IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DRAPER FRANK WOODYARD, )

AIS #00183250, )

Plaintiff, )

)

v. ) Civil Action No. 12-00566-WS-N

)

TONY PATTERSON, et al., )

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff Draper Frank Woodyard (“Woodyard”), an Alabama prisoner

proceeding pro se and in forma pauperis (see Doc. 10), has brought this action

asserting claims against the Defendants under 42 U.S.C. § 1983. Currently pending 

are the Defendants’ Answer (Doc. 30) and Special Report (Doc. 29), which have been 

converted to a Motion for Summary Judgment under Federal Rule of Civil 

Procedure 56 by order of the undersigned (Doc. 31). Woodyard has filed a response 

in opposition (Doc. 42) to the motion. The motion for summary judgment is now

under submission and ripe for adjudication. (See Doc. 44 at 3). 

This matter has been referred to the undersigned United States Magistrate 

Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B), Federal Rule of Civil Procedure 72(b)(1), and SD ALA Local Rule

72.2(c)(4). Upon consideration, and for the reasons stated herein, it is 

RECOMMENDED that the Defendants’ motion for summary judgment be 

GRANTED in part and DENIED in part, as set out.

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I. Summary Judgment Standards

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. Federal Rule of Civil Procedure 56(a) provides 

that “[t]he court shall grant summary judgment if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 

91 L .Ed. 2d 265 (1986), the Supreme Court held that summary 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....” However, 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, 90 S. Ct. 1598, 26 

L. Ed. 2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th 

Cir. 2004).

Federal Rule of Civil Procedure 56(e) further provides:

If a party fails to properly support an assertion of fact or fails to 

properly address another party's assertion of fact as required by Rule 

56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

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(3) grant summary judgment if the motion and supporting materials—

including the facts considered undisputed—show that the movant is 

entitled to it; or

(4) issue any other appropriate order.

The party seeking summary judgment “always bears the initial responsibility 

of informing the district court of the basis for its motion, and identifying those 

portions of the ‘pleadings, depositions, answers to interrogatories, and admissions 

on file, together with the affidavits, if any,’ which it believes demonstrate the 

absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The movant 

can meet this burden by presenting evidence showing there is no dispute of material 

fact or by pointing out to the district court that the nonmoving party has failed to 

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

ultimate burden of proof. Id. at 322–25.

Once the moving party has satisfied its responsibility, the burden shifts to 

the non-movant to show the existence of a genuine issue of material fact. See

Stabler v. Fla. Van Lines, Inc., Civil Action No. 11–0103–WS–N, 2012 WL 32660, at 

*5 (S.D. Ala. Jan.6, 2012) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 

(11th Cir. 1991)). Summary judgment is proper when “a party fails to make a 

showing sufficient to establish the existence of an essential element of that party's 

case.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citations and 

internal quotation marks omitted). “[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, 

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... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 249–50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (internal citations omitted). 

“After the nonmoving party has responded to the motion for summary judgment, 

the court must grant summary judgment if there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law.” AGSouth 

Genetics, LLC v. Cunningham, No. CA 09–745–C, 2011 WL 1833016, at *2 (S.D.

Ala. May 13, 2011). “ ‘An issue of fact is “material” if, under the applicable 

substantive law, it might affect the outcome of the case. An issue of fact is “genuine”

if the record taken as a whole could lead a rational trier of fact to find for the 

nonmoving party.’ ” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014)

(quoting Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004) 

(citations omitted)).

“A document filed pro se is to be liberally construed, and a pro se complaint, 

however inartfully pleaded, must be held to less stringent standards than formal 

pleadings drafted by lawyers...” E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(citation and quotations omitted). Nevertheless, “a court may not ‘serve as de facto 

counsel for a party’ or ‘rewrite an otherwise deficient pleading in order to sustain an 

action.’ ” Muhammad v. Bethel, 430 F. App'x 750, 752 (11th Cir. 2011) (quoting 

GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), 

overruled on other grounds, see Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)). 

Additionally, “[t]here is no burden upon the district court to distill every potential 

argument that could be made based upon the materials before it on summary 

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judgment. Rather, the onus is upon the parties to formulate arguments; grounds 

alleged in the complaint but not relied upon in summary judgment are deemed 

abandoned.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 

1995) (en banc) (internal citation omitted). Accord, e.g., Gennusa v. Canova, 748 

F.3d 1103, 1116 (11th Cir. 2014).

II. Determination of Facts1

Woodyard has been an inmate in the custody of the Alabama Department of 

Corrections (“ADOC”) since August 8, 1995. (Doc. 29-1 at 2). Woodyard is currently 

housed at ADOC’s Holman Correctional Facility (“Holman”) in Atmore, Alabama, 

and has been at all relevant times in this action. On July 24, 2012, defendant 

Correctional Officer David Leggett (“Leggett”) was assigned to Housing Unit A at 

Holman. (Doc. 29-2 [Leggett Aff.] at 1). Per an unsigned ADOC Incident Report 

from Woodyard’s institutional file (Incident No. HCF-12-00883), 2 the following 

occurred on that date:

 1 The undersigned has made her “determination of facts” by “review[ing] the record, and all 

its inferences, in the light most favorable to [Woodyard,] the nonmoving party.” E.g., 

Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997). As such, this determination of 

“facts” is for summary judgment purposes only and may differ from the facts ultimately 

established at trial. See Cox v. Adm'r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 

1400 (11th Cir. 1994) (“As we said in Swint v. City of Wadley, 5 F.3d 1435, 1439 (11th Cir. 

1993), ‘what we state as “facts” in this opinion for purposes of reviewing the rulings on the 

summary judgment motion [ ] may not be the actual facts. They are, however, the facts for 

present purposes, and we set them out below.’ ”), opinion modified on other grounds on 

reh'g, 30 F.3d 1347 (11th Cir. 1994).

2 The incident report and other documents have been certified as true and correct copies of 

documents contained in Woodyard’s ADOC institutional file, and as documents “maintained 

in the usual and ordinary course of business[,]” by Kim Whitney. (Doc. 29-1 at 1 [Whitney 

Aff.]). Whitney’s affidavit indicates that Whitney is an ADOC employee and is “competent 

to testify” regarding the documents. However, the affidavit does not state Whitney’s 

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At approximately 12:15 PM, CO Leggett observed inmates Lawrence 

Anderson B/155259 and Draper Woodyard B/183250 engaged in a 

physical altercation near bed A-14. CO Leggett called a “Code Blue” 

via hand-held radio. CO Leggett gave inmates Woodyard and 

Anderson loud verbal orders to cease fighting. Both inmates failed to 

comply with the lawful order given by CO Leggett. As CO Leggett 

reached the area, other inmates had pulled inmates Woodyard and 

Anderson apart. Correctional Sergeant Ruby Salter along with 

Correctional Officers Kenneth Bates, Gary Scarbrough, Hunter Capps 

and John Jones responded to the code to provide assistance. CO 

Leggett observed inmate Woodyard bleeding profusely. CO Leggett

assisted inmate Woodyard out of the dormitory, to the Health Care 

Unit. CO Bettis and Jones secured the dormitory and the crime scene 

area. CO Scarbrough escorted inmate Anderson to the Segregation 

Holding Area. Inmate Woodyard was medically assessed by Corizon 

Medical Services Licensed Practical Nurse, Shirley Johnson...Inmate 

Woodyard sustained several lacerations to his right arm, right chest, 

left chest, left arm, inner forearm, left palm, jagged laceration to his 

left 3rd finger and his 4th finger was nearly severed. Inmate 

Woodyard remained in the Health Care Unit for Observation, per order 

of Doctor Pamela Barber...At approximately 3:15 PM, Correctional 

Officer Letha Hartley (Health Care Officer) contacted CL Brown via 

telephone and requested that CL Brown report to the Health Care 

Unit. Upon arrival in the Health Care Unit, Doctor Barber informed 

CL Brown that inmate Woodyard needed to be transported via 

ambulance to Atmore Community Hospital, due to uncontrollable 

bleeding. At approximately 3:55 PM, Atmore Ambulance Services 

arrived at the backgate. CL Brown escorted Atmore Ambulance 

Attendants to the Health Care Unit. At approximately 4:12 PM, 

Atmore Ambulance Attendants departed the Health Care Unit with 

inmate Woodyard...

(Doc. 29-1 at 25-26).3

An investigation of the incident by prison officials determined that Woodyard 

instigated the incident by confronting Anderson with a knife over money allegedly 

owed to Woodyard by Anderson. Anderson then gained control of the knife and 

 

position with ADOC or otherwise provide facts indicating why Whitney is competent to 

authenticate the documents from Woodyard’s file.

3 As a result of the attack, on July 25, 2012, Anderson was listed as a “known enemy” of 

Woodyard in ADOC records. (Doc. 29-1 at 20).

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stabbed Woodyard. Anderson was also purportedly given another knife by another 

inmate. (Doc. 29-1 at 26). 

In his complaint (Doc. 164), Woodyard asserts that he was stabbed repeatedly 

by Anderson and that Leggett, despite being armed with a baton, a chemical agent, 

and handcuffs, ignored his yells for help. Woodyard claims that, “[p]rior to the 

actual assault occurring, [he] informed []Leggett that he had just passed words with 

Inmate Lawrence Anderson because[] Inmate Anderson wanted [Woodyard] to give 

him money[,]” and that “he feared life threatening violence to befall him” from 

Anderson. (Doc. 16 at 4-5). Additionally, Woodyard claims that, “minutes” before 

the attack, he “asked Defendant Leggett...if he could report the incident to the shift 

commander[,]” with Leggett responding that “ ‘the yard call was over’ and that 

[Woodyard] ‘had to wait on the next movement call[.]’ ” (Id. at 8).

