# Files v. Dunn(INMATE 1)(CONSENT)

> District Court, M.D. Alabama · January 26, 2021

URL: https://www.frixlaw.com/law-library/cases/9987198

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** January 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9987198

## How later opinions describe it (automated extraction)

- holding that moving party has initial burden of showing there is no 3 genuine dispute of material fact for trial
- holding that the defense of qualified immunity is limited to actions for monetary damages and does not serve as a defense to actions seeking equitable relief
- finding no loss of liberty or property when prisoner received as part of his disciplinary punishment a two-week loss of commissary privileges

## Opinion text

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

EARNEST J. FILES, JR., #107834 )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:18-CV-53-SRW
) (WO)
)
JEFFERSON S. DUNN, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION1
This 42 U.S.C. § 1983 action is pending before the court on an amended complaint
filed by Earnest J. Files, Jr., a state inmate, challenging actions which occurred during his
prior term of incarceration at Kilby Correctional Facility (“Kilby”). Doc. 13. Files names
Jefferson S. Dunn, Commissioner of the Alabama Department of Corrections; Vivian
McQueen, an analyst for the Department’s Classification Review Board; Jimmy Thomas,
a warden at Kilby; Alicia White, a classification specialist supervisor; Angela Baggett,
Assistant Director of Classification for the Alabama Department of Corrections; and
Cassandra Conway, Director of Classification for the Alabama Department of Corrections,
as defendants in this civil action. In the amended complaint, Files challenges the
constitutionality of the conditions in cell P-1, where he was first housed for a few days
upon his arrival at Kilby from the Talladega County Jail. Files also complains that the

1All documents and page numbers cited herein are those assigned by the Clerk of this court in the docketing
process.
defendants thereafter deprived him of due process by placing him in the restrictive housing
unit on close custody without a hearing. Files next contends that the defendants violated
his equal protection rights with respect to his initial classification and placement in

restrictive housing because other inmates transferred with him from the Talladega County
Jail to Kilby were not subjected to these adverse actions. Finally, Files alleges that his
placement in close custody resulted from a conspiracy among the defendants. Files sues
the defendants in their individual capacities, Doc. 13 at 3, and seeks monetary damages
and any other relief to which he may be entitled for the alleged violations of his
constitutional rights. Doc. 13 at 10.
The defendants filed a special report, supplemental special reports and relevant

evidentiary materials in support of their reports, including affidavits and certified prison
records, addressing the claims presented by Files. In these filings, the defendants deny that
they acted in violation of Files’ constitutional rights.
The court issued an order directing Files to file a response, supported by affidavits
or statements made under penalty of perjury and other evidentiary materials, to the
arguments set forth by the defendants in their report. Doc. 37. This order specifically
cautioned the parties that “unless within fifteen (15) days from the date of this order a

party files a response in opposition which presents sufficient legal cause why such
action should not be undertaken . . . the court may at any time [after expiration of the
time allowed the plaintiff for filing a response to this order] and without further notice to
the parties (1) treat the special reports and any supporting evidentiary materials as a
motion for summary judgment and (2) after considering any response as allowed by this
2
order, rule on the motion for summary judgment in accordance with the law.” Doc. 37 at
3 (emphasis in original). Files filed a declaration in response to the defendants’ reports on
August 17, 2018. Doc. 39.

Pursuant to the above-referenced order, the court now treats the defendants’ special
report and supplements to the report as a motion for summary judgment. Upon
consideration of the defendants’ motion for summary judgment, the evidentiary materials
filed in support thereof, the sworn complaint and response filed by Files, the court
concludes that summary judgment is due to be granted in favor of the defendants.
II. SUMMARY JUDGMENT STANDARD
“Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine [dispute] as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (internal quotation marks omitted); Rule 56(a), Fed.R.Civ.P. (“The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”). The party moving
for summary judgment “always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of the [record, including
pleadings, discovery materials and affidavits or properly sworn statements], which it
believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593
(11th Cir. 1995) (holding that moving party has initial burden of showing there is no
3
genuine dispute of material fact for trial). The movant may meet this burden by presenting
evidence indicating there is no dispute of material fact or by showing that the nonmoving
party has failed to present appropriate evidence in support of some element of its case on

which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322–24; Moton v. Cowart,
631 F.3d 1337, 1341 (11th Cir. 2011) (holding that moving party discharges his burden by
showing the record lacks evidence to support the nonmoving party’s case or the nonmoving
party would be unable to prove his case at trial).
When the defendants meet their evidentiary burden, as they have in this case, the
burden shifts to the plaintiff to establish, with appropriate evidence, that a genuine dispute
material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.

1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support
an assertion of fact or fails to properly address another party’s assertion of fact [by citing
to materials in the record including affidavits, sworn statements, relevant documents or
other materials], the court may . . . grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled to
it[.]”); Jeffery, 64 F.3d at 593–94 (holding that, once a moving party meets its burden, “the
non-moving party must then go beyond the pleadings, and by its own affidavits [or

statements made under penalty of perjury], or by depositions, answers to interrogatories,
and admissions on file,” demonstrate that there is a genuine dispute of material fact). In
civil actions filed by inmates, federal courts “must distinguish between evidence of
disputed facts and disputed matters of professional judgment. In respect to the latter, our
inferences must accord deference to the views of prison authorities. Unless a prisoner can
4
point to sufficient evidence regarding such issues of judgment to allow him to prevail on
the merits, he cannot prevail at the summary judgment stage.” Beard v. Banks, 548 U.S.
521, 530 (2006) (internal citation omitted). This court will also consider “specific facts”

pled in a plaintiff’s sworn complaint when considering his opposition to summary
judgment. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014);
Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. Unit A 1981) (stating that a verified
complaint serves the same purpose as an affidavit for purposes of summary judgment).
However, “mere conclusions and unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005).

