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 motion for summary judgment

filed by defendants Penton Ashworth, James Pate, Roger Marsh, and James English

(Doc. 189; see also Doc. 190 (additional attached exhibits)), plaintiff’s response in 

opposition (Doc. 199), and plaintiff’s notice of filing substitute exhibit (Doc. 202). Upon 

consideration of the foregoing pleadings, the Magistrate Judge recommends that the 

Court GRANT IN PART and DENY IN PART the present motion for summary 

judgment.

FINDINGS OF FACT

Plaintiff contends that to set the appropriate stage for what occurred to him at 

Holman Correctional Facility in Atmore, Alabama on December 31, 2010, this Court

must necessarily begin by recounting defendant Kevin Dunn’s employment history 

with the Alabama Department of Corrections (“ADOC”) and others. By letter dated July 

31, 2006, the ADOC offered Dunn “conditional employment as a Correctional Officer I 

effective August 1, 2006” and assigned him to Fountain Correctional Facility. (Doc. 199, 

Exhibit 24.) Dunn was specifically informed that he would be required “to serve a sixCase 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 1 of 55
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month probationary period[,]” and following successful completion of same he would 

receive “permanent status as a Correctional Officer I.” (Id.) Dunn completed all 

paperwork required for employment on August 1, 2006 (Doc. 199, Exhibit 30, at 1-3) and 

thus began his career as a Correctional Officer I with the ADOC. Dunn tendered a 

handwritten letter of resignation—accepted and acknowledged by Warden Jerry Ferrell 

on June 27, 2007—effective July 9, 2007 and therein requested that he be placed on the 

rehire list. (See Doc. 199, Exhibits 25 & 26.) In the official paperwork for the State of 

Alabama Personnel Department, Dunn’s resignation was ultimately approved, as was 

the recommendation for reemployment. (Doc. 199, Exhibit 30, at 4.) Although the 

undersigned cannot say with absolute certainty why Dunn resigned effective July 9, 

2007, it appears that his resignation relates, in part, to a 3-day without-pay 

suspension—effective June 14, 2007 through June 16, 2007—approved by the 

Commissioner of the ADOC based upon a November 8, 2006 “verbal altercation” Dunn

had with another correctional officer relating to a “jacket.” (Compare id. with Doc. 199, 

Exhibit 11.)1 The June 1, 2007 letter from the Commissioner announcing to Dunn his 3-

day suspension references consideration of infractions by Dunn (see id. at 2) consistent 

with matters discussed with Dunn during his November 6, 2006 mid-appraisal report 

(compare id. (“In determining the appropriate corrective action for the above violations, I 

have considered the following infractions: 1. Non-compliance with policies, procedures, 

and regulations. . . . 2. Disagreeable behavior, including lack of cooperation and 

 1 Dunn relayed a very different story than what is reflected in the Commissioner’s 

letter regarding the November 8, 2006 altercation with another correctional officer. (See Doc. 

199, Exhibit 2, Deposition of Kevin Dunn, at 96-100.) Dunn testified that he and a cadet were 

jogging on Fountain’s track and talking about an upcoming high school football game between 

Hoover and Prattville. (Id. at 96-97.) According to Dunn, after he made what he considered to be 

appropriate use of the word “niggers,” the African-American cadet, Sikes, punched him in the 

face. (Id. at 96-98.) 

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insubordination. . . . 3. Serious violations of rules, policies, procedures, regulations, 

laws, or reasonable conduct expectations. . . . 4. Fighting, assault, physical violence or 

disruptive behavior. (Administrative Regulation 208, Annex H, Number 25).”) with Doc. 

199, Exhibit 10 (“Officer Dunn has pending (1) suspension for fighting, assault, physical 

violence or disruptive behavior, (2) written reprimand – disagreeable behavior 

including lack of cooperation and insubordination (x2), [and] (3) Warning – Tardy – late 

for work (1st offense) pending (2[nd] offense)[.]”)).

2

Following his resignation from the ADOC, Dunn was almost immediately 

employed by the Atmore Police Department. (See Doc. 199, Exhibit 14.) The record 

supplied by plaintiff recounting Dunn’s employment history reflects that the defendant

was employed by the Atmore Police Department from July 16, 2007 through July 30, 

2007 and again from August 27, 2007 through January 14, 2008, terminating his 

employment on both occasions by resignation. (See id.) Although this employment 

history is somewhat curious, it is clear that Dunn ultimately resigned from the Atmore 

Police Department in January of 2008 because he “got into it” with a fellow officer. (See

Doc. 199, Exhibit 2, Dunn depo., at 108-110.) Thereafter, Dunn did some contract “oil 

field” work for Parker & Sons in Atmore before going “back to the prison.” (See id. at 

111.)

Dunn’s reemployment with the Alabama DOC began on October 1, 2008 (Doc. 

199, Exhibit 14) and it appears that until his March 15, 2011 voluntary resignation he 

was at all times a Correctional Officer I at Holman Correctional Facility (compare id. with 

id., Exhibit 19). Dunn earned a reputation among inmates as a racist bully who targeted 

 2 Given that all of these infractions occurred during Dunn’s probationary period of 

employment, it is reasonable to conclude that Dunn resigned because he was not going to gain 

permanent status as a Correctional Officer I with the Alabama DOC. 

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certain inmates for harassment (compare, e.g., Doc. 199, Exhibit 4, Deposition of AshShakur Shabazz, at 19 (Dunn was a bully who abused his authority) with Doc. 199, 

Exhibit 5, Deposition of Reginald Welch, at 17-18 (Dunn used excessive force on 

Johnson and while Welch never saw Dunn use excessive force against any other inmate,

he did witness Dunn target certain black inmates for shakedowns and saw the 

correctional officer shut the hallway gate on black inmates and not let them pass 

through while allowing white inmates to pass through the hallway gate) and Doc. 199, 

Exhibit 6, Deposition of Kenyatta McMillian, at 15-16 (Dunn was a bully who had 

certain inmates he liked to pick on and who the witness saw try to “rough up” between 

4 and 5 inmates)) and even a fellow correctional officer had “heard” rumors that Dunn 

was an aggressive employee who liked to fight (Doc. 199, Exhibit 3, Deposition of 

Penton Ashworth, at 84; see also id. at 85-87 (Ashworth heard about Dunn getting into a 

racially-motivated altercation/fight with a supervisor at Fountain and he had also 

heard about an incident transpiring at the Atmore Police Department “where he [Dunn] 

was separated from employment.”)).

