# Southward

> District Court, N.D. Alabama · July 16, 2026

URL: https://www.frixlaw.com/law-library/cases/11419695

## Case

- **Full name:** Latisha Southward v. Isiah Neloms, et al.
- **Court:** District Court, N.D. Alabama
- **Decided:** July 16, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION

LATISHA SOUTHWARD, )
)
Plaintiff, )
)
v. ) Case No. 3:25-cv-01157-MHH-HNJ
)
ISIAH NELOMS, et al., )
)
Defendants. )

REPORT AND RECOMMENDATION
Plaintiff Latisha Southward (“Southward”), through counsel, filed a second
amended complaint under 42 U.S.C. § 1983 alleging violations of her rights under the
Constitution of the United States and Alabama law. (Doc. 12). Southward names as
defendants Correctional Officers Isiah Neloms and McDaniel. (Doc. 12 at 1, 2).
Southward seeks monetary damages, injunctive relief, attorneys’ fees, and costs. (Doc.
12 at 6-7).
In accordance with its usual practice, the court referred the complaint to the
undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). (See Doc. 4); see also
McCarthy v. Bronson, 500 U.S. 136 (1991).
For the reasons explained herein, the undersigned Magistrate Judge
RECOMMENDS the court DENY Officer McDaniel’s Motion to Dismiss. (Doc.
18).
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a cause of

action if it fails to state a claim upon which relief may be granted. To assess a motion
to dismiss under that rule, courts must first take note of the elements a plaintiff must
plead to state the applicable claims at issue. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009).
After establishing the elements of the claims at issue, the court identifies all well-

pleaded, non-conclusory factual allegations in the complaint and assumes their veracity.
Id. at 679. Well-pleaded factual allegations do not encompass mere “labels and
conclusions,” legal conclusions, conclusory statements, or formulaic recitations and
threadbare recitals of the elements of a cause of action. Id. at 678 (citations omitted).

In evaluating the sufficiency of a plaintiff’s pleadings, the court may draw reasonable
inferences in the plaintiff’s favor. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d
1242, 1248 (11th Cir. 2005).
Third, a court assesses the complaint’s well-pleaded allegations to determine if

they state a plausible cause of action based upon the identified claim’s elements. Iqbal,
556 U.S. at 678. Plausibility ensues “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged,” and the analysis involves a context-specific task requiring a court
“to draw on its judicial experience and common sense.” Id. at 678, 679 (citations
omitted). The plausibility standard does not equate to a “probability requirement,” yet
it requires more than a “mere possibility of misconduct” or factual statements that are
“‘merely consistent with a defendant’s liability.’” Id. at 678, 679 (citations omitted).
II. FACTUAL ALLEGATIONS

State authorities held Southward as a pretrial detainee at the Lauderdale County
Detention Center from April 16, 2025, through May 5, 2025. (Doc. 12 at 2 ¶ 7).
During her detention, jail officials placed Southward in an “isolation cell.” (Doc.
12 at 2 ¶ 8). Although Southward did not threaten self-harm and lacked suicidal

ideation, jail officials subsequently placed Southward on “suicide watch.” (Doc. 12 at
2 ¶ 8). While on suicide watch, jail officials provided Southward with only a “‘turtle
suit’ or anti-suicide garment, similar to a heavy blanket, to cover herself with.” (Doc.
12 at 2 ¶ 9). The turtle suit – the only clothing provided to Southward – proved

insufficient to cover Southward’s breasts and genitals, which allowed male corrections
officers, trustees, and other men in the jail to view her breasts and genitals. (Doc. 12 at
2 ¶ 9).
Defendant Neloms worked night shift at the jail on three consecutive nights

while Southward remained on suicide watch. (Doc. 12 at 2 ¶ 10). On each of these
nights, “Neloms sexually harassed [Southward] by using his authority as a correctional
officer to coerce her to expose her breasts and genitals to him for the purpose of his

sexual gratification.” (Doc. 12 at 3 ¶ 11).
On the first night, Neloms approached Southward’s cell with a male trustee
because water from a running toilet required mopping. (Doc. 12 at 3 ¶ 12). Neloms
ordered Southward to, “‘Stand still, open your legs so I can see your pussy.’” (Doc. 12
at 3 ¶ 12).

After learning of Southward’s inability to place a telephone call, Neloms offered
to place a telephone call on her behalf if she “would show him her body” by bending
over to expose her genitals. (Doc. 12 at 3 ¶¶ 13-14). When Southward eventually
complied with his demands, Neloms commented Southward “looked good” and “he

wished he could be ‘in there.’” (Doc. 12 at 3 ¶¶ 14-15).
Neloms came to Southward’s cell every 15 minutes, each time telling her “to
spread her legs and show him her genitals” and “‘open up’ her genitals” while she sat
on the floor. (Doc. 12 at 3 ¶ 16). Neloms “often asked for ‘more’” and directed