A genuine dispute of material fact exists when the nonmoving party produces
evidence that would allow a reasonable fact-finder to return a verdict in its favor such that
summary judgment is not warranted. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). The evidence must be
admissible at trial, and if the nonmoving party’s evidence “is merely colorable . . . or is not
significantly probative . . . summary judgment may be granted.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249–50 (1986); see also Fed.R.Civ.P. 56(e). “A mere ‘scintilla’

of evidence supporting the opposing party’s position will not suffice[.]” Walker v. Darby,
911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Only disputes
involving material facts are relevant and materiality is determined by the substantive law
applicable to the case. Anderson, 477 U.S. at 248.

5
To demonstrate a genuine dispute of material fact, the party opposing summary
judgment “must do more than simply show that there is some metaphysical doubt as to the
material facts. . . . Where the record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “The evidence of the non-
movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson, 477 U.S. at 255. At the summary judgment stage, this court should accept as
true “statements in [the plaintiff’s] verified complaint, [any] sworn response to the
[defendants’] motion for summary judgment, and sworn affidavit attached to that
response[.]” Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019); United States v. Stein,

881 F.3d 853, 857 (11th Cir. 2018) (holding that a plaintiff’s purely self-serving and
uncorroborated statements “based on personal knowledge or observation” set forth in a
verified complaint or affidavit may create an issue of material fact which precludes
summary judgment); Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir.
2013) (citations omitted) (“To be sure, [Plaintiff’s] sworn statements are self-serving, but
that alone does not permit [the court] to disregard them at the summary judgment stage . .
. . Courts routinely and properly deny summary judgment on the basis of a party’s sworn

testimony even though it is self-serving.”). However, general, blatantly contradicted and
merely “[c]onclusory, uncorroborated allegations by a plaintiff in [his verified complaint
or] an affidavit . . . will not create an issue of fact for trial sufficient to defeat a well-
supported summary judgment motion.” Solliday v. Fed. Officers, 413 F. App’x 206, 207
(11th Cir. 2011) (citing Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.
6
1990). In addition, conclusory allegations based on purely subjective beliefs of a plaintiff
and assertions of which he lacks personal knowledge are likewise insufficient to create a
genuine dispute of material fact. See Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir.

1997). In cases where the evidence before the court which is admissible on its face or
which can be reduced to admissible form indicates there is no genuine dispute of material
fact and the party moving for summary judgment is entitled to it as a matter of law,
summary judgment is proper. Celotex, 477 U.S. at 323–24; Waddell v. Valley Forge Dental
Associates, Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (holding that to establish a genuine
dispute of material fact the nonmoving party must produce evidence such that a reasonable
trier of fact could return a verdict in his favor). “The mere existence of some factual dispute

will not defeat summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003) (citation omitted). “[T]here must exist a conflict in substantial
evidence to pose a jury question.” Hall v. Sunjoy Indus. Group, Inc., 764 F. Supp. 2d 1297,
1301 (M.D. Fla. 2011) (citation omitted). “When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a

motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).
Although factual inferences must be viewed in a light most favorable to a plaintiff
and pro se complaints are entitled to liberal interpretation, a pro se litigant does not escape
the burden of establishing by sufficient evidence a genuine dispute of material fact. See
Beard, 548 U.S. at 525. Thus, a plaintiff’s pro se status alone does not compel this court
7
to disregard elementary principles of production and proof in a civil case. Here, after a
thorough review of all the evidence which would be admissible at trial, the court concludes
that Files has failed to demonstrate a genuine dispute of material fact in order to preclude

entry of summary judgment in favor of the defendants. See Matsushita, 475 U.S. at 587.
III. QUALIFIED IMMUITY
The defendants raise the defense of qualified immunity to the claims set forth by
Files, Doc. 26 at 1, against them in their individual capacities. Doc. 13 at 3. “The defense
of qualified immunity completely protects government officials performing discretionary
functions from suit [for damages] in their individual capacities unless their conduct violates
‘clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting Hope v.
Pelzer, 536 U.S. 730, 739 (2002)). “The purpose of the qualified immunity defense is to
protect[] government officials from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010)
(internal quotations and citations omitted). “Qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments, and protects all but the plainly

incompetent or those who knowingly violate the law.” Messerschmidt v. Millender, 565
U.S. 535, 546 (2012) (citations and quotation marks omitted). “Unless a government
agent’s act is so obviously wrong, in light of the pre-existing law, that only a plainly
incompetent officer or one who was knowingly violating the law would have done such a
thing, the government actor is immune from suit.” Lassiter v. Ala. A&M University Bd. of
8
Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994). The Eleventh Circuit has determined that
the law is “clearly established” for purposes of qualified immunity “only by decisions of
the U. S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the

state where the case arose.” Jenkins v. Talladega City Bd. of Education, 115 F.3d 821,
826–27 n.4 (11th Cir. 1997). The Supreme Court “repeatedly ha[s] stressed the importance
of resolving immunity questions at the earliest possible stage in litigation.” Pearson v.
Callahan, 555 U.S. 223, 231–32 (2009). Even so, qualified immunity is only an affirmative
defense to a request for damages; it has no impact on requests for declaratory or injunctive
relief. See Wood v. Strickland, 420 U.S. 308, 315, n.6 (1975) (“Immunity from damages
does not ordinarily bar equitable relief as well.”), overruled in part on other grounds by

