IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

STAN MOORE, :

Plaintiff, :

vs. : CIVIL ACTION 04-00797-CG-B

WARDEN JERRY FERRELL, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a prison inmate proceeding pro se and in forma

pauperis, filed the instant case alleging violations under 42

U.S.C. § 1983 (Doc. 1). This case has been referred to the

undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)

and Local Rule 72.2 (c)(4) for appropriate action. 

Plaintiff claims that Defendants, Warden Jerry Ferrell,

Assistant Warden Walter Myers, Correctional Officer Supervisor

Tony Patterson, Correctional Officer Supervisor Albert Williams,

Correctional Officer Supervisor Steven Lane, and Correctional

Officer Charles Andrews were “deliberately indifferent” to

conditions of overcrowding and understaffing at Fountain

Correctional facility, and this resulted in him being attacked by

two fellow inmates. (Doc. 1 at 15-21, Complaint). Plaintiff

contends that Defendants’ failure to protect him violated his

rights under the Eighth Amendment to the United States

Constitution. (Id.). Plaintiff further alleges that Defendants

“conspired to refuse to protect” him by not taking the proper

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2

action to ensure his safety. (Id. at 14-15). 

Defendants filed a special report and answer on April 11,

2005, denying that they violated Plaintiff’s constitutional

rights and asserting the affirmative defenses of sovereign and

qualified immunity. (Doc. 10, Special Report). On May 17, 2005,

the Court entered an Order converting Defendants’ special report

to a motion for summary judgment. (Doc. 14). On June 16, 2005,

Plaintiff filed a response to Defendants’ motion for summary

judgment, reasserting his Eighth Amendment claim against

Defendants. (Doc. 16, Response in Opposition to Special Report).

After careful consideration by the Court, it is recommended

that Defendants’ motion for summary judgment be granted, that

this action be dismissed with prejudice, and that judgment be

entered in favor of Defendants Jerry Ferrell, Walter Myers, Tony

Patterson, Albert Williams, Steven Lane, and Charles Andrews and

against Plaintiff Stan Moore on all claims.

I. FACTS

On or about October 19, 2004, at approximately 6:15 a.m.,

Plaintiff was attacked by two inmates while he slept in his

prison cell at Fountain Correctional Facility. (Doc. 1 at 12). 

The attack was prompted by a dispute between Plaintiff and one of

the inmates, Eddie Johnson, over “store items” that Plaintiff

purportedly owed Johnson. (Id.). According to Plaintiff, Johnson

struck him in the face and head with soap wrapped inside a sock,

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3

and the other inmate, Victor Broughton, struck him with a

combination lock. (Id. at 12). 

On the morning of the attack, Correctional Officer Charles

Andrews was assigned to Plaintiff’s dormitory. (Doc. 16 at 10,

Affidavit of Charles Andrews; Doc. 10, Part 3 at 6, Post

Listing). According to Plaintiff, Officer Andrews had “abandoned

his assigned post” at the time of the attack, allowing the

dormitory to be “totally unsecure.” (Doc. 1 at 13). According to

Officer Andrews, he was patrolling another area of Plaintiff’s

dormitory at the time of the attack and simply did not have a

direct view of Plaintiff’s cell. (Doc. 16 at 10). It is

undisputed that, upon discovering that the incident had occurred,

Officer Andrews immediately called for assistance and obtained

medical treatment for Plaintiff. (Id.).

Plaintiff’s Prison Health Services records show that, at

7:13 a.m., he presented to the emergency clinic in “good”

condition and was examined by a nurse and then by prison

physician, Dr. Robert Barnes. (Doc. 28, Part 2 at 3, Plaintiff’s

Medical Records). The examination revealed a cut to the “middle

of [the] eye area [with] active bleeding.” (Id.) In addition,

Plaintiff had a “knot” on his “right temple behind [the] left

ear” and complained of double vision. (Id.) Plaintiff’s vision

was checked and his injuries treated, and he was released at 7:25

a.m. (Doc. 10, Part 3 at 8, Institutional Incident Report).

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 3 of 21
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II. SUMMARY JUDGMENT STANDARD

In analyzing the propriety of a motion for summary judgment,

the Court begins with some basic principles. The Federal Rules

of Civil Procedure grant this Court authority under Rule 56 to

render “judgment as a matter of law” to a party who moves for

summary judgment. “[S]ummary judgment is proper ‘if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact. . . .’” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.

