IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BERTHA ALLEN, #134004, )

)

Plaintiff, )

)

v. ) CASE NO. 3:06-CV-772-WKW 

) [WO]

)

TALLAPOOSA COUNTY JAIL STAFF, et al., )

)

Defendants. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION

In this 42 U.S.C. § 1983 action, Bertha Allen ["Allen"], a state inmate, alleges the

defendants failed to protect her from attack by another inmate during her incarceration in

the Tallapoosa County Jail. Allen also complains that after her transfer to the state prison

system county officials failed to transport her to the criminal trial of her assailant. Allen

seeks declaratory relief and monetary damages for the alleged violations of her

constitutional rights. 

The defendants filed a special report and supporting evidentiary materials addressing

Allen's claims for relief. In these documents, the defendants assert Allen failed to exhaust

an administrative remedy available to her while she was confined in the Tallapoosa County

Jail regarding the attack by another inmate. The defendants further maintain they had no

duty, constitutional or otherwise, to transport Allen to the criminal trial of her assailant.

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Pursuant to the orders entered in this case and governing case law, the court deems it

appropriate to treat the defendants' report as a motion for summary judgment. Order of

October 31, 2006 - Court Doc. No. 12; Bryant v. Rich, 530 F.3d 1368, 1375 (11 Cir. th

2008) (Although an exhaustion defense "is not ordinarily the propersubject for a summary

judgment[,]" the defense is appropriate for summary judgment when the evidence

demonstrates administrative remedies "are absolutely time barred or otherwise clearly

infeasible."). Thus, this case is now pending on the defendants' motion for summary

judgment. Upon consideration of this motion and the evidentiary materials filed in support

thereof, the court concludes that the defendants' motion for summary judgment is due to

be granted.

II. STANDARD OF REVIEW

"Summary judgment is appropriate 'if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show there is

no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th

Cir. 2007) (per curiam) (citation omitted); Fed.R.Civ.P. Rule 56(c) (Summary judgment

"should be rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

Case 3:06-cv-00772-WKW-TFM Document 38 Filed 06/01/09 Page 2 of 12
Effective December 1, 2007, “[t]he language of Rule 56 [was] amended ... to make the rule[] more easily 1

understood and to make style and terminology consistent throughout the rules. These changes... are stylistic only.”

Fed.R.Civ.P. 56 Advisory Committee Notes. Thus, although Rule 56 underwent stylistic changes, its substance

remains the same and, therefore, all cases citing the prior rule remain equally applicable to the current rule. 

3

is entitled to judgment as a matter of law."). The party moving for summary judgment 1

"always bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the [record, including pleadings, discovery

materials and affidavits], which it believes demonstrate the absence of a genuine issue of

material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet

this burden by presenting evidence which would be admissible at trial indicating there is

no dispute of material fact or by showing that the nonmoving party has failed to present

evidence in support of some element of its case on which it bears the ultimate burden of

proof. Id. at 322-324. 

The defendants have met their evidentiary burden and demonstrated the absence of

a genuine issue of material fact with respect to each of the plaintiff's claims for relief.

Thus, the burden shifts to the plaintiff to establish, with appropriate evidence beyond the

pleadings, that a genuine issue material to her case exists. Clark v. Coats and Clark, Inc.,

929 F.2d 604, 608 (11 Cir. 1991); Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(2) ("When th

a motion for summary judgment is properly made and supported, an opposing party may

not rely merely on allegations or denials in its own pleading; rather, its response must ...

set out specific facts showing a genuine issue for trial."). A genuine issue of material fact

exists when the nonmoving party produces evidence that would allow a reasonable factCase 3:06-cv-00772-WKW-TFM Document 38 Filed 06/01/09 Page 3 of 12
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finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. 

To survive the defendants' properly supported motion for summary judgment, Allen

is required to produce "sufficient [favorable] evidence" which would be admissible at trial

establishing that the defendants violated her constitutional rights by failing to ensure her

presence at the trial of her assailant and demonstrating proper exhaustion of administrative

remedies on the failure to protect claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). "If the evidence [on which the nonmoving party relies] is merely colorable ...

or is not significantly probative ... summary judgment may be granted." Id. at 249-250.

"A mere 'scintilla' of evidence supporting the opposing party's position will not suffice;

there must be enough of a showing that the [trier of fact] could reasonably find for that

party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202

(1986)." Walker v. Darby, 911 F.2d 1573, 1576-1577 (11 Cir. 1990). Conclusory th

allegations based on subjective beliefs are likewise insufficient to create a genuine issue

of material fact and, therefore, do not suffice to oppose a motion for summary judgment.

