IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DONNIE SHROPSHIRE, )

AIS #175941, )

Plaintiff, )

)

v. ) Civil Action No. 10-00470-CB-N

)

DEBORAH TONEY and CHANDRA )

JOHNSON, )

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff Donnie Shropshire (“Shropshire”), an Alabama prisoner

proceeding in forma pauperis (see Doc. 6), has brought this action asserting

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

Defendants’ second Motion for Summary Judgment under Federal Rule of Civil 

Procedure 56 (Doc. 83), filed August 15, 2014, which is accompanied by 

evidentiary materials (Docs. 83-1 – 83-8) and a brief in support (Doc. 84). 

Shropshire has filed a response in opposition (Doc. 88) to the motion, and the 

Defendants have filed a reply to the response (Doc. 89), as well as a motion for 

oral argument (Doc. 91).1 The motion for summary judgment is now under 

submission and ripe for adjudication. (See Doc. 87).

This matter has been referred to the undersigned United States 

Magistrate Judge for entry of a report and recommendation pursuant to 28 

 1 Shropshire initiated this action pro se but was appointed counsel prior to the filing of the 

present motion for summary judgment. (See Doc. 53).

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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 (Doc. 

83) be GRANTED in part and DENIED in part, as set out, and that the 

Defendants’ motion for oral argument (Doc. 91) be DENIED.

I. Procedural History

Shropshire initiated this action on August 24, 2010, by filing a pro se

complaint with this Court.2 (Doc. 1). On April 23, 2012, this action was 

consolidated with a second, later-filed action of Shropshire’s (SD ALA Case No. 

1:13-cv-00304-WS-N), and Shropshire was ordered “to file an amended 

complaint that contain [sic] all of his claims on this Court’s § 1983 complaint 

form.” (Doc. 18). Shropshire was expressly told: “This amended complaint will 

supersede all of his prior complaints, amended complaints, and other documents 

containing allegations...Thus, [Shropshire] shall not rely on his prior 

pleadings.”3 (Id.). Shropshire timely filed an amended complaint (Doc. 21) as 

 2 The complaint is dated “8/24/10,” and the prisoner “mailbox” rule applies to filings in § 

1983 actions. See Lewis v. Barnick, 385 F. App'x 930, 931 (11th Cir. 2010) (per curiam) 

(“When a pro se prisoner files a complaint under § 1983, ‘the date of filing shall be that of 

delivery to prison officials ... for the purpose of ascertaining timeliness.’ Garvey v. Vaughn,

993 F.2d 776, 783 (11th Cir.1993) (emphasis omitted).”).

3 “As a general matter, ‘[a]n amended pleading supersedes the former pleading; the original 

pleading is abandoned by the amendment, and is no longer a part of the pleader's 

averments against his adversary.’ ” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 

1243 (11th Cir. 2007) (per curiam) (quoting Dresdner Bank AG, Dresdner Bank AG in 

Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (citation and 

quotation omitted)). See also, e.g., Fritz v. Standard Sec. Life Ins. Co. of New York, 676 

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directed, said complaint being the operative pleading in this action. 4 The 

operative complaint alleges the following claims:

1. From July 4 to July 7, 2010, Defendants, Deborah Toney (“Toney”) and 

Cassandra Johnson (“Johnson”) were negligent and deliberately

indifferent to Shropshire’s medical needs by refusing to provide treatment 

for Shropshire’s painfully swollen foot. Defendant Johnson is also alleged 

to have used unconstitutionally excessive force by purposefully hitting 

Shropshire’s swollen foot on July 6, 2010, causing further injury.

2. On April 26, 2010, Defendant Toney allegedly ordered Defendant Johnson 

and others to use muriatic acid to clean the inmate living areas and 

bathrooms. The acid is alleged to have reacted with other chemicals to 

form a toxic vapor that Shropshire and others breathed, causing 

Shropshire to suffer headaches and breathing problems.

The Defendants filed a special report (Doc. 32) in response to the operative 

complaint, which the undersigned converted into the Defendants’ first motion for 

summary judgment (see Doc. 33). On March 18, 2013, the Court granted the 

Defendants’ first motion for summary judgment as to Shropshire’s “claims 

concerning exposure to acid vapors as raised in civil action no. 11-304” and 

denied the motion as to all other claims. (Doc. 44). Counsel was appointed to 

 

F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal Rules, an amended complaint 

supersedes the original complaint.”).

4 Shropshire subsequently moved to amend his operative complaint to add a jury demand. 

(See Doc. 39). That motion was denied. (See Doc. 44).

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represent Shropshire in this action on August 29, 2013. (Doc. 53). Following a 

planning conference pursuant to Federal Rule of Civil Procedure 26(f), the 

parties filed a planning report with the Court, and a scheduling order under 

Federal Rule of Civil Procedure 16(b) (Doc. 58) was entered, with the initial 

scheduling order being subject to several amendments (Docs. 59, 64, 67, 74, 78, 

80). Discovery has closed in this action (see Doc. 67 at 2, ¶ 3), and the 

Defendants’ present motion for summary judgment was timely filed by the cutoff date for dispositive motions (see Doc. 80).

II. 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 

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& 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;

(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

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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, ... 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 

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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 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). 

See also Sharpe v. Global Sec. Int'l, 766 F. Supp. 2d 1272, 1282 (S.D. Ala. 2011) 

(Steele, C.J.) (“[T]he Court . . . will not independently examine uncited portions 

of the record in search of support for a particular proposition[ on summary 

judgment].” (citing cases)); Fed. R. Civ. P. 56(c)(3) (On summary judgment, “[t]he 

court need consider only the cited materials, but it may consider other materials 

in the record.”).

