Pope v. Robinson

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL POPE, JR., }

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Plaintiff, }

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v. } Case No.: 2:20-cv-01399-RDP

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SHAMARION DOZIER and MERRILL }

SHOULDERS, }

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Defendants. }

MEMORANDUM OPINION

This matter is before the court on Defendants’ Motion for Summary Judgment. (Doc. #

66). The motion is fully briefed and ripe for review. (Docs. # 67; 68; 75; 76; 80). For the reasons

explained below, Defendants’ Motion is due to be granted in part and denied in part.

I. Background1

Plaintiff Michael Pope, Jr. is a federal prisoner who was formerly incarcerated at Limestone

Correctional Facility (“Limestone”) in the Alabama Department of Corrections (“ADOC”) system.

(Doc. # 34). Plaintiff claims that, on the night of June 28, 2020, he was beaten and stabbed by three

other inmates.2 (Id.). Plaintiff filed this action against the officers who were on duty that night,

1 The facts set out in this opinion are gleaned from the parties’ submissions and the court’s own examination

of the record. All reasonable doubts about the facts have been resolved in favor of the non-moving party. See Info.

Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary

judgment purposes only. They may not be the actual facts that could be established through live testimony at trial. See

Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

2 Some or all of the events in question may have occurred after midnight, meaning they actually took place

in the early morning on June 29, 2020. Therefore, when the court refers to “the night of June 28, 2020” this may also

encompass the early morning hours of June 29, 2020.

claiming that they failed to intervene to stop the attack and refused to provide medical care to

Plaintiff after he was attacked. (Id.).

In the summer of 2020, Plaintiff was housed in Limestone’s Restricted Housing Unit D

(“Unit D”). (Doc. # 68 at 5 ¶ 5); (Doc. # 76 at 2 ¶ 5). Defendants Shamarion Dozier and Merrill

Shoulders were correctional officers who worked in Unit D on the third shift, from 10 p.m. to 6

a.m. (Doc. # 68 at 5 ¶ 7); (Doc. # 76 at 2 ¶ 7).

Unit D housed maximum security inmates with a record of violence in prison. (Doc. # 76

at 10 ¶¶ 69-70); (Doc. # 67-2 at 10); (Doc. # 67-3 at 6-7, 18-20). All Unit D inmates were assigned

“close custody” status. (Doc. # 67-6 at 14). According to Jeremy Pelzer, a Limestone lieutenant,

“close custody is the highest level of custody you can have other than being on death row.” (Id.).

Because of this, inmates in Unit D were housed alone in separate cells and were not allowed out

of their cells at the same time. (Doc. # 76 at 11 ¶¶ 71-72); (Doc. # 67-3 at 8). When a Unit D

inmate was allowed out of his cell, he was supposed to be handcuffed behind his back and

supervised by at least two guards. (Doc. # 76 at 11 ¶¶ 74-75); (Doc. # 67-3 at 14); (Doc. # 67-6 at

15). As a result of these precautions, inmate-on-inmate violence in Unit D was rare, as inmates did

not normally have the opportunity to interact outside of their cells. (Doc. # 67-6 at 16).

Sunday, June 28, 2020, however, was not a normal day in Unit D. During the day shift,

several inmates broke the sprinkler heads in their cells, which caused flooding throughout the

dormitory. (Doc. # 68 at 6 ¶ 9); (Doc. # 76 at 3 ¶ 9); (Doc. # 75-2 at 5). This was done to protest

living conditions in Unit D. (Doc. # 76 at 13 ¶¶ 98-99); (Doc. # 75-2 at 9).

One of the leaders of this protest was Unit D inmate Satarus Smith.3 (Doc. # 76 at 11 ¶ 77);

(Doc. # 67-2 at 13); (Doc. # 75-2 at 9). Smith was believed to be the leader of all factions of the

3 While at Limestone, Smith went by the nickname “Little Lewis.” (Doc. # 76 at 11 ¶ 77); (Doc. # 67-2 at

13); (Doc. # 75-2 at 9).

Crips gang within the ADOC, and prison officials considered him one of the most dangerous

inmates in the Alabama prison system. (Doc. # 76 at 11 ¶¶ 78-79); (Doc. # 67-6 at 9, 19); (Doc. #

75-1 at 12); (Doc. # 75-20).

On the day of the protest, Plaintiff got into an argument with Smith. (Doc. # 68 at 6 ¶ 11);

(Doc. # 76 at 3 ¶ 11). Plaintiff—who was not part of the protest—was angry because water from

the broken sprinklers flooded his cell and damaged some of his property. (Doc. # 76 at 13 ¶ 101);

(Doc. # 75-2 at 9). Plaintiff was further upset when he slipped on water in his cell and fell down.