Southward “to show him ‘some more.’” (Doc. 12 at 4 ¶ 18). When Southward
complied, “Neloms would rub his groin through his pants, lick his lips, and make
sounds.” (Doc. 12 at 4 ¶ 18). Neloms repeatedly offered to place telephone calls on
Southward’s behalf, allow her to shower, and assist in removing her from suicide watch

in exchange for Southward’s exposure of her breasts and genitals. (Doc. 12 at 3 ¶ 17).
Southward repeatedly reported Neloms’s sexual misconduct to Officer
McDaniel, the other officer working night shift. (Doc. 12 at 4 ¶ 19). Officer McDaniel

took no action and “allowed Neloms to continue sexually harassing [Southward].”
(Doc. 12 at 4 ¶ 19).
When a detective questioned Southward about Officer Neloms, Southward
recounted Neloms’s behavior to the detective. (Doc. 12 at 4 ¶ 23). Southward’s release
from suicide watch occurred at the same time as Officer Neloms’s removal from duty.
(Doc. 12 at 4 ¶ 23).

III. ANALYSIS
Southward alleges Defendant Officer McDaniel violated her Fourteenth
Amendment rights when he “failed to intervene in Neloms’s sexual harassment . . .
despite having actual knowledge of the harassment and the opportunity to intervene.”

(Doc. 12 at 5 ¶ 28).
Officer McDaniel argues Southward’s claim against her warrants dismissal
because she stands entitled to qualified immunity. (Doc. 18 at 1-2). Officer McDaniel
argues Southward failed to plausibly aver a violation of her constitutional rights because

(1) failure to intervene claims may only arise in the excessive force context; and (2)
failure to intervene claims may only arise when a constitutional violation occurs in a
defendant’s presence. (Doc. 19 at 2-5, 6). Officer McDaniel further argues applicable
law did not clearly establish she had “a duty to intervene to stop sexual harassment that

occur[red] outside of her presence.” (Doc. 19 at 6-9).
Qualified immunity protects governmental officials performing discretionary
functions in their individual capacity from civil suit and liability “‘insofar as their

conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Hill v. Cundiff, 797 F.3d 948, 978 (11th Cir.
2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). There exists no dispute
Officer McDaniel performed a discretionary function in these circumstances. As such,
the undersigned analyzes whether she stands entitled to qualified immunity.
In resolving questions of qualified immunity, courts engage in a two-pronged

inquiry. Tolan v. Cotton, 572 U.S. 650, 655 (2014). “The first asks whether the facts,
taken in the light most favorable to the party asserting the injury, show the officer’s
conduct violated a federal right.” Id. at 655-56 (cleaned up) (internal quotation marks
and citation omitted). “The second prong of the qualified-immunity analysis asks

whether the right in question was ‘clearly established’ at the time of the violation.” Id.
at 656 (quoting Hope v. Pelzer, 536 U.S. 730 (2002)). See also Barcelona v. Burkes, No. 21-
14285, 2022 WL 15137410, at *2 (11th Cir. Oct. 27, 2022) (per curiam) (“[Defendant]
is entitled to qualified immunity unless: (1) he clearly violated the plaintiff’s

constitutional rights, and (2) the violated constitutional right was clearly established.”
(citing Waldron v. Spicher, 954 F.3d 1297, 1304 (11th Cir. 2020)). “Courts have discretion
to decide the order in which to engage these two prongs.” Tolan, 572 U.S. at 655 (citing
Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

A clearly established constitutional right arises from “(1) case law with
indistinguishable facts clearly establishing the constitutional right; (2) a broad statement
of principle within the Constitution, statute, or case law that clearly establishes a

constitutional right; or (3) conduct so egregious that a constitutional right was clearly
violated, even in the total absence of case law.” Hill, 797 F.3d at 979 (citation omitted).
Under the second, afore-cited method, “every objectively reasonable government
official facing the circumstances would know that the official’s conduct did violate
federal law when the official acted.” Id. (citation omitted). Although the “clearly
established right must be defined with specificity,” City of Escondido, Cal. v. Emmons, 139

S. Ct. 500, 503 (2019) (per curiam), “[t]he ‘very action in question’ does not have to
have been previously held unlawful, but the unlawfulness of the conduct must be
apparent in light of pre-existing law,” Harris v. Coweta Cnty., 21 F.3d 388, 393 (11th Cir.
1994) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

In further exposition, a right stands clearly established if a defendant acted on
“fair warning” that his conduct violated the constitutional rights of the plaintiff. Hope
v. Pelzer, 536 U.S. 730, 739 (2002) (citing United States v. Lanier, 520 U.S. 259 (1997)). As
elaborated, “fair warning” may emanate either from factually similar case law or where

the right is one of ‘obvious clarity’ – i.e., where the officer’s conduct “lies so obviously
at the very core of what the [constitutional provision] prohibits that the unlawfulness
of the conduct was readily apparent to [the official], notwithstanding the lack of fact-
specific case law” on point. Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009); see also

Hope, 536 U.S. at 745 (holding that “[t]he obvious cruelty inherent” in putting prisoners
in certain wantonly “degrading and dangerous” situations provides officers “with some
notice that their alleged conduct violate[s]” the Eighth Amendment); Brooks v. Warden,

