IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ZACHERY WILSON,

Plaintiff,

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vs. : CIVIL ACTION 14-337-CB-M

:

EMILY WHITTLE, et al.,

Defendants.

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REPORT AND RECOMMENDATION

This action under 42 U.S.C. § 1983 brought by an 

Alabama prison inmate, Zachery Wilson, proceeding pro se 

and in forma pauperis, was referred to the undersigned 

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

72.2(c)(4), and is now before the Court on Plaintiff’s 

Complaint. (Doc. 1). After careful consideration of the 

Complaint and Plaintiff’s eyewitness statement, it is 

recommended that Plaintiff’s Eighth Amendment conditions of 

confinement, supervisory liability and Fourteenth Amendment 

due process claims be dismissed without prejudice as 

frivolous pursuant to 28 U.S.C. §§ 1915A and 

1915(e)(2)(B(i), and that process should issue on 

Plaintiff’s Eighth Amendment medical care and excessive 

force claims.

I. Discussion

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Because Plaintiff is a prisoner “seeking redress from 

a governmental entity,” this Court is required to conduct a 

preliminary screening of his Complaint. See 28 U.S.C. § 

1915A(a). In so doing, all factual allegations in the 

Complaint are accepted as true under the pro se pleading 

standard. See Brown v. Johnson, 387 F.3d 1344, 1347 (11th 

Cir. 2004). Such pro se pleadings as this one are also 

held to a less stringent standard than pleadings drafted by 

attorneys and will be liberally construed. Harris v. 

McCray, 2014 WL 4215576, *1 (M.D.Ga. Aug. 25, 2014)(citing 

Tannenbaum v. U.S., 148 F.3d 1262, 1263 (11th Cir. 1998). 

However, this Court must dismiss a prisoner complaint after 

the initial review if it is “frivolous, malicious, or fails 

to state a claim upon which relief may be granted;” or it 

“seeks monetary relief from a defendant who is immune from 

such relief.” § 1915A(b); 28 U.S.C. § 1915(e)(2)(B).

A claim is frivolous when it appears from the face of 

the complaint that the factual allegations are “clearly 

baseless” or that the legal theories are “indisputably 

meritless.” Harris at *1 (citing Carroll v. Gross, 984 

F.2d 392, 393 (11th Cir. 1993). A court may therefore 

properly dismiss a case sua sponte if it is found to be 

“without arguable merit either in law or fact.” Id. 

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(citing Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 

2001). 

When determining whether a complaint is frivolous, or 

fails to state a claim, the Court limits its consideration 

to the pleadings and exhibits attached thereto, and accepts 

as true the allegations set forth in the Complaint. Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); see also 

Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008)(“The 

standards governing dismissal under Rule 12(b)(6) apply to 

§ 1915(e)(2)(B)(ii)”). “A complaint must contain

sufficient factual matter, accepted as true,” which raise 

the right to relief above a speculative level. Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. 

at 570). “A formulaic recitation of the elements of a 

cause of action will not do.” Id. However, a complaint 

should not be dismissed “simply because it strikes a savvy 

judge that actual proof of those facts is improbable.” 

Harris, 2014 WL 4215576, at *2 (citing Watts v. Fla. Int’l 

Univ., 495 F.3d 1289, 1295 (11th Cir. 2007)(citation and 

quotation marks omitted)).

To state a claim for relief under § 1983, “a plaintiff 

must allege that: (1) an act or omission deprived him of a 

right, privilege, or immunity secured by the Constitution 

or a statute of the United States; and (2) the act or 

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omission was committed by a person acting under color of 

state law.” Id. (citing Hale v. Tallapoosa Cnty., 50 F.3d 

1579, 1581 (11th Cir. 1995). If a litigant cannot satisfy 

these requirements, or fails to provide factual allegations 

in support of his claim or claims, the complaint is subject 

to dismissal. Id.; see also § 1915A(b)(dictating that a 

complaint, or any portion thereof, that does not pass the 

standard in § 1915A “shall” be dismissed on preliminary 

review).