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III. Determination of Facts5

Shropshire is, and at all times relevant to this action has been, an inmate 

with the Alabama Department of Corrections. During the events giving rise to 

this action, Shropshire was housed at the department’s Atmore Work Release 

Center. At all relevant times, Defendant Toney was the warden of the facility, 

while Defendant Johnson was a correctional officer with the rank of sergeant. 

Sunday, July 4, 2010

July 4, 2010, was a visitation day at the center. (Doc. 83-1 at 8 

[Shropshire Depo., pp. 65-66]). At about 7:00 a.m. that day – an hour before 

visitation was to begin – Shropshire, who served as a runner for Johnson, was 

carrying the computer used for visitation verification into the dining hall so he

could set it up. (Id. at 9-10 [pp. 69-73]). As Shropshire approached the dining 

room door carrying the computer, another inmate opened the door and 

accidentally splashed some excess water from the dining hall floor onto 

Shropshire’s right foot, drenching it below the cuff. (Id. at 11-12 [pp. 77-79, 83]). 

Shropshire was in uniform and wearing white cloth tennis shoes when his 

foot got drenched. (Id. at 11 [pp. 77-79]). At the time, Shropshire did not realize 

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

its inferences, in the light most favorable to [Shropshire,] 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).

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that his foot getting wet would lead to a problem or that there was any concern 

over a chemical being in the water. (See id. at 13 [p. 85] (“I didn’t think it would 

do what it did, because it was just wet at the time...I didn’t know it was a 

chemical in the water.”)). Shropshire now knows that muriatic acid was in the 

mop water.6 (Id. [p. 88]).

Shropshire asked Johnson for permission to go change his shoes and 

“have it checked out, what had happened.” (Id. at 13 [pp. 85-86]). Johnson 

denied this request, saying, “Well, Shropshire,...I need you.” (Id. [p. 86]). 

Shropshire then took off his wet shoe, took off the wet sock underneath, and put 

the wet shoe back on, as inmates were not allowed to walk around barefoot. (Id.

[pp. 85-86]). Later that day, Shropshire told Johnson about the incident 

resulting in his wet foot and reported that he felt a “burning sensation” and that 

his foot felt “irritated.” (Id. at 14 [p. 121]). Johnson responded: “Well, what is 

I’m going to do, you know. You my runner...You might just be all right...” (Id.). 

Neither Johnson nor Shropshire was aware what, if anything, was in the water 

that had wet Shropshire’s foot. (Id. [pp. 121-22]). After visitation ended at 2:00 

p.m. that day, Shropshire took a shower and “looked real good at [his] feet.” (Id.

at 15 [pp. 125-26]). Shropshire saw that his right foot had “started to turn red” 

 6 The Defendants dismiss Shropshire’s testimony regarding muriatic acid being in the mop 

water as “hindsight” and “speculation” and argue that “[t]here is no competent evidence 

that muriatic acid was used in the water or on the floor on July 4 or the night before.” (Doc. 

83 at 3 & n.3). While Shropshire does not explain how or when he came to know of muriatic 

acid being in the mop water, the Defendants have cited to no testimony indicating that this 

was merely a guess or “speculation” by Shropshire.

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and was “itchy,” and the “burning sensation was still burning.” The redness 

continued for the rest of the day, with Shropshire also noticing the foot begin to 

swell up. (Id. at 15-16 [pp. 125-26, 129-30]). However, Shropshire did not 

report the problems with his foot to any other prison official for the rest of the 

day. (Id. at 16 [pp. 129-31]).

Monday, July 5, 2010

The next day, Shropshire met Warden Toney in the breezeway as she 

reported for work. Shropshire asked to speak with her, and Toney responded: 

“[Y]es...What is it, Shropshire?” (Id. [pp. 131-32]). Shropshire told Toney about 

his foot getting wet the day before and showed her his injured foot, which was 

“sweating” and “swollen,” the “toes w[ere] big, and the blister thing was getting 

ready to develop” but “hadn’t come on yet.” (Id. at 16-17 [pp. 132-33]; Doc. 88-1 

at 42 [Shropshire Depo., p. 253]). Shropshire told Toney: “I don’t know, you 

know, what – what was in that water. I don’t know...Well, just look at it.” (Doc. 

83-1 at 17 [Shropshire Depo., p. 133]). Shropshire told Toney that he was in 

pain. (Doc. 88-1 at 41 [Shropshire Depo., p. 252]). Toney looked down at 

Shropshire’s feet, said, “I don’t have nothing here that will cause that type of 

problem[,]” and “went on about her business.” (Doc. 83-1 at 17 [Shropshire 

Depo., p. 133]). By this time Shropshire was wearing a “shower slide” because 

he could not wear a shoe on his swollen foot. (Id.). Shropshire showed Toney his 

foot because he “wanted her to give [him] some medical.” (Doc. 88-1 at 44 

[Shropshire Depo., p. 255]).

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At Shropshire’s deposition, the following exchange took place between 

Shropshire and his counsel:

Q: Had you told anyone personally that you wanted - - what was 

your purpose of speaking to Ms. Toney?

A: To show her my foot, what had happened.

Q: What did you want from her?

A: Well, I wanted her to give me some medical.

Q: Okay. And did - - and did she - -

A: She didn’t.

Q: - - get you any medical treatment?

A: No, she did not...

Q: Okay. Did you request medical treatment from her?

A: Yes.

Q: On the 5th?

A: Well, by me - - after that happened, I went and filled out a - -

Q: I mean to her personally?

A: Well, yes, she was standing there personally. Yes.

...

Q: ...Did you express that to them?

A: Well, they should have known. They over me.

Q: No. Did you express that to them that you needed - -

A: Yes. They over me.

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(Id. at 44-45, 47 [pp. 255-56, 261]). Reading this exchange as a whole, it is at 

best unclear whether Shropshire actually requested medical aid from Toney, he 

simply assumed she would know he wanted medical aid, or he is claiming the 

Defendants should have known of his need for medical attention due to their 

positions of authority. 