800 F.3d 1295, 1307 (11th Cir. 2015) (“Forcing a prisoner to soil himself over a two-
day period while chained in a hospital bed creates an obvious health risk and is an
affront to human dignity. Laughing at and ridiculing an inmate who is forced to sit in
his own feces for an extended period of time is not merely unreasonable, but an act of
‘obvious cruelty.’” (citing Hope, 536 U.S. at 745)).
Litigants may rely upon binding decisions of the Supreme Court, the Eleventh

Circuit, and the highest court of the pertinent state to ascertain clearly established rights.
McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007) (citing Marsh v. Butler Cnty., 268
F.3d 1014, 1032 n. 10 (11th Cir. 2001 (en banc), abrogated in part on other grounds by Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 561-63 (2007)).

As Officer McDaniel also contends Southward failed to state a viable failure-to-
intervene claim, the undersigned elects to assess whether Southward’s second amended
complaint plausibly alleges Officer McDaniel violated Southward’s constitutional rights
before turning to whether the law clearly established said rights at the time of the

violation.
A. Constitutional Violation
Southward alleges she
repeatedly reported [Defendant] Neloms’s sexual harassment to Officer
McDaniel, the other officer on night shift. However, McDaniel failed to
intervene, despite having the opportunity to do so. Instead, McDaniel
allowed Neloms to continue sexually harassing [Southward].

(Doc. 12 at 4 ¶ 19). While the parties characterize Southward’s claim against Officer
McDaniel as a failure-to-intervene claim, the undersigned discerns Southward’s
allegations as asserting a failure-to-protect claim. See Johnson v. Boyd, 701 F. App’x 841,
845–46 (11th Cir. 2017) (per curiam) (upholding dismissal of plaintiff’s failure-to-
protect claim because defendants did not know of threat posed by plaintiff’s assailant,
yet reversing dismissal of plaintiff’s failure-to-intervene claim because defendants were
present when assailant attacked plaintiff); Murphy v. Turpin, 159 F. App’x 945, 948 (11th

Cir. 2005) (per curiam) (affirming dismissal of plaintiff’s failure-to-protect claim
because defendant did not know of assailant’s threat, yet reversing dismissal of alleged
failure-to-intervene claim because defendant stood by “while watching the attack”);
Scott v. Dunn, 794 F. Supp. 3d 1119, 1129 n.2 (M.D. Ala. 2023) (“Courts often separately

denominate deliberate indifference failure-to-protect and failure-to-intervene claims;
however, the elements are the same, and a failure-to-intervene claim is a type of failure-
to-protect claim. . . . Failing to intervene is just one way in which an official can
recklessly respond to a substantial risk of serious harm so as to constitute deliberate

indifference.” (citing Murphy, 159 F. App’x at 948)); Sanchez v. Nassau Cnty., 662 F. Supp.
3d 369, 405 n.35, 413 (E.D.N.Y. 2023) (“This Court separately analyzes Plaintiff’s
failure to protect and failure to intervene claims, although the parties do not do so. The
claims are distinct, even though both claims require a showing that an officer ‘acted

with “deliberate indifference to a substantial risk of serious harm”’ to an inmate or
detainee. . . . Just as prison officials may be liable for failing to protect an inmate from
an assault of which they had knowledge or should have had knowledge, they also may

be liable for failing to intervene in an assault.”) (citations omitted); Mohamed v. Jones, No.
20-CV-02516-RBJ-NYW, 2022 WL 523440, at **17, 18 (D. Colo. Feb. 22, 2022) (A
“failure to intervene is one of several factual theories under which an Eighth
Amendment claim may be brought. . . . Courts similarly recognize that claimants may
bring an Eighth Amendment excessive force claim based on a failure to protect the
claimant from the violence of other inmates. . . . Notably, ‘a failure to intervene claim

is essentially the same as a failure to protect claim, translated from a threat to an active
situation.’”) (citations omitted) (alteration adopted), report and recommendation adopted sub
nom. Mohamed v. Huddleston, No. 1:20-CV-02516-RBJ-KMT, 2022 WL 22353363 (D.
Colo. May 18, 2022); Coleman v. LeBlanc, No. CV 19-395-JWD-SDJ, 2020 WL 4679545,

at *5 (M.D. La. July 28, 2020) (“A failure to intervene claim is distinct from a failure to
protect claim, and one can exist without the other.”) (footnote & citation omitted), report
and recommendation adopted, No. CV 19-395-JWD-SDJ, 2020 WL 4680145 (M.D. La. Aug.
12, 2020); Outley v. Batiste, No. CV 17-1782-SDD-EWD, 2019 WL 4265075, at *4 (M.D.