R. Civ. P. 56(c)). The Court must view the evidence produced by

“the nonmoving party, and all factual inferences arising from it,

in the light most favorable to” that party. Barfield v.

Brierton, 883 F.2d 923, 934 (11th Cir. 1989).

However, Rule 56(e) states that:

an adverse party [to a motion for summary

judgment] may not rest upon the mere

allegations or denials of the adverse party’s

pleading, but the adverse party’s response,

by affidavits or as otherwise provided in

this rule, must set forth specific facts

showing that there is a genuine issue for

trial. If the adverse party does not so

respond, summary judgment, if appropriate,

shall be entered against the adverse party. 

Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 322-

23. “[T]here is no issue for trial unless there is sufficient

evidence favoring the nonmoving party for a jury to return a

verdict for that party. If the evidence is merely colorable or

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5

is not significantly probative, summary judgment may be granted.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)

(internal citations omitted). Summary judgment will be granted

against a party who fails “to establish the existence of an

element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex, 477 U.S. at

322.

III. DISCUSSION

In this action, Plaintiff seeks redress for an alleged

constitutional deprivation pursuant to 42 U.S.C. § 1983. Section

1983 provides that: 

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be

subjected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for

redress. . . . 

42 U.S.C. § 1983 (1994). 

Plaintiff claims that Defendants violated his Eighth

Amendment right to be free from cruel and unusual punishment by

failing to ensure his physical safety in an environment of

overcrowding and understaffing, thereby allowing fellow inmates

Johnson and Broughton to attack him. (Doc. 1 at 12-21). 

Defendants concede that, at the time of the attack on Plaintiff,

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1 Plaintiff is suing Defendants in both their official and

individual capacities. As state officials, Defendants are

absolutely immune from suit for damages in their official

capacities, see Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277

(11th Cir. 1998) (state officials sued in their official

capacities are protected from suit for damages under the Eleventh

Amendment). Defendants are not immune, however, from suit in

their official capacities for prospective injunctive relief to

end continuing violations of federal law. See Ex parte Young,

209 U.S. 123, 155-56 (1908); see also Summit Med. Assocs., P.C.

v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999). 

“Qualified immunity protects government officials performing

discretionary functions from suits in their individual capacities

unless their conduct violates ‘clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003)

(quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). In

determining whether qualified immunity is appropriate in a given

case, “[t]he court must first ask the threshold question whether

the facts alleged, taken in the light most favorable to the

plaintiffs, show that the government official’s conduct violated

6

the prison was experiencing conditions of overcrowding and

understaffing. (Doc. 10, Part 2 at 2-4, Ferrell and Williams

Affidavits). Defendants maintain, however, that the incident was

not caused by overcrowding or understaffing but, rather, was an

isolated event caused by Plaintiff bartering and trading with

other inmates in violation of prison regulations prohibiting such

conduct. (Id.). Defendants further assert that they had no

knowledge of any risk of harm to Plaintiff from Johnson,

Broughton, or any other inmate, nor were they otherwise

“deliberately indifferent” to Plaintiff’s safety. (Doc. 10, Part

1 at 1, Special Report and Answer). Finally, Defendants argue

that they are entitled to absolute and qualified immunity from

suit by Plaintiff.1 (Id.).

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a constitutional right.” Dalrymple, 334 F.3d at 995 (citing

Saucier v. Katz, 533 U.S. 194, 201 (2001)). Having found herein

that Plaintiff’s allegations do not establish a constitutional

violation, “there is no necessity for further inquiries

concerning qualified immunity.” Saucier, 533 U.S. at 201. 

7

The Eighth Amendment provides that, “[e]xcessive bail shall

not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. Amend. VIII. The

Eighth Amendment’s proscription against cruel and unusual

punishment prohibits prison officials from exhibiting deliberate

indifference to a substantial risk of serious harm to an inmate. 

Farmer v. Brennan, 511 U.S. 825, 832-35 (1994). 

In DeShaney v. Winnebago County Dep’t of Soc. Servs., 489

U.S. 189 (1989), the Supreme Court summarized a state’s

constitutional responsibilities with regard to inmates:

[W]hen the State takes a person into its

custody and holds him there against his will,

the Constitution imposes upon it a

corresponding duty to assume some

responsibility for his safety and general

well-being. . . . The rationale for this

principle is simple enough: when the State by

the affirmative exercise of its power so

restrains an individual’s liberty that it

renders him unable to care for himself, and

at the same time fails to provide for his

basic human needs -- e.g., food, clothing,

shelter, medical care, and reasonable safety

-- it transgresses the substantive limits on

state action set by the Eighth Amendment and

the Due Process Clause. 