Soon after speaking with Toney, Shropshire filled out and submitted a 

“sick call slip”/health services request form. (Doc. 83-1 at 18-19 [Shropshire 

Depo., pp. 140, 142-44]; Doc. 83-3 at 30). The request form stated that 

Shropshire’s “right feet [sic] is num [sic] + swollen” and “it’s getting bigger.” 

(Doc. 83-3 at 30). Shropshire did not report his injury to any other staff member 

on July 5. Another inmate, J.C. McGaster (“McGaster”), saw Shropshire’s 

swollen foot on July 5. McGaster “could tell [the foot] was infected...from 

previous being a wound care technician” because “it was swollen” and “pus” was 

present. (Doc. 88-5 at 6-7 [McGaster Depo., pp. 24-25]). McGaster told 

Shropshire “he needed to get to the health care and try to get something did[,]” 

but McGaster “didn’t follow up on it” that day. (Id. at 8 [p. 26]).

Tuesday, July 6, 2010

At about 8:30 or 9:00 a.m. on July 6, the kitchen steward, Kathy Stonewall 

(“Stonewall”), called Shropshire over the intercom to come to the kitchen to do 

some cleaning. (Doc. 83-1 at 20 [Shropshire Depo., p. 147]). When Shropshire 

arrived in the kitchen, Stonewall was there with Johnson and another kitchen 

Stewart. (Id. [pp. 147-48]). Shropshire told Stonewall that he could not perform 

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cleaning duties for her that day because of his foot. (Id. [p. 148]). Stonewall 

looked at Shropshire’s foot and asked him what had happened to it. (Id.). To 

Stonewall, Shropshire’s foot looked “awful,” as “it had blisters and it looked like 

the blisters had popped,” “it was nasty, it was real nasty[,]” and it was “swollen” 

and “pussy” “on the top of his whole foot[,]” though she did not notice a lot of 

puss. (Doc. 88-4 at 4-5 [Stonewall Depo., pp. 18-19]). Shropshire told her how it 

had gotten splashed with water, that it was in pain, and that he couldn’t 

perform cleaning duties; Stonewall told him to go back to his dorm and lie down. 

(Doc. 83-1 at 20-21 [Shropshire Depo., pp. 148-49]; Doc. 88-1 at 41-42 

[Shropshire Depo., pp. 252-53]). At this time, Shropshire’s feet were still swollen 

and had developed blisters, and Shropshire was having difficulty walking. (Doc. 

83-1 at 21 [Shropshire Depo., pp. 149-50]). Shropshire was wearing shower 

slides on both feet. (Id. [p. 149]).7

Johnson was standing nearby and appeared to be listening to Shropshire 

and Stonewall. (Id. [pp. 150-52]). After Stonewall told Shropshire to go lie back 

down, she turned to go into her office in the kitchen. (Id. [pp. 151-52]). At this 

time, Johnson grabbed a squeegee from a nearby inmate who was cleaning and 

“bammed”/“whacked” Shropshire on his swollen right foot. (Id. at 21-22 [pp. 

152-53]). Johnson hit the part of the foot that had blistered, causing the blisters 

to burst. (Id. at 22 [pp. 153-54]). Johnson did not say anything to Shropshire 

 7 Stonewall testified that Shropshire was wearing socks that day but took the sock off his 

injured foot to show her. (Doc. 88-4 at 4 [p. 18]).

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before or after hitting his foot. (Id. [p. 156]). Shropshire was in pain from the 

blow to his foot and left the kitchen without saying anything to Johnson. (Id. at 

22-23 [pp. 156-57]). Shropshire did not directly tell Johnson on July 6 that his 

foot was in pain. (Doc. 88-1 at 41 [Shropshire Depo., p. 252]). Shropshire thinks 

he submitted another health services request form on July 6 (Doc. 83-1 at 24-25 

[Shropshire Depo, pp. 164, 167]), though such a form has not been found in 

Shropshire’s prison medical records. Shropshire then stayed in bed for the rest 

of July 6 and did not tell any other prison official about his injuries. (Id. at 25 

[pp. 167-68]).

Wednesday, July 7, 2010

On July 7, Shropshire submitted another health services request, this one 

stating: “My right foot is swollen + numb + now its in pain.” (Doc. 83-3 at 31). 

By the afternoon of July 7, blood and pus had begun running through the sock 

on Shropshire’s injured foot. (Doc. 83-1 at 25-26 [pp. 168-69]). McGaster

retrieved a wheelchair from the shift office, had Shropshire get into it, and took 

him to the shift office. (Id. at 26 [pp. 169-70]). Johnson was in the shift office at 

this time. (Id. [p. 170]). McGaster knocked on the glass part of the door into the

shift office, told Johnson that Shropshire was not going to lay around him 

anymore in his condition, and left. (Id. [pp. 170-71]). At Johnson’s direction, 

another officer took Shropshire to another prison facility, Fountain Correctional, 

for medical attention. (Id. [p. 171]).

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Dr. Oscar Lopez, the physician who treated Shropshire’s foot, recalls that 

“[h]e had some redness on the mid fore foot and mid foot of the right” and “some 

in between the toes.” (Doc. 83-2 at 14 [Dr. Lopez Depo., p. 20]). Dr. Lopez 

testified that Shropshire’s injury was “consistent with a chemical burn.” (Id.). 

Dr. Lopez also determined that Shropshire had developed a staph infection in 

the swollen foot, which is contracted through breaks in the skin and “can get 

serious if not treated properly[,]” including death and loss of the foot. (Id. at 14-

15 [pp. 20-21]; Doc. 88-2 at 6 [Dr. Lopez Depo., p. 22]). According to Dr. Lopez, 

delay in treating a chemical burn could cause complications – the burn would 

worsen and the chemical could go deeper into the skin and cause further 

damage. (Doc. 83-2 at 16 [p. 24]).

