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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID L. JOHNSON, AIS 134016, :

Plaintiff, :

vs. : CA 11-0228-CG-C

PENTON ASHWORTH, et al., :

Defendants. 

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for issuance of a report and 

recommendation, pursuant to 28 U.S.C. § 636(b), on the first amended complaint (Doc. 

111), the motion to dismiss filed by the ADOC defendants, Penton Ashworth, James 

Pate and Roger Marsh (Doc. 119), the motion to dismiss filed by defendant Kevin Dunn 

(Doc. 131),1 and plaintiff’s responses in opposition (Docs. 142 & 143). Upon 

 1 Concurrent with the filing of the motion to dismiss, defendant Dunn also filed a 

motion to strike (Doc. 133). In moving to strike paragraphs 28(a-c), 29, 38, and 59(e-f) of 

plaintiff’s amended complaint, Dunn argues that the referenced allegations of plaintiff’s 

amended complaint “are an attempt to insert immaterial, impertinent, or scandalous matters” 

and should, therefore, be stricken pursuant to Rule 12(f) of the Federal Rules of Civil Procedure. 

(Doc. 133, at 1.) Dunn further expounds upon this argument by arguing that plaintiff is trying to 

establish his “proclivity for violence” and that the cited evidence would be inadmissible under 

numerous rules of evidence. (See id. at 2.) 

Rule 12(f)(2) of the Federal Rules of Civil Procedure provides, in relevant part, as 

follows: “The court may strike from a pleading . . . any redundant, immaterial, impertinent, or 

scandalous matter. The court may act . . . on motion made by a party either before responding 

to the pleading or, if a response is not allowed, within 21 days after being served with the 

pleading.” Id. It is clear, however, that since a motion to strike is a “drastic remedy” it should be 

“’resorted to only when required for the purposes of justice . . . [and] should be granted only 

when the pleading to be stricken has no possible relation to the controversy.’” Stephens v. Trust 

for Public Land, 479 F.Supp.2d 1341, 1346 (N.D. Ga. 2007) (quoting Augustus v. Board of Public 

Instruction of Escambia County, Fla., 306 F.2d 862, 868 (5th Cir. 1962)), reconsideration denied by, 

2007 WL 3046510 (N.D. Ga. Oct. 17, 2007). In addition, “motions to strike are rarely granted 

absent a showing of prejudice.” Id. (citation omitted). 

(Continued)

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consideration of the foregoing pleadings, and all other relevant pleadings in the Court’s 

file, the Magistrate Judge recommends that the Court DENY the motions to dismiss in 

their entirety.

FINDINGS OF FACT

On December 31, 2010, David L. Johnson was incarcerated at Holman 

Correctional Facility in Atmore, Alabama under the custody and control of the Alabama 

Department of Corrections (“ADOC”). (Doc. 111, ¶ 5.) At approximately 11:30 a.m., 

defendant Kevin Dunn removed plaintiff from his normal cell block; Dunn informed 

Johnson that because his blood sugar was high he needed to report to the shift office to 

see defendant Penton Ashworth. (Id. at ¶ 14.)2 Upon arriving in the hallway outside the 

shift office, Ashworth informed Johnson that “he was being moved to a one-man 

holding cell on death row[,] . . . [an] 8’ x 10’ [cell] that is used to isolate and punish 

inmates.” (Id. at ¶ 16.) Plaintiff immediately requested that he be allowed “to sign a 

medical refusal form so that he could remain in his normal cell block.” (Id. at ¶ 17.) 

Ashworth informed Johnson that he did not have the right to sign a medical refusal 

 

Rather than making a showing of prejudice that he would sustain by virtue of inclusion 

of the objectionable statements in the court file or harm that will befall him unless those 

allegations are stricken, see Chambers, infra, 535 F.Supp.2d at 1263, Dunn merely lists the reasons 

why such evidence would be inadmissible during an evidentiary hearing or trial of this cause. 

(See Doc. 133.) As this Court has previously indicated, it is improper for a party to attempt to 

extract anticipatory evidentiary rulings from this Court at the Rule 12(b) stage. Chambers v. 

Cooney, 535 F.Supp.2d 1255, 1262 (S.D. Ala. 2008). Moreover, as was the case in Chambers, the 

undersigned “declines to impose the drastic, disfavored remedy of striking the challenged 

allegations pursuant to Rule 12(f)[]” where no evidence of prejudice has been presented. Id. at 

1263. Accordingly, Dunn’s motion to strike (Doc. 133), is due to be DENIED, subject to the 

moving party’s right to challenge the admissibility of such evidence at the appropriate juncture. 

See id.

2 A licensed physician was not on duty at Holman on December 31, 2010. (Id. at ¶ 

15.)

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form and, thereafter, both corrections’ officers “became aggressive and suggested that 

[they] would physically move Plaintiff to the holding cell.” (Id.)

Without warning, provocation, or any physical threats made by 

Plaintiff, Ashworth sprayed Plaintiff in the face with a chemical agent 

called Sabre Red. After being initially sprayed with Sabre Red, Plaintiff 

backed up against a wall in the hallway and found a small wooden stool. 

Plaintiff picked up the stool to shield his face from the Sabre Red. Plaintiff 

did not threaten or attempt to hit Defendants with the wooden stool. 

Ashworth then sprayed Plaintiff a second time with Sabre Red, causing 

Plaintiff to drop the wooden stool.

(Id. at ¶ 18.) Plaintiff avers that defendant Ashworth used the chemical agent Sabre Red 

to harass, provoke and torment him and, further, that this defendant violated several 

ADOC regulations by “repeatedly spraying” him with the chemical agent. (Id. at ¶ 19.) 

Plaintiff was incapacitated after twice being sprayed with Sabre Red and 

thereupon the defendants tackled him and pinned him to the ground in such a manner 

that his chest was facing the ground and his hands were behind his back. (Id. at ¶ 20.) 

Plaintiff offered no resistance and after the defendants handcuffed plaintiff and while 

he was still on the ground, defendant Dunn kicked and punched plaintiff in the face 

causing severe injuries. (Id. at ¶ 21.)3 Johnson initially was transported to North Baldwin 

Infirmary in Bay Minette, Alabama and then to Mobile Infirmary in Mobile, Alabama 

for treatment of his injuries. (Id. at ¶ 23.) Plaintiff sustained severe and permanent 

injuries to his left eye; his vision in that eye has been severely diminished and he needs 

corrective surgery. (Id. at ¶ 24.)