On November 10, 2010, inmate James Broadhead flooded his cell in the 

segregation unit and refused numerous orders to “cuff up” so that officers could strip 

his cell and clean up the water. (Doc. 190, Exhibit 23; see also Doc. 199, Exhibit 15.) After 

Broadhead refused several direct orders from Lieutenant James English to “cuff up,” 

English informed the inmate he would be sprayed with the chemical agent Sabre Red if 

he did not do as instructed. (Id.) When Broadhead again refused to obey, English 

sprayed Broadhead in the facial area (through the tray hole door) with the chemical 

agent and Broadhead replied by throwing a liquid substance at English which hit the 

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officer in the groin area. (Id.) Thereafter, a cell extraction team3 was assembled and after 

Broadhead again refused to comply with a direct order to “cuff up,” the cell extraction 

team entered the recalcitrant inmate’s cell and ultimately handcuffed and leg ironed 

Broadhead and took him to the Health Unit for assessment while his cell was stripped 

and cleaned and his water turned off. (Id.) What the incident report fails to reflect, 

however, is that during the cell extraction Dunn hit inmate Broadhead in the head (Doc. 

199, Exhibit 2, Dunn depo., at 116-117)—an action which Ashworth witnessed (compare 

Doc. 189, Exhibit 9, Ashworth depo., at 94 (he saw Dunn hit the inmate in the head with 

his closed fist) with Doc. 199, Exhibit 9, Investigative Report, at 4 (“On 1-06-11 I 

interviewed Sgt. Ashworth. . . . Sgt. Ashworth also mentioned that Officer Dunn has 

been told not to hit inmates in the head. Officer Dunn has also punched another inmate, 

in a different incident.”))—and was thereafter warned by Lt. James English not to hit 

inmates in the head (compare Doc. 199, Exhibit 3, Ashworth depo., at 95-96 (Lt. English 

told Ashworth that he specifically told Dunn not to hit inmates in the head) with Doc. 

199, Exhibit 2, Dunn depo., at 117-118 (although witness was sure Ashworth did not tell 

him not to hit inmates in the head, following the Broadhead cell extraction, he could not 

recall whether he was warned by some other correctional officer not to hit inmates in 

the head)). 

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”). (Compare Doc. 189, Exhibit 2, Deposition of 

David L. Johnson, at 11 with Doc. 199, Exhibit 9, Investigative Report, at 1 (subject of 

 3 The cell extraction team included Penton Ashworth as the shield man and Kevin 

Dunn who was responsible for Broadhead’s left leg. (Id.)

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report was allegation of excessive force at Holman Correctional Facility involving 

Johnson on December 31, 2010).)

4 Sergeant Penton Ashworth testified that he received 

an order from the medical staff that morning instructing that Johnson be placed in 

“medical hold” and after receiving that order from Nurse Hicks around 11:00 a.m. (and 

the medical staff, in turn, purportedly confirming same with the doctor) and finding out 

that Johnson was to be placed into medical hold because of a problem with his blood 

sugar, Ashworth radioed for plaintiff to be brought to the shift commander’s office on 

the main hall. (See Doc. 189, Exhibit 9, Ashworth depo. at 13, 15 & 17; Doc. 199, Exhibit 

3, Ashworth depo., at 14.)

5 At approximately 11:15 a.m., defendant Dunn went to

plaintiff’s cell block in general population and informed Johnson that because his blood 

sugar was high (over 400) he needed to report to the shift office to see defendant Penton 

Ashworth. (Compare Doc. 189, Exhibit 2, Johnson depo., at 11 with Doc. 189, Exhibit 10, 

Dunn depo., at 43 and Doc. 202, Exhibit 1, Declaration of David Johnson, at ¶ 6; see Doc. 

189, Exhibit 9, Ashworth depo., at 18 (“I advise[d] Inmate Johnson that he needed to go 

to medical hold per orders of the medical staff.”).) Upon arriving in the hallway outside 

the shift office, Ashworth informed Johnson that he was going to be sent to a one-man 

 4 Johnson, a medium custody inmate, is presently incarcerated at William E. 

Donaldson Correctional Facility. (Doc. 189, Exhibit 1.) Between November 27, 2000 and July 

11, 2011, the date of his deposition, Johnson received approximately thirty-six (36) 

disciplinaries. (Compare Doc. 189, Exhibit 2, Deposition of David L. Johnson, at 75 with id, 

Exhibit 4.) 

5 “James English was not at the Holman Correctional Facility and was not 

assigned to work on December 31, 2010.” (Doc. 190, Exhibit 22, Affidavit of Tony Patterson at 1; 

see also Doc. 190, Exhibit 15, Holman’s Shift Roster for December 31, 2010 (does not contain 

English’s name).)

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holding cell on death row (in the “Q-unit”)6 and isolated from the general population.

(Compare Doc. 189, Exhibit 2, Johnson depo., at 11 with Doc. 202, Exhibit 1, Johnson decl., 

at ¶ 6.) Johnson was confused by Ashworth’s statement because he had never been sent 

to the Q-unit for high blood sugar and had never heard of any inmate with a noncontagious disease going to the Q-unit (see id.);7 therefore, since it was apparent to 

Johnson that he was not going to be seen immediately by the medical staff he asserted 

his “legal right” to decline medical treatment and told Ashworth he wanted to sign the 

appropriate paperwork so that he could refuse medical treatment and return to general 

population. (Compare Doc. 202, Exhibit 1, Johnson decl., at ¶¶ 6-7 with Doc. 189, Exhibit 

2, Johnson depo., at 12.) Ashworth informed Johnson that he did not have the right to 

sign a medical form and refuse medical treatment, after which the two men began to 

argue over whether Johnson had the right to refuse treatment. (Compare id. at 12-13 with 

Doc. 202, Exhibit 1, Johnson decl., at ¶ 7.) As the two men argued, Ashworth drew his 

canister of chemical agent (id.) and told Johnson that one way or another he was going 

to a death row cell (Doc. 189, Exhibit 2, Johnson depo., at 12-13).8

 6 One deposed inmate described the “Q-unit” as an area with smaller, filthier 

single-man cells than the other one-man cells in segregation which the prison staff checks 

infrequently. (Doc. 199, Exhibit 5, Welch depo., at 26.) 