Harlow v. Alexander, 457 U.S. 800 (1982); American Fire, Theft & Collision Managers,
Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991) (holding that the defense of qualified
immunity is limited to actions for monetary damages and does not serve as a defense to
actions seeking equitable relief).
“To receive qualified immunity, the government official must first prove that he was
acting within his discretionary authority.” Gonzalez, 325 F.3d at 1234. In this case, it is
clear “that the defendants were acting within their discretionary authority[]”as correctional

officials at the time of the challenged actions so “the burden shifts to [Files] to show that
qualified immunity is not appropriate.” Id.; see also Townsend v. Jefferson County, 601
F.3d 1152, 1158 (11th Cir. 2010). To meet this burden, Files must prove both that “(1) the
defendants violated a constitutional right, and (2) this right was clearly established at the
time of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
9
1264 (11th Cir.2004); Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004)
(same); Youmans, 626 F.3d at 562 (citation omitted) (“[O]nce a defendant raises the
defense [of qualified immunity and demonstrates he was acting within his discretionary

authority], the plaintiff bears the burden of establishing both that the defendant committed
a constitutional violation and that the law governing the circumstances was clearly
established at the time of the violation.”). This court is “free to consider these elements in
either sequence and to decide the case on the basis of either element that is not
demonstrated.” Id.; Rehberg v. Paulk, 611 F.3d 828, 839 (11th Cir. 2010) (citing Pearson,
555 U.S. at 241–42) (holding that the court may analyze the elements “in whatever order
is deemed most appropriate for the case.”).

IV. RELEVANT FACTS
In 2017, the Circuit Court of Talladega County, Alabama convicted Files on six
counts of capital murder and sentenced him to life without parole on each of these
convictions. Doc. 27-6 at 2. On December 26, 2017, Files was transferred from the
Talladega County Jail to Kilby for service of his sentences within the custody of the
Alabama Department of Corrections (“ADOC”). Doc. 13 at 4. Kilby serves as the receiving
and classification center for the ADOC. Upon Files’ arrival at Kilby, correctional officials

placed him in P-1, a cell in the psychiatric area of the facility, and subsequently transferred
him to F-12, a segregation cell in the restrictive housing unit, on December 29, 2017. Doc.
13 at 4–5.
On January 2, 2018, defendant White initially recommended close custody
classification for Files, and an analyst for the Central Review Board approved this
10
recommendation on January 8, 2018. Doc. 13 at 9. Correctional officials assigned Files
to close custody and confinement to restrictive housing in administrative segregation
pursuant to the Classification Manual, which requires that inmates sentenced to life without

parole “be housed in Close custody for a minimum of a thirty (30) day observation and
adjustment period. All time served in restrictive housing prior to initial classification will
be credited toward the observation period.” Doc. 27-9 at 5. On January 24, 2018, defendant
White recommended that Files’ custody level be reduced to medium custody, and
defendant Conway approved this recommendation on January 25, 2018. Doc. 13 at 9. The
following day, correctional officials transferred Files to Donaldson Correctional Facility.
V. DICUSSION OF CLAIMS2

A. Conditions
Files complains that while in P-1 he experienced “extremely harsh conditions,”
suffering exposure to roaches and rats. Doc. 13 at 5. Files alleges that these conditions
violated his constitutional rights as protected by the Eighth Amendment.
The correctional defendants deny that the conditions about which Files complaints
rose to the level of a constitutional violation. The evidentiary materials filed herein
establish that Kilby contracts with a private extermination company to control insects and

2The court limits its review to the alleged constitutional violations identified in the amended complaint.
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend
[his] complaint through argument in a brief opposing summary judgment.”); Ganstine v. Secretary, Florida
Dept. of Corrections, 502 F. App’x. 905, 909–10 (11th Cir. 2012) (holding that a plaintiff may not amend
complaint at the summary judgment stage by raising a new claim or presenting a new basis for a pending
claim); Chavis v. Clayton County School District, 300 F.3d 1288, 1291 n. 4 (11th Cir. 2002) (noting that
district court did not err in refusing to address a new theory raised during summary judgment because the
plaintiff had not properly amended the complaint with respect to such theory).
11
rodents, including roaches, rats, mice and crickets. Doc. at 34-3 at 1. The defendants
contend that Files could have filed a request with prison personnel regarding the alleged
presence of rats and roaches to assist in ridding his cell of these pests, but he failed to do

so. Doc. 34-1 at 2.
Only conditions that deny inmates “the minimal civilized measure of life’s
necessities” are grave enough to establish constitutional violations. Rhodes v. Chapman,
452 U.S. 337, 347 (1981). The Eighth Amendment proscribes those conditions of
confinement which involve the wanton and unnecessary infliction of pain. Id. at 346.
Specifically, it is concerned with “deprivations of essential food, medical care, or
sanitation” or “other conditions intolerable for prison confinement.” Id. at 348 (citation

omitted). Prison conditions which may be “restrictive and even harsh, [ ] are part of the
penalty that criminal offenders pay for their offenses against society” and, therefore, do not
necessarily constitute cruel and unusual punishment within the meaning of the Eighth
Amendment. Id. Conditions, however, may not be “barbarous” nor may they contravene
society’s “evolving standards of decency.” Id. at 345–46. “[T]he Constitution does not
mandate comfortable prisons.” Id. at 349 (internal quotations omitted). “Generally
speaking, prison conditions rise to the level of an Eighth Amendment violation only when

they involve the wanton and unnecessary infliction of pain.” Chandler v. Crosby, 379 F.3d
1278, 1289 (11th Cir. 2004) (internal quotations and citations omitted). Although the
Constitution “does not mandate comfortable prisons . . . neither does it permit inhumane
ones.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes, 452 U.S. at 349).