DeShaney, 489 U.S. at 199-200 (citations omitted). Because the

Eighth Amendment protects a prisoner from cruel and unusual

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8

punishments, it imposes a duty on officials to protect an inmate

from attack by another inmate; however, not every injury

inflicted by another inmate results from a violation of the

Constitution. Farmer, 511 U.S. at 832-34.

In order to prevail on his Eighth Amendment claim brought

under § 1983 in this case, Plaintiff must prove three elements:

“(1) a condition of confinement that inflicted unnecessary pain

or suffering, Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct.

2392, 2399, 69 L. Ed. 2d 59 (1981), (2) the defendant’s

‘deliberate indifference’ to that condition, Wilson v. Seiter,

501 U.S. 294, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271 (1991),

and (3) causation, Williams v. Bennett, 689 F.2d 1370, 1389-90

(11th Cir. 1982).” LaMarca v. Turner, 995 F.2d 1526, 1535 (11th

Cir. 1993). 

In Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 1994), the

court described the first two elements as follows:

An Eighth Amendment claim is said to have two

components, an objective component, which

inquires whether the alleged wrongdoing was

objectively harmful enough to establish a

constitutional violation, and a subjective

component, which inquires whether the

officials acted with a sufficiently culpable

state of mind.

The objective component of an Eighth Amendment claim focuses

on whether the alleged wrongdoing amounted to the infliction of

“unnecessary pain or suffering upon the prisoner.” See LaMarca,

995 F.2d at 1535. This standard requires that the alleged

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9

deprivation be “objectively, ‘sufficiently serious.’” Farmer,

511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298

(1991)). The objective standard “embodies broad and idealistic

concepts of dignity, civilized standards, humanity, and decency.

. ., but must be balanced against competing penological goals.” 

LaMarca, 995 F.2d at 1535 (quoting Estelle v. Gamble, 429 U.S.

97, 102 (1976) (internal quotation marks omitted)). In a

situation where an inmate complains about being attacked by

another inmate, the inmate must establish that the conditions

under which he was incarcerated presented “a substantial risk of

serious harm.” Farmer, 511 U.S. at 834.

The subjective component of an Eighth Amendment claim

generally “inquires whether the officials acted with a

sufficiently culpable state of mind.” Sims, 25 F.3d at 983

(citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). This

component “follows from the principle that ‘only the unnecessary

and wanton infliction of pain implicates the Eighth Amendment.’” 

Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297). In

prison condition cases, the required state of mind for a

defendant is “deliberate indifference” to an inmate’s health or

safety. Id. (citations omitted). In defining “deliberate

indifference,” the court stated:

We hold . . . that a prison official cannot

be found liable under the Eighth Amendment

for denying an inmate humane conditions of

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confinement unless the official knows of and

disregards an excessive risk to inmate health

or safety; 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 837. The court concluded that the

“subjective recklessness” standard of criminal law is the test

for “deliberate indifference” under the Eighth Amendment. Id. at

839-40. There is no liability for “an official’s failure to

alleviate a significant risk that he should have perceived but

did not. . . .” Farmer, 511 U.S. at 838. It is not enough that

a plaintiff proves that the defendant should have known of the

risk, but did not, as actual subjective knowledge is the key. 

See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir.

1996). A prison official’s duty under the Eighth Amendment is to

ensure “reasonable safety,” a standard that incorporates due

regard for prison officials’ “unenviable task of keeping

dangerous men in safe custody under humane conditions.” Farmer,

511 U.S. at 844-45. “Whether one puts it in terms of duty or

deliberate indifference, prison officials who act reasonably

cannot be found liable under the Cruel and Unusual Punishments

Clause.” Id.

Finally, Plaintiff must establish an affirmative causal

connection between the Defendants’ actions, orders, customs,

policies, or breaches of statutory duty and a deprivation of

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Plaintiff’s constitutional rights in order to state a claim upon

which relief may be granted. See Zatler v. Wainwright, 802 F.2d

397, 401 (11th Cir. 1986). A causal connection may be

established by proving that the official was personally involved

in the acts that resulted in the constitutional deprivation; by

proving that a policy or custom that he established or utilized

resulted in deliberate indifference to an inmate’s constitutional

rights; or by proving that a supervisory defendant breached a

duty imposed by state or local law, and this breach caused

Plaintiff’s constitutional injury. Id.

