Wilson v. Crow (INMATE 2)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

DANIEL M. WILSON, )

)

Plaintiff, )

)

v. ) CASE NO. 2:21-CV-557-MHT-KFP

)

MONICA P. MCCOY, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

Plaintiff Daniel Wilson, proceeding pro se and in forma pauperis, filed this action

under 42 U.S.C. § 1983 during his incarceration at Easterling Correctional Facility.1 See

Doc. 1.2 Wilson’s Amended Complaint alleges violations of his rights under the First and

Eighth Amendments by Warden Monica McCoy, Warden John Crow, Sergeant Dranarrius

Lovejoy, and Correctional Officers George Jones, Quindarius Thagard, Latasha Jackson,

and Samuel Smith. Doc. 14 at 1–4. For relief, Wilson seeks $500,000 in damages, release

from prison, and closure of Easterling.3 Id. at 5.

1 Wilson was released from custody of the Alabama Department of Corrections while this action was

pending. See Doc. 43.

2 All citations refer to document and page numbers assigned by the Clerk in the docketing process.

3 A § 1983 action does not provide a remedy for a state prisoner asserting a constitutional challenge to the

fact or duration of his detention. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). Thus, even if Wilson

had not been released from prison, his request for “my freedom” (Doc. 14 at 5) must be addressed in an

application for habeas corpus relief. Id. at 500. Further, to the extent Wilson seeks prospective injunctive

relief by requesting that Easterling be closed, this relief is also unavailable. As the Eleventh Circuit has

explained, “because injunctions regulate future conduct, a party has standing to seek injunctive relief only

if the party alleges . . . a real and immediate—as opposed to a merely conjectural or hypothetical—threat

Defendants filed an Answer, Special Report, and supporting evidentiary materials

addressing Wilson’s claims for relief and denying that they violated his constitutional

rights. Doc. 31. After reviewing the Special Report, the Court issued an Order requiring

Wilson to respond with affidavits or statements made under penalty of perjury and other

evidentiary materials. Doc. 33 at 2. The Order specifically cautioned that the “Court may

at any time [after expiration of the time for Wilson to file a response] 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) rule on the dispositive motion in

accordance with the law after considering any response filed in compliance with this

Order.” Id. Accordingly, the Court now treats Defendants’ Special Report as a motion for

summary judgment and concludes it is due to be granted.

II. SUMMARY JUDGMENT STANDARD

Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court must

grant a motion for summary judgment if the movant shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to a judgment as a matter of

of future injury.” Wooden v. Bd. of Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1284 (11th Cir. 2001)

(holding that “[t]o have standing to obtain forward-looking relief, a plaintiff must show a sufficient

likelihood that he will be affected by the allegedly unlawful conduct in the future”). “Past exposure to illegal

conduct does not in itself show a present case or controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–496

(1974). Rather, “[t]he general rule is that a prisoner’s transfer or release from a jail moots his individual

claim for declaratory and injunctive relief,” even when “there is no assurance that he will not be returned

to the jail.” McKinnon v. Talladega Cnty., Ala., 745 F.2d 1360, 1363 (11th Cir. 1984) (holding that an

inmate’s claim was moot where he challenged “unconstitutional conditions in a single jail where [he] is no

longer incarcerated”). Because Wilson is no longer incarcerated, he cannot allege a real and immediate

threat of future injury regarding the challenged conduct that occurred at Easterling, and his request for

equitable relief is moot. See Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (explaining that,

“[a]bsent class certification, an inmate’s claim for injunctive and declaratory relief in a section 1983 action

fails to present a case or controversy once the inmate has been [released]”).

law. Fed. R. Civ. P. 56(a). A dispute “is ‘genuine’ if the record as a whole could lead a

reasonable trier of fact to find for the nonmoving party. . . . [A dispute] is ‘material’ if it

might affect the outcome of the case under the governing law.” Redwing Carriers, Inc. v.

Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).

The party asking for summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion and alerting the court to portions of

the record that support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

However, once the movant has satisfied this burden, the nonmovant is similarly required

to cite portions of the record showing the existence of a material factual dispute. Id. at 324.

To avoid summary judgment, the nonmovant “must do more than simply show that there

is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). In determining whether a genuine dispute for trial

exists, the court must view all the evidence in the light most favorable to the nonmovant

and draw all justifiable inferences from the evidence in the nonmoving party’s favor.

McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003); see Fed. R.

Civ. P. 56(a).

III. BACKGROUND

A. Wilson’s Sworn Allegations

In his sworn Amended Complaint, Wilson alleges that on May 18, 2021, between

7:00 p.m. and 8:30 p.m., haircuts were being given to inmates in the restricted housing unit.

Doc. 14 at 3. Identifying as “Rastafory,” Wilson told Sgt. Lovejoy and Lt. Jones that his

religion forbade him to cut his hair and that he had a religious profile excusing him from

having his hair cut. Id. Wilson claims Lt. Jones said “he didn’t care,” “overlooked the

matter,” and, with help from Sgt. Lovejoy and Officer Thagard, “forcefully with handcuffs

behind [his] back against [his] will” held Wilson down and shaved his head. Id.; Doc. 14-

1 at 1. More specifically, Wilson states the above Defendants “forcefully grabbed and

pushed [him] to the wall then forced [him] down to a chair holding [him] down very

forceful with handcuffs already to [his] back.”4 Doc. 14 at 3. Officers Jackson and Smith

boxed Wilson in to prevent him from moving. Id. and Doc. 14-1 at 1. As Officer Thagard

escorted Wilson back to his cell, he roughly pulled Wilson’s arm. Doc. 14 at 3. Wilson

states his hand was swollen from being held down to get his hair cut, and he “even had to

get x-rays on [his] hand” before leaving Easterling.5 Id. and Doc. 14-1 at 2.