Woodyard asserts that there are no security measures at Homan to monitor 

or control tools such as hacksaws being circulated among the inmates. The 

hacksaws are purportedly used to saw metal hinges from locker boxes. The hinges 

themselves are then fashioned into weapons by the inmates. Woodyard asserts that 

 4 Woodyard’s operative Complaint is signed and dated by him and states that, “[b]y my 

signature below, I swear or affirm under penalty of perjury that the facts set out in this 

complaint are true and correct.” (Doc. 16 at 7). Though the Complaint is not notarized, it 

is in substantial compliance with 28 U.S.C. § 1746 and thus constitutes an unsworn 

declaration under penalty of perjury that may be considered for purposes of summary 

judgment. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986) (per curiam) 

(“Plaintiff alleged specific facts in his sworn complaint and they were required to be 

considered in their sworn form.”); Moulds v. Bullard, 345 F. App'x 387, 391 (11th Cir. 2009) 

(per curiam) (“In another prisoner's § 1983 case, we held that specific facts pled in a sworn 

complaint must be considered in opposition to summary judgment. Perry v. Thompson, 786 

F.2d 1093, 1095 (11th Cir. 1986). However, sworn statements must be made on personal 

knowledge, and statements based in part upon information and belief cannot raise a 

genuine issue of fact. Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002) (citing Fed. 

R. Civ. P. 56(e)).”).

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the Defendants are aware of this problem but have failed to take any measures to 

stop or prevent it. He also asserts that the Holman guards themselves are not 

trained to properly respond to inmate-on-inmate violence.

It is undisputed also that, since the attack, Woodyard and Anderson continue 

to be housed in the same annex of Holman, with both being kept in 

segregation/close status.

III. Claims5

In this action, Woodyard asserts claims under 42 U.S.C. § 19836 for alleged 

deprivations of his constitutional rights related to the above-described attack by 

inmate Anderson occurring July 24, 2012. 

 5 Woodyard’s operative Complaint (Docs. 16, 17; see also Doc. 20 & Doc. 22 n.1 (identifying 

Docs. 16 and 17 as “constitute[ing] the complaint in this action...”) is the sole source of any 

of his claims in this action. Claims raised for the first time in Woodyard’s summary 

judgment briefing will not be addressed. See Gilmour v. Gates, McDonald & Co., 382 F.3d 

1312, 1315 (11th Cir. 2004) (“At the summary judgment stage, the proper procedure for 

plaintiffs to assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P. 

15(a). A plaintiff may not amend h[is] complaint through argument in a brief opposing 

summary judgment.”). Moreover, “[l]iberal pleading does not require that, at the summary 

judgment stage, defendants must infer all possible claims that could arise out of facts set 

forth in the complaint.” Id. See also Al-Amin v. Donald, 165 F. App'x 733, 740 (11th Cir. 

2006) (per curiam) (“Pro se pleadings are interpreted liberally, but even a pro se plaintiff 

must allege some factual basis for his claim. See Jones v. Ray, 279 F.3d 944, 946-47 (11th 

Cir. 2001). A defendant is not required to ‘infer all possible claims that could arise out of 

the facts set forth in the complaint.’ Gilmour v. Gates, McDonald, & Co., 382 F.3d 1312, 

1315 (11th Cir. 2004).”).

6

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.

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1. Officer Leggett – Leggett is the only Defendant alleged to have been 

present during the attack on Woodyard. Woodyard alleges claims against Leggett

for “deliberate indifference to [Woodyard’s] right to safety and protection” under the 

Eighth Amendment and for “failure to protect.” Specifically, Leggett is alleged to 

have “ignored [Woodyard’s] yells for help and watched as [Woodyard] was stabbed 

repeatedly[,]” despite Leggett being armed with chemical agents, a baton, and 

handcuffs. Shortly prior to the assault, Woodyard allegedly informed Leggett that 

“he had just passed words with Inmate Lawrence Anderson because, Inmate 

Anderson wanted [Woodyard] to give him money” and that Woodyard “feared life 

threatening violence to befall him (from his attack),” but Leggett “did nothing to 

prevent the attack from occurring.” Leggett also purportedly “refused to let 

[Woodyard] report the situation to the on duty supervisor...” (Doc. 16 at 4-5, 8).

2. Tony Patterson, Gwendolyn Givens, Jesse Walter Bishop, Ronzella 

Howard (collectively, “the Supervisor Defendants") – In addition to claims for 

failure to protect from and prevent harm, Woodyard alleges claims against the 

Supervisor Defendant for “lack of security” and (with the exception of Ronzella 

Howard) “failure to train” (see Doc. 17 at 1). Woodyard does not claim that the 

Supervisor Defendants “participated directly in the unconstitutional conduct” – that 

is, that they were present at the time of the attack but failed to prevent it or to 

intervene. Rather, his allegations as to these Defendants, when read together, can 

be distilled as follows: 1) by failing “to regulate, monitor or control the tools needed 

to manufacture weapons” (specifically, hacksaw blades that are “only accessible 

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through the institutions maintenance shop” and are used to remove steel hinges 

from locker boxes, which themselves are fashioned into “crude weapons” such as 

knives and shanks), and 2) by failing to properly train the prison guards under their 

command to handle prisoner-on-prisoner assaults, the Supervisor Defendants 

created prison conditions that presented a substantial risk of serious harm, and 

these Defendants were deliberately indifferent to the substantial risk that inmates 

would inflict serious harm on each with these weapons.7 (See Docs. 16 – 17).

Woodyard also appears to allege that the Supervisor Defendants are also 

showing deliberate indifference to a substantial risk of serious harm by continuing 

to house him in the same annex as his attacker, Anderson, and forcing him to 

“exercise on the same exercise yard as his attacker, only a few exercise cages away.”

(See Docs. 16 – 17).

Finally, Woodyard alleges “retaliation” against Patterson and Howard (Doc. 

16 at 5, 16). Specifically, as to Patterson, Woodyard alleges that he “was found not 

guilty on his disciplinary by a sanctioned fact finder” and “[y]et [he] was still placed 

in closed custody for a minimum of 12 months (1 year) for no rule violation” and “is 

being forced to endure hardships imposed by the Defendant Patterson for no rule 

 7 Cf. Harrison v. Culliver, 746 F.3d 1288, 1299 (11th Cir. 2014) (“Harrison raises two claims 

against the defendants, one related to the alleged failure to provide adequate security on 

the back hallway and the other related to the alleged failure to secure hobby craft tools. The 

Magistrate Judge analyzed Harrison's claim against defendants as two separate counts, 

likely because that is how Harrison presented the claim in his complaint. However, 

Harrison was a pro se plaintiff, and a more charitable reading of the complaint can be 

distilled as follows: by failing to provide adequate security on the back hallway and by 

failing to implement and enforce policies regarding the use of utility knives in the hobby 

shop, the defendants created prison conditions that presented a substantial risk of serious 

harm, and the defendants were deliberately indifferent to the substantial risk that inmates 

would inflict serious harm on each other in the back hallway via box-cutter type weapons.”).

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violation...” (Doc. 16 at 8-9). As to Howard, Woodyard alleges that Howard “has 

threatened retaliation against [him] by stating ‘If you keep bothering me about 

moving, you will be wrote a disciplinary and that’s just the beginning.” (Doc. 16 at 

16).

Woodyard seeks compensatory and punitive damages, costs and legal fees, 

and “corrective surgery on his impaired left hand to restore full function.” (Doc. 16 

at 7. See also Doc. 17 at 3-4 (“Defendants are being sued...for monetary 

damages...Plaintiff seeks monetary compensation in the amount of $200,000.00 in 

compensatory and punitive damages and corrective surgery for his impaired left 

arm and hand. Monetary compensation for emotional distress and mental anguish 

are to total into the $200,000.00 Plaintiff is seeking.”)).8

IV. Analysis

The Defendants assert that they are due summary judgment on Woodyard’s 

claims against them because they are protected by the affirmative defense of 

qualified immunity. 9

 8 By separate motions, Woodyard sought a preliminary injunction and restraining order 

directing ADOC to remove him from any proximity to his attacker. (See Docs. 4, 13). On 

August 5, 2013, the Court denied Woodyard a preliminary injunction. (Doc. 52). Though 

Woodyard appealed that decision (see Doc. 55), that appeal was dismissed on May 27, 2014, 

for want of prosecution. (Doc. 63).

9 Woodyard expressly states that he is suing all Defendants “in their individual 

capacities under 1983 for monetary damages...” (Doc. 17 at 3). Moreover, while he includes 

ADOC as a defendant in the style of both documents comprising his operative Complaint 

(see Doc. 16 at 1; Doc. 17 at 1), he makes no substantive claims against ADOC in either 

document. 

However, even if Woodyard is asserting claims against ADOC and/or the prison 

official Defendants in their official capacities, such claims are barred by sovereign 

immunity under the Eleventh Amendment. See, e.g., Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 100 (1984) (With some exceptions, “a suit in which the State or 

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Qualified immunity protects government officials from liability for civil 

damages unless they violate a statutory or constitutional right that 

was clearly established at the time the alleged violation took place. See 

Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 

565 (2009); Amnesty Int'l, USA v. Battle, 559 F.3d 1170, 1184 (11th 

Cir. 2009). “The purpose of [qualified] immunity is to allow government 

officials to carry out their discretionary duties without the fear of 

personal liability or harassing litigation, protecting from suit ‘all but 

the plainly incompetent or one who is knowingly violating the federal 

law.’ ” Lee[ v. Ferraro], 284 F.3d [1188,] 1194 [(11th Cir. 2002) 

](citation omitted) (quoting Willingham v. Loughnan, 261 F.3d 1178, 

1187 (11th Cir. 2001)). Qualified immunity is a defense not only from 

liability, but also from suit... See id.