 3 Plaintiff avers that the defendants violated the Department’s “Use of Force” 

regulation number 327 (as well as the Chemical Agents regulation number 312) and, further, 

that the defendants violated his constitutional rights by exceeding the amount of force justified 

under the circumstances, using excessive force, using force to punish him, and using force when 

he was not offering any resistance. (See id. at ¶ 22.)

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The defendants intentionally attempted to cover-up what happened to Johnson 

on December 31, 2010 “by fabricating a story that [his] injuries arose from a brachial 

stun technique and/or from [him] hitting his face on the ground when he was tackled.” 

(Id. at ¶ 25.) In collaborating to conceal the actual events, the defendants falsified 

statements and other documents. (Id.) However, beginning on January 5, 2011, the 

Intelligence and Investigation Division (“I&I”) of the ADOC began investigating the 

assault and ultimately determined that Dunn used excessive force. (Id. at ¶ 26.) As a 

result of the assault and attempted cover-up, Dunn, Mummert, and Bell were either 

fired or forced to resign by the ADOC. (Id. at ¶ 27.)

Johnson has made the following specific allegations against Dunn:

Dunn has a lengthy history of violent behavior, having been in 

numerous fights prior to December 31, 2010, including:

a. Prior to working at Holman Correctional Facility, Dunn 

worked at Fountain Correctional Facility and was involved 

in a fight with an African-American correctional officer. The 

fight was caused as a result of Dunn using racial slurs;

b. Before December 31, 2010, while Dunn was working at 

Holman Correctional Facility, Dunn was involved in a “cell 

extraction” and hit an African-American inmate in the head 

with his fist while the inmate was on the ground. Sergeant 

Penton Ashworth witnessed the incident. Lieutenant 

Michael English warned Dunn to not strike inmates in the 

head.

c. Dunn was further involved in a physical altercation while 

working for the City of Atmore’s police department which 

caused the City of Atmore to force Dunn to resign.

Prior to and while working at Holman Correctional Facility, Dunn 

had a reputation for violent behavior, particular[ly] towards AfricanAmerican inmates, and Defendants knew or should have known of 

Dunn’s propensity to physically harm inmates.

(Id. at ¶¶ 28-29.)

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Based upon the foregoing facts, Johnson asserts six causes of action against the 

defendants in his amended complaint (Doc. 111, at 6-12), as follows:

COUNT I

(EXCESSIVE FORCE)

. . .

31. Defendants, acting under the color of state law, violated Plaintiff’s 

rights to be free from cruel and unusual punishment under the Eighth and 

Fourteenth Amendments by using force maliciously and sadistically to 

cause harm. Defendant Ashworth sprayed Plaintiff twice with Sabre Red 

without warning, provocation, or reason. Defendant Dunn kicked and 

punched Plaintiff in the head, while Plaintiff was handcuffed on the 

ground.

32. As a direct and proximate result of Defendant’s acts and 

omissions, Plaintiff has suffered injury, pain, and emotional distress in 

that his face was bruised and swollen, his skin was treated for excessive 

exposure to Sabre Red, and his left eye suffered subconjunctival 

hemorrhaging, acute iritis, decreased vision and nuclear sclerotic cataract 

change.

33. Defendants knowingly, willfully, and recklessly disregarded 

Plaintiff’s constitutional rights.

WHEREFORE, Plaintiff prays [for] judgment against Defendants 

for compensatory and punitive damages in an amount to be determined 

by the Court, reasonable attorney’s fees pursuant to 42 U.S.C. § 1988, 

costs, and for other and further relief as the Court deems proper.

COUNT II

(FAILURE TO INTERVENE AND DELIBERATE 

INDIFFERENCE)

. . .

35. Defendants Ashworth, Bell, Marsh, Mummert and Pate were 

present for and witnessed the excessive force applied to Plaintiff, yet they 

failed to take steps to protect Plaintiff. Defendants Ashworth, Bell, Marsh, 

Mummert and Pate did nothing to discourage the excessive force, even 

though they had a realistic opportunity to do so.

36. Defendants failed to report the incident in violation of ADOC’s 

regulations.

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37. Defendants had a duty to intervene when Ashworth and Dunn 

began using excessive force. Defendants consciously chose not to 

intervene or take any reasonable steps to protect Plaintiff and, as such, 

they are liable for nonfeasance.

38. By allowing Dunn, who had a known proclivity toward violence, to 

kick and punch Plaintiff while he was restrained and on the ground, 

Defendants Ashworth, Bell, Marsh, Mummert and Pate were deliberately 

indifferent to the resulting substantial risk of physical and emotional 

injury to Plaintiff. This deliberate indifference directly and proximately 

caused violation of Plaintiff’s Eighth and Fourteenth Amendment rights.

39. As a direct and proximate result of Defendants’ acts and omissions, 

Plaintiff has suffered injury, pain, and emotional distress in that his face 

was bruised and swollen, his skin was treated for excessive exposure to 

Sabre Red, and his left eye suffered subconjunctival hemorrhaging, acute 

iritis, decreased vision and nuclear sclerotic cataract change.

WHEREFORE, Plaintiff prays [for] judgment against Defendants 

for compensatory and punitive damages in an amount to be determined 

by the Court, reasonable attorney’s fees pursuant to 42 U.S.C. § 1988, 

costs, and for other and further relief as the Court deems proper.

COUNT III

(ASSAULT AND BATTERY)

. . .

41. Defendant[s] assaulted Plaintiff by intentionally and unlawfully 

kicking and punching him while Plaintiff was restrained on the ground. 

Defendants further sprayed Plaintiff with a chemical agent without 

justification.

42. As a direct and proximate result of Defendants’ acts and omissions, 

Plaintiff has suffered injury, pain, and emotional distress in that his face 

was bruised and swollen, his skin was treated for excessive exposure to 

Sabre Red, and his left eye suffered subconjunctival hemorrhaging, acute 

iritis, decreased vision and nuclear sclerotic cataract change.

WHEREFORE, Plaintiff prays [for] judgment against Defendants 

for compensatory and punitive damages in an amount to be determined 

by the Court, reasonable attorney’s fees pursuant to 42 U.S.C. § 1988, 

costs, and for other and further relief as the Court deems proper.

COUNT IV

(NEGLIGENT FAILURE TO FOLLOW ADOC PROCEDURE)

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. . .

44. Defendants owed Plaintiff a duty to follow the ADOC’s 

regulations, including regulation no. 32[7] (Use of Force) ad no. 312 

(Chemical Agents), as well as training methods and procedures.

45. Defendants were trained and instructed on the proper use of force 

and proper use of chemical agents prior to the incident on December 31, 

2010.

46. Defendants breached their duties by violating the ADOC’s 

regulations and by acting contrary to their training methods and 

procedures.

