IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY N. JONES, #112734, :

Plaintiff, :

vs. : CIVIL ACTION 09-0835-CG-M

GRANTT CULLIVER, 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 together

with a Motion to Proceed Without Prepayment of Fees. (Docs. 1 &

3). Plaintiff’s action was referred to the undersigned for

appropriate action pursuant to 28 U.S.C. § 636(b)(1)(B) and Local

Rule 72.2(c)(4). After carefully screening Plaintiff’s Amended

Complaint (Doc. 20), it is recommended that the claims against

Defendants Culliver, Patterson, Folk, and Hicks be dismissed

without prejudice, prior to service of process, pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim upon

which relief can be granted; that the claims against Defendants

White, Thomas, and Marks be dismissed without prejudice for lack

of venue; and that the request for a preliminary injunction be

denied as moot. A separate order will be entered requiring that

the waiver documents be sent to Defendants remaining in this

action.

I. Nature of Proceedings. 

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Plaintiff initiated this action by filing a Complaint

alleging violations 42 U.S.C. § 1983. (Doc. 1). In an Order

dated February 22, 2010 (Doc. 15), Plaintiff was directed to file

an Amended Complaint because his original Complaint and Motions

to Amend (Docs. 2 & 14) were not a “short and plain statement” as

required by Rule 8(a) of the Federal Rules of Civil Procedure. 

Plaintiff was ordered to include all of his claims in his Amended

Complaint so no further amendments would be needed, and he was

advised that his Amended Complaint would supersede his original

Complaint as amended. (Doc. 15 at 2). In response, Plaintiff

filed the instant Amended Complaint. (Doc. 20). In his Amended

Complaint, Plaintiff names as Defendants Dr. Robert Barnes, Dr.

Negash Tesemma, Holman Prison Hospital’s Secretary Donny Myers,

Warden Grantt Culliver, Warden Patterson, Deputy Warden Folk,

Nurse Sylvia Hicks, Dr. Joseph White, Nurse Practitioner Thomas,

and Nurse Marks. (Id. at 5-6, 9-14).

Plaintiff’s allegations are chiefly concerned with the 

adequacy of the medical treatment for an ulcer and for

hemorrhoids. (Id.). Plaintiff claims that he sought

unsuccessfully to be referred to specialists for these conditions

so the severity of his conditions and the need for more

aggressive treatment, such as surgery for his hemorrhoids and an

antibiotic to cure his peptic ulcer, could be determined. (Id.

at 4, 8). He further maintains that Defendants refused to reCase 1:09-cv-00835-CG-M Document 25 Filed 04/29/10 Page 2 of 15
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prescribe Tylenol #3 for him, thereby leaving him in pain daily

from these conditions. (Id. at 8).

Plaintiff claims that Defendant Culliver was the warden at

Holman Correctional Facility (“Holman”) during the time from July

14, 2009 to December 4, 2009 and beyond (Id. at 4), was

“responsible for the overall operation of . . . Holman Prison . .

. was the person who train[ed] and supervise[d] all . . .

subordinates . . . at Holman Prison. Defendant Culliver was

warn[ed] by Plaintiff twice through letters yet refused to take

corrective measures or action to [advise] his employees [of]

Plaintiff[’s] problems.” (Id. at 9). Plaintiff describes his

claims against Defendant Culliver as being for negligence and

conspiracy. (Id.).

Defendant Patterson is alleged to have replaced Defendant

Culliver as warden. Therefore, Plaintiff charges that he, too,

is “responsible for the overall operation of” the prison and “is

the person who train[s] and supervise[s] all...subordinates.” 

(Id. at 9-10). He also “was warn[ed] by Plaintiff by letter and

refused to corrective measures to rectify the problem with his

employees [concerning] Plaintiff[’s]. . . medical issues.” (Id.

at 10).

Defendant Folk was the associate warden in charge of

security at Holman during this time. (Id.) In this position he

provided “security custod[]y, care, control and medical care for

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The frivolity and the failure-to-state-a-claim analysis

contained in Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827,

104 L.Ed.2d 338 (1989), was unaltered when Congress enacted 28

U.S.C. § 1915(e)(2)(B) in 1996. Bilal v. Driver, 251 F.3d 1346,

1349 (11th Cir.), cert. denied, 534 U.S. 1044 (2001). However,

dismissal is now mandatory under § 1915(e)(2)(B). Id. at 1348-

49.

