IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

DONNIE SHROPSHIRE,

Plaintiff

v.

DEBORAH TONEY and 

CHANDRA JOHNSON,

Defendants,

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO.

10-00470-CB-N

ORDER

This	matter	is	before	the	Court	on	the	Magistrate	Judge’s	Report	and	

Recommendation (R	&	R)	(Doc.	92),	Plaintiff’s	objections	thereto	(Doc.	93)	and	

Defendants’	reply	(Doc.	95).		After	due	consideration	of	all	issues,	the	Court	agrees	

with	the	Magistrate	Judge’s	conclusion that	the	Defendants	are	entitled	to	qualified	

immunity	on	Plaintiff’s	claim	that	Defendants	were	deliberately	indifferent	to	

Plaintiff’s	serious	medical	needs.

Background1

Plaintiff	Donnie	Shropshire,	an	inmate	at	the	Atmore	Work	Release	Center,	

an	Alabama	Department	of	Corrections	(ADOC)	facility,	was	injured	after	another	

inmate	accidentally	splashed	mop	water	on	his	right	foot.		At	the	time,	Shropshire

did	not	know	of	any	particular	problem,	other	than	his	foot	was	drenched.		He	asked	

																																																							 1 The	following	is	a	synopsis	of	the	facts	and	procedural	background	of	this	

case,	which	are	set	out	more	fully	in	the	Report	and	Recommendation.

2 As	detailed	in	the	Report	and	Recommendation	(Doc.	32	at	2-4),	this	litigation	has	

a	lengthy	history.		The	claims	set	forth	above	are	the	sole	remaining	claims.

3 There	is	a	second	“obvious	clarity”	category,	a	very	narrow	exception,	in	

which	“’the	words	of	the	pertinent	federal	statute	or	federal	constitutional	provision	

in	some	cases	will	be	specific	enough	to	establish	clearly	the	law	applicable	to	

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Sergeant Chandra Johnson,	whom	he	was	assisting at	the	time, for	permission	to	

change	his	shoe.		Johnson	denied	the	request	because	she	needed	Shropshire’s	help.				

Shropshire	took	off	his	sock	and	put	his	wet	shoe	back	on.		Later	that	day,	he	told	

Johnson	his	foot	was	burning	and	felt	irritated.		That afternoon	Shropshire	took	a	

shower	and	saw	that	his	right	foot	was	starting	to	turn	red.		The	foot	was	also	itchy

and	burning	and	later	began	to	swell.		

The	next	morning	Shropshire	met	Warden	Deborah	Toney as	she	arrived	for	

work.		He	told	her	about	his	foot	getting	wet,	and	showed	her	his	injured	foot.		At	

this	point,	his	foot	was	sweating	and	swollen	and	was	“getting	ready”	to	develop	a	

blister.		Shropshire	told	Toney	he	was	in	pain.		Toney	said	there	was	nothing	at	the	

facility	that	would	cause	that	and	went	about	her	business.		Shropshire	may	or	may	

not	have	explicitly	requested	medical	attention	from	Toney.		Shortly	thereafter,	

Shropshire	filled	out	a	medical	request	form.

Inmates	request	medical	care	by	filling	out	a	medical	care	request	slip	and	

placing	them	in	a	box.		Nurses	visit	Atmore	Work	Release	daily	and	review	the	

medical	request	slips.		ADOC	staff	has	no	role	in	receiving	or	assessing	these	

requests.		

One	day	later	(two	days	after	the	incident),	Shropshire	was called	to	the	

kitchen	to	do	some	cleaning.		When	he	arrived,	Shropshire	told	the	steward,	Kathy	

Stonewall,	that	he	could	not	do	cleaning	duties	because	of	his	foot.		Shropshire	told	

her	what	had	happened.		According	to	Stonewall,	the	foot	looked	“awful”,	“nasty”,	

had	blisters	that	had	popped,	and	was	“swollen”	and	“puss[ie]”.		Shropshire	was	

having	difficulty	walking	and	was	wearing	shower	slides.		Johnson	was	standing	

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nearby	and	appeared	to	be	listening.		Stonewall		told	Shropshire	to	go	lie	down.		

Johnson	grabbed	a	squeegee	and	hit	Johnson’s	swollen	foot.		Shropshire	said	nothing	

to	Johnson	at	any	time	during	this	encounter.		

The	next	day	(three	days	after	the	incident)	Johnson	submitted	another	

medical	request	form	stating	that	his	foot	was	numb,	swollen,	and	in	pain.		That	

afternoon,	blood	and	puss	were	running	through	his sock.		Another	inmate	took	him	

to	the	shift	office	in	a	wheelchair.		Johnson,	who	was	in	the	office,	directed	another	

officer	to	take	Shropshire	to	another	facility	for	medical	attention.

