. 3d at 1292 (finding Eighth Amendment violation where inmate was
forced to remain in a feces-covered cell for three days); DeSpain v. Uphoff, 264 F. 3d 965, 974
(10th Cir. 2001) (finding Eighth Amendment violation where, for thirty-six hours after a riot, the
water overflowed to standing depth of four inches and prisoners urinated into the water where

feces and uneaten food floated). Furthermore, the Eleventh Circuit has recognized the existence
of an Eighth Amendment violation where the plaintiff alleged “he was denied the ability to use the
bathroom or clean himself for a full two days” and “he was ‘forced to lie in direct and extended
contact with this own feces without the ability to clean himself, while confined to a hospital bed
in maximum security constraints.’” Brooks v. Warden Powell, 800 F.3d 1295, 1305 (11th Cir.
2015). Accordingly, the Court concludes that the plaintiff’s allegations fail to satisfy the objective
element of an Eighth Amendment violation and that summary judgment is therefore due to be
granted on this claim. Caldwell, 748 F.3d at 1099.
Plaintiff also alleges that his Eighth Amendment rights are violated because being confined
to a wheel chair and due to the “mass over crowding of inmates in ‘A-dorm’ Allen is trapped with

no way to escape, the back doors lock and unlock from the outside-to violate fire code regulations”
(Doc. 1 at p. 9) and because “the restricted front exit is too small for wheel chairs to safely exit.”
(Doc. 1 at p. 10). In response to these allegations, the defendants filed a CD containing
photographic and video evidence. As set forth above, the Court has viewed the photographs and
video evidence and concludes that they conclusively demonstrate the following:
1) An inmate in a wheelchair of normal width can enter and exit Dorm A from the main
hallway.
2) An inmate in a wheelchair of normal width is able to proceed easily along the walkway
between bunks in Dorm A and to and from his own bunk.
3) An inmate in a wheelchair of normal width can navigate the fire exit door at the rear of
Dorm A.
4) The rear fire exit door is capable of being opened by officers from insider the dorm (the
key to which is kept at all times on a “key board” in the Dorm A cubicle, which is

manned 24 hours a day and 7 days a week).
5) Although there is only a single ramp that leads from the rear fire exit door to the grassy
area behind Dorm A, that ramp is nearly 5 feet wide and is wide enough for a wheel
chair and inmates walking side by side to safely exit using the ramp in the event of a
fire or other emergency.
(Doc. 28-1).
The United States Supreme Court held, “[w]hen 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, 550 U.S. at 380. Indeed, the Scott case made clear that, when video evidence

“utterly discredited” a version of the facts on summary judgment, the lower courts “should have
viewed the facts in the light depicted by the videotape.” Id. at 380-81. Accordingly, the Court
concludes, based upon the undisputed facts in this case, that the plaintiff’s allegations fail to
demonstrate a “’strong likelihood’ of injury, ‘rather than a mere possibility’”; thus, the defendants’
alleged inactions do not “constitute deliberate indifference.” Brooks, 800 F.3d at 1301.
Accordingly, summary judgment is due to be granted on the plaintiff’s Eighth Amendment claim
that he is unsafely housed in Dorm A because of the lack of wheelchair access to exits.
B. Americans with Disabilities Act
The plaintiff also alleges that the defendants are violating the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (“ADA”), because his prison dorm does not have sufficient
handicapped bathroom access or sufficient fire exits for wheelchairs. (Doc. 1 at pp. 9-10). He
seeks declaratory and injunctive relief. Specifically, he asks the court to order a full inspection of
Kilby by the state fire marshal and a federal inspector. He also asks the court to order the

defendants to provide “transport-transfer which provide wheelchair needs.” Additionally, he asks
the court to “declare A-Dorm to be in violation of Allen’s ADA needs for fire, health security, and
safety needs.” Finally, he asks the court to require defendants to “answer and show cause why
Allen is housed in A-Dorm which fails to meet and provide the minimum standards for the mass
numbers who are ADA wheel chair dependent, for health and safety.” (Doc. 1 at p. 11-12).
In order to demonstrate a denial of access claim under Title II of the ADA,3 the plaintiff
must prove that (1) he is a qualified individual with a disability; (2) he was excluded from
participation in or denied the benefits of a public entity’s services, programs, or activities or was
otherwise discriminated against by a public entity; and (3) the exclusion, denial of benefits, or
discrimination was because of his disability. See Gastine v. Secretary, Florida Dept. of