Waddell v. Valley Forge Medical Associates, Inc., 276 F.3d 1275, 1279 (11 Cir. 2001); th

Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11 Cir. 1997) (plaintiff's "conclusory th

assertions ..., in the absence of [admissible] supporting evidence, are insufficient to

withstand summary judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11 Cir. 1995) (grant th

of summary judgment appropriate where inmate produces nothing beyond "his own

conclusory allegations...."); Fullman v. Graddick, 739 F.2d 553, 557 (11 Cir. 1984) th

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("mere verification of party's own conclusory allegations is not sufficient to oppose

summary judgment...."). Hence, when a plaintiff fails to set forth specific facts supported

by appropriate evidence sufficient to establish the existence of an element essential to her

case and on which the plaintiff will bear the burden of proof at trial, summary judgment

is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 ("[F]ailure of

proof concerning an essential element of the nonmoving party's case necessarily renders

all other facts immaterial."); Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609

(11 Cir. 1987) (if on any part of the prima facie case the plaintiff presents insufficient th

evidence to require submission of the case to the trier of fact, granting of summary

judgment is appropriate).

For summary judgment purposes, only disputes involving material facts are relevant.

United States v. One Piece of Real Property Located at 5800 SW 74 Avenue, Miami, th

Florida, 363 F.3d 1099, 1101 (11 Cir. 2004). What is material is determined by the th

substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Secretary of

the Department of Children and Family Services, 358 F.3d 804, 809 (11 Cir. 2004) ("Only th

factual disputes that are material under the substantive law governing the case will

preclude entry of summary judgment."). "The mere existence of some factual dispute will

not defeat summary judgment unless that factual dispute is material to an issue affecting

the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243

(11 Cir. 2003) (citation omitted). To demonstrate a genuine issue of material fact, the th

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party opposing summary judgment "must do more than simply show that there is some

metaphysical doubt as to the material facts.... Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for

trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

cases where the evidence before the court which is admissible on its face or which can be

reduced to admissible form indicates that there is no genuine issue of material fact and that

the party moving for summary judgment is entitled to it as a matter of law, summary

judgment is proper. Celotex, 477 U.S. at 323-324 (summary judgment appropriate where

pleadings, evidentiary materials and affidavits before the court show there is no genuine

issue as to a requisite material fact); Waddell, 276 F.3d at 1279 (to establish a genuine

issue of material fact, the nonmoving party must produce evidence such that a reasonable

trier of fact could return a verdict in his favor).

Although factual inferences must be viewed in a light most favorable to the

nonmoving party and pro se complaints are entitled to liberal interpretation by the courts,

a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine

issue of material fact. Beard v. Banks, 548 U.S. 521, 529-530, 126 S.Ct. 2572, 2578, 165

L.Ed.2d 697 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11 Cir. 1990). Thus, the th

plaintiff's pro se status alone does not mandate this court's disregard of elementary

principles of production and proof in a civil case. In this case, Allen fails to demonstrate

a requisite genuine issue of material fact in order to preclude summary judgment.

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Matsushita, supra. 

III. DISCUSSION

A. Criminal Trial of Assailant

Allen asserts the defendants violated her constitutional rights by failing to ensure

her transportation from Tutwiler Prison for Women to the criminal trial of the inmate

charged in her assault. Allen contends this failure deprived her of the right to ensure

prosecution of her assailant. The defendants maintain they did not receive any court order

requiring they transport Allen to the trial in question and further argue they are not required

by the Constitution to undertake such action. This claim entitles Allen to no relief. 

In order to proceed on a claim under 42 U.S.C. § 1983, the conduct complained of

must have deprived the plaintiff of rights, privileges or immunities secured by the

Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527 (1981). The law

is well settled that a “private citizen lacks a judicially cognizable interest in the prosecution

or non-prosecution of another.” Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973); see

also Leeke v. Timmerman, 454 U.S. 83 (1981). Consequently, Allen has no constitutionally

protected interest in the criminal prosecution of the individual charged with her assault and

the defendants are therefore entitled to summary judgment on this claim. 

B. Deliberate Indifference to Safety - Failure to Protect 

Allen maintainsthe defendants acted with deliberate indifference to her safety when

they failed to protect her from attack by another inmate during her incarceration in the

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Tallapoosa County Jail. In their response, the defendants maintain this claim is subject to

dismissal because Allen failed to exhaust the administrative remedy provided at the

Tallapoosa County Jail prior to filing this complaint as required by the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a). 

The Prison Litigation Reform Act compels exhaustion of available administrative

remedies before a prisoner can seek relief in federal court on a § 1983 complaint.

