IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

JAMES TYRONE EDWARDS, ) 

 #244 859 ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil Action No. 3:06-CV-740-MHT-SRW 

 ) 

SGT. MOORE, et al. ) 

 ) 

 Defendants. ) 

DEFENDANTS SPECIAL REPORT

COME NOW Sheriff Thomas F. Boswell, Chief Deputy William Alexander, Lieutenant 

Loetta Holland, Sergeant Danny Bussey, and Sergeant Samuel Pierce Moore, Defendants in the 

above-styled cause, and submit their Special Report to the Court.

INTRODUCTION 

On February 13, 2006, Plaintiff filed his Complaint in the United States District Court for 

the Southern District of Alabama. On August 15, 2006, the U.S. District Court for the Southern 

District of Alabama adopted a Report and Recommendation that this action be transferred to the 

U.S. District Court, Middle District of Alabama. The case was transferred on August 16, 2006 to 

the U.S. District Court, Middle District. On October 3, 2006, this Court ordered Defendants to 

file a Special Report within forty days of the date of the order. Because of the coincidence of the 

due date of this Report and Veteran’s Day, the Special Report was due November 14, 2006. 

Defendants requested and were granted a three-week extension to finish this Special Report, 

making it due on December 5, 2006. 

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James Tyrone Edwards, the Plaintiff, alleges that on February 3, 2006, he was being held 

in the Russell County Jail (aka “Prentiss Griffith Detention Center”) on charges of Third Degree 

Burglary and Unlawful Distribution of a Controlled Substance (Cocaine) and, while so 

incarcerated, was subjected to cruel and unusual punishment. Plaintiff’s incarceration at the 

Prentiss Griffith Detention Center began on 18 May 2005, and he was transferred to Kilby Prison 

for Department of Corrections processing on 24 February 2006. Plaintiff is presently 

incarcerated in the Limestone County Correctional Facility. 

PLAINTIFF’S ALLEGATIONS 

Plaintiff alleges that on February 3, 2006, Sgt. Moore and two other uniformed officers of 

the Russell County Jail unjustifiably sprayed him with mace while he was shackled, made him 

lie down in dirty toilet water, handcuffed him, and then beat him with night sticks for 

approximately fifteen minutes. (Complaint, p. 4.)1

 Plaintiff also alleges that after this beating, 

he was again handcuffed and taken to a holding cell, Number 3, where he repeatedly requested 

medical attention for his left hand and other bruised areas of his body. (Complaint, pp. 4-5.) 

Plaintiff alleges that the jail staff refused to provide him any medical attention. (Complaint, p. 

5.) 

 

1

 Attorney for Defendants met with Plaintiff at the Limestone County Correctional Facility, prepared an affidavit for 

Plaintiff based on that interview, and faxed it to the Facility for Plaintiff’s review and signature. Thereafter, the 

secretary for the Warden’s office called to tell me that she had ensured delivery of the proposed affidavit to the 

Plaintiff was accomplished but that he disagreed with the information I had placed in the affidavit and refused to 

sign it. Plaintiff told Defendants’ Attorney that he knew of three inmate witnesses to the incident – Maurice Tyrone 

Hollis, Anthony Lamont Ford, and Derrick Walker. The only Tyrone Hollis that I could reach in the Phenix City 

area had not been in the Prentiss Griffith Detention Center for approximately two years, but he said that he has a 

nephew named Maurice Tyrone Hollis. I asked him to obtain the contact information for his nephew and call me 

back. That was on 28 November 2006, and I never heard back from Mr. Hollis. I tried the number I was given by 

information (the jail’s contact information was no longer valid) for Anthony Lamont Ford, but no one ever 

answered, and there was no answering machine or voicemail. I never reached Mr. Ford although I tried during the 

evenings and during the middle of the day throughout the week of the 27th of November 2006. Although I reached 

an answering machine for Mr. Derrick Walker and left a message, I do not know if it is the same Derrick Walker 

that was incarcerated during Plaintiff’s time in the Prentiss Griffith Detention Center, and he never returned my 

request for a call back. 

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Plaintiff claims that he was the victim of cruel and unusual punishment and that he seeks 

damages for pain and suffering and emotional distress. (Complaint, p. 5.) Plaintiff demands 

$100,000 and that all employees involved be removed from their positions for cruel and unusual 

punishment and his pain and suffering. (Complaint, p. 7.) 

DEFENDANT’S RESPONSE TO PLAINTIFF’S ALLEGATIONS

 Defendants, Sheriff Thomas F. Boswell, Chief Deputy William Alexander, Lt. Loetta 

Holland, Sgt. Samuel Pierce Moore, and Sgt. Danny Bussey, deny that they in any way used 

excessive force against Plaintiff, that the rules, policies, training, and supervision of personnel of 

the Prentiss Griffith Detention Center were or are in any way insufficient to protect inmates like 

Plaintiff, and that Plaintiff did not suffer any type of serious injury as a result of the incident. 

(Exhibit A, Prentiss Griffith Detention Center Policies and Procedures Manual; Exhibit B, 

Russell County Sheriff Department Use of Force Report, 4 February 2006; Exhibit C, Affidavit 

of Sgt. Samuel Pierce Moore, “Moore aff.” ¶¶ 4, 5; Exhibit D, Affidavit of Lieutenant Loetta 

Holland, “Holland aff.” ¶ 4; Exhibit E, Affidavit of Sergeant Danny Bussey, “Bussey aff.” ¶¶ 4, 

7; Exhibit F, Affidavit of Corrections Officer Thigpen, “Thigpen aff.” ¶¶ 4-6; Exhibit G, 

Affidavit of Nurse Riley, “Riley aff.” ¶ 4; Exhibit H, Affidavit of Nurse Practitioner Janice 

McInnis, “McInnis aff.” ¶¶ 4, 5; Exhibit I, Affidavit of Deputy Chief William Alexander, 

“Alexander aff.” ¶¶ 2-6; Exhibit J, Affidavit of Sheriff Tommy Boswell, “Boswell aff.” ¶¶ 2-6; 

Exhibit K, Inmate Booking Documents; Ex. L, Sergeant Steve Johnson and Sergeant Bussey 

Memoranda, “Use of Force Continuum,” 22 September 1999 & 22 August 2006; Ex. M, Russell 

County Sheriff’s Department General Order, “Use of Chemical Weapon,” 12 April 1996; Ex. N, 

Other Plaintiff Incident Reports; Ex. O, Plaintiff Inmate Grievance Paperwork, 6 February 2006; 

Ex. P, Plaintiff Medical Treatment Log; Exhibit Q, Pictures of Plaintiff’s Bruising, 6 February 

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2006.) Defendants raise the defenses of Eleventh Amendment immunity, qualified immunity, 

Plaintiff’s failure to comply with the Prison Litigation Reform Act, and additional defenses 

presented below. Defendants reserve the right to add additional defenses if any further pleading 

is required or allowed by the Court. 

I. FACTS2

 Plaintiff began serving his incarceration at the Russell County Jail on May 18, 2005. 

Plaintiff was incarcerated for Third Degree Burglary and Possession of Cocaine. (Ex. K, Inmate 

Booking Sheet; Ex. E, .Bussey aff., ¶ 1.) 

A. Policy and Procedure Regarding Use of Force in Russell County Jail

 It is the policy of the Prentiss Griffith Detention Center that “Physical force ... may be 

used in the following incidents: ... In defending one’s self or others against any physical 

assault,” “to prevent serious damage to property,” or “to enforce Detention Center regulations.” 

(Ex. A, Prentiss Griffith Detention Center Policy & Procedure Manual, Title 7.09.C.2., “NonDeadly Force;” Ex. B, Moore aff., ¶ 4; Ex. L, Sergeant Steve Johnson Memorandum, “Use of 

Force Continuum,” 22 September 1999; Ex. M, Russell County Sheriff’s Department General 

Order, “Use of Chemical Weapon,” 12 April 1996.) After use of force and after use of a 

chemical weapon like the Freeze Plus mace, the officer using the chemical is to file a Russell 

County Sheriff’s Department Use of Force Report. (Ex. A, Prentiss Griffith Detention Center 

Policy & Procedure Manual, Title 7.09.F. & 7.09.E.3.F., “Guidelines on the Use of Aerosol 

 

2

 Defendant’s Counsel could not speak with Corrections Officer Mathis or Corrections Officer Burdin. Mr. 