According	to	the	doctor	who	treated	Shropshire,	his	injury	was	consistent	

with	a	chemical	burn.		In	addition,	Shropshire	had	developed	a	staph	infection	in	his	

foot.		Both	injuries	were	serious,	could	cause	further	damage	if	not	treated	and,	in	

the	case	of	the	staph	infection,	could	result	in	death	or	loss	of	the	foot.		

Shropshire	asserts	claims	against	Johnson	and	Toney	under	42	U.S.C.	§	1983	

for	violation	of	her	constitutional	rights.2		Specifically,	Shropshire	claims	that	

Defendants’	refusal	to	provide	medical	treatment	for	his	foot	amounted	to	

deliberate	indifference	to	a	serious	medical	need.	In	addition,	Shropshire	assets	that	

Johnson	used	unconstitutionally	excessive	force	by	hitting	his	injured	foot.		

Defendants	filed	a	motion	for	summary	judgment	on	all	claims.

The	R	& R and	Plaintiff’s	Objections

The	Magistrate	Judge	has	recommended	that	summary	judgment	be:	(1)	

granted	in	favor	of	both	Defendants	on	the	deliberate	indifference	claim but	(2)	

denied	as	to	the	excessive	force	claim	against	Defendant	Johnson.		Shropshire’s	

																																																							 2 As	detailed	in	the	Report	and	Recommendation	(Doc.	32	at	2-4),	this	litigation	has	

a	lengthy	history.		The	claims	set	forth	above	are	the	sole	remaining	claims.

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objection	is	directed	at	the	former.		At	issue	is	the	Magistrate	Judge’s	conclusion	that	

the	Defendants	are	entitled	to	qualified	immunity	on	the	deliberate	indifference	

claim.

Discussion

The Report	and	Recommendation	sets	out	the	applicable	law,	which will	be	

restated	here	only	to	the	extent	necessary	to	address	Shropshire’s	objections. 		First,	

the	Supreme	Court	has	held	that	“deliberate indifference to	serious medical needs of	

prisoners	constitutes	the	‘unnecessary	and	wanton	infliction’	proscribed	by	the	

Eighth	Amendment.”		Estelle	v.	Gamble,	429	U.S.	97,	104	(1996)	(quoting	Gregg	v.	

Georgia,	428	U.S.	153,	173	(1976)).			Deliberate	indifference	involves	both	an	

objective	component	(i.e.,	a	serious	medical	need)	and	a	subjective	component	(i.e.,	

deliberate	indifference	to	that	need).		Bozeman	v.	Orum,	422	F.3d	1265,	1272	(11th

Cir.	2005).		To	satisfy	the	subjective	element	a	plaintiff	must prove: “(1)	subjective	

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

more	than	[gross]	negligence.”		Id. (quoting	Brown	v.	Johnson,	387	F.3d	1344,	1351	

(11th Cir.	2004).		However,	a	prison	official	may	be	immune	from	liability	for	money	

damages based	on	the	doctrine	of	qualified	immunity	even	though	his	conduct	

amounted	to	a	constitutional	violation	under	the	foregoing	standards.

The	Eleventh	Circuit	has	explained	qualified	immunity	as	follows:

Qualified	immunity	is	a	guarantee	of	fair	warning.	Under	the	

doctrine	of	qualified	immunity,	a	government	official	sued	for	

damages	for	injuries	arising	out	of	the	performance	of	discretionary	

functions	must	be	“shown	to	have	violated	‘clearly	established	

statutory	or	constitutional	rights	of	which	a	reasonable	person	would	

have	known.’	”	As	the	Supreme	Court	has	explained,	“qualified	

immunity	seeks	to	ensure	that	defendants	‘reasonably	can	anticipate	

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when	their	conduct	may	give	rise	to	liability,’	by	attaching	liability	

only	if	‘[t]he	contours	of	the	right	[violated	are]	sufficiently	clear	that	

a	reasonable	official	would	understand	that	what	he	is	doing	violates	

that	right.’	” “This	is	not	to	say	that	an	official	action	is	protected	by	

qualified	immunity	unless	the	very	action	in	question	has	been	held	

unlawful;	but	it	is	to	say	that	in	the	light	of	preexisting law	the	

unlawfulness	must	be	apparent.”	

McElligott	v.	Foley,	182	F.3d	1248,	1260	(11th Cir.	1999)	(internal	citations	omitted).		

The	Magistrate	Judge	found	the	Defendants	were	entitled	to	qualified	immunity	on	

the	deliberate	indifference	claim	because	the	law	was	not	clearly	established.		

Shropshire	takes	issue with	this	conclusion.

For	our	purposes,	a right	may	be	clearly	established	in	a	manner	sufficient	to	

provide	fair	warning	in	one	of	two	ways.		First, Shropshire “may	establish	that	the	

right	was	clearly	established	by	pointing	to	a	‘materially	similar	case’”	decided	by	

the	Supreme	Court,	the	Eleventh	Circuit,	or	the	Alabama	supreme	court.		Terrell	v.	

