Barnes v. Thornton

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

BRIAN KEITH BARNES, #181 505, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:16-CV-760-ALB

) [WO]

SGT. THORNTON, )

)

Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff Brian Barnes [“Barnes”], an inmate incarcerated at the Bullock Correctional

Facility in Union Springs, Alabama, files the instant civil rights action under 42 U.S.C. § 1983

against Lieutenant Brandon Thornton [“Thornton”]. Barnes alleges Thornton subjected him to

excessive force in February 2016 during his incarceration at the Staton Correctional Facility in

Elmore, Alabama. Barnes also complains Thornton told inmates he was snitch and worked with

the internal investigation unit of the prison which placed his life in danger. Finally, Barnes alleges

Thornton had him transferred him to another institution to prevent his participation in a

rehabilitative drug program which caused a denial of parole. Plaintiff seeks punitive damages and

placement in protective custody at Limestone. Doc. 1. The parties request trial by jury. Docs. 13,

24.

Thornton filed a special report and supporting evidentiary materials—including affidavits,

prison records, and a video—addressing Barnes’ claim for relief. Doc. 14. In these filings,

Thornton denies he acted in violation of Barnes’s constitutional rights. Id.

The court issued an order January 20, 2017, directing Barnes to file a response to the

arguments set forth by Thornton in his special report and advising Barnes his response should be

supported by affidavits or statements made under penalty of perjury and other appropriate

evidentiary materials. Doc. 16 at 2. This order specifically cautioned the parties that “unless

within ten (10) days from the date of this order a party files a pleading which 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 the 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. 16 at 2. Barnes responded to Thornton’s

report. See Doc. 24. Barnes, however, submitted no sworn statements in support of, or in

opposition to, Thornton’s motion for summary judgment, and therefore he failed to comply with

Rule 56(e), Federal Rules of Civil Procedure. Further, Barnes did not comply with 28 U.S.C. §

1746 because he did not make an unsworn declaration under penalty of perjury. Accordingly, the

allegations in Barnes’ unsworn response (“answer) (Doc. 24) may not be considered as evidence

when ruling on the motion for summary judgment. See McCaskill v. Ray, 279 F. App’x. 913, 915

(11th Cir. 2008) (litigant’s unsworn allegations were not admissible on motion for summary

judgment where litigant did not attempt to make the declarations under penalty of perjury). Barnes’

complaint, however (Doc. 1), was signed under penalty of perjury and is, therefore, treated by the

court like a sworn affidavit. Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986) (“Where

plaintiff has presented specific facts to the trial court, in sworn form, the court may not make such

a credibility choice nor may it grant summary judgment against plaintiff on the procedural ground

that he did not controvert the factual affidavits that controverted his sworn factual statements.”);

Sammons v. Taylor, 967 F.2d 1533, 1545 n.5 (11th Cir. 1992) (citing Perry, 786 F.2d at 1095)

(“[T]his Court has recognized that facts alleged in an inmate's sworn pleading are sufficient [to

defeat a properly supported motion for summary judgment] and that a separate affidavit is not

necessary.”). The court will therefore consider Barnes’ complaint in ruling on the dispositive

motion.

Pursuant to the directives of the order entered on January 20, 2017, the court deems

it appropriate to treat Defendant’s special report as a motion for summary judgment. Upon

consideration of motion, the evidentiary materials filed in support thereof, and the sworn

complaint, the court concludes the motion for summary judgment is due to be granted in part and

denied in part.

I. STANDARD OF REVIEW

“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) (per curiam);

Fed. R. Civ. P. 56(a) (“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). The

movant may meet this burden by presenting evidence indicating there is no dispute of material fact

or by showing the non-moving party has failed to present evidence to support some element on

which it bears the ultimate burden of proof. Id. at 322−324.

Thornton has met his evidentiary burden. Thus, the burden shifts to Barnes 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); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593−594 (11th Cir. 1995)

(holding that, 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 there is a genuine dispute of material fact)

(internal quotations 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)1 (holding 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).

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) (internal quotation marks omitted). “The evidence of the non-movant is

to be believed, and all justifiable inferences are to be drawn in his favor.”2 Anderson, 477 U.S. at

1 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.

2 Although factual inferences must be viewed in a light most favorable to the non- moving party and pro se

complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of

establishing by sufficient evidence a genuine dispute of material fact. See Beard v. Banks, 548 U.S. 521,

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, affidavit or declaration sworn under penalty of

perjury 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. 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). 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;

525 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Barnes’ pro se status alone does not

compel this court to disregard elementary principles of production and proof in a civil case.

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).