Jeffery Burdin resigned from the Sheriff's Department March 2006 and moved to New Jersey with his family. He 

resigned his position for a better one, and his wife was a member of the military. Mr. Mathis resigned from the 

Sheriff's Department May 2006, and the last information I received was that he is living in Columbus, Georgia. 

He resigned his position with the Sheriff's Department to work for Buffalo Rock originally, but he no longer works 

with Buffalo Rock. I attempted the last phone number that the Prentiss Griffith Detention Center had for Mr. 

Mathis, but it was disconnected. 

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Dispensers;” Ex. M, Russell County Sheriff’s Department General Order, “Use of Chemical 

Weapon,” ¶ III.C., 12 April 1996.) 

 The Prentiss Griffith Detention Center has a grievance procedure available for inmates 

complaining of jail conditions. 

“Inmate Grievance Forms are available on request from any Officer with approval 

of the Supervisor. *** Grievances are promptly and thoroughly investigated, 

appropriate corrective action taken, and a report issued to the inmate.” 

(Ex. A, Prentiss Griffith Detention Center Policy & Procedure Manual, “Inmate Grievance 

Procedure;” Ex. E, Bussey aff. ¶ 6.) Lieutenant Holland, the Jail Administrator, normally 

delivers Inmate Grievances to Sergeant Bussey, and if necessary, Sergeant Bussey performs an 

investigation of the grievance. (Ex. E, Bussey aff. ¶ 6.) 

 B. Events that Lead to Incident

 Plaintiff states in his Complaint that on February 3, 2006, he was in his cell in the 

Walker County Jail when the alleged assault occurred. (Complaint, p. 4.) Plaintiff also states in 

his Complaint that there existed some problem with his cell location. (Complaint, p. 4.) Plaintiff 

mentions in his Complaint a request to move for safety reasons because he was having problems 

with other inmates in his dorm. (Complaint, p. 4.) However, that is why Plaintiff was in an 

isolation cell; he had been in more than one fight and appeared to seek such fights out. (Ex. C, 

Moore aff., ¶ 6; Ex. E, Bussey aff., ¶ 9; Ex. N, Other Plaintiff Incident Reports.) Sgt. Moore 

states that Plaintiff had flooded his cell with his own toilet’s water and that Sgt. Moore gave him 

a mop and buckets and told him to clean up the water which had flowed outside Plaintiff’s cell. 

Less than an hour later, Sgt. Moore learned that Plaintiff was using the bucket to dump the toilet 

water into other inmates’ cells. (Ex. B, Russell County Sheriff Department Use of Force Report, 

4 February 2006; Ex. C, Moore aff., ¶ 6.) Sgt. Moore went to Plaintiff’s cell, followed by 

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Corrections Officers Iva Thigpen, Brandon Mathis, and Jeffrey Burdin, and asked Plaintiff why 

he was flooding other inmates’ cells. Sergeant Moore attempted to talk Plaintiff down, but 

Plaintiff responded hostilely, demanding to know when he would be moved, yelling obscenities 

like “Fuck you” and “I don’t have shit to lose,” and refusing orders to get down on the floor. 

(Ex. B, Russell County Sheriff Department Use of Force Report, 4 February 2006; Ex. C, Moore 

aff., ¶ 6; Ex. F, Thigpen aff., ¶ 5.) 

According to Sergeant Moore’s Incident Report and the testimony of both Moore and 

Thigpen, Plaintiff was hostile, threatening to others, and boisterous. (Ex. B, Russell County 

Sheriff Department Use of Force Report, 4 February 2006; Ex. C, Moore aff., ¶ 6; Ex. F, 

Thigpen aff., ¶ 5.) After Plaintiff refused to comply with Sergeant Moore’s instruction to get on 

the floor, Sergeant Moore sprayed Plaintiff with one burst of mace, which had little to no effect 

on Plaintiff who blocked the mace with his hand. (Ex. B, Russell County Sheriff Department Use 

of Force Report, 4 February 2006; Ex. C, Moore aff., ¶ 7; Ex. F, Thigpen aff., ¶ 5.) Although 

Plaintiff got partially down, he remained combative and avoided being handcuffed and grabbed 

the night stick to take it from Sergeant Moore; therefore, Sergeant Moore had to hit Plaintiff 

three times with his night stick. (Ex. B, Russell County Sheriff Department Use of Force Report, 

4 February 2006; Ex. C, Moore aff., ¶¶ 7, 8; Ex. F, Thigpen aff., ¶ 5.) 

C. After the Alleged Incident

 Sgt. Moore and Officer Thigpen then took Plaintiff to the Infirmary to instruct him on 

how to get the mace off. (Ex. C, Moore aff., ¶ 9; Ex. F, Thigpen aff., ¶ 6.) Although the inmates 

know that a nurse is on-call 24 hours per day, Plaintiff did not ask to see a nurse. (Ex. H, 

McInnis aff., ¶ 4; Ex. C, Moore aff., ¶ 9.) Sgt. Moore filed the required report for use of force in 

the jail, and Corrections Officers Thigpen, Burdin, and Mathis also prepared statements for that 

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report. (Ex. B, Russell County Sheriff Department Use of Force Report, 4 February 2006; Ex. C, 

Moore aff., ¶ 10.) The next night, between around 8 p.m. and 9 p.m., the on-call nurse, Janice 

McInnis, performed blood pressure checks on the inmates, but Plaintiff never asked for her 

assistance or treatment and submitted no medical request forms. (Ex. H, .McInnis aff., ¶ 4.) 

 On 6 February 2006, Plaintiff filed a Grievance regarding the incident. (Ex. P, Plaintiff’s 

Grievance/Jail Response regarding Incident, 6 February 2006.) Sergeant Bussey, the Deputy 

Warden of the Jail, responded on 7 February 2006 in writing, explaining that he did not consider 

the force used by Sergeant Moore to have been excessive and that Plaintiff’s own disruptive 

behavior toward other inmates created the problem. (Ex. E, .Bussey aff., ¶¶ 6, 7; Ex. P, 

Plaintiff’s Grievance/Jail Response regarding Incident, 6 February 2006.) Although inmates 

have the opportunity to appeal any decision by Sergeant Bussey to Lieutenant Holland and any 

decision of Lieutenant Holland to Sheriff Boswell, Plaintiff did not appeal Sergeant Bussey’s 

decision, nor did he tell Sergeant Bussey that he had not received a response, nor did he mention 

Sergeant Bussey’s decision to Sergeant Bussey at all. (Ex. J, Boswell aff., ¶ 6; Ex. I, Alexander 

aff., ¶ 6; Ex. D, Holland aff., ¶ 6; Ex. E, Bussey aff., ¶ 8.) Sergeant Bussey passed by Plaintiff’s 

cell several times a day each day between 19 February and 24 February 2006, but Plaintiff never 

mentioned to Sergeant Bussey or questioned him about the Grievance. (Ex. E, Bussey aff., ¶ 8.) 

 To ensure that Plaintiff saw a Nurse, Sergeant Bussey sent Plaintiff to Nurse Riley on 6 

February 2006. (Ex. E, Bussey aff., ¶ 9.) Plaintiff saw Nurse Riley, who did not find any 

serious injury, only bruising, and she prescribed Naproxin, an anti-inflammatory pain reliever, to 

be taken two times a day for five days. (Ex. G, .Riley aff., ¶ 4.) At some time approximately 

three days after the incident alleged in Plaintiff’s Complaint, Nurse McInnis examined the 

photographs of Plaintiff’s bruising and did not find any serious injury. (Ex. H, .McInnis aff., ¶ 

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4.) She discovered normal bruising even though bruises should be at their maximum appearance 

of injury on a person’s skin at 72 hours after the bruising is caused. (Ex. H, McInnis aff., ¶ 5.) 