Having set forth the general legal principles relevant to

Plaintiff’s claim, the Court now turns to the application of

those legal principles to the facts before the Court. First,

with respect to the objective element of Plaintiff’s Eighth

Amendment claim, Plaintiff must show that the conditions under

which he was incarcerated presented “a substantial risk of

serious harm” to him. Farmer, 511 U.S. at 834. It is settled

that “confinement in a prison where violence and terror reign is

actionable.” Purcell ex rel. Estate of Morgan v. Toombs County,

Ga., 400 F.3d 1313, 1320 (11th Cir. 2005) (citations omitted). 

Although Defendants concede that Fountain Correctional Facility

was overcrowded and understaffed at the time of Plaintiff’s

attack, Plaintiff has failed to present any evidence that those

conditions actually posed “a substantial risk of serious harm” to

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 11 of 21
2 Defendant Williams testified that, on October 19, 2004, he

was the Shift Commander for the First Shift Team, and Defendant

Andrews was assigned to “Dorm # 1,” Plaintiff’s dormitory. (Doc.

10, Part 2 at 3). He further testified that the design capacity

for the prison was 755 inmates, and they were housing 1,213 at

the time. (Id. at 4). Defendant Williams testified that

“[a]lthough the prison houses more inmates than designed to hold,

[with] cooperation from the inmate population to follow rules and

regulations set forth by the Alabama Department of Corrections’

Commission and the Warden of G.K. Fountain Correctional Center,”

such incidents can be avoided. Id.

12

him.2 Cf. Hale v. Tallapoosa County, 50 F.3d 1579, 1583 (11th Cir.

1995) (“Hale produced evidence that inmate-on-inmate violence

occurred regularly when the jail was overcrowded, as it was

during May 1990 and the two preceding years. Moreover, the

evidence indicated that the violence was severe enough to require

medical attention and even hospitalization on occasion.”). While

“an excessive risk of inmate-on-inmate violence at a jail creates

a substantial risk of serious harm,” “occasional, isolated

attacks by one prisoner on another may not constitute cruel and

unusual punishment.” Purcell, 400 F.3d at 1320-23 (granting

summary judgment for sheriff and jail administrator where

Plaintiff failed to present evidence that conditions at the jail

rose to the level of a constitutional violation, despite the fact

that inmates were allowed to keep money in their cells; inmates

were allowed to play cards and gamble; the physical layout of the

jail hindered guards from seeing into certain cells at night from

the control tower; and there was a history of isolated, inmateon-inmate fights). Here, Plaintiff has presented no evidence of

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 12 of 21
13

other acts of inmate-on-inmate violence, whether from

overcrowding, understaffing, or otherwise, nor has he produced

evidence of any other conditions at the prison that exposed him

to “the constant threat of violence.” Id. Therefore, the Court

finds Plaintiff’s evidence insufficient for a jury to reasonably

find that the conditions under which he was incarcerated

presented “a substantial risk of serious harm.” Farmer, 511 U.S.

at 834. Accordingly, Plaintiff has failed to satisfy the

objective element of his Eighth Amendment claim.

Second, in order to survive summary judgment, Plaintiff must

come forth with sufficient proof that Defendants were

subjectively, deliberately indifferent to the risk of serious

harm to him. To meet this element, Plaintiff must prove that

Defendants actually knew that a substantial risk of serious harm

existed, and that they “knowingly or recklessly” declined to take

action to prevent that harm. LaMarca, 995 F.2d at 1535. “[A]n

officials’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, 511 U.S. at 838. “‘Whether a

prison official had the requisite knowledge of a substantial risk

is a question of fact subject to demonstration in the usual ways,

including inference from circumstantial evidence.’” Hale, 50 F.3d

at 1583 (quoting Farmer, 511 U.S. at 842). “Thus, ‘a factfinder

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14

may conclude that a prison official knew of a substantial risk

from the very fact that the risk was obvious.’” Id. (quoting

Farmer, 511 U.S. at 842).