The court has undertaken a thorough review of the evidence of record. In this case, Barnes,

through the submission of his sworn complaint, has demonstrated a genuine dispute of material

fact to preclude entry of summary judgment on his excessive force claim against Defendant

Thornton. No dispute of material fact regarding the remaining claims, however, has been shown

which would preclude entry of summary judgment for Defendant Thornton.

II. DISCUSSION

A. The Complaint

In February of 2015 Barnes was in the law library. Barnes states Thornton assaulted him

for no reason by punching him in the face. The officer then escorted Barnes to the shift office

where he continued to punch and kick Barnes. Barnes also alleges Thornton told inmates he was

a snitch which placed his life in danger and that in November 2015 when he was transferred back

to Staton, Thornton told inmates Barnes was working with I&I. Barnes claims Thornton had him

transferred to prevent him from participating in the SAP (“Substance Abuse Program”) program

which resulted in a denial of parole. Doc. 1 at 2–3.

B. Absolute Immunity

The capacity in which Barnes brings suit against Thornton is not clear from the complaint.

To the extent Barnes seeks to sue Thornton in his official capacity, he is entitled to absolute

immunity from monetary damages. 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). “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], 116 S. Ct. 1114, 1125 (1996). Alabama has not waived its Eleventh Amendment

immunity, see Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (citations omitted),

and Congress has not abrogated Alabama’s immunity. Therefore, Alabama state officials are

immune from claims brought against them in their official capacities.” Lancaster v. Monroe

County, 116 F.3d 1419, 1429 (11th Cir. 1997).

In light of the foregoing, it is clear that Thornton is a state actor entitled to sovereign

immunity under the Eleventh Amendment for claims seeking monetary damages from him in his

official capacity. Lancaster, 116 F.3d at 1429; Jackson v. Georgia Department of Transportation,

16 F.3d 1573, 1575 (11th Cir. 1994).

C. Excessive Force Claim

1. Qualified Immunity

Regarding Barnes’s claims against Thornton in his individual capacity, Thornton argues

he is entitled to qualified immunity. Doc. 14. Qualified immunity offers complete protection from

civil damages for government officials sued in their individual capacities if their conduct does not

violate “clearly established statutory or constitutional rights of which a reasonable person would

have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Qualified immunity is not merely a defense against liability but immunity from

suit, and the Supreme Court “repeatedly [has] stressed the importance of resolving immunity

questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 231–32

(2009) (quotation marks and citations omitted). To receive qualified immunity, the public official

must first prove he was acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). There is no dispute

that Thornton was acting within the course and scope of his discretionary authority when the

incidents occurred. Barnes must, therefore, allege facts that, when read in a light most favorable

to him, show Thornton is not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352,

1358 (11th Cir. 2003).

To satisfy his burden, Barnes must show two things: (1) that a defendant committed a

constitutional violation and (2) that the constitutional right a defendant violated was “clearly

established.” Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004). “To be clearly

established, a right must be sufficiently clear that every reasonable official would [have

understood] that what he is doing violates that right. In other words, existing precedent must have

placed the statutory or constitutional question beyond debate.” Reichle v. Howards, 566 U.S. 658,

664 (2012) (quotation marks and citations omitted). “Clearly established law” means (1) “a

materially similar case has already been decided”; (2) “a broader, clearly established principle that

should control the novel facts of the situation”; or (3) “the conduct involved in the case may so

obviously violate the constitution that prior case law is unnecessary.” Gaines v. Wardynski, 871

F.3d 1203, 1208–09 (11th Cir. 2017) (quotation marks and citations omitted). The controlling

authority is from “the United States Supreme Court, the Eleventh Circuit, or the highest court in

the relevant state.” See id. at 1209. “Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or

those who knowingly violate the law.” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012)

(quotation marks and citations omitted). The Eleventh Circuit “has stated many times that if case

law, in factual terms, has not staked out a bright line, qualified immunity almost always protects

the defendant.” Gaines, 871 F.3d at 1210. “Exact factual identity with the previously decided case

is not required, but the unlawfulness of the conduct must be apparent from pre-existing law.”

Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011). If a plaintiff cannot establish both

elements to satisfy his burden, the defendants are entitled to qualified immunity, and the court may

analyze the elements “in whatever order is deemed most appropriate for the case.” Rehberg v.

Paulk, 611 F.3d 828, 839 (11th Cir. 2010) (citing Pearson, 555 U.S. at 241–42).

