IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

JEREMIAH W. GREEN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) CIVIL ACTION NO. 2:06-cv-667-WKW-WC 

 ) 

ELMORE COUNTY JAIL, et al., ) 

 ) 

 Defendants. ) 

DEFENDANT, JAIL WARDEN SUE ROBERTS’S, REPLY

TO THE PLAINTIFF’S RESPONSE TO DEFENDANT’S SPECIAL REPORT

 COMES NOW Elmore County, Alabama, Jail Warden Sue Roberts, Defendant in the 

above-styled cause, and submits her Reply to the Plaintiff’s Response to Defendant’s Special 

Report. 

INTRODUCTION

 On October 25, 2006, Defendant Sue Roberts, Warden of the Elmore County, Alabama 

Jail, submitted her Special Report to this Court. See Doc. #16. In her Special Report, Warden 

Roberts explained at length why she is entitled to immunity to the Plaintiff’s allegations or, 

alternatively, why the Plaintiff’s claims against her are due to be dismissed. First, Warden 

Roberts argued that all official capacity claims against her must fail based on Eleventh 

Amendment immunity and because, under 42 U.S.C. § 1983, she is not a “person.” Second, 

Warden Roberts argued that the Plaintiff’s failure to comply with the Prison Litigation Reform 

Act (PLRA) precludes Plaintiff’s prosecution of this suit. Next, Warden Roberts pointed out that 

she had no personal involvement in the constitutional violations alleged by the Plaintiff and, 

therefore, cannot be held liable for any purportedly infirm conduct or conditions. Finally, 

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Warden Roberts contended that she is entitled to summary judgment based on qualified 

immunity. 

 The Plaintiff filed a preliminary response to the Defendant’s Special Report on or about 

November 13, 2006, in which the Plaintiff attempted to rebut a select few of Warden Roberts’s 

arguments. See Plaintiff’s Preliminary Response (Doc. #20). In addition to his preliminary 

response, the Plaintiff moved for an extension of time, for leave to conduct discovery, to stay 

proceedings, and to compel Defendant Roberts to comply with the Court’s Order of August 17, 

2006. See Docs. #21, 22, 23. This Court granted the Plaintiff’s motion for an extension of time, 

giving him until December 7, 2006 to file a response to Defendant Roberts’s Special Report 

(Order of November 15, 2006) (Doc. #26), granted in part and denied in part the Plaintiff’s 

motion to compel (Order of November 15, 2006) (Doc. #27), and denied Plaintiff’s motion to 

stay proceedings (id.) and motion for leave to conduct discovery (Order of November 15, 2006) 

(Doc. #25). On December 8, 2006, the Plaintiff requested a second extension of time in which to 

respond to Defendant Roberts’s Special Report (see Doc. #29), followed six days later by yet 

another motion for extension of time. See Doc. #34. Then, on December 20, 2006, the Court 

construed Plaintiff’s notice to the Court as a motion for extension of time and granted said 

motion. See Docs. # 38, 39. Ultimately, on January 18, 2007, the Plaintiff filed a second 

Response to Defendant Roberts’s Special Report. 

 Despite the greatly enlarged time in which to do so, the Plaintiff has failed to rebut any 

argument asserted by the Defendant and has been unable to present a genuine issue of material 

fact. Consequently, Warden Sue Roberts is due to be granted summary judgment and all claims 

against her dismissed. 

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DISCUSSION

I. ALL CLAIMS AGAINST WARDEN ROBERTS IN HER OFFICIAL CAPACITY 

 MUST FAIL BASED ON ELEVENTH AMENDMENT IMMUNITY AND 

 BECAUSE ROBERTS IS NOT A “PERSON” UNDER 42 U.S.C. § 1983. 

 Warden Roberts argued in her Special Report that Eleventh Amendment immunity bars 

the Plaintiff’s claims against her in her official capacity. See Special Report (Doc. #16), p. 6; 

Parker v. Williams, 862 F.2d 1471, 1476 (11th Cir. 1989) (holding a sheriff sued in his official 

capacity is entitled to Eleventh Amendment immunity); Free v. Granger, 887 F.2d 1552, 1557 

(11th Cir. 1989) (holding that a sheriff sued in his official capacity is entitled to Eleventh 

Amendment immunity); Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990) 

(holding a deputy sheriff sued in his official capacity is entitled to Eleventh Amendment 

immunity); Lancaster v. Monroe County, 116 F.3d 1419, 1430-31 (11th Cir. 1997) (extending 

Eleventh Amendment immunity to include jailers employed by county sheriffs). Although the 

Plaintiff has offered several arguments in response, none of them provide a legitimate reason to 

deny Defendant Roberts Eleventh Amendment immunity. Consequently, Warden Sue Roberts is 

entitled to Eleventh Amendment immunity to all claims against her in her official capacity. 

 In his Preliminary Response to Defendant Roberts’s Special Report, the Plaintiff initially 

addressed Warden Roberts’s claim of Eleventh Amendment immunity by citing Carr v. City of 

Florence, Ala., 916 F.2d 1521 (11th Cir. 1990) for the proposition that there are “two major 

exceptions to a State’s Eleventh Amendment immunity.” Plaintiff’s Preliminary Response 

(Doc. #20), p. 5. As the Plaintiff correctly noted, Carr identified two exceptions to Eleventh 

Amendment immunity: (1) “Congress can abrogate eleventh amendment immunity without the 

state’s consent when it acts pursuant to the enforcement provisions of section 5 of the fourteenth 

amendment,” Carr, 916 F.2d at 1524 citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 87 

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L. Ed. 2d 171 (1985); and (2) “a state may waive its immunity expressly through legislative 

enactment.” Carr, 916 F.2d at 1524. However, here, as in Carr, “[n]either of these exceptions 

apply....Congress has not abrogated eleventh amendment immunity in section 1983 cases....The 

state of Alabama has not waived its immunity.” Id. at 1525 (footnote and citations omitted). 