La. Aug. 23, 2019) (“Defendants appear to argue that quick intervention in a fight
between inmates negates any cause of action an inmate has for failure to protect. . . .
[C]laims for failure to protect versus failure to intervene, though related, are distinct,
and one can exist without the other. Because a defendant intervenes quickly does not

negate a cause of action based upon that defendant’s failure to protect the plaintiff in
the first instance.”) (footnote omitted)), report and recommendation adopted, No. 17-1782-
SDD-EWD, 2019 WL 4261852 (M.D. La. Sep. 9, 2019).

Section 1983 plaintiffs may advance an Eighth Amendment claim for failure to
protect under two different theories: a “particularized risk claim,” where the plaintiff
prisoner demonstrates she “was the target of a specific threat or danger, and that the
[defendants] subjectively were aware of the individualized danger,” or a “dangerous
conditions claim,” where the plaintiff prisoner demonstrates “the prison conditions
[she] was subjected to were so dangerous that they resulted in cruel and unusual

punishment.” Est. of Owens v. GEO Grp., Inc., 660 F. App’x. 763, 769 (11th Cir. 2016)
(per curaim).1 Southward’s factual allegations implicate the first type, a “particularized
risk claim,” and those allegations plausibly aver Officer McDaniel failed to protect her
from Office Neloms’s sexual abuse.

“Beyond restraining prison officials from inflicting ‘cruel and unusual
punishments’ upon inmates, the Eighth Amendment requires officials to take
reasonable measures to guarantee the safety of the inmates, including protecting
inmates from violence at the hands of other inmates.” Rhiner v. Sec’y, Fla. Dep’t of Corr.,

817 F. App’x 769, 774 (11th Cir. 2020) (per curiam) (citing Bowen v. Warden, Baldwin State

1 The Fourteenth Amendment’s due process clause governs the treatment of arrestees or pretrial
detainees in custody while the Eighth Amendment’s prohibition on cruel and unusual punishment
governs the treatment of convicted prisoners. Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572 (11th Cir.
1985) (citations omitted).

Southward’s averments cast her status as a pretrial detainee at the time her claims arose. (See Doc. 12
at 2 ¶ 7). Thus, the Fourteenth Amendment’s due process governs her claims. However, in the
context of failure-to-protect claims, “the applicable standard is the same, so decisional law involving
prison inmates applies equally to cases involving ... pretrial detainees.” Cottrell v. Caldwell, 85 F.3d 1480,
1490 (11th Cir. 1996). See also Christmas v. Nabors, 76 F.4th 1320, 1331 (11th Cir. 2023) (“Because
[plaintiff] was a pretrial detainee, and because his claim involves the deprivation of a ‘basic necessity’
like access to recreational activity, he must satisfy the Eighth Amendment’s objective and subjective
standards to prevail on his claim under the Fourteenth Amendment’s Due Process Clause.”); Hamm,
774 F.2d at 1574 (holding “that in regard to providing pretrial detainees with such basic necessities as
food, living space, and medical care the minimum standard allowed by the due process clause is the
same as that allowed by the eighth amendment for convicted persons”). See also Nelson v. Tompkins, 89
F.4th 1289, 1299 (11th Cir. 2024); Goodman v. Kimbrough, 718 F.3d 1325, 1331 n.1 (11th Cir. 2013)
(“[T]he standards [for deliberate indifference claims] under the Fourteenth Amendment [for pretrial
detainees] are identical to those under the Eighth [for convicted prisoners].”).
Prison, 826 F.3d 1312, 1319-20 (11th Cir. 2016)). To establish a prison official violated
her Eighth Amendment rights in the context of a claim alleging a failure to protect

and/or prevent harm, a plaintiff must demonstrate the prison official acted with
deliberate indifference, which includes both an objective and a subjective component.
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Green v. Hooks, 798 F. App’x 411, 421 (11th
Cir. 2020) (stating a plaintiff “must show that an objectively serious risk of harm existed

and that the prison officials were subjectively aware of this risk of harm” to establish a
claim for deliberate indifference (citing Farmer, 511 U.S. at 834) (emphasis in original)).
Under the objective component, a plaintiff must depict prison conditions “that
were extreme and posed an unreasonable risk of serious injury to his future health or

safety.” Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019) (per curiam) (quoting
Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016)); see also Farmer, 511 U.S. at 834
(“For a claim (like the one here) based on a failure to prevent harm, the [plaintiff] must
show that he is incarcerated under conditions posing a substantial risk of serious harm.”

(citing Helling v. McKinney, 509 U.S. 25, 35 (1993)).
The subjective component of a deliberate indifference claim requires two
showings, one subjective and the other objective. Marbury, 936 F.3d at 1233.