 Neither Sheriff Boswell, Deputy Chief Sheriff William Alexander, Lieutenant Holland, 

the Warden, or Sergeant Bussey, the Deputy Warden, were present during the incident alleged in 

Plaintiff’s Complaint, and none of them had any personal involvement in the alleged incident. 

(Ex. J, Boswell aff., ¶¶ 2, 3, 5; Ex. I, Alexander aff., ¶¶ 2, 3, 5; Ex. D, Holland aff., ¶¶ 3, 5; Ex. 

E, Bussey aff., ¶¶ 3, 5.) All of the chief staff of the Prentiss Griffith Detention Center and the 

Russell County Sheriff’s Department, Sheriff Boswell, Deputy Chief Alexander, Lieutenant 

Holland, and Sergeant Bussey, agree that based on the reports they received of the incident 

alleged in Plaintiff’s Complaint, excessive force was not used and the policies and procedures 

involving use of force and chemical weapons were followed. (Ex. J, Boswell aff., ¶¶ 4, 5; Ex. I, 

Alexander aff., ¶¶ 4, 5; Ex. D, Holland aff., ¶¶ 4, 5; Ex. E, Bussey aff., ¶¶ 4, 7.) 

II. LAW 

A. All Claims by the Plaintiff against the Defendants in their Official Capacity 

must fail based on Eleventh Amendment Immunity and because they are not 

“persons” under 42 U.S.C.A. § 1983.

 The Plaintiff has not stated whether his claims against the officers in this case are in their 

official capacity or individual capacity. Therefore, the Defendants analyze the Plaintiff’s claims 

in light of both individual and official capacities based on the manner in which the Plaintiff has 

made allegations against him. 

 The Plaintiff’s claims against the Defendants in their official capacity are due to be 

dismissed for lack of subject matter jurisdiction, as such claims are barred by the Eleventh 

Amendment to the United States Constitution. Parker v. Williams, 862 F.2d 1471, 1476 (11th 

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

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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., 918 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). 

In addition, the official capacity claims must fail 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 state officials, in their official capacities, are not “persons” under § 1983. Will v. 

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

their official capacity should therefore be dismissed because they are not “persons” under § 

1983; therefore, claims against them in their official capacity fail to state a claim upon which 

relief can be granted. Id.; Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 n.3 (11th Cir. 

1990). 

B. Plaintiff’s failure to comply with the Prison Litigation Reform Act bars the 

Complaint 

1. Plaintiff has failed to exhaust all Administrative Remedies. 

Under the Prison Litigation Reform Act (“PLRA”), an inmate is required to exhaust all 

administrative remedies before instituting an action under 42 U.S.C. § 1983. 42 U.S.C. § 

1997e(a). The Plaintiff in this case has not utilized two separate and distinct administrative 

remedies available to him. The Plaintiff began to fulfill the requirement as to the grievance 

procedures provided at the Prentiss Griffith Detention Center by filing a Grievance Form; 

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however, once that Grievance was denied by the jail administration, it was incumbent upon 

Plaintiff to utilize the appeals process in that system. Because Plaintiff has failed to appeal to 

even the first level allowed by the Grievance process at the Prentiss Griffith Detention Center, he 

has not fulfilled the requirements of the PLRA. (Ex. E, Bussey aff., ¶¶ 6, 7; Ex. P, Plaintiff’s 

Grievance/Jail Response regarding Incident, 6 February 2006; Ex. A, Prentiss Griffith Detention 

Center Policies and Procedures Manual; Ex. L, Sergeant Steve Johnson Memorandum, “Use of 

Force Continuum,” 22 September 1999; Ex. M, Russell County Sheriff’s Department General 

Order, “Use of Chemical Weapon,” 12 April 1996; Ex. B, Russell County Sheriff Department 

Use of Force Report, 4 February 2006.) 

Plaintiff has also not alleged that he pursued any grievance through the State Board of 

Adjustment, another administrative procedure in Alabama for obtaining redress. See Brown v. 

Tombs, 139 F.3d 1102, 1103-04 (6th Cir. 1998) (requiring prisoners to affirmatively show that 

they have exhausted administrative remedies). Alabama law provides the opportunity to file a 

claim and proceed before the State of Alabama Board of Adjustment pursuant to Ala. Code 

1975, § 41-9-60 et seq., and it was incumbent upon Plaintiff to proceed further with the State 

Board of Adjustment procedure, discussed infra, after the Prentiss Griffith Detention Center 

determined that Sergeant Moore had not used excessive force against him. The alter egos of the 

Sheriff of Walker County, corrections officers, are state officers and therefore would be entitled 

to sovereign immunity. See Lancaster v. Monroe County, 116 F.3d 1419, 1429 (11th Cir. 1998); 

Ala. Code 1975, § 41-9-62. Due to this immunity, the State of Alabama has provided an 

administrative remedy for the recovery of money damages through the State of Alabama Board 

of Adjustment. A claimant “shall have the right to file and prosecute his claim before the board 

in person or by counsel or agent of his own choice, whether such agent be licensed to practice 

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law or not.” Ala. Code 1975, § 41-9-63. A claimant has one year from the date of the alleged 

injury in which to file such a claim. Ala. Code 1975, § 41-9-65. One year from the incident date 

is 3 February 2007. 

As a result of Plaintiff’s failure to exhaust these two remedies,3 he is barred from 

bringing this action under § 1997e(a). See Alexander v. Hawk, 159 F.3d 1321, 1326-27 (11th 

Cir. 1998) (affirming dismissal of prison action due to failure to exhaust administrative 

remedies), and Defendants are entitled to have Plaintiff’s claims against them dismissed. 

2. Plaintiff’s claims are barred by the Prison Litigation Reform Act 

because he has not suffered more than a de minimis physical injury as 

a result of the allegations in his Complaint. 

42 U.S.C. § 1997e(e), requires that an inmate suffer a physical injury in order to present 

viable claims of injury. 

 “No Federal civil action may be brought by a prisoner confined in 

a jail, prison, or other correctional facility, for mental or emotional injury 

suffered while in custody without a prior showing of physical injury . . . . 

In order to avoid dismissal under § 1997e(e), a prisoner’s claims for 

emotional or mental injury must be accompanied by allegations of 

physical injuries that are greater than de minimis.” 

Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309 (11th Cir. 2002). See also

Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999) (in which the Eleventh Circuit held “that 

in order to satisfy section 1997e(e) the physical injury must be more than de minimis, but need 

not be significant”) (citing Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999)). 

Plaintiff alleges that he received knoxs [sic] and burses [sic] on his body. (Complaint, p. 

5.) Plaintiff alleges no other medical treatment or injury for which he sought treatment for these 

alleged injuries. (Complaint, p. 7.) Plaintiff states that Sergeant Moore sprayed him with mace 

 

3

 Before utilizing the State Board of Adjustment procedure, however, Plaintiff would first need to exhaust his 

options under the Prentiss Griffith Detention Center’s Grievance procedure. 

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and beat him with a night stick for fifteen minutes. (Complaint, p. 4.) Defendant Sergeant 

Moore states that he justifiably struck the Plaintiff three times with his nightstick to protect 

himself, to protect other corrections officers with him, and to ensure Plaintiff complied with his 

instructions and ceased combative and disruptive behavior. (Ex. C, Moore aff., ¶ 8; Ex. F, 

Thigpen aff., ¶ 5.) 

C. Plaintiff’s Claims are Due to be Denied Because the Defendants in their 

Individual Capacities did not Violate a Constitutional Right Belonging to the 

Plaintiff, nor was there Pre-existing “Clearly Established Law.”

Plaintiff must meet two prongs in order to satisfy the Eleventh Circuit’s standard for 

determining whether Plaintiff has made out a claim sufficient to overcome qualified immunity to 

which Sergeant Moore is entitled. 