 Next, the Plaintiff appeared to argue – albeit unsuccessfully – that the Elmore County 

Jail’s one-day incarceration of him, a federal prisoner, abrogated the State of Alabama’s 

Eleventh Amendment sovereign immunity. As support for this theory, the Plaintiff cited Poarch 

Band of Creek Indians v. State of Alabama, 776 F. Supp. 550, 556 (S.D. Ala. 1991) and Parden 

v. Terminal Ry. of Alabama Docks Dep’t, 377 U.S. 184 (1964). It is unclear why the Plaintiff 

cited Poarch Band of Creek Indians, supra, as that decision acknowledged that “Parden itself 

neither mentioned nor was premised upon abrogation,” id. at 561, and held generally that the 

Eleventh Amendment barred suit against the state since Alabama had not consented to being 

sued and Congress lacked authority to abrogate Alabama’s Eleventh Amendment immunity 

under the Indian commerce clause. Id.1 Furthermore, Parden, supra, has been expressly 

overruled by at least two subsequent decisions of the Supreme Court. See Welch v. Texas Dep’t 

of Highways and Public Transp., 483 U.S. 468 (1987) and College Sav. Bank v. Florida Prepaid 

Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (overruling Parden and holding that 

sovereign immunity was neither validly abrogated by the Trademark Remedy Clarification Act 

(TRCA), nor voluntarily waived by the State’s activities in interstate commerce); see also

Beasley v. Alabama State Univ., 3 F. Supp. 2d 1304, 1314 n.4 (M.D. Ala. 1998) (“The court also 

recognizes that Parden has been overruled to the extent that its holding conflicts with the 

 

1

 The decision of the district court in Poarch Band of Creek Indians, 776 F. Supp. 550 was affirmed by Seminole 

Tribe of Florida v. State of Florida, 11 F.3d 1016 (11th Cir. 1994). The decision of the Eleventh Circuit Court of 

Appeals in Seminole Tribe of Florida, 11 F.3d 1016 was in turn affirmed by the United States Supreme Court in 

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114, 134 L.Ed.2d 252 (1996). 

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requirement that Congress unequivocally state its intent to abrogate states’ eleventh amendment 

immunity in a statute.”). Therefore, to the extent the Plaintiff relies on Parden as authority for 

the proposition that the State of Alabama waived its sovereign immunity when the Elmore 

County Jail housed a federal prisoner for a twenty-four (24) hour period, his reliance is 

misplaced since the holding in Parden is no longer good law. 

 Third, in his most recent response to Defendant Roberts’s Special Report, filed on 

January 18, 2007, the Plaintiff appeared to assert that the source of any monetary judgment paid 

by the Defendant would be “the County residents” and not the state treasury. See Plaintiff’s 

Response (Doc. #41), pp. 7-8. For this reason, he maintained, Defendant Roberts should not be 

granted Eleventh Amendment immunity. However, the entitlement of an Alabama sheriff and 

that sheriff’s deputies and jailers to Eleventh Amendment immunity, is a well-settled question of 

law. See Parker, 862 F.2d at 1476 (holding a sheriff sued in his official capacity is entitled to 

Eleventh Amendment immunity); Free, 887 F.2d at 1557 (holding that a sheriff sued in his 

official capacity is entitled to Eleventh Amendment immunity); Carr, 916 F.2d at 1525 (holding 

a deputy sheriff sued in his official capacity is entitled to Eleventh Amendment immunity); 

Lancaster, 116 F.3d at 1430-31 (extending Eleventh Amendment immunity to include jailers 

employed by county sheriffs). As a result, Defendant Roberts is entitled to Eleventh Amendment 

immunity to all claims against her in her official capacity. 

 Fourth, the Plaintiff argued that the Eleventh Amendment does not bar the award of 

prospective relief under the doctrine established by Ex parte Young, 209 U.S. 123 (1908). The 

Supreme Court recognized a few years ago that, “[t]o ensure the enforcement of federal 

law,...the Eleventh Amendment permits suits for prospective injunctive relief against state 

officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 

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(2004) (emphasis added). While it is true that the Eleventh Amendment does not bar the award 

of prospective relief against state officials acting in violation of federal law under the Ex parte 

Young doctrine, the Plaintiff has overlooked several important facts which prevent him from 

being granted injunctive relief at all. 

 In her Special Report, Defendant Roberts explained that the Plaintiff’s request for 

injunctive and declaratory relief is due to be denied because his transfer on or about February 22, 

2006 from the Elmore County Jail to the custody of federal prison officials in Atlanta, Georgia – 

where he remains incarcerated – deprived the Plaintiff of standing to seek these types of relief 

and rendered all such requests moot. See McKinnon v. Talladega County, Ala., 745 F.2d 1360, 

1363 (11th Cir. 1984) citing Holland v. Purdy, 457 F.2d 802 (5th Cir. 1972) (recognizing the 

“general rule...that a prisoner’s transfer or release from a jail moots his individual claim for 

declaratory and injunctive relief”); see also Boxer X v. Donald, 169 Fed. Appx. 555, 559 (11th 

Cir. 2005) (requested injunctions against prison employees declared moot since plaintiff-prisoner 

was no longer housed at that prison); Roque v. Armstrong, 392 F. Supp. 2d 382, 386-87 (D. 

Conn. 2005) (dismissing as moot prisoner’s claims for injunctive relief under ADA). 

 The Plaintiff is additionally ineligible to receive injunctive and declaratory relief because 

he has not provided any allegations to warrant the grant of such relief. “An injunction is a 

‘remedy potentially available only after a Plaintiff can make a showing that some independent 

legal right is being infringed – if the Plaintiff’s rights have not been violated, he is not entitled to 

any relief, injunctive or otherwise’.” Alabama v. United States Army Corps of Engineers, 424 

F.3d 1117, 1127 (11th Cir. 2005) quoting Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1098 

(11th Cir. 2004). Specifically, the Plaintiff must show “(1) that he has prevailed in establishing 

the violation of the right asserted in his complaint; (2) there is no adequate remedy at law for the 

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violation of this right; and (3) irreparable harm will result if the court does not order injunctive 

relief.” United States Army Corps of Engineers, 424 F.3d at 1128 (citations omitted). As with 

the Plaintiff’s lack of standing to seek injunctive and declaratory relief, Defendant Roberts also 

explained in her Special Report that the Plaintiff has not – and cannot – fulfill any of the 

foregoing requisites for issuance of injunctive relief. 

 Related to the first requisite listed above – i.e., Plaintiff must show “that he has prevailed 

in establishing the violation of the right asserted in his complaint” – is the requirement imposed 

by Ex parte Young that state officials must be “acting in violation of federal law” to be subject to 

prospective injunctive relief. Frew ex rel. Frew, 540 U.S. at 437 (emphasis added). Since filing 

his Complaint, the Plaintiff has simply assumed that the conduct he alleged was a violation of 

federal law. However, as Defendant Roberts demonstrated in her Special Report (and 

demonstrates again below), the Plaintiff’s allegations do not state a claim for a constitutional 

violation, much less provide a foundation for establishing a violation of federal law. Therefore, 

the Plaintiff is unable to satisfy the elements necessary for injunctive and/or declaratory relief to 

issue. Because of his inability to satisfy those elements – particularly the requirement that he 

establish the violation of the right asserted in his complaint, the Ex parte Young doctrine does 

not apply. 

 Fifth, in her Special Report Warden Roberts conceded the existence of 42 U.S.C. § 

12202, a provision of the Americans with Disabilities Act (ADA) which abrogates Eleventh 

Amendment immunity typically granted States. See Special Report, pp. 32-33. She added, 

however, that the Supreme Court, in United States v. Georgia, 541 U.S. 151, 126 S. Ct. 877 

(2006), held that “insofar as Title II creates a private cause of action for damages against the 

States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates 

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state sovereign immunity.” Id. at 882; see also Leverette v. Alabama Revenue Dep’t, 453 F. 