47. As a direct and proximate result of Defendants’ acts and omissions, 

Plaintiff has suffered injury, pain, and emotional distress in that his face 

was bruised and swollen, his skin was treated for excessive exposure to 

Sabre Red, and his left eye suffered subconjunctival hemorrhaging, acute 

iritis, decreased vision and nuclear sclerotic cataract change.

WHEREFORE, Plaintiff prays [for] judgment against Defendants 

for compensatory and punitive damages in an amount to be determined 

by the Court, reasonable attorney’s fees pursuant to 42 U.S.C. § 1988, 

costs, and for other and further relief as the Court deems proper.

COUNT V

(NEGLIGENT RETENTION AND SUPERVISION)

. . .

49. At all material times, Ashworth was Dunn’s immediate supervisor 

and English was Ashworth’s immediate supervisor.

50. Ashworth and English owed a duty to Plaintiff to properly 

supervise Dunn.

51. Ashworth and English breached these duties by failing to properly 

train and instruct Dunn on the appropriate methods and procedures when 

interacting with inmates.

52. Ashworth and English acted willfully, maliciously, fraudulently, in 

bad faith, or under a mistaken interpretation of the law in failing to 

adequately train, supervise, and report Dunn’s past violent acts to their 

superiors.

53. Although they had knowledge of Dunn’s habit for violent and 

unprovoked attacks on inmates, Ashworth and English willfully and 

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wantonly failed to report or recommend to their superiors that Dunn’s 

employment be terminated.

54. Furthermore, Ashworth and English’s willful and wanton failure to 

supervise, monitor, and report Dunn for past acts of violence, as well as 

their failure to recommend that Dunn[‘s] employment be terminated, 

constituted a failure to discharge their duties pursuant to standard 

operating procedure, rules, and regulations, and constituted a breach of 

the duty owed to the Plaintiff.

55. As a direct and proximate result of Defendants’ acts and omissions, 

Plaintiff has suffered injury, pain, and emotional distress in that his face 

was bruised and swollen, his skin was treated for excessive exposure to 

Sabre Red, and his left eye suffered subconjunctival hemorrhaging, acute 

iritis, decreased vision and nuclear sclerotic cataract change, as well as 

mental pain and distress.

WHEREFORE, Plaintiff prays [for] judgment against Defendants 

Ashworth and English for compensatory and punitive damages in an 

amount to be determined by the Court, reasonable attorney’s fees 

pursuant to 42 U.S.C. § 1988, costs, and for other and further relief as the 

Court deems proper.

COUNT VI

(WILLFUL AND WANTON MISCONDUCT)

. . .

57. Plaintiff alleges that Defendants acted with actual malice toward 

the Plaintiff and with willful or wanton indifference to and with deliberate 

disregard for human life and the rights of the Plaintiff. 

58. At all times material, Defendants had a duty to refrain from 

causing injury to the Plaintiff through willful or wanton misconduct.

59. In breach of their duty to refrain [from] causing injury to the 

Plaintiff through their willful or wanton misconduct, Defendants are 

guilty of one or more of the following willful or wanton acts or omissions 

to act:

(a) willfully and wantonly using force that exceeded 

what was justified under the circumstances, although 

Defendants knew, or should have known, that such 

conduct posed an unreasonable risk of causing 

serious injury to Plaintiff;

(b) willfully and wantonly applying excessive force to 

Plaintiff that was unreasonable and unnecessary, 

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although Defendants knew, or should have known, 

that such conduct posed an unreasonable risk of 

causing serious injury to Plaintiff;

(c) willfully and wantonly continuing physical abuse 

against the Plaintiff while the Plaintiff begged 

Defendants to quit hitting him during the incident, 

although Defendants knew, or should have known, 

that such conduct posed an unreasonable risk of 

causing serious injury to Plaintiff;

(d) willfully and wantonly failing to prevent Dunn from 

kicking and punching Plaintiff, although Defendants 

knew, or should have known, that such conduct 

posed an unreasonable risk of causing serious injury 

to Plaintiff;

(e) willfully and wantonly failing to monitor, supervise, 

and report Dunn’s past acts [of] violence towards 

inmates pursuant to standard procedure, rules and 

regulations, although defendants knew, or should 

have known, that such conduct posed an 

unreasonable risk of causing serious injury to 

Plaintiff; and

(f) willfully and wantonly failing to report or 

recommend to their superiors that Dunn’s 

employment be terminated, although they had 

knowledge of Dunn’s past violent acts, and knew, or 

should have known, that such conduct posed an 

unreasonable risk of causing serious injury to 

Plaintiff.

60. As a direct and proximate result of one or more of Defendants’ 

wrongful acts or omissions to act, Plaintiff suffered severe and permanent 

physical injuries and mental pain and distress.

WHEREFORE, Plaintiff prays [for] judgment against Defendants 

for compensatory and punitive damages in an amount to be determined 

by the Court, reasonable attorney’s fees pursuant to 42 U.S.C. § 1988, 

costs, and for other and further relief as the Court deems proper.

(Doc. 111, at ¶¶ 31-33, 35-39, 41-42, 44-47, 49-55 & 57-60.)

CONCLUSIONS OF LAW

A. Motion to Dismiss Standard. Pursuant to Rule 12(b)(6) of the Federal 

Rules of Civil Procedure, a defendant may move to dismiss a complaint on the basis 

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that the plaintiff has failed to state a claim upon which relief may be granted. See 

Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion questions the legal sufficiency of a 

complaint (or portions of a complaint); therefore, in assessing the merits of a Rule 

12(b)(6) motion, the court must assume that all the factual allegations set forth in the 

complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 

1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). 

Moreover, all factual allegations are to be construed in the light most favorable to the 

plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 

L.Ed.2d 628 (1989).

Rule 8(a)(2) generally sets the benchmark for determining whether a complaint’s 

allegations are sufficient to survive a Rule 12(b)(6) motion. See Ashcroft v. Iqbal, 556 U.S. 

662, 677-678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“Under Federal Rule of Civil 

Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim 

showing that the pleader is entitled to relief.’ As the Court held in Twombly, . . . the 

pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but 

it demands more than an unadorned, the defendant-unlawfully-harmed-me 

accusation.”). Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic 

recitation of the elements of a cause of action will not do.’” Id. at 678, 129 S.Ct. at 1949, 

quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-1965, 167 

L.Ed.2d 929 (2007). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 

devoid of ‘further factual enhancement.’” Id., quoting Twombly, 550 U.S. at 557, 127 S.Ct. 

at 1955.

To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible 

on its face. A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged. The plausibility standard is 

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not akin to a probability requirement, but it asks for more than a sheer 

possibility that a defendant has acted unlawfully. Where a complaint 

pleads facts that are merely consistent with a defendant’s liability, it stops 

short of the line between possibility and plausibility of entitlement to 

relief.

