IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

BERTHA ALLEN, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Civil Action No. 3:06-cv-00772-WKW-DRB 

 ) 

TALLAPOOSA COUNTY ) 

J AIL STAFF, et al., ) 

 ) 

 Defendants. ) 

DEFENDANTS’ SPECIAL REPORT

COME NOW Tallapoosa County Sheriff Jimmy Abbett, Chief Deputy Kenny Sherrer, 

Jail Administrator Blake Jennings, Lt. Jason Cowart, Sgt. Patricia Guthrie, Sgt. Chris Nail, and 

Corrections Officer Dodi Shaddix, Defendants in the above-styled cause, and submit their 

Special Report to the Court.

INTRODUCTION 

On August 28, 2006, Plaintiff Bertha Allen filed her Complaint in the United States 

District Court for the Middle District of Alabama. On August 30, 2006, this Court ordered the 

Defendants to file a Special Report and Answer in response to Plaintiff’s Complaint. 

 Plaintiff was transferred to the Tallapoosa County Jail on March 21, 2006 from the 

Houston County Jail on charges of receipt of stolen property and possession of a forged 

instrument. (Exhibit A, Uniform Arrest Report1

 and Alabama Uniform Incident Report; Exhibit 

C, Grand Jury Indictment; Exhibit D, Tallapoosa County Jail In-processing Checklist; Exhibit E, 

Order from Tallapoosa County Circuit Court dated March 8, 2006.) Plaintiff was sentenced on 

April 13, 2006 to fifteen years imprisonment due to her being a habitual offender. (Exhibit F, 

 

1

 For authentication of documents which are part of Plaintiff’s Inmate File, see Exhibit B, Affidavit of Blake 

Jennings, “Jennings Aff.,” ¶ 22. 

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Plea Agreement.) The Plaintiff was released from the Tallapoosa County Jail and transferred to 

Tutwiler Women’s Prison on June 16, 2006. (Exhibit G, Tallapoosa County Jail Out-processing 

Checklist.) 

PLAINTIFF’S ALLEGATIONS 

The Plaintiff alleges that, on May 30, 2006, she told Lt. Cowart before Inmate Missy 

Eason was placed into Plaintiff’s cell (A-2) that Eason was a “known violent person, [Eason] has 

assaulted other inmates, and that [Eason] was a threat to us being in there2.” (Plaintiff’s 

Complaint, p. 3.) Plaintiff states that after talking with Lt. Cowart she was returned to cellblock 

A-2, at which time Eason “started verbally cussing [her] out” “which lead to a physical 

altercation between her and myself.” (Plaintiff’s Complaint, p. 3.) During this fight Eason’s 

fingernail allegedly cut Plaintiff’s eye and Plaintiff was given immediate medical treatment. 

(Plaintiff’s Complaint, p. 3.) Plaintiff claims that rights guaranteed to her by the Eighth 

Amendment have been violated by Defendants failure to protect her from harm. (Plaintiff’s 

Complaint, p. 2.) 

Plaintiff also complains that on April 20, 2006, she overheard Eason tell Officer Shaddix 

that Eason felt like fighting someone in A-2, but that Shaddix did not move Eason from A-2. 

(Plaintiff’s Complaint, p. 3.) Plaintiff states that Shaddix told Eason not to fight anyone. 

(Plaintiff’s Complaint, p. 3.) On April 22, 2006, Eason fought with inmate Kristy Jones in cell 

A-2. Then Sgt. Nail moved Eason to cell A-1. (Plaintiff’s Complaint, p. 3.) 

Plaintiff also complains that Defendants did not transport her to a hearing against Eason 

on August 3, 2006, although she was incarcerated at Tutwiler on this date. (Plaintiff’s 

Complaint, p. 3.) 

 

2

 In her statement to the officer who investigated the altercation between Plaintiff and Eason, Plaintiff stated that she 

told Cowart that “Missy [Eason] was a violent person and that she was going to fight with someone.” (Exhibit H, 

Tallapoosa County Sheriff Department Interview Sheet signed by Plaintiff.) 

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The Plaintiff requests monetary damages in the amount of $75,000, compensatory 

damages in the amount of $75, 000, punitive damages in the amount of $80,000, as well as filing 

fees and court costs to be paid by Defendants. (Plaintiff’s Complaint, p. 4.) 