12
Thus, it is well-settled that the conditions under which a prisoner is confined are subject to
constitutional scrutiny. Helling v. McKinney, 509 U.S. 25 (1993).
A prison official has a duty under the Eighth Amendment to “provide humane

conditions of confinement; prison officials must ensure that inmates receive adequate food,
clothing, shelter, and medical care, and must ‘take reasonable measures to guarantee the
safety of the inmates.’” Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517,
526-527 (1984)); Helling, 509 U.S. at 31–32. For liability to attach, the challenged prison
condition must be “extreme” and must pose “an unreasonable risk of serious damage to
[the inmate’s] future health.” Crosby, 379 F.3d at 1289–90. To demonstrate an Eighth
Amendment violation regarding conditions of confinement, a prisoner must satisfy both an

objective and a subjective inquiry. Farmer, 511 U.S. at 834. With respect to the requisite
objective elements, an inmate must first show “an objectively substantial risk of serious
harm . . . exist[ed]. Second, once it is established that the official is aware of this substantial
risk, the official must react to this risk in an objectively unreasonable manner.” Marsh,
268 F.3d 1028–29. As to the subjective elements, “the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference. . . . The Eighth Amendment does not outlaw cruel and

unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’ . . . [A]n official’s failure
to alleviate a significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction of punishment.”
Farmer, 511 U.S. at 837–38; Campbell v. Sikes, 169 F.3d 1353, 1364 (11th Cir. 1999)
(citing Farmer, 511 U.S. at 838) (“Proof that the defendant should have perceived the risk,
13
but did not, is insufficient.”); Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996)
(same). The conduct at issue “must involve more than ordinary lack of due care for the
prisoner’s interests or safety. . . . It is obduracy and wantonness, not inadvertence or error

in good faith, that characterize the conduct prohibited by the Cruel and Unusual
Punishments Clause[.]” Whitley v. Albers, 475 U.S. 312, 319 (1986).
The living conditions within a correctional facility constitute cruel and unusual
punishment when the conditions involve or result in “wanton and unnecessary infliction of
pain, [or] . . . [are] grossly disproportionate to the severity of the crime warranting
imprisonment.” Rhodes, 452 U.S. at 347. “Conditions . . . alone or in combination, may
deprive inmates of the minimal civilized measure of life’s necessities. Such conditions

could be cruel and unusual under the contemporary standard of decency. . . . But conditions
that cannot be said to be cruel and unusual under contemporary standards are not
unconstitutional.” Id. at 347.
In a case involving conditions of confinement generally or several different
conditions, the court should consider whether the claims together amount to conditions
which fall below constitutional standards. Hamm v. De Kalb County, 774 F.2d 1567 (11th
Cir. 1985), cert. denied Hamm v. De Kalb County, 475 U.S. 1096 (1986); see also Chandler

v. Baird, 926 F.2d 1057 (11th Cir. 1991). The court’s consideration of whether the totality
of a plaintiff’s claims amount to conditions which fall below applicable constitutional
standards is limited by the Supreme Court’s admonishment that “[s]ome conditions of
confinement may establish an Eighth Amendment violation in combination when each
would not do so alone, but only when they have a mutually enforcing effect that produces
14
the deprivation of a single, identifiable human need. . . . To say that some prison conditions
may interact in this fashion is a far cry from saying that all prison conditions are a seamless
web for Eighth Amendment purposes. Nothing so amorphous as overall conditions can

rise to the level of cruel and unusual punishment when no specific deprivation of a single
human need exists.” Wilson v. Seiter, 501 U.S. 294, 304–05 (1991) (emphasis in original)
(internal quotation marks omitted).
To be deliberately indifferent, Defendants must have been “subjectively
aware of the substantial risk of serious harm in order to have had a
‘“sufficiently culpable state of mind.”’” Farmer, 511 U.S. at 834–38, 114
S.Ct. at 1977–80; Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321, 2324-
25, 115 L.Ed.2d 271 (1991). . . . Even assuming the existence of a serious
risk of harm and legal causation, the prison official must be aware of specific
facts from which an inference could be drawn that a substantial risk of serious
harm exists — and the prison official must also “draw that inference.”
Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003). A defendant’s subjective
knowledge of the risk must be specific to that defendant because “imputed or collective
knowledge cannot serve as the basis for a claim of deliberate indifference. . . . Each
individual Defendant must be judged separately and on the basis of what that person [knew
at the time of the incident].” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).
Moreover, “[t]he known risk of injury must be a strong likelihood, rather than a mere
possibility before a [state official’s] failure to act can constitute deliberate indifference.”
Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (citations and internal quotation
marks omitted). Thus, mere negligence does not justify liability under section 1983. Id.
Consequently, to proceed beyond the properly supported motion for summary
judgment filed by the defendants, Files must first demonstrate an objectively substantial
15
risk of serious harm existed to him and “that the defendant[s] disregarded that known risk
by failing to respond to it in an objectively reasonable manner.” Johnson v. Boyd, 568 F.
App’x 719, 721 (11th Cir. 2014), citing Caldwell, 748 F.3d at 1100.

Despite Files’ allegations regarding the conditions present at Kilby, he does not
establish that the challenged conditions denied him the minimal civilized measure of life’s
necessities or subjected him to a wanton and unnecessary infliction of pain. Wilson, 501
U.S. at 298–99; Rhodes, 452 U.S. at 347. The conditions in P-1 referenced by Files—i.e.,
the presence of pests—though uncomfortable, inconvenient, unpleasant and/or
objectionable, were not so extreme as to violate the Constitution. See Baird, 926 F.2d at
1289. Furthermore, Files fails to demonstrate deliberate indifference or reckless disregard

by the defendants with respect to his health or safety relative to these conditions.
Specifically, Files does not identify any particular condition of which the defendants were
aware from which an inference could be drawn that a substantial risk of serious harm
existed to him. The record is also devoid of any evidence showing that the defendants
drew the requisite inference. Under these circumstances, Files is entitled to no relief on
his conditions claims.
B. Due Process

Files alleges that the defendants deprived him of due process by assigning him to
close custody and placing him in segregation for twenty-nine days without notice and an
opportunity to be heard. Doc. 13 at 4. The defendants deny any violation of Files’ due
process rights.