7 Indeed, Ashworth’s testimony is not contrary to that of Johnson, the witness

specifically stating that the “Q-unit” is primarily dedicated to inmates with medical problems 

who require observation and separation from the general population. (Doc. 189, Exhibit 9, 

Ashworth depo., at 18.) Ashworth also admitted that some inmates being processed into 

segregation are placed “momentarily” into the “Q-unit.” (Id. at 18-19.) 

8 It is Ashworth’s position that Johnson was disobeying a direct and lawful order 

and that in order to seek the inmate’s compliance with that order, he used the minimum 

amount of force necessary to gain control of the situation, that is, chemical spray and handcuffs.

(Doc. 189, Exhibit 9, Ashworth depo., at 98.) The lawfulness of Ashworth’s order, of course, is 

wrapped up in the communications Ashworth had with the medical staff. (See id. (“I was 

ordered to place him in [] medical hold, advised him that’s where he needed to go, and he said 

he wouldn’t.”).) However, there is no direct testimony from either the doctor who allegedly 

gave the order to move Johnson to the “Q-unit” or the nurse who purportedly received that 

(Continued)

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Feeling closed in and cornered by the six correctional officers/cadets outside the 

shift commander’s office, Johnson told Ashworth and the others that “whatever they 

planned to do to [him] in Q-unit they could go ahead and do to [him] on the hallway.”

(Doc. 202, Exhibit 1, Johnson decl., at ¶ 9; see also Doc. 189, Exhibit 2, Johnson depo., at 

13.)9 Without warning or provocation (compare Doc. 202, Exhibit 1, Johnson decl., at ¶ 9

with Doc. 189, Exhibit 2, Johnson depo., at 13; see also Doc. 190, Exhibit 13, Welch depo., 

at 7 (“Next thing I know . . . Lieutenant Ashworth reached and grabbed his . . . can and 

started spraying it. Diabetic Moe picked up the chair . . . .”); but cf. Doc. 189, Exhibit 9, 

Ashworth depo., at 25-26 (he did not spray plaintiff until after Johnson picked up the 

stool and he told the inmate to “halt”)), Ashworth sprayed Johnson in the face with a 

chemical agent called Sabre Red (see id. at 25 (Ashworth identified the chemical agent as 

Sabre Red)).

10 Johnson backed up against the wall and as Dunn also began to spray him 

with the chemical agent, plaintiff felt a wooden stool by him and picked it up to shield 

 

order from the doctor and relayed same to Ashworth that someone in Johnson’s medical 

condition not only could be placed in the “Q-unit” but, as well, could not sign a form refusing 

such “medical treatment/move.” And while it is clear that “[u]nder the federal rules, [h]earsay 

within hearsay is not excluded under the hearsay rule if each part of the combined statements 

conforms with an exception to the hearsay rule provided in these rules[,]” Clark v. APAC MidSouth, Inc., 2012 WL 6186012, *15 n.15 (N.D. Ala. Dec. 6, 2012) (internal quotation marks 

omitted; citations omitted), the defendants do not set forth the exceptions to which the alleged 

statements of the doctor and nurse conform.

9 Johnson did not tell the correctional officers to “Bring it on.” (Doc. 202, Exhibit 1, 

Johnson declar., at ¶ 9; but cf. Doc. 189, Exhibit 10, Dunn depo., at 49 (officer’s testimony that 

Johnson told them that they were going to have to drag him, to “bring it on,” and he picked up 

a wooden chair and started swinging it).)

10 Administrative Regulation 312 provides that chemical agents are to be used only 

to gain or regain control of a situation once other lesser methods on the use of force continuum 

are unsuccessful or have been determined to be ineffective and only after the giving of a verbal 

warning prior to discharge of the chemical agents. (Doc. 199, Exhibit 21, at 3.) In addition, the 

regulation provides that chemical agents shall be used only for self-defense against physical 

assault, defense of other staff, the general public, or other inmates, and when an inmate 

exercises physical resistance to a lawful command. (Id. at 4.)

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his face from the Sabre Red; he did not use the stool as a weapon or attempt to hit the 

correctional officers with the stool. (Doc. 202, Exhibit 1, Johnson decl., at ¶ 9; see also 

Doc. 189, Exhibit 2, Johnson depo., at 13; see Doc. 190, Exhibit 13, Welch depo., at 9-10

(first time Ashworth sprayed Johnson, Johnson did not have the wooden stool in his 

hand; plaintiff was just trying to go into the shift commander’s office but he did pick up 

the stool after he was sprayed and began swinging it in a sideways motion in front of 

his face to block the mace, not to hit the officers); Doc. 199, Exhibit 4, Shabazz depo., at 

13 (stool was being used by Johnson to defend against the mace coming at his face, not 

for assaultive purposes); Doc. 199, Exhibit 8, Deposition of James Earl Pittman, at 11-13 

(Johnson had the stool in front of his face to shield it from the spray; he was not using 

the stool in a threatening manner, as he did not lunge at the officers or push or shove 

the stool at the officers); but cf. Doc. 189, Exhibit 9, Ashworth depo., at 27-28 (plaintiff 

was swinging the stool toward the officers and even had it above his head at one point; 

it appeared to Ashworth that Johnson was going to use the stool against one of the 

officers).) Once the officers stopped spraying Johnson, it being admitted by Ashworth 

that he sprayed Johnson twice (see Doc. 189, Exhibit 9, Ashworth depo., at 29 & 33; Doc. 

199, Exhibit 5, Welch depo., at 8-9 (Ashworth sprayed plaintiff “[a]t least twice.”)), 

plaintiff dropped the stool on the ground (Doc. 202, Exhibit 1, Johnson decl., at ¶ 9; see 

also Doc. 189, Exhibit 2, Johnson depo., at 13).