DEFENDANTS’ RESPONSE TO PLAINTIFF’S ALLEGATIONS

 Defendants deny the allegations made against them by Plaintiff as being untrue and 

completely without basis in law or fact. Defendants deny that they acted, or caused anyone to 

act, in such a manner as to deprive the Plaintiff of any right to which she was entitled. (Exhibit I, 

Affidavit of Sheriff Jimmy Abbett3, “Abbett Aff.,” ¶ 4; Exhibit J, Affidavit of Kenny Sherrer4, 

“Sherrrer Aff.,” ¶ 4; Jennings Aff.5 ¶ 4; Exhibit K, Affidavit of Jason Cowart6, “Cowart Aff.,” ¶ 

4; Exhibit L, Affidavit of Patricia Guthrie7, “Guthrie Aff.,” ¶ 4; Exhibit M, Affidavit of Chris 

Nail8, “Nail Aff.,” ¶ 4; Exhibit N, Affidavit of Dodi Shaddix9, “Shaddix Aff.,” ¶ 4.) 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. 

 

3

 Sheriff Abbett is the duly elected Sheriff of Tallapoosa County, Alabama. He has served as Sheriff since 1995. 

Prior to serving as Sheriff, Sheriff Abbett retired from the Alabama Bureau of Investigation where he served as an 

Investigator. (Abbett Aff. ¶ 2.) 

4

 Chief Deputy Sherrer is employed as the Chief Deputy for the Tallapoosa County Sheriff and was so employed 

during Plaintiff’s incarceration at the Tallapoosa County Jail. (Sherrer Aff. ¶ 2.) 5

 Blake Jennings has been employed by the Tallapoosa County Sheriff’s Department since 1998. He served as an 

Investigator from 1998 until he became the Jail Administrator on March 19, 2005. Jail Administrator Jennings is a 

graduate of the Corrections Academy. (Jennings Aff. ¶ 2.) 

6

 Lt. Cowart is employed as a Corrections Officer at the Tallapoosa County Jail with the rank of Lieutenant and is a 

graduate of the Corrections Academy. (Cowart Aff. ¶ 2.) 7

 Sgt. Guthrie is employed as a Corrections Officer at the Tallapoosa County Jail with the rank of Sergeant and is a 

graduate of the Corrections Academy. Sgt. Guthrie was employed in this capacity during Plaintiff’s incarceration at 

the Tallapoosa County Jail. (Guthrie Aff. ¶ 2.) 

8

 Sgt. Nail is employed as a Corrections Officer at the Tallapoosa County Jail with the rank of Sergeant. He was 

promoted to the rank of Sergeant on January 6, 2006 and is a graduate of the Corrections Academy. (Nail Aff. ¶ 2.) 

9

 Officer Shaddix is employed as a Corrections Officer at the Tallapoosa County Jail and is a graduate of the 

Corrections Academy. Officer Shaddix was employed in this capacity during Plaintiff’s incarceration at the 

Tallapoosa County Jail. (Shaddix Aff. ¶ 2.) 

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I. FACTS 

 Sheriff Jimmy Abbett has delegated the responsibility for the day-to-day functions of the 

Tallapoosa County Jail to Blake Jennings, the Jail Administrator for Tallapoosa County. As 

Sheriff of Tallapoosa County, Sheriff Abbett is responsible for promulgating the policies 

governing the Tallapoosa County Jail. (Abbett Aff. ¶ 5.) Sheriff Abbett has no personal 

knowledge of any of the specific allegations that form the basis of Plaintiff’s Complaint. (Abbett 

Aff. ¶ 3.) 

It is the policy of the Tallapoosa County Jail that a known enemies list be maintained on 

inmates incarcerated at the jail. (Abbett Aff. ¶ 6; Jennings Aff. ¶ 6; Sherrer Aff. ¶ 6; Cowart Aff. 