(Doc. # 75-22 at 2). After his fall, Plaintiff yelled at Smith from inside his cell and called Smith a

“bitch.” (Doc. # 68 at 6 ¶ 11); (Doc. # 76 at 3 ¶ 11, 13 ¶¶ 101-02); (Doc. # 75-2 at 9). Before this,

Plaintiff had no prior negative relationship with Smith. (Doc. # 68 at 6 ¶ 12); (Doc. # 76 at 3 ¶ 12).

There is no evidence that Defendants or any other correctional officers were aware of the

argument.4

About 20 or 30 minutes later, Plaintiff went to the infirmary to get checked out due to his

fall. (Doc. # 68 at 6 ¶ 13); (Doc. # 76 at 3 ¶ 13); (Doc. # 75-22 at 2). He was given acetaminophen

and escorted back to Unit D, where he was locked back into his cell. (Doc. # 67-4 at 2); (Doc. #

67-1 at 16-17). The medical records from this visit make no mention of Plaintiff having facial

bruising, stab wounds, or any other injuries. (Doc. # 67-4 at 2); (Doc. # 76 at 14 ¶ 104); (Doc. #

75-8).

4 Plaintiff argues that Defendants must have been aware of the argument because they would have been

informed about it by day shift officers they relieved during the shift change. (Doc. # 76 at 14 ¶¶ 107-09). However,

Plaintiff has not pointed to the summary judgment evidence indicating that the day shift officers were aware of the

argument. Without such evidence, there is no Rule 56 basis for inferring that those officers told Defendants about the

argument.

This all occurred before Defendants came on duty, as their shift did not begin until 10 p.m.5

(Doc. # 68 at 5-6 ¶¶ 7, 15); (Doc. # 75-22). When Defendants arrived in Unit D, they encountered

a chaotic scene; water was rushing out of several cells, the dorm was flooded, and multiple inmates

were out of their cells attempting to clean up. (Doc. # 68 at 6 ¶ 16); (Doc. # 76 at 3 ¶ 16); (Doc. #

67-3 at 27). This included both general population inmates and Unit D inmates. (Doc. # 68 at 6 ¶

17); (Doc. # 76 at 3 ¶ 17); (Doc. # 67-3 at 27). Officer Shoulders was concerned about the

commingling of inmates of different security levels, so he had the general population inmates

return to their own housing section. (Doc. # 68 at 7 ¶ 20); (Doc. # 76 at 4 ¶ 20). What happened

next, however, is in dispute.

According to Plaintiff, after Officer Shoulders sent the general population inmates away,

Defendants allowed eight to ten Unit D inmates out of their cells at the same time, without

handcuffs or shackles. (Doc. # 76 at 14 ¶ 111); (Doc. # 67-1 at 17); (Doc. # 75-2 at 5, 10-11, 13-

13). This included both Plaintiff and Satarus Smith. (Doc. # 76 at 15 ¶ 112-14); (Doc. # 67-1 at

18-19); (Doc. # 75-2 at 5, 11).

On the other hand, Defendants claim that they put all of the Unit D inmates back into their

cells, then allowed them out of their cells one at a time—in handcuffs—to help clean up the

flooding. (Doc. # 67-2 at 13-14); (Doc. # 67-3 at 29-30). And, Defendants testified that they never

allowed Plaintiff or Smith out of their cells at any point that night. (Doc. # 67-2 at 14-15); (Doc. #

67-3 at 31-32). While Officer Dozier testified definitively that he did not allow Satarus Smith out

of his cell, Officer Shoulders testified that he did not remember whether Smith was allowed out of

his cell that night. (Doc. # 67-2 at 14); (Doc. # 67-3 at 32). Michael Peeks—an inmate who lived

5 Officer Dozier was early for his shift that day, and he arrived in Unit D while Plaintiff was in the infirmary.

(Doc. # 75-22); (Doc. # 67-3 at 28). Officer Shoulders arrived after Plaintiff returned from the infirmary. (Doc. # 75-

22); (Doc. # 67-3 at 28).

in the cell next to Plaintiff’s in Unit D—testified that he saw Defendants let both Plaintiff and

Smith out of their cells on the night of the flooding. (Doc. # 75-2 at 4-5, 13).

Plaintiff states that he asked Defendants to let him out of his cell so that he could help clean

up. (Doc. # 76 at 4 ¶ 22). At this point, according to Plaintiff, there were already multiple

unrestrained inmates out of their cells, including Satarus Smith. (Id. ¶ 23); (Doc. # 67-1 at 19-22).

However, Plaintiff was not troubled about being out of his cell and was not afraid of any of the

inmates that were already out of their cells. (Doc. # 76 at 4 ¶ 23).

