IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

FREDERICK ROSS, #85881 * 

 * 

 Plaintiff, * 

 * 

vs. * Civil Action No. 2:06-cv-771D 

 * 

D. T. MARSHALL, et al., * 

 * 

 Defendants. * 

 SPECIAL REPORT

 

COME NOW the Defendant Sheriff D. T. Marshall, by and through his attorney 

of record, Thomas T. Gallion, III and the law firm of Haskell Slaughter Young & 

Gallion, LLC and in response to this Honorable Court’s Order dated September 11, 2006 

submit the following Special Report to this Court. 

 DOCUMENTS 

Affidavit of D.T. Marshall 

Affidavit of Gina M. Savage 

Handbook on Inmate Rules and Regulations 

 PLAINTIFF’S ALLEGATIONS 

 Plaintiff filed a Complaint on August 23, 2006 against Defendants Sheriff D. T. 

Marshall, Montgomery County Commission1

 and Richard Allen. 

 

1

 In Judge Walker’s September 11, 2006 Recommendations of the Magistrate Judge, she recommended 

that Montgomery County Commission be dismissed as a Defendant. 

Case 2:06-cv-00771-ID-SRW Document 14 Filed 10/24/2006 Page 1 of 10
Plaintiff alleges that on June 8, 2006, that Defendant Marshall has failed to 

appropriate funds to provide Plaintiff with a safe, adequately ventilated cell and failed to 

repair the ventilation system within his cell that he feels is a violation of his 8th and 14th

Amendment Rights. Plaintiff alleges that Defendant Marshall failed to hire an adequate 

number of employees to operate the Detention Facility and failed to provide Plaintiff with 

forty-five (45) minutes a day of exercise and due to the over crowded conditions, it poses 

a security threat for Plaintiff, which violates his constitutional rights. Plaintiff alleges 

that Defendant Marshall’s policy and regulations at the Detention Facility does not 

provide access to a Notary Public unless it is a federal document and then it cost Plaintiff 

fifty cents per copy, which Plaintiff believes is a violation of state law. Plaintiff alleges 

that Defendant Marshall failed to implement policies, practices and provide funding to 

permit the Plaintiff the right to weekly practice of their religion, which Plaintiff believes 

is a violation of his constitutional rights. Plaintiff alleges that Defendant Marshall failed 

to appropriate funds to provide inmates soap for bathing, which Plaintiff alleges is a 

violation of his 8th and 14th Amendment Rights. Plaintiff alleges that Defendant Marshall 

failed to provide funding and supervision to assure that Plaintiff’s laundry is properly 

washed and clean, which Plaintiff believes is a violation of his constitutional rights. 

Plaintiff alleges that Defendant Marshall failed to request and appropriate funds to 

properly place adequate second bed in each cell and Plaintiff request installation of 

ladders or steps to assist inmates to get into the top bunk in order to ease the pain and 

difficult task of getting into the top bunk. Plaintiff alleges that Defendant Marshall failed 

to adequately fund monies for food and employees to prepare food and failed to provide 

three hot meals a day which he believes are violations of his 8th and 14th Amendment 

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Rights. Plaintiff alleges that Defendant Marshall failed to allow a fellow inmate his right 

to get married while being detained, which he feels is against his 1st and 14th Amendment 

Rights. Plaintiff alleges that Sheriff Marshall has failed to allow Plaintiff his right to 

maintain his family and friends relationship in society and restricts the number of visitors 

and how often the names can be changed, which Plaintiff believes also encompasses 

protection of Plaintiff’s right to effective counsel. Plaintiff alleges that Sheriff Marshall 

has the “capacity to pre-program the attorneys” in the greater Montgomery area and 

permit free phone calls to the attorneys office and is not providing this service to the 