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prisoners, and transportation for prisoners[’] outside medical

appointments.” (Id.).

Defendant Hicks was the chief administrative head nurse

during this time and was responsible for “the overall operation

[of] Holman Prison Hospital [and] supervising all her subordinate

nurses, and the person responsible for all grievance responses,

...all in[-]house medical operations, appointment[s with the

prison doctor and arranging] outside medical appointments.” (Id.

at 11-12).

Defendants White, Thomas, and Marks are alleged to be a

doctor, nurse practitioner, and head administrative nurse,

respectively, at St. Clair Correctional Facility (“St. Clair”)

where Plaintiff was transferred from Holman. (Id. at 13-14). 

His claims against these St. Clair medical personnel appear to be

of a similar vein but are pled in an extremely brief, conclusory,

and vague manner.

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the Court

is reviewing the Amended Complaint (Doc. 20) under 28 U.S.C. §

1915(e)(2)(B).1

 Under § 1915(e)(2)(B)(i), a claim may be

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dismissed as “frivolous where it lacks an arguable basis in law

or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.

1827, 1831-32, 104 L.Ed.2d 338 (1989). In addition, a complaint

may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure 

to state a claim upon which relief may be granted. Mitchell v.

Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). 

In order to state a claim upon which relief can be granted,

there must be “sufficient factual matter, accepted as true, ‘to

state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173

L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570, 126 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). 

“[W]hen the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged[,]” a claim is facially

plausible. Id. at ___, 129 S.Ct. at 1949. 

Plausibility requires more than the possibility that the

defendant engaged in unlawful conduct. Id. “Where the

well-pleaded facts do not permit the court to infer more than the

mere possibility of conduct, the complaint has alleged - but it

has not ‘show[n]’ - ‘that the pleader is entitled to relief.’” 

Id. at ___, 129 S.Ct. at 1950 (quoting Fed.R.Civ.P.

8(a)(2)(requiring the statement of the claim to show that the

pleader is entitled to relief)). Moreover, “[t]hreadbare

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recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. at ___, 129 S.Ct. at

1949. 

The Court shows leniency to a pro se litigant’s allegations. 

GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359,

1369 (11th Cir. 1998). However, “this leniency does not give a

court license to serve as de facto counsel for [plaintiff] or to

rewrite an otherwise deficient pleading in order to sustain an

action.” Id. Notwithstanding, a pro se litigant “is subject to

the relevant law and rules of court including the Federal Rules

of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th

Cir.), cert. denied, 493 U.S. 863 (1989).

III. Analysis.

A. Correctional Defendants Located at Holman.

1. Defendant Culliver.

The Court is turning its attention first to Defendants

Culliver, Patterson, and Folk who are correctional officials

located at Holman. Plaintiff alleges that Defendants Culliver

and Patterson are responsible for the overall operation of the

institution as well as for the training and supervising of

subordinates. A claim that seeks to impose liability against a

person because the person is responsible for the overall

operations of the institution attempts to hold that person liable

for the acts of a subordinate. In a § 1983 action, a person

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cannot be held liable for an employee’s or subordinate’s acts. 

Section 1983 imposes liability only when one person causes injury

to another. Monell v. Department of Social Services, 436 U.S.

658, 692, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). That is, a

defendant cannot be held liable on the basis of respondeat

superior or vicarious liability for the constitutional violation

that is caused by another when there is no showing of a causal

connection between the actions of the defendant and the

constitutional violation. Id. at 691, 98 S.Ct. at 2036. 

“Supervisory liability . . . occurs either when the

supervisor personally participates in the alleged constitutional

violation or when there is a causal connection between actions of

the supervising official and the alleged constitutional

violation.” Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.

2003). “[A] plaintiff must plead . . . that through the

official’s own individual actions[] he has violated the

Constitution.” Iqbal, ___ U.S. at ___, 129 S.Ct. at 1948; see

Kilgo v. Ricks, 983 F.2d 189, 194 (11th Cir. 1993)(dismissing as

frivolous the claims against the commissioner because the

complaint did not allege any participation in the objectionable

conduct or a department policy of refusing to provide prisoners

medical treatment). Furthermore, “[t]he standard by which a

supervisor is held liable in [his] individual capacity for

actions of a subordinate is extremely rigorous.” Gonzalez, 325

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F.3d at 1234. And, regarding a claim based on training or

supervision, a plaintiff must establish that the failure to train

or supervise was the moving force behind the deprivation of a

constitutional right. City of Canton, Ohio v. Harris, 489 U.S.