Immediately upon Johnson dropping the stool, he was tackled by the defendants, 

including Ashworth (Doc. 189, Exhibit 9, Ashworth depo., at 33 (witness grabbed 

plaintiff’s right arm and helped take him to the ground)), and pinned to the ground in 

such a manner that he was on his stomach and his hands were behind his back (compare 

id. with Doc. 189, Exhibit 2, Johnson depo., at 16 and Doc. 202, Exhibit 1, Johnson decl., at 

¶ 10; see Doc. 189, Exhibit 5, Affidavit of James Pate, at 2 (he assisted in taking Johnson 

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to the floor and handcuffing the inmate); Doc. 189, Exhibit 6, Affidavit of Roger Marsh, 

at 1-2 (Marsh witnessed Ashworth take Johnson to the ground and he assisted in seeing 

that plaintiff was handcuffed).) Plaintiff offered no resistance and after the defendants 

handcuffed Johnson and while he was still on the ground, defendant Dunn stood up, 

reared back, and kicked plaintiff in the left eye at least once (Doc. 202, Exhibit 1, 

Johnson decl., at ¶ 10; see also Doc. 189, Exhibit 2, Johnson depo., at 16; Doc. 190, Exhibit 

12, Shabazz depo., at 15 (Dunn kicked Johnson really hard); Doc. 190, Exhibit 17, 

McMillian depo., at 21 (witness stands by his affidavit statements that after plaintiff was 

cuffed, Dunn got up off the floor and kicked Johnson in the eye)), if not two or three 

times (compare Doc. 190, Exhibit 13, Welch depo., at 12 (Dunn kicked plaintiff at least 

twice) with Doc. 199, Exhibit 6, McMillian depo., at 7 (Dunn kicked plaintiff two to three 

times). Dunn then knelt on Johnson’s neck and punched plaintiff with his closed fist. 

(Compare Doc. 190, Exhibit 12, Shabazz depo., at 11 & 15 with Doc. 199, Exhibit 9, 

January 20, 2011 Investigative Report of Kelley Smith, at 7 (investigator’s conclusion 

that Dunn kicked Johnson and then knelt down and hit the inmate with a closed fist).) 

Despite the trauma to Johnson’s left eye and the directive in Administrative 

Regulation 312 that “[p]ersons exposed to chemical agents shall be given immediate 

medical attention[,]” (Doc. 199, Exhibit 21, at 4 (emphasis supplied)), once plaintiff was 

picked up off the floor he was first taken to the shift office for a few minutes and then 

placed in a holding cell for 10 to 15 minutes before Correctional Officers Graham and 

Moody took him to the prison infirmary for a body chart (Doc. 189, Exhibit 2, Johnson 

depo., at 18-20; compare id. with Doc. 189, Exhibit 7, Affidavit of Jeffrey Cantey, at 2 

(Johnson was placed in the holding cell for less than 20 minutes)). According to Cantey, 

Johnson was placed in the holding cell to await medical treatment because one of the 

two examination rooms in Holman’s small Health Care Unit was occupied by an inmate 

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receiving a breathing treatment and the other was occupied by Ashworth who was 

being decontaminated. (See id. (“It is also a policy at Holman Prison that, in the event of 

an altercation between an inmate and an officer, in which the initial treatment appears 

to be similar and non-life threatening, the officer gets treated first so that he is able to 

return to his post.”).) Johnson ultimately got his “Body Chart,” which revealed: 

moderate swelling of the left eye; left pupil not responding to light; and plaintiff’s 

inability to read the eye chart. (Doc. 189, Exhibit 8, at 1.) The notes on the chart reflect 

that Dr. Barber was notified of the condition of Johnson’s eye and the doctor ordered an 

ice pack, instillation of what appear to be eye drops, and ordered that plaintiff be 

rechecked again in two hours. (See id.) 

While Johnson was being checked by Holman’s medical staff, all the officers and 

cadets named as defendants in this action (i.e., Pate, Marsh, Mummert, Bell, Ashworth, 

and Dunn) decided to cover-up the fact that Dunn caused the trauma to Johnson’s left 

eye by kicking and hitting him. (Compare Doc. 199, Exhibit 9, Investigative Report, at 7 

& 8 (“Sgt. Ashworth was clear that he knew Officer Dunn had punched the inmate, but 

still put in his own report that Officer Dunn used a brachial stun and allowed Officer 

Dunn to falsify his report. . . . This is also true with all of the officers involved and 

interviewed. The officers were well aware that unnecessary force was used by Officer 

Dunn and failed to report the offense in their reports. . . . The two cadets, Cadet 

Mummert and Cadet Bell, clearly lied in their statements. They were over heard by a 

fellow officer talking about how they saw Officer Dunn kick the inmate. These two are 

cadets that are showing they are dishonest and will aid in covering up a wrongful act.”) 

with Doc. 190, Exhibit 14, Incident Report (reflecting Dunn’s statement that he 

attempted to strike Johnson with a “brachial technique” but that the inmate moved 

causing Dunn to strike Johnson in his left eye) and Doc. 199, Exhibit 2, Dunn depo., at 64 

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(Dunn initially told the investigator that he attempted to use a brachial technique 

because Ashworth told him to tell her that in order to keep both of them from getting 

into trouble).) The subsequent re-check of Johnson’s eye by the prison medical staff 

convinced them that plaintiff’s injury needed outside attention because he was 

transported to North Baldwin Infirmary in Bay Minette, Alabama and admitted at 3:44 

p.m. complaining of eye pain; a CT scan of plaintiff’s facial bones and C-spine were 

obtained. (Doc. 199, Exhibits 31 & 33; see also Doc. 199, Exhibit 16, Johnson depo., at 45 

(nurse gave plaintiff some cream to use because he was still burning all around the back 

of his neck and his shoulder area from the chemical agent)

11.) Later still that day, 

specifically at 8:38 p.m., plaintiff was admitted to Mobile Infirmary Medical Center in 

Mobile, Alabama for treatment of his left eye injury. (Doc. 199, Exhibit 32.) 

On January 4, 2011, Johnson was treated by Dr. John A. Jones, an 

ophthalmologist in Montgomery, Alabama. (Compare Doc. 190, Exhibit 20, Deposition of 

Allen Jones, M.D., at 6, 8 & 10-11 with Doc. 189, Exhibit 8, at 4.) Jones’ January 4, 2011 

examination of plaintiff’s left eye revealed a traumatized eye with cells flared and a 

murky-looking anterior of the chamber and 20/100 corrected vision for distance; Jones 

found no foreign body in the eye, no corneal defect, and no damage to the lens. (Doc. 

190, Exhibit 20, Jones depo., at 11-16.)12 Jones treated the inflammation of the eye (iritis) 

 11 Although Johnson’s Body Chart from Holman reflects that his eyes were 

decontaminated, nothing on the chart reflects that plaintiff was given anything because of the 

burning on his neck and shoulder area caused by the chemical agent. (Compare id. with Doc. 189, 

Exhibit 8, at 1.) However, the medical records from North Baldwin Infirmary reflect that 

Silvadene Cream was applied to Johnson’s posterior neck. (Doc. 199, Exhibit 33.)