B. Defendants’ Factual Responses and Other Record Evidence

Defendants’ evidentiary submissions include their affidavits, agency regulations

and rules, and prison records.6 The institutional incident report reflects the following:

4 Under departmental policies, inmates housed in restricted housing units, like disciplinary segregation,

must be handcuffed behind their backs when moved in or out of a cell. See Alabama Department of

Corrections Administrative Regulation No. 434 at ¶ 4(a). Available at https://doc.alabama.gov/Regulations.

The parties appear to reference “disciplinary segregation” and “restricted housing” to reference the areas

within which additional limitations are imposed on inmates, such as being placed in handcuffs during

movement. There is no evidence before the Court indicating a distinction between “disciplinary

segregation” and “restricted housing.”

5 Attachments to Wilson’s Amended Complaint show that he remained at Easterling through at least the

end of June 2021. See Doc. 14-2.

6 Defendants have provided copies of prison records, regulations, and rules but have not submitted a

certificate of authenticity from a records custodian or other qualified witness. Because Wilson does not

challenge the authenticity of the records, they are treated as authentic. See O’Connor v. Carnahan, No.

3:09-CV-224-WS-EMT, 2015 WL 6405976, at *5 (N.D. Fla. Sept. 21, 2015), report and recommendation

adopted sub nom. O’Connor v. Carnahan, No. 3:09-CV-224-WS-EMT, 2015 WL 6182680 (N.D. Fla. Oct.

21, 2015) (finding prison records’ authenticity could not reasonably be challenged under Fed. R. Evid.

902(11) or Fed. R. Evid. 803(6)).

On May 18, 2021 Correctional Sergeant Dranarris Lovejoy was assigned as

the Restrictive Housing Unit Supervisor. At approximately 7:30 PM, Sgt.

Lovejoy ordered inmate Daniel Wilson, B/260779, (B2-47A), several times

to sit down and receive a haircut. Inmate Wilson failed to comply with Sgt.

Lovejoy’s order and refused to sit down and get a haircut. Sgt. Lovejoy put

his right hand on inmate Wilson’s right shoulder and Correctional Officer

Quindarius Thagard put his right hand on inmate Wilson’s left shoulder and

help guide inmate Wilson in the chair as he sat down in the chair. Inmate

Wilson receive a haircut. During inmate Wilson haircut he stated, “I’m gone

stab you Sgt. Lovejoy, Officer Thagard, and the inmate cutting my hair”, he

also stated that “If anybody open my cell trap door, I’m gone throw urinal on

them”. Sgt. Lovejoy verbally reprimand inmate Wilson of his negative

behavior. At approximately 7:35 pm, Sgt. Lovejoy reported the incident to

Correctional Lieutenant Dominic Jones. Inmate Wilson remained housed in

Restrictive Housing Unit Cell B2-47 pending disciplinary action; Failed to

Obey and Threats. 5/18/2021 8:36 PM by dranarris.lovejoy 5/27/2021 7:57

PM by dranarris.lovejoy 6/8/2021 5:45 PM by dranarris.lovejoy

On August 16, 2021, Correctional Captain Joseph Danzey viewed the above

incident and determined that this incident was a Use of Force Incident. The

incident was labeled a Failure to obey and Threats by Correctional Sergeant

Dranarris Lovejoy. There were no staff statements, pictures, body charts or

Inmate Use of Force Statements conducted during this incident due to

Sergeant Lovejoy not following ADOC protocols. Sergeant Lovejoy also did

not follow Easterling Correctional Facility’s Standard Operating Procedures.

If the proper protocols would have been followed, the outcome of the

incident would have been a Use of Force Incident. This mishandling of this

incident will be handled Administratively. Although the incident was

mishandled, the minimal force was justified. 8/19/2021 11:15 AM by

joseph.danzey

Doc. 31-2 at 1.7

Sgt. Lovejoy testifies that Wilson’s hair was very long and not in compliance with

Alabama Department of Corrections’ (ADOC) rules and regulations. Doc. 31-5. Therefore,

he instructed Wilson several times to sit down for a haircut, but Wilson refused. Id.; Doc.

31-4 at 1. When Wilson refused, Sgt. Lovejoy and Officer Thagard put their hands on

7 The narrative summary of the incident report is reproduced verbatim from the original document.

Wilson’s shoulders to place him in the chair to receive a haircut. Docs. 31-5, 31-6, 31-11.

Wardens McCoy and Crow testify that, because Wilson’s hair length did not conform to

ADOC grooming standards, Sgt. Lovejoy and Officer Thagard were within their authority

as correctional officials to require Wilson to receive a haircut. Doc. 31-9 at 1; Doc. 31-11

at 1–2. Warden McCoy adds that agency regulations provide an exception for growing

facial hair,8 but no exception allows inmates to avoid haircuts based on a religious

preference. Doc. 31-9 at 1.

As the August 19, 2021, addendum to the incident report notes, the challenged event

was not initially labeled as a use-of-force incident; thus, Sgt. Lovejoy did not obtain

supporting documents concerning the incident, including a body chart, staff statements,

pictures, or the inmate’s use-of-force statement. Docs. 31-2 at 1, 31-9 at 3. The

investigative report reflects that, other than Sgt. Lovejoy and Officer Thagard placing their

hands on Wilson’s shoulders to guide him into the chair to receive a haircut, no other

physical contact occurred. Doc. 31-9 at 4.