Plaintiff. Plaintiff alleges that it is Sheriff Marshall’s fault that the court appointed 

attorneys for indigent inmates visit to discuss witnesses and evidence only once or not at 

all. Plaintiff alleges that Defendant Marshall could provide but has failed to provide free 

nail clipping service for Inmates which is a basic health care need that Plaintiff believes 

is abuse of process implemented by Sheriff to “hog money” and is against his 8th

Amendment Rights. Plaintiff alleges that Defendant Marshall has failed to appropriate 

funds to provide adequate law library and employees to allow Plaintiff more than thirty 

minutes a week usage; failed to provide Shepard Citations to perform legal research; 

failed to provide carbon paper; failed to provide legal forms such as cover sheets, 

summons and dockets; and failed to provide indigent inmate with free copies, which 

Plaintiff believes is against his 1st and 14th Amendment Rights. Plaintiff alleges that 

Sheriff Marshall has failed to appropriate funds to provide filtered clean water and 

provide ice for drinking water. Plaintiff alleges that Sheriff Marshall has failed to 

appropriate funds to permit all inmates to attend the GED program, which is against his 

14th Amendment Rights. 

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FACTS 

1. Plaintiff entered the Montgomery County Detention Facility on September 

7, 2005, charged with discharging a firearm in an occupied building; he was released 

September 7, 2005, and ordered to complete the boot camp program. He was sentenced 

as a youthful offender on March 1, 2006 to two years and placed on probation. He was 

arrested June 26, 2006 for probation violation (Theft of Property I) with no bond. (See 

Affidavit of Gina M. Savage attached hereto.) 

2. It is the policy of the Montgomery County Detention Facility that every 

effort will be made on the part of the facility personnel to ensure safe custody, decent 

living conditions and fair treatment for all inmates. (See Affidavit of D. T. Marshall 

attached hereto.) 

3. The Sheriff of Montgomery County prepares a budget based on the 

number of inmates, the number of staff and the amount of monies available to properly 

maintain and ensure safe custody, decent living conditions, and fair treatment of all 

inmates housed in the Montgomery County Detention Facility (“The Detention Facility”). 

The Montgomery County Commission reviews the budget request and approves a budget 

based on the amount of money available. 

4. The Montgomery County Detention Facility has an adequate heating/air 

system maintained by the Montgomery County Maintenance Department. Defendant 

Marshall has no knowledge of nor is there a work order in his file showing that the air 

conditioner was not functioning properly on or about June 8, 2006. This Plaintiff was not 

even in the Detention Facility on June 8th, in that he was arrested on June 26, 2006. 

Case 2:06-cv-00771-ID-SRW Document 14 Filed 10/24/2006 Page 4 of 10
5. A civilian recreation technician is employed by the Montgomery County 

Detention Facility, who is responsible for all facility recreation programs and for 

ensuring that inmates receive at least one hour of either indoor or outdoor recreation each 

week. Recreation is provided Monday through Friday between 7:00 am and 4:00 pm. 

There is no record of Plaintiff Greer participating in recreation. (See Exhibit C, page 6, 

D.) 

6. A Notary Public is available to provide notary services for Federal legal 

documents at a charge of fifty cents ($.50). Paperwork to the District Court and Circuit 

Court from an inmate does not require notarization. (See Exhibit C, page 16, N.) 

7. Religious services are offered by the Detention Facility Chaplain from 

Monday through Friday. Requests for additional services or programs may be addressed 

to the Captain of Inmate Programs/Services. (See Exhibit C, page 5.) 

8. Soap may be purchased from the inmate commissary. If an inmate is 

classified as indigent and cannot purchase items from the commissary, that inmate may 

complete an indigent request form and submit it once each week requesting an indigent 

pack, which includes soap. (See Exhibit C, page 2, B. Personal Cleanliness and page 6.) 

9. Inmate uniforms and linens are washed weekly. Washers and dryers are 

maintained and replaced whenever necessary. The laundry is supervised by Captain of 

Inmate Programs/Services and staffed by civilian personnel. The laundry is maintained 

in accordance with jail standards. (See Exhibit C, page 14, H.) 