According to Dr. Lopez, inmates can request medical care by filling out a 

medical care request slip. (Id. at 21 [p. 52]). Also, a nurse comes to Atmore 

Work Release every day to perform sick call and then refer matters to nurse 

practitioners to look at the problem. (Id. at 22 [p. 53]. See also Doc. 83-4 at 14 

[Nurse Gaston Depo., p. 30] (“Now there’s a nurse there every day who does sick 

call and pill call.”)). These nurses also review the medical request slips that the 

inmates put in a little wooden box. (Id.). ADOC staff will “occasionally” but 

“rarely” ask a nurse to see someone specifically, but they play no role in 

receiving or assessing sick call slips. (Doc. 83-4 at 15 [Nurse Gaston Depo., p. 

31]).

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The Defendants “deny that Shropshire ever showed them his foot or asked 

for medical attention[,]” and “Johnson denies she ever struck his foot with a 

squeegee.” (Doc. 83 at 9 (citing Docs. 83-5 [Toney Depo.] and 83-6 [Johnson 

Depo]). However, both aver that, even had Shropshire shown them his foot, they 

would not have thought at the time that it was a serious medical condition 

requiring prompt attention. (See Doc. 83-7 at 2 [Toney Aff.]; Doc. 83-8 at 2 

[Johnson Decl.8]). Both state that they have no formal medical training and but 

that they have experience with walking around in wet shoes causing feet to 

swell, redden, and blister. (Doc. 83-7 at 3; Doc. 83-8 at 2).9

IV. Arguments & Analysis

The Eighth Amendment to the United States Constitution states: “ 

‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.’ ” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 

n.9 (11th Cir. 2009) (quoting U.S. Const. amend. VIII). “The Eighth 

Amendment's prohibition against cruel and unusual punishment, applicable to 

the State of [Alabama] through the Due Process Clause of the Fourteenth 

Amendment, prohibits the unnecessary and wanton infliction of pain. In the 

prison context,...[t]he Eighth Amendment can give rise to claims 

 8 Johnson’s unsworn declaration is in substantial compliance with 28 U.S.C. § 1746 and 

may therefore be considered as evidence on summary judgment.

9 Both Defendants also aver that, even if Shropshire had shown them his injured foot, they 

would have assumed he was obtaining medical care through the standard procedure, which 

is to fill out a medical request slip. (See Docs. 83-7 & 83-8). However, both also admit that 

they could have contacted a medical care provider directly if it was “an emergency or some 

kind of distress” and that they have done this “many times” before. (See id.).

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challenging...the excessive use of force[] and the deliberate indifference to a 

prisoner's serious medical needs.” Thomas v. Bryant, 614 F.3d 1288, 1303-04 

(11th Cir. 2010) (internal citations and quotations omitted).

In this action, Shropshire claims deprivation of his Eighth Amendment 

constitutional rights by the Defendants in violation of 42 U.S.C. § 1983.10 His 

remaining claims, which are the subject of the present motion for summary 

judgment, are:

1. Defendants Toney and Johnson both exhibited deliberate indifference to 

Shropshire’s serious medical need by, respectively, failing to and delaying 

getting him medical treatment for his injured foot.

2. Johnson utilized unconstitutionally excessive force in violation of the 

Eight Amendment when she struck Shropshire on his swollen, blistered 

foot.11

 10

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.

11 Shropshire expressly states that he is suing the Defendants “in their individual 

capacity” for monetary damages only. (Doc. 21 at 7). However, even if Shropshire were 

asserting claims against the Defendants in their official capacities as officers of the

Alabama Department of Corrections, 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 one of its agencies or 

departments is named as the defendant is proscribed by the Eleventh Amendment. This 

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A. Deliberate Indifference to Serious Medical Need

“[A] prison official’s ‘deliberate indifference to [the] serious medical needs 

of [a] prisoner[] constitutes the unnecessary and wanton infliction of pain ... 

proscribed by the Eighth Amendment.’ ” Farrow v. West, 320 F.3d 1235, 1243 

(11th Cir. 2003) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotation 

marks and citation omitted)). “ ‘However, not “every claim by a prisoner that he 

has not received adequate medical treatment states a violation of the Eighth 

Amendment.” ’ ” Id. (quoting McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 

1999) (citation omitted)).

The Eleventh Circuit

ha[s] repeatedly found that “an official acts with deliberate 

indifference when he or she knows that an inmate is in serious need 

of medical care, but he fails or refuses to obtain medical treatment 

for the inmate.” Lancaster v. Monroe County, Ala., 116 F.3d 1419, 

1425 (11th Cir. 1997); Mandel v. Doe, 888 F.2d 783, 788 (11th 

Cir.1989) (noting that “knowledge of the need for medical care and 

intentional refusal to provide that care constitute deliberate 

indifference”). Even where medical care is ultimately provided, a 

prison official may nonetheless act with deliberate indifference by 

delaying the treatment of serious medical needs, even for a period of 

hours, though the reason for the delay and the nature of the medical 

need is relevant in determining what type of delay is 

constitutionally intolerable. See Harris v. Coweta County, 21 F.3d 

388, 393–94 (11th Cir. 1994); Brown v. Hughes, 894 F.2d 1533, 

1537–39 (11th Cir. 1990).

 

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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McElligott, 182 F.3d at 1255.

“To prevail on a claim of deliberate indifference to serious medical 

need ...,[] a plaintiff must show: ‘(1) a serious medical need; (2) the 

defendant['s] deliberate indifference to that need; and (3) causation 

between that indifference and the plaintiff's injury.” Youmans v. 