Two working principles underlie our decision in Twombly. First, the 

tenet that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions. Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, 

do not suffice. Rule 8 marks a notable and generous departure from the 

hyper-technical, code-pleading regime of a prior era, but it does not 

unlock the doors of discovery for a plaintiff armed with nothing more 

than conclusions. Second, only a complaint that states a plausible claim for 

relief survives a motion to dismiss. Determining whether a complaint 

states a plausible claim for relief will . . . be a context-specific task that 

requires the reviewing court to draw on its judicial experience and 

common sense. But where the well-pleaded facts do not permit the court 

to infer more than the mere possibility of misconduct, the complaint has 

alleged–but it has not show[n]–that the pleader is entitled to relief.

Id. at 678-679, 129 S.Ct. at 1949-1950 (internal citations and quotation marks omitted); see 

also id. at 680, 129 S.Ct. at 1950-1951 (a plaintiff must nudge his claims “‘across the line 

from conceivable to plausible.’”); see Speaker v. United States Dep’t of Health and Human 

Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1381 (11th Cir. 2010) 

(“[G]iven the pleading standards announced in Twombly and Iqbal, [plaintiff] must do 

more than recite [] statutory elements in conclusory fashion. Rather, his allegations 

must proffer enough factual content to ‘raise a right to relief above the speculative 

level.’”).

B. Capacity. The first ground for the motions to dismiss revolves around 

plaintiff’s failure to specifically set forth in his amended complaint whether he was 

suing the defendants in their individual capacities, in their official capacities, or both. 

(Compare, e.g., Doc. 119, at 1-2 and Doc. 131, at 1 with Doc. 111, at 2-3 (plaintiff lists the 

defendants, noting that at all relevant times each was a correctional officer employed by 

the ADOC at Holman Correctional Facility in Atmore, Alabama and, further, that each 

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was acting within the line and scope of his employment when plaintiff was injured).) 

During the August 22, 2012 hearing before the undersigned (see, e.g., Doc. 137), counsel 

for plaintiff made clear that plaintiff intended, through the amended complaint, to sue 

the defendants solely in their individual capacities and reiterates that position in 

plaintiff’s responses in opposition to the motions to dismiss (compare Doc. 142, at 1 (“As 

an initial matter, Plaintiff seeks to impose liability against the ADOC Defendants in 

their individual capacity only.”) with Doc. 143, at 2 (“Plaintiff has sued Dunn in his 

individual capacity only, and absolute immunity does not apply.”)).

As explained by the Supreme Court in Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 

3099, 87 L.Ed.2d 114 (1985), “[p]ersonal-capacity suits seek to impose personal liability 

upon a government official for actions he takes under color of state law[,]” while 

official-capacity suits “generally represent only another way of pleading an action 

against an entity of which an officer is an agent.” Id. at 165, 105 S.Ct. at 3105 (quotation 

marks and citations omitted).

As long as the government entity receives notice and an opportunity to 

respond, an official-capacity suit is, in all respects other than name, to be 

treated as a suit against the entity. It is not a suit against the official 

personally, for the real party in interest is the entity. Thus, while an award 

of damages against an official in his personal capacity can be executed 

only against the official’s personal assets, a plaintiff seeking to recover on 

a damages judgment in an official-capacity suit must look to the 

government entity itself.

On the merits, to establish personal liability in a § 1983 action, it is 

enough to show that the official, acting under color of state law, caused 

the deprivation of a federal right. More is required in an official-capacity 

action, however, for a governmental entity is liable under § 1983 only 

when the entity itself is a moving force behind the deprivation . . .; thus, in 

an official-capacity suit the entity’s policy or custom must have played a 

part in the violation of federal law. When it comes to defenses to liability, 

an official in a personal-capacity action may, depending on his position, 

be able to assert personal immunity defenses, such as objectively 

reasonable reliance on existing law. In an official-capacity action, these 

defenses are unavailable. The only immunities that can be claimed in an 

official-capacity action are forms of sovereign immunity that the entity, 

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qua entity, may possess, such as the Eleventh Amendment. While not 

exhaustive, this list illustrates the basic distinction between personal- and 

official-capacity actions.

Id. at 166-167, 105 S.Ct. at 3105-3106 (emphasis in original; internal quotation marks and 

citations omitted). 

Because of this distinction, “’[i]t is obviously preferable for the plaintiff to be 

specific in the first instance’” whether he is suing defendants in their individual or 

official capacities, or both, in order to avoid any ambiguity. Adams v. Franklin, 111 

F.Supp.2d 1255, 1261-1262 (M.D. Ala. 2000), quoting Hafer v. Melo, 502 U.S. 21, 24 n.*, 

112 S.Ct. 358, 116 L.Ed.2d 301 (1991). However, where, as here, “a complaint does not 

identify ‘in which capacity the defendants are sued, the course of proceedings typically 

indicates the nature of the liability sought to be imposed.’” Id. at 1262, quoting Jackson v. 

Georgia Dept. of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994).

Obviously, the proceedings in this case have indicated the liability sought to be 

imposed, plaintiff’s counsel specifically making clear during the hearing on August 22, 

2012 and in his responses to the motions to dismiss that the defendants were being sued 

in their individual capacities only. To erase all ambiguity, however, plaintiff is extended 

leave of this Court to amend his complaint no later than September 24, 2012 to reflect 

that all of the defendants are sued solely in their individual capacities,

4 inasmuch as 

justice so requires since the defendants will not prejudiced by such formulaic changes. 

Compare Fed.R.Civ.P. 15(a)(2) (“[A] party may amend its pleading only with the 

opposing party’s written consent or the court’s leave. The court should freely give leave 

 4 In addition, plaintiff should also correct defendant English’s name to reflect his 

true first name (James as opposed to Michael). No other changes are authorized or should be 

made in the second amended complaint. The defendants are expected to answer the second 

amended complaint not later than October 15, 2012.

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when justice so requires.”) with Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th 

Cir.) (“’[U]nless there is a substantial reason to deny leave to amend, the discretion of 

the district court is not broad enough to permit denial.’”), cert. dismissed, 528 U.S. 948, 

120 S.Ct. 370, 145 L.Ed.2d 287 (1999); Moore v. Baker, 989 F.2d 1129, 1131 (11th Cir. 1993) 

(“While a decision whether to grant leave to amend is clearly within the discretion of 

the district court, a justifying reason must be apparent for denial of a motion to 

amend.”); and Larney v. Croft, 2006 WL 3833887, *4 (M.D. Ga. Dec. 29, 2006) (“[T]he 

Court directs Plaintiffs, when they recast their Complaint as they are ordered to do in 

the conclusion of this Order, to specify the capacity in which Gaskins is sued.”). 

