IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

HENRY COOPER :

(AIS # 256656),

:

Plaintiff, 

:

vs. CIVIL ACTION 08-00321-CG-C

:

WARDEN JERRY FERRELL, et al.,

:

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate proceeding pro se and in forma pauperis 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, Warden Jerry Ferrell

and Assistant Warden Walter Myers (Docs. 13, 14) and Plaintiff’s Opposition thereto. 

(Doc. 16). After consideration of these pleadings and the evidence presented by the

parties, and for the reasons set forth below, it is recommended that Defendants’ Motion

for Summary Judgment be granted and that Plaintiff’s action against these Defendants 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. 

1. On May 5, 2008, at approximately 7:00 a.m., while incarcerated at Fountain

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Correctional Facility (“Fountain”), Plaintiff cut his hand on a bread mixing machine that

he was operating in the prison kitchen. (Doc. 1 at 4; Doc. 14, att. 3 at 2). 

2. According to Plaintiff, he turned the machine off to beat out lumps in the bread,

and the machine “came around” and “caught [his] hand,” causing him to need stitches. 

(Doc. 1 at 4). 

3. Plaintiff was taken to the prison health unit where he was treated for a two-inch

laceration on his right hand. (Doc. 14, att. 3 at 2). 

4. The wound was cleaned with betadine and a dressing applied. (Id.). Although

the record is unclear on this point, the Court accepts Plaintiff’s allegation that he later

received stitches. (Id.). 

 5. On June 6, 2008, Plaintiff filed the present § 1983 action against Defendants,

Warden Jerry Ferrell and Assistant Warden Walter Myers, alleging that Defendants

violated his Eighth Amendment rights by failing to protect him from injury from the

malfunctioning bread mixing machine and by failing to train him on the proper use of the

machine. (Doc. 1 at 4-5). 

6. Plaintiff further alleges medical malpractice on the part of the prison medical

staff in treating his hand. (Id.). 

7. Plaintiff seeks nominal and compensatory damages. (Id. at 7). 

8. In their Answers and Special Reports filed on June 22, 2009, Defendants deny

that they violated Plaintiff’s constitutional rights and assert, inter alia, the defenses of

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1 In this action, Plaintiff seeks to sue Defendants in their official and individual

capacities. As discussed in the Court’s Order of July 28, 2009 (Doc. 17), Defendants, as state

officials, 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 allegations do

not establish a constitutional violation, “there is no necessity for further inquiries concerning

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

3

absolute and qualified immunity.1 (Docs. 13, 14). 

9. On July 8, 2009, the Court entered an Order converting Defendants’ Special

Report and Answer to a Motion for Summary Judgment. (Doc. 15). 

10. On July 28, 2009, Plaintiff filed a response in opposition to Defendants’

Motion for Summary Judgment, reasserting his claims against Defendants. (Doc. 16). 

Defendants’ motion and Plaintiff’s response thereto are now before the Court.

II. SUMMARY JUDGMENT STANDARD

1. 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. 

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2. “[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). 

3. All of the evidence and factual inferences reasonably drawn from the evidence

must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d

1250, 1280 (11th Cir. 2004). 

4. 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 325-27. 

5. “[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.

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

III. DISCUSSION

1. As discussed above, Plaintiff seeks redress pursuant to 42 U.S.C. § 1983 for

alleged constitutional deprivations arising out of a kitchen mishap that occurred while he

was incarcerated at Fountain Correctional Facility. (Doc. 1). 

2. According to Plaintiff, on May 5, 2008, he was operating a bread mixing

machine in the prison kitchen and had turned the machine off to beat out lumps in the

dough when the machine “came around” and “caught [his] hand,” causing a two-inch

laceration. (Doc. 1 at 4; Doc. 14, att. 3 at 2). 

3. Plaintiff alleges that Defendants Ferrell and Myers violated his Eighth

Amendment rights by failing to protect him from the malfunctioning bread mixing

machine and by failing to train him on the safe operation of the machine. (Doc. 1 at 5). 