Supp. 2d 1340, 1345 (M.D. Ala. 2006) (finding that, “with Title II, Congress did not validly 

abrogate sovereign immunity with regard to state-employment discrimination against the 

disabled”); Williamson v. Georgia Dep’t of Human Resources, 150 F. Supp. 2d 1375 (S.D. Ga. 

2001) (concluding that court lacked subject-matter jurisdiction because Congress failed to 

validly abrogate State’s Eleventh Amendment immunity in Title II context). In other words, a 

state’s sovereign immunity is abrogated by 42 U.S.C. § 12202 only to the extent the alleged 

conduct of the state or state official “actually violates the Fourteenth Amendment.” Id. The 

Plaintiff has not begun to establish the violation of a right arising under or guaranteed to him by 

the Fourteenth Amendment. Consequently, Warden Roberts is entitled to Eleventh Amendment 

immunity from all claims against her in her official capacity under Title II of the ADA. 

Finally, as discussed in the Defendant’s Special Report, the official capacity claims 

against Warden Roberts are due to be dismissed because 42 U.S.C. § 1983 prohibits a person, 

acting under color of law, from depriving another of his rights secured by the United States 

Constitution. 42 U.S.C. § 1983 (emphasis added). The United States Supreme Court has held 

that a state official, in his or her official capacity, is not a “person” under § 1983. Will v. 

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Any claims against Warden Roberts in 

her official capacity should be dismissed because she is not a “person” under § 1983; as a result, 

all claims against her in her official capacity fail to state a claim upon which relief can be 

granted. Id.; Carr, 916 F.2d 1521, 1525 n.3. 

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II. THE PLAINTIFF’S FAILURE TO COMPLY WITH THE PRISON LITIGATION 

 REFORM ACT AND LACK OF PHYSICAL INJURY BAR HIS 

 COMPLAINT. 

 The Plaintiff’s Complaint is barred under the Prison Litigation Reform Act (PLRA) for at 

least two reasons. First, the Plaintiff failed to affirmatively demonstrate his exhaustion of all 

available administrative remedies at the Elmore County Jail. Second, the Plaintiff does not 

allege that he suffered a physical injury. Because of these glaring deficiencies, the Complaint is 

barred and due to be dismissed. 

 Warden Roberts’s Special Report discussed the exhaustion requirement under the Prison 

Litigation Reform Act (PLRA). See 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 

(2002); Johnson v. Meadows, 418 F.3d 1152, 1155 (11th Cir. 2005); Brown v. Sikes, 212 F.3d 

1205, 1207 (11th Cir. 2000). The Plaintiff admits that he is familiar with the PLRA’s exhaustion 

requirement. See Plaintiff’s Preliminary Response (Doc. #20), pp. 7-8 (“Plaintiff is absolutely 

clear on the intent, meaning and purpose of exhaustion.”). Given this level of familiarity, the 

Plaintiff should understand that he is required to demonstrate his exhaustion of all available 

administrative remedies. See Brown, 212 F.3d at 1207; Rivera v. Allin, 144 F.3d 719, 731 (11th 

Cir. 1998). The Plaintiff asserted instead that “the defendant has the burden of proving and 

pleading that such exhaustion did not occur.” Plaintiff’s Preliminary Response, p. 8 (emphasis 

added). This is not the rule in the Eleventh Circuit. See Alexander v. Hawk, 159 F.3d 1321, 

1326-27 (11th Cir. 1998); Rivera, 144 F.3d at 731. In Steele v. Federal Bureau of Prisons, 355 

F.3d 1204 (10th Cir. 2003), the Tenth Circuit concluded that “§ 1997e(a) imposes a pleading 

requirement on the prisoner” and cited the Eleventh Circuit Court of Appeals’ decision in 

Rivera, supra at 731, in support of the notion that a complaint which fails to adequately aver 

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exhaustion of remedies is equivalent to a complaint which fails to state a claim for relief. Steele, 

355 F.3d at 1210 (emphasis added). 

 Contrary to the Plaintiff’s assertion, his two letters to Warden Roberts, mailed more than 

two months after he was confined at the Elmore County Jail, do not constitute “grievances”; 

however, even if they are deemed “grievances,” their issuance by the Plaintiff – without more – 

does not constitute proper and complete exhaustion of all administrative remedies. The Plaintiff 

concedes that he did not submit or attempt to submit a grievance while he was incarcerated at the 

Elmore County Jail. See Complaint at ¶ 4 (“Plaintiff was in custody at the Elmore County Jail[] 

for a twenty four (24) hour period, so there was no possible way to exercise ‘administrative 

remedies’.”). In his first letter to Warden Roberts, dated May 8, 2006, the Plaintiff stated “that 

such administrative remedy exhaustion as required is irrelevant.” Plaintiff’s Exhibit C, p. 1. 

Fifteen (15) days later, on May 23, 2006, the Plaintiff composed his second and final letter to 

Warden Roberts in which he informed her that “[t]his letter will serve as my final contact to 

you.” Plaintiff’s Exhibit D (letter to Warden Roberts dated May 23, 2006). The Plaintiff’s letter 

concluded with a warning to Warden Roberts that “[f]ailure to respond with a proposed 

settlement, postmarked[] on or before[] Thursday, June 08, 2006, will waive your opportunity to 

resolve this matter amicably.” Id. 

 According to the United States Department of Justice’s Standards for Inmate Grievances, 

cited by the Plaintiff in his Response, “[i]n all instances grievances must be processed from 

initiation to final disposition within 180 days, inclusive of all extensions.” 28 C.F.R. § 40.7(e) 

(West 2006).2 After sending his letters to Warden Roberts, the Plaintiff clearly did not wait for a 

 

2

 The failure of an administrative grievance procedure to meet or exceed federal standards for such programs does 

not excuse an inmate’s decision not to exhaust all available administrative remedies. See Porter, 534 U.S. at 524 

(“All ‘available’ remedies must now be exhausted; those remedies need not meet federal standards, nor must they be 

‘plain, speedy, and effective’.”) (emphasis added). 

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response from her – an important step toward exhausting available administrative remedies – 

before filing his action on July 26, 2006. See Pri-Har v. Corrections Corp. of America, 154 Fed. 

Appx. 886, 888-89 (11th Cir. 2005) (“Because an administrative remedy does not have to be 

speedy, the absence of a time frame in which prison officials must respond to grievances does 

not per se satisfy the exhaustion requirement of § 1997e(a)”); Vaden v. Summerhill, 449 F.3d 

1047, 1050 (9th Cir. 2006) (adopting the holding of the Seventh Circuit in Ford v. Johnson, 362 

F.3d 395, 400, that “[t]he complaint is ‘brought’ by the prisoner when he submits it to the court. 

