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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

TRACY ALLEN, : 

 Plaintiff, : 

vs. : CIVIL ACTION 08-00227-WS-B 

ISAAC MOODY, et al., : 

 

 Defendants. : 

REPORT AND RECOMMENDATION

 Plaintiff, an Alabama prison inmate proceeding pro se, 

filed a Complaint under 42 U.S.C. § 1983. This action was 

referred to the undersigned pursuant to 28 U.S.C. § 

636(b)(1)(B) and Local Rule 72.2(c)(4), and is now before the 

undersigned on the Motion for Summary Judgment of Defendants 

Isaac Moody and Terry Montgomery (Docs. 28, 85) and Plaintiff’s 

Opposition thereto. (Docs. 87, 88, 90, 92, 104, 105, 106, 108, 

110). After consideration of these pleadings, and for the 

reasons set out below, it is recommended that the Motion for 

Summary Judgment of Defendants be granted and that Plaintiff’s 

action be dismissed with prejudice. 

I. FACTS AND PROCEEDINGS

 From its review of the record, the Court summarizes the 

parties’ allegations which are material to the issues addressed 

in this Report and Recommendation. On April 13, 2008, while 

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incarcerated at Holman Correctional Facility (“Holman”), 

Plaintiff was attacked by a fellow inmate while walking to the 

shower in the segregation unit. (Doc. 1 at 4-5). According to 

Plaintiff, at approximately 3:45 p.m., he and his “next door 

neighbor” inmate Steven Parker had a verbal confrontation, 

during which Parker called Plaintiff by his nickname, 

“Alcapone,” and told Plaintiff to meet him at the shower. (Doc. 

16 at 5). Plaintiff responded, “I said Bitch. I wasnt plain on 

shower (sic). I’ll be there.” (Id.). It is undisputed that 

Plaintiff never notified Defendants Officers Moody or Montgomery 

of this prior verbal exchange. 

 The record reflects that at approximately 4:05 p.m., 

Correctional Officer Isaac Moody and Correctional Officer Terry 

Montgomery were in the midst of handling the showering process 

for the inmates housed in the segregation unit at Holman. (Doc. 

28, Ex. E at 9). Specifically, Officer Moody was handcuffing 

each inmate at the inmate’s cell, and then sending the inmate 

down the hallway to Officer Montgomery, who would then secure 

the inmate in a shower stall. (Id.). The record reflects that 

Officer Moody handcuffed inmate Parker and sent him to the 

shower area, where, according to Officer Moody, he assumed that 

Officer Montgomery was securing Parker in a shower cell. (Id.

at 9). 

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 However, upon reaching the shower area, inmate Parker used 

homemade handcuff keys, thereby he suddenly secured his release 

from the handcuffs. Inmate Parker then started running back down 

the hallway with a prison made knife in his hand. (Doc. 28, Ex. 

B at 1). According to Officer Montgomery, he had shower door 

number four open as he awaited inmate Parker. When inmate 

Parker was about four steps away from Officer Montgomery, he 

heard Plaintiff’s cell door open. Officer Montgomery was not 

able to secure inmate Parker in the shower stall because he had 

come out of his handcuffs and was running down the hall towards 

Plaintiff’s cell, with the homemade knife. (Id.). Officer 

Montgomery chased behind him. (Id.). Simultaneously, 

Correctional Officer Isaac Moody, who assumed that Parker had 

been secured in the shower stall, handcuffed Plaintiff and was 

in the process of sending him along the hallway to likewise be 

secured in the shower. (Id., Exs. B, G). It was at this point 

when inmate Parker unexpectedly returned down the hallway, 

running with the knife toward Plaintiff and Officer Moody. 

(Id., Exs. B, G). 

 According to Defendants, Officer Montgomery ran after 

inmate Parker who was chasing Plaintiff back to his cell. (Id., 

Ex. B) Officer Moody slipped and fell in the hallway while 

trying to pull out his canister of chemical agent Freeze Plus P. 

(Id., Ex. G). Officer Montgomery grabbed Officer Moody’s dropped 

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bottle of Freeze Plus P as he ran past Officer Moody in pursuit 

of Plaintiff and Parker. (Id., Ex. G at 2). 

 Officer Montgomery avers that when he ran into Plaintiff’s 

cell, Parker was stabbing Plaintiff. Officer Montgomery 

immediately sprayed inmate Parker to the back of the head with 

the Freeze P Plus; however, the spray had no effect on Parker. 