12 Although plaintiff has supplied to this Court a record obtained from Dr. Jones’ 

office that purports to be a record of an eye examination performed by Jones on him and dated 

October 18, 2005 (Doc. 199, Exhibit 34, at 1 & 5), that report of eye examination by Jones actually 

relates to another inmate, David Aaron Johnson, then a 20-year-old white male (id. at 1).

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by dilating the eye and putting it at rest and using topical steroid drops to fight the 

inflammation; Johnson was given shades, a prescription for the eye drops, and told to 

return in a week. (See id. at 17-18.) Johnson returned to Jones on January 11, 2011 and 

although his corrected vision in the right eye was noted to be 20/20 his corrected vision 

in the left eye remained at 20/100. (Id. at 18.) Jones observed that plaintiff was 

responding nicely to treatment; in fact, although Jones kept Johnson on the eye drops 

that kept his eye at rest by keeping his pupil from constricting, he stopped the steroidal 

eye drops. (Id. at 19.) Jones noted Johnson’s lens was clear—with no mention of a 

cataract—and he also found no signs of retinal problems due to diabetes. (Id. at 19-20.) 

Johnson returned to Jones one last time on February 3, 2011; the inmate’s iritis was 

resolved so Jones stopped all eye drops. (Id. at 20-21.) Jones noted that Johnson’s eye 

was still dilated but could not say whether that was from the medicine or the initial 

trauma; he discontinued the shades and told Johnson to return to him as needed. (Id. at 

21-22.)

The day after Johnson first was treated by Dr. Jones, that is, on January 5, 2011, 

Kelley Smith, an investigator with the Investigation and Intelligence Division of the 

ADOC, was assigned to investigate “allegations of excessive force by Officer Kevin 

Dunn against inmate David Johnson[.]” (Doc. 199, Exhibit 9, at 1 & 8.) During her 

approximately two-week investigation, Smith interviewed numerous officers, medical 

staff, and inmates at Holman, including all named defendants with the exception of 

James English (that is, Cadets Mummert and Bell, and Correctional Officers Pate, 

Marsh, Ashworth, and Dunn). (See id. at 2-7.) Importantly, Smith’s investigation not 

only substantiated “the allegations that Officer Dunn used excessive force” (id. at 2) but, 

as well, revealed that all officers involved falsified their reports by not reporting Dunn 

and/or lied in their reports to cover-up Dunn’s misdeeds (see id. at 7-8).

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After interviewing those involved with the incident pertaining to inmate 

Johnson it is clear excessive force was used by Officer Dunn. Although he 

denies kicking the inmate, he was untruthful in his original statement and 

report. Officer Dunn in fact stated he punched the inmate with a closed 

fist, while he was face down on the ground, either being cuffed or already 

cuffed in his second statement. The blunt force trauma to inmate 

Johnson’s eye goes beyond a single strike. The injury indicates inmate 

Johnson was kicked in the eye. The witnesses clearly saw Officer Dunn 

kick the inmate, and then kneel down, at which time Officer Dunn hit 

inmate Johnson [with a] closed fist in the face.

Sgt. Ashworth was clear that he knew Officer Dunn had punched the 

inmate, but still put in his own report that Officer Dunn used a brachial 

stun and allowed Officer Dunn to falsify his report. Sgt. Ashworth went 

on further to say he feels like Officer Dunn kicked inmate Johnson, but 

failed to report this. As the Sergeant handling this incident he had a duty 

to be truthful and make sure Officer Dunn was truthful in his report 

before he approved it.

This is also true with all of the officers involved and interviewed. The 

officers were well aware that unnecessary force was used by Officer Dunn 

and failed to report the offense in their reports. This is supported by 

Officer Dunn’s own statement as he admits that he, Sgt. Ashworth and the 

other officer[]s involved were in a discussion[] [regarding] the best 

scenario to put in the report. Officer Dunn stated they were in the shift 

officer after the incident. This discussion took place because they found 

out inmate Johnson was sent out to a free world hospital. 

The two cadets, Cadet Mummert and Cadet Bell, clearly lied in their 

statements. They were over heard by a fellow officer talking about how 

they saw Officer Dunn kick the inmate. These two are cadets that are 

showing they are dishonest and will aid in covering up a wrongful act.

In conclusion, the allegation that Officer Dunn used excessive force is 

substantiated.

(Id.)13 Indeed, Ashworth testified that once an inmate is on the ground there is no need 

to kick or hit the inmate in the head. (Doc. 199, Exhibit 3, Ashworth depo., at 96; see also 

 13 Administrative Regulation 327 lists chemical agents as a type of force that may 

be utilized (Doc. 199, Exhibit 22, at 4); defines excessive force as “[t]he amount of force which is 

beyond the need and circumstances of the particular event, or which is not justified in light of 

all of the circumstances[,]” (id. at 2); and provides that the application of physical force “[m]ust 

be reasonable and necessary under the circumstances[,] . . . [s]hall be only the minimum amount 

necessary to control the situation or achieve a legitimate correctional objective[,] . . . [s]hall 

never be used as punishment[,] . . . [s]hall be dependent upon the inmate’s action or non-

(Continued)

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15

Doc. 189, Exhibit 9, Ashworth depo., at 100 (once plaintiff was on the ground and was 

not putting up any resistance, he should not have been struck).)

Administrative Regulation 208 governs Employee Standards of Conduct and 

Discipline. (Doc. 190, Exhibit 24.) This regulation specifically provides that employees 

“shall not” abuse inmates in any manner and that in applying physical force to an 

inmate, such force shall only be “to the degree that is reasonably necessary in selfdefense, to prevent an escape, to prevent an injury to a person or the destruction of 

property, to quell a disturbance, or to restrain an inmate who exercise physical 

resistance to a lawful command.” (Id. at 5 & & 6.) 14 There can be little doubt that the 

investigative findings made by Kelley Smith on January 20, 2011, and Dunn’s clear 

violation of Administrative Regulation 208, led to Dunn tendering his resignation on 

March 15, 2011. (Compare Doc. 199, Exhibit 19 with id., Exhibits 9 & 26.)