Regarding Barnes’ claim of excessive force, “[u]nder the doctrine of qualified immunity,

if the defendant establishes that he was acting within the scope of his discretionary authority when

the alleged excessive force occurred, the burden shifts to the plaintiff to show that the defendant

is not entitled to qualified immunity. Skop [v. City of Atlanta, 485 F.3d 1130, 1136-1137 (11th

Cir. 2007)]. In Eighth Amendment excessive force cases, however, ‘the subjective element

required to establish [the constitutional violation] is so extreme that every conceivable set of

circumstances in which this constitutional violation occurs is clearly established to be a violation

of the Constitution.’ Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir. 2002).” Bowden v.

Stokely, 576 Fed. App’x 951, 954-955 (11th Cir. 2014) (per curiam). “While . . . there is no per se

rule barring qualified immunity in Eighth Amendment cases, where the plaintiff has sufficiently

alleged or shown a material dispute of fact as to an excessive force claim, summary judgment

based on qualified immunity is not appropriate. See Skrtich [v. Thornton, 280 F.3d 1295, 1301

(11th Cir. 2002)].” Bowden, 576 Fed. App’x at 956. Accordingly, this court will consider whether

Barnes’ allegation that Thornton used excessive force against him for no reason and without

provocation, which the court must take as true for purposes of summary judgment, sets forth a

violation of his Eighth Amendment rights.

2. 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).

Under 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, 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, 280 F.3d at 1300–01.

In Hudson v. McMillian, 503 U.S. at 9, the Supreme Court held that the use of excessive

physical force against a prisoner may constitute cruel and unusual punishment even though the

prisoner does not suffer serious injuries. On the other hand, “[n]ot 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.” Johnson, 481 F.2d 1028, 1033 (2d Cir. 1973). Whether a defendant’s use of force is

excessive, and thus violative of an inmate’s right to be free from cruel and unusual punishment,

“depends on whether the [defendant’s] act shocks the conscience, and it necessarily will if the

force was applied . . . maliciously and sadistically for the very purpose of causing harm.” Danley

v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008) (internal quotations and citations omitted). An

excessive force claim “necessarily excludes from constitutional recognition de minimis uses of

physical force, provided that the use of force is not a sort ‘repugnant to the conscience of

mankind.’” Hudson, 503 U.S. at 9–10 (quotation marks and citation omitted); Brooks v. Kyler, 204

F.3d 102, 103 (3d Cir. 2000) (finding there is “no fixed minimum quantity of injury that a prisoner

must prove that he suffered” to state an excessive force claim).

Notwithstanding the fact that a de minimis use of force will rarely suffice to state a

constitutional claim, a plaintiff is not required to show that the application of force resulted in

serious injury. Hudson, 503 U.S. at 8. “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). Thus, in an excessive force

case such as the one at hand, “the core judicial inquiry is not whether a certain quantum of injury

was sustained, but rather whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Bowden, 576 F. App’x at 953 (internal

quotations and citation omitted).

Thornton testifies that on February 18, 2015, he was working as an assistant shift manger

and heard a call on another officer’s radio that two inmates had been involved in an altercation in

the chow hall. Inmate Ashley Monroe was brought to the shift office for questioning and informed

correctional staff he was unaware why inmate Brian Barnes had assaulted him. Thornton

proceeded to the law library where Barnes was being held and testifies to hearing Barnes state he

assaulted inmate Monroe to “catch out.”3 Thornton testifies Barnes “continued” to act up, and it

seemed to Thornton that Barnes was bragging about “attacking an innocent person to cheat the

system again.” Because of Barnes’ conduct, Thornton testifies he “lost [his] cool” and open-

slapped Barnes on the back of the head. Thornton states he then walked away and went to the shift

office. Officer McDaniel escorted Barnes to the shift office to obtain his statement. Thornton

testifies that he denies seeing Barnes hit or kicked in the shift office. Doc. 14-2 at 2.

Thornton’s evidence includes video evidence. Doc. 15-1 (conventionally filed). The video

evidence shows Barnes standing by a table. He says something to Thornton as the officer

approaches him but remains standing in place. Suddenly Thornton administers two blows to

Barnes’ head and Barnes falls to the ground. At 5:50 p.m. on February 18, 2015, medical personnel

examined Barnes. On examination, medical staff found no sign of any apparent injuries. Doc. 14-

2, Doc. 14-5 at 4; Doc. 15 (filed conventionally).

Barnes complains that on February 18, 2015, Thornton used excessive force against him

without provocation. While Thornton admits hitting Barnes, he denies he subjected the inmate to

excessive force. Specifically, Thornton argues his actions did not rise to the level of excessive

force in violation of Barnes’ constitutional rights because he (Thornton) was not intending to cause

harm, the force used against Barnes was not particularly shocking or excessive, Barnes received a

medical evaluation shortly after the encounter which reflected he sustained no visible injuries, and

3 Thornton testifies that “catching out” occurs when an inmate engages in conduct designed to protect

them through a transfer or placement in segregation and is typically done when an inmate incurs a debt

owed to another inmate which he cannot pay. Doc. 14-2 at 2.

a de minimis use of force cannot support a claim for a constitutional violation if the force used was

not repugnant to the “conscience of mankind.” Doc. 14.