Officers Jackson and Smith testify that Wilson refused orders to sit down and get

his hair cut, and Sgt. Lovejoy and Officer Thagard put their hands on Wilson’s shoulders,

using minimal force to guide him into the chair to receive a haircut. Docs. 31-7, 31-8.

Officer Jones testifies that he did not know about the challenged incident, that Wilson’s

8 Defendants’ evidentiary materials include a copy of Administrative Regulation Number 462 (dated August

11, 2015), which establishes the responsibilities, policies, and procedures for recognized religious beliefs

and practices of committed offenders. Doc. 31-10. Under this regulation, inmates may apply for a religious

exception to the grooming policy (limited specifically to approved religions) to grow a full beard, including

a mustache, of no more than one-half inch in length. Id. at 4.

claims are false and without merit, and that he did not violate Wilson’s rights.9 Doc. 31-

12.

IV. DISCUSSION

Wilson alleges that Defendants’ conduct and actions in requiring him to cut his hair

violated his First and Eighth Amendment rights. Doc. 14. Defendants contend, among other

things, that Wilson’s claims lack merit, that they did not violate Wilson’s constitutional

rights, and that they are entitled to immunity in their official and individual capacities. See

Doc. 31 at 2–3, 7, 9–12.

A. Sovereign Immunity for Official-Capacity Claims

Defendants assert that Wilson’s Amended Complaint is barred by Eleventh

Amendment immunity to the extent it seeks monetary damages against them in their

official capacities. Doc. 31 at 7–8. Official capacity suits are “in all respects other than

name . . . treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166

(1985). As a result, a state employee may not be sued in his or her official capacity unless

the state has waived its Eleventh Amendment immunity, see Pennhurst State Sch. & Hosp.

9 Wilson signed his Amended Complaint under penalty of perjury. Doc. 14 at 5. Therefore, the Court will

treat it as evidence when ruling on the motion for summary judgment. See Sears, 922 F.3d at 1206.

However, Wilson’s responses in opposition to Defendants’ dispositive motion (Docs. 35, 37) are unsworn

and will not be considered as evidence in ruling on Defendants’ motion. Roy v. Ivy, 53 F.4th 1338, 1348–

1350 (11th Cir. 2022) (holding that, for prisoner’s unsworn statement to be considered on summary

judgment, it must meet the statutory requirements of § 1746—the declarant must at a minimum (1) date

and sign the document, (2) state that its contents are true, and (3) place himself under penalty of perjury).

Id. at 1348, 1350 (adopting reasoning in Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1305–1306 (5th

Cir. 1988)). Excusing this omission would allow a plaintiff “‘to circumvent the penalties for perjury in

signing onto intentional falsehoods.’” Id. at 1350 (quoting Nissho-Iwai American Corp., 845 F.2d at 1306);

see also Carr v. Tatangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003), as amended (Sept. 29, 2003)

(explaining that unsworn statement cannot raise fact issue precluding summary judgment); McCaskill v.

Ray, 279 F. App’x 913, 915 (11th Cir. 2008) (holding district court should not have considered unsworn

and unverified allegation in deciding summary judgment).

v. Halderman, 465 U.S. 89, 100 (1984), or Congress has abrogated the immunity, see

Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 59 (1996).

“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)). Accordingly,

Defendants are entitled to sovereign immunity as to all claims seeking monetary damages

against them in their official capacities. See, e.g., Selensky v. Alabama, 619 F. App’x 846,

849 (11th Cir. 2015) (“[T]he Eleventh Amendment prohibits federal courts from

entertaining suits by private parties against States and their agencies [or employees].”);

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998) (holding that state

officials in their official capacities are protected under the Eleventh Amendment from suits

for damages); 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).

B. Qualified Immunity for Individual-Capacity Claims

To the extent Wilson sues Defendants in their individual capacities, Defendants

argue they are entitled to qualified immunity. Doc. 31 at 11–12. Qualified immunity offers

complete protection from civil damages for government officials sued in their individual

capacities if the underlying 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)

(citation and internal quotation marks omitted).

To receive qualified immunity, a defendant first must prove that he or she was acting

within the scope of discretionary authority when the allegedly wrongful acts occurred. Lee

v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). To determine whether a defendant has

met this burden, “a court must ask whether the act complained of, if done for a proper

purpose, would be within, or reasonably related to, the outer perimeter of an official’s

discretionary duties. The scope of immunity ‘should be determined by the relation of the

[injury] complained of to the duties entrusted to the officer.’” Harbert Int’l, Inc. v. James,

157 F.3d 1271, 1282–83 (11th Cir. 1998) (citations omitted).

Here, Defendants maintain they were attempting to have Wilson comply with the

institution’s grooming policy at the time of the challenged incidents. Doc. 31 at 12. It was

within the context of this interaction that Wilson alleges the constitutional violations

occurred. Thus, Defendants have established that they were acting within the course and

scope of their discretionary authority when the alleged conduct occurred and are, therefore,

entitled to claim qualified immunity.