Plaintiff claims that, when he got out of his cell, Smith told Plaintiff that he wanted to meet

and talk in Smith’s cell. (Doc. # 67-1 at 19-22). Plaintiff agreed, and Smith asked Plaintiff to meet

him there because he was going to talk to Officers Dozier and Shoulder first. (Id.). Smith then

walked over to talk with Defendants, and Plaintiff walked in the same direction, towards Smith’s

cell. (Id.). At this point, Defendants were sitting at a table facing Smith’s cell, about ten to fifteen

feet away. (Id. at 20). Plaintiff was not afraid to talk to Smith because he did not believe Smith

would try to hurt him in front of two correctional officers. (Id. at 22).

Plaintiff walked into Smith’s cell, and when he turned around, he saw Smith and two other

inmates coming into the cell and blocking the exit. (Id. at 21-22). Smith pulled out a homemade

icepick and attempted to stab Plaintiff with it.6 (Id.). Plaintiff blocked the first knife strike and

began trying to escape the cell. (Id.). Smith then stabbed Plaintiff in the back of the head, and

Plaintiff yelled out: “What the fuck? Y’all stabbing me?” (Doc. # 1 at 15). At some point, Plaintiff

was knocked to the ground and lost consciousness. (Id.). When Plaintiff came to, Smith and the

other inmates were kicking him in the face and repeatedly stabbing him in the back. (Id.). The cell

6 An icepick is a piece of metal shaped like a pencil that is sharpened to a point with a handle on it. (Doc. #

75-2 at 12).

door remained open during the attack, and Plaintiff could see Defendants from inside the cell. (Id.);

(Doc. # 67-1 at 20-21).

Plaintiff claims that Defendants watched the entire attack but did nothing. (Id. at 22).

Defendants did not use the mace chemical spray they carried with them to break up the fight; they

did not order the attackers to stop; nor did they call for help. (Doc. # 76 at 17 ¶¶ 140-42); (Doc. #

67-2 at 9). Defendants deny all of this and claim they never saw any part of the attack. (Doc. # 67-

3 at 31); (Doc. 67-5 at 8).

According to Plaintiff, he eventually escaped the cell and made his way over to the table

where Defendants were sitting. (Doc. # 67-1 at 22-23). Plaintiff was bleeding and visibly wounded;

his lip was busted, his eye was swelling, and he had been stabbed about twenty times in his head,

chest, and back. (Id. at 23). Plaintiff was not wearing a shirt when he was attacked, so the wounds

on his chest and back were clearly visible. (Id. at 23).

Rather than taking him to the infirmary, Defendants took Plaintiff back to his cell, then

briefly to the shower, and then back to his cell. (Id.). Plaintiff claims that he asked Defendants to

take him to the infirmary, but Defendants threatened him by saying that he would be labeled a

snitch if he went to the infirmary. (Id. at 15, 23-25).7 Because of this, Plaintiff did not go to the

infirmary on the day of the attack. (Id.).

7 In his deposition, Plaintiff testified about the alleged threats:

Q. Once you got back to your cell did you say anything to either Shoulders or Dozier?

A. Yeah, I needed to go to the infirmary.

Q. What did they say?

A. They told me that if I got help that I’d be -- I’d get them in trouble.

Q. Who said that?

A. Both of them. At different times. They said that if I -- if I got -- if I made them take me to

the infirmary, not only would I be getting the police in trouble but I’d be making them reveal who

jumped in me, so I’d be snitching.

Inmate Michael Peeks was inside his cell when the alleged attack occurred, so he did not

see what happened. (Doc. # 75-2 at 6). However, he did testify that sometime after Defendants let

Plaintiff out of his cell Officer Dozier brought Plaintiff back to his cell, then took him briefly to

the shower, and then returned him to his cell. (Id. at 6). Peeks noticed that Plaintiff was unusually

quiet inside his cell, and he asked Plaintiff if he was okay, but Plaintiff said no and that he did not

want to talk about it. (Id.).

A few days later, on July 2, 2020, Plaintiff was still in pain, so he asked Officer Shoulders

again to take him to the infirmary. (Doc. # 67-1 at 26). According to Plaintiff, Officer Shoulders

told him to say that he was suicidal and that his injuries were self-inflicted. (Id.). Plaintiff

understood from their conversation that Officer Shoulders would not take Plaintiff to the infirmary

unless he agreed, so he did. (Id.). When Plaintiff got to the infirmary, the nurse on duty saw

Plaintiff’s wounds and called a supervisor, who initiated an investigation. (Id.).

Defendants deny that they saw Plaintiff injured on the night of June 28, 2020. (Doc. # 67-

3 at 38). Officer Shoulders testified that he did not notice Plaintiff’s wounds until a few days later,

when he observed some “marks” on Plaintiffs body while conducting a standard security check.