SAMPLE: RESIGNATION FROM EMPLOYMENT

 

action[,] . . . [s]hall be determined on a case by case basis and the employee using or authorizing 

force will be required to justify the action taken[,] . . . [and w]ill stop when resistance offered by 

the inmate ceases and the inmate is under control and placed in appropriate restraints.” (Id. at 

3.) 

14 Annex H to Administrative Regulation 208 is a Table of Infractions and Level of 

Discipline. (See, e.g., Doc. 190, Exhibit 14, Annex H, at 1-6.) When Dunn was first employed by 

the ADOC at Fountain Correctional Facility, and for some period of time during his second 

period of employment with the ADOC at Holman Correctional Facility, Annex H provided that 

fighting, assault, and physical violence or disruptive behavior (Infraction #25) would result in a 

5-day suspension on first occurrence, a 15-day suspension on a second occurrence, and dismissal 

upon a third infraction. (See Doc. 199, Exhibit 27, Annex H, at 1.) During this period of time, 

Annex H also provided that abusive or excessive physical force in dealing with inmates would 

result in a 5-day suspension on first occurrence and dismissal upon any subsequent violation. 

(See id. at 2.) Annex H was revamped in 2009 to provide a three-day suspension on first 

occurrence of either of the foregoing infractions and dismissal upon a second occurrence of

either infraction. (See Doc. 190, Exhibit 14, Annex H, #s 29 & 30, at 3 & 4.) 

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 15 of 55
16

In accordance with Department of Corrections Administrative Regulation 

208, I do hereby waive my rights to a Pre-Dismissal Conference and resign 

my employment with the Alabama Department of Corrections effective 

immediately.

This resignation is not made as a result of any coercion, duress, threat, or 

promise. I was offered a pre-dismissal conference under the provisions of 

Department of Corrections Administrative Regulation 208.

I understand that with this voluntary resignation it is highly probable that 

I will not be recommended for reemployment with the Department of 

Corrections.

(Doc. 199, Exhibit 19.) Dunn’s resignation was received and accepted by Holman 

Warden Tony Patterson at 12:25 p.m. on March 15, 2011. (Id.) The following day, March 

16, 2011, Warden Patterson signed a Recommendation for Personnel Action; this 

document not only notes Dunn’s resignation but also contains the recommendation that 

Dunn not be considered for reemployment with the ADOC. (Doc. 199, Exhibit 26.) The 

Commissioner of the Alabama Department of Corrections, Kim Thomas, responded to 

the March 21, 2011 inquiry of the Director of Alabama’s Personnel Division regarding 

whether he approved the “’no’” reemployment recommendation regarding Dunn (see

Doc. 199, Exhibit 29) by signing the Recommendation for Personnel Action on March 24, 

2011 (see Doc. 199, Exhibit 26). 

On October 7, 2011, while housed at Donaldson Correctional Facility, Johnson 

was examined by an optometrist, Michael Hooks, O.D. (Doc. 190, Exhibit 21, Deposition 

of Michael Hooks, at 9.) Hooks saw no inflammation but did note an early cataract in 

Johnson’s left eye. (Id. at 12.)15 When Hooks saw Johnson again on March 19, 2012, the 

 15 A cataract is “an opacity or discoloration of the lens[.]” (Doc. 190, Exhibit 20, 

Jones depo., at 24.)

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 16 of 55
17

optometrist diagnosed a nuclear cataract16—a cataract to the central part of the lens—

and noted the cataract was diffuse, meaning the lens was turning “yellowish.” (Id. at 

14.) Although Hooks could not determine the cause of the cataract (id.), he testified that 

a kick to the left eye which damaged the lens, that is, caused iritis, would be the type 

trauma that could well have caused the cataract (see id. at 15-18; see also id. at 20 

(“[G]oing by your hypothetical that the injury caused the iritis, then it’s possible that the 

cataract certainly was caused by the injury[.]”)). Hooks also admitted that given the fact 

that the 50-year-old plaintiff’s right eye was clear and the right lens was okay it “would 

make it more likely to believe” the cataract was caused by trauma to the left eye. (Id. at 

26.) Dr. Jones, in turn, testified that traumatic cataracts develop much more slowly 

than, for instance, diabetic cataracts, and there is gradual worsening (Doc. 190, Exhibit 

20, Jones depo., at 27), such that it would be his opinion that plaintiff’s development of 

a cataract approximately one year after “trauma to an eye is consistent with the trauma 

being a significant factor in the cataract formation.” (Id. at 41.) Finally, although Dr. 

Jones’ testimony was clear that treatment for a “visually significant cataract” is surgery 

(id. at 28), Hooks’ testimony was equally clear that Johnson’s corrected vision in the left 

eye (20/30) on March 19, 2012 would not make him a candidate for cataract surgery 

even in the free world (Doc. 190, Exhibit 21, Hooks depo., at 21 & 24). Although perhaps 

not a candidate for surgery, the cataract does cause plaintiff blurred vision. (Compare 

Doc. 189, Exhibit 2, Johnson depo., at 44 with Doc. 199, Exhibit 36.)

17

 16 Hooks admitted that he has seen trauma induce a nuclear sclerotic cataract. (Doc. 

190, Exhibit 21, Hooks depo., at 21-22.)

17 It appears that Johnson’s uncorrected vision in his left eye was 20/200 on August 

9, 2012. (Doc. 199, Exhibit 36.) An Examination Sheet from Kilby Correctional Facility reveals 

that Johnson was seen by an optometrist on January 2, 2013; the optometrist noted Johnson’s 

mild cataract and gave him a prescription for Pred Forte eye drops. (Doc. 189, Exhibit 8, at 5.)

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 17 of 55
18

Alabama’s General Liability Trust Fund is, at present, defending Penton 

Ashworth, Roger Marsh, and James Pate (and, presumably, James English) under a 

reservation of rights. (See Doc. 199, Exhibit 20.) “The Fund’s coverage applies only to 

occurrences caused by or resulting from negligent or wrongful acts or omissions in 

performance of a Covered Employee’s official duties in the line and scope of 

employment with the State of Alabama.” (Id. at 1.)