“Under the well-defined qualified immunity framework, a ‘public 

official must first prove that he was acting within the scope of his 

discretionary authority when the allegedly wrongful acts occurred.’ ” 

Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012) (quoting Lee, 284 

F.3d at 1194). Once the official has done so, the burden shifts to the 

plaintiff to satisfy the following two-pronged inquiry: (1) whether the 

facts that a plaintiff has shown make out a violation of a constitutional 

right; and (2) whether the right at issue was clearly established at the 

time of the defendant's alleged misconduct. Pearson, 555 U.S. at 232, 

129 S. Ct. 808...The Supreme Court recently has made it clear that 

[courts] need not employ a rigid two-step procedure, but rather may 

exercise [their] discretion to decide “which of the two prongs of the 

qualified immunity analysis should be addressed first in light of the 

circumstances in the particular case at hand.” Id. at 236, 129 S. Ct. 

808.

Gilmore v. Hodges, 738 F.3d 266, 272-73 (11th Cir. 2013).

“The inquiry whether a federal right is clearly established must be 

undertaken in light of the specific context of the case, not as a broad general 

 

one of its agencies or departments is named as the defendant is proscribed by the Eleventh 

Amendment. This jurisdictional bar applies regardless of the nature of the relief sought.” 

(citations omitted)); Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998) 

(“[S]tate officials sued in their official capacity are []protected by the [Eleventh 

A]mendment.” (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985))). In addition, “a state 

agency[] and a state official sued in his official capacity are not ‘persons’ within the 

meaning of § 1983, thus damages are unavailable...” Edwards v. Wallace Cmty. Coll., 49 

F.3d 1517, 1524 (11th Cir. 1995) (citing Will v. Michigan Department of State Police, 491 

U.S. 58, 71 (1989)).

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proposition. The relevant, dispositive inquiry in determining whether a right is 

clearly established is whether it would be clear to a reasonable state official that his 

conduct was unlawful in the situation he confronted.” Loftus v. Clark-Moore, 690 

F.3d 1200, 1204 (11th Cir. 2012) (internal citation and quotations omitted). While a 

plaintiff “need not demonstrate that there is case-law specifically addressing his 

factual scenario, ‘existing precedent must have placed the statutory or 

constitutional question beyond debate.’ ” Morris v. Town of Lexington Alabama, 748 

F.3d 1316, 1322 (11th Cir. 2014) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 

(2011)).

[A] plaintiff[] can demonstrate that the contours of the right were 

clearly established in several ways. First, the plaintiff[] may show that 

“a materially similar case has already been decided.” Mercado v. City 

of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citing Harlow v. 

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). 

Second, the plaintiffs can point to a “broader, clearly established 

principle [that] should control the novel facts [of the] situation.” Id.

(citing Hope, 536 U.S. at 741, 122 S. Ct. 2508). Finally, the conduct 

involved in the case may “so obviously violate[ ] th[e] constitution that 

prior case law is unnecessary.” Id. (citing Lee[ v. Ferraro], 284 F.3d 

[1188,] 1199 [(11th Cir. 2002)]). Under controlling law, the plaintiffs 

must carry their burden by looking to the law as interpreted at the 

time by the United States Supreme Court, the Eleventh Circuit, or [the 

highest court of the state from which the case arose]. See id.

Terrell v. Smith, 668 F.3d 1244, 1255-56 (11th Cir. 2012). Accord Morris, 748 F.3d 

at 1322. “Any case law that a plaintiff relies upon to show that a government 

official has violated a clearly established right must pre-date the officer's alleged 

improper conduct, involve materially similar facts, and truly compel the conclusion 

that the plaintiff had a right under federal law.” Ensley v. Soper, 142 F.3d 1402, 

1406 (11th Cir. 1998) (quotation marks omitted)

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The record evidence amply supports the determination that all Defendants 

were acting within the scope of their discretionary authority as prison officials at 

the time of the wrongful acts at issue, and Woodyard offers no evidence or argument 

to dispute this. Accordingly, the burden shifts to Woodyard to show, via the twopronged analysis discussed above, why the Defendants are not due qualified 

immunity.

a. Deliberate Indifference in Failure to Protect from/Prevent Harm

Prison officials have an obligation to protect prisoners from violence 

inflicted upon them by other prisoners. “It is not, however, every injury 

suffered by one prisoner at the hands of another that translates into 

constitutional liability for prison officials responsible for the victim's 

safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 

128 L.Ed.2d 811 (1994). Prison officials must “take reasonable 

measures to guarantee the safety of the inmates.” Hudson v. Palmer,

468 U.S. 517, 526–27, 104 S. Ct. 3194, 3200, 82 L. Ed. 2d 393 (1984). 

Only “[a] prison official's deliberate indifference to a known, 

substantial risk of serious harm to an inmate violates the Eighth 

Amendment.” Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1028 (11th 

Cir. 2001) (en banc).

Thus, a prisoner-plaintiff must first demonstrate “an objectively 

substantial risk of serious harm to prisoners.” Id. at 1028–29. Then, 

the plaintiff must show that the defendant was deliberately 

indifferent, which requires the following: “(1) subjective knowledge of a 

risk of serious harm; (2) disregard of that risk; (3) by conduct that is 

more than gross negligence.” Goodman v. Kimbrough, 718 F.3d 1325, 

1331–32 (11th Cir. 2013) (internal quotation marks omitted).

Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). Accord, e.g., Caldwell v. 

Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014) (“To survive summary 

judgment on a deliberate indifference failure-to-protect claim, ‘a plaintiff must 

produce sufficient evidence of (1) a substantial risk of serious harm; (2) the 

defendants' deliberate indifference to that risk; and (3) causation.’ ” (quoting

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15

Goodman v. Kimbrough, 718 F.3d 1325, 1331 (11th Cir. 2013) (internal quotation

marks omitted)).10

1. Officer Leggett

Via affidavit, Leggett avers: “At no time did inmate Woodyard report any 

concern to me that he was in danger...I did hear an inmate yell. Upon locating the 

area of the disturbance, I called for assistance for additional staff to report to 

Housing unit A. When I arrived on the scene I order [sic] the inmates to ‘stop 

fighting’. The inmates disengaged from the unlawful behavior...” (Doc. 29-2 at 2). 

However, at this stage, Woodyard’s evidence is to be believed, and the record is to be 

viewed in the light most favorable to him. Cf. Harrison, 746 F.3d at 1294 n.5 

(“Warden Culliver disputes that the back hallway is not monitored 24 hours a day, 

but because we are reviewing the District Court's grant of summary judgment, we

view all facts in favor of the nonmoving party, Harrison.”)

 10 The Defendants oversimplify the law governing deliberate inference failure-to-protect 

claims in asserting that “the law is clear that Eighth Amendment deliberate indifference 

claims are subjective in nature” and that “the United States Supreme Court has expressly 

rejected an objective test in deliberate indifference cases” (Doc. 29 at 9 (citing Farmer, 511 

U.S. at 837)). See Caldwell, 748 F.3d at 1099 (“When examining the first element—a 

substantial risk of serious harm—the court uses an objective standard. The second 

element—the defendant's deliberate indifference to that risk—has two components: one 

subjective and one objective. To satisfy the subjective component, a plaintiff must produce 

evidence that the defendant actually (subjectively) knew that an inmate faced a substantial 

risk of serious harm. To satisfy the objective component, a plaintiff must produce 

evidence that the defendant disregard[ed] that known risk by failing to respond to it in an 

(objectively) reasonable manner.” (internal citations and quotations omitted) (emphasis 

added)); Johnson v. Boyd, No. 12-16181, 2014 WL 2523832, at *1 (11th Cir. June 5, 2014) 

(unpublished) (“When examining the existence a substantial risk of serious harm, the 

district court uses an objective standard...Determining whether the defendant was 

deliberately indifferent to a risk of injury involves a subjective and objective component. 

(citing Caldwell) (emphasis added)).

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16

In his operative Complaint, Woodyard claims that, “[p]rior to the actual 

assault occurring, [he] informed []Leggett that he had just passed words with 

Inmate Lawrence Anderson because[] Inmate Anderson wanted [Woodyard] to give 

him money[,]” and that “he feared life threatening violence to befall him” from 

Anderson. (Doc. 16 at 4-5). Additionally, Woodyard claims that, “minutes” before 

the attack, he “asked Defendant Leggett...if he could report the incident to the shift 

commander[,]” with Leggett responding that “ ‘the yard call was over’ and that 

[Woodyard] ‘had to wait on the next movement call[.]’ ” (Id. at 8). 

In his (unsworn) brief in response to the motion for summary judgment, 

Woodyard also claims that Anderson “walked by Defendant Leggett with the 

weapon in plain view of the defendant (Leggett) yet defendant did not call the code 

for help immediately nor, did he (Leggett) use the weapons he was armed with to 

disable inmate Anderson.” (Doc. 42 at 13). Woodyard has submitted an affidavit 

from Anderson, his attacker, who confirms that, prior to the attack, he “walked by 

the officer with the weapon out” and that “the officer saw the knife and looked the 

other way...” (Doc. 42 at 18). Kenyatta McMillan, another inmate who claims to 

have witnessed Anderson’s attack on Woodyard, avers that Leggett “froze[] starring 

at the incident before him” after Woodyard first called for help. (Doc. 42 at 19). 