10. Bunk beds in the Detention Facility were purchased from the Department 

of Corrections and meet all DOC specifications and standards. 

Case 2:06-cv-00771-ID-SRW Document 14 Filed 10/24/2006 Page 5 of 10
11. The Detention Facility provides three nutritious well-balanced meals each 

day prepared under sanitary conditions at a reasonable cost. (See Exhibit C, page 13, E.) 

12. It is the policy of the Detention Facility that inmates shall not marry while 

incarcerated in this facility. (See Exhibit C, page 14, J.) 

13. Inmates may list the names of two individuals they wish to visit them on 

their visitation card. Each visitor may visit for thirty (30) minutes one time each week. 

Inmates may change the names on their visitation card the first of each month. Because 

of space limitations and the increase in the jail population, the Detention Facility is not 

able to accommodate visits from a large number of family and friends. (See Exhibit C, 

page 10-11, I.) 

14. Inmates may meet with their attorneys on Monday through Friday between 

8:00 am to 11:00 am and from 2:30 pm to 4:00 pm and 7:00 pm to 9:00 pm. Special 

permission is granted to attorneys who need additional time with their clients. All inmate 

telephone calls outside the Detention Facility are collect. Inmates may correspond with 

their attorney by United States mail service. (See Exhibit C, page 7, F.) 

15. Disposable toenail clippers and fingernail clippers are provided by the 

Detention Facility at no charge to the inmates. (See Exhibit C, page 2, B. 3.) 

16. The Detention Facility provides an Inmate Library with a large selection 

of legal books and literature, as well as a supply of magazines, newspapers and books. 

The Detention Facility does not have a copy of “Shepard’s Citations”. Inmates may 

purchase literature/books at their expense of items not provided by the Inmate Library. 

The Inmate Library does provide note paper; however inmates must provide their own 

paper if they require more. If an inmate is indigent and cannot purchase paper from the 

Case 2:06-cv-00771-ID-SRW Document 14 Filed 10/24/2006 Page 6 of 10
Commissary, he/she may request an indigent writing pack. The Detention Facility does 

not provide legal forms or carbon paper. (See Exhibit C, page 5, A. and page 6.) 

17. Inmates are provided water supplied by the City of Montgomery. This 

water is clean and safe for drinking. It is not feasibly possible to supply ice to the 

inmates. 

18. The Board of Education discontinued the adult GED program. (See 

Exhibit C, page 5.) 

19. This inmate has not filed any grievance forms or requested forms to 

address any if his concerns about any of the above items. (See Exhibit C, page 12, D.) 

DEFENSES 

 1. The Complaint fails to state a claim upon which relief can be granted. 

 2. Defendant Marshall did not violate any of the Plaintiff’s constitutional 

rights afforded him under law. 

 3. Plaintiff failed to exhaust his administrative remedies by taking advantage 

of the inmate grievance system in place at the Montgomery County Detention Facility. 

Plaintiff’s claims should therefore be dismissed. Alexander v. Hawk, 159 F. 3rd 1321 

(11th Cir. 1998). 

 4. Defendant Marshall avers that he is entitled to immunity pursuant to the 

Eleventh Amendment to the United States Constitution and/or qualified immunity from 

suit. 

 5. Defendant Marshall avers that he acted in a manner that has been in 

accordance with previous court rulings regarding the operation of the Montgomery 

County Detention Facility. 

Case 2:06-cv-00771-ID-SRW Document 14 Filed 10/24/2006 Page 7 of 10
 6. Defendant Marshall avers that the prison regulations in question were 

reasonably related to legitimate penological interests. 

 

MEMORANDUM IN LAW 

 The Plaintiff’s claims do not rise to a constitutional violation. The Plaintiff 

cannot demonstrate that the conditions at the facility are sufficiently serious or that the 

Defendant Marshall was deliberately indifferent to his health or safety. 