16
It is undisputed that inmates received at Kilby who are sentenced to life without
parole are initially assigned to close custody and confined in restrictive housing pursuant
to the Classification Manual. In accordance with the Manual, and a few days after Files’

arrival at Kilby, correctional officials assigned him to close custody and placed him in
restrictive housing under administrative segregation. He remained so confined from
December 29, 2017 until January 26, 2018. Although certain privileges may have been
restricted for inmates in the segregation unit, it is undisputed that Files could exercise in
his cell at most times during the day; was allowed outdoor exercise, weather and staff
permitting; received access to the law library via a clerk who went to the segregation unit
“3 times a week to take requests for legal materials and provide legal materials”; had access

to the chaplain and psychosocial staff three times per week for presentation of any issues;
and received access to the mental health staff on a daily basis to raise any issues or
concerns. Doc. 36-1 at 1–2. The segregation unit received heat from a prison-wide steam
system and cooling was provided by ceiling and blower fans. Doc. 36-1 at 2. As stated
above, Kilby maintained a contract with a private extermination company for control of
pests. Under the circumstances of this case, the court finds that Files is entitled to no relief
on his due process claim.

The Supreme Court has identified two circumstances in which a prisoner, an
individual already deprived of his liberty in the ordinary sense, can be deprived of his
liberty such that due process is required:
The first is when a change in the prisoner’s conditions of confinement is so
severe that it essentially exceeds the sentence imposed by the court. The
17
second situation is when the state has consistently bestowed a certain benefit
to prisoners, usually through statute or administrative policy, and the
deprivation of that benefit imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life. Kirby v. Siegelman,
195 F.3d 1285, 1290–91 (11th Cir. 1999) (quotation omitted) (citing Sandin
v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)).
Morales v. Chertoff, 212 F. App’x 888, 890 (11th Cir. 2006); Bass v. Perrin, 170 F.3d
1312, 1318 (11th Cir. 1999) (same). “In the first situation, the liberty interest exists apart
from the state [and is guaranteed by the Constitution]; in the second situation, the liberty
interest is created by the state.” Bass, 170 F.3d at 1318.
Generally, an Alabama inmate’s assigned classification level is not “so severe that
it essentially exceeds the sentence imposed by the court,” and the administrative
regulations governing classification “do not bestow a benefit vis-a-vis the custody
classification, the deprivation of which would result in an ‘atypical and significant
hardship’ on [the inmate]. See Kirby, 195 F.3d at 1290–91; see also Slezak v. Evatt, 21
F.3d 590, 594 (4th Cir.1994) (in the context of a claim based on a classification level,
holding that the U.S. Constitution affords no liberty interest in a prisoner’s classification
status)[.]” Morales, 212 F. App’x at 890; Sandin, 515 U.S. at 484 (holding that an inmate
has no constitutionally protected interest in the procedure affecting his classification level
when the resulting restraint does “not exceed[] the sentence in . . . an unexpected manner”
nor does it impose an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”). However, Files’ assignment to close custody resulted

in his placement in restrictive housing/segregation. Thus, the court will address whether
Files’ assignment to close custody and placement in restrictive housing for twenty-nine
18
days deprived him of due process. After review of the record and upon application of well-
settled law, the court finds that Files’ due process claim fails.
The Constitution itself does not give rise to a liberty interest in avoiding transfer to

more adverse conditions of confinement for a limited period of time. Sandin, 515 U.S. at
485–86 (holding that confinement of inmate in disciplinary segregation for 30 days does
not implicate a constitutionally protected liberty interest); Rodgers v. Singletary, 142 F.3d
1252, 1253 (11th Cir. 1998) (holding that confinement in segregation for two months did
not deprive inmate of a constitutionally protected liberty interest); Matthews v. Moss, 506
F. App’x 981, 983 (11th Cir. 2013) (holding that the district court did not err in dismissing
due process claims because the “complaint did not allege the deprivation of a liberty

interest protected by the Due Process Clause” as “administrative confinement for short
periods of 24 days and 18 days does not impose an ‘atypical, significant deprivation’
sufficient to give rise to a constitutionally protected liberty interest.”) (citing Sandin, 515
U.S. at 485–87); Hoskins v. Lenear, 395 F.3d 372, 375 (7th Cir. 2005) (“The punishments
[inmate] suffered because of his disciplinary conviction (demotion in status, segregation,
and transfer) raise no due process concerns.”); see also Meachum v. Fano, 427 U.S. 215,
225 (1976) (No liberty interest arising from Due Process Clause itself in transfer from low-

to maximum-security prison because “[c]onfinement in any of the State’s institutions is
within the normal limits or range of custody which the conviction has authorized the State
to impose.”).
As to the restrictive nature of the confinement imposed upon Files while in the
restrictive housing unit, he has no constitutionally protected interest in the privileges
19
bestowed upon him or confinement in the least restrictive prison environment because the
resulting restraints are not so severe that they exceed the sentences imposed upon him.
Sandin, 515 U.S.at 485. Simply put, the placement of Files in restrictive housing on close

custody, “though concededly punitive, [did] not represent a dramatic departure from the
basic conditions” of the sentences imposed upon Files. Id. Thus, the challenged
deprivations did not “exceed[] the sentence[s] [imposed by the trial court] in such an
unexpected manner as to give rise to protection by the Due Process Clause of its own
force.” Id. This court must therefore determine whether the actions about which Files
complains involved the deprivation of a state-created liberty interest as defined by the
standard set forth in Sandin.