Accordingly, the burden shifts to Wilson to present evidence that Defendants are

not entitled to qualified immunity. See, e.g., Cottone v. Jenne, 326 F.3d 1352, 1358 (11th

Cir. 2003). For an official to lose qualified immunity, Wilson must show both that the

defendant committed a constitutional violation and that the constitutional right the

defendant violated was “clearly established.” Brown v. City of Huntsville, Ala., 608 F.3d

724, 734 (11th Cir. 2010) (citation omitted); see also 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) (citations and

internal quotation marks omitted) (alteration in original); see also Corbitt v. Vickers, 929

F.3d 1304, 1311–12 (11th Cir. 2019). “The test is conjunctive, and if a plaintiff fails either

prong of the qualified immunity analysis, his claim is barred.” Edger v. McCabe, 84 F.4th

1230, 1235 (11th Cir. 2023). If a plaintiff cannot establish both elements, the defendant is

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). Therefore, taking Wilson’s allegations as true

on consideration of the summary judgment motion, the Court considers whether Wilson’s

allegations that Defendants infringed on his rights to freedom of religion and free speech

and used excessive force against him articulate violations of his First and Eighth

Amendment rights.10

1. Free-Exercise-of-Religion Claim Under the First Amendment

Wilson claims Defendants forced him to cut his hair, for which he had a religious

profile, in violation of his First Amendment rights.11 The First Amendment, applied to the

10 “While . . . there is no per se rule barring qualified immunity in Eighth Amendment cases, [only] where

the plaintiff has sufficiently alleged or shown a material dispute of fact as to an excessive force claim [is]

summary judgment based on qualified immunity . . . not appropriate.” Bowden v. Stokely, 576 F. App’x

951, 954–55 (11th Cir. 2014) (citation omitted).

11 Defendants argue courts have looked to the Religious Freedom and Restoration Act (“RFRA”) to

establish the appropriate standard to review a Rastafarian inmate’s First Amendment claim challenging a

states via the Fourteenth Amendment, “prohibits government from making a law

prohibiting the free exercise (of religion).” Cruz v. Beto, 405 U.S. 319, 322 (1972) (internal

quotation marks and citation omitted) (parentheses in original). Although prisoners retain

their First Amendment rights, including rights under the free-exercise-of-religion clause,

the law is settled that “central to all other corrections goals is the institutional consideration

of internal security within the corrections facilities themselves.” Pell v. Procunier, 417

U.S. 817, 823 (1974); Bell v. Wolfish, 441 U.S. 520, 546 (1979) (stating that “maintaining

institutional security and preserving internal order and discipline are essential goals that

may require limitation or retraction of the retained constitutional rights of both convicted

prisoners and pretrial detainees”). “In the First Amendment context . . . some rights are

simply inconsistent with the status of a prisoner or with the legitimate penological

objectives of the corrections system.” Shaw v. Murphy, 532 U.S. 223, 229 (2001)

(quotation marks and citation omitted).

An essential element of a claim brought under the Free Exercise Clause is a showing

that religious exercise was substantially burdened. See Hernandez v. Comm’r, 490 U.S.

680, 699 (1989) (stating that “[t]he free exercise inquiry asks whether government has

correctional official’s conduct in forcibly removing him from his cell for a haircut. Doc. 31 at 9. However,

in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court declared RFRA unconstitutional as

applied to the states because it exceeded congressional authority granted under section 5 of the Fourth

Amendment. In September 2000, Congress enacted the Religious Land Use and Institutionalized Persons

Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc, et seq., which protects prisoners from government-

sponsored infringement on religious practices by resurrecting RFRA’s substantial burden and strict scrutiny

standards. Enactment of RLUIPA was based on congressional authority under both the Spending and

Commerce Clauses. See 42 U.S.C. § 2000cc-1(b)(1)(2). Even if Wilson’s Amended Complaint could be

liberally construed to raise a RLUIPA claim, RLUIPA only allows for prospective injunctive relief.

Sossamon v. Texas, 563 U.S. 277 (2011); see also 42 U.S.C. § 2000cc–1(a). Wilson cannot show that he is

entitled to injunctive relief because he is no longer in ADOC custody.

placed a substantial burden on the observation of a central religious belief or practice”);

Wilkinson v. GEO Grp., Inc., 617 F. App’x 915, 917 (11th Cir. 2015) (citing Church of

Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1549 (11th Cir. 1993)

(holding that, “[t]o establish a violation of his right to free exercise, [the plaintiff] must

first establish that a state actor imposed a ‘substantial burden’ on his practice of religion”)).

A “substantial burden” is “more than an inconvenience.” Midrash Sephardi, Inc. v. Town

of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (addressing RLUIPA claim). “[A]

substantial burden occurs if the conduct complained of completely prevents the individual

from engaging in religiously mandated activity, or . . . requires participation in an activity

prohibited by religion and, at a minimum, must have something more than an incidental

effect on religious exercise.” Hoever v. Belleis, 703 F. App’x 908, 912 (11th Cir. 2017)

(internal quotation marks and citation omitted).

A “prison regulation, even though it infringes the inmate’s constitutional rights, is

an actionable constitutional violation only if the regulation is unreasonable.” Hakim v.

Hicks, 223 F.3d 1244, 1247 (11th Cir. 2000) (citations omitted). A deferential standard of

review is afforded prison officials and, therefore, “[i]n the prison context, the state actor

can . . . defend the [challenged] action if it is ‘reasonably related to legitimate penological

interests.’” Wilkinson, 617 F. App’x at 917 (quoting Turner v. Safley, 482 U.S. 78, 89

(1987); see also Pope v. Hightower, 101 F.3d 1382, 1384 (11th Cir. 1996) (observing that

“[t]he Supreme Court considered this deferential standard necessary if prison

administrators . . . and not the courts, [are] to make the difficult judgments concerning

institutional operations”) (quotation marks and citations omitted). Although “[t]he Turner

case provides four factors to assist a court’s rationality review[,] [n]either Turner nor

O’Lone [v. Est. of Shabazz, 482 U.S. 342 (1987),] . . . require a court to weigh evenly, or

even consider, each of these factors.”12 Scott v. Mississippi Dep’t of Corr., 961 F.2d 77, 80

(5th Cir. 1992) (emphasis in original).