In light of such allowance, it is clear that to the extent the defendants claim their 

motions to dismiss should be granted based on the defenses of sovereign immunity and 

Eleventh Circuit immunity (see Doc. 119, at 1-2 & 7-8; Doc. 131, at 1-6), the motions to 

dismiss are due to be DENIED since those defenses to liability are not available in 

personal/individual-capacity actions, like the present one. See Kentucky v. Graham, 473 

U.S. at 166-167, 105 S.Ct. at 3105-3106 (“When it comes to defenses to liability, an official 

in a personal-capacity action may, depending on his position, be able to assert personal 

immunity defenses, such as objectively reasonable reliance on existing law. . . . The only 

immunities that can be claimed in an official-capacity action are forms of sovereign 

immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.”). 

C. The Defense of Qualified Immunity as it Relates to Plaintiff’s Claims of 

Excessive Force and Failure to Intervene. The ADOC defendants, in particular, 

contend that they are entitled to qualified immunity, it being undisputed that they were 

acting within the line and scope of their authority and it being their contention that they 

did not violate any clearly established rights of the plaintiff. (Doc. 119, at 2.) “This is 

especially true in light of the Defendant Ashworth’s argument and supporting case law 

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concerning the accepted use of pepper spray, and for all of the ADOC Defendants in 

light of the argument and case law concerning prior knowledge and reasonable 

opportunity to intervene.” (Id.) 

It is certainly clear that some thirty years ago in Harlow v. Fitzgerald, 457 U.S. 800, 

102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials 

performing discretionary functions generally are shielded from liability for civil 

damages insofar as their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Id. at 818, 102 

S.Ct. at 2738. Moreover, some three years later the Supreme Court reiterated in Mitchell 

v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that “[u]nless the plaintiff’s 

allegations state a claim of violation of clearly established law, a defendant pleading 

qualified immunity is entitled to dismissal before the commencement of discovery.” Id. 

at 526, 105 S.Ct. at 2815, citing Harlow, supra, 457 U.S. at 818, 102 S.Ct. at 2738. Because 

the undersigned finds that plaintiff’s amended complaint states claims of violations of 

clearly established law, none of the moving parties are entitled to dismissal of Johnson’s 

constitutional claims of excessive force and failure to intervene. 

Excessive Force. In his motion to dismiss, defendant Dunn adopted and 

incorporated the ADOC defendants’ motion to dismiss (Doc. 131, at ¶ 1); however,

because those defendants nowhere make the argument that plaintiff’s allegations 

regarding Dunn’s actions in kicking and hitting him in the face does not state a claim of 

excessive force in violation of clearly established law (see Doc. 119, at 3-6), it was 

unjustified for Dunn to contend that “Plaintiff has failed to state a claim upon which 

relief may be granted.” (Doc. 131, at ¶ 2.) The undersigned offers no more ink to this 

statement beyond simply noting that plaintiff clearly has stated a claim against Dunn 

for excessive force in violation of the Eighth and Fourteenth Amendments to the United 

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16

States Constitution. To the extent Dunn’s motion to dismiss is truly directed to 

plaintiff’s excessive force claim (see Doc. 131), it is DENIED.

Turning to the excessive force claim asserted against defendant Penton 

Ashworth, the ADOC defendants contend that plaintiff has not stated a prima facie case 

of excessive force since “[t]he use of pepper spray is not excessive force per se.” (Doc. 

119, at 3.)5 It is, of course, clear that “[u]nder the Eighth Amendment, force is deemed 

legitimate in a custodial setting as long as it is applied in a good faith effort to maintain 

or restore discipline [and not] maliciously and sadistically to cause harm.” Skrtich v. 

Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (internal quotation marks and citations 

omitted).

To determine if an application of force was applied maliciously and 

sadistically to cause harm, a variety of factors are considered including: 

the need for the application of force, the relationship between that need 

and the amount of force used, the threat reasonably perceived by the 

responsible officials, and any efforts made to temper the severity of a 

forceful response. From consideration of such factors, inferences may be 

drawn as to whether the use of force could plausibly have been thought 

necessary, or instead evinced such wantonness with respect to the 

 5 Although the ADOC defendants are correct that the Eleventh Circuit in Vinyard 

v. Wilson, 311 F.3d 1340 (2002), in the Fourth Amendment context of an arrest, stated that 

“[c]ourts have consistently concluded that using pepper spray is reasonable . . . where the 

plaintiff was either resisting arrest or refusing police requests, such as requests to enter a patrol 

car or go to a hospital[,]” the defendants neglect to point out that the Eleventh Circuit has also 

stated that “[c]ourts have consistently concluded that using pepper spray is excessive force in 

cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting 

violently, and there is no threat to the officers or anyone else.” Id. at 1348. Thus, while the line of 

cases the ADOC defendants cite to in their motion to dismiss, arising in the Fourth Amendment 

context of an arrest, are somewhat helpful, they ultimately do not answer the question of 

whether plaintiff has alleged an Eighth Amendment excessive force constitutional violation, see 

311 F.3d at 1349 n.15 (“[W]e do not discuss the use of pepper spray in a prison setting because 

the Eighth Amendment controls such cases[.] . . . [T]he Eighth Amendment standard necessarily 

involves a more culpable and subjective mental state than that required for excessive force 

claims arising under the Fourth Amendment’s unreasonable seizures restriction.”). As 

explained infra, just because the Eighth Amendment requires a more culpable and subjective 

mental state does not mean that it cannot be met (pleading wise) in the context of the use of 

pepper spray.

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unjustified infliction of harm as is tantamount to a knowing willingness 

that it occur.

Id. at 1300-1301 (internal quotations marks and citations omitted). 

Taking plaintiff’s allegations and considering them in the light most favorable to 

Johnson, the undersigned recommends that the Court find that those allegations make 

out a violation of his Eighth Amendment rights at the hands of Ashworth.6 In sum, 

those allegations (see Doc. 111, at ¶¶ 17-20 & 31-32) establish that there was no need for 

the application of force because Johnson did not refuse to obey a direct order to move to 

a one-man holding cell but, instead, simply requested the ability to sign a medical 

refusal form so he could remain in his normal cell block. Certainly, there is nothing to 

suggest that Ashworth perceived any threat from plaintiff at this point in time since the 

amended complaint alleges that Johnson made no physical threats (Doc. 111, at ¶ 18). 