(Id.). When he asked Plaintiff what happened, Plaintiff said he was suicidal, so Officer Shoulders

took him to the infirmary. (Id. at 38-39). But, according to Officer Shoulders, Plaintiff did not

mention anything about being stabbed nor did he give any explanation for his wounds other than

that he was suicidal. (Id.).

Medical records and photographs from July 2, 2020 confirm that Plaintiff had about twenty

puncture wounds extending from the back of his head and down his back and chest, as well as

bruising around his right eye and redness on his left cheek. (Doc. # 67-5 at 5, 30-32); (Doc. # 75-

(Doc. # 67-1 at 23).

9); (Doc. # 75-18). When Plaintiff’s injuries were photographed on July 2, 2020, they were not

actively bleeding and were beginning to heal. (Doc. # 75-5 at 13); (Doc. # 75-18). In the records

from the visit, Plaintiff’s wounds are described as “superficial” and “pinpoints.” (Doc. # 75-9 at

2); (Doc. # 67-5 at 5). A medical expert retained by Plaintiff stated: “The photographs reviewed

for this Report, taken on 07/02/20, importantly show that Mr. Pope’s wounds are not actively

bleeding and in fact are closing and appear scabbed over which indicates that these wounds were

not, at the time the photographs were taken, acute in nature and that significant healing had already

taken place.” (Doc. # 75-5 at 13). The expert also opined that Plaintiff’s wounds were consistent

with an assault and did not appear to be self-inflicted. (Id. at 12).

Additionally, in a recorded jail call placed on July 1, 2020, Satarus Smith discussed

harming another inmate on the evening of June 28, 2020. (Doc. # 75-21 at 1:20-2:00). During the

call, Smith stated, “Man, I shot another one. . . . an inmate this time.” (Id.). In prison jargon,

“shooting” can mean stabbing. (Doc. # 76 at 21 ¶ 188); (Doc. # 75-2 at 12-23); (Doc. # 75-1 at 20-

21); (Doc. # 75-3 at 12). During the call, Smith explained that the inmate was “talking crazy behind

the doors,” and he also mentions “pulling the sprinklers” and inmates being let out of their cells.

(Doc. # 75-21 at 1:20-2:00).

During the investigation of the attack, Scarlotte Robinson, one of the wardens at

Limestone, referenced this phone call in an email she sent to another Limestone warden on

Thursday July 9, 2020, stating:

During our investigation of the incident with Inmate Michael Pope, he would never

state who his alleged attacker was. Once he got to Donaldson today he provided the

name of the inmate Satarus Smith #238889BU. Captain Langford has reviewed the

phone calls made by Inmate Smith. Inmate Smith admitted on a phone call July 1,

2020, he “messed up” and he “shot another one”. Inmate Smith spoke of the busted

sprinkler heads and the inmate who tried to hang himself in the same phone call.

When the Officers provided the names of the inmates whom they had allowed out,

Inmate Smith’s name was never given. During our questioning of them one Officer

admitted to allowing two inmates out and the other admitted to allowing three

inmates out. It appears they have now lied during an investigation and Inmate Pope

was assaulted by another CLOSE custody inmate.

(Doc. # 75-14 at 2) (emphasis added).

On September 21, 2020, Plaintiff filed this action pursuant to 42 U.S.C. § 1983 against

Officers Dozier and Shoulders.8 (Doc. # 1). Defendants filed a Motion for Summary Judgment on

January 27, 2023, seeking dismissal of all of Plaintiff’s claims. (Doc. # 66).

II. Legal Standards

A. Summary Judgment Standard

Summary judgment is appropriate only when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

material “if, under the applicable substantive law, it might affect the outcome of the case.” Hickson

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004). A dispute is genuine “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson

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

The party seeking summary judgment bears the burden of informing the court of the basis

for its motion and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant satisfies

this burden, the non-movant must then go beyond the pleadings and present affirmative evidence

showing that there is a genuine issue for trial. Id. at 324; Fitzpatrick v. City of Atlanta, 2 F.3d 1112,

1116-17 (11th Cir. 1993).

8 Plaintiff originally included Warden Robinson as a Defendant as well, but Plaintiff dismissed his claims

against her by filing an amended complaint as a matter of course pursuant to Rule 15(a)(1) that alleged claims against

Officers Dozier and Shoulders only. Fed. R. Civ. P. 15(a)(1)(B); (Doc. # 5).

When determining whether there is a genuine issue for trial, the court must view the

evidence in the light most favorable to the non-moving party and must resolve all reasonable

doubts and justifiable inferences in the non-movant’s favor. Anderson, 477 U.S. at 255; Allen v.

Bd. of Pub. Educ., 495 F.3d 1306, 1314 (11th Cir. 2007). “[A]t the summary judgment stage the

judge’s function is not himself to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. Essentially, the

inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury

or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.