¶ 11; Guthrie Aff. ¶ 6; Nail Aff. ¶ 6; Shaddix Aff. ¶ 10.) Inmates are given the opportunity at the 

time of booking to make the booking officer aware of any known enemies in the jail. (Abbett 

Aff. ¶ 7; Jennings Aff. ¶ 7; Sherrer Aff. ¶ 7; Cowart Aff. ¶ 12; Guthrie Aff. ¶ 7; Nail Aff. ¶ 7; 

Shaddix Aff. ¶ 11.) Further, the known enemies list is updated if any Tallapoosa County Jail 

officer becomes aware of additional enemies. (Abbett Aff. ¶ 8; Jennings Aff. ¶ 8; Sherrer Aff. ¶ 

8; Cowart Aff. ¶ 13; Guthrie Aff. ¶ 8; Nail Aff. ¶ 8; Shaddix Aff. ¶ 12.) 

Inmates are housed separately from any known enemies. (Abbett Aff. ¶ 9; Jennings Aff. 

¶ 9; Sherrer Aff. ¶ 8; Cowart Aff. ¶ 14; Guthrie Aff. ¶ 9; Nail Aff. ¶ 9; Shaddix Aff. ¶ 13.) An 

inmate may make an oral or written request at any time to any officer to be moved to a different 

cell if he has been threatened or is otherwise in danger. Each cell is equipped with an intercom, 

so an inmate may make such a request at any time. (Abbett Aff. ¶ 10; Jennings Aff. ¶ 10; 

Sherrer Aff. ¶ 8; Cowart Aff. ¶ 15; Guthrie Aff. ¶ 10; Nail Aff. ¶ 10; Shaddix Aff. ¶ 14.) 

All Tallapoosa County Jail officers understand that such a request is to be taken 

seriously. In the event an inmate requests to be moved because he has been threatened or is 

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otherwise in danger, that inmate will be moved immediately. (Abbett Aff. ¶ 11; Jennings Aff. ¶ 

11; Sherrer Aff. ¶ 8; Cowart Aff. ¶ 16; Guthrie Aff. ¶ 11; Nail Aff. ¶ 11; Shaddix Aff. ¶ 15.) 

It is the policy of the Tallapoosa County Jail that, anytime an assault takes place in the 

Tallapoosa County Jail, the responding officers are to ensure that any medical needs are met, 

involved inmates are separated, and an investigator from the Tallapoosa County Sheriff’s 

Department is called to investigate the incident. (Abbett Aff. ¶ 15; Jennings Aff. ¶ 15; Sherrer 

Aff. ¶ 13; 

Internal grievance procedures at the Tallapoosa County Jail are available to all inmates, and 

this policy is made known to the inmates upon their admission to the Jail via the Inmate Rules and 

Regulations Handbook. It is the policy of the Tallapoosa County Jail that inmates are permitted to 

submit grievances and that each grievance will be acted upon accordingly. Inmates are given an 

inmate grievance form upon their request to complete and return to a jail staff member for any 

grievance they may have. Any officer receiving a grievance form is to pass the grievance on to 

either Jail Administrator Jennings or the Lieutenant for appropriate handling. A copy of any 

grievance form which is filed by an inmate is placed in the inmate’s Inmate File. (Abbett Aff. ¶ 16; 

Jennings Aff. ¶ 18; Sherrer Aff. ¶ 14; Cowart Aff. ¶ 18; Guthrie Aff. ¶ 13; Nail Aff. ¶ 13; 

Shaddix Aff. ¶ 17; Exhibit O, Inmate grievance policy from Tallapoosa County Jail Inmate 

Handbook.) Inmate grievances are also logged into a database kept on the jail’s computer system. 

(Jennings Aff. ¶ 18.) 

Upon the Jail Administrator’s review of the Plaintiff’s inmate file, and the jail computer 

database, there is no grievance filed by Plaintiff regarding the altercation between Plaintiff and 

Eason. (Jennings Aff. ¶ 18.) Further, no Defendant received a grievance from the Plaintiff 

regarding the incident made the basis of this Complaint. (Abbett Aff. ¶ 17; Jennings Aff. ¶ 17; 

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Sherrer Aff. ¶ 15; Cowart Aff. ¶ 18; Guthrie Aff. ¶ 13; Nail Aff. ¶ 13; Shaddix Aff. ¶ 17.) 