Gagnon, 626 F.3d 557, 563 (11th Cir. 2010) (quoting Mann v. Taser 

Int'l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009)). This analysis 

contains both an objective and a subjective component. See Thomas 

v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 2010). A plaintiff must 

first show an objectively serious medical need that, if unattended, 

posed a substantial risk of serious harm, and that the official's 

response to that need was objectively insufficient. See Bingham v. 

Thomas, 654 F.3d 1171, 1175–76 (11th Cir. 2011). Second, the 

plaintiff must establish that the official acted with deliberate 

indifference, i.e., the official subjectively knew of and disregarded 

the risk of serious harm, and acted with more than mere negligence. 

See id.; Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).

First, “[a] serious medical need is ‘one that has been diagnosed by a 

physician as mandating treatment or one that is so obvious that 

even a lay person would easily recognize the necessity for a doctor's 

attention.’ ” Youmans, 626 F.3d at 564 (quoting Mann, 588 F.3d at 

1307). “In general, serious medical needs are those ‘requiring 

immediate medical attention.’ ” Id. (quoting Hill v. Dekalb Reg'l 

Youth Det. Ctr., 40 F.3d 1176, 1190 (11th Cir. 1994)).

Second, to prove “deliberate indifference” to a serious medical need, 

a plaintiff must show “(1) subjective knowledge of a risk of serious 

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

[gross] negligence.” Townsend v. Jefferson Cnty., 601 F.3d 1152, 

1158 (11th Cir. 2010) (alteration in original) (quoting Bozeman v. 

Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)). 

Gilmore v. Hodges, 738 F.3d 266, 273-74 (11th Cir. 2013) (ellipsis added).12

 12 Gilmore involved the deliberate indifference claims of a pretrial detainee, rather than a 

prisoner. “When brought by convicted prisoners, these claims proceed under the Cruel and 

Unusual Punishment Clause of the Eighth Amendment. Pretrial detainees, however, must 

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“The inadvertent or negligent failure to provide adequate medical care 

‘cannot be said to constitute “an unnecessary and wanton infliction of pain.” ’ ” 

Farrow, 320 F.3d at 1243 (quoting Estelle, 429 U.S. at 105-06). See also Mann v. 

Taser Int'l, Inc., 588 F.3d 1291, 1308 (11th Cir. 2009) (“While the deputies may 

have made an error in judgment, mere negligence or a mistake in judgment does 

not rise to the level of deliberate indifference. Plaintiffs' showing that harm 

resulted, without more, cannot carry the burden required for deliberate 

indifference.”). “The meaning of ‘more than gross negligence’ is not self-evident 

but past decisions have developed the concept. In cases [such as Shropshire’s] 

that turn on the delay in providing medical care, rather than the type of medical 

care provided...[w]here the prisoner has suffered increased physical injury due 

to the delay, [the Eleventh Circuit] ha[s] consistently considered: (1) the 

seriousness of the medical need; (2) whether the delay worsened the medical 

condition; and (3) the reason for the delay.” Goebert v. Lee Cnty., 510 F.3d 1312, 

1327 (11th Cir. 2007).

 

proceed under the Due Process Clause of the Fourteenth Amendment.” Gilmore, 738 F.3d 

at 271 (citing Lancaster v. Monroe Cnty., 116 F.3d 1419, 1425 n.6 (11th Cir. 1997)). 

“[H]owever, the minimum standard for providing medical care to a pretrial detainee is 

identical to the minimum standard required by the Eighth Amendment for a convicted 

prisoner, and thus [a court] analyze[s] the claim under the decisional law of both 

amendments.” Id. (citing Andujar v. Rodriguez, 486 F.3d 1199, 1203 n.3 (11th Cir. 2007)). 

See also, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996) (“Claims involving 

the mistreatment of arrestees or pretrial detainees in custody are governed by the 

Fourteenth Amendment's Due Process Clause instead of the Eighth Amendment's Cruel 

and Unusual Punishment Clause, which applies to such claims by convicted prisoners. 

However, the applicable standard is the same, so decisional law involving prison inmates 

applies equally to cases involving arrestees or pretrial detainees.” (internal citations 

omitted)).

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21

The Defendants concede that “Shropshire has cleared the first hurdle, the 

‘objective’ prong[,]” as “[h]e has sufficiently established that his foot injury 

turned out to be, indeed a serious medical condition that needed expedited 

care.”13 (Doc. 84 at 4). Moreover, though denying that Shropshire ever showed 

them his injured foot or requested medical attention, see n.7, supra, the 

Defendants concede that, “[b]ased on the appropriate Rule 56 standard of 

review, the Court should assume Toney and Johnson were aware of Shropshire’s 

injury with the following caveat: They were aware of his injury only to the 

extent that Shropshire is able to testify when each Defendants saw his foot, how 

the foot looked when they saw it, and what he told them about it.” (Doc. 90 at 1-

2 (footnote omitted)).

However, the Defendants argue that they are due summary judgment on 

Shropshire’s “deliberate indifference” claims because 1) there is no genuine issue 

of material fact that the Defendants “did not subjectively appreciate 

[Shropshire]’s need for immediate medical care and could have reasonably 

 13 The record evidence also supports the determination that Shropshire’s foot injury, 

constitutes a serious medical need, as the injury indisputably worsened over time when left 

untreated. See Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1307 (11th Cir. 2009) (“A serious 

medical need is one that has been diagnosed by a physician as mandating treatment or one 

that is so obvious that even a lay person would easily recognize the necessity for a doctor's 

attention. In the alternative, a serious medical need is determined by whether a delay in 

treating the need worsens the condition.” (emphasis added) (internal citations and quotation 

omitted)); Youmans v. Gagnon, 626 F.3d 557, 564 n.8 (11th Cir. 2010) (“Serious medical 

need might alternatively be established where the condition worsens due to a delay.” (citing 

Mann, 588 F.3d at 1307)). Cf. Farrow, 320 F.3d at 1243 & n.14 (citing, inter alia, cases 

involving foot or leg injuries as precedent recognizing “a range of medical needs that are 

sufficiently serious to constitute ‘serious medical needs’ for purposes of the Eighth 

Amendment...”).