Corrections, 502 Fed. App’x. 905, 910 (11th Cir. 2012) (affirming summary judgment for the
defendants where plaintiff prisoner failed to demonstrate that he was unable to access certain areas
of the facility due to his disability). In the instant action, the plaintiff admits that he has access to
handicapped bathrooms in his dorm but that he might have to wait thirty minutes or more to use
the bathroom. (Doc. 16-1 at p. 3). Thus, the court concludes that the plaintiff has failed to

3 Title II of the ADA applies to prisoners in state correctional facilities. Pa. Dep’t of Corr. v. Yeskey, 524
U.S. 206, 210 (1998).
demonstrate a denial of “services” with respect to his claim pertaining to handicapped bathroom
access to support an ADA claim. Id. Furthermore, because the court has previously concluded
that the plaintiff fails to establish the defendants acted with deliberate indifference by denying him
access to handicapped bathrooms, the court now concludes that the plaintiff cannot demonstrate
the requisite discriminatory intent to support an ADA claim. See Wilson v. Smith, 567 Fed. App’x.
676, 679 (11th Cir. 2014).

With respect to Plaintiff’s claim that his rights under the ADA are violated because his
dorm does not have sufficient fire exits for wheelchairs, he specifically alleges:
“restricted front exit is to {sic} small for wheel chairs to safely exit. The
rear exit door can’t be open {sic} from inside by officials for fire exiting.
There’s only one wheel chair ramp and it is blocked by overcrowding of
beds, tables, fans, and mass numbers of inmates assign to A-Dorm.”

(Doc. 1 at p. 10). In response, the defendants have submitted as an exhibit to the supplemental
second special report a CD with photographs and video of Dorm A pertaining to Allen’s claims
about wheelchair access; the photographs and video conclusively demonstrate that Dorm A
wheelchair inmates have access to exits in case of a fire or other emergency. (Doc. 28-1).
Accordingly, the court concludes that the plaintiff has failed to demonstrate a denial of “services”
with respect to his claim pertaining to emergency exit access for wheelchair bound inmates which
could support an ADA claim. Id. Furthermore, because the court has previously concluded that
the plaintiff fails to establish the defendants acted with deliberate indifference by denying him
access to emergency exits, the court now concludes that the plaintiff cannot demonstrate the
requisite discriminatory intent to support an ADA claim. See Wilson, Fed. App’x. at 679.
Accordingly, the court concludes that summary judgment is due to be granted on the plaintiff’s
ADA claims.
V. CONCLUSION
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:
1. The defendants’ motion for summary judgment be GRANTED.
2. Judgment be GRANTED in favor of the defendants.
3. This case be DISMISSED with prejudice.
4. No costs be taxed.

On or before August 16, 2019, the parties may file objections to this Recommendation. 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 a written objection to the proposed findings and recommendations in the
Magistrate Judge’s report shall bar a party from a de novo determination by the District Court of
factual findings and legal issues covered in the report and shall “waive the right to challenge on
appeal the District Court’s order based on unobjected-to factual and legal conclusions” except
upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution
Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (“When the magistrate

provides such notice and a party still fails to object to the findings of fact and those findings are
adopted by the district court the party may not challenge them on appeal in the absence of plain
error or manifest injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE this 2nd day of August, 2019.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
CHIEF UNITED STATES MAGISTRATE JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10629947. Public record. Not legal advice.