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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

HAROLD MOSS 

 Plaintiffs, 

v. 

CURTIS CASEY and OTIS SMITH 

 Defendants. 

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 2:06-CV-784-MEF-VPM 

SPECIAL REPORT

COME NOW the Defendants, Officer Curtis Casey and Lt. Otis Smith, by and 

through undersigned counsel, and in accordance with this Honorable Court’s September 

6, 2006 Order, offer the following written report: 

PARTIES

1. The Plaintiff is an inmate of the Alabama Prison System.

2. Defendant Curtis Casey is a Correctional Officer I with the Alabama Department of 

Corrections and is currently assigned to the Montgomery Pre-Release Center.

3. Defendant Otis Smith is a Correctional Officer Supervisor I with the Alabama 

Department of Corrections and is currently assigned to the Montgomery Pre-Release 

Center.

EXHIBIT

EXHIBIT 1 – Affidavit of Officer Curtis Casey 

EXHIBIT 2 – Affidavit of Lt. Otis Smith 

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 PLAINTIFF’S CLAIMS

Plaintiff claims that he was “. . . vigorously attack’d [sic] by two officers” causing 

swelling to his head, swelling and scarring to his knee, bruising to his face, back aches, 

headaches and a busted lip. Plaintiff demands $100,000 in damages. 

DEFENDANTS’ RESPONSE

1. The Defendants deny that they violated the Plaintiff’s constitutional rights. 

2. The Defendants deny each and every material allegation not specifically admitted 

herein and demand strict proof thereof. 

3. The Plaintiff has failed to state a claim upon which relief may be granted. 

4. The Defendants are immune from suit under the Eleventh Amendment to the 

United States Constitution. 

5. The Defendants are immune from suit due to qualified immunity. 

STATEMENT OF FACTS

 On August 29, 2006, at approximately 9:40 am, Officer Casey instructed Plaintiff 

to take an inmate locker box to the Montgomery Pre-Release Center laundry. Plaintiff 

refused this direct order and informed Officer Casey that he was “. . . not going to carry 

no locker box.” Officer Casey once again gave plaintiff a direct order to carry the locker 

box to the laundry. Plaintiff once again refused to obey the direct order of Officer Casey 

and refused to move. Officer Casey walked up to Plaintiff, grabbed him by the upper part 

of his left arm to escort him into the dorm to talk with Lt. Smith. As Plaintiff was being 

escorted into the dorm area, he pulled away from Officer Casey. Officer Casey then 

placed Plaintiff face down on the floor. Officer Barry Boswell assisted Officer Casey in 

placing handcuffs on Plaintiff. Plaintiff was restrained and escorted to the shift office 

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where the incident was reported to Sgt. William Howard. Once in the shift office, Sgt. 

Howard questioned Plaintiff about the incident. Plaintiff denied being told to do 

anything. 

Plaintiff was then referred to the health care unit for an examination. Upon 

examination, Plaintiff was found to have redness on his forehead, a small amount of 

swelling to his lip with no open cuts, a small amount of redness to his right knee and no 

further injuries or complaints. 

At no time was Plaintiff “vigorously attacked” as alleged. At no time did Lt. 

Smith physically attack Plaintiff. At no time was Plaintiff hit in the back of the head with 

a metal night stick as alleged. All force used against Plaintiff was the appropriate amount 

under the circumstances and in accordance with the Alabama Department of Corrections 

Administrative Regulations. See, Exhibits 1 & 2. 

ARGUMENT

I. Defendants did not use excessive force against plaintiff. 

Claims of excessive force against inmates are governed by the Eighth 

Amendment’s proscription of cruel and unusual punishment. Campbell v. Sikes, 169 F.3d 

1353, 1374 (11th Cir. 1999). To establish an Eighth Amendment claim of excessive force, 

the plaintiff must prove that “‘force was applied ... maliciously and sadistically for the 

very purpose of causing harm.’” Id., quoting Whitley v. Albers, 475 U.S. 312, 320-21, 

106 S.Ct. 1078, 89 L.E.2d 251 (1986). The “core judicial inquiry” in such a claim is 

“whether force was applied in a good-faith effort to maintain or restore discipline, or 

maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 

S.Ct. 995, 999, 117 L.Ed. 2d 156 (1992). 