Inmates can appeal the outcome of a grievance to the Jail Administrator, then to the Chief 

Deputy, and finally to the Sheriff. Neither Sheriff Abbett, Chief Deputy Sherrer or Jail 

Administrator Jennings has received an appeal of a grievance from Plaintiff. (Abbett Aff. ¶ 17; 

Jennings Aff. ¶ 19; Sherrer Aff. ¶ 15). Plaintiff understood the grievance procedures at the 

Tallapoosa County Jail and knew how to file a grievance as evidenced by a grievance she filed 

on March 23, 2006 regarding a hair comb. (Exhibit P, Allen Grievance dated March 23, 2006.) 

The Defendants have complied with all policies and procedures of the Tallapoosa County 

Jail. They are not aware of nor have they authorized or allowed any deviation from said policies 

and procedures. (Abbett Aff. ¶ 19; Jennings Aff. ¶ 21; Sherrer Aff. ¶ 16; Cowart Aff. ¶ 19; 

Guthrie Aff. ¶ 14; Nail Aff. ¶ 14; Shaddix Aff. ¶ 18.) 

In April of 2006, prior to the incident between Eason and Inmate Kristy Baker10, Eason 

stated to Officer Shaddix that she was “in a fighting mood today.” Shaddix told Ms. Eason that 

if any sort of confrontation happened, if cross words were said or if she felt like a fight was 

going to break out to push the call button in the cell and she would be immediately removed. 

(Shaddix Aff. ¶ 5.) 

Plaintiff overheard Ms. Eason’s statement and stated generally to Officer Shaddix “you 

could feel threatened by Missy.” Plaintiff never stated or indicated to Shaddix that she felt

threatened by Missy Eason. Plaintiff has never made any comment to Shaddix indicating that 

she feared violence from Ms. Eason. (Shaddix Aff. ¶ 6.) 

Officer Shaddix told Plaintiff that if Plaintiff had any problems with Eason and felt like 

there might be a fight, she should push the intercom button in the cell to call a corrections officer 

 

10 Plaintiff incorrectly identifies this inmate as Kristy Jones. 

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and Plaintiff would be removed from the cell. Shaddix was not aware of any history of 

animosity or fighting between Plaintiff and Ms. Eason. (Shaddix Aff. ¶ 7.) The Plaintiff had 

never made a request to Shaddix to be separated from Missy Eason. (Shaddix Aff. ¶ 16.) 

On April 22, 2006, Inmate Missy Eason, who was housed in cell A-2, got into a fight with 

Inmate Kristy Baker, who was also housed in A-2. Eason was moved to cell A-1 at this time. On 

May 30, 2006, Eason was moved to cell A-2 because she was having problems with an inmate in 

cell A-1. Kristy Baker was gone from the jail by this time. A-1 and A-2 are the two female cells at 

the Tallapoosa County Jail. (Jennings Aff. ¶ 5.) 

After the altercation between Baker and Eason, Shaddix was not involved in placing 

Eason back into cell A-2. (Shaddix Aff. ¶ 8.) 

On May 30, 2006, just before Inmate Missy Eason was moved into cell A-2, which 

housed the Plaintiff, Plaintiff asked if she could speak with Lt. Cowart. Plaintiff was taken to 

Cowart’s office so that she could speak to him. Plaintiff stated to Cowart that Inmate Eason “has 

a mouth” and was “violent.” Plaintiff did not request that she be moved from cell A-2. Instead, 

Plaintiff stated that she wanted Eason moved to an isolation cell because Plaintiff was “tired of 

her mouth.” (Cowart Aff. ¶5.) 

Lt. Cowart told Plaintiff that Ms. Eason would not be moved unless she had done 

something wrong. Plaintiff did not state that Ms. Eason had threatened her. In fact, Plaintiff 

specifically stated that she was not scared of Ms. Eason. Plaintiff stated “if she [Ms. Eason] 

starts talking, I’m not going to listen.” (Cowart Aff. ¶6.) 

This is the only time that Plaintiff has ever made any statement to Cowart concerning 

Missy Eason. If Plaintiff had indicated that she was threatened or otherwise in danger, Cowart 

would have moved her to a different cell. Before the incident between Plaintiff and Ms. Eason 

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took place, Cowart was unaware of any previous arguments or fights between these two inmates 

and was unaware of any history of animosity between these two inmates. (Cowart Aff. ¶7.) Had 

the Plaintiff made Cowart aware that she was threatened by Eason, she would have been separated 

from Eason immediately. However, despite having the opportunity, the Plaintiff never made 

Cowart aware of such. (Cowart Aff. ¶ 17.) 