Defendants’ evidence reflects that inmates in custody of the Alabama prison system

receive a handbook explaining the basic rules applicable to living within the custody and

control of the ADOC. Doc. 31 at 9. Rule 101 governs “Personal Appearance/Clothing.”

Doc. 31-13 at 1. The grooming guidelines require haircuts that are off the neck and ears

with sideburns no lower than mid-ear for safety, identification, and security purposes. Id.

Prison barbers receive instructions regarding proper inmate haircuts, and they may not give

special haircuts. Id. As discussed, ADOC policy allows for a religious exception to the

grooming policy for beards. Notably, on November 2, 2017, Wilson completed a religious

declaration form in which he selected Muslim as his religious preference. Doc. 31-9 at 5.

Wilson indicated that the name of his religious community was “The Sumi Muslims,” that

he had been a member for two years, and that he sometimes received religious instruction.

Id. Also on November 2, 2017, Wilson submitted a religious exception to the inmate

grooming policy for beards declaring his religious preference as Muslim. Id. at 6. The

12The four factors set forth in Turner, 482 U.S. 78 are as follows:

(1) whether there is a “valid, rational connection” between the regulation and a legitimate

governmental interest put forward to justify it; (2) whether there are alternative means of

exercising the asserted constitutional right that remain open to the inmates; (3) whether and

the extent to which accommodation of the asserted right will have an impact on prison

staff, inmates, and the allocation of prison resources generally; and (4) whether the

regulation represents an “exaggerated response” to prison concerns.

Hakim, 223 F.3d at 1247-48 (citing Turner, 482 U.S. at 89-91).

chaplain disapproved the request on the ground that the grooming exception applies only

to Sunni Orthodox Muslims. Id. The record contains no evidence that Wilson submitted a

declaration changing his religious preference from Muslim.13 Id.; Doc. 31-9 at 1.

Based on this record, the Court cannot find that Defendants’ actions requiring

Wilson to cut his hair placed a substantial burden on his religion. There is no dispute that

Wilson’s hair did not comply with the ADOC grooming policy, and Wilson does not

dispute that the prison grooming policy relates to a legitimate penological interest. Other

than making the conclusory allegation that being required to get his hair cut violated his

First Amendment rights, Wilson does not describe how enforcement of the grooming

policy substantially burdened the practice of his religion. And Wilson has not shown that

Defendants’ conduct requiring him to cut his hair caused more than an inconvenience on

his religious exercise. He does not identify any religious significance hair length has, either

in his faith generally or in his practice of his religion. He also does not claim that keeping

his hair unshorn is a religiously mandated activity and, therefore, has not shown that

Defendants’ conduct in requiring him to receive a haircut within the confines of the

grooming policy prevented him from engaging in a religiously mandated activity.

Therefore, Defendants are entitled to qualified immunity on Wilson’s First Amendment

free exercise claim, and their motion for summary judgment is due to be granted. See Smith

v. Governor for Alabama, 562 F. App’x 806, 813 (11th Cir. 2014) (citing Smith v. Allen,

502 F.3d 1255, 1278–79 (11th Cir. 2007), overruled on other grounds by Hoever v. Marks,

13 Other than the religious exception to the grooming policy for beards, Defendants state there is no religious

exception to the institutional policy that inmates receive haircuts.

993 F.3d 1353 (11th Cir. 2021), and abrogated on other grounds by Sossamon v. Texas,

563 U.S. 277 (2011)) (observing that the “substantial burden” standard requires

“‘something more than solely the denial of a request that is sincere’” and approving

ADOC’s requirement that prisoners support their request for religious accommodations

with “authoritative sources” so as to demonstrate a “substantial burden”); see also Harris

v. Chapman, 97 F.3d 499, 504 (11th Cir. 1996) (upholding a prison hair length regulation

as furthering the compelling governmental interest of maintaining security).

2. Free Speech Claim Under the First Amendment

Wilson purports to bring a First Amendment free speech claim based on his “right

to say yes or no” to Sgt. Lovejoy’s order that he receive a haircut. Doc. 14 at 3; Doc. 14-1

at 1, 3. A prisoner “retains those First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological objectives of the corrections system.”

Pell v. Procunier, 417 U.S. 817, 822 (1974). While an inmate retains a First Amendment

right to freedom of speech, this right is not absolute within the confines of the prison

system. Id. (explaining that “challenges to prison restrictions that are asserted to inhibit

First Amendment interests must be analyzed in terms of the legitimate policies and goals

of the corrections system, to whose custody and care the prisoner has been committed in

accordance with due process of law”). Rather, an inmate’s free speech rights can be

restricted or limited to accommodate the legitimate needs and objectives of prisons. Jones

v. N. Carolina Prisoners’ Lab. Union, Inc., 433 U.S. 119, 129–30 (1977); see also Turner,

482 U.S. at 89.

There is no dispute that Sgt. Lovejoy issued repeated orders for Wilson to “sit down

and get a haircut,” which Wilson intentionally disobeyed. Doc. 31-5; see also Doc. 31-4.