“Subjectively, the ‘official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and…also draw the inference.’”
Id. (quoting Rodriguez v. Sec’y for the Dep’t of Corr., 508 F.3d 611, 617 (11th Cir. 2007)).
“In determining subjective knowledge, a court is to inquire whether the defendant was
aware of a ‘particularized threat or fear felt by [the plaintiff].’” McBride v. Rivers, 170 F.
App’x 648, 654 (11th Cir. 2006) (per curiam) (quoting Carter v. Galloway, 352 F.3d 1346,

1350 (11th Cir. 2003) (per curiam)). To establish the requisite awareness, a plaintiff
must demonstrate that prison “officials…possess enough details about a threat to
enable them to conclude that it presents a ‘strong likelihood’ of injury, not a ‘mere
possibility.’” Marbury, 936 F.3d at 1236 (footnote citation omitted); see also Green, 798

F. App’x at 424 (“[W]hile not identifying a particular individual who posed a threat,”
the plaintiff in Rodriguez, provided specific information – his former gang’s threat of
death due to his renunciation of membership, the presence of gang members at his
prison, and requests for a transfer to another institution or for placement in protective

custody to prevent an attempt on his life – such that “‘a reasonable juror could
find…that [the prison official] actually knew [plaintiff] faced a substantial risk of serious
harm.’” (quoting Rodriguez, 508 F.3d at 621-22)). Vague statements conveying “nothing
about the nature of the anticipated risk” do not suffice. Marbury, 936 F.3d at 1237

(finding plaintiff’s “statement that…another inmate told him another inmate intended
to harm him” did not satisfy the standard for “deliberate indifference to a substantial
risk”).

“Objectively, the official must have responded to the known risk in an
unreasonable manner, in that he or she ‘knew of ways to reduce the harm’ but
knowingly or recklessly declined to act.” Id. (quoting Rodriguez, 508 F.3d at 620); see also
Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind more
blameworthy than negligence.” (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976))); Wade
v. McDade, 106 F.4th 1251, 1253 (11th Cir. 2024) (en banc) (holding a plaintiff must

establish the prison official, in disregarding the risk to plaintiff, “acted with ‘subjective
recklessness as used in the criminal law,’” that is, the prison officials “actually knew that
his conduct - his own acts or omissions - put the plaintiff at substantial risk of serious
harm.” (quoting Farmer, 511 U.S. at 839; Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.

1990) (per curiam) (“Merely negligent failure to protect an inmate from attack does not
justify liability under section 1983, however.” (citing Davidson v. Cannon, 474 U.S. 344,
347-48 (1986))).
Finally,

[S]ection 1983 “requires proof of an affirmative causal connection between
the actions taken by a particular person ‘under color of state law’ and the
constitutional deprivation.” Williams, 689 F.2d at 1380 (citing Monell v.
Department of Social Servs., 436 U.S. 658, 692, (1978)); Redman v. County of San
Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) (en banc) (requiring an act or
omission causing the constitutional deprivation), cert. denied, 502 U.S.
1074 (1992). Section 1983 thus focuses [the] inquiry on whether an
official’s acts or omissions were the cause— not merely a contributing
factor—of the constitutionally infirm condition.

LaMarca v. Turner, 995 F.2d 1526, 1538 (11th Cir. 1993) (alterations supplied, parallel
citations omitted).
First, Southward’s allegations, if true, establish Officer Neloms sexually abused
her:
Congress unanimously passed PREA, 34 U.S.C. § 30301 et seq., to
“establish a zero-tolerance standard” for sexual assault in United States
prisons. See id. §§ 30302(1), 30309(9)–(11); About – Prison Rape
Elimination Act, National PREA Resource Center (last visited Aug. 2,
2021), https://www.prearesourcecenter.org/about/prison-rape-
elimination-act. PREA directed the Attorney General to “publish a final
rule adopting national standards for the detection, prevention, reduction,
and punishment of prison rape.” 34 U.S.C. § 30307(a)(1). The rule
established standards for investigating and responding to allegations of
sexual abuse committed against prisoners. 28 C.F.R. §§ 115.61–68,
115.71–73.

DeJesus v. Lewis, 14 F.4th 1182, 1193 n.8 (11th Cir. 2021). Congress anticipated enacting
PREA would “protect the Eighth Amendment rights of Federal, State, and local
prisoners.” 34 U.S.C. § 30302(7). Pursuant to the PREA’s directive, the United States
Attorney General published “national standards for the detection, prevention,
reduction, and punishment of prison rape.”2 34 U.S.C. § 30307(a)(1).
Pertinent to Southward’s allegations, the PREA defines sexual abuse of a
detainee by a staff member as “[a]ny attempt, threat, or request by a staff member . . .
to engage in [sexual contact]” and “[v]oyeurism by a staff member, contractor, or
volunteer.” 28 C.F.R. §§ 115.6(6) & (8). “Voyeurism by a staff member . . . means an
invasion of privacy of an inmate, detainee, or resident by staff for reasons unrelated to
official duties, such as peering at an inmate who is using a toilet in his or her cell to
perform bodily functions; requiring an inmate to expose his or her buttocks, genitals,
or breasts; or taking images of all or part of an inmate’s naked body or of an inmate

2 The PREA – along with other federal and state statutes – serves as a guidepost for identifying what
conduct “violates contemporary standards of decency.” DeJesus v. Lewis, 14 F.4th 1182, 1196 n.13
(11th Cir. 2021) (citing Sconiers v. Lockhart, 946 F.3d 1271 (11th Cir. 2020) (Rosenbaum, J.,
concurring))).
performing bodily functions.” 28 C.F.R. § 115.6.
Furthermore, although Officer Neloms’s conduct had not yet escalated to sexual

touching, “instances of sexual assault often begin with lesser violations of prison policy
and are thus ‘relevant to the totality of the circumstances at a prison that may have
contributed to the sexual misconduct.’” Poore v. Glanz, 724 F. App’x 635, 642 (10th Cir.
2018) (alteration adopted) (quoting Keith v. Koerner, 843 F.3d 833, 842 (10th Cir. 2016)).