Neither the Plaintiff nor anyone else had ever made any Defendant aware that the 

Plaintiff had been threatened by Eason or felt that she was in danger because she was housed 

with Eason. The Plaintiff never asked Sheriff Abbett, Chief Deputy Sherrer, Administrator 

Jennings. Lt. Cowart, Sgt. Guthrie, Sgt. Nail or Officer Shaddix to be moved out of the cell 

where Eason was housed. Further, no Defendant was aware of any problems between the Plaintiff 

and Eason or history of animosity or fighting between Plaintiff and Eason until after the incident 

made the basis of the Complaint took place. (Abbett Aff. ¶ 14; Jennings Aff. ¶ 12; Sherrer Aff. ¶ 

12; Guthrie Aff. ¶¶ 5, 12; Nail Aff. ¶ 12; Cowart Aff. ¶¶ 7, 17; Shaddix Aff. ¶ 7.) Had the 

Plaintiff made any of the officers aware that she was threatened by Eason, she would have been 

separated from Eason immediately per Tallapoosa County Jail policy. (Abbett Aff. ¶ 12; Jennings 

Aff. ¶ 13; Sherrer Aff. ¶ 11; Guthrie Aff. ¶ 11; Nail Aff. ¶ 11; Cowart Aff. ¶ 17; Shaddix Aff. ¶¶ 

15, 16.) 

At the time of the incident between Allen and Eason, space was available in cells B6 or B7 

to move these inmates had either requested to be separated. Cells B6 and B7 are isolation cells that 

can house up to two inmates. (Jennings Aff. ¶ 14.) 

Per Jail policy, an investigator from the Tallapoosa County Sheriff’s Department was 

called in to investigate the altercation between Plaintiff and Ms. Eason after the incident took 

place. (Jennings Aff. ¶ 16; Cowart Aff. ¶ 8; Exhibit H, Tallapoosa County Sheriff Department 

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Interview Sheets of Bertha Allen, Missy Eason, Delberah Whitaker, Jessica McDaniel, Teresa 

Fuller, and Elizabeth Krause.) Lt. Cowart responded to the fight between Ms. Eason and 

Plaintiff. After the investigation it was unable to be determined who started the fight. (Cowart 

Aff. ¶ 9.) 

After Plaintiff was transferred to Tutwiler Women’s Prison, neither Sheriff Abbett or 

Administrator Jennings received an order from any court to transport the Plaintiff to a hearing. 

When Plaintiff was transferred to Tutwiler, she was no longer within the custody of the Tallapoosa 

County Sheriff, and the Tallapoosa County Sheriff had no responsibility or right to transport her 

anywhere without a court order. (Jennings Aff.¶ 20; Abbett Aff. ¶ 18.) 

II. LAW 

A. All claims by Plaintiff against Defendants in their official capacities must fail 

based on Eleventh Amendment immunity and because they are not 

“persons” under 42 U.S.C. § 1983. 

 Plaintiff’s claims against the Defendants in their official capacities 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 

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, 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 

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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 Defendants in their 

official capacities should therefore be dismissed because they are not “persons” under § 1983, 

and, accordingly, claims against them in their official capacities fail to state a claim upon which 

relief can be granted. Id.; Carr, 916 F.2d at 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 her. First, the Plaintiff has not exhausted the grievance procedures provided at the 

Tallapoosa County Jail. Second, she has not alleged that she pursued any grievance through the 

State Board of Adjustment. See Brown v. Tombs, 139 F.3d 1102, 1103-04 (6th Cir. 1998) 

(requiring prisoners to affirmatively show that they have exhausted administrative remedies). 

Despite the availability of a grievance procedure at the Tallapoosa County Jail, the Plaintiff did 

not file a grievance regarding the incident made the basis of his Complaint. 