Accordingly, the prisoner must have entirely exhausted administrative remedies by this point.”). 

In fact, the Plaintiff waited less than one-half of that 180-day period before filing his action (i.e., 

only seventy-nine (79) days elapsed between first letter, dated May 8, 2006, and Complaint filed 

on July 26, 2006). As a result, he cannot be said to have properly and completely exhausted all 

available administrative remedies. See Porter, 534 U.S. at 524 (“All ‘available’ remedies must 

now be exhausted; those remedies need not meet federal standards, nor must they be ‘plain, 

speedy, and effective’.”); Johnson, 418 F.3d at 1157-58 (holding that an untimely grievance does 

not satisfy the PLRA’s exhaustion requirement); Harper v. Jenkin, 179 F.3d 1311, 1312 (11th 

Cir. 1999) (dismissing § 1983 claim because the inmate did not appeal the denial of the 

grievance, thus failing to give the state a full chance to hear the grievance); Freeman v. Francis, 

196 F.3d 641, 645 (6th Cir. 1999) (inmate did not exhaust all available remedies where he made 

some attempts to comply with the grievance procedure, but then filed a federal complaint before 

completing all stages of grievance process); Wright v. Morris, 111 F.3d 414, 417 (6th Cir. 1997) 

(prisoner filed an initial grievance, but failed to appeal the denial of this grievance through the 

entire process); Jordan v. Miami-Dade County, 439 F. Supp. 2d 1237, 1241-42 (S.D. Fla. 2006) 

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(dismissing inmate’s suit for failure to exhaust administrative remedies where inmate waited 

more than six months after incident to submit his grievance). 

 Despite the fact that the Plaintiff is no longer housed at the Elmore County Jail, he was 

still required to properly and completely exhaust all administrative remedies. See Ruggiero v. 

County of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (holding that prisoner’s transfer to another 

facility did not excuse his failure to exhaust administrative remedies). Even if this Court is 

convinced that the Plaintiff’s exhaustion of available remedies is futile or moot at this point, 

dismissal of the instant action is mandatory if the Court determines that all available 

administrative remedies were not exhausted. See Alexander, 159 F.3d at 1326-27 (“Since 

exhaustion is now a pre-condition to suit, the courts cannot simply waive those requirements 

where they determine they are futile or inadequate. Such an interpretation would impose an 

enormous loophole in the PLRA, which Congress clearly did not intend.”). Of course, given that 

the Plaintiff initiated his suit against Warden Roberts without completely exhausting all available 

remedies, he cannot now be granted leave to exhaust such remedies. See Porter, 534 U.S. at 525 

(The PLRA’s exhaustion requirement was intended by Congress to “afford[] corrections officials 

time and opportunity to address complaints internally before allowing the initiation of a federal 

case.”) (emphasis added); Miller v. Tanner, 196 F.3d 1190, 1193 (11th Cir. 1999) (“An inmate 

incarcerated in a state prison, thus, must first comply with the grievance procedures established 

by the state department of corrections before filing a federal law-suit under section 1983.”) 

(emphasis added); McKinney v. Carey, 311 F.3d 1198, 1199-2101 (9th Cir. 2002) (“The Courts 

of Appeals for the First, Second, Third, Seventh, Tenth, Eleventh, and D.C. circuits have held 

that § 1997e(a) requires exhaustion before the filing of a complaint and that a prisoner does not 

comply with this requirement by exhausting available remedies during the course of the 

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litigation.”) (emphasis added); Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004) (“Some 

persons are bound to do exactly what Ford did – to declare that the administrative process is 

irrelevant once suit begins. To prevent this subversion of efforts to resolve matters out of court, 

it is essential to keep the courthouse doors closed until those efforts have run their course.”). 

 The Plaintiff’s assertion that he was not provided an inmate handbook while confined at 

the Elmore County Jail is completely without merit and has no bearing on his failure to file a 

grievance during his incarceration. In particular, he does not allege that he was unaware of or 

did not understand the inmate grievance procedure at the Elmore County Jail due to his alleged 

failure to receive an inmate handbook. In light of the Plaintiff’s prior incarceration, he was no 

doubt well aware of the general nature and operation of the facility’s inmate grievance 

procedure. Since the Plaintiff did not allege that his purported failure to receive an inmate 

handbook was associated, in any logical way, with his failure to file a grievance at the Elmore 

County Jail, this reference by the Plaintiff is of no significance. See Ruggiero, 467 F.3d at 178 

(rejecting prisoner’s argument that defendant-appellants should be estopped from raising failure 

to exhaust as a defense where prisoner claimed he did not receive an inmate handbook because, 

“[w]hether or not Ruggiero actually possessed the handbook, he nowhere claims that he was 

unaware of the grievance procedures contained within it or that he did not understand those 

procedures.”). 

 The Plaintiff’s argument in his Preliminary Response that Miller v. Norris, 247 F.3d 736 

(8th Cir. 2001), is the “‘perfect’ case” is seriously flawed. Although some similarity may exist 

between the facts of Miller, supra, and those of the instant action, there is at least one substantial 

reason for distinguishing the two: the Plaintiff in the case at bar has never suggested, much less 

established, that he was prevented from utilizing available administrative remedies. In fact, the 

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Plaintiff’s letters to Warden Roberts compel precisely the opposite conclusion. See Plaintiff’s 

Exhibit C and Exhibit D. Assuming, arguendo, the Plaintiff was somehow prevented from 

utilizing administrative remedies while at the Elmore County Jail – which he does not allege, his 

subsequent correspondence directed to Warden Roberts indicates no reluctance on his part to 

utilize the administrative remedy process. 

 Finally, although the Plaintiff addressed certain parts of the PLRA argument in his 

Responses to Defendant’s Special Report, he opted not to respond – in either one of his Responses – 

to Warden Roberts’s discussion of the PLRA’s physical injury requirement and the Plaintiff’s 

inability to satisfy it. As a result, Warden Roberts requests this Court treat Plaintiff’s failure to 

respond to the Defendant’s argument regarding the PLRA’s physical injury requirement as a 

concession of that argument to the Defendant.3

 See Road Sprinkler Fitters Local Union No. 669 v. 

Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (The District Court “could properly 

treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary 

judgment.”); Jones v. Electronic Data Systems Corp., 2006 WL 3742202, *1 (M.D. Ala. 2006) 

(treating as abandoned all claims other than the two to which the plaintiff responded in her 

response to defendant’s motion for summary judgment); Hogan v. City of Montgomery, 2006 

WL 3052997, *4 (M.D. Ala. 2006) (treating as abandoned claims that plaintiff failed to address 

in his response to defendant’s motion for summary judgment); Drakeford v. Alabama Co-op. 

Extension System, 416 F. Supp. 2d 1286, 1313 (M.D. Ala. 2006) (finding that plaintiff 

abandoned claim where he “failed to address it at all in his reply brief”); Walton ex rel. R.W. v. 