As the Supreme Court has stated:
Sandin involved prisoners’ claims to procedural due process
protection before placement in segregated confinement for 30 days, imposed
as discipline for disruptive behavior. Sandin observed that some of our
earlier cases, Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675
(1983), in particular, had employed a methodology for identifying state-
created liberty interests that emphasized “the language of a particular
[prison] regulation” instead of “the nature of the deprivation.” Sandin, 515
U.S., at 481, 115 S.Ct. 2293. In Sandin, we criticized this methodology as
creating a disincentive for States to promulgate procedures for prison
management, and as involving the federal courts in the day-to-day
management of prisons. Id., at 482–483, 115 S.Ct. 2293. For these reasons,
we abrogated the methodology of parsing the language of particular
regulations.
“[T]he search for a negative implication from mandatory language in
prisoner regulations has strayed from the real concerns undergirding the
liberty protected by the Due Process Clause. The time has come to return to
the due process principles we believe were correctly established in and
applied in Wolff and Meachum. Following Wolff, we recognize that States
may under certain circumstances create liberty interests which are protected
20
by the Due Process Clause. But these interests will generally be limited to
freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause
of its own force, nonetheless imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” Id., at 483–
484, 115 S.Ct. 2293 (citations and footnote omitted).
After Sandin, it is clear that the touchstone of the inquiry into the
existence of a protected, state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations regarding those
conditions but the nature of those conditions themselves “in relation to the
ordinary incidents of prison life.” Id., at 484, 115 S.Ct. 2293.

Wilkinson v. Austin, 545 U.S. 209, 222–23 (2005).
[While confinement in the restrictive housing unit may have led to the
plaintiff’s] loss of canteen, telephone, [television] and visiting privileges, a
liberty interest is not implicated either under the Constitution or by the
State’s creation. The Court finds the Constitution does not grant an inmate a
right in visitation, canteen, [television] and telephone privileges. See
Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904,
1908, 104 L.Ed.2d 506 (1989) (finding an inmate does not have a protected
interest in visitation arising from the Due Process Clause); Overton v.
Bazzetta, 539 U.S. 126, 131, 134, 123 S.Ct. 2162, 2167, 2168, 156 L.Ed.2d
162 (2003) (upholding a two-year restriction on visitation privileges for two
substance abuse violations because prison confinement requires the
surrendering of liberties and privileges enjoyed by other citizens, with free
association being least compatible right to prison confinement); Charriez v.
Sec’y, Fla. Dep’t of Corrs., 596 F. App’x 890, 894 (11th Cir. 2015)
(unpublished) (finding that the one-year loss of visitation privileges did not
implicate a state-created liberty interest as there was no right to unfettered
visitation); Moore v. Pemberton, 110 F.3d 22, 23 (7th Cir. 1997) (finding no
loss of liberty or property when prisoner received as part of his disciplinary
punishment a two-week loss of commissary privileges); Walker v. Loman,
CA 06–0896–WKW, 2006 WL 3327663, at *1, *3 (M.D. Ala. Nov. 15,
2006) (unpublished) (holding the 90-day loss of store, telephone and
visitation privileges, recommended custody increase, and referral for
possible free-world prosecution did not result in the deprivation of a liberty
interest). Moreover, the Alabama courts have determined a prisoner does not
have a state-created liberty interest in store, telephone, [television] and
visitation privileges. Dumas v. State, 675 So.2d 87, 88 (Ala.Crim.App.1995).
An inmate’s ability to visit, to shop, [to watch television] and to use
the telephone is heavily restricted while in prison, as are most aspects of an
21
inmate’s life. Sandin, 515 U.S. at 485, 115 S.Ct. at 2301. . . . Such restriction
is not “atypical,” nor is it a “significant hardship” under the Sandin analysis,
and is a type of [action] that should be expected by a prisoner as an incident
to his criminal sentence. See Id. at 475, 485, 115 S.Ct. at 2296, 2301. Thus,
[the plaintiff] does not have a liberty interest in canteen, visitation,
[television] and telephone privileges to which due process attaches.

Bass v. Wilson, et al., 2015 WL 4742473, at *5–*6 (S.D. Ala. Aug. 10, 2015).
Applying the Sandin test, the court finds that Files’ short-term confinement in the
restrictive housing unit on close custody did not “impose[] atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 484.
Consequently, due process did not attach to Files’ assignment to close custody and his
placement in the restrictive housing unit.
C. Equal Protection
Files complains that his assignment to close custody and placement in segregation
upon his arrival at Kilby deprived him of equal protection because other inmates transferred
from the Talladega County Jail did not receive this same classification or housing
assignment. The defendants deny that they acted in violation of Files’ equal protection
rights. Specifically, the defendants maintain that the decisions challenged by Files were
not based on any constitutionally impermissible reason but, instead, were based on his
receiving sentences of life without parole for his capital murder convictions. Doc. 27-2 at
1; Doc. 27-4 at 1; Doc. 27-5 at 1. Here, the allegation of an equal protection violation fails
to state a claim on which relief may be granted. See Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007).
“Despite the tendency of all rights ‘to declare themselves absolute to their logical
22
extreme,’ there are obviously limits beyond which the equal protection analysis may not
be pressed. . . . The Fourteenth Amendment ‘does not require absolute equality or precisely
equal advantages,’. . . nor does it require the State to ‘equalize [prison] conditions.’” Ross

v. Moffitt, 417 U.S. 600, 611–12 (1974); Hammond v. Auburn University, 669 F.Supp.
1555, 1563 (M.D.Ala. 1987) (“The Equal Protection Clause of the Fourteenth Amendment
does not require all persons to be treated either identically or equally.”). In order to present
a claim of discrimination cognizable under the Equal Protection Clause, “a prisoner must
[at a minimum] demonstrate that (1) he is similarly situated to other prisoners who received
more favorable treatment; and (2) the state engaged in invidious discrimination against him
based on race, religion, national origin, or some other constitutionally protected basis.