1. Plaintiff’s Claims are Due to be Denied Because he has not Stated a 

Constitutional Violation within his Complaint Sufficient to Overcome 

Defendants’ Entitlement to Qualified Immunity.

Based on U.S. Supreme Court precedent, the Eleventh Circuit has stated a two-part 

inquiry in determining whether a Plaintiff has overcome the qualified immunity to which a 

public official is entitled in the face of a § 1983 claim. 

“The defendants having established their eligibility for qualified 

immunity, the burden then shifts to the plaintiff to show that qualified immunity is 

not appropriate. Lee[ v. Ferraro,] 284 F.3d [1188,] at 1194 [(11th Cir. 2002)]. 

This next step consists of a two-part inquiry, set forth in Saucier v. Katz, 533 U.S. 

194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). First we ask, ‘[t]aken in the 

light most favorable to the party asserting the injury, do the facts alleged show 

the officer’s conduct violated a constitutional right?’ Id. If, assuming the 

plaintiff’s allegations were true, no such right would have been violated, the 

analysis is complete. However, if a constitutional violation can be made out on 

the plaintiff’s facts, we then must determine ‘whether, at the time of the incident, 

every objectively reasonable police officer would have realized the acts violated 

already clearly established federal law.’ Garrett v. Athens-Clarke County, 378 

F.3d 1274, 1278-79 (11th Cir. 2004) (citing Saucier, 533 U.S. at 201-02, 121 

S.Ct. 2151, 150 L.Ed.2d 272).” 

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Harris v. Coweta County, Ga., 406 F.3d 1307, 1312-13 (11th Cir. 2005) (emphasis added). 

Even assuming that Plaintiff’s allegations are true, he has not demonstrated in those 

allegations that Sergeant Moore or any other staff member of the Prentiss Griffith Detention 

Center applied unconstitutionally excessive force against him and that such a person thereby 

denied him “of any rights, privileges, or immunities secured by the Constitution and laws.” 42 

U.S.C. § 1983. Based on Plaintiff’s Complaint and the affidavits and reports provided by the 

Defendants, Plaintiff was threatening and violent in his words, held a potential weapon (a mop), 

and he refused to cease threatening and hostile actions and words even after he had been sprayed 

with mace and struck with a night stick. (Complaint, pp. 4, 5; Ex. C, Moore aff., ¶¶ 8, 9; Ex. F, 

Thigpen aff., ¶ 5.) Therefore, neither Sergeant Moore nor any other officer of the Prentiss 

Griffith Detention Center violated any constitutional right of the Plaintiff, and they are entitled to 

have Plaintiff’s claims against them dismissed. His attitude was threatening to the corrections 

officers, and Plaintiff had a reputation for fighting, which is why he often ended up in an 

isolation cell. (Ex. E, Bussey aff., ¶ 9; Ex. C, Moore aff., ¶ 6.) Plaintiff’s hostile words, 

threatening actions, and refusal to follow Sergeant Moore’s instructions were sufficient to justify 

his use of the mace. (Exhibit A, Prentiss Griffith Detention Center Policies and Procedures 

Manual; Ex. B, Russell County Sheriff Department Use of Force Report, 4 February 2006; Ex. L, 

Sergeant Steve Johnson Memorandum, “Use of Force Continuum,” 22 September 1999; Ex. M, 

Russell County Sheriff’s Department General Order, “Use of Chemical Weapon,” 12 April 1996; 

Ex. N, Other Plaintiff Incident Reports.) 

Accepting for the sake of argument that Plaintiff’s Complaint is correct in alleging that 

Sergeant Moore struck him in the head with his night stick, Plaintiff’s Complaint still does not 

allege a constitutional violation because Sergeant Moore would have been justified under the 

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circumstances if he had struck Plaintiff with his baton to defend himself and restore order to the 

area in which Plaintiff had been dumping toilet water into other inmates’ cells. An experienced 

fighter could use a mop as a weapon, and Plaintiff still held the mop after Sergeant Moore 

arrived to quell the midnight disturbance. (Ex. C, Moore aff., ¶¶ 6-9.) Corrections officers deal 

with criminals on a regular basis and must make “snap” decisions to prevent danger and injury to 

an inmate and others around that inmate; thus, their judgment in a particular situation should not 

be analyzed too strictly by courts that have the benefit of hindsight. Hudson v. McMillian, 503 

U.S. 1, 6 (1992) (prison officials “should be accorded wide-ranging deference in the adoption 

and execution of policies and practices that in their judgment are needed to preserve internal 

order and discipline”). Plaintiff has not met the first prong necessary to overcome Sergeant 

Moore’s entitlement to qualified immunity. 

The case is even stronger with regard to Sheriff Boswell, Lieutenant Holland, and 

Sergeant Bussey, none of whom were even present when the incident occurred. There is no 

evidence that the Sheriff’s policies regarding use of force were inadequate or that the Prentiss 

Griffith Detention Center did not properly apply those policies. Sergeant Moore demonstrated 

the appropriate training he had received regarding use of force by quelling the disturbance 

caused by Plaintiff pouring water into other inmates’ cells. Sergeant Moore followed the use of 

force procedures by first asking Plaintiff why he was pouring the toilet water into other inmates’ 

cells and also verbally warning Plaintiff to get down on the floor. (Ex. A, Prentiss Griffith 

Detention Center Policies and Procedures Manual; Ex. B, Russell County Sheriff Department 

Use of Force Report, 4 February 2006; Ex. C, Moore aff., ¶ 7; Ex. F, Thigpen aff., ¶ 5; Ex. L, 

Sergeant Steve Johnson Memorandum, “Use of Force Continuum,” 22 September 1999; Ex. M, 

Russell County Sheriff’s Department General Order, “Use of Chemical Weapon,” 12 April 

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1996.) When Plaintiff was still threatening, combative and non-compliant, Sergeant Moore used 

a one to three-second spray of mace, i.e., Freeze Plus. (Ex. C, Moore aff., ¶ 8; Ex. F, Thigpen 

aff., ¶ 5.) Plaintiff blocked the spray of mace with his hand and partially complied with the order 

to get down but was still combative. (Ex. C, Moore aff., ¶¶ 8, 9; Ex. F, Thigpen aff., ¶ 5.) 

Therefore, Sergeant Moore had to use his night stick to force Plaintiff to comply and submit to 

being handcuffed. (Ex. C, Moore aff., ¶¶ 8, 9; Ex. F, Thigpen aff., ¶ 5.) After the Plaintiff was 

subdued to the point he could no longer cause a disturbance or threaten the officers, Sergeant 

Moore ensured he was helped with removing the mace, and Sergeant Moore filed a Use of Force 

Report, as required by Sheriff Department policies. (Ex. B, Russell County Sheriff Department 

Use of Force Report, 4 February 2006; Ex. C, Moore aff., ¶¶ 9, 10; Ex. F, Thigpen aff., ¶ 6.) 

Sergeant Bussey ensured that Plaintiff was seen by a nurse the following Monday, approximately 

two days later, and he also properly and promptly responded to Plaintiff’s Grievance. (Ex. E, 

Bussey aff., ¶¶ 6, 7, 9.) 

Such behavior on the part of Sergeant Moore and others in the jail administration does 

not reflect poor training by the jail administration, Warden Holland, and Deputy Warden 

Sergeant Bussey, but Plaintiff has not even alleged any type of failure to train or supervise on the 

part of these two Defendants or Sheriff Boswell. Therefore, any claim by Plaintiff against these 

three Defendants is due to be dismissed. Because Sergeant Moore did not use excess force to 

calm Plaintiff down and followed the Prentiss Griffith Detention Center’s procedures for use of 

force, any claim against him should also be dismissed. 

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16

2. Alternatively, Defendant Sergeant Moore is entitled to summary 

judgment based on qualified immunity because nothing in his conduct 

crossed a “bright line” contour of clearly established constitutional 

law. 

 Even if Plaintiff had met his burden with respect to the first prong, he still has not met his 

burden under the second prong of the analysis required for overcoming a public official’s qualified 

immunity. Public officials, like the Defendants in this case, are protected in their individual 

capacities by qualified immunity as long as “a reasonable officer could have believed [his actions] 

to be lawful, in light of clearly established law and the information [that the officer] possessed.” 