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In addition to defining the mental state required, Hudson and Whitley outline five 

distinct factors relevant to ascertaining whether force was used “maliciously and 

sadistically for the very purpose of causing harm”: (1) “the extent of the injury”; (2) “the 

need for application of force”; (3) “the relationship between that need and the amount of 

force used”; (4) “any efforts made to temper the severity of a forceful response”; and (5) 

“the extent of the threat to the safety of the staff and inmates, as reasonably perceived by 

the responsible officials on the basis of facts known to them.” Campbell, 169 F. 3d at 

1375; citing Whitley, 475 U.S. at 321; Hudson, 503 U.S. at 7. 

Applying these five factors to the incident involving Plaintiff, Officer Casey, and 

Lt. Smith it is clear that Officer Casey and Lt. Smith did not use excessive force against 

Plaintiff. There was clearly a need for the application of some force when Plaintiff 

steadfastly refused to obey the direct orders of Officer Casey and tried to escape the grasp 

of Officer Casey when being led to Lt. Smith. Officer Casey was required to apply force 

to maintain discipline and divert any further harm to himself, Plaintiff, or others. Lt. 

Dowling used only that amount of force necessary to subdue Plaintiff, cuff Plaintiff’s 

hands and restore discipline, thus preventing the likelihood of further harm. 

Plaintiff was given a physical examination following the incident, and the medical 

findings were consistent with the officers’ report of the facts. The only thing the medical 

examination revealed was a slight redness on Plaintiff’s forehead and knee and slight 

swelling of his lip. These facts demonstrate that Defendants did not use excessive force 

against Plaintiff. His claims are, therefore, due to be dismissed. 

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II. The Defendants are immune from suit. 

This case should also be dismissed because Defendants are immune from suit. 

The Eleventh Amendment to the United States Constitution provides that “[t]he judicial 

power of the United States shall not be construed to extend to any suit in law or equity, 

commenced or prosecuted against one of the United States by citizens of another state, or 

by citizens or subjects of any foreign state.” The Amendment therefore not only bars 

suits against a state by citizens of another state, but also bars suits against a state by that 

state’s own citizenry. See Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 1355 

(1974) and Hans v. Louisiana, 134 U.S. 1, 13-15, 10 S. Ct. 504, 33 L.Ed. 842 (1890). 

The Eleventh Amendment also prohibits suit against state officials and employees 

where the state is the real, substantial party in interest. See Pennhurst State School & 

Hospital v. Halderman, 465 U.S. 89, 101-02, 104 S. Ct. 900, 908-09, 79 L.Ed.2d 67 

(1984). “For example, if a lawsuit seeks to order the state officer to pay funds directly 

from the state treasury for the wrongful acts of the state, then the state is the real party in 

interest and the Eleventh Amendment bars the suit.” Summit Medical Associates, P.C. v. 

Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999). Alabama has not waived its Eleventh 

Amendment immunity, and Congress has not abrogated Alabama's immunity. Therefore, 

Officer Casey and Lt. Smith are immune from claims brought against them in their 

official capacity. Lancaster v. Monroe County, 116 F.3d 1419 (11th Cir.1997); see also, 

McClure v. Houston County, AL., 306 F. Supp. 2d 1160 (M.D. Ala. 2003). 

In addition, all of the Defendants are protected by qualified immunity. As stated 

by the Eleventh Circuit, “[q]ualified immunity protects government officials from civil 

trials and liability when their conduct in performing discretionary functions ‘violates no 

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clearly established statutory or constitutional rights of which a reasonable person would 

have known.’” Wilson v. Blakenship, 163 F.3d 1284, 1288 (11th Cir. 1998) (quoting

Lassiter v. Alabama A & M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) 

(en banc)). Wilson, supra (holding that the marshal, wardens, and corrections officer were 

protected by qualified immunity); see also Pinkney v. Davis, 952 F. Supp. 1561 (M.D. 