McMillan purportedly witnessed Woodyard “f[i]ght for his life for what seemed like 

to be 5 minutes before the officer even radioed for help.” (Id.). McMillan also avers 

that Leggett “was armed with a can of mace and an extendable baton and used 

neither in the defense of inmate Woodyard.” (Id.). McMillian claims he went over 

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17

and pushed Anderson off of Woodyard and that “[b]y the time he was getting up 

other officers was comming [sic] in & got control of the situation.” (Id.).

“Merely negligent failure to protect an inmate from attack does not justify 

liability under section 1983...The known risk of injury must be a strong likelihood, 

rather than a mere possibility before a guard's failure to act can constitute 

deliberate indifference.” Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) 

(per curiam) (quotations omitted). Woodyard is also “required to produce evidence 

that, with knowledge of the substantial risk of serious harm, [Leggett] knowingly or 

recklessly ‘disregard[ed] that risk by failing to take reasonable measures to abate 

it.’ ” Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1583 (11th Cir. 1995) (quoting Farmer 

v. Brennan, 511 U.S. 825, 847 (1994)). See also Rodriguez v. Sec'y for Dep't of Corr., 

508 F.3d 611, 619-20 (11th Cir. 2007) (“ ‘[P]rison officials who actually knew of a 

substantial risk to inmate health or safety may be found free from liability if they 

responded reasonably to the risk, even if the harm ultimately was not averted.’

More succinctly, ‘prison officials who act reasonably cannot be found liable under 

the Cruel and Unusual Punishments Clause.’ ” (quoting Farmer, 511 U.S. at 844-45) 

(internal citation omitted)). 

In Brown, the Eleventh Circuit, reviewing a district court’s grant of summary 

judgment in favor of a defendant prison guard on the prisoner plaintiff’s failure-toprotect claim, set forth the following relevant facts:

On May 31, 1987, Arlington Brown was an inmate of the Hamilton 

County Jail in Jasper, Florida. That morning he went to speak to 

Sergeant Chris Hughes about a “racial problem” in his cell. As he 

spoke to Hughes the officer appeared to ignore him. Brown was then 

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18

told that he would have to see the Captain if he wanted a cell 

change.FN2 Hughes sat down at the booking desk and began working on 

the computer there, and Brown returned to his cell.

FN2 – Sergeant Hughes states in his affidavit that he was 

busy processing other inmates and securing them in cellblocks 

when he was approached by Brown. Hughes claims that he 

told Brown that he would talk to him later about the problem 

in Brown's cell.

Shortly after 10:30 a.m. Brown was attacked from behind by another 

inmate, and a fight ensued. During the scuffle Brown suffered two 

broken bones in his left foot and a cut under his right eye.

Id. at 1536 & n.2.

In holding that Brown had “failed to offer sufficient evidence that any 

defendant was aware or should have been aware of a strong likelihood that Brown 

would be assaulted[,]” the Eleventh Circuit noted:

The only warning of trouble was Brown's statement to Sergeant 

Hughes that there was a “racial problem” in his cell. Brown did not 

say that he had been threatened, or that a fight was imminent, 

or that he feared an attack, nor is there evidence that racial 

tensions in the jail frequently resulted in violence. After 

Sergeant Hughes indicated that he was not going to do anything about 

the problem right away, Brown apparently returned to his cell 

voluntarily. In retrospect and with all the benefit of hindsight, we 

know today that a prompt response by Hughes to Brown's request for a 

transfer would have prevented Brown's injuries. Nevertheless, we 

cannot say that Sergeant Hughes' refusal to act under the 

circumstances constituted deliberate indifference to Brown's safety and 

rendered his confinement cruel or unusual.

Id. (emphasis added). Unlike Brown, Woodyard’s report of trouble to Leggett – that

he and Anderson had “passed words” over Anderson demanding money – was 

accompanied by the claim that Woodyard “feared life threatening violence to befall 

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19

him” from Anderson.11 Additionally, Woodyard has presented evidence indicating 

that, shortly before the attack, Leggett witnessed Anderson openly carrying a knife 

 11 “Although relevant, a claimant's ‘failure to give advance notice [of an attack] is not 

dispositive[.]’ Thus, an official may not escape liability merely by showing that he did not 

know the claimant was likely to be assaulted or that an assault would be committed by the 

specific prisoner who eventually committed the assault.” Hale v. Tallapoosa Cnty., 50 F.3d 

1579, 1583 (11th Cir. 1995) (citing Farmer, 114 S. Ct. at 1982, 1984) (first alteration in 

original) (internal citation omitted).

Nevertheless, the Eleventh Circuit has repeatedly found a prisoner’s informing 

prison officials of threats or of being in fear for his life (or the failure to do so) to be a 

significant factor in assessing failure-to-protect claims. Compare Brown, 894 F.2d at 1537, 

supra; Carter v. Galloway, 352 F.3d 1346, 1349-50 (11th Cir. 2003) (per curiam) 

(“Defendant Galloway, serving as a Deputy Warden, heard many complaints from Plaintiff. 

But Plaintiff never told Galloway that Plaintiff feared Barnes or that Barnes clearly 

threatened Plaintiff.”); Chatham v. Adcock, 334 F. App'x 281, 293-94 (11th Cir. 2009) (per 

curiam) (“Likewise here, although Plaintiff asserts that Hardy threatened him repeatedly 

in the days before the assault, Plaintiff has not identified any specific ‘serious threat’ from 

Hardy, which he then reported to Sgt. Homer, Col. Adcock, or any other Jail officer prior to 

July 12, 2005. See Carter, 352 F.3d at 1350 (discussing ‘serious threat’ requirement and 

noting that ‘derogatory and argumentative statements’ are not equivalent to threats). The 

only specific threat that Plaintiff sets forth in the record is Hardy's alleged threat on the 

morning of July 12, 2005, shortly before the assault occurred, that he would ‘swing on’ 

Plaintiff, by which time it was too late for Sgt. Homer, who was not on duty at the time, or 

Col. Adcock, who did not personally witness the threat, to do anything to help Plaintiff. [See

Pf.'s Aff. ¶ 50; see also Doc. 8-2, Part IV attach, ¶¶ 19-20 (alleging that on or about July 5, 

2005, after Roberts had been transferred, Plaintiff ‘began receiving renewed threats’ from 

Hardy, and that on July 12, 2005, approximately thirty minutes before the assault, Hardy 

threatened Plaintiff in the breakfast line, ‘attempted a sneak attack from behind on 

Plaintiff,’ and spit on Plaintiff ‘in plain view’ of three officers).]”); and Longmire v. McKee, 

No. 2:13-CV-330-MEF, 2014 WL 1328135, at *4 (M.D. Ala. Mar. 31, 2014) (“Based on 

Carter, the inmates' statements alleged in Longmire's complaint are insufficient for 

deliberate indifference. The statements to McKee that the inmates would ‘take care of 

[Longmire] for you’ and ‘straighten [Longmire] out’ do not create a plausible claim that 

McKee actually drew the inference that the statements constituted a threat creating a 

substantial risk of harm, as required by Farmer. There is no allegation that Longmire told 

McKee that the statements were a threat or that he sought protection from the inmates.”); 

with Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 621-22 & n.17 (11th Cir. 2007) 

(“Johnson relies exclusively on our decision in Carter v. Galloway, 352 F.3d 1346 (11th Cir. 

2003), to support his argument that Rodriguez's complaints were too vague to put Johnson 

on actual notice of a substantial risk of harm. Carter does not help Johnson. In Carter an 

inmate was stabbed with a shank by a fellow inmate with whom he had been placed. The 

inmate then sued various prison officials under the Eighth Amendment for failing to 

prevent the stabbing, arguing that he had made the officials sufficiently aware of the risk of 

harm, yet they failed to act. We rejected the inmate's claims on the ground that the 

comments he made to the officials were too vague to show that the officials had ‘actual 

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20

but did nothing about it. The Defendants appear to argue that “Officer Leggett 

 

knowledge’ of a substantial risk of serious harm. Id. at 1350. Specifically, we noted that the 

only complaints the inmate made to prison officials were that the attacker-inmate (1) paced 

his cell like a wild animal, (2) wanted to fake a hanging in order to secure a transfer, and 

(3) told the plaintiff-inmate that he would help the attacker-inmate carry out the fake 

hanging “one way or another.’ Id. at 1349. In rejecting his Eighth Amendment claims, we 

expressly relied upon the fact that the inmate never told prison officials that he ‘feared’ his 

attacker, never told them that he had been ‘clearly threatened,’ and never asked to be 

placed in ‘protective custody.’ Id. at 1349, 1350. In short, we concluded: ‘Plaintiff has failed 

to establish that either Defendant had a subjective awareness of a substantial risk of 

serious physical threat to Plaintiff.’ Id. at 1350. Carter is thus easily distinguishable on its 

facts. []Here, unlike in Carter, Rodriguez told Johnson the following specific information: 

(1) that he was a former Latin King who decided to renounce his membership; (2) that 

members of the Latin Kings had threatened to kill him when he returned to the compound 

in retaliation for his renunciation; (3) that the compound at ECI was heavily populated 

with Latin Kings; and (4) that, in order to prevent an attempt on his life, he needed either 

to be transferred to another institution or to be placed in protective custody. These are the 

things that the inmate in Carter did not do... Kugler's (and the district court's) reliance on 