Smith,	668	F.3d	1244,	1256	(11th Cir.	2012).		 A	materially	similar	case	is	one	that	

“is	[not]	fairly	distinguishable”	from	the	circumstances	in	this	case.		Id.	The	

Magistrate	Judge	noted	that	Shropshire	had	failed	to	point	to	any	materially	similar	

case	that	would	have	put	Defendants	on	notice	that	their	conduct	amounted	to	

deliberate	indifference.		 Shropshire	insists	that	his	summary	judgment	response	

relied	on	similar	prior	precedent,	but	he	has	failed	to	articulate—either	in	his	

summary	judgment	response	or	in	his	objection--any	material	factual	similarity	

between	the	cases	cited	and	the	case	at	hand.

Alternatively,	Shropshire	may	be	able	to	demonstrate	that	the	law	was	

clearly	established	by	pointing	to	“broad	statements	of	principle	in	case	law	are	not	

tied	to	particularized	facts	.	.	.	[that]	clearly	establish	law	applicable	in	the	future	to	

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different	sets	of	detailed	facts.’”		Id.		(quoting	Vinyard v.	Wilson,	311	F.3d	1340,	1351	

(11th Cir.	2002)).		This	method	is	referred	to	as	“obvious	clarity”	because	“the	

principle	must	be	established	with	‘obvious	clarity’	by	the	case	law	so	that	‘every	

objectively	reasonable	government	official	facing	the	circumstances	would	know	that	

the official’s	conduct	[	]	violate[d] federal	law	when	the	official	acted.”		Id. (emphasis	

added)	(quoting	Anderson	v.	Creighton,	483	U.S.	635,	640	(1987)).3			This	is	a	difficult	

hurdle	in	a	deliberate	indifference	case,	most	of	which	“are	far	from	obvious	

violations	of	the	constitution.”		Bozeman 422	F.3d	at	1275.			“Obvious	clarity	cases	

are	‘rare,’	and	present	a	‘narrow	exception’	to	the	general	rule	of	qualified	immunity.”		

Gilmore	v.	Hodges,	738	F.3d	266,	279	(11th Cir.	2013)	(internal	citations	omitted).		

Furthermore,	they	are	rarer	still	in	deliberate	indifference	cases	which	‘are	highly	

fact-specific.	.	.		Most	cases	in	which	deliberate	indifference	is	asserted	are	far	from	

obvious	violations	of	the	Constitution.”		Id. at	280.		

The	broad	statement	of	principle	here	is	this:		A government	official	acts	with	

deliberate	indifference	by	intentionally	delaying medical	care	to	an inmate	knowing	

that	the	inmate	has	a	serious	medical	condition.		The	question	is	whether	every	

reasonable	official	in	Johnson’s	position	or	in	Toney’s	position	would	have	known	

that	failure	to	act	immediately	would	amount	to	deliberate	indifference.		Before	

examining	that	question,	it	is	helpful	to	consider	the	types	of	actions	that	have	

																																																							 3 There	is	a	second	“obvious	clarity”	category,	a	very	narrow	exception,	in	

which	“’the	words	of	the	pertinent	federal	statute	or	federal	constitutional	provision	

in	some	cases	will	be	specific	enough	to	establish	clearly	the	law	applicable	to	

particular	conduct	and	circumstances	and	to	overcome	qualified	immunity,	even	in	

the	total	absence	of	case	law.’”			Id. at	1257	(quoting	Vinyard,	311	F.3d	at	1350	

(emphasis	omitted)).		Shropshire	does	not	contend	that	this	type	of	“obvious	clarity”	

applies.

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amounted	to	“obvious	violations”	under	the	deliberate	indifference	standard.		In	

Bozeman,	422	F.3d	at	1275-76,	the	Eleventh	Circuit	held	qualified	immunity	did	not	

protect	jail	guards	who	did	not	administer	treatment	or	summon	help	for	14	

minutes	for	inmate	they	knew	was	unconscious	and	not	breathing.		In	Danley	v.	Allen,	

540	F.3d	1298	(11th Cir.	2008),	jail	guards	sprayed	an	inmate	with	pepper	spray	

then	refused	to	allow	appropriate	decontamination	procedures	resulting	in	pain,	

conjunctivitis	and	respiratory	problems	to	the	inmate.		In	both	McElligott	v.	Foley,	

supra,	a	case	involving	six	months	of	cursory	medical	treatment	for	an	inmate’s	

seriously	deteriorating	condition,	and	Lancaster	v.	Monroe	County,	116	F3d	1419	

(11th Cir.	1997),	a	case	involving	the	death	of	an	inmate	due	to	acute	alcohol	

withdrawal,	the	appellate	court	found	the	law	to	be clearly	established	by	preexisting	case	law	involving	similar	circumstances.					