Plaintiff alleges that, on the morning that he was attacked,

Correctional Officer Andrews abandoned his assigned post, thereby

exposing Plaintiff “to violent injury at the hands of other

inmates.” (Doc. 1 at 21). As discussed above, Plaintiff has

failed to present sufficient evidence that the conditions of the

prison actually posed “a substantial risk of serious harm” to

him. Moreover, even if Defendant Andrews’ absence from his

assigned post when the incident occurred posed a substantial risk

of serious harm to Plaintiff, that allegation, standing alone,

does not indicate that Defendant Andrews was deliberately

indifferent to the risk of harm. Deliberate indifference is not

established merely by alleging that a prison guard was not at his

post. See Hale, 50 F.3d at 1582 (guard’s failure to check

“bullpen” for two-and-a-half hours during which time plaintiff

was beaten by other inmates did not “support the level of

deliberate indifference and causal connection necessary to hold

[the jailer] personally responsible.”). While absence from an

assigned post might support an inference of negligence, liability

cannot be imposed in a § 1983 action for negligent acts. Daniels

v. Williams, 474 U.S. 327, 328-31 (1986). Accordingly, with

respect to Defendant Andrews, the Court finds Plaintiff’s

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15

evidence insufficient to establish the subjective element of

Plaintiff’s Eighth Amendment claim. 

Plaintiff also alleges that Correctional Officer Supervisors

Williams and Lane violated his Eighth Amendment rights by failing

to properly supervise Andrews. The law is clear, however, that a

supervisor may not be held liable in a § 1983 action based solely

on the acts of his employee. See Fundiller v. City of Cooper

City, 777 F.2d 1436, 1443 (11th Cir. 1985) (comparing the

position of a supervisor to a municipality which may have

liability imposed through its customs or policies, but not

through employees’ actions). Instead, “supervisory liability

under § 1983 occurs either when the supervisor personally

participates in the alleged unconstitutional conduct or when

there is a causal connection between the actions of a supervising

official and the alleged constitutional deprivation.” Cottone v.

Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). “The necessary

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.’”

Id. (citations omitted). “Alternatively, the causal connection

may be established when a supervisor’s ‘custom or policy . . .

result[s] in deliberate indifference to constitutional rights’ or

when facts support ‘an inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates

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16

would act unlawfully and failed to stop them from doing so.’” Id.

(citations and internal quotation marks omitted). Where, as

here, a plaintiff’s claim rests on a defendant’s failure to

supervise his employee, the plaintiff “must present some evidence

that the [defendant] knew of a need to train and/or supervise in

a particular area and the [defendant] made a deliberate choice

not to take any action[,]” that this failure to train and/or

supervise constitutes a custom or policy, and that the failure to

train and/or supervise was the moving force behind the

deprivation of a constitutional right. Gold v. City of Miami, 151

F.3d 1346, 1350 (11th Cir. 1998). Plaintiff has presented no

such evidence in this case. Accordingly, with respect to

Defendants Williams and Lane, the Court finds Plaintiff’s

evidence insufficient to establish the subjective element of his

Eighth Amendment claim. 

Plaintiff also alleges that the remaining Defendants, Warden

Jerry Ferrell, Assistant Warden Walter Myers, and Correctional

Officer Supervisor Tony Patterson, were deliberately indifferent

to his safety by failing to ensure that security was maintained

at the facility. As discussed above, a prison official’s duty

under the Eighth Amendment is to ensure “reasonable safety.” 

Farmer, 511 U.S. at 844. “[A] prison custodian is not the

guarantor of a prisoner’s safety.” Purcell, 400 F.3d at 1321

(citations omitted). In this case, it is undisputed that Officer

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17

Andrews was assigned to Plaintiff’s dormitory on the morning of

the attack. (Doc. 10, Part 3 at 6, Post Listing). There is no

evidence that these, or any of the Defendants, were aware of a

specific or general risk of an inmate attack that morning. There

is no evidence that any threats had ever been made by Johnson or

Broughton against Plaintiff, and made known to these Defendants,

nor is there any evidence “that a substantial risk of inmate

attacks was longstanding, pervasive, well-documented, or

expressly noted by prison officials in the past.” Farmer, 511

U.S. at 842 (internal quotation marks omitted). The fact that

the facility was experiencing conditions of overcrowding and

understaffing at the time of the attack, without more, is

insufficient for a jury to reasonably find that these Defendants

knew that a substantial risk of serious harm existed, and that

they “knowingly or recklessly” declined to take action to prevent

that harm. LaMarca, 995 F.2d at 1535. Accordingly, with respect

to Defendants Ferrell, Myers, and Patterson, the Court finds

Plaintiff’s evidence insufficient to establish the subjective

element of his Eighth Amendment claim. 

Finally, Plaintiff has failed to show that Defendants’

actions, orders, customs, policies, or breaches of statutory duty

proximately caused the deprivation of his constitutional rights. 