Carter is similarly misplaced. Rodriguez on at least two separate occasions told Kugler that 

gang members had made threats on his life and requested that Kugler place him in 

protective custody or recommend that he be transferred from ECI...A reasonable juror 

could find from this evidence that Johnson actually knew that Rodriguez faced a 

substantial risk of serious harm.”), and Caldwell, 748 F.3d at 1101 (“A reasonable jury 

could infer...that the defendants knew that inmate Pinson had a violent past, was very 

disruptive, and needed greater management. They knew that inmate Pinson started a 

dangerous cell fire that endangered his life and Caldwell's life and that Pinson expressed no 

regret at having endangered Caldwell's life or safety. And, because inmate Pinson used 

Caldwell's personal photographs and papers to start the fire, the defendants knew that it 

was possible that inmate Pinson was targeting Caldwell with his unsafe actions. They also 

knew that Caldwell feared for his life if he was returned to a cell with inmate 

Pinson. And, a jury could reasonably infer from the facts preceding Caldwell's 

expression of fear that Caldwell had a well-founded basis for his fear. []The 

defendants argue that the cell fire was just as likely to harm inmate Pinson as plaintiff 

Caldwell, and, therefore, the defendants did not have notice that inmate Pinson would try 

to harm Caldwell specifically. However, the fact that inmate Pinson was willing to put his 

own life in jeopardy does not diminish the fact that he also jeopardized Caldwell's life by 

setting the locked cell on fire. Nor does it negate the defendants' knowledge of inmate 

Pinson's history of violence. And, it does not diminish the reasonable inferences drawn from 

the fact that inmate Pinson intentionally burned Caldwell's personal effects in the fire. 

Those facts, viewed together with Caldwell's repeated statements that he feared 

(and had reason to fear) for his life if he was locked back in a locked cell with 

inmate Pinson, are sufficient to allow a jury to infer that the defendants actually knew 

that Caldwell faced a substantial risk of serious harm if he was returned to a cell with 

inmate Pinson.” (emphasis added)).

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21

responded to the incident” reasonably, though after the fact, “by issuing a radio call 

for assistance and issuing verbal orders for the inmates to stop.” (Doc. 29 at 10). 

However, the record evidence, when viewed in the light most favorable to 

Woodyard, establishes that Leggett was made aware, prior to the attack, of a 

substantial risk of serious harm to Woodyard from Anderson but knowingly or 

recklessly failed to take any steps to abate that risk until it became a reality.

Like Woodyard, in McBride v. Rivers, 170 F. App'x 648 (11th Cir. 2006) (per 

curiam) the plaintiff inmate, “in responding to the defendants' motion for summary 

judgment[ on his deliberate indifference failure-to-protect claim], []argued that the 

defendants knew of the risk of serious harm in placing him in the same cell as [his 

inmate attacker,] Holmes because, immediately before being placed in a cell with 

Inmate Holmes, he told them that he feared for his life.” 170 F. App’x at 655. The 

Eleventh Circuit, however, noted that the plaintiff had “testified during his 

deposition that his only statements to the defendants relating to his safety included 

his general request that they not place him in a cell with anyone whom he might 

have problems, and his statement, upon seeing Inmate Holmes, that ‘me and that 

dude had problems. I'm in fear for my life. Don't put me in the cell with him.’ ” Id. 

The court further noted that the plaintiff “conceded that, after he was placed in the 

cell, he started the altercation by pushing Inmate Holmes.” Id. As such, the court 

concluded, the plaintiff “did not identify a specific prior incident, from which the 

defendant could infer that a substantial risk existed” and thus “failed to show that 

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22

the defendants had subjective knowledge of a risk of serious harm.” Id. (citing 

Carter, 352 F.3d at 1349).

The record in the present action is distinguishable from that in McBride. 

Here, Woodyard has presented evidence that he identified to Leggett a specific prior 

incident with Anderson that purportedly put him in fear for his life – an argument 

with Anderson over money occurring the same day as the attack. Woodyard also 

avers he asked Leggett that the confrontation be reported to the shift supervisor but 

Leggett refused. Additionally, the record evidence indicates an issue of fact as to 

whether Anderson or Woodyard attacked first.

“Prior to the conduct in this case, [the Eleventh Circuit] already clarified that 

a prison guard violates a prisoner's Eighth Amendment right when that guard 

actually (objectively and subjectively) knows that one prisoner poses a substantial 

risk of serious harm to another, yet fails to take any action to investigate, mitigate, 

or monitor that substantial risk of serious harm.” Caldwell, 748 F.3d at 1102 

(citing Cottone v. Jenne, 326 F.3d 1352, 1358-60 (11th Cir. 2003); Hale v. Tallapoosa 

Cnty., 50 F.3d 1579, 1584 (11th Cir. 1995); and LaMarca v. Turner, 995 F.2d 1526, 

1536–38 (11th Cir. 1993)). As such, 1) because Woodyard has presented sufficient 

evidence to make out a claim of deliberate indifference by Leggett in violation of the 

Eighth Amendment, and (2) because that right was clearly established at the time 

of Leggett's alleged misconduct, Leggett is not entitled to qualified immunity as to 

this claim. Thus, the undersigned RECOMMENDS that summary judgment be 

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23

DENIED as to Woodyard’s failure-to-protect deliberate indifference claim against 

Leggett.

2. Supervisor Defendants

“It is well established in this Circuit that supervisory officials are not 

liable under § 1983 for the unconstitutional acts of their subordinates 

on the basis of respondeat superior or vicarious liability.” Cottone v. 

Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (internal quotation marks 

omitted). Therefore, a plaintiff seeking to hold a supervisor liable for 

constitutional violations must show that the supervisor either 

participated directly in the unconstitutional conduct or that a causal 

connection exists between the supervisor's actions and the alleged 

constitutional violation. Id.

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. 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.

Id. (alterations in original) (internal quotation marks omitted) 

(citations omitted). “The deprivations that constitute widespread abuse 

sufficient to notify the supervising official must be obvious, flagrant, 

rampant and of continued duration, rather than isolated occurrences.” 

Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (internal 

quotation mark omitted). In other words, “the standard by which a 

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

subordinate is extremely rigorous.” Cottone, 326 F.3d at 1360 (internal 

quotation marks omitted).

Harrison, 746 F.3d at 1298-99. Accord, e.g., Keith v. DeKalb Cnty., Georgia, 749 

F.3d 1034, 1047-48 (11th Cir. 2014).

As previously stated, Woodyard’s claims against the Supervisor Defendants 

can be distilled as follows: 1) by failing “to regulate, monitor or control the tools 

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24

needed to manufacture weapons” (specifically, hacksaw blades that are “only 

accessible through the institutions maintenance shop” and are used to remove steel 

hinges from locker boxes, which themselves are fashioned into “crude weapons” 

such as knives and shanks), and 2) (with the exception of Howard) by failing to 

properly train the prison guards under their command to handle prisoner-onprisoner assaults, the Supervisor Defendants created prison conditions that 

presented a substantial risk of serious harm, and these Defendants were 

deliberately indifferent to the substantial risk that inmates would inflict serious 

harm on each with these weapons.12 Woodyard also claims that these Defendants 

are showing deliberate indifference by continuing to house him in the same annex 

as Anderson following the attack. (See Docs. 16 – 17).

During discovery, the undersigned granted Woodyard motion “to subpoena 

records which report ‘the actual number of fights with and without weapons and 

assaults that have occurred within the Annex and on the exercise yard from 2003 to 

2013’...” (Doc. 44 at 3 (quoting Doc. 41)). The Defendants responded to this order 

as follows:

 12 Cf. Harrison, 746 F.3d at 1299 (“Harrison raises two claims against the defendants, one 

related to the alleged failure to provide adequate security on the back hallway and the 

other related to the alleged failure to secure hobby craft tools. The Magistrate Judge 

analyzed Harrison's claim against defendants as two separate counts, likely because that is 

how Harrison presented the claim in his complaint. However, Harrison was a pro se

plaintiff, and a more charitable reading of the complaint can be distilled as follows: by 

failing to provide adequate security on the back hallway and by failing to implement and 

enforce policies regarding the use of utility knives in the hobby shop, the defendants 

created prison conditions that presented a substantial risk of serious harm, and the 

defendants were deliberately indifferent to the substantial risk that inmates would inflict 

serious harm on each other in the back hallway via box-cutter type weapons.”).

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...Records of this type dating from 2003 to 2007 do not currently exist 

in any form and are unable to be produced by the Defendants. Records 

of this type dating from 2007 until August, 2010 only exist in paper 

form, in boxes stored at Holman Correctional Facility. The documents, 

stored in date order, and would have to be hand-reviewed for records 

related to these specific types of incidents in the areas outlined in the 

request. The records would then have to be removed from storage, 

scanned, redacted, and returned to storage in the proper order. 

Defendants believe this request would constitute an undue burden, 

and that records prior to 2010 would not be relevant to Plaintiff’s 

assertions.

[]As to records of this type from August, 2010 to the present date,[13]

Defendants conducted a search of the electronically stored Incident 

Reports for incidents at Holman involving fighting with a weapon, 

fighting without a weapon, and inmate-on-inmate assaults3. Those 

records were then sorted for incidents which occurred within the

Segregation Unit/Annex and the Segregation Exercise Yard. Pursuant 

to that search, Defendants are producing eight (8) incident reports 

responsive to the request, as ordered.