378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989); Gold v.

City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)

Plaintiff’s claim against Defendant Culliver based on his

responsibility for the overall operations of the prison fails to

state a claim upon which relief can be granted because it is

seeks to hold defendant Culliver liable on a respondeat superior

basis. Monell, supra. And, in regard to Plaintiff’s other

claims against Defendant Culliver, they do not contain

allegations that present a plausible claim. Iqbal, ___ U.S. at

___, 129 S.Ct. at 1949. Plaintiff merely mentions that Defendant

Culliver is responsible for training and supervising. He does

not identify whom Defendant Culliver trains or supervises, nor

the specific failure in his training and supervising, and that

the failure caused a constitutional deprivation to Plaintiff. 

Furthermore, Plaintiff’s claim against Defendant Culliver based

on the receipt of two letters that contained an unidentified

warning, and then Defendant Culliver’s failure to correct or

advise unidentified subordinates lacks plausibility. 

These claims against Defendant Culliver lack plausibility

because the information is insufficient so as not to allow the

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Court to draw the conclusion that Defendant Culliver is

responsible for conduct that violates Plaintiff’s constitutional

rights. Furthermore, the facts to provide plausibility are of

greater necessity in this instance due to Defendant Culliver

being a correctional officer and the underlying claim being for

inadequate medical treatment, an area that is typically beyond a

warden’s expertise and handled by a contract medical provider. 

Accordingly, these claims against Defendant Culliver are due to

be dismissed for failure to state a claim upon which relief can

be granted.

Plaintiff also charges Defendant Culliver with conspiracy. 

(Doc. 20 at 9). In regard to the conspiracy allegation, no other

person’s name is mentioned as having conspired with Defendant

Culliver and no factual support is given for the conspiracy. 

Plaintiff simply asserts that there was a conspiracy. Whereas,

in order to state a conspiracy claim, Plaintiff is required to

show “evidence of agreement between defendants” to violate his

rights. Rowe v. Ft. Lauderdale, 279 F.3d 1271, 1284 (11th Cir.

2002). To show an agreement Plaintiff is required to provide

more than a label or a conclusion. Twombly, 550 U.S. at 555, 127

S.Ct. at 1965. He must raise his right to relief above the

speculative level and show sufficient facts to suggest an

agreement was made. Id. at 556, 127 S.Ct. at 1965. Inasmuch as

Plaintiff has not alleged any facts showing that an agreement was

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reached to violate his constitutional rights, the Court finds

that the conspiracy claim against Defendant Culliver fails to

state claim upon which relief can be granted.

2. Defendant Patterson.

Plaintiff’s claims against Defendant Patterson are similar

to the claims against Defendant Culliver except for the absence

of a conspiracy allegation. Apparently, Defendant Patterson

replaced Defendant Culliver on an unspecified date. It is not

known whether he was warden at the time of Plaintiff’s problems

although Plaintiff states that he warned Defendant Patterson by

letter and no corrective action was taken. Plaintiff’s

allegations that Defendant Patterson is responsible for the

overall operations of the prison and for training and supervising

mirror the allegations against Defendant Culliver. Therefore,

the above reasoning concerning the claims against Defendant

Culliver is applicable to the claims against Defendant Patterson

and these claims are due to be dismissed for failure to state a

claim upon which relief can be granted.

3. Deputy Warden Folk. 

The other correctional Defendant is Deputy Warden Folk whom

Plaintiff states was the associate warden at the time of his

medical problems. Even though Plaintiff alleges that Defendant

Folk is the associate warden for security, care, medical care and

transportation to medical appointments to the “free-world,” he

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does not allege any type of deprivation connected the allegations

against Defendant Folk. Thus, Plaintiff has failed to state a

claim against Defendant Folk. See Parratt v. Taylor, 451 U.S.

527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981)(to state a

claim under 42 U.S.C. § 1983, the conduct of a person who acts

under color of state law must have “deprived a person of rights,

privileges, or immunities secured by the Constitution”),

overruled on other grounds by Daniels v. Williams, 474 U.S. 327,

330-31 (1986). 