Even though Thornton disputes the version of events presented by Barnes, this court is

required at this stage of the proceedings to view the facts in the light most favorable to Barnes and

draw all reasonable inferences from those facts in his favor. Bradley v. Franklin Correctional

Service, Inc., 739 F.3d 606, 608 (11th Cir. 2014); Anderson, 477 U.S. at 255 (all justifiable

inferences are to be drawn in favor of the party opposing summary judgment). In that vein, Barnes

states Thornton, acting without provocation or purpose, subjected him to an unjustified use of force

in the law library and then continued to punch and kick him in the shift commander’s office. This

version of the events could support an excessive force claim. Bowden, 576 Fed. App’x at 954.

Thornton admits to hitting Barnes in the law library but denies his conduct amounted to a use of

excessive force. He denies seeing Barnes hit or kicked in the shift commander’s officer but does

not deny Barnes’ claim that that he continued his assault on Barnes in the shift office. Doc. 14-2.

See also Doc. 14-3 at 15. Viewing the facts in the light most favorable to Barnes, the court

concludes Thornton is not entitled to qualified immunity as Barnes has alleged facts sufficient to

survive Thornton’s motion for summary judgment regarding Barnes’s excessive force claim.

Skrtich, 280 F.3d at 1301. Specifically, disputed issues of material fact exist regarding the need

for the use of force by Thornton, the nature of the force he used, and whether he acted “maliciously

and sadistically” to cause harm. Consequently, the motion for summary judgment regarding

Barnes’ excessive force claim against Defendant Thornton in his individual capacity is due to be

denied.

D. Eighth Amendment - Conditions Claim

Barnes alleges Thornton told other inmates he was a “snitch” and was working with prison

investigators which endangered his life. Thornton denies ever calling Barnes a snitch and testifies

he does not know of whether Barnes worked with prison investigators. Doc. 14-2.

The court considers Barnes’ claim as a challenge to prison conditions under the Eighth

Amendment. A convicted prisoner is entitled to reasonable protection from harm at the hands of

fellow inmates and prison officials under the Eighth Amendment. Farmer v. Brennan, 511 U.S.

825, 832–34 (194). And prison officials must take reasonable measures to guarantee the safety of

inmates. Id. at 832. To demonstrate that a prison official has violated the Eighth Amendment, an

inmate must first allege a deprivation that must be objectively sufficiently serious—that there was

a substantial risk of serious harm. Id. at 828. Second, the prison official must have a sufficiently

culpable state of mind. Id. at 834. In prison condition cases, that state of mind is one of deliberate

indifference to inmate health or safety. Id. To act with deliberate indifference, a prison official

must both know of and disregard “an excessive risk to inmate health or safety; 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.” Id. at 837. A prison official who endangers the

life or safety of a prisoner by inciting other inmates to harm a prisoner, such as by labeling the

prisoner a “snitch” or informant, may violate the Eighth Amendment. Harmon v. Berry, 728 F.2d

1407, 1409 (11th Cir. 1984) (per curiam) (allegation that correctional officer endangered

prisoner’s life by telling other inmates he was a snitch, exposing him to the possibility of inmate

retaliation, stated a claim for relief)); Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir.

2001). Finally, there must be a causal connection between the defendant’s conduct and the

violation. See Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014).

Consequently, to survive the properly supported motion for summary judgment filed by

Thornton, Barnes must first demonstrate an objectively substantial risk of serious harm existed to

him and “that the defendant 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) (citation omitted).

If he establishes these objective elements, Barnes must then satisfy the subjective component. To

do so, Barnes must show Thornton “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 he must also draw the inference.” Id.