Anderson v. Creighton, 483 U.S. 635, 636 (1987) (emphasis added). The Eleventh Circuit Court of 

Appeals has observed, “[t]hat qualified immunity protects governmental actors is the usual rule; 

only in exceptional cases will government actors have no shield against claims made against them 

in their individual capacities.” Lassiter v. Alabama A & M Univ., 28 F.3d 1146 (11th Cir. 1994) 

(en banc) (emphasis in original) (footnote omitted). 

 The Eleventh Circuit has divided consideration of qualified immunity into two “prongs” of 

analysis as articulated in Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir. 1983). 

 First, “the defendant government official must prove that ‘he was acting 

within the scope of his discretionary authority when the allegedly wrongful 

acts occurred.”’ Sammons v. Taylor, 967 F.2d 1533, 1539 (11th Cir. 1992) 

(quoting Zeigler, 716 F.2d at 849). “[T]hen the burden shifts to the plaintiff 

to demonstrate that the defendant violated clearly established constitutional 

law.” Id. (quoting Zeigler, 716 F.2d at 849). 

Jordan v. Doe, 38 F.3d 1559, 1565 (11th Cir. 1994). Once it is established that the Plaintiff has 

stated a claim and that the Defendant was acting within his discretionary authority, the Court then 

considers whether the contours of the constitutional right allegedly violated were “clearly 

established.” In making this assessment, the reviewing court must examine the state of law at the 

time the alleged deprivation occurred. See Rodgers v. Horsley, 39 F.3d 308, 311 (11th Cir. 1994); 

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Adams v. St. Lucie County Sheriff’s Dep’t, 962 F.2d 1563, 1578 (11th Cir. 1992) (Edmondson, J., 

dissenting), rev’d and reasoning of original dissent adopted, 998 F.2d 923 (11th Cir. 1993) (en 

banc). There is no dispute that Sergeant Moore was acting within his discretionary authority as a 

corrections officer during this entire incident. He was on duty as a corrections officer and he was 

attempting to quell a disturbance caused by the Plaintiff. (Ex. C, Moore aff., ¶ 7.) 

 The Plaintiff must show that clearly established law provided Sergeant Moore with fair 

warning that his conduct was unlawful by either (1) pointing to a case with materially similar facts 

holding that the conduct engaged in was illegal; or (2) demonstrating that a pertinent federal statute 

or federal constitutional provision is specific enough to demonstrate the conduct was illegal, even in 

the total absence of case law. Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 2003) 

(citations omitted). The Eleventh Circuit has identified the latter method as an “obvious clarity” 

case. Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (footnote omitted). In order to 

show that the conduct of the Defendants was unconstitutional with “obvious clarity,” “the 

unlawfulness must have been apparent.” Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 

2003). “Unless a government agent’s act is so obviously wrong, in the light of pre-existing law, that 

only a plainly incompetent officer or one who was knowingly violating the law would have done 

such a thing, the government actor has immunity from suit.” Storck, 354 F.3d at 1318 (quoting 28 

F.3d at 1149). 

The law must be relatively “fact specific” and “so particularized” that it would have been 

obvious or “apparent” to the defendant that his actions were unlawful. See Rodgers, 39 F.3d at 311; 

Hansen v. Soldenwagner, 19 F.3d 573, 575 (11th Cir. 1994) (both reversing denial of qualified 

immunity). As the Eleventh Circuit has explained, “[a] plaintiff cannot rely on . . . ‘broad legal 

truisms’ to show that a right is clearly established. . . . ‘[i]f case law, in factual terms, has not staked 

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out a bright line, qualified immunity almost always protects the defendant.’” Kelly v. Curtis, 21 

F.3d 1544, 1550 (11th Cir. 1994) (reversing denial of qualified immunity as to some defendants) 

(quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1992)). While the facts of 

prior cases establishing the law in a particular context need not be identical, “the salient question 

that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave 

respondents fair warning that their alleged treatment of [Plaintiff] was unconstitutional.” Hope v. 

Pelzer, 536 U.S. 730, 122 S. Ct. 2508 (2002). This case law must “dictate, that is, truly compel 

(not just suggest or allow or raise a question about), the conclusion for every like-situated, 

reasonable government agent that what defendant is doing violates federal law in the 

circumstances.” Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000) (quoting Lassiter, at 28 

F.3d 1150). 

The Eleventh Circuit’s approach to Eighth Amendment claims of cruel and unusual 

punishment can be summarized in a 1999 opinion. 

The Eighth Amendment governs the conditions under which convicted 

prisoners are confined and the treatment they receive while in prison. Farmer v. 

Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting 

Helling v. McKinney, 509 U.S. 25, 31, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993)); 

see also Whitley v. Albers, 475 U.S. 312, 327, 106 S. Ct. 1078, 89 L. Ed. 2d 251 

(1986) (holding that “the Due Process Clause affords ··· no greater protection”). 

Although the Constitution does not require comfortable prisons, it does not permit 

inhumane ones. Farmer, 511 U.S. at 832, 114 S. Ct. 1970 (quoting Rhodes v. 

Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)). Still, the 

Eighth Amendment does not authorize judicial reconsideration of “every 

governmental action affecting the interests or well-being of a prisoner,” Whitley, 

475 U.S. at 319, 106 S. Ct. 1078; instead, “ ‘[a]fter incarceration, only the “ 

‘unnecessary and wanton infliction of pain’ ”··· constitutes cruel and unusual 

punishment forbidden by the Eighth Amendment.' ” Id. at 319, 106 S. Ct. 1078 

(quoting Ingraham v. Wright, 430 U.S. 651, 670, 97 S. Ct. 1401, 51 L. Ed. 2d 711 

(1977) (quoting Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 

251 (1976) (citations omitted))). 

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Crucial to establishing an “unnecessary and wanton infliction of pain” is 

some proof that officials acted with specific intent. This specific-intent 

requirement for an Eighth Amendment violation applies to both failure to provide 

proper medical care, Steele v. Shah, 87 F. 3d 1266, 1269 (11th Cir. 1996), and 

excessive force, see Whitley, 475 U.S. at 319-21, 106 S. Ct. 1078. 

Campbell v. Sikes, 169 F. 3d 1353, 1362 -1363 (11th Cir. 1999). 

 a. Chemical Weapon Use

After a diligent search of relevant Eleventh Circuit cases on pepper spray, mace and 

Freeze Plus, counsel for the Defendant has been unable to find a case involving materially 

similar facts that held conduct similar to that engaged in by the Defendant to be unlawful. The 

Eleventh Circuit has stated that “’whether or not a prison guard’s application of force is 

actionable turns on whether that force was applied in a good faith effort to maintain or restore 

discipline or maliciously or sadistically for the very purpose of causing harm.’” Bozeman v. 

Orum, 422 F. 3d 1265, 1271 (11th Cir. 2005). While the Eleventh Circuit has addressed the use 

of pepper spray in an arrest situation,4

 it apparently has yet to address its use in the confinement 

setting. Therefore, as stated in Vinyard, supra, any reference to appellate courts’ opinions and 

district courts’ opinions from other circuits by Defendants in this regard is “immaterial to 

determining whether the law was ‘clearly established’ in this circuit for the second prong of 

 

4

 See Vinyard, supra, wherein the Eleventh Circuit explained the difference between Fourth Amendment claims of 

excessive force and Eighth Amendment claims of excessive force. 

[W]e do not discuss the use of pepper spray in the prison setting because the Eighth Amendment 

controls such cases, and force does not amount to a constitutional violation in that setting if it is 

applied in a good faith effort to restore discipline and order and not “maliciously and sadistically 

for the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 

89 L. Ed. 2d 251 (1986) (internal quotation marks omitted). Moreover, a subjective element was 

added to certain Eighth Amendment claims in the prison setting in Farmer v. Brennan, 511 U.S. 