Indeed, Officer Neloms’s conduct escalated greatly over the three nights he abused
Southward: he first asked Southward to expose herself; then requested she “open up”
her genitals while she exposed herself; he then sexually extorted her to showcase her
breasts and genitals in exchange for privileges, including phone privileges, shower

privileges, and release from suicide watch; and finally he pleasured himself when
Southward exposed herself in compliance with his demands. Officer Neloms’s
escalating conduct showcased Southward faced a substantial risk of sexual assault which
constitutes serious harm.

Some things are never acceptable, no matter the circumstances. Sexual
abuse is one. Sexual abuse “has no legitimate penological purpose, and is
simply not part of the penalty that criminal offenders pay for their offenses
against society.” Graham v. Sheriff of Logan Cty., 741 F.3d 1118, 1122-23
(10th Cir. 2013) (citation and quotation marks omitted). Nor does it
comport with contemporary standards of decency. Congress itself
implicitly recognized as much in 2013, when it amended the Prison
Litigation Reform Act (“PLRA”) to allow prisoners to recover damages
“for mental or emotional injury suffered while in custody[,] without a prior
showing of physical injury,” when the prisoner can demonstrate “the
commission of a sexual act” as the basis for the damages he seeks. See 42
U.S.C. § 1997e(e) (2013).
Sconiers v. Lockhart, 946 F.3d 1256, 1259 (11th Cir. 2020). See also Chandler v. Crosby, 379
F.3d 1278, 1289 (11th Cir. 2004) (“While an inmate ‘need not await a tragic event’

before seeking relief,” she must establish “a condition of his confinement ‘pose[s] an
unreasonable risk of serious damage to his future health’ or safety.” (quoting Helling,
509 U.S. at 33, 35)).
Southward alleges she “repeatedly reported [Defendant] Neloms’s sexual

harassment to Officer McDaniel,” but Officer McDaniel failed to act, and thus, enabled
Neloms to continue his sexual abuse. (Doc. 12 at 4 ¶ 19). When Southward reported
Officer Neloms’s escalating sexual abuse to Officer McDaniel, McDaniel acquired
knowledge Southward faced a substantial risk of serious harm. Despite this knowledge,

Officer McDaniel took no action to prevent future instances of sexual abuse, thereby
exhibiting deliberate indifference to the substantial risk Southward faced. See Farmer,
511 U.S. at 842 (“[A]n Eighth Amendment claimant need not show that a prison official
acted or failed to act believing that harm actually would befall an inmate; it is enough

that the official acted or failed to act despite his knowledge of a substantial risk of
serious harm.”); Cox v. Nobles, 15 F.4th 1350, 1360 (11th Cir. 2021) (“An official
responds to a known risk in an objectively unreasonable manner if he knew of ways to

reduce the harm but knowingly declined to act or if he knew of ways to reduce the harm
but recklessly declined to act.” (quoting Rodriguez, 508 F.3d at 620)). See also 28 C.F.R.
§ 115.61(a) (requiring agencies3 to mandate “all [jail] staff to report immediately and
according to agency policy any knowledge, suspicion, or information regarding an

incident of sexual abuse or sexual harassment that occurred in a facility”).
Because Southward stated a viable Fourteenth Amendment failure-to-protect
claim against Officer McDaniel, the undersigned next assesses whether applicable law
clearly established Officer McDaniel’s alleged inaction violated a detainee’s

constitutional rights.
B. Clearly Established Law
Southward’s factual allegations incite “a broad statement of principle within the
Constitution, statute, or case law” that clearly established her constitutional rights. Hill,

797 F.3d at 979. “[T]here is no question that [Southward] had a clearly established right
to be free from sexual abuse while incarcerated.” Bridges v. Poe, 155 F.4th 1302, 1313
(11th Cir. 2025) (citing Sconiers v. Lockhart, 946 F.3d 1256, 1267 (11th Cir. 2020)); c.f.,
Bridges, 155 F.4th at 1317-18 (“[L]iability will not attach for failure to train where the

proper response ‘is obvious to all without training or supervision.’ . . . Both Buzbee and
Boyd testified that they knew from ‘common sense’ and ‘common knowledge’ that it
was wrong for them to have sex with or sexually harass female inmates. No argument

3 PREA defines “agency” as “the unit of a State, local, corporate, or nonprofit authority, or of the
Department of Justice, with direct responsibility for the operation of any facility that confines inmates,
detainees, or residents, including the implementation of policy as set by the governing, corporate, or
nonprofit authority.” 28 C.F.R. § 115.5.
there—the fact that ‘a police officer should not (and may not) sexually assault citizens
in his custody is obvious to all without training or supervision.’”) (citations omitted));