Specifically, 42 U.S.C. § 1997e(a) states that "[n]o action shall be brought with respect to

prison conditions under section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative remedies

as are available are exhausted." "Congress has provided in § 1997(e)(a) that an inmate

must exhaust irrespective of the forms of relief sought and offered through administrative

remedies." Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). "[T]he PLRA's exhaustion

requirement applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some other

wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of all available

administrative remedies is a precondition to litigation and a federal court cannot waive the

exhaustion requirement. Booth, 532 U.S. at 741; Alexander v. Hawk, 159 F.3d 1321, 1325

(11 Cir. 1998); Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Moreover, "the th

PLRA exhaustion requirement requires proper exhaustion." Woodford, 548 U.S. at 93,

126 S.Ct. at 2387 (emphasis added). "Proper exhaustion demands compliance with an

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agency's deadlines and other critical procedural rules [as a precondition to filing suit in

federal court] because no adjudicative system can function effectively without imposing

some orderly structure on the courts of its proceedings.... Construing § 1997e(a) to require

proper exhaustion ... fits with the general scheme of the PLRA, whereas [a contrary]

interpretation [allowing an inmate to bring suit in federal court once administrative

remedies are no longer available] would turn that provision into a largely useless

appendage." 548 U.S. at 90-91, 93, 126 S.Ct. at 2386-2387. The Court reasoned that

because proper exhaustion of administrative remedies is necessary an inmate cannot

"satisfy the Prison Litigation Reform Act's exhaustion requirement ... by filing an untimely

or otherwise procedurally defective administrative grievance or appeal[,]" or by effectively

bypassing the administrative process simply by waiting until the grievance procedure is no

longer available to her. 548 U.S. at 83-84, 126 S.Ct. at 2382; Johnson v. Meadows, 418

F.3d 1152, 1157 (11 Cir. 2005) (inmate who files an untimely grievance or simply spurns th

the administrative process until it is no longer available fails to satisfy the exhaustion

requirement of the PLRA). 

The record in this case establishes that the Tallapoosa County Jail provides a

grievance procedure for inmate complaints. Defendant's Exhibit B (Affidavit of Blake

Jennings - Jail Administrator) - Court Doc. No. 10-2 at 9-10. The evidentiary materials

submitted by the defendants demonstrate that Allen failed to present any grievance

regarding the deliberate indifference about which she complains in the instant complaint.

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Allen does not dispute her failure to exhaust the administrative remedy available in the

Tallapoosa County Jail prior to filing this case. The court therefore concludes that the

deliberate indifference claim presented in this cause of action is subject to dismissal as the

plaintiff failed to properly exhaust an administrative remedy available to her on this claim

which is a precondition to proceeding in this court. Ngo, 548 U.S. at 87-94, 126 S.Ct. at

2384-2388.

Allen is no longer confined in the Tallapoosa County Jail. Thus, the administrative

remedy provided by the defendants is no longer available to Allen. Under such

circumstances, dismissal with prejudice is appropriate. Bryant, 530 F.3d at 1375 n.1;

Johnson, 418 F.3d at 1157; Marsh v. Jones, 53 F.3d 707, 710 (5 Cir. 1995) ("Without the th

prospect of a dismissal with prejudice, a prisoner could evade the exhaustion requirement

by filing no administrative grievance or by intentionally filing an untimely one, thereby

foreclosing administrative remedies and gaining access to a federal forum without

exhausting administrative remedies."); Berry v. Keirk, 366 F.3d 85, 88 (2 Cir. 2004) nd

(footnotes omitted) (Inmate's "federal lawsuits ... properly dismissed with prejudice" where

previously available administrative remedies had become unavailable and no special

circumstances justified the failure to exhaust.). 

IV. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that:

1. With respect to the plaintiff's claim regarding the prosecution of her assailant,

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the defendants' motion for summary judgment be GRANTED as such claim does not

implicate a violation of any constitutionally protected interest. 

2. With respect to the plaintiff's failure to protect claim, the defendants' motion for

summary judgment be GRANTED to the extent the defendants seek dismissal of this case

due to the plaintiff's failure to properly exhaust an administrative remedy previously

available to her at the Tallapoosa County Jail.

3. The plaintiff's failure to protect claim be dismissed with prejudice in accordance

with the provisions of 42 U.S.C. § 1997e(a) for the plaintiff's failure to exhaust an

administrative remedy available to her during her confinement in the Tallapoosa County

Jail. 

4. This case be dismissed with prejudice. 

It is further 

ORDERED that on or before June 15, 2009 the parties may file objections to the

Recommendation. Any objections filed must specifically identify the findings in the

Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive

or general objections will not be considered by the District Court. The parties are advised

that this Recommendation is not a final order of the court and, therefore, it is not

appealable.

Failure to file written objections to the proposed findings and advisements in the

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Magistrate Judge's Recommendation shall bar the party from a de novo determination by

the District Court of issues covered in the Recommendation and shall bar the party from

attacking on appeal factual findings in the Recommendation accepted or adopted by the

District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5 Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d th

33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 Cir. 1981, th

en banc), adopting as binding precedent all of the decisions of the former Fifth Circuit

handed down prior to the close of business on September 30, 1981.

Done this 1st day of June, 2009.

/s/Terry F. Moorer 

TERRY F. MOORER 

UNITED STATES MAGISTRATE JUDGE

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