825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). Thus, the Eighth Amendment standard necessarily 

involves a more culpable and subjective mental state than that required for excessive force claims 

arising under the Fourth Amendment's unreasonable seizures restriction. Graham[ v. Connor], 490 

U.S. [386] at 398, 109 S.Ct. 1865 [(1989)]. 

Vinyard v. Wilson, 311 F.3d 1340, 1349 n 15 (11th Cir. 2002) (emphasis added). 

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Saucier.” Vinyard, 311 F.3d at 1348. However, opinions from other jurisdictions are instructive 

as to whether the use of mace or other chemicals on an inmate is cruel and unusual punishment. 

The Eleventh Circuit has stated: 

[T]he use of “mace, tear gas, or other chemical agent of the like nature when 

reasonably necessary to prevent prison riots or escape or to subdue recalcitrant 

prisoners does not constitute cruel and unusual punishment.” 

Ort v. White, 813 F. 2d 318, 324 (11th Cir. 1987), quoting Soto v. Dickey, 744 F. 2d 1260, 1270 

(7th Cir. 1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1846, 85 L. Ed. 2d 144 (1985). See also

Clement v. Gomez, 298 F. 3d 898, 903 (9th Cir. 2002) (use of pepper spray on two inmates 

fighting in a cell does not amount to a constitutional violation in this respect if it is applied in a 

good faith effort to restore discipline and order and not “maliciously and sadistically for the very 

purpose of causing harm.”), quoting Whitley, supra; Baldwin v. Stalder, 137 F. 3d 836, 838 (5th 

Cir. 1998) (“core judicial inquiry is ··· whether force was applied in a good-faith effort to 

maintain or restore discipline, or maliciously and sadistically to cause harm.”), quoting Hudson, 

supra. Therefore, the key to determining if Plaintiff’s Eighth Amendment claim is valid depends 

upon whether the officer used force to subdue a recalcitrant prisoner or used the force to be 

malicious. If corrections officers can use tear gas to quiet prisoners in their cells, then they can 

certainly use mace, a more discriminating chemical weapon, to quell a disturbance. See Bailey 

v. Turner, 736 F. 2d 963, 968 (4th Cir. 1984) (“‘[t]ear gas has also been used to silence noisy, 

misbehaving men while confined to their cells’”), quoting Landman v. Royster, 333 F. Supp. 621 

(E.D. Va. 1971). Again the question is whether the chemical was used to punish maliciously or 

to quell a disturbance. The fact that de minimis injury resulted is also highly relevant. Baldwin, 

supra, at 839 (no Eighth Amendment if de minimis force resulted in de minimis injury). 

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 The Seventh Circuit Court of Appeals issued an opinion in 1984 that is instructive on 

chemical weapons like the mace used by Sergeant Moore. The opinion describes the effects of 

the chemical agent. 

Inmates will generally experience itching, irritation or discomfort for a period of 

time from its use, but washing with water will generally alleviate any discomfort. 

The procedure prescribed following the use of mace is to have the inmate shower, 

have his eyes rinsed out, and change his clothing. This usually gives immediate 

relief of any discomfort. 

Soto v. Dickey, 744 F. 2d 1260, 1262 (7th Cir. 1984). In that case, the institutional officials and 

officers considered mace to be more humane and effective than a “flesh-to-flesh confrontation 

with an inmate.” Id. To avoid the use of mace requires corrections officers to prepare to enter a 

cell and physically overpower an inmate and handcuff him, which logically leads to serious 

injury to both inmates and corrections officers. Id. In Soto, the Seventh Circuit determined that 

when an inmate is hostile, yelling, and throwing liquids and that inmate refuses to come to the 

front of his cell to be handcuffed, the use of mace is appropriate. Id, at 1264-65. An inmate’s 

history of violent behavior can justify use of force, including use of a chemical weapon, to obtain 

compliance. Id, at 1265. The Seventh Circuit explained that there are good reasons for using a 

chemical agent instead of just leaving an inmate alone to calm down in his own good time. 

When an order is given to an inmate there are only so many choices 

available to the correctional officer. If it is an order that requires action by the 

institution, and the inmate cannot be persuaded to obey the order, some means 

must be used to compel compliance, such as a chemical agent or physical force. 

While experts who testified on behalf of the plaintiffs, suggested that rather than 

seek to enforce orders, it was possible to leave the inmate alone if he chooses not 

to obey a particular order, and wait him out, experience and common sense 

establish that a prison cannot be operated in such a way. 

Discipline in a maximum security correctional institution no doubt is 

difficult, but it is essential if the prison is to function and provide for the care, 

safety and security of the staff and inmates. Services to provide food, clothing, 

health, medical, cleaning, laundry and all other services would come to end 

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without discipline. Mob rule would take over. There would not, and could not, be 

any protection for staff or inmates. Orders given must be obeyed. Inmates cannot 

be permitted to decide which orders they will obey, and when they will obey 

them. Someone must exercise authority and control. One can quickly reason what 

would happen in a maximum security prison without proper discipline. 

The evidence establishes that it is the policy and practice at WCI [Waupun 

Correctional Institution] for officers to enter a cell to enforce compliance with 

orders. Inmates are and must be required to obey orders. When an inmate refuses 

to obey a proper order, he is attempting to assert his authority over a portion of 

the institution and its officials. Such refusal and denial of authority places the staff 

and other inmates in danger. One of the plaintiffs' expert witnesses agreed that the 

institution cannot permit an inmate to violate a rule or disobey an order and that 

action must be taken to compel compliance with a lawful order. 

Soto v. Dickey, 744 F. 2d 1260, 1267 (7th Cir. 1984). Also, the setting of precedent is a 

dangerous act for a court to do in this area because changing a court’s opinion requires a higher 

court’s action or a constitutional amendment, and such decisions cannot be easily revised in the 

light of further experience. Id, at 1268-69. 

Therefore, federal courts, “ill-equipped to deal with the increasingly urgent problems of 

prison administration and reform,” have “adopted a broad hands-off attitude towards problems of 

prison administration so that those closest to the situation can make the best decisions, 

corrections officers and officials, without interference.” Id, at 1269. As of the release of the 

above opinion in 1984, the U.S. Supreme Court had not determined that the use of chemical 

agents is per se a violation of the Eighth Amendment, whether the inmate is locked in his cell or 

not. In Soto, the Seventh Circuit concluded that summary judgment was appropriate for 

defendants with regard to those claims of excess force if “the chemical agent was used for failure 

of the inmate to obey a direct order and the use of the mace was a reasonable response to the 

institution’s legitimate security concern.” Id, at 1271. See also Davis v. Cannon, 91 Fed. Appx. 

327 (5th Cir. 2004) (unpublished and not precedent) (sprayed with mace after repeated refusal to 

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23

obey corrections officer’s orders and left in cell where chemical agent still in the air not 

equivalent to excessive force). But see Lawrence v. Bowersox, 297 F. 3d 727 (8th Cir. 2002) 

(shower of mace from large canister because inmate called out “Niggers get naked,” but 

evidencing no threat to officers, was excessive); Treats v. Morgan, 308 F. 3d 868 (8th Cir. 2002) 

(sprayed with mace without verbal warning contrary to jail policy precluded summary judgment 

for defendant); DeSpain v. Uphoff, 264 F. 3d 965 (10th Cir. 2001) (spraying of mace for no 

reason except for purpose of a practical joke by a corrections officer); Foulk v. Charrier, 262 F. 

3d 687, 57 Fed. R. Evid. Serv. 1080 (8th Cir. 2001) (spraying of mace for no reason except for 

purpose of cruelty); Williams v. Benjamin, 77 F. 3d 756 (4th Cir. 1996) (forbidding an inmate 

from washing mace off his face for several hours even though inmate was in four-point restraints 

on a metal bed for eight hours). Defendants consider the above contrary cases to be 

distinguishable from the Plaintiff’s case, and they also do not originate in the Eleventh Circuit. 