Montgomery County Bd. of Educ., 371 F. Supp. 2d 1318, 1324 (M.D. Ala. 2005) (treating 

plaintiff’s failure to advance an argument in opposition to defendant’s motion for summary 

 

3

 The Plaintiff’s inexplicable failure to respond to this and other arguments by the Defendant (discussed herein 

below) is especially egregious since this Court granted the Plaintiff an additional two months in which to respond to 

the Defendant’s Special Report. 

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judgment as abandonment of that argument); Beasley v. Conopco, Inc., 273 F. Supp. 2d 1239, 

1246 n.2 (M.D. Ala. 2003) (same); O’Gwynn v. City of Foley, 2002 WL 32993824 at *3 n.6 

(slip op.) (S.D. Ala. 2002) (presuming plaintiff abandoned potential claim where he did not 

address it in his summary judgment response). Even if the Court refuses to grant this request by 

Defendant Roberts, it is clear that the Plaintiff’s failure to allege – much less suffer – a requisite 

physical injury bars his complaint. See Asad v. Crosby, 158 Fed. Appx. 166, 168 n.1 (11th Cir. 

2005); Jordan, 439 F. Supp. 2d at 1242 quoting Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 

1999) (quoting Alexander, 159 F.3d at 1324) (holding that Plaintiff’s claims for damages for 

mental and emotional injuries were barred under § 1997e(e) and concluding that “[p]ermitting 

Plaintiff to maintain a lawsuit alleging only mental and emotional injuries would circumvent 

Congress’ intent under the PLRA to curtail ‘frivolous and abusive prisoner litigation’.”). 

 Neither the Plaintiff’s Complaint nor his Responses affirmatively show complete and 

proper exhaustion of the administrative grievance process at the Elmore County Jail as required 

by the PLRA. While the Plaintiff may have set out to comply with the prescribed administrative 

remedy process available at the Elmore County Jail, he ultimately grew tired of that process 

before completely and properly exhausting it and went swashbuckling his way into federal court. 

Such impatient, irreverent conduct is precisely what the PLRA was created to curtail. See Porter, 

534 U.S. at 525; Miller, 196 F.3d at 1193; McKinney, 311 F.3d at 1199-2101; Ford, 362 F.3d at 

398. Most obviously, the Plaintiff’s Complaint is prohibited because he has suffered no physical 

injury. See 42 U.S.C. § 1997e(e). For these reasons, the Plaintiff’s Complaint is barred and due 

to be dismissed. 

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III. PLAINTIFF’S CLAIMS AGAINST WARDEN ROBERTS MUST FAIL BECAUSE 

 WARDEN ROBERTS HAD NO PERSONAL INVOLVEMENT IN THE 

 ALLEGED VIOLATIONS OF PLAINTIFF’S RIGHTS.

 In his Responses to Warden Roberts’s Special Report, the Plaintiff makes no effort to 

respond to Warden Roberts’s argument that all claims against her must fail because she had no 

personal involvement in the alleged violation of Plaintiff’s rights. At most, the Plaintiff claimed 

that Warden Roberts “would have had knowledge of the Plaintiff,” but stops short of actually 

describing how the Defendant was personally involved in the alleged violation of his rights. 

Plaintiff’s Response (Doc. #41), p. 5. Consequently, Warden Roberts requests this Court treat 

Plaintiff’s failure to address her lack of personal involvement in the alleged violation of Plaintiff’s 

rights as a concession of that argument to the Defendant. See Road Sprinkler Fitters Local Union 

No. 669, 10 F.3d at 1568 (The district court “could properly treat as abandoned a claim alleged 

in the complaint but not even raised as a ground for summary judgment.”); Jones, 2006 WL 

3742202 at *1 (treating as abandoned all claims other than the two to which the plaintiff 

responded in her response to defendant’s motion for summary judgment); Hogan, 2006 WL 

3052997 at *4 (treating as abandoned claims that plaintiff failed to address in his response to 

defendant’s motion for summary judgment); Drakeford, 416 F. Supp. 2d at 1313 (finding that 

plaintiff abandoned claim where he “failed to address it at all in his reply brief”); Walton ex rel. 

R.W., 371 F. Supp. 2d at 1324 (treating plaintiff’s failure to advance an argument in opposition 

to defendant’s motion for summary judgment as abandonment of that argument); Beasley, 273 F. 

Supp. 2d at 1246 n.2 (same); O’Gwynn, 2002 WL 32993824 at *3 n.6 (slip op.) (presuming 

plaintiff abandoned potential claim where he did not address it in his summary judgment 

response). 

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 In the event the Court declines the foregoing request by Warden Roberts, Warden 

Roberts alternatively adopts and incorporates, as if fully set out herein, the argument in her 

Special Report that all of Plaintiff’s claims against her must fail because she had no personal 

involvement in the alleged violation of the Plaintiff’s rights. See Special Report (Doc. #16), pp. 

11-12. 

IV. THE PLAINTIFF’S REQUEST FOR INJUNCTIVE AND DECLARATORY 

 RELIEF IS DUE TO BE DENIED AS HE LACKS STANDING TO SEEK SUCH 

 RELIEF AND ALL SUCH REQUESTS ARE MOOT.

 As discussed above in the section regarding Warden Roberts’ entitlement to Eleventh 

Amendment immunity, due to the Plaintiff’s transfer from the Elmore County Jail to the custody 

of officials at the Federal Prison Camp – Atlanta, Georgia, on or about February 22, 2006 (where 

he remains incarcerated), he is no longer subject to the allegedly violative conditions of the 

Elmore County Jail. As a result, he lacks standing to seek injunctive and declaratory relief 

concerning the Elmore County Jail or any of its officers or employees. See McKinnon, 745 F.2d 

at 1363 citing Holland, 457 F.2d 802 (recognizing the “general rule...that a prisoner’s transfer or 

release from a jail moots his individual claim for declaratory and injunctive relief”); see also

Boxer X, 169 Fed. Appx. at 559 (requested injunctions against prison employees declared moot 

since plaintiff-prisoner was no longer housed at that prison); Roque, 392 F. Supp. 2d at 386-87 

(dismissing as moot prisoner’s claims for injunctive relief under ADA). Therefore, the 

Plaintiff’s request for injunctive and declaratory relief is moot and due to be dismissed. 

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V. THE PLAINTIFF’S FAILURE TO ESTABLISH A GENUINE ISSUE OF 

 MATERIAL FACT AS TO HIS CLAIMS REQUIRES THAT WARDEN 

 ROBERTS BE GRANTED SUMMARY JUDGMENT; ALTERNATIVELY, 

 BECAUSE HER CONDUCT VIOLATED NO CONSTITUTIONAL RIGHT AND 

 NO ASPECT OF HER CONDUCT CROSSED A “BRIGHT LINE” CONTOUR OF 

 CLEARLY ESTABLISHED CONSTITUTIONAL LAW, THE DEFENDANT IS 

 ENTITLED TO QUALIFIED IMMUNITY. 