II. Factual Allegations and Statement of Claims

As Defendants, Plaintiff names the following: Sergeant 

Emily Whittle (“Defendant Whittle”); Sergeant Franklin 

(“Defendant Franklin”); Correctional Officer Brian Ezell 

(“Defendant Ezell”); Warden Walter Meyers (“Defendant 

Meyers”); Captain Danny Fails (“Defendant Fails”); and 

Captain Ronzella Howard (“Defendant Howard”). Plaintiff 

files his Complaint based on a situation that occurred at 

Holman Prison1 on June 25, 2014, during the six-hour period 

of 12:30 a.m. until 6:00 a.m., when the toilet in 

Plaintiff’s segregation cell began to overflow “off and on 

																																																							 1

 Since filing the Complaint, Plaintiff has apparently 

been transferred to William E. Donaldson Correctional 

Facility. Despite his duty as required by this Court’s 

Order to affirmatively inform the Court of his change of 

address (Doc. 5 at 2), Plaintiff only mentions in passing 

in a letter that he was transferred to Donaldson. (Doc. 6). 

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with ‘FECES’ water, together with the cell toilet above 

Plaintiff’s cell!” (Doc. 1 at 4). 

Plaintiff contends he notified the “A-Night Shift” of 

the overflowing “raw sewage” on several occasions, but the 

officers on the A-Night Shift “failed to assist [him] and 

provide [him] with cleaning chemicals and utensils to 

properly sanitize [his] cell of the ‘raw sewage.’” Later 

that morning, Officer Leggett on the “B-Day Shift” showed 

“common courtesy to the plaintiff and opened [his] tray 

slot to give plaintiff a well need [sic] breath of fresh 

air!” (Id. at 8). Officer Leggett offered to inform the 

“segregation shift supervisor, Sergeant Emily Whittle, to 

come and assist Plaintiff with [the situation]. [] 

Plaintiff instantly told Officer Leggett to let Plaintiff 

speak with [another officer] . . . because Sergeant Whittle 

was given an order by . . . [Captain] Fails and Warden 

Myers to stay away from the Plaintiff [since Whittle 

previously wrote Plaintiff five back to back 

disciplinaries].” (Id.) 

Plaintiff states that a few minutes later, Sergeant 

Whittle “accost [sic] Plaintiff [sic] cell with some kind 

of ‘hook-knife’ in one hand, and a can of mace in her other 

hand!” (Id.) Sergeant Whittle told Plaintiff to “close 

this mother f***ing tray door, I don’t give a f*** if you 

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drown in that shit water!!!” (Id.) “Sergeant Whittle 

started cutting, slicing and chopping at a tied down sock, 

while the plaintiff’s arms were still placed on his ‘tray 

slot!’ In the process of [Sergeant] Whittle cutting, 

slicing and chopping, the plaintiff was cut twice, once on 

his right arm elbow and once on his left hand middle 

finger! (Id. at 8-9). “Plaintiff stated to [Sergeant] 

Whittle that he was only trying to clean and sanitize his 

cell of the raw sewage, and that he didn’t want any 

problems! [Sergeant] Whittle [then said] ‘Shut up, I don’t 

want to hear that bullshit.’ Then [she] started spraying 

the plaintiff with an exceeding amount of mace, not once, 

but twice, directly into the plaintiff’s face. . . .” 

(Doc. 1 at 9). These allegations form the basis for 

Plaintiff’s excessive force claim against Defendant 

Whittle. 

Plaintiff was then taken to the segregation office by 

Defendant Franklin who initially cuffed him to the front to 

exit his cell, then cuffed Plaintiff to the back and 

“started grabbing the chains of the handcuffs, yanking them 

upward very aggressively, almost over [Plaintiff’s head].” 

(Id.). Plaintiff states that he immediately felt agonizing 

and sharp pain to his right wrist as Defendant Franklin 

told Plaintiff that he should “beat yo maf***in ass chump!” 

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(Id. at 10). Plaintiff was then escorted to the Infirmary 

by another officer where he received a body chart, mace 

detox and treatment for his injuries. (Id.). Plaintiff 

was taken back to his segregation cell and “given cleaning 

supplies and utensils to properly sanitize his cell from 

the raw sewage.” (Id). These alleged actions form the 

basis for Plaintiff’s excessive force claim against 

Defendant Franklin.

After returning to his cell, Plaintiff requested 

additional medical treatment to stop his elbow from 

bleeding, but he claims his requests were denied and 

ignored causing “mental and emotional damages that puts an 

inmate in a substantial risk of his own safety.” (Id.). 