4. Plaintiff further alleges that the prison’s “medical staff” failed to provide proper

medical care for his wound after he was injured. (Id. at 4).

5. 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 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).

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6. 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. 

7. 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). 

8. 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). 

9. 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.

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Bennett, 689 F.2d 1370, 1389-90 (11th Cir. 1982).” LaMarca v. Turner, 995 F.2d 1526,

1535 (11th Cir. 1993). 

10. 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.

11. 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. 

12. This standard requires that the alleged deprivation be “objectively, ‘sufficiently

serious.’” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). 

13. 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)). 

14. 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)). 

15. This component “follows from the principle that ‘only the unnecessary and

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wanton infliction of pain implicates the Eighth Amendment.’” Farmer, 511 U.S. at 834

(quoting Wilson, 501 U.S. at 297). 

16. 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). 

17. 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. 

Farmer, 511 U.S. at 837. 

18. 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. 

19. 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. 

20. It is not enough that a plaintiff proves that the defendant should have known of

the risk; conscious awareness is the key. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480,

1491 (11th Cir. 1996). 

21. “[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. 

22. “‘Whether a prison official had the requisite knowledge of a substantial risk is

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9

a question of fact subject to demonstration in the usual ways, including inference from

circumstantial evidence.’” Hale v. Talapoosa County, 50 F.3d 1579, 1583 (11th Cir.

1995) (quoting Farmer, 511 U.S. at 842). 

23. “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).

24. Moreover, “‘deliberate indifference” entails more than mere negligence.’” 

Farrow v. West , 320 F.3d 1235, 1245 (11th Cir. 2003). 

In interpreting Farmer and Estelle, this Court explained in

McElligott that “deliberate indifference has three components:

(1) subjective knowledge of a risk of serious harm; (2)

disregard of that risk; (3) by conduct that is more than mere

negligence.” McElligott, 182 F.3d at 1255; Taylor, 221 F.3d

at 1258 (stating that defendant must have subjective

awareness of an “objectively serious need” and that his

response must constitute “an objectively insufficient response

to that need”). 

Id.

25. Indeed, 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). 

26. “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.

27. Having set forth the general legal principles relevant to Plaintiff’s claims, the

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Court now turns to the application of those legal principles to the facts before the Court.

A. Medical Care Claim.

28. In his Complaint, Plaintiff alleges that, after he was injured while using the

bread mixing machine, he received inadequate medical care from the prison medical staff.

29. Specifically, Plaintiff states: “the medical staff committed medical malpractice

by failing to x-ray my crushed bursted open hand. I contend that the medical staff even

failed to properly stitch my hand up all the way.” (Doc. 1 at 4). 

30. Notwithstanding Plaintiff’s allegations against the prison medical staff, he

makes no allegations whatsoever against either Defendant Ferrell or Defendant Myers

related to this claim. 

31. “[S]ection 1983 ‘requires proof of an affirmative causal connection between

the actions taken by a particular person under color of state law and the constitutional

deprivation.’” LaMarca, 995 F.2d at 1538 (citations and internal quotation marks

omitted). 

32. Because there is no evidence, nor even an allegation, of a causal link between

these Defendants and Plaintiff’s Eighth Amendment medical care claim, the claim fails as

a matter of law. 

B. Failure to Protect/Failure to Train.

33. Next, Plaintiff asserts an Eighth Amendment claim against Defendants Ferrell

and Myers for failing to protect him from the hazards associated with the malfunctioning

bread mixing machine and for failing to train him on the proper use of the machine. For

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2

 In his Response in Opposition to Defendants’ Motion for Summary Judgment, Plaintiff

maintains that Defendant Myers was personally responsible for assigning him to kitchen duty

and that Defendant Myers personally made periodic inspections of the kitchen and knew or

should have known of the condition of the appliances. (Doc. 16 at 3-4). For purposes of this

motion for summary judgment, the Court assumes that Plaintiff’s failure to train/failure to

protect claim against Defendant Myers is based on Myers’ personal involvement with this

alleged deprivation, as opposed to being based on mere supervisory liability as is the case with

Defendant Ferrell.