3 The search omitted records of inmate-on-staff assaults because 

they are irrelevant to Plaintiff’s claims that he is in danger of 

being assaulted by another segregation unit inmate. By the 

nature of their duties, staff has much more frequent and close 

contact with the inmates they supervise than these segregation 

unit inmates have with one another.

(Doc. 45 at 2-3).

The produced reports detailing incidents occurring prior to the date of 

Woodyard’s assault, July 24, 2012,14 (Doc. 45-6 at 1-10) indicate the following 

occurrences of inmate-on-inmate violence since August 2010:

 13 The response was filed June 24, 2013.

14 Incidents occurring after the assault are not relevant for purposes of Woodyard’s 

deliberate indifference claims. Cf. Harrison, 746 F.3d at 1296 n.11 (“Because Harrison was 

assaulted on August 6, 2008, any incident that occurred after that date is not probative of 

whether Harrison was denied his constitutional rights. We therefore only consider the 

incident reports for assaults that occurred prior to the August 2008 assault.”).

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26

Incident # Date of Incident Summary of Incident

HCF-11-00305 May 12, 2011 inmate assaulted staff and another 

inmate by throwing urine and feces

HCF-11-00394 April 6, 2011 inmate assaulted “inmate runners” by 

throwing water and wet clothes

HCF-11-00411 April 11, 2011 unarmed fight between 2 inmates

HCF-11-00603 June 4, 2011 inmate threw urine and feces at staff 

and inmate helper serving meals

HCF-11-00858 August 1, 2011 inmate tackled another inmate and 

stabbed him in back of head with 

broken ink pen

HCF-11-01094 September 17, 2011 unarmed inmate-on-inmate assault

In a document styled “Motion for Oder [sic] of Judgment against Defendants 

for Failure to Disclose Complete Records, or documents as pursuant to Rule 37 Fed. 

R. of Civ. Pro.,” “ Woodyard has objected, inter alia, to the Defendants’ failure to 

produce records from prior to August 2010. 15 (See Doc. 47). However, he does not 

appear to dispute that the incident reports the Defendants have produced 

accurately cover the incidents occurring since then. (See generally id.). These 

reports indicate that, between August 2010 and July 24, 2012, there had been only

one incident of inmate-on-inmate assault involving a manufactured weapon in the 

 15 Woodyard asserts that Holman’s admitted failure to maintain records of assault from 

2003 to 2007 violates the injunction issued in Pugh v. Locke, 406 F. Supp. 318, 333-34 (M.D. 

Ala. 1976), aff'd and remanded sub nom., Newman v. State of Alabama, 559 F.2d 283 (5th 

Cir. 1977), cert. granted in part, judgment rev'd in part sub nom., Alabama v. Pugh, 438 

U.S. 781 (1978) (Alabama officials “shall keep accurate records of incidents of violence 

which come to their attention, and all assaults and other offenses punishable under the 

laws of Alabama shall be reported forthwith to the local district attorney. Accurate records 

shall be kept reflecting the disposition of such incidents by prison authorities and any 

resultant criminal prosecutions undertaken.”).

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27

Segregation Unit/Annex and the Segregation Exercise Yard of Holman. Moreover, 

that weapon was a broken pen, rather than a metal knife or shank. Even if records 

from prior to August 2010 showed more rampant inmate-on-inmate assault 

involving weapons, the record evidence indicates that this had ceased to be a 

significant occurrence in the approximately two years proceeding the assault on 

Woodyard.16

The record evidence in this action regarding inmate-on-inmate assaults with 

weapons is even weaker than that presented in Harrison v. Culliver, 746 F.3d 1288 

(11th Cir. 2014), which the Eleventh Circuit found demonstrated neither an 

objectively substantial risk of serious harm nor a pattern of activity sufficient to put 

officials on constructive notice of a problem. The plaintiff in Harrison, also a 

Holman inmate, had his throat cut with a knife by another inmate and nearly died. 

The Eleventh Circuit affirmed the grant of summary judgment in favor of Holman’s

warden on the inmate plaintiff’s claim of deliberate indifference to excessive 

inmate-on-inmate violence, noting as follows:

[I]ncident reports indicate that only four assaults occurred on the back 

hallway from 2005 until the day Harrison was assaulted. “We accept 

that 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, 

[but] confinement in a prison where violence and terror reign is 

actionable.” Purcell ex rel. Estate of Morgan v. Toombs Cnty., Ga., 400 

F.3d 1313, 1320 (11th Cir. 2005) (alteration in original) (internal 

 16 The undersigned construes Woodyard’s “Motion for Oder [sic] of Judgment” (Doc. 47) as a 

motion for sanctions under Federal Rule of Civil Procedure 37(b(2)(A). That rule provides 

that the court “may issue further just orders” if a party “fails to obey and order to provide 

or permit discovery...” (emphasis added). Upon consideration, the undersigned does not 

find such sanctions to be warranted. Thus, it is RECOMMENDED that the motion (Doc. 

47) be DENIED.

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28

quotation mark omitted). Although assaults did occur throughout 

Holman, and some did involve weapons fashioned out of a utility knife, 

box cutter, or razor,FN17 the evidence of inmate-on-inmate assault 

involving weapons does not does not [sic] indicate that inmates were 

“exposed to something even approaching the constant threat of 

violence.” See id. at 1321 (internal quotation marks omitted). Holman 

is a large institution—according to the District Court's undisputed 

finding, Holman housed between 830 and 990 inmates during the 

relevant time period—and the thirty-three incidents involving 

weapons, only four of which occurred on the back hallway, are hardly 

sufficient to demonstrate that Holman was a prison “where violence 

and terror reign.” See id. at 1320 (quoting Woodhous v. Virginia, 487 

F.2d 889, 890 (4th Cir. 1973)).

FN17 – Of the 33 assaults involving weapons that occurred 

throughout all areas of Holman between 2005 and the day 

Harrison was assaulted, 11 involved some sort of weapon 

fashioned from a razor or box cutter. The incident reports do not 

clearly indicate whether the knives were made from razors used 

for shaving or from box cutters in the craft shop.

...

The limited number of assaults involving weapons fashioned from box 

cutters or razor blades—around eleven of a total thirty-three assaults 

involving weapons over a three year period—is insufficient to establish 

that Warden Culliver was constructively aware of a pattern of 

detention officers failing to follow the Standard Operating Procedures. 

Although we are unable to pin down precisely how many assaults 

involved box cutters procured through the hobby shop—five incident 

reports indicate that a box cutter was used, but they do not indicate 

from where the inmate obtained the box cutter—the record fails to 

demonstrate that any lapses in oversight of cutting instruments 

created a substantial risk of excessive inmate-on-inmate violence...

Harrison, 746 F.3d at 1299-301 (some footnotes omitted).

Because the record evidence in this action regarding inmate-on-inmate 

assaults with weapons is similarly insufficient to demonstrate either an objectively 

substantial risk of serious harm or a pattern of activity sufficient to put officials on 

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29

constructive notice of such a problem, Woodyard’s deliberate indifference claims 

against the Supervisor Defendants regarding inmate-on-inmate attacks must fail.

In recommending that Woodyard be denied a preliminary injunction directing 

ADOC to remove him from any proximity to his attacker (a recommendation which 

the District Judge adopted (see Doc. 52), the undersigned noted, in relevant part:

Other than a general contention that he is at “high risk” of being 

attacked again by Anderson (doc. 4 at 3), Woodyard has failed to 

present any evidence regarding irreparable injury by the defendants’ 

refusal to transfer either plaintiff or his enemy from the close custody 

under which each is being held within the same segregation unit. 

Moreover,...he has presented no evidence that he is in fact likely to be 

subject to further injury by Anderson or any other inmate while in his 

present segregation custody. Cf. Doc. 45-1 and Doc. 46 at 1. Defendants 

have, however, produced evidence that Woodyard and Anderson have 

no contact and that procedures are in place to ensure Woodyard’s 

safety and prevent contact between the two inmates.

(Doc. 48 at 5-6).

Similarly, on summary judgment, Woodyard relies only on general 

contentions that he is at substantial risk of being attacked by Anderson again by 

being housed in the same annex. While Woodyard points to evidence he claims 

shows that he and Anderson have come into contact with each other since the 

attack while they are being held in segregation (e.g. in the shower and the exercise 

yard), he has presented no evidence indicating either that another attack is likely or

that the Supervisor Defendants’ are not taking reasonable measures to prevent

another attack. Moreover, the continued existence of a violent grudge between the 

two men is rendered suspect by the fact that Woodyard has been able to obtain an 

affidavit from Anderson, in which Anderson readily admits to attacking Woodyard, 

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to support his claims in this action. Thus, Woodyard has failed to demonstrate an 

objectively substantial risk of serious injury in being housed in the same annex as 

Anderson.

Woodyard has also asserted claims for failure to train against all Supervisor 

Defendants except Howard. 

[This] alternative claim for relief—that [all Supervisor Defendants 

except Howard] failed to adequately train the [prison] officers—

implicates a different, albeit very similar, rule: under § 1983, a 

supervisor can be held liable for failing to train his or her employees 

“only where the failure to train amounts to deliberate indifference to 

the rights of persons with whom the [officers] come into contact.” City 

of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 

L.Ed.2d 412 (1989); see also Belcher v. City of Foley, Ala., 30 F.3d 1390, 

1397 (11th Cir.1994) (“A supervisory official is not liable under section 

1983 for an injury resulting from his failure to train subordinates 

unless his failure to train amounts to deliberate indifference to the 

rights of persons with whom the subordinates come into contact and 

the failure has actually caused the injury of which the plaintiff 

complains.” (internal quotation marks omitted)). Thus, a plaintiff 

alleging a constitutional violation premised on a failure to train must 

demonstrate that the supervisor had “actual or constructive notice that 

a particular omission in their training program causes [his or her] 

employees to violate citizens' constitutional rights,” and that armed 

with that knowledge the supervisor chose to retain that training 

program. Connick v. Thompson, ––– U.S. ––––, ––––, 131 S. Ct. 1350, 

1360, 179 L. Ed. 2d 417 (2011).