Wilson’s behavior demonstrated a blatant disregard for the authority of prison officials,

undermining the essential need for control and discipline required in a prison facility. See,

e.g., Nicholas v. Raro, No. 95-CV-379H, 1997 WL 255291, at *4 (W.D.N.Y. Apr. 7, 1997)

(explaining that “the continued smooth operation of a correctional facility is largely

dependent upon inmate recognition of the guards’ authority”). Wilson argues he was “well

in [his] right to speak [his] mind and go off so it’s not a threat . . . when . . . an officer goes

against a person’s ‘out put’ on life.” Doc. 14-1 at 3. However, contrary to Wilson’s belief

that he had a right to debate whether he should receive a haircut, his claim that Sgt. Lovejoy

infringed on his ability to contest the lawful order of a prison guard is not the type of speech

protected by the First Amendment. See Robinson v. Boyd, 276 F. App’x 909, 910 (11th

Cir. 2008). An inmate’s limited First Amendment rights include no purported right to

disobey the lawful orders of his custodians necessary to maintain order, security, and

discipline in the prison environment. See id. (explaining that inmate who asked officer

about wearing warm clothing did not possess a First Amendment right to argue the point

after receiving a clear directive that the clothing was not permitted); Smith v. Mosley, 532

F.3d 1270, 1277 (11th Cir. 2008) (inmate’s “false and insubordinate remarks,” which

violated legitimate prison regulations, were not protected speech).

Because Wilson has produced no evidence that he was engaged in protected speech

or conduct, his First Amendment free speech claim is without factual or legal merit.

Therefore, Defendants are entitled to qualified immunity on this claim, and their motion

for summary judgment is due to be granted.

3. Excessive Force Claim under the Eighth Amendment14

A convicted inmate’s claims of excessive force against prison officials are governed

by the Eighth Amendment’s proscription against cruel and unusual punishment. Campbell

v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (citing Whitley v. Albers, 475 U.S. 312, 327

(1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010)) (“The Eighth

Amendment’s proscription of cruel and unusual punishments . . . governs prison officials’

use of force against convicted inmates.”). The “Eighth Amendment, among other things,

prohibits ‘cruel and unusual punishments.’” Sconiers v. Lockhart, 946 F.3d 1256, 1265

(11th Cir. 2020) (citing U.S. Const. amend. VIII); Hudson v. McMillian, 503 U.S. 1, 5

(1992) (staing that “the unnecessary and wanton infliction of pain” constitutes cruel and

unusual punishment in violation of the Eighth Amendment).

Prison guards may use force to keep order, but they must balance the force needed

to maintain or restore discipline with the risk of injury to inmates. Hudson, 503 U.S. at 6.

“In general, prison officials are authorized to use force when a prisoner repeatedly fails to

obey an order . . . . Officers are not required to convince every prisoner that their orders

are reasonable . . . before resorting to force.” Pearson v. Taylor, 665 F. App’x 858, 864

14Although Wilson references the Fourteenth Amendment in his Amended Complaint (Docs. 14 at 3, 14-1

at 1), based on the allegations presented, the Court finds Wilson’s free speech and free exercise claims are

properly addressed solely in the context of First Amendment violations and that his excessive force

allegation is properly addressed solely in the context of an Eighth Amendment violation. See Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007) (explaining that “a plaintiff’s obligation to provide the ‘grounds’ of

h[er] ‘entitle[ment] to relief’ requires more than labels and conclusions”).

(11th Cir. 2016) (citations omitted). “[W]henever prison officials stand accused of using

excessive physical force . . . the core judicial inquiry is . . . whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm.” Hudson, 503 U.S. at 6 (citation omitted); see also United States v. Hill, No. 23-

10934, 2024 WL 1846733, at *11 (11th Cir. Apr. 29, 2024) (internal quotation marks and

citations omitted) (reiterating “the longstanding principle that force, including “passive

restraint,” is excessive if it is “not rationally related to a legitimate nonpunitive

governmental purpose”).

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). As for the objective component, a plaintiff must show “the

alleged wrongdoing was objectively harmful enough to establish a constitutional

violation.” Id. (internal quotations omitted). Not “every malevolent touch by a prison guard

gives rise to a federal cause of action.” Wilkins, 559 U.S. at 37 (quotation marks and citation

omitted). Further, “the use of excessive physical force against a prisoner may constitute

cruel and unusual punishment [even] when the inmate does not suffer serious injury.”

Hudson, 503 U.S. 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, 559 U.S. at 38. However, “the relatively modest

nature of [an inmate’s] alleged injuries will no doubt limit the damages he may recover.”

Id. at 40.

“When prison officials maliciously and sadistically use force to cause harm . . .

contemporary standards of decency always are violated . . . whether or not significant injury

is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no

matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.”

Wilkins, 559 U.S. at 37 (internal quotations and citation omitted). 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 Fed. App’x at 953 (internal quotations and citation omitted).

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 [v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973]).

Skrtich v. Thornton, 280 F.3d 1295, 1300–01 (11th Cir. 2002), overruled on other grounds

by Pearson, 555 U.S. 223.

Defendants Lovejoy and Thagard maintain that they applied reasonable force on

May 18, 2021, to compel Wilson’s compliance with their orders that he receive a haircut.

In support of their motion for summary judgment, Defendants have presented evidence that

Wilson refused repeated orders to comply with directives that he have his hair cut (Docs.

31-2, 31-4—31-9, 31-11); Sgt. Lovejoy and Officer Thagard placed their hands on

Wilson’s shoulders to get him in a chair to receive a haircut (Docs. 31-5, 31-6); an

investigation into the incident, which included questioning of Sgt. Lovejoy and Officer

Thagard about their actions on May 18, 2021, determined that “[t]he least amount of forced

necessary was used to get inmate Wilson to get a haircut” (Doc. 31-9 at 4);15 after Wilson’s

hair was cut he returned to his cell in the restrictive housing unit (Doc. 31-9 at 3); Wilson

did not receive a body chart because it was not considered a use of force incident at the

time the of the event (Doc. 31-9 at 3, 4 ); and Wilson was charged with disobeying a direct

order of an ADOC officer and for threats for which he was found guilty (Docs. 31-3, 31-

4).