Plaintiff eventually asked Officer Ezell to take him to the 

Infirmary again, but Defendant Ezell informed Plaintiff 

that he was instructed by Defendant Whittle to mace 

Plaintiff if he did not put his arms inside the tray slot 

so it could be secured. (Id.) Plaintiff told Ezell that he 

was badly bleeding and needed help, but Defendant Ezell 

maced Plaintiff twice more with an “exceeding amount of 

mace.” (Id.). Plaintiff was eventually taken the 

infirmary where he was detoxed from the mace and given 

larger bandages and was added to the doctor’s list for 

swelling of his wrists. Plaintiff contends that the 

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“exceeding mount of mace” used on him is excessive force by 

on Defendant Ezell’s part, and that Ezell denied him 

adequate medical care.

Plaintiff attached to his Complaint the June 30, 2014, 

“grievance complaint” he filed against Defendants. (Doc. 1 

at 18). The grievance complaint states that his wounds 

from being cut with a “hook-knife” are “constantly 

draining,” his right wrist was “severly [sic] injured” and 

he has “received no X-ray or seen the doctor yet.” (Id.). 

The grievance was responded to the next day on July 1, 

2014, by an “HSA” whose signature is illegible, stating 

“Mr. Wilson, you are currently on daily treatment until 

your wound heals.” (Id.). The grievance complaint also 

indicates that on July 3, 2014, Plaintiff’s status was 

again checked by “L-13” quarters. (Id.). 

As for the supervisory liability claim against 

Defendant Meyers, Plaintiff admits that Meyers “knowing 

knew [sic] that he ignored the information of the clear 

constitutional wrongdoing! As opposed to participating in 

the action himself.” (Id. at 12). Plaintiff further 

alleges that Defendants Meyers, Howard and Fails should be 

held liable for allowing Defendant Whittle to come around 

Plaintiff when she had previously been given an order to 

stay away from Plaintiff. Plaintiff alleges that 

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Defendants Meyers, Howard and Fails further violated his 

due process rights be denying him the opportunity to speak 

to I&I investigators regarding the situation. (Id. at 14). 

To bolster his excessive force claim against Defendant

Whittle, Plaintiff submits a “Declaration of Eye Witness” 

from inmate Gerard McCree who states under oath that he saw 

Defendant Whittle “walking around going cell to cell with a 

box cutter in one of her hands. She went to the 

Plaintiff’s cell . . . and cut the Plaintiff. The 

Plaintiff’s cell was having problems with the toilet and 

[she] went down to the cell and cut the Plaintiff through 

the Plaintiff’s tray door. The Plaintiff cried out, she 

cut me!!” (Doc. 6 at 2-3). Inmate McCree states that 

twenty-five minutes later Plaintiff was cuffed to the front 

through his tray slot, even though it is required that 

inmates be cuffed to the back, and Plaintiff “walked out of 

the unit.” (Id. at 3). 

For relief, Plaintiff requests “$100,000 in punitive 

damages from Whittle, Myers, Fails and Howard. Punitive 

damages of 75,000 from Ezell and Franklin. $30,000 in 

compensatory Damages from each individual, $10,000 in 

emotional damages from each individual.” (Id. at 7). 

A. Supervisory Liability

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Liberally reviewing Plaintiff’s Complaint, the Court 

finds the supervisory liability allegations against 

Defendant Meyers, Howard and Fails to be clearly baseless, 

indisputably meritless and alleged with no arguable basis 

in law or fact. See Harris, supra p. 2. It is apparent 

from Plaintiff’s allegations that these three Defendants 

are each named as defendants because of their supervisory 

capacity, as opposed to actually participating in the 

events for which Plaintiff complains. Plaintiff even 

admits that Defendant Meyers merely “ignored the 

information of the clear constitutional wrongdoing! As 

opposed to participating in the action himself.” (Doc. 1 

at 12). 

It is well established in this Circuit that 

supervisory officials are not liable [] for the 

unconstitutional acts of their subordinates on the basis of 

respondeat superior or vicarious liability.” Gonzalez v. 