In addition to the grievance procedure at the local level, Alabama law provides the 

opportunity to file a claim and proceed before the State of Alabama Board of Adjustment 

pursuant to Ala. Code § 41-9-60. The Sheriff of Tallapoosa County is a state officer, as are his 

alter egos, and therefore would be entitled to sovereign immunity. See Lancaster v. Monroe 

County, 116 F.3d 1419, 1429 (11th Cir. 1998). Due to this immunity, the State of Alabama has 

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provided an administrative remedy for the recovery of money damages through the State of 

Alabama Board of Adjustment. 

As a result of Plaintiff’s failure to exhaust these two remedies, she 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, 

stating that the judicially recognized futility and inadequacy exceptions that existed under former 

§1997e(a) are not applicable under the new mandatory exhaustion requirement of the PLRA); 

Booth v. Churner, 532 U.S. 731 (2001) (concluding that the exhaustion of administrative 

remedies is now mandatory and courts cannot excuse exhaustion). 

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

because she has not suffered any physical injury as a result of the 

allegations in his Complaint. 

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, 1312-1313 (11th Cir. 2002) 

(quotation marks omitted). The evidence shows that the Plaintiff only had a superficial cut to her 

eye as a result of the incident made the basis of her Complaint. Because Plaintiff has not made a 

showing of physical injury that is greater than de minimis, his Complaint is due to be dismissed. 

C. Alternatively, Defendants are entitled to qualified immunity because nothing 

in their conduct crossed a “bright line” contour of clearly established 

constitutional law. 

Defendants were acting within their discretionary authority as Sheriff, Chief Deputy, Jail 

Administrator and Correction Officers of Tallapoosa County during all times relevant to 

Plaintiff’s Complaint because all their actions were taken in the furtherance of their job duties. 

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See, e.g. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1267 (11th Cir. 2004). Once a 

defendant has asserted the defense of qualified immunity and shown that he was acting within 

his discretionary authority, the threshold inquiry a court must undertake is whether the plaintiff’s 

allegations, if true, establish a constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 

(2001). This initial inquiry is whether “[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. 

(citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)). The second inquiry is, if a constitutional 

violation is stated, were these rights “clearly established” to the degree that these Defendants had 

“fair warning” that their conduct violated the plaintiff’s constitutional rights? Willingham v. 

Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003). 

In making an assessment of whether the particular conduct of these Defendants was clearly 

established as being violative of constitutional dictates, 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). A constitutional right is clearly established only if its contours are “sufficiently clear 

that a reasonable official would understand that what he is doing violates that right.” Anderson v. 

Creighton, 483 U.S. 635, 640 (1987); Lancaster, 116 F.3d 1419, 1424 (11th Cir. 1997). “In this 

circuit, the law can be ‘clearly established’ for qualified immunity purposes only by decisions of 

the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state 

where the case arose.” Jenkins v. Talladega Bd. of Educ., 115 F.3d 821, 827 (11th Cir. 1997) (en 

banc) (citations omitted). 

 “[N]ot . . . every injury suffered by one prisoner at the hands of another . . . translates into 

constitutional liability for prison officials responsible for the victim’s safety.” Farmer v. 

Brennan, 511 U.S. 825, 834 (U.S. 1994). A jail officer only violates the Eighth Amendment 

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when two conditions are met: (1) the inmate must show “that he is incarcerated under conditions 

posing a substantial risk of serious harm” and (2) “the official must both be aware of facts from 

which the inference could be drawn that a substantial risk of serious harm exists, and he must 

also draw the inference.” Farmer, 511 U.S. at 834 and 837. Deliberate indifference is roughly 

equivalent to criminal recklessness. Id. at 839-890. 

 The Eleventh Circuit considered a case where the inmate had not requested protection 

from the other inmate involved and where the officer had no knowledge of a threat prior to the 

injury, and concluded that a plaintiff’s failure to protect claim must fail. Carter v. Galloway, 

352 F.3d 1346, 1349-51 (11th Cir. 2003) (“[M]erely negligent failure to protect an inmate from 

attack does not justify liability under section 1983.” Id. at 1350); see also McBride v. Rivers, 

2006 WL 622591, * 3 (11th Cir. 2006) (holding that, where the plaintiff “did not identify a 

specific prior incident [to the defendant], from which the defendant could infer that a substantial 

risk existed,” the plaintiff’s failure to protect claim failed); Johnston v. Crosby, 135 Fed. Appx. 