11

each of the reasons discussed below, this claim fails as a matter of law.

1. Respondeat Superior Liability.

34. In his Complaint, Plaintiff bases his failure to protect/failure to train claim

against Defendant Ferrell2

 solely on the theory of respondeat superior, that is, that

Warden Ferrell, as a supervisor, is responsible for the prison staff’s failure to train and

failure to protect Plaintiff from the malfunctioning machine. 

35. In order to state a claim upon which relief can be granted in a § 1983 action,

Plaintiff must establish a causal connection between each defendant’s “actions, orders,

customs, policies, or breaches of statutory duty and the alleged deprivation of his

constitutional rights.” Frankum v. Chapman, 2009 WL 1118875, *3 (S.D. Ala. 2009)

(citations omitted). 

36. Liability for an alleged constitutional violation cannot be established on the

basis of a theory of respondeat superior. See Edwards v. Alabama Dep’t of Corrs., 81 F.

Supp. 2d 1242, 1255 (M.D. Ala. 2000) (“A theory of respondeat superior is not sufficient

to support [a] § 1983 claim. . . .”).

37. “It is well established in this Circuit that supervisory officials

are not liable under § 1983 for the unconstitutional acts of

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their subordinates on the basis of respondeat superior or

vicarious liability.” Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999) (internal quotation marks and citation

omitted); Gonzalez, 325 F.3d at ----, 2003 WL 1481583, at *4

(concluding supervisory officials are not liable on the basis of

respondeat superior or vicarious liability). 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. Gonzalez, 325 F.3d at ----, 2003

WL 1481583, at *5; Brown v. Crawford, 906 F.2d 667, 671

(11th Cir. 1990). 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.” Gonzalez, 325

F.3d at ----, 2003 WL 1481583, at *5 (quoting Braddy v. Fla.

Dept. of Labor & Employment, 133 F.3d 797, 802 (11th

Cir.1998)); Brown, 906 F.2d at 671. 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 would act unlawfully and failed to

stop them from doing so.” Gonzalez, 325 F.3d at ----, 2003

WL 1481583, at *5 (quoting Rivas v. Freeman, 940 F.2d

1491, 1495 (11th Cir. 1991)); Hartley, 193 F.3d at 1263; see

also Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1560-61

(11th Cir. 1993). “The standard by which a supervisor is held

liable in [his] individual capacity for the actions of a

subordinate is extremely rigorous.” Gonzalez, 325 F.3d at

----, 2003 WL 1481583, at *4 (internal quotation marks and

citation omitted).

Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

38. In instances in which supervisory liability is based on a supervisor’s custom or

policy, a plaintiff must show that the custom or policy was “the ‘moving force [behind]

the constitutional violation.’” Pinkney v. Davis, 952 F. Supp. 1561, 1569 (M.D. Ala.

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3

 Although Defendants have submitted affidavits attesting that Plaintiff was given

training by the institutional stewards on his assigned kitchen duties (Doc. 14, att. 1; Doc. 14, att.

13

1997) (citations omitted). 

39. “[I]t is clear that not only must there be some degree of ‘fault’ on the part of

[defendant] in establishing the policy or tolerating the custom, but there must be a causal

link between the custom or policy and the constitutional deprivation.” Id. (citations

omitted). 

40. Assuming, arguendo, that the malfunctioning bread mixing machine created a

constitutionally infirm prison condition, Plaintiff has failed to establish, or even allege,

any personal involvement, custom, or policy of Warden Ferrell which caused the

associated constitutional violation.

41. Thus, because Plaintiff’s failure to protect/failure to train claim against

Defendant Ferrell is based solely on a theory of respondeat superior liability, it fails as a

matter of law. 

2. No Eighth Amendment Violation.

42. In addition to the foregoing, Plaintiff’s claim against Defendant Ferrell and

Defendant Myers for failure to protect and failure to train fails as a matter of law for lack

of evidence of the essential elements of an Eighth Amendment claim.