On Wilson’s excessive force claim, the parties do not dispute that Wilson

eventually, but not immediately, complied with orders to sit down and receive a haircut.

Wilson’s sworn evidence describes his encounter with Lt. Jones, Sgt. Lovejoy, and Officer

Thagard after his refusals to comply with orders to have his hair cut as being forcefully

grabbed, pushed into a wall, and forced into a chair while being held down and with his

hands cuffed behind him. Doc. 14 at 3. Wilson also describes being roughly pulled by his

arm when Officer Thagard escorted him back to his cell. Id. The injury described by Wilson

consists of a swollen hand, for which he maintains he had to get x-rays at an unspecified

15 The investigative report indicates Wilson was not questioned about the May 18, 2021, incident because

it was not initially labeled as a “use of force.” Doc. 31-9 at 4.

time. Id. and Doc. 14-1 at 2. Wilson justifies his refusal to comply with the orders given

by Sgt. Lovejoy and Thagard based on his claimed religion. See Doc. 14 at 3.

“[I]n evaluating the challenged conduct of prison officials, a court must keep in

mind the paramount concerns of maintaining order and discipline in an often dangerous

and unruly environment.” Ort v. White, 813 F.2d 318, 322 (11th Cir. 1987). “[I]f force was

applied in a good faith effort to maintain discipline, courts should give great deference to

acts taken by prison officials in applying prophylactic or preventative measures intended

‘to reduce the incidence of riots and other breaches of prison discipline.’” McBride v.

Rivers, 170 F. App’x 648, 656 (11th Cir. 2006) (quoting Williams v. Burton, 943 F.2d 1572,

1576 (11th Cir. 1991)). While this deference “‘does not insulate from review actions taken

in bad faith or for no legitimate purpose, it requires that neither judge nor jury freely

substitute their judgment for that of officials who have made a considered choice.’” Ort,

813 F.2d at 322 (quoting Whitley, 475 U.S. at 322). When the only question concerns the

reasonableness of the force used by a prison official, the defendant will ordinarily be

entitled to judgment as a matter of law. See Campbell, 169 F.3d at 1374 (explaining that

“force does not violate the Eighth Amendment merely because it is unreasonable or

unnecessary”); McBride, 170 F. App’x at 657 (noting that even where correctional officers

could arguably have used less force after subduing an inmate, the inmate “failed to produce

evidence showing that these measures were taken maliciously and sadistically for the very

purpose of causing harm”) (internal quotations omitted).

Given the evidence submitted by Defendants, the Court finds they have met their

initial burden of showing, by reference to affidavits, the incident report, disciplinary

reports, the use of force investigative report, and other institutional documents, that there

was a need for the application of force as a result of Wilson’s conduct in repeatedly failing

to comply with the direct orders of Sgt. Lovejoy and Thagard on May 18, 2021,16 that Sgt.

Lovejoy and Officer Thagard acted “in a good-faith effort to maintain or restore discipline”

and not “maliciously or sadistically to cause harm,” that these officers used a limited

amount of force to control the situation for the security and safety of staff and inmates, and

that the only force applied was the amount necessary to place Wilson in a chair to receive

a haircut. Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008) (holding that use of some

force justified when an inmate twice refused an order to return to his cell); Soto v. Dickey,

744 F.2d 1260, 1267 (7th Cir. 1984) (stating that “[w]hen an inmate refuse[s] to obey a

proper order, he is attempting to assert his authority over a portion of the institution and its

officials[, which] places the staff and other inmates in danger”). Defendants’ evidence

further reflects that no additional force was used or necessary once Wilson was seated and

then returned to his cell. See Bennett v. Parker, 898 F.2d 1530, 1532–34 (11th Cir. 1990)

(discounting inmate’s claim as a conclusory allegation of serious injury “unsupported by

any physical evidence, medical records, or the corroborating testimony of witnesses”);

Walker v. Thames, No. 97-CV-1104-RV-L, 2001 WL 394911, *6 (S.D. Ala. March 30,

2001) (“While the continued pushing and shoving by the defendant may have been futile

and unnecessary, it was not constitutionally excessive. Force does not violate the

16 Along with receiving a disciplinary infraction for failing to obey a direct order, Wilson also received a

disciplinary for making threats. According to the disciplinary report, on May 18, 2021, while in the

restrictive housing unit lobby, Wilson told Officer Thagard “I’m gone stab you Officer Thagard when I get

out of lock up.” Doc. 31-3 at 1. Following a hearing, the hearing officer found Wilson guilty of this charged

rule violation. Id. at 1–2.

constitution merely because it is unreasonable or unnecessary.”). Considering this

evidence, Wilson must present evidence that demonstrates a genuine dispute of fact for

trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 607-08 (11th Cir. 1991). He has not

done so.

Viewing the evidence in the light most favorable to Wilson, his allegations support

no reliable inference that Sgt. Lovejoy, Officer Thagard, or any other correctional official

used force maliciously to cause harm or engaged in a wanton infliction of pain. Put another

way, the evidence fails to establish either (1) that Sgt. Lovejoy and Officer Thagard used

any force in excess of that necessary to restore control over Wilson or (2) that they used

force maliciously and sadistically to cause harm. For these reasons, Defendants Lovejoy

and Thagard are entitled to qualified immunity on Wilson’s excessive force claim in their

individual capacities, and their motion for summary judgment is due to be granted. See

Celotex Corp., 477 U.S. at 322.