Jones v. Ray, 279 F.3d 944, 946–47 (11th Cir. 2001); Damiano v. Florida Parole and Prob.
Comm’n, 785 F.2d 929, 932–33 (11th Cir. 1986).” Sweet v. Secretary, Department of
Corrections, 467 F.3d 1311, 1318–19 (11th Cir. 2006). “[O]fficial action will not be held
unconstitutional solely because it results in a . . . disproportionate impact. . . . Proof of . .
. discriminatory intent or purpose is required to show a violation of the Equal Protection
Clause.” Village of Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 264–65 (1977). “‘Discriminatory purpose’ . . . implies more than intent as

volition or intent as awareness of consequences. It implies that the decision maker . . .
selected . . . a particular course of action at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group.” Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (footnote and citation omitted); see
also Hernandez v. New York, 500 U.S. 352, 359 (1991). Evidence which merely indicates
23
disparity of treatment or even arbitrary administration of state powers, rather than instances
of purposeful or invidious discrimination, is insufficient to show discriminatory intent.
McKleskey v. Kemp, 481 U.S. 279, 292 (1987). Moreover, where a plaintiff challenges the

actions of correctional officials, exceptionally clear proof of discrimination is required.
Fuller v. Georgia Bd. of Pardons and Paroles, 851 F.2d 1307, 1310 (11th Cir. 1988).
Since this case is before the court on a properly supported motion for summary
judgment submitted by the defendants, Files bears the burden of producing evidence which
would be admissible at trial sufficient to show that (1) the defendants provided more
favorable treatment to other similarly situated inmates, i.e., inmates received at Kilby with
a sentence of life without parole; and (2) the decision to deny him favorable treatment

resulted from intentional discrimination. Celotex, 477 U.S. at 322–24; Anderson, 477 U.S.
at 249 (To preclude summary judgment, plaintiff must present significant probative
evidence showing defendants provided more favorable treatment to similarly situated
persons and did so as the result of intentional discrimination.); Arlington Heights, 429 U.S.
at 265 (At the summary judgment stage, the plaintiff must produce specific, substantial
evidence that the defendants intentionally discriminated against him due to a
constitutionally protected interest.); E & T Realty Company v. Strickland, 830 F.2d 1107,

1114 (11th Cir. 1987), cert. denied, 485 U.S. 961 (1988) (Intentional discrimination on the
part of the defendants in providing the challenged disparate treatment is required. “Mere
error or mistake in judgment” or “[e]ven arbitrary administration of a statute, without
purposeful discrimination, does not violate the equal protection clause.”). The plaintiff
cannot rest on conclusory allegations of a constitutional violation to defeat summary
24
judgment nor is “[t]he mere existence of a scintilla of evidence in support of [his] position”
sufficient to avoid summary judgment. Anderson, 477 U.S. at 252; Waddell, 276 F.3d at
1279 (conclusory allegations based solely on subjective beliefs are insufficient to oppose

summary judgment).
Here, Files fails to identify any similarly situated inmate—i.e., an inmate transferred
from the Talladega County Jail sentenced to life without parole—who received differential
favorable treatment from the defendants. Thus, Files’ “equal protection claim necessarily
fails first because he has not [asserted] that he was treated differently from other, similarly
situated prisoners.” Sweet, 467 F.3d at 1319. This claim likewise provides no basis for
relief

because [Files] has not alleged . . . that he was treated differently on account
of some form of invidious discrimination tied to a constitutionally protected
interest. He has not even claimed that he was treated differently from others
because of race, religion, or national origin. See Snowden v. Hughes, 321
U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944) (“The unlawful administration .
. . of a state statute fair on its face, resulting in its unequal application to
those who are entitled to be treated alike, is not a denial of equal protection
unless there is shown to be present in it an element of intentional or
purposeful discrimination.”); McQueary v. Blodgett, 924 F.2d 829, 835 (9th
Cir.1991) (rejecting a claim that a state prisoner’s equal protection rights
were violated because he received a longer sentence than some other
prisoners and holding that “a mere demonstration of inequality is not enough;
the Constitution does not require identical treatment. There must be an
allegation of invidiousness or illegitimacy in the statutory scheme before a
cognizable claim arises: it is a settled rule that the Fourteenth Amendment
guarantees equal laws, not equal results.” (internal quotation marks
omitted)); see also Cruz v. Skelton, 543 F.2d 86, 92–93 (5th Cir.1976)
(affirming dismissal of prisoner’s equal protection claim because there was
no allegation of “‘invidious discrimination’ based on such considerations as
race, religion, national origin, or poverty”).