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), is one of the two cases in which the 

Eleventh Circuit has determined that an officer’s use of pepper spray in an arrest situation was 

clearly excessive force under § 1983. However, that case involved a woman who 

“was under arrest for offenses of minor severity, handcuffed, secured in the back 

of a patrol car, and posing no threat to Officer Stanfield, herself or the public. In 

addition, the jail ride was four miles and relatively short. There also was a glass or 

plastic partition between Stanfield and Vinyard.” 

Vinyard, 311 F.3d at 1349. Because the officer in Vinyard, who was more than six feet tall and 

weighed over 200 pounds, wanted Vinyard to stop yelling and using abusive language, he 

stopped his patrol car, stepped to the door where Vinyard (who weighed 130 pounds and whose 

hands were handcuffed behind her back and seated in the back seat) sat, opened the car door, 

pulled Vinyard’s head back by her hair, and sprayed her with two or three bursts of pepper spray. 

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24

See also Reed v. City of Lavonia, 390 F. Supp. 2d 1347, 1360 (M.D. Ga. 2005) (“no reasonable 

officer would have believed that Reed posed an immediate threat to the officers (or members of 

the public) or was actively attempting to resist or evade arrest”). But see Reese v. Herbert, 2006 

WL 1892026, *15 (N.D. Ga. 2006) (pepper spray sprayed to plaintiff's face in an attempt to aid 

officers’ attempts to handcuff plaintiff, who was resisting application of handcuffs, does not 

constitute constitutional violation). 

Because the facts of Vinyard and Reed are so different from the facts of this case, 

Sergeant Moore could not have used those opinions as precedent to become informed that his 

own conduct was unconstitutional. First, “a more culpable and subjective mental state than that 

required for excessive force claims arising under the Fourth Amendment's unreasonable seizures 

restriction” is required for Eighth Amendment claims in the confinement setting. See Vinyard, 

supra, 311 F. 3d at 1349 n 15. Second, “[w]hen fact-specific precedents are said to have 

established the law, a case that is fairly distinguishable from the circumstances facing a 

government official cannot clearly establish the law for the circumstances facing that 

government official; so, qualified immunity applies.” See also Garrett v. Athens-Clarke County, 

Ga., 378 F.3d 1274 (11th Cir. 2004) (violently resisting arrestee died after being pepper-sprayed 

and tied in such a way that his body was bowed); McCormick v. City of Fort Lauderdale, 333 

F.3d 1234 (11th Cir. 2003) (officer’s use of pepper spray without warning on arrestee who had 

assaulted a woman was not excessive force under the circumstances, even though the assailant 

was not acting violently at the time of the use of the pepper spray). 

The facts in Vinyard are clearly distinguishable from this case, particularly in the 

Eleventh Circuit’s emphasis in Vinyard on the fact that the plaintiff was already confined and 

handcuffed in the back seat of the officer’s vehicle, posed no threat to the defendant officer 

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during the short four-mile ride to the jail, and the mutual passing of insults between the officer 

and the plaintiff. Vinyard, 311 F. 3d at 1355. A distinction between these Fourth Amendment 

cases, denying an officer immunity, and those cases granting immunity to the officer is whether 

the plaintiff was resisting the arrest. Adding the elements required for an Eighth Amendment 

violation in the confinement context, and there exists no case that could have reasonably 

informed Sergeant Moore or any other person in the administration of the Prentiss Griffith 

Detention Center that his actions were excessive. Also, because Sergeant Moore used the mace 

in a confrontation with the Plaintiff/inmate, who posed a threat and refused to comply with a 

corrections officer’s instruction, and because Plaintiff suffered no injury from the mace, it cannot 

be said that this was a case of obvious clarity, i.e., that a pertinent federal statute or federal 

constitutional provision is specific enough to demonstrate the conduct was illegal, even in the total 

absence of case law. Storck, supra, 354 F.3d at 1317. 

 b. Night Stick

Accepting for the moment Plaintiff’s allegation that Sergeant Moore struck Plaintiff with 

his night stick for fifteen minutes, which Sergeant Moore denies occurred for that length of time, 

Plaintiff’s Complaint still does not allege a constitutional violation under the circumstances.5

Sergeant Moore was clearly acting to protect himself and others and to keep order in the jail, and 

Plaintiff was unfazed by the spray of mace. (Ex. C, Moore aff., ¶¶ 6-9.) Cases governing similar 

situations unanimously support Sergeant Moore’s actions as a corrections officer, even if he had 

hit the Plaintiff for a lengthy period with his baton in order to restore order and stop the 

combative conduct of Plaintiff. 

 

5

 Defendants contend that Plaintiff’s allegation of a fifteen-minute beating by Sergeant Moore with his night stick, in 

the presence of at least three inmates and three other corrections officers, combined with Plaintiff’s resultant lack of 

injuries is on its face fantastic. 

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“These uses of force under these split-second circumstances do not 

‘evince[ ] such wantonness with respect to the unjustified infliction of harm as is 

tantamount to a knowing willingness that it occur.’ Whitley v. Albers, 475 U.S. 

312, 321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). At this point in the encounter. 

‘[p]rison officials had no way of knowing what direction matters would take.’ id. 

at 323, either with respect to Davis's attempt to strike Lieutenant Harris or with 

respect to the officers' ability to bring him under control. ‘Faced with such sudden 

wrongful and quite possible harmful conduct, the prison official on the scene does 

not have the luxury of hindsight and reflection.’ Ort v. White, 813 F.2d 318, 322 

(11th Cir. 1987).” 

Davis v. Agosto, 89 Fed. Appx. 523, 527 (6th Cir. 2004) (corrections officers struck 

unsubmissive inmate with batons to subdue him). See also Lee v. Edwards, 101 F.3d 805 (2nd 

Cir. 1996) (plaintiff was knocked unconscious and had to be hospitalized); Martinez v. Stanford, 

323 F.3d 1178 (9th Cir. 2003) (inmate beaten by several officers and struck by wooden baton 

several times, taken to infirmary); Pryer v. C.O. 3 Slavic, 251 F.3d 448 (3rd Cir. 2001) (two 

corrections officers beat inmate with batons and kicked him to the ground). However, the 

evidence does not support Plaintiff’s version of what happened. Based on the pictures of 

Plaintiff and the affidavits of the nurses and corrections officers who dealt with Plaintiff, his 

bruising was not serious. (Ex. P, Plaintiff Medical Treatment Log, 6 February 2006; Ex. B, 

Russell County Sheriff Department Use of Force Report, 4 February 2006; Ex. Q, Pictures of 

Plaintiff’s Bruising, 6 February 2006; Ex. G, Riley aff., ¶ 4; Ex. H, McInnis aff., ¶¶ 3-5; Ex. C, 

Moore aff., ¶¶ 8-10; Ex. F, Thigpen aff., ¶¶ 4-6.) Also, because there is no evidence establishing 

which bruises were caused by Sergeant Moore’s night stick and which were caused by Plaintiff’s 

previous incidents of fighting with other inmates, even if there was a serious bruise, we do not 

know that Sergeant Moore caused it. 

With respect to the alleged use of the baton, counsel for Sergeant Moore has found cases 

in which an appellate court did not allow the corrections officer to use qualified immunity to 

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27

support summary judgment for that officer; however, those cases, supra, involved different facts, 

either the inmate suffered more severe injury or the corrections officer lacked the motive of selfdefense or order of the corrections facility was not threatened in any way. Plaintiff was a known 

fighter with other inmates in the Detention Center, who was in isolation for fighting, and he 

suffered no apparent injury; therefore, Sergeant Moore’s use of a night stick in a midnight 

security situation involving Plaintiff pouring water in other inmates’ cells and acting 

threateningly does not rise to the level of excessive force. 