Here, Barnes alleges Thornton told inmates he was a snitch and worked with the internal

investigative unit of the prison which placed his safety and life in danger. Doc. 1 at 3. Barnes,

however, does not support his claim with any evidence Thornton actually engaged in the

challenged conduct. Barnes identifies no inmates who either heard Thornton call him a snitch or

state Barnes was assisting the prison’s internal investigation unit, instead relying on his own

contention that Thornton did so. Barnes’ claim against Thornton is devoid of any factual

allegations that give rise to an inference he actually faced a serious threat because of Thornton’s

conduct. Even assuming, arguendo, Barnes could satisfy the objective component of his Eighth

Amendment claim, he has not satisfied the subjective component. Notably, Barnes identifies not a

single inmate who represented a threat to him nor has he articulated any incidents of actual or

imminent harm because of the alleged identification he attributes to Thornton. His allegations also

do not reflect that he communicated any concerns about his safety to Thornton or any prison

official because of the conduct he ascribes to Thornton nor does he allege much less indicate there

was ever any actual or imminent threat to his safety disregarded by Thornton or any other prison

official. At most, Barnes has done no more than assert in broad and conclusory fashion that

Thornton’s alleged actions put his safety at risk but alleges no facts nor produces any evidence to

show he faced any actual harm or even threat of actual or imminent harm from any inmate. See

Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985) (citations

omitted) (“All reasonable inferences arising from the undisputed facts should be made in favor of

the nonmovant, but an inference based on speculation and conjecture is not reasonable” as

inferences must be based on facts in the record). In light of the foregoing, the court finds Barnes

fails to demonstrate an Eighth Amendment violation against Thornton, and he is, therefore, is

entitled to qualified immunity.

E. Fourteenth Amendment - Transfer Claim

Barnes maintains Thornton had him transferred from Staton so he could not participate in

a substance abuse program (“SAP”). Barnes further contends his inability to attend SAP resulted

in a denial of parole. Doc. 1 at 3. Thornton denies Barnes’ allegation and maintains he was not

involved with nor does he have any authority over decisions made by the parole board or the

classification process governing Barnes’ admission to the SAP program. Doc. 14-2.

Initially, the court notes the Constitution itself does not give prisoners a liberty in being

housed in particular prison or area of the prison, Meachum v. Fano, 427 U. S. 215, 224 (1976), in

being granted parole, Swarthout v. Cooke, 562 U.S. 216, 220 (2011), or in participating in

favorable prison programs. Sandin v. Conner, 515 U.S. 472, 484 (1995); Moody v. Daggett, 429

U.S. 78, 88 n.9 (1976). Regarding Barnes’ claim that Thornton arranged his transfer from Staton

to impede his ability to attend SAP, it is undisputed that Thornton had no input or authority over

decisions involving Barnes’ housing, custody, or prison program placements, or release on parole.

An affidavit submitted by the Assistant Classification Director for the Alabama Department of

Corrections reflects Barnes was transferred multiple times for many reasons beginning March 2,

2015, until his transfer to Bullock Correctional Facility on March 4, 2016, where he has since

remained. Doc. 14-4. The unrefuted prison records regarding Barnes’ transfers do not reflect

Thornton had any involvement making in those decisions.4 See Doc. 14-3 at 3–9. Consequently,

Barnes has not shown Thornton deprived him of any constitutional right to which he is entitled.

Thornton is, therefore, entitled to qualified immunity on this claim.

III. CONCLUSION

In light of the foregoing, it is the RECOMMENDATION of the Magistrate Judge that:

1. Defendant’s motion for summary judgment (Doc. 14) be GRANTED in part and

DENIED in part as addressed herein.

2. Defendant’s motion for summary judgment regarding Plaintiff’s claims for monetary

damages lodged against Defendant in his official capacity be GRANTED and these claims be

DISMISSED with prejudice as Defendant is entitled to absolute immunity from such relief.

3. Defendant’s motion for summary judgment regarding Plaintiff’s excessive force claim

lodged against him in his individual capacity be DENIED.

4. Defendant’s motion for summary judgment on Plaintiff’s Eighth and Fourteenth

Amendment claims in §§ II(D) and II(E) be GRANTED;

5. This case be set for trial on Plaintiff’s excessive force claim against Defendant Thornton.

It is further

ORDERED that on or before August 30, 2019, the parties may file an objection. Any

objection filed must specifically identify the factual findings and legal conclusions in the

4 The undisputed evidence also reflects Barnes signed a treatment refusal form on July 22, 2015, while

incarcerated at the Ventress Correctional Facility (Doc. 14-3 at 9), indicating his desire to refuse

participation in the drug treatment program. He wrote on the form that he was not ready to participate in

the substance abuse program because of family problems and wished to wait until he was able to focus

completely on the program. Doc. 14-3 at 18; Doc. 14-4 at 2.

Magistrate Judge’s Recommendation to which the parties object. Frivolous, conclusive or general

objections will not be considered by the District Court. This Recommendation is not a final order

and, therefore, it is not appealable.

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); Henley v. Johnson, 885 F.2d

790, 794 (11th Cir. 1989).

Done, this 16th day of August 2019.

/s/ Charles S. Coody

UNITED STATES MAGISTRATE JUDGE