Reno, 325 F.3d 1228, 1234 (11th Cir. 2003)(citations 

omitted). “The standard by which a supervisor is held 

liable in [his or] her individual capacity for the actions 

of a subordinate is extremely rigorous.” Id. To establish 

supervisory liability in this Circuit, a plaintiff must 

show that either the supervisor personally participated in 

the alleged unconstitutional conduct or that there is a 

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“causal connection between the actions of a supervising 

official and the alleged constitutional deprivation.” 

Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). To 

establish a causal connection, a plaintiff must plead facts 

that plausibly show a causal relationship in one of three 

ways: (1) the supervisor had notice of a widespread history 

of abuse which he neglected to correct, (2) the supervisor 

implemented a custom or policy that resulted in deliberate 

indifference to constitutional rights, or (3) the facts 

support the inference that the supervisor directed 

subordinates to act unlawfully or knew that the 

subordinates would act unlawfully and failed to stop them 

from doing so. Gonzalez 325 F.3d at 1234-35 (citations 

omitted). 

“While we do not require technical niceties in 

pleading, we must demand that the complaint state with some 

minimal particularity how overt acts of the defendant 

caused a legal wrong.” Harris, 2014 WL 4215576, at *4 

(citing Douglas v. Yates, 535 F.3d 1316, 1322 (11th Cir. 

2008)(citation omitted)(emphasis added). Because Plaintiff 

offers no proof causally connecting Defendants Meyers, 

Howard and Fails to the alleged wrongful acts of Defendant 

Whittle, and because Plaintiff fails to show how Defendants 

directed Whittle to act unlawfully, or knew that she would, 

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his claims for supervisory lack minimal particularity and 

thus fail to allege a constitutional violation. 

Furthermore, Plaintiff wholly fails to identify how they 

personally participated in Defendant Whittle’s alleged use 

of excessive force, therefore requiring this Court to 

dismiss Plaintiff’s clearly baseless claims for supervisory 

liability as frivolous pursuant to § 1915(e)(2)(B). See 

Harris, 2014 WL 4215576, at *4 (M.D.Ga. Aug. 25, 2014). 

B. Due Process Claims

Plaintiff also alleges that Defendants Meyers, Howard 

and Fails’ denial of his “right to speak to I&I 

investigators” about the incident amounts to a due process 

violation. The Court disagrees. 

Plaintiff’s due process claims against Defendants 

Meyers, Howard and Fails fail to implicate any 

constitutional right to which Plaintiff is entitled. “The 

failure to properly investigate an inmate’s complaint does 

not rise to the level of a separate constitutional 

violation.” Gillis v. Giles, 2012 WL 6061800, at *1 

(M.D.Ala. Oct. 31, 2012). Inmates simply do not enjoy a 

constitutional right to an investigation of any kind by 

government officials. Id. (citing DeShaney v. Winnebago 

Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989)(“The 

Due Process Clause generally confers no affirmative right 

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to governmental aid, even where such aid may be necessary 

to secure life, liberty, or property interests of which the 

government itself may not deprive the individual”)).

With that, the Court concludes that Defendants’ 

actions do not rise to the level of a constitutional 

violation, and therefore, provide no basis for relief in 

this § 1983 action. Plaintiff’s due process claims against 

Defendants Meyers, Howard and Fails are clearly baseless 

and due to be dismissed as frivolous pursuant to § 

1915(e)(2()(B)(i). Gillis, 2012 WL 60601800, at *1. 

C. Eighth Amendment Claims

a. Excessive Force

Whether an Eighth Amendment constitutional violation 

occurred “ultimately turns on whether force was applied in 

a good faith effort to maintain or restore discipline[,] or 

[applied] maliciously and sadistically for the very purpose 

of causing harm.” Harris, 2014 WL 4215576, at *4 (citing 

Hudson v. McMillian, 503 U.S. 1, 6 (1992)(citation and 

quotation marks omitted). Liberally construing Plaintiff’s 

Complaint in the light most favorable to him, it is found 

that Plaintiff has alleged colorable Eighth Amendment 

claims of excessive force against Defendants Whittle, 

Franklin, and Ezell. Thus, these claims will be allowed to 

proceed.

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b. Medical Care

As set out above, Plaintiff alleges Defendants 

violated his rights under the Eighth Amendment by being 

negligent and providing him with denied, delayed and/or 

inadequate medical care pertaining to his injuries 

allegedly received from Defendants Whittle, Franklin and 

Ezell. 