B. Qualified Immunity Standard

Qualified immunity shields government officials from liability for civil damages unless

their conduct violates “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Pearson v. Callahan,

555 U.S. 223, 231 (2009). To be eligible for qualified immunity, an officer must first prove that

he was acting within his discretionary authority when the alleged misconduct occurred. E.g.,

Richmond v. Badia, 47 F.4th 1172, 1179 (11th Cir. 2022).

An officer acts within his discretionary authority when his behavior is “(1) undertaken

pursuant to the performance of his duties, and (2) within the scope of his authority.” Harbert Int’l,

Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998); Est. of Cummings v. Davenport, 906 F.3d

934, 940 (11th Cir. 2018). An officer may still act within his discretionary authority even when

violating the Constitution. See Mikko v. City of Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017);

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). The relevant

question is “whether the act complained of, if done for a proper purpose, would be within, or

reasonably related to, the outer perimeter of an official's discretionary duties.” Harbert, 157 F.3d

at 1282 (quoting In re Allen, 106 F.3d 582, 594 (4th Cir. 1997)).

If the officer proves he was acting within his discretionary authority, then the burden shifts

to the plaintiff to demonstrate that qualified immunity is not appropriate by showing that (1) the

officer violated a constitutional right; and (2) that right was clearly established at the time. E.g.,

Richmond, 47 F.4th at 1179. Courts have discretion to decide which of these questions should be

addressed first in light of the circumstances of the particular case at hand. Pearson, 555 U.S. at

236.

“The relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled in part on other grounds by

Pearson, 555 U.S. at 236. There are three ways a right may be clearly established for qualified

immunity purposes:

(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.

Crocker v. Beatty, 886 F.3d 1132, 1137 (11th Cir. 2018) (per curiam) (internal quotation marks

omitted) (quoting Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291-92 (11th Cir. 2009)). In

the Eleventh Circuit, “only Supreme Court cases, Eleventh Circuit caselaw, and [state] Supreme

Court caselaw can ‘clearly establish’ law.” Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955

(11th Cir. 2003).

At summary judgment, even when considering whether a right is clearly established,

“courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.”

Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam). Rather, courts must “construe the evidence

in favor of the plaintiff and decide whether the defendant is entitled to qualified immunity under

the plaintiff’s version of the facts.” Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015).

This means that the “facts, as accepted at the summary judgment stage of the proceedings, may

not be the actual facts of the case.” Id. (citing McCullough v. Antolini, 559 F.3d 1201, 1202 (11th

Cir. 2009)). Nevertheless, courts must “view the facts from the plaintiff’s perspective because the

determinative issue . . . is ‘not which facts the parties might be able to prove’ but rather whether

‘certain given facts’ demonstrate a violation of clearly established law.” Id. (quoting Crenshaw v.

Lister, 556 F.3d 1283, 1289 (11th Cir. 2009) (per curiam)).

III. Discussion

Plaintiff alleges that Defendants violated the Eighth Amendment by failing to intervene

while he was attacked and by preventing him from going to the infirmary until three days

afterwards. (Doc. # 34). Plaintiff brings three Eighth Amendment claims against Defendants: (1)

failure to protect (Count I); (2) deliberate indifference to a serious medical need (Count II); and

(3) failure to intervene (Count III). (Id.). Defendants seek summary judgment on all three counts.

(Doc. # 66). For the reasons explained below, Defendants are not entitled to summary judgment

on Count I, but Counts II and III are both due to be dismissed.

A. Plaintiff has presented sufficient evidence to survive summary judgment on

his failure-to-protect claim.

The Eighth Amendment imposes a duty on correctional officers “to protect prisoners from

violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1970) (quoting

Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988)). However,

“not . . . every injury suffered by one prisoner at the hands of another . . . translates into

constitutional liability.” Id. at 834. Establishing an Eighth Amendment violation requires proving

that a prison official was deliberately indifferent to a substantial risk of serious harm. Id. at 828.

To establish deliberate indifference, a plaintiff must show that (1) a substantial risk of serious harm

objectively existed; (2) the official was subjectively aware of that risk; and (3) the official failed

to respond to the risk in an objectively reasonable manner. Caldwell v. Warden, FCI Talladega,

748 F.3d 1090, 1099 (11th Cir. 2014); Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003)

(per curiam).

“Whether a prison official had the requisite knowledge of a substantial risk is a question of

fact subject to demonstration in the usual ways, including inference from circumstantial evidence,

and a factfinder may conclude that a prison official knew of a substantial risk from the very fact

that the risk was obvious.” Farmer, 511 U.S. at 842 (citation omitted). However, a “generalized

awareness of risk” is insufficient to establish liability. Carter, 352 F.3d at 1350. Rather, “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.” Farmer, 511 U.S. at 837.