Instead of simply countering Johnson’s request with a clear and unequivocal direct 

order to move to a one-man cell because his blood sugar was high, Ashworth sprayed 

plaintiff with the chemical agent Sabre Red and, after plaintiff backed up against a wall 

in the hall and picked up a wooden stool to shield his face,7 Ashworth again sprayed 

the plaintiff with the chemical agent causing him to drop the stool. Finally, as plaintiff 

makes clear, the “[d]efendants” used “force maliciously and sadistically to cause harm. 

Defendant Ashworth sprayed Plaintiff twice with Sabre Red without warning, 

provocation, or reason.” (Doc. 111, at § 31.) The foregoing allegations lead the 

undersigned to conclude at this stage in the proceedings, as the Eleventh Circuit did in 

 6 The undersigned does not mean to make any suggestion that the decision 

reached herein is the same decision that will be reached, for example, following an evidentiary 

hearing.

7 Plaintiff specifically avers that plaintiff did not threaten or attempt to hit the 

defendants with the wooden stool. (Doc. 111, at ¶ 18.) 

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Skrtich, that “[i]n the absence of any evidence that any force, much less the force alleged 

here, was necessary to maintain order or restore discipline, it is clear that [plaintiff]’s 

Eighth Amendment rights were violated.” 280 F.3d at 1302. 

“[B]ecause 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[,] . . . [t]here is simply no room for a qualified immunity defense 

when the plaintiff alleges such a violation.” Id. at 1301 (internal citation omitted). Thus, 

defendant Ashworth’s motion to dismiss plaintiff’s excessive force claim is due to be 

DENIED.

Failure to Intervene. The ADOC defendants contend that plaintiff cannot 

“make” a prima facie case for failure to intervene and deliberate indifference against 

them. (Doc. 119, at 5.) The undersigned highlights the word make because at the motion 

to dismiss stage, there is no requirement for plaintiff to prove his claim; instead, he need 

only properly allege a claim against the defendants for failure to intervene. As is 

reflected herein, the undersigned is of the opinion that plaintiff has properly stated a 

claim against the ADOC defendants for failure to intervene.

There is no question but that in the Eighth Amendment excessive force context, 

“an officer who is present at the scene and who fails to take reasonable steps to protect 

the victim of another officer’s use of excessive force can be held personally liable for his 

nonfeasance.” Skrtich, supra, 280 F.2d at 1301 (citations omitted); see Hadley v. Gutierrez, 

526 F.3d 1324, 1330 (11th Cir. 2008) (same holding in excessive force case arising out of 

an arrest). “To be held liable for his nonfeasance, an officer (1) must have observed or 

had reason to know that excessive force would or was being used, and (2) must have 

had both the opportunity and the means to prevent harm from occurring.” Campbell v. 

Harvill, 2012 WL 928607, *5 (M.D. Ga. Feb. 15, 2012) (citations omitted), report and 

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recommendation adopted by, 2012 WL 929614 (M.D. Ga. Mar. 19, 2012). In the amended 

complaint, plaintiff alleges that defendants Ashworth, Bell, Marsh, Mummert and Pate 

were present for and witnessed the excessive force applied to him (by Ashworth and 

Dunn) but consciously took no steps to protect plaintiff or do anything to discourage 

the excessive force though they had realistic opportunities to take 

protective/intervening action. (Doc. 111, at ¶¶ 35-38.) In addition, as specifically relates 

to Dunn’s assault, plaintiff alleges that Dunn kicked and punched him in the face and 

that he “begged Defendant[ Dunn] to quit hitting him during the incident but the 

physical abuse continued. Defendants had the opportunity to prevent Dunn from 

kicking and punching Plaintiff but failed to do so.” (Id. at ¶ 21.)

ADOC defendants Marsh and Pate argue that since plaintiff cannot show 

excessive force was used by Ashworth, they cannot be held liable for failing to 

intervene. (Doc. 119, at 5.) However, since the undersigned has already concluded that 

plaintiff has stated a viable excessive force claim against Ashworth, this argument 

obviously FAILS.

8

The undersigned appreciates the ADOC defendants to make the following 

arguments regarding the Dunn assault: (1) plaintiff “has not, and can not, prove that the 

ADOC Defendants actually had an opportunity to intervene[,]” based upon “the 

alleged kick by Dunn[;]” (2) plaintiff “has not pled that the ADOC Defendants were 

subjectively aware that [] serious injury might occur[;]” (3) plaintiff “has failed to plead 

that the ADOC Defendants knew, or even should have known, that any excessive force 

 8 The undersigned would note agreement with plaintiff, in particular, that the 

defendants’ argument that since “the use of pepper spray is reasonable per se, Defendants 

Marsh and Pate could not have had knowledge of substantial harm to the Plaintiff[,]” (Doc. 119, 

at 5) is false because it is based on the false premise that the use of pepper spray is “reasonable 

per se.” (Doc. 142, at 7.)

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by Dunn was going to occur prior to it actually occurring” and “therefore, he has failed 

to sufficiently plead that the ADOC Defendants were subjectively aware of any facts 

that posed a substantial risk of harm to the [p]laintiff[;]” (4) plaintiff has “failed to allege 

that any actions taken by the ADOC defendants were unreasonable[;]” and (5) plaintiff 

has failed to plead “how each ADOC [d]efendant was in a position to intervene, and 

how each ADOC [d]efendant failed to do so.” (Doc. 119, at 5-6.) 

The undersigned takes this opportunity to address directly only the first 

argument made by the ADOC defendants since the basis of same is a perversion of the 

allegations of the complaint and ignores that in the 12(b) context this Court is not 

concerned with whether a plaintiff can prove his claim, only whether he has stated a 

claim. The ADOC defendants reference only an “alleged kick” by Dunn, thereby 

completely turning a blind eye not only to plaintiff’s allegations which support the 

inference that he was kicked and punched numerous times in the face by Dunn but, as 

well, his allegations that he begged Dunn to stop the assault while the other defendants 

stood around and watched the assault unfold before their eyes. (See Doc. 111, at ¶¶ 21 & 

38.)9 Otherwise, the undersigned simply notes that the ADOC defendants’ motions to 

dismiss this constitutional claim should be DENIED on the basis that plaintiff’s 

complaint allegations indicate that defendants Ashworth, Bell, Marsh, Mummert and 

 9 The allegations made by plaintiff in his amended complaint simply “beg” the 

questions of whether the ADOC defendants had the opportunity and were in positions to 

intervene and whether they knew or should have know of facts posing a substantial risk of 

harm to plaintiff and that serious injury might occur.