Because Plaintiff’s medical care claim is so 

intertwined with his claims for excessive force, and 

because the Court cannot measure the level of injury 

against the level of care provided to Plaintiff without a 

response from Defendants,2 the Court finds Plaintiff’s 

medical care claim against Defendant Ezell to be eligible 

for process.

c. Conditions of Confinement: Overflowing Toilet

																																																							 2 In responding to the remaining excessive force and 

medical care claims in Plaintiff’s Complaint, Defendants 

are ORDERED to submit relevant medical records pertaining 

to those allegations. The medical records are to be 

submitted in chronological order with some form of logical

and labeled pagination, which is to be referenced 

throughout the response. See THE BLUEBOOK: A UNIFORM SYSTEM OF 

CITATION (Columbia Law Review Ass’n et al., eds., 19th ed. 

2010, Bluepages B7.1.2)(“Pincites are particularly 

important when citing court documents. Give as precise a 

reference as practicable to the cited document, such as to 

the page and line on which the material appears . . . .”); 

see also SD ALA LR 5.5(c)(similarly, “if discovery 

materials are germane to any motion or response, only the 

relevant portions of the material shall be filed with the 

motion or response”). 

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Plaintiff complains about the conditions of his 

confinement due to his and another cell’s toilet

overflowing in his cell for five and a half hours on June 

25, 2014. (Doc. 1 at 4). Plaintiff states he notified the 

A-Night Shift on several occasions, but they ignored the 

“raw sewage” situation and failed to provide him with 

“cleaning chemicals and utensils to properly sanitize [his] 

cell.” (Id. at 4-5). However, Plaintiff later admits that 

he received cleaning supplies to clean his cell. (Id. at 

10). 

In order to prevail on an Eighth Amendment claim 

alleging inhumane conditions of confinement, an inmate must 

make both an objective and subjective showing. The 

objective showing requires the Court to look at the 

“contemporary standard of decency” to determine whether the 

challenged conditions resulted in a deprivation of the 

“minimal civilized measures of life’s necessitates” or 

“basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 

(1981). “[E]xtreme deprivations are required to make out a 

conditions-of-confinement claim,” “[b]ecause routine 

discomfort is ‘part of the penalty that criminal offenders 

pay for their offenses against society[.]’” Sturdivant v. 

Lovette, 2009 WL 3415368, at *6-7 (S.D.Ala. Oct. 20, 

2009)(citing Hudson v. McMillian, 503 U.S. 1, 9 (1992) 

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(citations omitted). “Nothing so amorphous as ‘overall 

conditions' can rise to the level of cruel and unusual 

punishment when no specific deprivation of a single human 

need exists.” Wilson v. Seiter, 501 U.S. 294, 305 (1991).

The subjective component requires that the prison 

official have been “deliberate[ly] indifferen[t]” to a 

substantial risk of serious harm. Farmer, 511 U.S. at 828-

29. “[A] prison official cannot be found liable under the 

Eighth Amendment for denying an inmate humane conditions of 

confinement unless the official knows of and disregards an 

excessive risk to inmate health or safety; the official 

must both be aware of facts from which the inference could 

be drawn that a substantial risk of serious harm exists, 

and he must also draw the inference.” Id. at 837. 

Moreover, “[a] plaintiff must also show that the 

constitutional violation caused his injuries.” Marsh v. 

Butler County, Ala., 268 F.3d 1014, 1028 (11th Cir.2001).

Liberally construing his Complaint in the light most 

favorable to him, the Court finds Plaintiff’s lamentations 

to be clearly baseless, and thus, frivolous. See Harris, 

supra p. 2. As to the objective seriousness of the claimed 

conditions of confinement, the Court notes that, “while 

chronic exposure to human waste may give rise to a

colorable Eighth Amendment claim, ‘where exposure to such 

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waste is intermittent or limited to a matter of hours, 

courts normally will not entertain such actions.’” Torres 

v. Cormier, 2012 WL 5330980 (D.Vt. Sept. 19, 2012) (citing 

Ortiz v. Department of Corrections, 2011 WL 2638137, at *7 

(S.D.N.Y. April 29, 2011), adopted in full, 2011 WL 2638140 

(S.D.N.Y. July 5, 2011). Despite the unpleasantness of 

Plaintiff’s overall conditions, the Court finds he was not 

deprived of any basic human needs and thus fails to meet 

the objective component of his conditions of confinement 

claim.