Here, Plaintiff claims that Defendants watched as three maximum-security inmates

knocked Plaintiff to the ground, beat him repeatedly, and stabbed him approximately twenty times.

(Doc. # 34). And Plaintiff claims that, despite having the ability to intervene, Defendants refused

to take any action whatsoever to protect him. (Id.). These allegations, if proven, demonstrate that

(1) Plaintiff objectively faced a substantial risk of serious harm; (2) Defendants were aware of that

risk; and (3) Defendants failed to respond to the risk in an objectively reasonable manner. See

Caldwell, 748 F.3d at 1099; Carter, 352 F.3d at 1349.

Defendants do not dispute that Plaintiff’s allegations, if proven, establish deliberate

indifference. Rather, Defendants argue that (1) there is no evidence that they witnessed the attack,

and (2) even if they had seen the attack, they were not in a position to intervene. (Doc. # 68).

Defendants’ arguments fail because Plaintiff has provided sufficient evidence from which a jury

could find that Defendants watched the attack and failed to intervene despite having the ability to

do so.9

Although there were no witnesses to the attack other than Plaintiff, his assailants, and

(allegedly) Defendants, Plaintiff has provided evidence supporting his version of events. First, it

is undisputed that Plaintiff sustained injuries consistent with an assault at some point between June

28 and July 2, 2020. Medical records and photographs from July 2, 2020 confirm that Plaintiff had

about twenty puncture wounds extending from the back of his head and down his back and chest,

as well as bruising around his right eye and redness on his left cheek. (Doc. # 67-5 at 5, 30-32);

(Doc. # 75-9); (Doc. # 75-18). A medical expert retained by Plaintiff concluded that these injuries

were not self-inflicted but rather were consistent with an assault. (Doc. # 75-5 at 12). Moreover,

Plaintiff must have sustained these injuries at some time between his daytime visit to the infirmary

on June 28, 2020—when no bruises or stab wounds were observed—and his visit to the infirmary

three days later on July 2, 2020—when his injuries were first documented. (Compare Doc. # 75-8

with Doc. # 75-9).

There is also evidence that Defendants allowed Plaintiff and his attackers out of their cells

on the night of June 28, 2020. Michael Peeks—the inmate in the cell next door to Plaintiff—

testified that he saw Defendants let both Plaintiff and Satarus Smith out of their cells without

9 However, to be clear, there is no evidence that Defendants knew of any specific risk to Plaintiff before the

attack began. Indeed, Plaintiff himself was not aware of any danger before that point. By his own account, Plaintiff

asked to be allowed out of his cell despite knowing that multiple other Unit D inmates were already out of their cells

unrestrained, including Satarus Smith. (Doc. # 76 at 4 ¶¶ 22-23). In spite of his argument with Smith earlier in the

day, Plaintiff voluntarily left his cell, and he went into Smith’s cell willingly. (Id.). Plaintiff did not believe Smith

posed any danger to him until Smith attacked him. (Id.). Accordingly, it is reasonable to understand that Defendants

could not be expected to know of a risk that Plaintiff himself was unaware of. (Id.). While it is true that allowing

multiple Unit D inmates out of their cells together violated Limestone policy, “merely negligent failure to protect an

inmate from attack does not justify liability under section 1983[.]” Carter, 352 F.3d at 1350 (quoting Brown v. Hughes,

894 F.2d 1533, 1537 (11th Cir. 1990) (per curiam)); Goodman v. Kimbrough, 718 F.3d 1325, 1334 (11th Cir. 2013)

(“[T]he fact that the officers deviated from policy or were unreasonable in their actions—even grossly so—does not

relieve [the plaintiff] of the burden of showing that the officers were subjectively aware of the risk; in other words, he

cannot say, ‘Well, they should have known.’”).

restraints that night. (Doc. # 75-2 at 4-5, 13). This is consistent with Plaintiff’s claims. And,

Defendants have not identified any other time besides June 28 on which the attack might have

occurred.

Additionally, Plaintiff has provided evidence supporting his claim that Satarus Smith was

the inmate who stabbed him. In a recorded jail call that occurred on July 1, 2020, Smith confides

that he “shot” another inmate on the previous Sunday night. (Doc. # 75-21 at 1:20-2:00). Smith

says that the inmate was “talking crazy behind the doors,” and he also mentions “pulling the

sprinklers” and inmates being let out of their cells. (Id.). Plaintiff produced evidence that the term

“shooting” is often used by prisoners to mean “stabbing.” (Doc. # 76 at 21 ¶ 188); (Doc. # 75-2 at

12-23); (Doc. # 75-1 at 20-21); (Doc. # 75-3 at 12). Plaintiff also produced an email in which a

Limestone warden describes this recording and concludes, “[i]t appears [Defendants] have now

lied during an investigation and Inmate Pope was assaulted by another CLOSE custody inmate.”