4. Failure-to-Intervene Claim

Because of the Court’s determination on Wilson’s excessive force claim, any claim

he may have against Officers Jackson and Smith concerning a failure to protect him from

the conduct of Sgt. Lovejoy and Officer Thagard also fails. Although an officer who does

not participate in excessive force can be liable if he fails to take reasonable steps to protect

the victim, see Johnson v. White, 725 F. App’x 868, 878 (11th Cir. 2018), he cannot be

held liable for a failure to intervene without a valid underlying claim of excessive force.

Crenshaw v. Lister, 556 F.3d 1283, 1294 (11th Cir. 2009). “Plainly, an officer cannot be

liable for failing to stop or intervene when there was no constitutional violation being

committed.” Sebastian v. Ortiz, 918 F.3d 1301, 1312 (11th Cir. 2019); see also Raulerson

v. Baily, No. 1:08-CV-222-MP-GRJ, 2014 WL 4928904, at *3 n.2 (N.D. Fla. Oct. 1, 2014)

(noting that “[b]y its nature, a claim of failure to intervene must include an underlying act

of excessive force”). Accordingly, because a failure-to-intervene claim is “wholly

dependent on the underlying excessive force claim,” Sebastian, 918 F.3d at 1312, and

because Sgt. Lovejoy and Officer Thagard are entitled to summary judgment on Wilson’s

excessive force claim, Officers Smith and Jackson are entitled to qualified immunity on

the failure-to-intervene claim. The motion for summary judgment is due to be granted on

this claim.

C. Supervisory Claims

To the extent Wilson seeks to impose liability on Wardens McCoy and Crow for the

actions or omissions of a subordinate based on a theory of respondeat superior, he is entitled

to no relief. “The standard by which a supervisor is held liable in [his or] her individual

capacity for the actions of a subordinate is extremely rigorous.” Christmas v. Harris Cnty.,

Georgia, 51 F.4th 1348, 1355 (11th Cir. 2022) (internal quotation marks and citation

omitted). Supervisory officials cannot be held vicariously liable in § 1983 actions. See,

e.g., Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396–97 (11th Cir. 1994). As explained

by the United States Supreme Court:

Government officials may not be held liable for the unconstitutional conduct

of their subordinates [or co-workers] under the theory of respondeat superior

[or vicarious liability] . . . . A public officer or agent is not responsible for

the misfeasances or position wrongs, or for the nonfeasances, or negligences,

or omissions of duty, of the subagents or servants or other persons properly

employed by or under him, in the discharge of his official duties. Because

vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead

that each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (internal quotation marks, citation, and

parentheses omitted); see also Cottone, 326 F.3d at 1360 (quotation marks and citation

omitted) (holding that “supervisory officials are not liable under § 1983 for the

unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious

liability”).

Liability can attach to a supervisory official only if they “personally participate[d]

in the alleged unconstitutional conduct or [if] there is a causal connection between [their]

actions . . . and the alleged constitutional deprivation.” Cottone, 326 F.3d at 1360; see also

Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each Government official, his or her

title notwithstanding, is only liable for his or her own misconduct.”). Here, Wilson fails to

allege that any defendant in a supervisory role participated or had direct involvement in the

alleged violations of his constitutional rights. To establish a sufficient causal connection

without direct participation, a plaintiff must present sufficient evidence of either “a history

of widespread abuse [that] put[] [a defendant] on notice of the need to correct the alleged

deprivation, and [she/he] fail[ed] to do so” or “a . . . custom or policy [that] result[ed] in

deliberate indifference to constitutional rights, or . . . facts [that] support an inference that

the supervisor directed the subordinates to act unlawfully or knew that the subordinates

would act unlawfully and failed to stop them from doing so.” Cottone, 326 F.3d at 1360

(internal quotation marks and citations omitted).

After careful review of the pleadings and evidentiary materials, the Court finds that

Wilson presents no such evidence. Thus, Wardens McCoy and Crow are entitled to

qualified immunity on claims against them based on a theory of respondeat superior or

vicarious liability, and their motion for summary judgment is due to be granted.

V. CONCLUSION

For these reasons, the Magistrate Judge RECOMMENDS as follows:

1. Defendants’ Special Report (Doc. 31) be CONSTRUED as a motion for

summary judgment.

2. Defendants’ Motion for Summary Judgment (Doc. 31) be GRANTED on

all claims.

3. This case be DISMISSED with prejudice.

4. Cost be TAXED against Plaintiff.

It is further ORDERED that by July 5, 2024, the parties may file written objections

to this Recommendation. An objecting party must identify the specific portion of the

factual findings or legal conclusions to which the objection is made and must describe in

detail the basis for the objection. Frivolous, conclusive, or general objections will not be

considered. The Recommendation if not a final order and, therefore, is not appealable.

Failure to file a written objection to this Recommendation shall bar a party from a

de novo determination by the District Court of any factual findings or legal conclusions

contained herein and shall waive the right of the party to challenge on appeal any

subsequent order that is based on factual findings and legal conclusions accepted or

adopted by the District Court, except upon grounds of plain error or manifest injustice. 11th

Cir. R. 3-1.

DONE on this 14th day of June, 2024.

/s/ Kelly Fitzgerald Pate

KELLY FITZGERALD PATE

UNITED STATES MAGISTRATE JUDGE