B. Nurse Sylvia Hicks.

Defendant Hicks is alleged to be “chief administrative head

nurse” who was responsible for “the overall operation [of] Holman

Prison Hospital [and] supervising all her subordinate nurses, and

the person responsible for all grievance responses, ... all in[-]

house medical operations, appointment[s with the prison doctor

and arranging] outside medical appointments.” (Id. at 11-12).

Like the claims against the wardens, Defendants Culliver and

Patterson, the claim against Defendant Hicks seeks to hold her

liable for the actions of her subordinates. This type of

liability that is based on respondeat superior is not recognized

under § 1983. See Monnell, supra. Furthermore, no failure on

Defendant Hicks’ part is alleged, nor is the Court able to

discern such a failure that is consistent with the facts as

alleged. Accordingly, the Court finds that Plaintiff has failed

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The recommendation of dismissal of the claims arising in

the Northern District of Alabama operates as notice to Plaintiff

to file any objections to this disposition of these claims at

this time. Harris v. Hickey, 2009 WL 1381404, at *1 (N.D. Fla.

2009) (unpublished).

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to allege a plausible claim against Defendant Hicks and therefore

has failed to state a claim upon which relief can be granted

against her. 

C. Medical Defendants Located at St. Clair.

Turning to the medical personnel who are located at St.

Clair Correctional Facility (“St. Clair”) in the Northern

District of Alabama, Defendants White, Thomas, and Marks, venue

for the claims against them is lacking in this District. The

proper venue is in the District where Defendants White, Thomas,

and Marks reside and the claims against them arose. See 28 U.S.

C. § 1391(b); New Alliance Party of Ala. v. Hand, 933 F.2d 1568,

1570 (11th Cir. 1991) (applying § 1391(b)’s venue provisions to a

§ 1983 action). Plaintiff was transferred to St. Clair (Doc. 13)

from Holman (and is now at Donaldson Correctional Facility

(“Donaldson”) (Doc. 23)). Therefore, adequate time is available

for him to file an action in the Northern District, before the

two-year statute of limitations for filing § 1983 claims expires,

for any deprivations caused by these Defendants. 28 U.S.C. §

1406(a) (providing for the dismissal of an action where venue is

improperly laid because the action is filed in the wrong

district);2 see Lufkin v. McCallum, 956 F.2d 1104, 1106, 1108

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(11th Cir.) (statute of limitations), cert. denied, 506 U.S. 917

(1992); ALA. CODE § 6-2-38(l).

D. Preliminary Injunction.

Among Plaintiff’s requests for relief is a request for a

preliminary injunction against each of the named Defendants. 

Plaintiff seeks to have them cease their medical misconduct and

to provide him with proper care by providing an outside

specialist and giving him on the pain relievers until he is

cured. (Doc. 20 at 14, 22). This request for a preliminary

injunction is due to be denied as moot because Plaintiff is

presently incarcerated at Donaldson away from Defendants who work

at Holman and Defendants who work at St. Clair. 

In a § 1983 action filed by a prisoner, a request for

injunctive and declaratory relief becomes moot upon the transfer

or release of that prisoner from the facility where his cause of

action arose. Spears v. Thigpen, 846 F.2d 1327, 1328 (11th

Cir.1988) (“[t]his court has clearly stated the following: Absent

class certification, an inmate’s claim for injunctive and

declaratory relief in a § 983 action fails to present a case or

controversy once the inmate has been transferred.”), cert.

denied, 488 U.S. 1046 (1989). Moreover, “[e]quitable relief is a

prospective remedy, intended to prevent future injuries.” Adler

v. Duval County School Bd., 112 F.3d 1475, 1477 (11th Cir.1997). 

For that reason, “[w]hen the threat of future harm dissipates,

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the plaintiff’s claims for equitable relief become moot because

the plaintiff no longer needs protection from future injury.” Id.

Accordingly, the Court finds that Plaintiff’s request for a

preliminary injunction is moot. 

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that the

claims against Defendants Culliver, Patterson, Folk, and Hicks be

dismissed without prejudice, prior to service of process,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

claim upon which relief can be granted; that the claims against

Defendants White, Thomas, and Marks be dismissed without

prejudice for lack of venue; and that the request for a

preliminary injunction be denied as moot.

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 fourteen 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

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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).

15

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 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 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.

DONE this 29th day of April, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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