Boxer X v. Harris, 437 F.3d 1107, 1110–11 (11th Cir. 2006) (“We joined other circuits
recognizing a prisoner’s constitutional right to bodily privacy in Fortner v. Thomas, 983
F.2d 1024 (11th Cir. 1993). In Fortner, ‘female officers solicited male prisoners to
masturbate and otherwise exhibit their genitals for the female officers’ viewing.’ Id. at

1027. We held that this violated the prisoner’s right to privacy. Id. at 1030. Fortner
outlined a very narrow privacy right involving people’s ‘special sense of privacy in their
genitals’ and noted that ‘involuntary exposure of them in the presence of people of the
other sex may be especially demeaning and humiliating.’ Id. (citing Lee v. Downs, 641

F.2d 1117, 1119 (4th Cir.1981)). We have reaffirmed the privacy rights of prisoners
emphasizing the harm of compelled nudity. See Padgett v. Donald, 401 F.3d 1273, 1281
(11th Cir.2005). . . .In this case, Boxer’s claim is clearly within the scope of the right
established in Fortner. Harris, a female prison guard, solicited Boxer to masturbate for

her viewing. If his allegations are true, Boxer has stated a § 1983 claim for violation of
his privacy rights under Fortner.”), abrogated in part on other grounds by Wilkins v. Gaddy, 559
U.S. 34 (2010) as recognized by Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020).

And every reasonable prison official would have known that the conduct alleged
in the second amended complaint – Officer Neloms’s sexual extortion along with his
escalating voyeurism and exhibitionism for his own sexual gratification – violated
Southward’s right to be free from sexual abuse.4 In a similar vein, no reasonable officer

4 Officer Neloms’s purported actions proceed well beyond verbal sexual harassment and actually
constituted sexual abuse. As early as 2006 the Eleventh Circuit recognized “that severe or repetitive
sexual abuse of a prisoner by a prison official can violate the Eighth Amendment,” emphasizing
“[s]exual abuse of a prisoner by a corrections officer has no legitimate penological purpose, and is
simply not part of the penalty that criminal offenders pay for their offenses against society.” Boxer X
v. Harris, 437 F.3d 1107, 1111 (11th Cir. 2006), abrogated in part on other grounds by Wilkins v. Gaddy, 559
U.S. 34 (2010) as recognized by Sconiers v. Lockhart, 946 F.3d 1256 (11th Cir. 2020). In 2020, the Eleventh
Circuit recognized sexual abuse violates the Eighth Amendment even when accompanied by a de
minimus physical injury. Sconiers, 946 F.3d at 1266-67 (“The lack of serious physical injury, considered
in a vacuum, cannot snuff out Eighth Amendment sexual-assault claims.”).

In DeJesus v. Lewis, the Eleventh Circuit answered “the question left open by Sconiers [-] what type of
conduct qualifies as a sexual assault.” 14 F.4th 1182, 1196 (11th Cir. 2021). The Eleventh Circuit
held:

that the “sexual assault” of a prisoner by a prison official in violation of the Eighth
Amendment occurs when the prison official, acting under color of law and without
legitimate penological justification, engages in a sexual act with the prisoner, and that
act was for the official’s own sexual gratification, or for the purpose of humiliating,
degrading, or demeaning the prisoner. See 18 U.S.C. § 2246(2). At a minimum, those
sexual acts include intentional sexualized touching underneath clothing,[ ] such as
fondling or penetration; coerced sexual activity; combinations of ongoing harassment
and abuse; and exchanges of sexual activity for special treatment or to avoid discipline.
. . .

A broader range of conduct certainly qualifies as sexual assault, depending on the facts
of a given situation.

DeJesus, 14 F.4th at 1196 (footnotes omitted). The Eleventh Circuit further “recognize[d] [sexual
assault] may include conduct that does not require any physical contact with a prisoner.” DeJesus, 14
F.4th at 1197 n. 14 (citing 28 C.F.R. § 115.6(7)–(8) (adopting a broad definition of sexual abuse that
violates PREA); National Standards To Prevent, Detect, and Respond to Prison Rape, 76 FR 6248-
01, 2011 WL 318532, at *6250–51 (Feb. 3, 2011) (explaining that DOJ’s proposed standards use the
term sexual abuse because it “captures a broader range of sexual victimization than rape”)).