(Id., Ex. B at 2). Officer Montgomery then grabbed inmate 

Parker’s right arm while he was still stabbing Plaintiff and 

pulled Parker off of Plaintiff. (Id.). When Officer Moody got 

back on his feet, he ran directly to Plaintiff’s cell, where he 

saw Officer Montgomery pull inmate Parker off of Plaintiff. 

Officer Moody assisted Officer Montgomery in gaining control of 

Parker. (Id., Ex. G at 2). At that point, other officers came 

to assist, and they were able to take inmate Parker to the floor 

and secure the knife. (Id., Ex. B at 2). 

 Prison records are consistent with the affidavits of 

Officers Montgomery and Moody. In Correctional Sergeant 

Christopher Corbitt’s statement, attached to the Incident 

Report, he stated that at the time of the altercation on April 

13, 2008, a “Code Blue” was announced over the in-house radio. 

(Doc. 28, Ex. E at 5). A “Code Blue” signals that there is an 

altercation between two inmates. Sergeant Corbitt immediately 

ran out of the office and towards the Segregation Annex. (Id.). 

On his way, he heard “Code Red, Code Red” which indicates an 

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officer and inmate confrontation. (Id.). Upon his arrival, 

Sergeant Corbitt observed Correctional Officers Moody and 

Montgomery in a physical confrontation with inmate Steven 

Parker. Corbitt states that he approached inmate Parker and 

gave loud verbal commands to stop resisting. He then struck 

Parker below the knee with his baton. (Id.). When inmate 

Parker finally fell to the ground, Sergeant Corbitt grabbed his 

right hand and held it behind Parker’s back, while Correctional 

Officer Michael McCrory, who had arrived at the scene after 

hearing the calls for help, placed handcuffs on Parker. (Id. at 

5,7). 

 Correctional Officers McCrory and Michael Branch also 

reported hearing the “Code Blue” and subsequent “Code Red” 

alerts and immediately proceeded to the scene of the 

altercation. (Id. at 8). Officer Branch stated that he 

assisted Officer McCrory and Sergeant Corbitt in securing 

Parker. (Id.). 

 After inmate Parker was secured, Officer Moody went into 

Plaintiff’s cell to see how badly he was hurt. (Id. at 9). 

Plaintiff was then escorted to the Health Care Unit. (Id.). 

Prison health records reflect that Plaintiff was examined at 

4:25 p.m., and reported to the medical staff, “I’m was stuck 

(sic).” (Id. at 12). The medical staff examined Plaintiff and 

noted that he had sustained 14 stab wounds, as well as some 

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scratches. Per Dr. Barnes’ instruction, Plaintiff was sent to 

Atmore Community Hospital for further evaluation. (Id.). Also 

included in the record are medical evaluations for Officers 

Montgomery, Moody, Branch, and Sergeant Corbitt. (Id. at 13-

16). A notation of redness to the eyes is reflected on the 

medical evaluation for Officer Montgomery. (Id. at 13). 

Officer Moody reported to the medical staff that “[h]e came 

running at us, appear he wanted to hurt me (sic)” and that Moody 

slipped and fell. (Id. at 15). 

 Inmate Steven Parker subsequently pled guilty to the 

disciplinary charges of Possession of Contraband, Unauthorized 

Possession of a Weapon or Device that could be used as a Weapon, 

Unauthorized Possession of Escape Device, and Assault on Another 

Inmate. (Doc. 28, Ex. E at 17-41). 

 On May 2, 2008, Plaintiff filed the present § 1983 action 

asserting that Defendants, Correctional Officer Isaac Moody and 

Correctional Officer Terry Montgomery, were deliberately 

indifferent in their failure to protect him. (Doc. 1). On 

November 4, 2008, Plaintiff amended his claim for damages. 

According to Plaintiff, he is seeking compensatory and punitive 

damages in the amount of “99 quad zillions 99 trillion 99 

million 99 thousand 99 hundred 99 dollar 99 cent.” (Doc. 31). 

 Defendants filed their Answer and Special Report on October 

29, 2008. Defendants deny Plaintiff’s claims, and assert the 

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affirmative defenses of sovereign, qualified, and absolute 

immunity. (Doc. 28). Subsequently, on July 6, 2009, Plaintiff 

filed an Amended Statement (Doc. 78), which was treated as a 

motion to amend and was granted by this Court on July 22, 2009. 

(Doc. 80). 