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22

assumed the injury was being handled through the customary procedures[,]” and 

2) the Defendants are entitled to qualified immunity on these claims. (Doc. 83 at 

10).

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 twostep 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, 738 F.3d at 272-73.

The record evidence amply supports the determination that both

Defendants were acting within the scope of their discretionary authority as 

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23

prison officials at the time of the wrongful acts giving rise to Shropshire’s claims 

of deliberate indifference, and Shropshire offers no evidence or argument to 

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

immunity on his claims for deliberate indifference to a serious medical need.

“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 

proposition.’ ” Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012) 

(quoting Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) 

(internal quotation marks 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 constitutional violation may be clearly established either by similar 

prior precedent, or in rare cases of ‘obvious clarity.’ With either method, the 

touchstone is whether the right would be apparent to a reasonable officer.” 

Gilmore, 738 F.3d at 277. See also Loftus, 690 F.3d at 1204 (‘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.” (internal citation and quotations 

omitted)). “Under the first approach, [a court] look[s] only to binding 

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24

precedent—holdings of cases drawn from the United States Supreme Court, [the 

Eleventh Circuit], or the highest court of the state where the events took place. 

Exact factual identity with a previously decided case is not required, but the 

unlawfulness of the conduct must be apparent from pre-existing law.” Gilmore, 

738 F.3d at 277 (citation and quotation omitted)

Shropshire’s response brief does not cite a materially similar case that he 

argues would have put the Defendants sufficiently on notice that their actions 

constituted deliberate indifference. Shropshire instead attempts to factually 

distinguish the cases cited by Defendants while citing to broader general 

principals regarding deliberate indifference. Thus, Shropshire appears to have 

chosen to argue that this is a case of “obvious clarity.”

Obvious clarity cases are rare and present a narrow exception to the 

general rule of qualified immunity. These obvious clarity cases take 

two forms. First, a broad statement of legal principle announced in 

case law may be sufficient if it establishes the law with obvious 

clarity to the point that every objectively reasonable government 

official facing the circumstances would know that the official's 

conduct did violate federal law when the official acted. 

Alternatively, obvious clarity is recognized if the conduct is so bad 

that case law is not needed to establish that the conduct cannot be 

lawful... [T]he second obvious clarity exception is relevant only 

when conduct is so egregious that no prior case law is needed to put 

a reasonable officer on notice of its unconstitutionality.

Id. at 279.

The Eleventh Circuit “has often been reluctant to reject qualified 

immunity for deliberate indifference to medical need claims that ‘are highly factCase 1:10-cv-00470-CB-N Document 92 Filed 09/16/14 Page 24 of 34
25

specific and involve an array of circumstances pertinent to just what kind of 

notice is imputed to a government official and to the constitutional adequacy of 

what was done to help and when.’ ‘Most cases in which deliberate indifference is 

asserted are far from obvious violations of the Constitution.’ ” Id. at 280 

(quoting Bozeman v. Orum, 422 F.3d 1265, 1274 (11th Cir. 2005)) (internal 

citation omitted).

The undersigned is not convinced that that any deliberate indifference by 

the Defendants to Shropshire’s foot injury presents a “rare” case of “obvious 

clarity” that they were violating his constitutional rights. The undisputed 

record evidence indicates that the standard procedure for Atmore Work Release 

Center inmates to obtain medical care was to fill out and submit a request slip. 

It is also undisputed that the prison medical services provider, rather than 

prison officials such as the Defendants, were responsible for collecting and 

processing those request slips. Shropshire was obviously aware of the requestslip process, as he testifies that he utilized this method three times in an 

attempt to obtain care for his foot. He does not claim that the Defendants 

impeded his ability to submit request slips once his foot began to swell,14 nor has 

he presented evidence that either Defendant was aware that he was not getting 

a response to his slips from the prison medical service provider.

 14 Shropshire does allege that Johnson denied him permission to go get his foot checked on 

July 4, 2010. However, at this time Shropshire’s foot was experiencing only an irritated, 

burning sensation, and Shropshire admits that neither he nor Johnson had any particular 

reason for concern at the time regarding his foot getting wet. 

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In sum, the undersigned finds persuasive the Defendants’ argument that, 

under the specific facts of this case, they were reasonably entitled to rely on a 

belief that Shropshire was pursuing and would obtain medical aid through the 

normal prison channels. Cf. Clark-Murphy v. Foreback, 439 F.3d 280, 287 (6th 

Cir. 2006) (“Captain Dyer and Sergeant Wakefield assisted Clark after he 

collapsed outside the mess hall on June 29. Each defendant's involvement in 

Clark's care ended after the two of them transferred him to Lauters' unit later 

that day. While they each perceived that Clark needed psychological care, 

they had no reason to expect that Lauters or any of the other defendants 

charged with Clark's care would fail to secure that help... Clark-Murphy 

has not produced evidence indicating or even suggesting that these defendants 

had any reason to think Clark was not receiving the psychological treatment he 

needed after June 29...” (emphasis added)); Robbins v. Black, 351 F. App'x 58, 63 

(6th Cir. 2009) (per curiam) (“Non-medical staff are entitled to assume that 

members of the medical staff are performing their duties properly unless they 

have reason to know otherwise.”). Because Shropshire has failed to meet his 

burden of demonstrating that the Defendants are not entitled to qualified 

immunity on his deliberate indifference claims, the undersigned finds that the 

Defendants’ motion for summary judgment is due to be GRANTED as to these 

claims. 