43. Plaintiff maintains in this action that he should have been protected from the

malfunctioning bread mixing machine and should not have had to operate it without

sufficient training.3

 

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2), for purposes of this motion for summary judgment, the Court accepts Plaintiff’s allegation

that he did not receive training on the proper operation of the malfunctioning bread mixing

machine. Plaintiff does acknowledge, however, that he was aware, prior to the accident, that the

bread mixing machine had a tendency to resume spinning even while switched off. (Doc. 16 at

2).

14

44. A prison official’s duty under the Eighth Amendment is to ensure “reasonable

safety.” Farmer, 511 U.S. at 844. 

45. “[A] prison custodian is not the guarantor of a prisoner’s safety.” Purcell ex

rel. Estate of Morgan v. Toombs County, Ga., 400 F.3d 1313, 1319 (11th Cir. 2005).

Purcell, 400 F.3d at 1321 (citations omitted). 

46. Considering all of Plaintiff’s evidence, the Court is unconvinced that being

required to operate a bread mixing machine without training, even a malfunctioning

machine with a propensity to resume spinning after being switched off, amounts to the

infliction of “unnecessary pain or suffering,” LaMarca, 995 F.2d at 1535, or exposes an

inmate to “a substantial risk of serious harm.” Farmer, 511 U.S. at 834. 

47. While the Court agrees that working with a piece of kitchen equipment that is

in sub-optimal working order is not an ideal situation, the evidence in this case does not

support a finding that the risk of harm associated with this particular piece of equipment

rises to the level of a constitutional violation. 

48. Thus, Plaintiff has failed to establish the objective element of his Eighth

Amendment claim.

49. Assuming, however, that Plaintiff had established the objective element of his

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15

Eighth Amendment claim, in order to satisfy the subjective element of his Eighth

Amendment claim, Plaintiff must show that Defendants were deliberately indifferent to

the risk of serious harm to him. 

50. 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. 

51. In his Response in Opposition to Defendants’ Motion for Summary Judgment,

Plaintiff states: “Plaintiff submits that the defendants’ negligence in failing to have the

mixing machine fixed amounts to deliberate indifference because plaintiff has brought to

the attention of the stewards and the defendants that the mixer needed fixing on several

occasions prior to the incident.” (Doc. 16 at 2). 

52. Contrary to Plaintiff’s argument, Defendants’ alleged negligence in failing to

have the mixing machine fixed does not “amount[] to deliberate indifference.” See

Farrow, 320 F.3d at 1245 (“‘deliberate indifference” entails more than mere

negligence.’”). 

53. Moreover, assuming that Defendants were aware of the mixer’s propensity to

resume spinning after being turned off, there is no evidence that Defendants were aware

of a substantial risk of serious harm posed by that fact. LaMarca, 995 F.2d at 1537; Hale,

50 F.3d at 1583. 

54. Although Plaintiff undisputedly received a two-inch laceration as a result of

operating the malfunctioning bread mixing machine, there is no evidence of any prior

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accidents in which an inmate was injured while operating the machine, nor is there any

evidence to suggest that a substantial risk of serious harm was obvious.

55. As discussed above, “an 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.

56. Defendants must have been “consciously aware of” of the significant risk and

knowingly or recklessly disregarded it. Cottrell, 85 F.3d at 1491. 

57. In this case, Plaintiff has failed to establish the subjective element of his Eighth

Amendment failure to train/failure to protect claim against Defendant Ferrell and Myers. 

Therefore, the claim fails as a matter of law for this reason as well.

IV. CONCLUSION

58. Based on the foregoing, the Court concludes that Defendants, Warden Jerry

Ferrell and Assistant Warden Walter Myers, are entitled to summary judgment in their

favor on all claims asserted against them by Plaintiff. 

59. 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 on all claims.

60. The instructions which follow the undersigned’s signature contain important

information regarding objections to the report and recommendation of the Magistrate

Judge.

DONE this 8th day of January, 2010. 

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17

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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4

 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).

18

 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 days4 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. 

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.

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