While none of the relevant defendant officers believe they could have done 

anything to prevent Dunn’s assault of Johnson (compare Doc. 189, Exhibit 5, Pate aff., at 

2 (“Even if I had seen something to indicate that former Officer Dunn was about to kick 

or hit Inmate Johnson, I could not have gotten up off the floor in time to physically stop 

him.”) with id., Exhibit 6, Marsh aff., at 2 (“Even if I had seen what I believed was an act 

of aggression from former Officer Dunn,18 I could not have gotten up off of the floor, 

went around the other officers who were handcuffing Johnson, and stopped former 

Officer Dunn from kicking Inmate Johnson.”( footnote added)) and Doc. 199, Exhibit 23, 

Affidavit of Penton Ashworth, at 2 (“[E]ven if I had heard former Officer Dunn threaten 

to harm Johnson, I was so incapacitated [by the pepper spray] that there is nothing 

physically I could have done to stop him.”)),19 and even plaintiff begrudgingly concedes

 18 The undersigned finds curious that none of the correctional officers involved in 

the incident acknowledge seeing Dunn kick or hit Johnson, whereas the inmate witnesses—all 

of whom were not as close to Johnson as were the officers—saw Dunn kick and/or hit Johnson. 

19 Ashworth’s affidavit statement that he “never heard anything which would 

indicate that he [Johnson] was about to be hit or kicked[,]” (Doc. 189, Exhibit 3, Ashworth aff., at 

2) appears a bit inconsistent with his sworn deposition testimony that although he could not see 

“he could hear[.]” (Doc. 189, Exhibit 9, Ashworth depo., at 36 (says he heard officers trying to 

get handcuffs on Johnson and heard the inmate grunt and exclaim, “You didn’t have to hit 

me[.]”).) The undersigned is struck by Ashworth hearing a grunt from Johnson but his apparent 

inability to hear that which was heard by at least one inmate witness, namely the distinct 

sounds of one individual hitting another individual. (See, e.g., Doc. 190, Exhibit 16, Deposition of 

Eric T. Person, at 27.) 

(Continued)

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19

the officers could have done nothing to prevent Dunn’s initial kick (see Doc. 189, Exhibit 

2, Johnson depo., at 48; compare id. with Doc. 190, Exhibit 11, Pittman depo., at 28 (no one 

was aware Dunn was going to kick Johnson given that plaintiff was handcuffed on the 

ground)), it is plaintiff’s position, supported by the testimony of a fellow inmate, that 

the officers could have stopped Dunn’s continued assault (compare Doc. 189, Exhibit 2, 

Johnson depo., at 48 & 59-63 with Doc. 190, Exhibit 12, Shabazz depo., at 15-16 

(Ashworth, for one, saw what Dunn was doing to Johnson and while he could not have 

stopped the kick, Ashworth could have stopped Dunn from punching plaintiff); see Doc. 

202, Exhibit 1, Johnson declar., at ¶ 11 (“Instead of lifting me up off the ground to my 

feet, Ashworth, Pate, Bell and Mummert forcefully held me down as Dunn stood up 

and kicked me. None of the officers did anything to intervene while I was assaulted. No 

officer physically restrained Dunn. No officer ordered him to stop. No officer said 

 

The undersigned also finds curious (and actually, “incredible” at this stage of the 

proceedings) Ashworth’s affidavit and deposition testimony that he was totally “blinded” or 

“incapacitated” by the pepper spray (compare Doc. 189, Exhibit 3, Ashworth aff., at 2 with id., 

Exhibit 9, Ashworth depo., at 34), given his clear testimony that he came in contact with the 

pepper spray in taking Johnson to the ground (see id. at 33) and evidence in the record 

indicating that other officers, including Dunn, were involved in taking Johnson to the ground 

but had no ill effects whatsoever from the chemical agent (compare Doc. 189, Exhibit 10, Dunn 

depo., at 55-56 (although Dunn testified Ashworth was not involved in taking Johnson to the 

floor, he testified that he was instrumental in taking the inmate to the floor, with an assist from 

Pate and Marsh, but makes no mention of coming in contact with the chemical agent in taking 

Johnson to the floor) with Doc. 189, Exhibit 5, Pate aff., at 2 (he assisted other officers in placing 

Johnson on the floor and was focusing on handcuffing the inmate but clearly did not come in 

contact with the chemical agent in doing so because his sole comment is that “[o]nce 

handcuffed, Inmate Johnson was taken away, presumably for decontamination and I did not see 

him again.” (emphasis supplied)). While Ashworth may have come into some contact with the 

pepper spray (see Doc. 190, Exhibit 12, Shabazz depo., at 27 (inmate witness could not hide a bit 

of surprise when told during questioning that Ashworth had Mace in his eyes but stated that 

was “possible.”); compare id. with Doc. 190, Exhibit 13, Welch depo., at 28 (“[H]e Maced his 

ownself if Sergeant Ashworth were maced.” (emphasis supplied)), there is nothing in the record 

to bolster Ashworth’s testimony that he was “totally” incapacitated by the pepper spray, as at

least one inmate testified Ashworth saw Dunn kick and hit plaintiff (Doc. 190, Exhibit 12, 

Shabazz depo., at 15-16) and the correctional officer certainly managed to direct the following 

comment to Johnson while on the floor: “You brought [this] on yourself.” (Doc. 190, Exhibit 13, 

Welch depo., at 14.) 

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 19 of 55
20

anything at all to attempt to stop Dunn from assaulting me. All the officers were within 

a few feet of Dunn as he assaulted me. All of the officers were certainly within earshot 

of Dunn and could have told him not to assault me, or to stop after the assault began. 

Instead, they held me down and facilitated Dunn’s assault on me.”)).20

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.

 20 The undersigned need note that Marsh’s affidavit statement that he was holding 

Johnson’s legs while he was being handcuffed and at no time saw anyone hit or kick plaintiff 

(Doc. 189, Exhibit 6, Marsh aff., at 2) stands in stark contrast to Johnson’s sworn testimony that 

the correctional officer was standing and looking at Dunn kick him (Doc. 189, Exhibit 2, Johnson 

depo., at 59). 

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 20 of 55
21

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.

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.

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22

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)

. . .

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

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

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 22 of 55
23

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 

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. 

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 23 of 55
24

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, 

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.

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 24 of 55
25

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. Summary Judgment Standard. Summary judgment is proper “if the 

movant shows that there is no genuine dispute as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“The 

mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment.”); Garczynski v. Bradshaw, 

573 F.3d 1158, 1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if ‘some

alleged factual dispute’ between the parties remains, so long as there is ‘no genuine issue 

of material fact.’”). 