 In his Amended Statement, Plaintiff states that Defendants 

caused a “pervasive risk,” and that their “callous indifference 

gross negligence egregious failure to act or reckless disregard 

for [his] safety and this conduct cause the assault (sic).” 

(Doc. 78 at 1). Plaintiff specifically claims that Officer 

Moody opened his cell door without proper authorization, and 

that Officer Moody failed to properly search inmate Parker 

before letting him go to the shower area. (Id.). Plaintiff 

also complains that Officer Montgomery failed to alert Officer 

Moody or Plaintiff that inmate Parker had a weapon in his 

possession as Parker was running down the hallway. (Id. at 2). 

Plaintiff also again reiterates his claim that Officer 

Montgomery did not have proper protective devices on him, such 

as pepper spray or a baton. (Id.). 

 Defendants filed an Amended Answer and Special Report on 

September 15, 2009. Defendants again denied Plaintiff’s claims, 

and asserted immunity. Defendants also argued that while Holman 

may have been admittedly understaffed on the day in question, 

the complained of actions by Defendants were at most claims of 

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negligence, and as such, they are not actionable under § 1983. 

(Doc. 85). 

 On November 24, 2009, the Court entered an Order converting 

Defendants’ Amended Answer and Special Report to a Motion for 

Summary Judgment. (Doc. 97). Plaintiff has filed numerous 

pleadings with the Court. Those pleadings, and Defendants’ 

Motion are now before the Court. 

II. SUMMARY JUDGMENT STANDARD

 In analyzing the propriety of a motion for summary 

judgment, the Court begins with these 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, the Court is only to “make 

all reasonable inferences in favor of the party opposing summary 

judgment ... not to make all possible inferences in the nonmoving 

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party’s favor.” Torjagbo v. United States, 285 Fed. Appx. 615, 

619 (11th Cir. 2008) (emphasis in original). 

Rule 56(e)(2) states that: 

[w]hen 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 – 

by affidavits or as otherwise provided 

in this rule – set out specific facts 

showing a genuine issue for trial. If 

the opposing party does not so respond, 

summary judgment should, if 

appropriate, be entered against that 

party. 

Fed. R. Civ. P. 56(e). 

 “[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 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 is mandated where a party ‘fails to make a 

showing sufficient 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.’” Custom Mfg. & Eng’g, Inc. 

v. Midway Servs., Inc., 508 F.3d 641, 647 (11th Cir. 2007) 

(citations omitted). 

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 In a civil action filed by an inmate, although drawing “all 

justifiable inferences in [the inmate’s] favor,” federal courts 

must distinguish between evidence of 

disputed facts and disputed matters of 

professional judgment. In respect to 

the latter, our inferences must accord 

deference to the views of prison 

authorities. Unless a prisoner can 

point to sufficient evidence regarding 

such issues of judgment to allow him to 

prevail on the merits, he cannot 

prevail at the summary judgment stage. 

Beard v. Banks, 548 U.S. 521, 529-30 (2006) (internal citation 

omitted). “‘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.”’” Scott v. Harris, 550 U.S. 372, 

380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 586-87 (1986). 

III. DISCUSSION

 As discussed above, Plaintiff seeks redress pursuant to 42 

U.S.C. § 1983 for alleged constitutional deprivations arising 

out of a physical attack by another inmate. (Docs. 1, 78). 

Specifically, Plaintiff alleges that Defendants violated his 

Eighth Amendment rights by failing to protect him from the 

physical attack by inmate Parker. As discussed above, 

Defendants deny that they violated Plaintiff’s constitutional 

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rights and further assert the defenses of absolute and qualified 

immunity.1

 (Doc. 85). 

 Section 1983 provides in pertinent part 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 

 1 In his Complaint, although somewhat unclear, Plaintiff 

seems to indicate that he is suing Defendants both in their 

individual and official capacities. As state officials, 

Defendants are entitled to absolute immunity 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). 

Furthermore, “[q]ualified 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)). Until recently, the Court followed the 

mandatory procedure of Saucier v. Katz, 533 U.S. 194, 201 

(2001), overruled in part, Pearson v. Callahan, __ U.S. __, 129 

S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009), which required the 

Court to determine whether the plaintiff’s allegations, if true, 

established a constitutional violation and, if the first step 

was satisfied, to determine whether the right at issue was 

clearly established at the time of the alleged misconduct. 

While that procedure is now discretionary, as opposed to 

mandatory, see Pearson, id., the Court finds it beneficial in 

this case. Having found herein that Plaintiff’s evidence does 

not establish a constitutional violation, “there is no necessity 

for further inquiries concerning qualified immunity.” Saucier, 

533 U.S. at 201. 

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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). 