In	this	case,	Defendant	Toney	was	confronted	by	an	inmate	with	a	red,	

swollen	foot	that	had	not	yet	developed	blisters	and was	informed	that	the	

condition	had	occurred	after	his	foot	had	been	drenched	by	mop	water	the	previous	

day.		Would	every	reasonable	prison	official	have	known	that	failure	to	obtain	

immediate	medical	care	for	Shropshire	result	in	a	constitutional	violation?		The	

answer	is	no.		The	seriousness	of	the	injury	was	not	apparent	at	that	point.		The	

request	for	medical	attention,	if	made,	was	outside	the	established	channels	for	

seeking	medical	treatment.		Unlike	the	situation	in	Danley,	Toney	did	not	know	that	

a	chemical	was	the	source	of	the	injury.		Unlike	the	jail	guards	in	Bozeman, Toney	

was	not	presented	with	an	injury	that	appeared	to	be	life-threatening	or	even	

serious.		Finally,	unlike	Lancaster	and	McElligott,	there	was	no	similar	case	law	to	

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provide	guidance.		In	sum,	this	is	not	an	obvious	case,	and	Toney	is	entitled	to	

qualified	immunity.

The	issue	is	more	complex	with	respect	to	Defendant	Johnson.		She	knew	

how	and	when	the	injury	occurred	and	was,	apparently,	aware	of	its	progression.		

According	to	Shropshire,	Johnson	was	listening	when	he	told	Stonewall	he	could	not	

work	because	of	his	foot,	and	Johnson	saw	his	red,	swollen,	pussie,	nasty-looking	

foot.		But	Shropshire did	not ask	for	help	and	never	even	spoke	directly	to	Johnson.		

Would	every	reasonable	officer	in	Johnson’s	place	have	known,	despite	the	lack	of	

request,	that	failure	to	provide	immediate	medical	attention	for	Shropshire	would	

result	in	a	constitutional	violation?		While	the	answer	here	is	less	emphatic	than	it	

was	with	Toney,	it	is	still	no.		Unlike	the	inmate	in	Bozeman,	Shropshire	could	have	

asked	for	help	but	did	not.		Unlike	the	inmate	in	Danley,	Shropshire	did	not	ask	for

help	from	this	Defendant.		Moreover,	Shropshire	had	another	avenue	for	obtaining	

medical	attention—the	sick	call	system.		A	reasonable	official	in	Johnson’s	

position—to	whom	no	request	for	medical	assistance	was	made—could	reasonably	

assume	that	Johnson	would	obtain	medical	attention	through	the	sick	call	system.

Finally,	while	the	Court	agrees	with	the	Magistrate	Judge’s	conclusion,	one	

statement	in	the	Report	and	Recommendation	bears	further	clarification.		The	

concluding	paragraph	of	the	qualified	immunity	discussion	states,	in	part:		“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	normal	prison	channels.”		(R	&	

R	at	26,	Doc.	92.)		Shropshire	objects to	this	conclusion	because,	as	he	points	out,	

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there	is	no	evidence	that	either	Defendant	had	such	a	belief. (Pl.’s	Objection	9,	Doc.	

93.)		The	question,	though,	is	whether	every	reasonable	official	with	all	of	the	

knowledge	Defendants	had	(including	the	existence of	the	sick	call	system)	would	

have	felt	compelled	to	obtain	immediate	medical	treatment	for	Shropshire.		

Defendants’	reliance	is	irrelevant.		A reasonable	official in	either	Defendant’s	

position	could	have	taken	that	system	into	account	in	deciding	whether	to	act.		

Stated	differently,	in	light	of	the	sick	call	system	and	the	apparent	minor	injury	(in	

Toney’s	case)	or	the	lack	of	any	specific	request	for	medical	assistance	(in	Johnson’s	

case),	the	law	was	not	so	obviously	clear	that	every	reasonable	prison	official	in	

their	respective	circumstances	would	have	known	that	their	conduct	amounted	to	

deliberate	indifference.

Conclusion

For	the	foregoing	reasons,	the	Court	overrules the	Plaintiff’s	objections	and	

ADOPTS the	Magistrate	Judge’s	Report	and	Recommendation	(Doc.	92).		Defendants’	

motion	for	summary	judgment	(Doc.	83)	is,	therefore,	DENIED	as	to	Shropshire’s	

excessive	force	claim	against	Defendant Johnson,	and	GRANTED as	to	Shropshire’s	

claim	against	both	Defendants	for	deliberate	indifference	to	serious	medical	need.		

The	Defendant’s	motion	for	oral	argument	(Doc.	91)	is	DENIED.

DONE and	ORDERED this	the	10th day	of	November,	2014.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

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