B. Excessive Force

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27

As with Eighth Amendment “deliberate indifference” claims, claims of 

Eighth Amendment violations through the excessive use of force “require[] a 

two-prong showing: an objective showing of a deprivation or injury that is 

‘sufficiently serious’ to constitute a denial of the ‘minimal civilized measure of 

life's necessities’ and a subjective showing that the official had a ‘sufficiently 

culpable state of mind.’ ” Thomas v. Bryant, 614 F.3d 1288, 1304 (11th Cir. 

2010) (quoting Farmer, 511 U.S. at 834). However, unlike “deliberate 

indifference” claims, “[e]xcessive-force claims...require a showing of a 

heightened mental state—that the defendants applied force ‘maliciously and 

sadistically for the very purpose of causing harm.’ ” Id. (quoting Wilson v. Seiter, 

501 U.S. 294, 302 (1991)).

Shropshire claims that Johnson used unconstitutionally excessive force 

when she hit his injured foot in the prison kitchen on July 6, 2010. Johnson 

concedes that “this may be the most difficult claim to prevail on in the summary 

judgment context and a trial may be necessary...” (Doc. 84 at 8). However, 

Johnson suggest that Shropshire’s “excessive force” claim may be disposed of on 

summary judgment because “the record is so divergent from” his claim. (Id.

(citing Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two 

different stories, one of which is blatantly contradicted by the record, so that no 

reasonable jury could believe it, a court should not adopt that version of the facts 

for purposes of ruling on a motion for summary judgment.”))). Specifically, 

Johnson notes that no eyewitnesses corroborate Shropshire’s claim that Johnson 

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28

struck him, that he did not report the incident to medical personnel, and that 

none of the medical providers saw any evidence of such a battery.

However, “[i]n Scott, the Supreme Court did not tinker with the summary 

judgment standard, for it merely held ‘that when documentary evidence 

“blatantly contradict[s]” a plaintiff's account “so that no reasonable jury could 

believe it,” a court should not credit the plaintiff's version on summary 

judgment.’ ” Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013) (quoting 

Witt v. W. Va. State Police, 633 F.3d 272, 276–77 (4th Cir. 2011) (alteration in 

original) (quoting Scott, 550 U.S. at 380)). The Court in Scott found that a 

party’s “[v]ersion of events [wa]s so utterly discredited by the record that no 

reasonable jury could have believed him” because a video of the events in 

question “quite clearly contradict[ed] the version of the story told by” that party. 

550 U.S. at 378, 380. See also Morton, 707 F.3d at 1284 (“Thus, where an 

accurate video recording completely and clearly contradicts a party's testimony, 

that testimony becomes incredible.”).

Here, no video of the alleged assault by Johnson has been presented. 

Instead, Johnson simply asks the undersigned to disregard Shropshire’s sworn 

testimony because no other record evidence supports it. While Shropshire’s 

sworn statements that Johnson struck his foot may be self-serving, “that alone 

does not permit [a court] to disregard them at the summary judgment stage. As 

w[as] stated in Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir. 2005), ‘[c]ourts 

routinely and properly deny summary judgment on the basis of a party's sworn 

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29

testimony even though it is self-serving.’ ” Feliciano v. City of Miami Beach, 707 

F.3d 1244, 1253 (11th Cir. 2013). The fact that Johnson has presented the 

sworn statements of herself and others that contradict Shropshire’s claim that 

she assaulted him “presents a classic swearing match, which is the stuff of 

which jury trials are made.” Id. “Even if a district court ‘believes that the 

evidence presented by one side is of doubtful veracity, it is not proper to grant 

summary judgment on the basis of credibility choices.’ ” Id. at 1252 (quoting 

Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006)).

Moreover, Shropshire’s testimony is not discredited simply because the 

medical record might not indicate a battery occurred. Cf. Morton, 707 F.3d at 

1284 (“Under Scott v. Harris, Kirkwood argues, we can reject Morton's testimony 

wholesale, even at the summary judgment stage. 550 U.S. at 380, 127 S. Ct. 

1769. In so arguing, Kirkwood offers four pieces of forensic evidence that, he 

contends, utterly discredit Morton's version of events... Kirkwood's argument 

falters because Morton's testimony may reasonably be harmonized with the 

circumstantial evidence that the car was moving.”). Shropshire claims only that 

Johnson’s blow to his foot caused him additional pain and popped some blisters. 

He has never claimed that the blow broke any bones, cut his skin, or caused any

major or lasting damage. As such, it is not unusual that Shropshire would not 

have mentioned the battery to any of the medical personnel, nor that the 

medical personnel, faced with Shropshire’s swollen and infected foot, would have 

attributed any popped blisters to a battery.

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Johnson also argues that Shropshire has “failed to prove any malicious 

intent behind the alleged striking of his foot, nor has he proven that he suffered 

anything more than a de mininis [sic] injury from the alleged assault.” (Doc. 84 

at 9). )). The Supreme Court has made clear that for “excessive force” claims, 

“[t]he ‘core judicial inquiry[]’...[i]s not whether a certain quantum of injury was 

sustained, but rather ‘whether force was applied in a good-faith effort to 

maintain or restore discipline, or maliciously and sadistically to cause harm.’ ” 

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (quoting Hudson v. 

McMillian, 503 U.S. 1, 7 (1992)). Thus, “the notion that ‘significant injury’ is a 

threshold requirement for stating an excessive force claim” has been rejected. 