 On a motion for summary judgment, the court should view the evidence in the light most 

favorable to the nonmovant. Greason v. Kemp, 891 F.2d 829, 831 (11th Cir. 1990). However, a 

plaintiff “must do more than show that there is some metaphysical doubt as to the material 

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

“[S]ummary judgment shall be granted, ‘if the pleadings, depositions, answers to interrogatories, 

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as 

to any material fact and that the moving party is entitled to judgment as a matter of law’.” Allen 

v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) quoting Fed. R. Civ. P. 56(c). “An 

issue of fact is ‘material’ if, under the applicable substantive law, it might affect the outcome of 

the case....An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier 

of fact to find for the nonmoving party.” Hickson Corp. v. Northern Crossarm Co., Inc., 357 

F.3d 1256, 1259-60 (11th Cir. 2004) citing Allen, 121 F.3d at 646 (citing Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986)). “A reviewing court need not ‘swallow plaintiff’s 

invective hook, line and sinker; bald assertions, unsupportable conclusions, periphrastic 

circumlocutions, and the like need not be credited’.” Marsh v. Butler County, 268 F.3d 1014, 

1036 n.16 (11th Cir. 2001) (en banc) quoting Massachusetts School of Law v. American Bar, 

142 F.3d 26, 40 (1st Cir. 1998). 

 To the extent the arguments set out already in Warden Sue Roberts’s Special Report and 

Reply do not mandate dismissal of the claims against Warden Sue Roberts, she is nevertheless 

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19

entitled to summary judgment and/or qualified immunity to any such claim as the Plaintiff has 

failed to present a genuine issue of material fact with respect to any allegation and because the 

Defendant’s conduct violated no constitutional right and no aspect of her conduct crossed a 

“bright line” contour of clearly established constitutional law. 

 A. HIPAA claim. 

 In neither of his Responses to Defendant Roberts’s Special Report did the Plaintiff so 

much as comment on the argument in the Defendant’s Special Report explaining at length why 

the Plaintiff’s attempt to state a claim under the Health Insurance Portability and Accountability 

Act (HIPAA) is due to be dismissed. Consequently, Warden Roberts requests this Court treat the 

Plaintiff’s failure to respond to her argument concerning the Plaintiff’s attempt to state a claim 

under the HIPAA as an abandonment of that argument. See Road Sprinkler Fitters Local Union 

No. 669, 10 F.3d at 1568 (The district court “could properly treat as abandoned a claim alleged 

in the complaint but not even raised as a ground for summary judgment.”); Jones, 2006 WL 

3742202 at *1 (treating as abandoned all claims other than the two to which the plaintiff 

responded in her response to defendant’s motion for summary judgment); Hogan, 2006 WL 

3052997 at *4 (treating as abandoned claims that plaintiff failed to address in his response to 

defendant’s motion for summary judgment); Drakeford, 416 F. Supp. 2d at 1313 (finding that 

plaintiff abandoned claim where he “failed to address it at all in his reply brief”); Walton ex rel. 

R.W., 371 F. Supp. 2d at 1324 (treating plaintiff’s failure to advance an argument in opposition 

to defendant’s motion for summary judgment as abandonment of that argument); Beasley, 273 F. 

Supp. 2d at 1246 n.2 (same); O’Gwynn, 2002 WL 32993824 at *3 n.6 (slip op.) (presuming 

plaintiff abandoned potential claim where he did not address it in his summary judgment 

response). 

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20

 In the event this Court declines the foregoing request by Warden Roberts, Warden 

Roberts alternatively adopts and incorporates, as if fully set out herein, the argument in her 

Special Report regarding the Plaintiff’s attempt to state a claim against her pursuant to the 

HIPAA. See Special Report (Doc. #16), pp. 17-27. 

 B. Americans with Disabilities Act claim. 

 The Plaintiff appeared to argue that he is a qualified handicapped person and that his 

receipt of a designated food tray and water cooler constituted a violation of the Americans with 

Disabilities Act (ADA). See Plaintiff’s Preliminary Response (Doc. #20), p. 5. However, other 

than that passing assertion and a reference to Pennsylvania Dep’t of Corrections v. Yeskey, 524 

U.S. 206 (1998) and Bragdon v. Abbott, 524 U.S. 624 (1998), the Plaintiff made no attempt in 

his Responses to rebut the Defendant’s argument concerning the ADA. Therefore, Warden 

Roberts requests this Court treat Plaintiff’s failure to address the Defendant’s argument regarding 

the ADA as an abandonment of that argument. See Road Sprinkler Fitters Local Union No. 669, 

10 F.3d at 1568 (The district court “could properly treat as abandoned a claim alleged in the 

complaint but not even raised as a ground for summary judgment.”); Jones, 2006 WL 3742202 at 

*1 (treating as abandoned all claims other than the two to which the plaintiff responded in her 

response to defendant’s motion for summary judgment); Hogan, 2006 WL 3052997 at *4 

(treating as abandoned claims that plaintiff failed to address in his response to defendant’s 

motion for summary judgment); Drakeford, 416 F. Supp. 2d at 1313 (finding that plaintiff 

abandoned claim where he “failed to address it at all in his reply brief”); Walton ex rel. R.W., 

371 F. Supp. 2d at 1324 (treating plaintiff’s failure to advance an argument in opposition to 

defendant’s motion for summary judgment as abandonment of that argument); Beasley, 273 F. 

Supp. 2d at 1246 n.2 (same); O’Gwynn, 2002 WL 32993824 at *3 n.6 (slip op.) (presuming 

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21

plaintiff abandoned potential claim where he did not address it in his summary judgment 

response). 

 In the event this Court declines the foregoing request of Warden Roberts to treat the 

Plaintiff’s ADA allegations as abandoned, the Defendant has summarized below the principal 

reasons that the Plaintiff’s ADA allegations are due to be dismissed. As discussed in Warden 

Roberts’s Special Report, there is no individual capacity liability under Title II of the ADA. See

Special Report, pp. 28-29; Badillo v. Thorpe, 158 Fed. Appx. 208, 211 (11th Cir. 2005) citing

Garcia v. S.U.N.Y. Health Services Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“To 

the extent that Badillo seeks to hold Benefiel personally liable, there is no individual capacity 

liability under Title II of the ADA or RA.”); Dukes v. Georgia, 428 F. Supp. 2d 1298, 1322 n.5 

(N.D. Ga. 2006) (“Only Defendant Coweta County can be liable for any alleged violations as 

there is no individual liability under either the ADA or Rehabilitation Act.”) (citation omitted). 