 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, 828 (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. 

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

 In order to prevail on his Eighth Amendment claim, 

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. 

Sims, 25 F.3d at 983. 

 The objective component of an Eighth Amendment claim 

inquires whether the alleged wrongdoing amounted to the 

infliction of “unnecessary pain or suffering upon the prisoner.” 

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

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

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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)). 

 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 983-84 

(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 Supreme Court in Farmer stated: 

We hold ... that a prison official cannot 

be found liable under the Eighth 

Amendment for denying an inmate humane 

conditions of 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. 

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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 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 (citations omitted). “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. 

 Having set forth the general legal principles relevant to 

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

those legal principles to the facts before the Court. 

 In his Complaint, Plaintiff claims that Defendants violated 

his Eighth Amendment right to be free from cruel and unusual 

punishment by failing to protect him from the physical attack by 

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inmate Parker. Plaintiff argues that Defendant Officer Moody in 

effect caused his injuries by opening Plaintiff’s cell door too 

soon, that is, before receiving proper authorization from 

Defendant Officer Montgomery. (Doc. 78 at 1). Plaintiff also 

contends that Officer Moody failed to properly search inmate 

Parker prior to sending Parker to the shower area. (Id.). 

Plaintiff further complains that neither Officer Moody nor 

Officer Montgomery was equipped with a baton and that Officer 

Montgomery had no chemical spray.2

 (Id. at 2). 

 Plaintiff does not allege, however, that either officer had 

reason to anticipate the attack. Plaintiff has admitted that 

prior to the altercation, he and inmate Parker had a verbal 

confrontation during which inmate Parker told Plaintiff to meet 

him at the shower, and Plaintiff replied, “I’ll be there.” 

(Doc. 16 at 5). It is undisputed that Plaintiff did not tell 

either Defendant Moody or Defendant Montgomery or any other 

correctional officer about this conversation. 

 In order to establish the objective element of an Eighth 

Amendment claim in a failure to protect case, an inmate must 

 2 While complaining that Officer Montgomery had no chemical 

spray with him at the time of the incident, Plaintiff also 

contends, although unclearly, that the type of spray that 

Officer Moody had, “Freeze+P” is unconstitutional. (Doc. 78 at 

3). It appears to be Plaintiff’s opinion that “pepper maze,” 

instead of “Freeze+P,” should have been used in this instance. 

(Id.). 

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establish that the conditions under which he was incarcerated 

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

U.S. at 834. It is settled that “an excessive risk of inmateon-inmate violence at a jail creates a substantial risk of 

serious harm....” Purcell ex. rel. Estate of Morgan v. Toombs 

County, Ga., 400 F.3d 1313, 1320 (11th Cir. 2005) (“confinement 

in a prison where violence and terror reign is actionable.”). 

On the other hand, “occasional, isolated attacks by one prisoner 

on another may not constitute cruel and unusual punishment.” 

Purcell, 400 F.3d at 1320 (citations omitted). 

 “[A] prison custodian is not the guarantor of a prisoner’s 

safety.” Purcell, 400 F.3d at 1321 (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, 511 

U.S. at 834. As discussed above, a prison official’s duty under 

the Eighth Amendment is to ensure “reasonable safety.” Farmer, 

511 U.S. at 844. 

 In the present case, Plaintiff has not established that he 

was exposed to “the constant threat of violence” while 

incarcerated at Holman, see Purcell, 400 F.3d at 1320, or to any 

other condition that presented “a substantial risk of serious 

harm.” Farmer, 511 U.S. at 834; see also Hale v. Tallapoosa 

County, 50 F.3d 1579, 1583 (11th Cir. 1995) (“Hale produced 

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evidence that inmate-on-inmate violence occurred regularly” in 

the two years preceding the attack). 

 While Plaintiff has complained that he was endangered on 

this occasion by Defendant Montgomery’s failure to be equipped 

with pepper spray and a baton, and by Defendant Moody’s lack of 

a baton, these allegations do not show a condition that 

presented “a substantial risk of serious harm.” Accordingly, the 

undersigned opines that Plaintiff has failed to satisfy the 

objective element of his Eighth Amendment claim. 