375, *2 (11th Cir. 2005) (holding that, where there was no evidence indicating that the plaintiff 

notified the defendants of any particularized threat, the plaintiff failed to show “deliberate 

indifference to a substantial risk of serious harm and, thus, a violation of the Eighth 

Amendment.”) “[A]n official’s failure to alleviate a significant risk that he should have 

perceived but did not, while no cause for commendation, cannot under our cases be condemned 

as the infliction of punishment.” Farmer v. Brennan, 511 U.S. 825, 838 (U.S. 1994). In Carter, 

the facts were as follows: 

Defendants’ [sic] clearly knew that Inmate Barnes was a “problem inmate” with a 

well-documented history of prison disobedience and had been prone to violence. 

Defendants also had specific notice from Plaintiff that Inmate Barnes acted crazy, 

roaming his cell like a “caged animal.” . . . Defendant Galloway, serving as a 

Deputy Warden, heard many complaints from Plaintiff. But Plaintiff never told 

Galloway that Plaintiff feared Barnes or that Barnes clearly threatened Plaintiff. 

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Plaintiff complained about Barnes acting crazy, wanting to fake a hanging, and 

making a statement that Plaintiff would help in the fake hanging “one way or 

another.” 

Carter, 352 F.3d at 1349. The Court in Carter held that “before defendants’ awareness arises to a 

sufficient level of culpability, there must be much more than mere awareness of [the inmate’s] 

generally problematic nature.” Id.

The alleged facts in the instant case are even less serious than the facts presented in 

Carter, where no constitutional violation was found. In the case at bar, the Plaintiff alleges that 

Eason was a problem inmate. However, just like the plaintiff in Carter, Plaintiff Allen has not 

alleged that she ever told the Defendants that she feared Eason or that Eason had threatened 

Plaintiff. In the instant case, Plaintiff has not shown that she was faced with substantial risk of 

serious harm, nor can she show that the Defendants were aware of any such risk. The Plaintiff 

does not allege that the Defendants were aware of any such risk, and the Defendants have 

testified that they did not, in fact, have any knowledge of such a risk. The Plaintiff had not 

requested protection from the other inmate involved, and the Defendants had no knowledge of a 

threat prior to the injury. In fact, Plaintiff does not allege that Eason started the alleged fight 

with the Plaintiff. And, just like the Plaintiff in McBride, the Plaintiff did not identify a specific 

prior incident to the Defendants from which they could infer that a substantial risk existed. 

Therefore, according to the law of the Eleventh Circuit, Plaintiff’s failure to protect claim must 

fail. 

Further, Plaintiff cannot maintain a claim against Defendants for not transporting her 

from Tutwiler to a hearing in Tallapoosa County. Plaintiff has admitted she was incarcerated at 

Tutwiler when this alleged hearing occurred and has presented no evidence that Defendants were 

ordered by any Court to transport Plaintiff to this hearing. 

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Because in the case at bar, the Plaintiff cannot show that the Defendants were “aware of 

specific facts from which an inference could be drawn that a substantial risk of serious harm 

exist[ed]” and that the Defendants actually drew the inference, the Plaintiff has failed to meet her 

burden in establishing deliberate indifference to a substantial risk of serious harm, and 

accordingly, she has failed to establish a constitutional violation. See, e.g., Johnston v. Crosby, 

135 Fed. Appx. at *2. 

Assuming, arguendo, that the Plaintiff could demonstrate a constitutional violation, she 

must still show that clearly established law provided the Defendants with fair warning that their 

conduct was unlawful. She may do so 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 are specific enough to demonstrate 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 Defendant was unconstitutional with “obvious 

clarity,” “the unlawfulness must have been apparent.” Willingham, 321 F.3d at 1301. “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). 

In light of applicable Eleventh Circuit law, it is obvious that the Defendants have done 

nothing to cross any bright line of clearly established constitutional law. Therefore, the Plaintiff 

cannot meet her burden in this regard, and the Defendants are entitled to qualified immunity on 

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Plaintiff’s claims. 

D. Plaintiff has failed to allege sufficient personal involvement on each claim. 

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, 999 (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 state of local law which results in 

constitutional injury. Zatler v. Wainwright, 802 F. 2d 397, 401 (11th Cir. 1986). 