Keith v. DeKalb Cnty., Georgia, 749 F.3d 1034, 1052 (11th Cir. 2014)

“As the Supreme Court has indicated, ‘[a] [supervisor's] culpability for a 

deprivation of rights is at its most tenuous where a claim turns on a failure to 

train.’ ” Id. at 1053 (quoting Connick, 131 S. Ct. at 1359). “To establish that 

supervisor was on actual or constructive notice of the deficiency of training, ‘[a] 

pattern of similar constitutional violations by untrained employees is ordinarily 

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31

necessary.’ ”17 Id. at 1052-53 (quoting Connick, 131 S. Ct. at 1360 (internal 

citations omitted)). In support of his failure-to-train claims, Woodyard offers little

beyond general, conclusory allegations that Holman guards are ill-prepared to 

handle inmate-on-inmate violence, and the above-discussed record evidence does 

not support a conclusion that the Supervisor Defendants were on notice of a 

particular problem with prison guards’ training. Cf. id. at 1053-54 (“Keith's claim 

that Sheriff Brown violated Cook's constitutional rights by failing to adequately 

train detention officers is especially tenuous because not only does she fail to 

demonstrate that Sheriff Brown was on notice, she also fails to demonstrate how 

better training would have prevented the incident leading to Cook's death.”). 

Therefore, Woodyard’s failure-to-train deliberate indifference claims also fail.

Accordingly, because Woodyard has failed to present evidence showing that 

the Supervisor Defendants committed unconstitutional deliberate indifference, the 

undersigned RECOMMENDS that the Defendants’ summary judgment be 

 17

Although the Supreme Court has left open the possibility that a single 

incident may prove sufficient to hold a supervisor liable for a failure to train, 

see City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10, 109 S. Ct. 1197, 

1205 n.10, 103 L. Ed. 2d 412 (1989), [the undersigned] decline[s] to use this 

case as the vehicle for flushing out the Supreme Court's hypothetical basis for 

§ 1983 relief. In Canton, the Supreme Court hypothesized a police force that 

gives officers firearms but fails to provide any training regarding the 

constitutional limitations on the use of deadly force, concluding that the need 

to provide such training would be “so obvious” that the failure to do so could 

amount to deliberate indifference. Id. It is not similarly obvious that the 

“failure to train” at issue in this case amounts to deliberate indifference.

Keith, 749 F.3d at 1053 n.56 (11th Cir. 2014).

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GRANTED as to his deliberate indifference claims against the Supervisor 

Defendants.18

b. Retaliation

A large portion of Woodyard’s response in opposition to the Defendants’ 

motion for summary judgment is dedicated to argument in support of his retaliation 

claims against Patterson and Howard.19 (Doc. 42 at 4-10). “It is an established 

principle of constitutional law that an inmate is considered to be exercising his First 

Amendment right of freedom of speech when he complains to the prison's 

administrators about the conditions of his confinement. See, e.g., Farrow v. West,

320 F.3d 1235, 1248 (11th Cir. 2003). It is also established that an inmate may 

maintain a cause of action against prison administrators who retaliate against him 

for making such complaints. Id....See also Boxer X v. Harris, 437 F.3d 1107, 1112 

(11th Cir. 2006) (‘First Amendment rights to free speech and to petition the 

government for a redress of grievances are violated when a prisoner is punished for 

 18 Because Woodyard has not presented evidence of a constitutional violation on his 

deliberate indifference claims against the Supervisor Defendants, it is unnecessary to 

further address qualified immunity as to those claims. See Harrison, 746 F.3d at 1299 n.15

(“Because we conclude that Harrison has failed to establish that the defendants violated 

any of his constitutional rights, ‘there is no necessity for further inquiries concerning 

qualified immunity.’ ” (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

19 In his response in opposition, Woodyard now claims that he is asserting claims for 

retaliation “against all the defendants named in complaint (except Defendant Leggett). 

(Doc. 42 at 4). However, Woodyard’s operative Complaint (Docs. 16, 17) clearly asserts 

retaliation claims only against Patterson and Howard. As mentioned supra, n.2, Woodyard 

may not amend his complaint to assert new claims through argument in opposition to 

summary judgment. Regardless, any claim for retaliation against additional Supervisor 

Defendants fails for the same reasons such claims fail against Patterson and Howard, see 

infra.

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filing a grievance concerning the conditions of his imprisonment.’)...” Smith v. 

Mosley, 532 F.3d 1270, 1276 & n.15 (11th Cir. 2008).

An inmate must establish three elements to prevail on a retaliation 

claim. Bennett[ v. Hendrix], 423 F.3d [1247,] 1250[ (11th Cir. 2005)]. 

The inmate must prove that: (1) “his speech or act was constitutionally 

protected”; (2) “the defendant's retaliatory conduct adversely affected 

the protected speech”; and (3) “there is a causal connection between the 

retaliatory actions and the adverse effect on speech.” Id. To establish 

causation, the plaintiff must show that the defendant was “subjectively 

motivated to discipline” the plaintiff for exercising his First 

Amendment rights. Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir.

2008). “[O]nce the plaintiff ... establish[es] that his protected conduct 

was a motivating factor behind any harm, the burden of production 

shifts to the defendant. If the defendant can show that he would have 

taken the same action in the absence of the protected activity, he ... 

prevail[s] on ... summary judgment.” Id. (quotation marks omitted).

Moton v. Cowart, 631 F.3d 1337, 1341-42 (11th Cir. 2011).

Moreover, the Eleventh Circuit has recognized:

“Running a prison is an inordinately difficult undertaking that 

requires expertise, planning, and the commitment of resources.” 

Turner v. Safley, 482 U.S. 78, 84-85, 107 S. Ct. 2254, 2259, 96 L. Ed. 2d 

64 (1987). Prison officials are therefore “accorded latitude in the 

administration of prison affairs.” Cruz v. Beto, 405 U.S. 319, 321, 92 S.

Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972). This latitude includes “the 

withdrawal or limitation of many [inmate] privileges and rights.” Pell 

v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495 

(1974) (quotation marks and citation omitted). This means that an 

inmate's First Amendment right to free speech is not protected if 

affording protection would be inconsistent with the inmate's “status as 

a prisoner or with the legitimate penological objectives of the 

corrections system.” Id.

Mosley, 532 F.3d at 1277.

Woodyard claims that, as a result of the July 24, 2012 assault, he “was 

arrested and charged for fighting with a weapon[,]” but was later “found not guilty 

of the rule violations the defendants charged him with.” (Doc. 42 at 4). He 

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represents that, despite this finding of not guilty, he “was still placed in punitive 

confinement” – specifically, “close custody,” which “is the most severe custody status 

ADOC uses at present. (Id.). In “close custody,” “privileges are restricted[ and] 

rehabilitation courses ‘are not’ possible, because [Woodyard] is confined to 

segregation...” (Id. at 5). For instance, visitation privileges in close status are 

restricted to one visit every 6 months, as opposed to being allowed one visit every 90 

days in medium status or a visit every other week in general population. (Id.). 

Canteen privileges are similarly restricted. (Id.).

Documents from Woodyard’s ADOC institutional file indicate that, with 

Patterson’s approval, Woodyard was put in close custody because, while “Woodyard 

was found not guilty of the fighting with a weapon disciplinary due to his wounds 

were considered to be defensive,” investigation of the July 24, 2012 attack 

“determined that []Woodyard initiated the confrontation by approaching the other 

inmate with a knife trying to collect money. Per ADOC Classification Manual 

5.2.2.2- Institutional demonstration of violent behavior such as assault with a 

weapon or assault causing serious injury requires confinement in Close custody for 

at least twelve (12) months.” (Doc. 29-1 at 23-24). 

Woodyard has not demonstrated a claim for retaliation in regards to his 

being placed on close status, as he does not claim that his being placed on closed 

status was the result of any constitutionally protected speech or act. Rather, 

Woodyard instead appears to be asserting a claim that he was denied due process 

when conduct for which he was apparently found not guilty at a disciplinary 

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hearing was still used to justify placing him on heightened restriction.20 The 

Supreme Court has described such a claim as follows:

The Fourteenth Amendment's Due Process Clause protects persons 

against deprivations of life, liberty, or property; and those who seek to 

invoke its procedural protection must establish that one of these 

interests is at stake. A liberty interest may arise from the Constitution 

itself, by reason of guarantees implicit in the word “liberty,” see, e.g., 

Vitek v. Jones, 445 U.S. 480, 493-494, 100 S. Ct. 1254, 63 L. Ed. 2d 552 

(1980) (liberty interest in avoiding involuntary psychiatric treatment 

and transfer to mental institution), or it may arise from an expectation 

or interest created by state laws or policies, see, e.g., Wolff v. 

McDonnell, 418 U.S. 539, 556-558, 94 S. Ct. 2963, 41 L .Ed. 2d 935 

(1974) (liberty interest in avoiding withdrawal of state-created system 

of good-time credits).