 Even if, arguendo, Plaintiff’s evidence satisfied the 

objective element of his Eighth Amendment claim, as previously 

noted, he must also demonstrate that Defendants were 

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 they “knowingly or recklessly” declined to take action to 

prevent that harm. LaMarca, 995 F.2d at 1537. “[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, 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 

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Farmer, 511 U.S. at 842). “Thus, ‘a factfinder 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 a lack of security, stemming from his 

allegations concerning the security equipment worn by Defendant 

Officers Montgomery and Moody, and their actions or inactions at 

the precise time of the altercation. As noted supra, Plaintiff 

complains that he was attacked because Officer Moody opened 

Plaintiff’s cell door before receiving authorization from 

Officer Montgomery, and that Officer Montgomery was not 

adequately equipped with a baton and pepper spray. Plaintiff 

also has alleged that if Officer Moody had properly searched 

Parker prior to letting him walk to the shower, Parker would not 

have had the keys or the knife in his possession. These 

allegations, rather than depicting deliberate indifference, seem 

to reflect at best, negligence on the part of the officers. 

 Moreover, the Court again points to the undisputed evidence 

that Plaintiff had a verbal confrontation with Parker just prior 

to shower time, in which he and Parker seemingly planned an 

altercation of some sort. Again, notably, it is undisputed that 

this information was not given to Defendant Officers Montgomery 

and Moody. Had these officers been armed with that information, 

this unfortunate altercation might possibly have been prevented. 

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 While the Court notes that the stabbing of Plaintiff by 

inmate Parker was unfortunate, it simply does not reflect 

deliberate indifference on the part of Defendants. The evidence 

in the record indicates that Defendants Montgomery and Moody, 

faced with a dangerous and quickly unfolding and chaotic 

situation, summoned help from additional prison staff and 

ultimately ended the attack by pulling inmate Parker out of 

Plaintiff’s cell. Moreover, Plaintiff was immediately given 

medical attention, including initial medical treatment at the 

prison, and was then transported by ambulance to Atmore 

Community Hospital. Later, Plaintiff was transferred to USA 

Medical Center in Mobile for treatment. (Doc. 28, Ex. F at 44, 

46-49, 56, 57, 63, 66-68, 70-97, 105). Plaintiff has also been 

afforded extensive follow up medical treatment both at Holman 

and with outside specialists for injuries he suffered in the 

altercation with inmate Parker. (Id.). Fortunately, it appears 

from the record that Plaintiff has recovered well from the 

injuries he sustained. (Id.). 

 Plaintiff has failed to present any evidence that Defendant 

Moody or Defendant Montgomery was deliberately indifferent to 

the risk of harm to him from inmate Parker. There is simply no 

evidence that either Defendant knew that Plaintiff was at risk 

of being attacked by inmate Parker or any other inmate. There 

is no evidence that any threats had been made against Plaintiff 

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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 evidence indicates that Parker’s 

attack was isolated, and facilitated by Parker’s ability to 

remove his own handcuffs, breaking free from Officer Montgomery. 

At best, Plaintiff has shown negligence on the part of 

Defendants, and negligence is simply not enough to show a 

constitutional violation. 

 Because Plaintiff has failed to show that Defendants 

actually knew that a substantial risk of serious harm existed, 

i.e., that Plaintiff was at risk of being harmed by another 

inmate, and they knowingly or recklessly declined to take action 

to prevent that harm, he has failed to satisfy the subjective 

element of his Eighth Amendment claim as well. Accordingly, 

Defendants are entitled to judgment as a matter of law on 

Plaintiff’s Eighth Amendment failure to protect claim. 

IV. CONCLUSION

 Based on the foregoing, the Court concludes that 

Defendants, Correctional Officer Isaac Moody and Correctional 

Officer Terry Montgomery, are entitled to summary judgment in 

their favor on all claims asserted against them by Plaintiff. 

Accordingly, it is recommended that Defendants’ Motion for 

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22 

Summary Judgment be GRANTED, that this action be DISMISSED with 

prejudice, and that judgment be entered in favor of Defendants 

and against Plaintiff on all claims. 

 The attached sheet contains important information regarding 

objections to this recommendation. 

 DONE this 26th day of July, 2010.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

FINDINGS CONCERNING NEED FOR TRANSCRIPT

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

anything in it must, within fourteen (14) days of the date of 

service of this document, file specific written objections with 

the Clerk of this 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 

days3 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 

 3 Effective December 1, 2009, the time for filing written 

objections was extended to “14 days after being served with a 

copy of the recommended disposition[.]” Fed. R. Civ. P. 

72(b)(2). 

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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. 

 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 case 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. 

 

DONE this 26th day of July, 2010. 

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

 

 

 

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