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Pate “observed the force being used against Plaintiff and had an opportunity to prevent 

the harm from occurring.” Campbell, supra, at *5.10

D. Plaintiff’s State Law Claims. In counts III through IV of his amended 

complaint, plaintiff has asserted various state-law claims against the defendants. (See 

Doc. 111, at 8-12.) The ADOC defendants, and apparently defendant Dunn as well (see 

Doc. 131, at ¶1 (“Defendant Dunn adopts and incorporates by reference the Motion to 

Dismiss [] filed by co-defendants.”)), make the argument that all state-law claims 

should be dismissed since their actions in this case “are within the protection afforded 

by State-agent immunity.” (Doc. 119, at 8.) 

Alabama law provides that “[a] State agent shall be immune from civil liability in 

his [] personal capacity when the conduct made the basis of the claim against the agent 

is based upon the agent’s . . . exercising his [] judgment in the administration of a 

department or agency of government, including, but not limited to, . . . hiring, firing, 

transferring, or supervising personnel; or [] discharging duties imposed on a 

department or agency by statute, rule, or regulation, insofar as the statute, rule, or 

regulation prescribes the manner for performing the duties and the State agent 

performs the duties in that manner[.]” Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000)

(emphasis in original). Moreover, it is clear under Alabama law that “a State agent shall 

not be immune from civil liability in his [] personal capacity [] when the Constitution or 

laws of the United States, or the Constitution of this State, or laws, rules, or regulations 

of this State enacted or promulgated for the purpose of regulating the activities of a 

governmental agency require otherwise; or [] when the State agent acts willfully, 

 10 Qualified immunity is unavailable to these defendants on the basis of this claim.

Id. (“[I]t is established in the Eleventh Circuit that [an] ‘officer has a duty to intervene when 

another officer uses excessive force.’”).

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maliciously, fraudulently, in bad faith, beyond his [] authority, or under a mistaken 

interpretation of the law.” Id. (emphasis in original). What the defendants neglect to 

point out, however, is that time and again the Alabama Supreme Court has stated that 

“a motion to dismiss is typically not the appropriate vehicle by which to assert . . . Stateagent immunity and that normally the determination as to the existence of such a 

defense should be reserved until the summary-judgment stage, following appropriate 

discovery.” Ex parte Alabama Dep’t of Mental Health and Mental Retardation, 837 So.2d 808, 

813-814 (Ala. 2002); see also Ex parte Bitel, 45 So.3d 1252, 1255 (Ala. 2010) (same). In other 

words, “’[i]t is the rare case involving the defense of [State-agent] immunity that would 

be properly disposed of by a dismissal pursuant to Rule 12(b)(6)[.]’” Ex parte Butts, 775 

So.2d 173, 177 (Ala. 2000) (citation omitted); see also Ex parte Sawyer, 984 So.2d 1100, 1109 

(Ala. 2007) (“’[I]t is a rare case’ where a claim of State-agent immunity could be 

disposed of without resort to ‘matters outside the pleadings,’ i.e., based on a base 

assertion of immunity.”). 

The undersigned is of the opinion that this is not one of those rare cases where 

plaintiff’s state-law claims should be decided on motion to dismiss and, therefore, it is 

recommended that the Court DENY the moving parties’ motions to dismiss all statelaw claims. By way of example, the undersigned finds incongruous the ADOC 

defendants’ argument that plaintiff’s assault and battery claim fails to “plead that any 

actions of any ADOC Defendant were willful, malicious, in bad faith, or beyond their 

authority[]” (Doc. 119, at 9), given that the amended complaint is replete with 

allegations that the defendants acted beyond their authority by violating ADOC 

regulations 327 (Use of Force) and 312 (Chemical Agents) (Doc. 111, at ¶¶ 19 & 22) and 

that the use of force was malicious and sadistic, in addition to being beyond the 

defendants’ authority (compare id. at ¶ 31 with id. at 41 (“Defendant [Dunn] assaulted 

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23

Plaintiff by intentionally and unlawfully kicking and punching him while Plaintiff was 

restrained on the ground. Defendant[ Ashworth] further sprayed Plaintiff with a 

chemical agent without justification.”)).11 Thus, this Court is in the same position, as 

was the Alabama Supreme Court in Ex parte Bitel, of being unable at this stage of the 

proceedings to find that there is no possibility that plaintiff will prevail on his state-law 

claims, see 45 So.2d at 1258 (“[I]t is not for this court to determine, based on the 

complaint, whether the plaintiff will ultimately prevail, but only if he may possibly 

prevail. It is conceivable that the families could prove facts that would show that one or 

 11 The moving defendants’ contention that there is no cause of action in Alabama 

for negligent failure to follow ADOC procedures (Doc. 119, at 9; Doc. 131, at ¶ 20), without any 

citation whatsoever to case law in support thereof (see id.), is also disconcerting. A closer 

inspection of plaintiff’s amended complaint indicates that Johnson is claiming that the 

defendants owed him the duty to follow all ADOC regulations—including the Use of Force and 

Chemical Agents regulations—and that they breached their duty by violating those regulations 

“and by acting contrary to their training methods and procedures.” (Doc. 111, at ¶¶44-46.) And 

a closer inspection of Alabama law indicates that plaintiff may be able to maintain an action 

against defendants for negligently failing to discharge their duties pursuant to detailed 

regulations, since it is clear that supervisors can be sued for negligence in failing to discharge 

duties pursuant to detailed rules or regulations. Compare Ex parte Bitel, supra, 45 So.2d at 1256, 

1258 & 1259 (in denying petition for writ of mandamus, which sought the dismissal of claims 

against supervisors based on State-agent immunity, including negligence claim, the Supreme 

Court noted that it could not “rule out at this stage whether the supervisors may have acted 

beyond their authority in failing to discharge duties pursuant to detailed rules or regulations.”) 

with Ex parte Alabama Dep’t of Mental Health and Mental Retardation, 837 So.2d at 814 & 814-815 

(“In Ex parte Butts, this Court addressed the appropriateness of the dismissal of claims alleging 

negligence and wantonness against Jimmy Butts, who was then the Commissioner of the 

Alabama Department of Transportation. Commissioner Butts, like Sawyer, was the 

administrative head of a State agency, a cabinet-level position. He was sued in his official and 

individual capacities. The plaintiff in that case, which involved a bridge collapse in which two 

people were killed, made claims against Commissioner Butts alleging negligence or wantonness 

for failure to halt the demolition; and negligence or wantonness relating to training and 

supervising the personnel assigned to the bridge project. Those claims are similar to those 

Percer makes against Sawyer in her individual capacity. . . . The claims against Sawyer that we 

have determined are made against her in her individual capacity are fact intensive. Sawyer’s 

Rule 12(b) motion to dismiss is premature with regard to these claims. . . . Sawyer [] has failed 

to demonstrate, at this stage of this case, a clear legal right to a dismissal of the claims made 

against her in her individual capacity.”). At the very least, it is improper at this stage of the 

proceedings for the undersigned to determine that there is no cause of action in Alabama for 

negligent failure to follow ADOC regulations/procedures where the moving parties have not 

cited any case law or authority supporting such proposition.