25
Sweet, 467 F.3d at 1319 (emphasis in original). Thus, Files is entitled to no relief on his
claim of an equal protection violation.
D. Conspiracy

Files contends that the defendants entered into a conspiracy to deprive him of his
constitutional rights. Doc. 13 at 6 (The defendants “conspired together, in an alleged
conspiracy against the Plaintiff[.]”). However, other than this conclusory allegation, no
factual details to support or describe the alleged conspiracy are pled. As a consequence,
Files has failed to state a plausible conspiracy claim.
Applicable federal law directs that in order to state a conspiracy claim cognizable
under 42 U.S.C. § 1983 a plaintiff “must show an underlying actual denial of [his]

constitutional rights.” GJR Investments, Inc. v County of Escambia, Fla., 132 F.3d 1359,
1370 (11th Cir. 1998), rev’d on other grounds, see Randall v. Scott, 610 F.3d 707, 709
(11th Cir. 2010). “[A] plaintiff ‘must show that the parties ‘reached an understanding’ to
deny the plaintiff his or her rights [and] prove an actionable wrong to support the
conspiracy.” Bailey v. Board of County Comm'rs of Alachua County, 956 F.2d 1112, 1122
(11th Cir.) (quoting Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.), cert. denied,
500 U.S. 932 (1991)). “[T]he linchpin for conspiracy is agreement, which presupposes

communication.” Id. The mere stringing together of events, without a showing of contacts
demonstrating that an understanding was reached, is not sufficient. Harvey v. Harvey, 949
F.2d 1127, 1133 (11th Cir. 1992). In addition, vague and conclusory allegations of a
conspiracy are subject to dismissal. Fullman v. Graddick, 739 F.2d 553, 556–57 (11th Cir.
1984).
26
The simple allegation of a conspiracy made by Files is not based on any underlying
constitutional violation. The conspiracy claim therefore provides no basis for relief. Files
likewise fails to present any evidence that the defendants reached an understanding to deny

him any right, and his allegation of a conspiracy is so vague it fails to meet the minimal
pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. at 662, 678 (2009) (“A pleading
that offers ‘labels and conclusions . . . will not do.’ ”). Other than his conclusory allegation
of a conspiracy, Files presents nothing which suggests the existence of an actual conspiracy
by defendants to deprive Files of his constitutional rights. The plaintiff’s mere statement
that a conspiracy existed, without more, fails to state a claim upon which relief can be
granted. GJR Investments, 132 F.3d at 1370.

E Disposition of Constitutional Claims
Since the defendants did not act in violation of Files’ constitutional rights, they are
entitled to qualified immunity from the request for monetary damages made against them
in their individual capacities. Moreover, due to the lack of any violation of Files’
constitutional rights, he is likewise due no other relief from the defendants. Summary
judgment is therefore due to be granted in favor of the defendants on the claims alleging
violations of rights protected by the Constitution.

F. Supplemental Jurisdiction – State Tort of Outrage
In the amended complaint, Files seeks relief on a pendent state tort law claim of
outrage for the alleged violation of his due process rights. Doc. 13 at 8. Review of this
claim is appropriate only upon exercise of this court’s supplemental jurisdiction.

27
Two factors determine whether state law claims lacking an independent
federal jurisdictional basis can be heard in federal court with a federal claim
over which the court has jurisdiction. To exercise pendent jurisdiction [or
what is now identified as supplemental jurisdiction] over state law claims not
otherwise cognizable in federal court, “the court must have jurisdiction over
a substantial federal claim and the federal and state claims must derive from
a ‘common nucleus of operative fact.’” Jackson v. Stinchcomb, 635 F.2d 462,
470 (5th Cir.1981) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 86
S.Ct. 1130, 16 L.Ed.2d 218 (1966)). See generally C. Wright, A. Miller &
E. Cooper, Federal Practice and Procedure: Jurisdiction § 3567 pp. 443–47
(1975).

L.A. Draper and Son v. Wheelabrator Frye, Inc., 735 F.2d 414, 427 (11th Cir. 1984). The
exercise of supplemental jurisdiction is completely discretionary. United Mine Workers v.
Gibbs, 383 U.S. 715 (1966). As the court has jurisdiction over the claims alleging
violations of the Constitution and the claim alleging a violation of Files’ constitutional right
to due process has a common nucleus of fact with the state tort claim, the court deems it
appropriate to exercise supplemental jurisdiction over Files’ claim that the actions of the
defendants constituted outrage in violation of Alabama law.
Alabama law explains the tort of outrage in the following terms:
“[W]e now recognize that one who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another is
subject to liability for such emotional distress and for bodily harm
resulting from the distress. The emotional distress thereunder must be so
severe that no reasonable person could be expected to endure it. Any
recovery must be reasonable and justified under the circumstances,
liability ensuing only when the conduct is extreme. . . . By extreme we
refer to conduct so outrageous in character and so extreme in degree as to
go beyond all possible bounds of decency, and to be regarded as atrocious
and utterly intolerable in a civilized society.”
Lees v. Sea Breeze Health Care Ctr., Inc., 391 F. Supp. 2d 1103, 1106 (S.D. Ala. 2005);
Fitch v. Voit, 624 So.2d 542, 544 (Ala.1993).
28
While Alabama courts do recognize this tort, they have consistently deemed
it a “very limited cause of action that is available only in the most egregious
circumstances.” . . . . Alabama law [is clear that] a plaintiff cannot prevail
on an outrage claim unless [he/]she establishes that the defendant[s’]
conduct: “(1) was intentional or reckless; (2) was extreme and outrageous;
and (3) caused emotional distress so severe that no reasonable person could
be expected to endure it.”

Lees, 391 F. Supp. 2d at 1106 (internal quotation marks and citations omitted);
The record before the court establishes that the defendants’ challenged acts did not
rise to the level of extreme and outrageous conduct. Also, the record is devoid of any
evidence that Files suffered the requisite severe emotional distress. Accordingly, Files is
due no relief on his state tort claim of outrage.
VI. CONCLUSION
For the above stated reasons, it is ORDERED that:
1. The defendants’ motion for summary judgment is GRANTED.
2. Judgment is GRANTED in favor of the defendants on all of the plaintiff’s claims.
3. This case is DISMISSED with prejudice.
4. The costs of this proceeding are taxed against the plaintiff.
A separate final judgment will be entered.
DONE on this the 26th day of January, 2021.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987198. Public record. Not legal advice.