Although the Eleventh Circuit did not “consider whether non-physical contact can constitute ‘sexual
assault’ for purposes of establishing an excessive-force claim under the Eighth Amendment” because
DeJesus “involve[d] alleged physical contact,” id., this does not lessen the clarity surrounding the
substantial threat of serious harm Officer Neloms’s alleged conduct posed to Southward. The
Eleventh Circuit’s failure to delineate the exact outer boundaries of sexual assault for the purposes of
an excessive force claim does not incite confusion over whether Officer Neloms’s alleged conduct
here posed a substantial threat of serious harm. Officer Neloms’s conduct fell within the PREA’s
definition of sexual abuse, and the PREA – along with other federal and state statutes – serves as a
guidepost for identifying what conduct “violates contemporary standards of decency.” DeJesus, 14
could conclude Officer Neloms’s sexual abuse did not place Southward at a substantial
risk of serious harm or that complete inaction constituted a reasonable response to this

risk. See Farmer, 511 U.S. at 842 (“[A]n Eighth Amendment claimant need not show
that a prison official acted or failed to act believing that harm actually would befall an
inmate; it is enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm.”); Cox, 15 F.4th at 1360 (“An official responds to a

known risk in an objectively unreasonable manner if he knew of ways to reduce the
harm but knowingly declined to act or if he knew of ways to reduce the harm but
recklessly declined to act.” (quoting Rodriguez, 508 F.3d at 620)); 28 C.F.R. § 115.61(a)
(requiring agencies to mandate “all [jail] staff to report immediately and according to

agency policy any knowledge, suspicion, or information regarding an incident of sexual
abuse or sexual harassment that occurred in a facility”).
Accordingly, Officer McDaniel does not stand entitled to qualified immunity on
the afore-discussed claim, and the court should deny Officer McDaniel’s motion to

dismiss.
C. Right to Bodily Privacy
As early as 1993, the United States Court of Appeals for the Eleventh Circuit

recognized a prisoner’s right to bodily privacy. In Fortner v. Thomas, the Eleventh Circuit
“recogniz[ed] a prisoner’s constitutional right to bodily privacy because most people

F.4th at 1196 n.13 (citing Sconiers, 946 F.3d at 1271 (Rosenbaum, J., concurring)).
have a special sense of privacy in their genitals, and involuntary exposure of them in
the presence of people of the other sex may be especially demeaning and humiliating”;

the Court clearly established the principle that, absent a legitimate penological reason,
individuals maintain a right to bodily privacy, in particular the right not to have their
genitals exposed to onlookers. 983 F.2d 1024, 1030 (11th Cir. 1993) (internal quotation
marks and citation omitted).

Southward’s allegations create a plausible inference Officer McDaniels violated
that right. Southward contends jail officials provided her only a “turtle suit,” similar to
a heavy blanket, when they placed her on suicide watch. (Doc. 12 at 2 ¶ 9). The “turtle
suit” provided “insufficient covering to prevent [Southward’s] breasts and genitals from

being visible to male corrections officers, trustees, and other males in the jail.” (Doc.
12 at 2 ¶ 9). Southward “repeatedly reported” Officer Neloms’s sexual abuse to Officer
McDaniel while Southward remained on suicide watch. (Doc. 12 at 2 ¶ 9). Because
Southward remained on suicide watch and could not leave her cell, a reasonable

inference ensues that Officer McDaniel and Southward spoke at her cell, and Officer
McDaniel personally observed Southward’s inadequate covering but did not provide
Southward with additional covering to protect her breasts and genitals.5 (See Doc. 12).

Accordingly, Officer McDaniel’s motion to dismiss warrants dismissal on this

5 If Southward could expose herself to Officer Neloms while in the isolation cell, and observe Officer
Neloms licking his lips and touching his groin through his pants, it necessarily follows that the
construction of the isolation cell did not prevent Officer McDaniel from observing Southward’s lack
of adequate covering.
alternative ground.
IV. RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS the court
DENY Officer McDaniel’s Motion to Dismiss. (Doc. 18).
V. NOTICE OF RIGHT TO OBJECT
Any party may file specific written objections to this report and

recommendation. Any objections must be filed with the Clerk of Court within 14 days.
The objecting party must identify every objectionable finding of fact or
recommendation and state the specific basis for every objection. The objecting party
also must identify every claim in the complaint that the report and recommendation has

not addressed. Objections should not contain new allegations, present additional
evidence, or repeat legal arguments.
A party who fails to object to factual or legal conclusions in the Magistrate
Judge’s report and recommendation waives the right to challenge on appeal those same

conclusions adopted in the District Judge’s order. Without a proper objection,
however, the court on appeal may review the unobjected-to factual and legal
conclusions for plain error if necessary in the interests of justice. 11th Cir. R. 3-1.

After receiving the objections, a District Judge will conduct a de novo review of
the relevant portions of the report and recommendation and may accept, reject, or
modify in whole or in part the Magistrate Judge’s findings of fact and recommendations.
The District Judge will conduct a hearing if required by law and may exercise discretion
to conduct a hearing or otherwise receive additional evidence. Otherwise, the District
Judge may consider the record developed before the Magistrate Judge in making an
independent determination of the relevant legal issues. The District Judge also may
refer this action back to the Magistrate Judge with instructions for further proceedings.
A patty may not appeal the Magistrate Judge’s report and recommendation
directly to the United States Court of Appeals for the Eleventh Circuit. A party may
appeal only from a final judgment entered by a District Judge.
DONE this 16" day of July, 2026.

UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11419695. Public record. Not legal advice.