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more of the employees failed to discharge duties pursuant to a checklist or acted 

willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a 

mistaken interpretation of the law. If so, the families may possibly prevail on their 

claims. Therefore, the trial court properly denied the employees’ motion to dismiss the 

claims stated against them in their individual capacities.” (internal quotation marks 

omitted)).12 Accordingly, it is recommended that this Court find that the moving 

parties’ have failed to demonstrate, at this stage of the proceedings, a clear legal right to 

the dismissal of the state-law claims asserted against them in their individual capacities 

and DENY the motions to dismiss these claims.

E. Costs and Attorney’s Fees. Without citing to any case law, or other 

binding authority, defendant Dunn argues, in a conclusory manner, that “all claims for 

an award of costs and attorney’s fees” against him should be dismissed since counsel 

was appointed to represent plaintiff and this Court’s Standing Order No. 16 provides 

for “reimbursement [of] counsel’s out-of-pocket expenses, compensation, witness fees, 

etc. in this matter.” (Doc. 131, at ¶ 21.) Defendant Dunn’s request in this regard is not 

well taken and is due to be DENIED. Compare SD ALA LR 67.4(a) (“A Federal Practice 

Fund shall be maintained by the clerk of court to compensate appointed counsel in civil 

rights actions for those expenses authorized by prior order of the judge to whom the 

case is assigned, and reasonably incurred. Compensation from this fund is not 

authorized for attorney’s fees for in-court or out-of-court time or for expenses for which 

 12 As for the ADOC defendants’ concern over whether all defendants are “covered” 

by all counts of the amended complaint (see Doc. 119, at 9 (“[T]o the extent that the Plaintiff 

alleges Assault and Battery against Defendants Pate or Marsh, this claim is due to be 

dismissed.”)), such housekeeping matters can be taken care of later in the proceedings. Indeed, 

the parties can (and are encouraged to) discuss such matters and inform the undersigned in 

later pleadings (or at the evidentiary hearing) which defendants are being pursued with respect 

to each count asserted in the amended complaint.

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any other source of payment exists.” (emphasis supplied)) with 42 U.S.C. § 1988(b) (“In 

any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, 

and 1986 of this title . . ., the court, in its discretion, may allow the prevailing party, 

other than the United States, a reasonable attorney’s fee as part of the costs[.]” 

(emphasis supplied)); see Horton v. Achievement Services for Northeast Kansas, Inc., 170 

F.R.D. 22, 24 (D. Kan. 1996) (recognizing that the purpose of the local rule permitting 

reimbursement from “the Bar Registration Fund,” a fund similar in all respects to this 

Court’s fund, “was not to provide an additional source for recovery of expenses in cases 

in which the plaintiff was successful,” such as where a plaintiff is “a prevailing party 

for the purposes of taxation of costs under Fed.R.Civ.P. 54(d) and reimbursement of 

attorney fees under 42 U.S.C. § 1988[.]” (emphasis supplied)). This Court appointed 

William G. Chason, Esquire, as counsel for plaintiff in this action brought, at least 

partially, pursuant to 42 U.S.C. § 1983, and should plaintiff be the prevailing party in 

this action, he will be entitled to an award of reasonable attorney’s fees under 42 U.S.C. 

§ 1988(b) and taxation of costs under Fed.R.Civ.P. 54(d).13

CONCLUSION

The defendants’ motions to dismiss plaintiff’s amended complaint (Docs. 119 & 

131) are due to be DENIED IN THEIR ENTIRETY, it being clear that the plaintiff 

 13 The final matter the undersigned discusses is plaintiff’s request that he be 

awarded reasonable attorney’s fees in responding to the defendants’ motions (Doc. 143, at 3-4).

While not unsympathetic to the arguments of plaintiff’s counsel, the undersigned is unable to 

recommend the granting of such fees since the amended complaint invited, at the very least, the 

motions to dismiss by not making clear the “capacity” in which the named defendants were 

being sued. The undersigned, however, does place the defendants on notice that should they 

intend to filed motions for summary judgment, those motions should be specifically tailored to 

only those claims about which there are no material factual disputes; to the extent material 

factual disputes exist the defendants should await an evidentiary hearing or trial for 

appropriate disposition of all such claims. 

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means to sue the defendants solely in their individual capacities and the defendants 

having failed to establish their entitlement to the dismissal of any of the plaintiff’s 

claims. In regard to capacity, however, plaintiff is extended leave of court to amend his 

complaint no later than September 24, 2012 to reflect that all defendants are sued solely 

in their individual capacities, as well as to correct defendant English’s name to reflect 

this defendant’s true first name. The defendants are expected to answer the second 

amended complaint not later than October 4, 2012. 

Defendant Dunn’s motion to strike (Doc. 133) is due to be DENIED as is 

plaintiff’s request for an award of attorney’s fees incurred in responding to the 

defendants’ motions (Doc. 143, at 3-4).

DONE this the 14th day of September, 2012.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file specific written objections with 

the Clerk of this court. Failure to do so will bar a de novo determination by the district judge of 

anything in the recommendation and will bar an attack, on appeal, of the factual findings of the 

Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); 

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for 

challenging the findings and recommendations of the Magistrate Judge is set out in more detail 

in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a 

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing 

a ‘Statement of Objection to Magistrate Judge’s Recommendation’ within ten 

days14 after being served with a copy of the recommendation, unless a different 

time is established by order. The statement of objection shall specify those 

portions of the recommendation to which objection is made and the basis for the 

objection. The objecting party shall submit to the district judge, at the time of 

filing the objection, a brief setting forth the party’s arguments that the magistrate 

judge’s recommendation should be reviewed de novo and a different disposition 

made. It is insufficient to submit only a copy of the original brief submitted to 

the magistrate judge, although a copy of the original brief may be submitted or 

referred to and incorporated into the brief in support of the objection. Failure to 

submit a brief in support of the objection may be deemed an abandonment of the 

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only 

the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. § 1915 and 

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case 

are adequate for purposes of review. Any party planning to object to this recommendation, but 

unable to pay the fee for a transcript, is advised that a judicial determination that transcription 

is necessary is required before the United States will pay the cost of the transcript.

 14 Effective December 1, 2009, the time for filing written objections was extended to 

“14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 

72(b)(2). 

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