 Grievance procedures are available to inmates to address living conditions at the 

Montgomery County Detention Facility. Plaintiff failed to file any grievance regarding 

any of his claims in the Complaint. Plaintiff therefore failed to exhaust available 

administrative remedies, and his claims should therefore be dismissed. Alexander v. 

Hawk, 159 F. 3rd 1321 (11th Cir. 1998). 

 Plaintiff’s claims for damages against Defendant Marshall in his official 

capacities under 42 U.S.C. §1983 should be dismissed because in his official capacities, 

Defendant Marshall is not considered “person” subject to liability under §1983. Will v. 

Michigan Dept. of State Police, 491 U.S. 58 (1989). Any such official capacity claims 

must also be dismissed because Defendant is entitled to immunity under the Eleventh 

Amendment. Lancaster v. Monroe County, 16 F. 3rd 1419 (11th Cir. 1997). 

 To the extent Plaintiff has asserted his claims against Defendant Marshall in his 

individual capacity, he is entitled to qualified immunity. “Qualified immunity protects 

government officials performing discretionary functions from civil trials (and the other 

burdens of litigation, including discovery) and from liability if their conduct violates no 

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

Case 2:06-cv-00771-ID-SRW Document 14 Filed 10/24/2006 Page 8 of 10
have known.” Gonzales v. Lee County Housing Authority, 161 F.3rd 1290, 1295 (11th Cir. 

1998). Defendant Marshall was acting within the scope of his discretionary authority, 

and the burden is therefore on the Plaintiff to demonstrate that his actions violated clearly 

established law based upon objective standards. Plaintiff cannot meet this burden; 

therefore, his claims should be dismissed. 

 Plaintiff must also establish a casual connection between an act of a supervising 

official and the alleged constitutional violation. Smith v. State of Alabama, 996 F. Supp. 

1203, 1212 (M.D. Ala. 1998). Defendant is a supervisory official. Plaintiff has failed to 

establish a casual connection between any of his actions and any alleged constitutional 

violation. Plaintiff’s claims against Defendant Marshall should therefore be dismissed. 

 There is no evidence that Defendant Marshall had a subjective awareness of a 

relevant risk of serious harm to the Plaintiff, and that he disregarded that risk. The prison 

regulations in place at the Montgomery County Detention Facility are reasonable and do 

not infringe the Plaintiff’s constitutional rights. Turner v Safley, 482 U.S. 78 (1997). 

Defendant Marshall further submits that Plaintiff has also failed to exhaust any 

applicable grievance procedure with respect to this claim. Defendant Marshall therefore 

respectfully request that this Court dismiss the Plaintiff’s claims and for any other relief 

to which he may be entitled. 

 Respectfully submitted this 24th day of October 2006. 

 s/ Thomas T. Gallion, III

 Thomas T. Gallion, III (GAL010) 

 Attorney for Defendant Marshall 

 ASB-5295-L74T 

 E-mail: mp@hsy.com 

OF COUNSEL: 

Haskell Slaughter Young & Gallion, L.L.C. 

Case 2:06-cv-00771-ID-SRW Document 14 Filed 10/24/2006 Page 9 of 10
305 South Lawrence Street 

Post Office Box 4660 

Montgomery, Alabama 36103-4660 

334-265-8573 

fax number: (334) 264-7945 

CERTIFICATE OF SERVICE 

 I hereby certify that on the 24th day of October 2006, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system that will send 

notification of such filing to the following parties or counsel: 

Albert Sims Butler 

Attorney for Commissioner Richard Allen 

State of Alabama 

Department of Corrections 

Montgomery, Alabama 36130 

And I hereby certify that I have mailed by United States Postal Service the document to 

the following non-CM/ECF participants: 

Frederick Ross #85881 

Montgomery County Detention Facility 

250 South McDonough Street 

Montgomery, Alabama 36104 

 s/ Thomas T. Gallion, III

 Of Counsel 

 50051-584 

#22,688 

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