The Plaintiff has failed to allege that Sheriff Abbett, Chief Deputy Sherrer, Jail 

Administrator Jennings, Lt. Cowart, Sgt. Guthrie, Sgt Nail or Officer Shaddix were in any way 

personally involved in any alleged violation of Plaintiff’s constitutional rights. Plaintiff has offered 

no allegation demonstrating that these named Defendants were in any way involved in the actions 

she claims were constitutionally infirm. There are absolutely no facts to show that Defendants 

personally participated in her claims, nor does the Plaintiff allege specifically how these Defendants 

violated her constitutional rights. 

In fact, the Plaintiff never alleges facts showing that any Defendant was aware that she was 

in danger because she was housed with Eason, and the testimony of the Defendants show that they 

were not aware of any such danger. 

To the extent that Plaintiff’s claims are an attempt to hold the Defendants liable under a 

respondeat superior theory, the claim must similarly fail. See Monell v. Dep’t of Soc. Servs., 

436 U.S. 658, 691 (1978). The Eleventh Circuit in Hartley v. Parnell, 193 F.3d 1263 (11th Cir. 

1999), established exactly what is required to state a claim (or prove) supervisory liability: 

Supervisory liability [under § 1983] occurs either when the supervisor personally 

participates in the alleged constitutional violation or when there is a causal 

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connection between actions of the supervising official and the alleged 

constitutional deprivation. 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 deprivation, and he fails to do so. The deprivations that 

constitute widespread abuse sufficient to notify the supervising official must be 

“obvious, flagrant, rampant and of continued duration, rather than isolated 

occurrences.” Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (citations 

omitted). 

193 F.3d at 1269. The causal connection may also be established where the supervisor’s 

improper “custom or policy . . . result[s] in deliberate indifference to constitutional rights.” 

Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991) (citing Zatler v. Wainwright, 802 F.2d 

397 (11th Cir. 1986)). In light of the applicable law, the Plaintiff’s allegations are insufficient to 

create liability on the part of the Defendants. As such, all Plaintiff’s claims are due to be 

dismissed. 

E. Plaintiff is not entitled to punitive damages. 

“[P]unitive damages in an action under § 1983 [are only available] when the defendant’s 

conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous 

indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (U.S. 

1983). see also Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir. 1999): 

‘Punitive damages are disfavored by the law and are awarded solely to punish 

defendants and deter future wrongdoing.’ To support a punitive damages award, 

a plaintiff must show that the defendant acted with malice or reckless indifference 

to the plaintiff’s federally protected rights. Malice means ‘an intent to harm’ and 

recklessness means ‘serious disregard for the consequences of [one’s] actions.’ 

Ferrill, 168 F.3d at 468 (internal citations omitted). 

 The Plaintiff has not sufficiently alleged facts showing “evil motive or intent” or 

“reckless or callous indifference to the federally protected rights of others” on the part of 

Defendant s. Therefore, punitive damages are not proper against Defendants, and all claims for 

punitive damages are due to be dismissed. 

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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. 

Miller, Federal Practice and Procedure § 2529, p. 299.11 “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). 

CONCLUSION 

 Defendants deny each and every allegation made by Plaintiff Bertha Allen, in the 

Complaint. Defendants have not acted in a manner so as to deprive Plaintiff of any right to 

which she is entitled. 

 

11 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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MOTION FOR SUMMARY JUDGMENT 

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

for Summary Judgment, and grant unto them the same. 

Respectfully submitted this 30th day of October, 2006. 

s/Ashley Hawkins Freeman 

ASHLEY HAWKINS FREEMAN Bar No. FRE044 

AMANDA KAY MORGAN Bar No. ALL079 

Attorneys for Defendants 

WEBB & ELEY, P.C. 

7475 Halcyon Pointe Drive 

Post Office Box 240909 

Montgomery, Alabama 36124 

Telephone: (334) 262-1850 

Fax: (334) 262-1889 

E-mail: afreeman@webbeley.com

CERTIFICATE OF SERVICE

 I hereby certify that on this the 30th day of October, 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: 

Bertha Allen 

AIS 134004 

Julia Tutwiler Prison for Women 

8966 U. S. Highway 231 North 

Wetumpka, AL 36092 

 s/Ashley Hawkins Freeman 

 OF COUNSEL 

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