We have held that the Constitution itself does not give rise to a liberty 

interest in avoiding transfer to more adverse conditions of 

confinement. Meachum v. Fano, 427 U.S. 215, 225, 96 S. Ct. 2532, 49 

L.Ed.2d 451 (1976) (no liberty interest arising from Due Process 

Clause itself in transfer from low-to maximum-security prison because 

“[c]onfinement in any of the State's institutions is within the normal 

limits or range of custody which the conviction has authorized the 

State to impose”). We have also held, however, that a liberty interest in 

avoiding particular conditions of confinement may arise from state 

policies or regulations, subject to the important limitations set forth in 

Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 

(1995).

Sandin involved prisoners' claims to procedural due process protection 

before placement in segregated confinement for 30 days, imposed as 

discipline for disruptive behavior. Sandin observed that some of our 

earlier cases, Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed.

2d 675 (1983), in particular, had employed a methodology for 

identifying state-created liberty interests that emphasized “the 

language of a particular [prison] regulation” instead of “the nature of 

the deprivation.” Sandin, 515 U.S., at 481, 115 S. Ct. 2293. In Sandin,

we criticized this methodology as creating a disincentive for States to

promulgate procedures for prison management, and as involving the 

federal courts in the day-to-day management of prisons. Id., at 482-

 20 Woodyard appears to grasp this, as he asserts he is being punished “for no reason and 

this is a gross violation of Plaintiff (14th Amend.) constitutional right.” (Doc. 42 at 5-6).

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483, 115 S. Ct. 2293. For these reasons, we abrogated the methodology 

of parsing the language of particular regulations.

“[T]he search for a negative implication from mandatory 

language in prisoner regulations has strayed from the real 

concerns undergirding the liberty protected by the Due Process 

Clause. The time has come to return to the due process 

principles we believe were correctly established in and applied 

in Wolff and Meachum. Following Wolff, we recognize that 

States may under certain circumstances create liberty interests 

which are protected by the Due Process Clause. But these 

interests will generally be limited to freedom from restraint 

which, while not exceeding the sentence in such an unexpected 

manner as to give rise to protection by the Due Process Clause of 

its own force, nonetheless imposes atypical and significant 

hardship on the inmate in relation to the ordinary incidents of 

prison life.” Id., at 483-484, 115 S. Ct. 2293 (citations and 

footnote omitted).

After Sandin, it is clear that the touchstone of the inquiry into the 

existence of a protected, state-created liberty interest in avoiding 

restrictive conditions of confinement is not the language of regulations 

regarding those conditions but the nature of those conditions 

themselves “in relation to the ordinary incidents of prison life.” Id., at 

484, 115 S. Ct. 2293.

Wilkinson v. Austin, 545 U.S. 209, 221-23 (2005).

While Woodyard has alleged (in his unsworn response in opposition to 

summary judgment) that being in close status imposes certain hardships on him, 

including reduction in visitations, canteen privileges, and rehabilitation programs, 

none of them appear to be more “atypical and significant...in relation to the 

ordinary incidents of prison life.” Compare Moulds v. Bullard, 345 F. App'x 387, 

396 (11th Cir. 2009) (“Temporary withdrawal of visitation privileges for disciplinary 

purposes is ‘not a dramatic departure from accepted standards for conditions of 

confinement,’ but a claim of permanent or extended withdrawal of all visitation 

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privileges ‘would present different considerations.’ Overton v. Bazzetta, 539 U.S. 

126, 136-37, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003). []As applied here, the 

conditions of Moulds's disciplinary confinement are not of constitutional 

dimensions. His temporary loss of privileges does not rise to the level of a protected 

liberty interest. See Overton, 539 U.S. at 136-37, 123 S. Ct. 2162. Although he was 

deprived of one meal per day, he has not alleged facts showing that his diet, taken 

as a whole, was inadequate. He also alleged that he was deprived of a mattress for 

approximately half of each day, but he did not allege that he was not allowed to 

sleep on a mattress. Under the circumstances, particularly in proportion to the 

length of Moulds's sentence, the 201 days he spent in segregation and subject to 

these conditions did not constitute such a ‘dramatic departure’ from ordinary prison 

life as to give rise to a protected liberty interest. See id. Accordingly, the district 

court did not err in denying this claim.”), with Wilkinson, 545 U.S. at 223-24 (“For 

an inmate placed in [the Supermax Ohio State Penitentiary], almost all human 

contact is prohibited, even to the point that conversation is not permitted from cell 

to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour 

per day, but only in a small indoor room. Save perhaps for the especially severe 

limitations on all human contact, these conditions likely would apply to most 

solitary confinement facilities, but here there are two added components. First is 

the duration. Unlike the 30-day placement in Sandin, placement at OSP is 

indefinite and, after an initial 30-day review, is reviewed just annually. Second is 

that placement disqualifies an otherwise eligible inmate for parole consideration. 

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While any of these conditions standing alone might not be sufficient to create a 

liberty interest, taken together they impose an atypical and significant hardship 

within the correctional context. It follows that respondents have a liberty interest in 

avoiding assignment to OSP.” (internal citation omitted)). As such, Woodyard’s

claims regarding being placed in close status, whether in retaliation or in 

deprivation of due process, fail.

Woodyard also claims that Defendant Howard retaliated against him for 

complaining about being housed in the same annex as Anderson. In his (unsworn) 

response in opposition to summary judgment, Woodyard details the following 

incident:

On 9-11-12 Plaintiff confronted Captain Howard (defendant) about 

moving him out of the annex because he felt threatened living in the 

same unit as his attacker. Defendant Howard got extremely upset and 

radioed for more officers. She then ordered the officers to strip 

plaintiffs [sic] cell. When Plaintiff ask [sic] her why she ordered the 

officers to take his property. I was told by defendant Howard to ‘shut 

up.’ Plaintiff then asked to speak to the warden and was struck in the 

face (by Defendant Howard) and ‘drug’ up the floor by the 6 officers 

called by defendant Howard, after which he (plaintiff) was ‘slapped’ in 

the face and ‘spit on’ by defendant Howard.

...Plaintiff was handcuffed behind the back, surrounded by defendant 

Howard and 6 more correctional officers...Upon plaintiffs [sic] return 

from the infirmary (where he was given a body chart and x-rays of his 

(plaintiff) face) plaintiff was placed in the strip cell where he remained 

for 7 days, with no bedding, matt, clothes nor, toiletries and at times 

had to lay in the cell with his waste for 2 days at a time because the 

CO’s wouldn’t turn on the water so plaintiff could flush his toilet.

(Doc. 42 at 9-10).

In support of these allegations, Woodyard has submitted the affidavit of 

inmate Jarell Price, who swears that, “on or about Sept. 11 2012 [he] did witness 

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and altercation take place between inmate Draper Woodyard and Captain Ronzella 

Howard[,]” in which “Howard an [sic] 6 more CO’s jump[ed] inmate Woodyard and 

strip his cell of all his property...” (Doc. 42 at 20). Woodard purportedly asked 

Howard “why she ordered the taking of his property and he was told to shut up. He 

ask [sic] to see the warden an [sic] was hit in the face and drug up the floor.” (Id.). 

After Woodyard was “return[ed] from where-ever they took him they put him in the 

naked cell for about a week.” (Id.).

However, any mention of such an incident occurring is absent from 

Woodyard’s operative complaint (Docs. 16 – 17). In the main complaint (Doc. 16), 

which is dated November 15, 2012 (approximately two months following the alleged 

incident involving Howard and the six other guards), the only factual allegation in 

support of a claim of retaliation against Howard is that, in response to Woodard 

sending “request[s] and complaints to Howard and her supervisors asking to be 

removed from this hostile living arrangement[,]” Howard purportedly “threatened 

retaliation against [Woodyard] by stating “If you keep bothering me about moving, 

you will be wrote a disciplinary and that’s just the beginning.” (Doc. 16). The 

supplement to the main complaint (Doc. 17), dated December 3, 2012, makes no 

mention of retaliation at all, let alone the incident described above involving 

Howard and the six other guards.21

At most, then, Woodyard’s operative complaint (Docs. 16 – 17), which 

contains detailed factual allegations supporting each of his claims, alleged only a 

 21 Moreover, no mention of this incident is made in any of Woodyard’s previous pleadings 

filed after September 11, 2012 (Docs. 4, 7, 8, 11, 12, 13, 14).

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threat of retaliation by Howard. Though the two documents comprising the 

operative complaint were drafted several months following the incident involving 

Howard and the six guards, Woodyard has made no attempt to explain why any 

mention of this incident was not included in his complaint. It is clear that 

Woodyard is attempting to add an additional claim against Howard through his 

summary judgment response, which the Eleventh Circuit has held to be 

procedurally improper. See supra, n.4 (citing Gilmour v. Gates, McDonald & Co., 

382 F.3d 1312, 1315 (11th Cir. 2004)).

Accordingly, the undersigned RECOMMENDS that the Defendants’ motion 

for summary judgment be GRANTED as to Woodyard’s claims for retaliation and 

deprivation of due process.

V. Conclusion

In accordance with the above-stated reasoning, the undersigned Magistrate 

Judge RECOMMENDS that 1) the Defendants’ motion for summary judgment (see

Docs. 29 – 31) be DENIED as to Woodyard’s claim of failure-to-protect deliberate 

indifference against Leggett in his individual capacity and that it be GRANTED as 

to all other claims; and 2) that Woodyard’s “Motion for Oder [sic] of Judgment” (Doc. 

47), construed as a motion for sanctions under Federal Rule of Civil Procedure 

37(b)(2)(A) be DENIED.

VI. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or 

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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. See 28 U.S.C. 

§ 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is 

made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific.

DONE this the 22nd day of August 2014.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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