Therefore, the Plaintiff’s attempt to state a claim against Warden Roberts in her individual 

capacity for an alleged violation of rights arising under the ADA is due to be dismissed. 

 Any attempt by the Plaintiff to state a claim against Warden Roberts in her official 

capacity for violation of rights arising under the ADA – if not barred by Eleventh Amendment 

immunity – is nevertheless due to be dismissed for failure of the Plaintiff to establish the 

elements necessary to state a claim under Title II of the ADA. “To state a claim under Title II of 

the ADA, a Plaintiff must allege: (1) that he is a ‘qualified individual with a disability’; (2) that 

he was ‘excluded from participation in or...denied the benefits of the services, programs, or 

activities of a public entity’ or otherwise ‘discriminated [against] by such entity’; (3) ‘by reason 

of such disability’.” Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001) citing 42 U.S.C. § 

12132. As previously noted, the Plaintiff has failed to satisfy the first element – “that he is a 

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22

‘qualified individual with a disability’.” Id. His failure to satisfy the first element is not 

necessarily due to a lack of adequate legal authority as much as it is due to his failure to establish 

that he has a bona fide disability through admissible evidence (e.g., medical records). To this 

point, the Plaintiff has merely alleged that he has Human Immunodeficiency Virus (HIV) and/or 

Acquired Immune Deficiency Syndrome (AIDS). See, e.g., Plaintiff’s Complaint (“Statement of 

Claim”) (Doc. #1-1), ¶ 17; Plaintiff’s Preliminary Response (Doc. #20), p. 5. At the summary 

judgment stage, the Plaintiff’s bare allegations are insufficient to satisfy his burden. See Ellis v. 

England, 432 F.3d 1321, 1326 (11th Cir. 2005) citing Bald Mountain Park, Ltd. v. Oliver, 863 

F.2d 1560, 1563 (11th Cir. 1989) (“mere conclusions and unsupported factual allegations are 

legally insufficient to defeat a summary judgment motion”). 

 Similarly, the Plaintiff has not satisfied the second element necessary to state a claim 

under Title II of the ADA – “that he was ‘excluded from participation in or...denied the benefits 

of the services, programs, or activities of a public entity’ or otherwise ‘discriminated [against] by 

such entity’.” Shotz, 256 F.3d at 1079 citing 42 U.S.C. § 12132. The Plaintiff has yet to come 

forward with evidence “that he was ‘excluded from participation in or...denied the benefits of 

the services, programs, or activities of’ [the Elmore County Jail] or otherwise ‘discriminated 

[against] by’” Warden Roberts. Id. To the extent the Plaintiff was excluded from participation 

in or denied services, programs, or activities available at the Elmore County Jail – something he 

does not allege, such exclusion or denial was imposed by his fellow inmates, not Warden 

Roberts. Likewise, any discrimination experienced by the Plaintiff originated with other 

inmates, not Warden Roberts. See Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2001) (the 

Eleventh Circuit Court of Appeals “has repeatedly stated that the civil rights laws were not 

intended to be a ‘civility code’.”). Jails and prisons are not known as hospitable places, nor are 

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23

they known as a refuge for well-mannered individuals. See Jones v. North Carolina Prisoners’ 

Labor Union, 433 U.S. 119, 132 (1977) citing Wolff v. McDonnell, 418 U.S. 539, 561-562 

(1974) (“Prison life, and relations between the inmates themselves and between the inmates and 

prison officials or staff, contain the ever-present potential for violent confrontation and 

conflagration.”). For these reasons, the Plaintiff has failed to satisfy the second element. 

 Finally, the Plaintiff has not satisfied the third element necessary to state a claim under 

Title II of the ADA – that his alleged disability was the reason “that he was ‘excluded from 

participation in or...denied the benefits of the services, programs, or activities of’ [the Elmore 

County Jail] or otherwise ‘discriminated [against] by’” Warden Roberts. Id. As discussed 

immediately above, the Plaintiff has not – and cannot – demonstrate that he was excluded from 

participation in or denied the benefits of the services, programs, or activities of the Elmore 

County Jail; therefore, logically, he cannot prove that his alleged disability was the reason he 

was excluded from participation in or denied the benefits of the services, programs, or activities 

of the Elmore County Jail if he has not proven that he was, in fact, excluded from participation or 

denied certain benefits. Assuming, arguendo, the Plaintiff is said to have established “that he 

was ‘excluded from participation in or...denied the benefits of the services, programs, or 

activities of’ [the Elmore County Jail] or otherwise ‘discriminated [against] by’” Warden 

Roberts, he still has not satisfied – and cannot satisfy – the third element necessary to state a 

claim under Title II of the ADA. 

 In his most recent Response to Defendant Roberts’s Special Report, the Plaintiff argued 

that he “was placed in red medical scrubs solely because of his illness, in an effort to identify 

him as ‘contagious’ and to alienate him from his fellow inmates.” Plaintiff’s Response (Doc. 

#41), pp. 2-3. Significantly, the Plaintiff does not contend that Defendant Roberts instructed him 

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to don red medical scrubs, nor does he insist that she was present when he was booked into the 

Elmore County Jail. Moreover, as previously discussed, Sheriff Bill Franklin – not Warden 

Roberts – is responsible for promulgating policies governing the Elmore County Jail. See

Turquitt v. Jefferson County, Ala., 137 F.3d 1285, 1289 (11th Cir. 1998) (“Under the Alabama 

Code, the sheriff has control over the inmates of the jail, the employees of the jail, and the jail 

itself.”); Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1428 (11th Cir. 1997) (recognizing 

that, “in running a jail and seeing to the welfare of jail inmates, an Alabama sheriff acts as the 

final policymaking authority”); see also Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 

1292, 1300 n. 11, 89 L.Ed.2d 452 (1986) (discussing City of Oklahoma City v. Tuttle, 471 U.S. 

808, 105 S. Ct. 2427, 85 L.Ed.2d 791 (1985), and saying that single incident of unconstitutional 

conduct by nonpolicymaking official is insufficient to show that the “unconstitutional act was 

taken pursuant to a municipal policy”); Marsh, 268 F.3d at 1036-37 (allegation of single 

allegedly unconstitutional act, with no mention of a pattern of past wrongs, was insufficient to 

state claim against sheriff); Caldwell v. City of Elwood, 959 F.2d 670 (7th Cir. 1992) (explaining 

that allegation of single incident does not support reasonable inference of policy or custom). 

 Warden Roberts cannot be held liable for any alleged violation of the Plaintiff’s rights 

under the ADA for multiple reasons. First, the Plaintiff has not stated a claim for a violation 

under the ADA. Second, to the extent the Plaintiff attempts to impose liability on Warden 

Roberts because of a policy she allegedly enforced or established, such an attempt must fail since 

the allegation of a single incident of purportedly unconstitutional conduct by a nonpolicymaking 

official is insufficient to show that the “unconstitutional act was taken pursuant to a municipal 

policy”; not to mention, she is not the policymaker with respect to the Elmore County Jail. 