The evidence in this case is undisputed that the attack on

Plaintiff was prompted by Plaintiff refusing to repay a fellow

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 17 of 21
3 Plaintiff also charges that Defendants conspired to refuse

to protect” him by not taking the proper action to ensure his

safety. In order to prove a § 1983 conspiracy, Plaintiff "must

show that the parties 'reached an understanding' to deny [him]

his... rights [and] prove an actionable wrong to support the

conspiracy." Bailey v. Board of County Comm’rs of Alachua

18

inmate for certain “store items” which the inmate claimed

Plaintiff owed him. (Doc. 1 at 12; Doc. 10, Part 2 at 2; Doc. 10,

Part 3 at 7). The evidence indicates that the attack was

isolated and premeditated, occurring suddenly in the early

morning hours when Plaintiff was asleep. (Doc. 1 at 12). By all

accounts, it was unanticipated by Plaintiff, as well as

Defendants. Plaintiff has presented no evidence that the attack

was the proximate result of Defendant Andrews leaving his post,

nor has he presented evidence that he was being confined in a

prison “where violence and terror reign[ed]” and where inmate-oninmate violence abounded. Purcell, 400 F.3d at 1320. 

Accordingly, the Court finds Plaintiff’s evidence insufficient to

satisfy the causation element of his Eighth Amendment claim.

Accordingly, having found Plaintiff's evidence insufficient

for a jury to reasonably find that Defendants knew of a

substantial risk of harm to Plaintiff, that Defendants were

deliberately indifferent to that risk, and that Defendants’

conduct caused the deprivation of Plaintiff’s constitutional

rights, summary judgment is due to be granted to Defendants on

Plaintiff’s Eighth Amendment claim.3

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 18 of 21
County, 956 F. 2d 1112, 1122 (llth Cir.), cert. denied, 506 U.S.

832, 113 S.ct. 98, 121 L.Ed. 2d 58 (l992). Plaintiff has not

shown that Defendants reached an "understanding" to refrain from

taking action to ensure his safety, nor has Plaintiff

established an actionable wrong - "deliberate indifference to his

safety”, to support his claim of a conspiracy. Id. at 1122. 

Accordingly, Plaintiff cannot establish that there is a genuine

issue for trial with regard to his alleged conspiracy claim.

19

IV. CONCLUSION

Based on the foregoing, the Court concludes that Defendants,

Warden Jerry Ferrell, Assistant Warden Walter Myers, Correctional

Officer Supervisor Tony Patterson, Correctional Officer

Supervisor Albert Williams, Correctional Officer Supervisor

Steven Lane, and Correctional Officer Charles Andrews are

entitled to summary judgment in their favor on all claims

asserted against them by Plaintiff. Accordingly, it is

recommended that Defendants’ motion for summary judgment be

GRANTED, that this action be DISMISSED with prejudice, and that

judgment be entered in favor of Defendants and against Plaintiff

Stan Moore on all claims.

The attached sheet contains important information regarding

objections to this recommendation. 

DONE this 1st day of August 2006. 

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 19 of 21
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or

anything in it must, within ten days of the date of service of

this document, file specific written objections with the clerk of

court. Failure to do so will bar a de novo determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404

(5th Cir. Unit B, 1982)(en banc). The procedure for challenging

the findings and recommendations of the magistrate judge is set

out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a matter

excepted by 28 U.S.C. § 636(b)(1)(A), by filing a "Statement

of Objection to Magistrate Judge’s Recommendation" within

ten days after being served with a copy of the

recommendation, unless a different time is established by

order. The statement of objection shall specify those

portions of the recommendation to which objection is made

and the basis for the objection. The objecting party shall

submit to the district judge, at the time of filing the

objection, a brief setting forth the party’s arguments that

the magistrate judge’s recommendation should be reviewed de

novo and a different disposition made. It is insufficient

to submit only a copy of the original brief submitted to the

magistrate judge, although a copy of the original brief may

be submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief in

support of the objection may be deemed an abandonment of the

objection.

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 20 of 21
A magistrate judge’s recommendation cannot be appealed to a

Court of Appeals; only the district judge’s order or judgment can

be appealed.

2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed. R. Civ. P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay the

fee for a transcript, is advised that a judicial determination

that transcription is necessary is required before the United

States will pay the cost of the transcript.

Case 1:04-cv-00797-CG-B Document 31 Filed 08/01/06 Page 21 of 21