Since the Court found that Plaintiff was not deprived 

of any basic human needs, it follows that Defendants cannot 

be held liable for disregarding a need that Plaintiff was 

not deprived of, as the subjective element requires. 

Furthermore, Plaintiff fails to identify how any named 

Defendant disregarded the excessive risk of inmate health 

or safety that the overflowing toilet may have created. 

For instance, Plaintiff does not indicate that he had any 

sort of cut, wound, or abrasion on his hands or feet that 

may become infected as a result of the “raw sewage” 

exposure. More importantly, though, is the fact that 

Plaintiff was given cleaning supplies to cleanse his cell 

of the “raw sewage” thereby alleviating any question that 

Defendants disregarded a substantial risk of serious harm. 

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As well, “[i]nmates cannot expect the amenities, 

conveniences and services of a good hotel.” Harris v. 

Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988)(finding no 

Eighth Amendment violation when an inmate stayed twentyeight days in a filthy, roach-infested cell without toilet 

paper for five days and without soap, a toothbrush and 

toothpaste for ten days). Similarly, this Circuit 

previously found that having to use a toilet which lacks 

proper water pressure and occasionally overflows is 

unpleasant but not necessarily unconstitutional. Alfred v. 

Bryant, 378 F.App’x 977, 980 (11th Cir. 2010)(citing Smith 

v. Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996)(court 

rejected Eighth Amendment claim based on a toilet that 

overflowed in the prisoner’s cell for four days, as not 

every overflowed toilet in a prison amounts to cruel and 

unusual punishment). Though the conditions to which 

Plaintiff was subjected for five and a half hours were 

likely unpleasant, and perhaps even harsh, Plaintiff has 

not described permanent conditions of confinement which 

involve the wanton and unnecessary infliction of pain. 

Cottingham v. Brown, 2013 WL 980309 (N.D.Ala. Jan. 30, 

2013). 

Additionally, any unsanitary conditions caused by the 

toilet overflowing were mitigated by the provision of 

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cleaning supplies to Plaintiff. (Doc. 1 at 10). Even when 

construed liberally and read in the light most favorable to 

Plaintiff, the factual allegations in Plaintiff's Complaint 

do not describe the sort of “extreme” deprivation that an 

Eighth Amendment claim demands. See Hudson v. McMillian,

503 U.S. 1, 9, (1992). There is nothing in Plaintiff's 

Complaint to suggest that the conditions described posed an 

unreasonable risk of serious damage to Plaintiff's health 

or offended the contemporary standards of decency. See 

e.g., Alfred v. Bryant, 378 F. App'x 977, 980 (11th 

Cir.2010). 

Lastly, even if Plaintiff had adequately pled a claim 

for relief, the Complaint does not allege that Plaintiff 

suffered any physical injury as a result of being confined 

under these conditions. With the absence of a physical 

injury, Plaintiff is precluded from recovering compensatory 

or punitive damages for those conditions. See 42 U.S.C. § 

1997e(e); Al-Amin v. Smith, 637 F.3d 1192, 1999 (11th Cir. 

2011). For these reasons, Plaintiff’s claim regarding the 

conditions of his confinement are clearly baseless and due 

to be dismissed as frivolous pursuant to § 

1915(e)(2)(B)(i); see also Harris, supra p. 2. 

III. Conclusion

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Based on the foregoing, the Court recommends that the 

following of Plaintiff’s claims are due to be dismissed 

without prejudice as frivolous pursuant to §§ 1915A and 

1915(e)(2)(B)(i) prior to service: the Eighth Amendment 

conditions of confinement claim against Defendant Whittle;

the supervisory liability claims against Defendants Meyers, 

Howard and Fails; as well as the due process claims against 

Defendants Meyers, Howard and Fails. Plaintiff’s claims 

for delayed, denied or inadequate medical care against 

Defendant Ezell and excessive force claims against 

Defendants Whittle, Franklin and Ezell are due to be served 

and proceed onward. Once this Report and Recommendation is 

ruled upon by the district judge, the Clerk is then

DIRECTED to serve Defendants Whittle, Franklin and Ezell on 

Plaintiff’s medical care and excessive force claims.

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 

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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 7th day of October, 2014.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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