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Pembaur, 475 U.S. at 482 n.11. Finally, the Plaintiff does not allege that Warden Roberts was 

present during his booking or that she was directly responsible for any particular aspect of it. 

 The Plaintiff’s attempt to state a claim under Title II of the ADA against Warden Roberts 

in her official capacity fails and is due to be dismissed. As a result of the Plaintiff’s failure to 

satisfy even one of the three elements necessary to state a claim under Title II of the ADA, and 

because of the lack of evidence produced by the Plaintiff with respect to this allegation, 

Defendant Roberts is entitled to summary judgment and/or qualified immunity4 as to this claim. 

 C. Cruel & Unusual Punishment claim.

 Like most of the allegations advanced in his Complaint, the Plaintiff did not discuss, in 

either of his Responses, Defendant Roberts’s argument in her Special Report regarding the 

Plaintiff’s attempt to state a claim for violation of the Eighth Amendment’s guarantee against 

cruel and unusual punishment. As a result, Warden Roberts requests this Court treat Plaintiff’s 

failure to respond to her argument regarding the Plaintiff’s attempt to state a claim for violation of 

the Eighth Amendment’s guarantee against cruel and unusual punishment as an abandonment of 

that argument. See Road Sprinkler Fitters Local Union No. 669, 10 F.3d at 1568 (The district 

court “could properly treat as abandoned a claim alleged in the complaint but not even raised as a 

ground for summary judgment.”); Jones, 2006 WL 3742202 at *1 (treating as abandoned all 

claims other than the two to which the plaintiff responded in her response to defendant’s motion 

for summary judgment); Hogan, 2006 WL 3052997 at *4 (treating as abandoned claims that 

plaintiff failed to address in his response to defendant’s motion for summary judgment); 

Drakeford, 416 F. Supp. 2d at 1313 (finding that plaintiff abandoned claim where he “failed to 

address it at all in his reply brief”); Walton ex rel. R.W., 371 F. Supp. 2d at 1324 (treating 

 

4

 For additional discussion of Defendant Roberts’ entitlement to qualified immunity to the Plaintiff’s ADA 

allegations, see Defendant Roberts’s Special Report (Doc. #16) at pages 27-34. 

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26

plaintiff’s failure to advance an argument in opposition to defendant’s motion for summary 

judgment as abandonment of that argument); Beasley, 273 F. Supp. 2d at 1246 n.2 (same); 

O’Gwynn, 2002 WL 32993824 at *3 n.6 (slip op.) (presuming plaintiff abandoned potential 

claim where he did not address it in his summary judgment response). 

 In the event this Court declines the foregoing request by Warden Roberts, Warden 

Roberts alternatively adopts and incorporates, as if fully set out herein, the argument in her 

Special Report regarding the Plaintiff’s attempt to state a claim against her for violation of the 

Eighth Amendment. See Special Report (Doc. #16), pp. 34-38. 

VI. PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES IS DUE TO BE 

 STRICKEN. 

 The Plaintiff’s request for punitive damages is due to be stricken. Absent waiver, which 

is not present or alleged in this action, claims for punitive damages pursuant to 42 U.S.C. § 1983 

are barred by the Eleventh Amendment to the United States Constitution as the award would, in 

effect, be one against the state as this Defendant is a state official. See City of Newport v. Fact 

Concerts, 453 U.S. 247 (1981). The award of punitive damages against the State of Alabama is 

similarly barred by statute. See Ala. Code § 6-11-26 (1975). Warden Roberts is an executive 

officer of the State, and a suit against her is, in essence, a suit against the State of Alabama. Thus, 

the Plaintiff’s claim for punitive damages against Warden Roberts is due to be dismissed. See also

Davis, 158 F.3d at 1346 (concluding that “much if not all of Congress’s evident intent would be 

thwarted if prisoners could surmount § 1997e(e) simply by adding a claim for punitive 

damages”). 

CONCLUSION

 The Plaintiff’s failure to come forth with any admissible evidence in response to Warden 

Roberts’s Special Report, combined with the Plaintiff’s failure to rebut the arguments presented 

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27

by Defendant Roberts’s Special Report and inability to overcome her entitlement to qualified 

immunity, require that all of the Plaintiff’s claims be dismissed. First, the Plaintiff misconstrued 

well-settled authority regarding the nature of Eleventh Amendment immunity available to an 

official such as Warden Roberts; thus, the Eleventh Amendment precludes all claims against 

Defendant Roberts in her official capacity. Second, the PLRA bars the instant complaint as the 

Plaintiff failed to demonstrate his exhaustion of all administrative grievance procedures available 

to him at the Elmore County Jail or, alternatively, why he could not exhaust all such 

administrative procedures. The Complaint is additionally barred by the PLRA because the 

Plaintiff never alleged – much less established – a physical injury suffered by him, nor did he 

respond to Defendant’s argument concerning such omission. 

 Next, the Plaintiff simply did not address, in either of his Responses to the Defendant’s 

Special Report, the Defendant’s discussion of (1) the fact that she was not personally involved in 

any alleged violation(s) of the Plaintiff’s rights, (2) the reasons the Plaintiff’s attempt to state a 

claim under the HIPAA must fail, (3) the reasons the Plaintiff’s attempt to state a claim under the 

ADA must fail, or (4) the reasons the Plaintiff’s attempt to state a claim under the Eighth 

Amendment must fail. Finally, and perhaps most importantly, the Plaintiff neglected to provide 

admissible evidence to counter the competent evidence supplied by Warden Roberts in regard to 

Plaintiff’s claims. As a result, all of Plaintiff’s claims against Warden Roberts are due to be 

dismissed. 

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RESPECTFULLY SUBMITTED this the 23rd day of January, 2007. 

 

 s/ C. Richard Hill, Jr. 

 C. RICHARD HILL, JR. (HIL045) 

 DANIEL D. FORDHAM (FOR055)

 Attorneys for Defendant, Jail Warden Sue Roberts 

 WEBB & ELEY, P.C. 

 7475 Halcyon Pointe Drive (36117) 

 Post Office Box 240909 

 Montgomery, Alabama 36124 

 Telephone: (334) 262-1850 

 Fax: (334) 262-1889 

 E-mail: rhill@webbeley.com 

CERTIFICATE OF SERVICE

 I hereby certify that on this the 23rd day of January, 2007, I electronically filed the 

Defendant’s Reply to Plaintiff’s Response to Defendant’s Special Report with the Clerk of the 

Court using the CM/ECF system, and that I have mailed by United States Mail, postage prepaid, 

to the following non-CM/ECF participant: 

Jeremiah W. Green 

Federal Prison Camp – Atlanta 

Post Office Box 150160 

Atlanta, Georgia 30315-0160 

 s/C. Richard Hill, Jr. 

OF COUNSEL

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