(Doc. # 75-14 at 2). A reasonable jury could therefore infer that Smith admitted to stabbing

Plaintiff on the night of June 28, 2020.

Finally, Plaintiff testified that he saw Defendants watching the attack. (Doc. # 67-1 at 20-

22). According to Plaintiff, the cell doors were open during the attack, and Defendants were sitting

only ten to fifteen feet away. (Id.). Plaintiff also yelled out that he was being stabbed. (Doc. # 1 at

15). It is not entirely clear how long the attack lasted because Plaintiff briefly lost consciousness

after being knocked to the ground. (Id.). But, the attack lasted long enough for Plaintiff to block

Smith’s first knife strike, attempt to escape, get stabbed in the back of the head, yell out, be

knocked to the ground, pass out, wake up, be repeatedly kicked and stabbed (approximately twenty

times) while on the ground, stand up, and eventually escape from the cell. (Id.). During this time,

Plaintiff claims Defendants made no attempt to stop the attack: they did not try to break up the

fight; they did not use their mace chemical spray on the assailants; they did not call for backup;

and they did not even order the attackers to stop. (Id.); (Doc. # 76 at 17 ¶¶ 140-42); (Doc. # 67-2

at 9). This evidence is sufficient to permit a jury to find that Defendants had the ability to intervene

in the attack but chose not to. See Woodyard v. Ala. Dep’t of Corr., 700 F. App’x 927, 934 (11th

Cir. 2017) (per curiam) (holding that a correctional officer was not entitled to summary judgment

because reasonable jurors could find that the officer watched as an inmate was assaulted and did

not immediately call for backup).

Based on the Rule 56 record, a reasonable jury could find that Defendants violated

Plaintiff’s Eighth Amendment rights by failing to intervene while Plaintiff was attacked.

Furthermore, it is clearly established that Defendants’ alleged conduct is unconstitutional.

Eleventh Circuit “precedents have made clear, repeatedly, that the Constitution requires that prison

officials take reasonable measures to protect the safety of the inmates.” Woodyard, 700 F. App’x

at 934. Moreover, the Eleventh Circuit has explicitly determined that “the Supreme Court made

clear in Farmer that prison officials have a duty ‘to protect prisoners from violence at the hands

of other prisoners,’ and that an official may be liable if he knows of and disregards a substantial

risk of an inmate-on-inmate attack ‘by failing to take reasonable measures to abate [the risk].’”

Scott v. Miami Dade County, 657 F. App’x 877, 885 (11th Cir. 2016) (per curiam) (alteration in

original) (citation omitted) (quoting Farmer, 511 U.S. at 847). Thus, any reasonable officer should

have known that he could not, in keeping with that standard, refuse to take any action while

watching an inmate being attacked. See Woodyard, 700 F. App’x at 934 (citing United States v.

Lanier, 520 U.S. 259, 271 (1997) (“[A] general constitutional rule already identified in the

decisional law may apply with obvious clarity to the specific conduct in question.”)). Accordingly,

Defendants are not entitled to qualified immunity from Plaintiff’s failure-to-protect claim.

B. Plaintiff’s claim for deliberate indifference to a serious medical need is due to

be dismissed because Plaintiff has not shown that the delay in receiving

medical treatment exacerbated his injuries.

“Deliberate indifference to a prisoner’s serious medical needs is a violation of the Eighth

Amendment.” Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007) (citing Estelle v.

Gamble, 429 U.S. 97, 104 (1976)). To prove deliberate indifference based on the failure to provide

medical care, a plaintiff must prove that (1) he had an objectively serious medical need; (2) the

defendant acted with deliberate indifference to that need; and (3) the defendant’s indifference

caused the plaintiff’s injury. Id.

A serious medical need is “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize the necessity for

a doctor’s attention.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)

(quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H. 1977)), overruled in part on other

grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002). A prison official acts with deliberate

indifference “when he knows that an inmate is in serious need of medical care, but he fails or

refuses to obtain medical treatment for the inmate.” Farrow v. West, 320 F.3d 1235, 1246 (11th

Cir. 2003) (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1425 (11th Cir. 1997)).

“Alternatively, ‘[e]ven where medical care is ultimately provided, a prison official may

nonetheless act with deliberate indifference by delaying the treatment of serious medical needs,

even for a period of hours.’” Id. (alteration in original) (quoting McElligott v. Foley, 182 F.3d

1248, 1255 (11th Cir. 1999)). When determining whether a delay in medical treatment constitutes

deliberate indifference, courts consider: “(1) the seriousness of the medical need; (2) whether the

delay worsened the medical condition; and (3) the reason for delay.” Goebert, 510 F.3d at 1327.

“An inmate who complains that delay in medical treatment rose to a constitutional violation must

place verifying medical evidence in the record to establish the detrimental effect of the delay in

medical treatment to succeed.” Hill, 40 F.3d at 1187.