Id. See also Thomas, 614 F.3d at 1304 (“...[I]n the excessive-force context, 

contemporary standards of decency may be violated even where no significant 

injury is evident.”). “ ‘When prison officials maliciously and sadistically use force 

to cause harm ... contemporary standards of decency always are violated ... 

whether or not significant injury is evident. Otherwise, the Eighth Amendment 

would permit any physical punishment, no matter how diabolic or inhuman, 

inflicting less than some arbitrary quantity of injury.’ ” Wilkins, 559 U.S. at 37 

(quoting Hudson, 503 U.S. at 9).

This is not to say that the absence of serious injury is irrelevant to 

the Eighth Amendment inquiry. The extent of injury suffered by an 

inmate is one factor that may suggest ‘whether the use of force 

could plausibly have been thought necessary in a particular 

situation. The extent of injury may also provide some indication of 

the amount of force applied. As we stated in Hudson, not “every 

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malevolent touch by a prison guard gives rise to a federal cause of 

action.” 503 U.S. at 9, 112 S. Ct. 995. “The Eighth Amendment's 

prohibition of ‘cruel and unusual’ punishments necessarily excludes 

from constitutional recognition de minimis uses of physical force, 

provided that the use of force is not of a sort repugnant to the 

conscience of mankind.” Ibid. (some internal quotation marks 

omitted). An inmate who complains of a “push or shove” that causes 

no discernible injury almost certainly fails to state a valid excessive 

force claim. Ibid. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d 

Cir.1973)).

Injury and force, however, are only imperfectly correlated, and it is 

the latter that ultimately counts. An inmate who is gratuitously 

beaten by guards does not lose his ability to pursue an excessive 

force claim merely because he has the good fortune to escape 

without serious injury.

Id. at 37-38 (some citations and quotations omitted).

“In determining whether force was applied maliciously and sadistically for 

the very purpose of causing harm, courts look to five factors: ‘(1) the extent of 

injury; (2) the need for application of force; (3) the relationship between that 

need and the amount of force used; (4) any efforts made to temper the severity of 

a forceful response; and (5) the extent of the threat to the safety of staff and 

inmates, as reasonably perceived by the responsible officials on the basis of facts 

known to them.’ ” Williams v. Scott, 433 F. App'x 801, 804 (11th Cir. 2011) (per 

curiam) (quoting Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999) (citing 

Whitley v. Albers, 475 U.S. 312, 320–21(1986)) (internal quotation marks 

omitted)).

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Viewing the facts in the light most favorable to Shropshire and applying 

the pertinent factors to those facts, the undersigned finds that Shropshire has 

presented sufficient evidence creating a genuine issue of material fact as to 

whether Johnson’s strike to his foot was applied maliciously and sadistically for 

the very purpose of causing harm. As to the extent of injury, while Shropshire 

has claimed no lasting injury, he has testified that the blow to his foot was 

sufficient to rupture blisters and exacerbate the pain from his already-injured 

foot. Second, no record evidence indicates there was any threat to the safety of 

staff and inmates at the time. 

As for the need for the application of any such force, Johnson posits that 

she might have hit Shropshire’s foot because she “thought that Shropshire was 

malingering and trying to get out of his kitchen duties” and was simply trying to 

“motivate” him to get to work. (Doc. 90 at 10). Johnson, however, concedes that 

“[h]itting someone on the foot (whom you believe is malingering) once with the 

rubber end of a squeegee may not be the best way to motivate inmates to work”

(id.), and the record indicates a genuine issue of material fact as to whether 

there was any need to strike Shropshire’s. Malice could be inferred because 

record evidence indicates that Johnson struck Shropshire on his injured foot 

after overhearing Shropshire and Stonewall discussing his injury, at which time 

Shropshire’s swollen and blistered foot was visible, and after Shropshire had 

repeatedly attempted to be excused from his duties due to his foot. Even if there 

is arguably a need to strike Shropshire’s foot to motivate him to get back to 

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33

work, an issue of fact as to the relationship between this need and the amount of 

force use. It is not difficult to argue that a “motivational tap” shouldn’t be 

forceful enough to rupture blisters.

In sum, genuine issues of material fact remain as to whether Johnson’s 

blow to Shropshire’s foot occurred at all and, if it did, whether it was done 

maliciously and sadistically to cause Shropshire harm. As such, the 

undersigned finds that the Defendants’ motion for summary judgment is due to 

be DENIED as to Shropshire’s claim of excessive force against Johnson.15

V. Conclusion

In accordance with the above-stated reasoning, the undersigned 

Magistrate Judge RECOMMENDS that the Defendants’ second Motion for 

Summary Judgment under Federal Rule of Civil Procedure 56 (Doc. 83) be 

DENIED as to Shropshire’s claim against Defendant Johnson for use of 

excessive force and that it be GRANTED as to his claims against the 

Defendants for deliberate indifference to a serious medical need.16

Additionally, as the undersigned has found that the motion for summary 

 15 Johnson, correctly, does not argue that she is entitled to qualified immunity on 

Shropshire’s “excessive force” claim. See Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th 

Cir. 2002) (“In this Circuit, a defense of qualified immunity is not available in cases alleging 

excessive force in violation of the Eighth Amendment, because the use of force ‘maliciously 

and sadistically to cause harm’ is clearly established to be a violation of the Constitution by 

the Supreme Court decisions in Hudson and Whitley. See Johnson v. Breeden, 280 F.3d 

1308 (11th Cir. 2002). There is simply no room for a qualified immunity defense when the 

plaintiff alleges such a violation. Id. The only question, then, is whether the plaintiff has 

alleged facts sufficient to survive a motion to dismiss or a motion for summary judgment. If 

he has done so, that is the end of the inquiry.”).

16 Thus, should the district judge adopt this recommendation, no claims would remain to be 

tried against Defendant Toney.

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judgment is adequately disposed of on the parties’ briefs and the record 

evidence, the undersigned further RECOMMENDS that the Defendants’ 

motion for oral argument (Doc. 91) 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 

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 16th day of September 2014.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE 

JUDGE

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