The Eleventh Circuit has not issued opinions regarding baton use in the corrections 

context, but it has issued opinions dealing with the arrest situation. Defendants mention these 

opinions as examples recognizing that the corrections situation requires the Plaintiff to meet 

more and higher standards of proof in an excessive force claim. Vinyard, 311 F.3d at 1349. See

Benton v. Hopkins, 2006 WL 2052858, *3 (11th Cir. 2006) (suspect pose[d] an immediate threat 

when he fell on one officer and other officer struck him with his baton). In Evans v. City of 

Neptune Beach, 61 F. Supp. 2d 1245 (M.D. Fla. 1998), again involving circumstances 

surrounding an arrest, a district court judge, affirmed by the Eleventh Circuit, explained in his 

opinion the role of the baton by an officer who chooses in his or her discretion to use force. 

Further, although the issue has not been directly discussed by the parties, it 

is important to consider the force utilized by Marshall and the manner in which he 

utilized it. Unlike a gun, a baton is a weapon that is generally less likely to be 

lethal. Further, common sense dictates that the lethality of a baton blow depends 

on the portion of the body it strikes: a blow to a large muscle mass, such as the 

thigh or buttocks is most likely to produce only pain and bruising; whereas a blow 

to a joint, such as the knee, elbow, could produce a fracture and a blow to the 

head or neck could very easily cause serious injury or death. In this case, 

according to Plaintiff, he was hit in the thigh several times and in the knee once, 

clearly non-lethal, and likely not permanently injurious, blows but, most 

importantly, a reasonable response to a reasonably perceived threat. 

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Evans, 61 F. Supp. 2d at 1252. In this case, Plaintiff has not alleged that Sergeant Moore struck 

him in the head or neck or joint; he complains that he was bruised. 

 In Evans, supra, the trial court also explained what circumstances that the officer 

observed and used to justify his of the baton to deal with the situation. The plaintiff was walking 

away from the combatants and “towards [the officer], not leaving his hands visible and still, 

shifting his stance backwards as the two neared.” Evans, 61 F. Supp. 2d at 1252. Also, the 

officer in Evans was mistaken, thinking that the plaintiff was a combatant when he was not, 

while in this case, Plaintiff had a proven history of combativeness and was taking a combative 

attitude toward not only Sergeant Moore but also his fellow inmates (cursing, stating he had 

“nothing to lose,” refusing to comply with instructions, pouring toilet water into other inmates’ 

cells, etc.). 

The Plaintiff has the burden of either identifying a case showing otherwise or proving 

that the conduct of Sergeant Moore was obviously illegal. The clearly established law cited 

above, makes the Plaintiff’s burden insurmountable. The fact-specific nature of the Plaintiff’s 

claims puts this case outside the realm of obvious clarity cases. See e.g., Campbell, 169 F.3d 

1353, 1374 (11th Cir. 1999) (establishing five fact-specific areas to examine in determining 

whether force is used maliciously and sadistically); Farmer v. Brennan, 511 U.S. 825, 837, 114 

S. Ct. 1970 (1994) (establishing two fact-specific subjective and objective components for 

deliberate indifference). Furthermore, the clearly established law in the Eleventh Circuit 

indicates that Sergeant Moore’s use of force was proper. See Garrett, supra, and McCormick, 

supra. The Plaintiff therefore cannot show that Sergeant Moore violated clearly established law. 

Qualified immunity recognizes the need for public officials to be immune not only from 

liability but from the litigation process itself. The Eleventh Circuit began applying the 

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29

heightened pleading standard in qualified immunity cases against government officials “to weed 

out nonmeritorious claims.” See GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 

1367 (11th Cir. 1998). Hudson, supra, 503 U.S. at 6 (prison officials “should be accorded wideranging deference in the adoption and execution of policies and practices that in their judgment 

are needed to preserve internal order and discipline”). 

The evidence clearly shows that Sergeant Moore has not violated a constitutional right of 

the Plaintiff. However, even if his acts could be construed as violating a right of the Plaintiff, 

Sergeant Moore has done nothing to cross any bright line of clearly established constitutional 

law. Therefore, he is entitled to qualified immunity. 

3. A Fortiori the Other Defendants are Entitled to Summary Judgment

 In order to present a cognizable claim against a public official in his personal capacity, 

the language of 42 U.S.C. § 1983 requires proof of an affirmative causal connection between the 

actions taken by the defendants and the constitutional deprivation. Swint v. City of Wadley, 51 

F. 3d 988 (11th Cir. 1995). The requisite causal connection may be shown by the personal 

participation of the defendant, a policy established by the defendant resulting in indifference to 

constitutional rights, or a breach of a duty imposed by state or local law which results in 

constitutional injury. Zatler v. Wainwright, 802 F. 2d 397 (11th Cir. 1986). Defendants Boswell, 

Alexander, Holland, and Bussey were not even present for the incident alleged by Plaintiff; 

therefore, Plaintiff must show that their actions or inactions created a policy or practice in the 

Prentiss Griffith Detention Center of excessive force or that there was deliberate indifference to 

Plaintiff’s serious medical needs. 

 Plaintiff must show a causal connection between the Defendant and the alleged 

deprivation but may not do so using “respondeat superior.” Brown v. Crawford, 906 F.2d 667, 

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30

671 (11th Cir. 1990). To the extent that Plaintiff’s claim against these Defendants is an attempt 

to hold them liable under a respondeat superior theory, Plaintiff’s claim must similarly fail. 

[Supervisory] liability under § 1983 must be based on something more than a 

theory of respondeat superior. Supervisory liability occurs either when the 

supervisor personally participates in the alleged constitutional violation or when 

there is a causal connection between actions and the supervising official and the 

alleged constitutional violation. The causal connection can be established when a 

history of widespread abuse puts the responsible supervisor on notice of the need 

to correct the alleged depravation, and he fails to do so. 

Dolihite v. Maughon, 74 F.3d 1027, 1052 (11th Cir. 1996). Because Sergeant Moore’s conduct 

did not violate Plaintiff’s constitutional rights and there is no evidence of a lack of training or 

supervision or improper policies by the supervisory staff of the Prentiss Griffith Detention 

Center, Plaintiff has shown no basis whatsoever for including these four Defendants in his 

Complaint. Therefore, his claims against these Defendants should be dismissed. 

F. Summary Judgment Standard 

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). Only 

reasonable inferences with a foundation in the record inure to the nonmovant’s benefit. See

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). “[T]he court should give 

credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the 

moving party that is uncontradicted or unimpeached, at least to the extent that that evidence 

comes from disinterested witnesses.’” Reeves, 530 U.S. at 151, quoting 9A C. Wright & A. 

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31

Miller, Federal Practice and Procedure § 2529, p. 299.6

 “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). 

III. CONCLUSION 

 Defendants, Sheriff Thomas Boswell, Chief Deputy William Alexander, Lieutenant 

Loetta Holland, Sergeant Samuel Pierce Moore, and Sergeant Danny Bussey, deny each and 

every allegation made by Plaintiff James Tyrone Edwards in the Complaint. The Defendants 

have not acted in a manner so as to deprive the Plaintiff of any right to which he is entitled. 

IV. MOTION FOR SUMMARY JUDGMENT 

 Defendants respectfully request that this Honorable Court treat this Special Report as a 

Motion for Summary Judgment, and grant unto them the same. 

Respectfully submitted this the 4th day of December, 2006. 

 s/Winthrop E. Johnson 

WINTHROP E. JOHNSON, Bar No. JOH086 

Attorney for Defendants 

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: ccornelius@webbeley.com 

 

6

 Although Reeves was a review of a motion for judgment as a matter of law after the underlying matter had been 

tried, the Supreme Court, in determining the proper standard of review relied heavily on the standard for summary 

judgment stating, “the standard for granting summary judgment ‘mirrors’ the standard for judgment as a matter of 

law, such that ‘the inquiry under each is the same.’” Reeves, 530 U.S. at 150, citing Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250-251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

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CERTIFICATE OF SERVICE

 I hereby certify that on this the 4th day of December, 2006, I have electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system, and that I have mailed a true 

and correct copy of the foregoing by United States Mail, postage prepaid, to the following nonCM/ECF participant: 

James Tyrone Edwards 

AIS # 244 859 

28779 Nick Davis Rd 

Harvest, AL 35749 

 s/Winthrop E. Johnson 

 OF COUNSEL 

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