This is not a case in which Plaintiff received no medical treatment at all; rather, Plaintiff

claims medical treatment was improperly delayed for three days. (Doc. # 34). Therefore, Plaintiff

must demonstrate that this delay exacerbated his injuries. See Hill, 40 F.3d at 1187-88. However,

the record does not support such a finding.

The undisputed evidence shows that when Plaintiff was taken to the infirmary on July 2,

2020, his wounds were not actively bleeding and were beginning to heal. (Doc. # 75-5 at 13); (Doc.

# 75-18). In the records from that visit, Plaintiff’s wounds are described as “superficial” and

“pinpoints.” (Doc. # 75-9 at 2); (Doc. # 67-5 at 5). Additionally, Plaintiff’s own retained expert

concluded that the photographs taken on July 2, 2020 “show that [Plaintiff’s] wounds are not

actively bleeding and in fact are closing and appear scabbed over which indicates that these

wounds were not, at the time the photographs were taken, acute in nature and that significant

healing had already taken place.” (Doc. # 75-5 at 13). There is no evidence in the record indicating

that Plaintiff’s wounds required stiches, nor that they had become infected or otherwise

exacerbated in any way by the delay in medical treatment. There is also no evidence that Plaintiff

attended any follow-up visits for treatment of his injuries. Therefore, Plaintiff has not satisfied his

obligation to provide “verifying medical evidence” establishing “the detrimental effect of the delay

in medical treatment.” See Hill, 40 F.3d at 1187. As such, Plaintiff has not met his burden to prove

the existence of a genuine issue for trial on this claim, and Defendants are entitled to summary

judgment. See, e.g., Celotex, 477 U.S. at 324.

C. Plaintiff’s failure-to-intervene claim is due to be dismissed.

In support of this claim, Plaintiff alleges that: (1) Defendants each saw the other fail to

protect Plaintiff and act with deliberate indifference to Plaintiff’s serious medical needs; (2) each

had the opportunity to prevent the other from doing so; and (3) Defendants nonetheless each failed

to take reasonable steps to prevent each other from failing to protect Plaintiff and failed to take

reasonable steps to prevent each other from acting with deliberate indifference to Plaintiff’s serious

medical needs. (Doc. # 34 at 7).

“Prison correctional officers may be held directly liable under § 1983 if they fail or refuse

to intervene when a constitutional violation occurs in their presence.” Terry v. Bailey, 376 F. App’x

894, 896 (11th Cir. 2010) (per curiam) (citing Ensley v. Soper, 142 F.3d 1402, 1407 (11th Cir.

1998)). “However, in order for liability to attach, the officers must have been in a position to

intervene.” Id. And, “[o]f course, a failure-to-intervene claim requires an underlying constitutional

violation.” Williams v. Radford, 64 F.4th 1185, 1199 (11th Cir. 2023); Sebastian v. Ortiz, 918 F.3d

1301, 1312 (11th Cir. 2019) (“Plainly, an officer cannot be liable for failing to stop or intervene

when there was no constitutional violation being committed).

Accordingly, Plaintiff cannot maintain a failure-to-intervene claim based on Defendants’

alleged failure to “prevent” each other from “ignoring” Plaintiff’s serious medical needs. This is

because, as discussed above, Plaintiff’s claim for deliberate indifference to a serious medical need

is due to be dismissed. So, there is no underlying constitutional violation to support the failure-to-

intervene claim.

Plaintiff also alleges that Defendants each failed to intervene to stop the other from failing

to protect Plaintiff from the attack. (Doc. # 34 at 7). Thus, Plaintiff asserts that each Defendant

should have compelled the other Defendant to intervene in the attack. However, Plaintiff cites not

caselaw to support the proposition that a non-supervisory correctional officer may be held liable

for failing to compel another officer to take action to protect an inmate. (Doc. # 76 at 30). Indeed,

Plaintiff cites no caselaw supporting this claim at all. (/d.). Nor has Plaintiff identified what

“reasonable steps” Defendants should have taken to “prevent each other from failing to protect

Plaintiff.” (Doc. # 34 at 7). Therefore, Defendants’ are entitled to summary judgment on this claim.

IV. Conclusion

For the reasons discussed above, Defendants’ Motion for Summary Judgment (Doc. # 66)

is due to be granted in part and denied in part. It is due to be granted as to Count II (deliberate

indifference to a serious medical need) and Count III (failure to intervene), and those claims are

due to be dismissed. However, the Motion is due to be denied to the extent it seeks dismissal of

Count I (failure to protect). A separate order in accordance with this memorandum opinion will be

entered.

DONE and ORDERED this June 12, 2023.

UNITED STATES DISTRICT JUDGE

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