Ala. 1997) (holding that wardens, deputy warden, and other prison officials were entitled 

to qualified immunity). The Eleventh Circuit has held that “[p]rison officials have ‘wideranging deference in the adoption and execution of policies and practices that in their 

judgment are needed to preserve internal order and discipline and to maintain institutional 

security.’” Wilson, 163 F.3d at 1295, quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 

1861, 1878 (1979). Monitoring, disciplining and restraining inmates are dangerous 

undertakings that require the use of discretion. Therefore, Plaintiff must allege a valid 

violation of his constitutional rights, and show that the Defendant knew that his actions 

violated clearly established law. Plaintiff’s allegations of cruel and unusual punishment, 

even if proven, show nothing more than de minimis injury. See, Body Chart, attached to 

Exhibits 1 & 2. The Plaintiff has failed to prove any act or injury that rises to a 

constitutional violation of his rights as a prisoner. The Defendants are therefore entitled 

to qualified immunity. 

To state a valid excessive force claim, an inmate’s injuries need not be significant, 

but must be more than de minimis. Harris v. Garner, 190 F.3d 1279, 1287 (11th Cir.); 

modified in part by Harris v. Garner, 216 F. 3d 970 (2000). Plaintiff’s Complaint alleges 

no injury upon which he can base a valid excessive force claim. 

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The Eleventh Circuit follows a two part test to determine whether a plaintiff has 

established a valid excessive force claim. Lanier v. Fralic, No. Civ.A.98-0923AHL, 2000 

WL 1844679 *4 (11th Cir. 2000). The test has an objective and subjective component. Id. 

PLaintiff’s excessive force claim cannot be maintained unless he establishes: 

1. That he suffered injury that was objectively harmful 

enough to establish a constitutional violation, and 

2. That subjectively, defendant acted maliciously or 

sadistically to cause the plaintiff harm. 

The Eleventh Circuit has observed that injuries resulting from similar usage of 

force alleged by Plaintiff are too minor to support the objective prong of the excessive 

force test. Lanier at *5 n.5. (citing as de minimis injuries: Markiewicz v. Washington, 

1999 WL 196596 (7th Cir.1999) (a bruised shoulder from being shoved into a wall); 

Siglar v. Hightower, 112 F.3d 191 (5th Cir.1997) (a sore, bruised ear lasting three days); 

Williams v. Dehay, 1996 WL 128422 (4th Cir.1996) (transitory back and shoulder aches 

of limited duration); Schoka v. Swinney, 1995 WL 251126 (9th Cir.1995) (a 1.5 inch 

scratch on the back of the hand from handcuffs); Riley v. Dotson, 115 F.3d 1159 (4th 

Cir.1997) (a welt from a slap on the face); Lunsford v. Bennett, 17 F.3d 1574 (7th 

Cir.1994) (daily headaches without treatment from being hit with a water bucket); 

Norman v. Taylor, 25 F.3d 1259 (4th Cir.1994) (A sore and swollen thumb from being hit 

with keys)). See also Santiago v. Semenza, 965 F. Supp. 468, 472 (S.D.N.Y. 1997) 

(holding that an officer’s striking an insubordinate prisoner in the face causing bruising 

was not excessive force). Plaintiff’s allegations of injuries are de minimis, and his 

excessive force claim fails and Lt. Copeland is entitled to summary judgment. 

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CONCLUSION

 There are no genuine issues of material fact, and the Defendants are entitled to 

judgment as a matter of law. WHEREFORE, the Defendants respectfully request that 

this Honorable Court dismiss the claims against them. 

 Respectfully submitted, 

 TROY KING (KIN047) 

 Attorney General 

 /s/ Benjamin H. Albritton

 Benjamin H. Albritton (ALB008) 

 Assistant Attorney General 

 

ADDRESS OF COUNSEL: 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

(334) 242-7555 

(334) 242-7433 - fax 

CERTIFICATE OF SERVICE

I hereby certify that I have, this the 15th day of November, 2006, served a copy of 

the foregoing upon the Plaintiff by placing same in the United States Mail, postage 

prepaid and properly addressed as follows: 

Harold Moss, 170262 

Montgomery Pre-Release Center 

PO Box 75 

Mt. Meigs, AL 36057 

 /s/ Benjamin H. Albritton

 Benjamin H. Albritton 

Assistant Attorney General 

 

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