The party seeking summary judgment has the initial responsibility of informing 

the court of the basis for the motion and of establishing, based upon the discovery 

instruments outlined in Rule 56(c), that there is no genuine issue of material fact and 

that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 

477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Allen v. Board of 

Public Educ. for Bibb County, 495 F.3d 1306, 1313 (11th Cir. 2007) (“The moving party 

bears the initial burden of showing the court, by reference to materials on file, that there 

are no genuine issues of material fact that should be decided at trial.”). Once this initial 

demonstration is made, the “responsibility then devolves upon the non-movant to show 

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 25 of 55
26

the existence of a genuine issue . . . [of] material fact.” Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1116 (11th Cir. 1993); see also Allen, supra, at 1314 (“‘When a moving party has 

discharged its burden, the non-moving party must then “go beyond the pleadings,” and 

show by its own affidavits, or by “depositions, answers to interrogatories, and 

admissions on file,” designate specific facts showing that there is a genuine issue for 

trial.’”); see Comer v. City of Palm Bay, Florida, 265 F.3d 1186, 1192 (11th Cir. 2001) (“Once 

the moving party discharges its initial burden of showing that there is an absence of 

evidence to support the non-moving party’s case, the non-moving party must specify 

facts proving the existence of a genuine issue of material fact for trial confirmed by 

affidavits, ‘”depositions, answers to interrogatories, and admissions on file.”’”).

Forbidding reliance upon pleadings precludes a party from 

“choos[ing] to wait until trial to develop claims or defenses relevant to the 

summary judgment motion.” . . . This effectuates the purpose of summary 

judgment which “‘is to pierce the pleadings and to assess the proof in 

order to see whether there is a genuine need for trial.’” . . . Thus, “mere 

general allegations which do not reveal detailed and precise facts” will not 

prevent the award of summary judgment upon a court’s determination 

that no genuine issue for trial exists.

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.), cert. denied sub nom. 

Jones v. Resolution Trust Corp., 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 33 (1995); see also 

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998) (“[The nonmoving 

party] must raise ‘significant probative evidence’ that would be sufficient for a jury to 

find for that party.”). In other words, there is no genuine issue for trial “[w]here the 

record taken as a whole could not lead a rational trier of fact to find for the non-moving 

party[.]” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 

1348, 1356, 89 L.Ed.2d 538 (1986); see Comer, supra, 265 F.3d at 1192 (“Summary 

judgment is required where the non-moving party’s response to a motion is merely ‘a 

Case 1:11-cv-00228-CG-C Document 203 Filed 06/10/13 Page 26 of 55
27

repetition of his conclusional allegations’ and is unsupported by evidence showing an 

issue for trial.”).

In considering whether the defendants are entitled to summary judgment in this 

case, the Court has viewed the facts in the light most favorable to the plaintiff. Comer, 

supra, 265 F.3d at 1192 (“We view the evidence and all factual inferences raised by it in 

the light most favorable to the non-moving party, and resolve all reasonable doubts 

about the facts in favor of the non-moving party.”). 

The requirement to view the facts in the nonmoving party’s favor 

extends only to “genuine” disputes over material facts. A genuine dispute 

requires more than “some metaphysical doubt as to the material facts.” A 

“mere scintilla” of evidence is insufficient; the non-moving party must 

produce substantial evidence in order to defeat a motion for summary 

judgment. 

Garczynski, supra, 573 F.3d at 1165 (internal citations omitted). In addition, “[t]here is no 

burden upon the district court to distill every potential argument that could be made 

based upon the materials before it on summary judgment.” Resolution Trust Corp., supra, 

43 F.3d at 599.

B. The Defense of Qualified Immunity and Plaintiff’s Claims of Excessive 

Force and Failure to Intervene. Defendants Ashworth, Pate, Marsh, and English argue

that they are entitled to qualified immunity as it relates to plaintiff’s claims of excessive 

force and failure to intervene.

21 It is clear in the Eleventh Circuit, however, that the 

 21 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 (citations omitted); see also Ashcroft v. al-Kidd, U.S. , , 131 

S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (“Qualified immunity shields federal and state officials 

from money damages unless a plaintiff pleads facts showing (1) that the official violated a 

statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the 

challenged conduct.”). In other words, a Court’s inquiry into qualified immunity involves two 

prongs: “First, a plaintiff must show that a constitutional or statutory right has been violated. 

(Continued)

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defense of qualified immunity “is not available in cases alleging excessive force in 

violation of the Eighth Amendment, because the use of force ‘maliciously and 

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

the Supreme Court decisions in Hudson and Whitley.” Skrtich v. Thornton, 280 F.3d 1295, 

1301 (11th Cir. 2002) (citation omitted). “Moreover, 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.” Id. (citations omitted). 

As explained by the Eleventh Circuit, “[t]here is simply no room for a qualified 

immunity defense when the plaintiff alleges such [] violation[s].” Id.22 Accordingly, in 

answering the questions of whether the facts alleged/established by Johnson make out 

violations of his Eighth Amendment rights, the undersigned looks, in turn, at the force 

utilized by Dunn and Ashworth. 

Excessive Force—Dunn. Defendant Dunn has not moved for summary judgment 

in this case and has thereby conceded that the facts in this case establish (which they do) 

that in kicking and hitting plaintiff in the left eye on December 31, 2010, while Johnson 

laid facedown and handcuffed on the ground, he utilized excessive force in violation of 

the Eighth Amendment. Such concession is consistent with the findings of the ADOC’s 

own internal investigation and is further confirmed by the testimony of moving 

 

Second, a plaintiff must show that the right violated was clearly established.” Fennell v. Gilstrap, 

559 F.3d 1212, 1216 (11th Cir. 2009), citing Danley v. Allen, 540 F.3d 1298, 1306 (11th Cir. 2008).

22 “We created this rule because, for an excessive-force violation of the Eighth . . . 

Amendment[], ‘the subjective element required to establish it is so extreme that every 

conceivable set of circumstances in which this constitutional violation occurs is clearly 

established to be a violation of the Constitution . . . .’” Fennell v. Gilstrap, 559 F.3d 1212, 1217 

(11th Cir. 2009), quoting Johnson v. Breeden, 280 F.3d 1308, 1321-1322 (11th Cir. 2002) (other 

citation omitted).

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29

defendant Penton Ashworth. Simply put, there can be no doubt that on December 31, 

2010, Dunn applied force to Johnson “’maliciously and sadistically for the very purpose 

of causing harm.’” Whitley v. Albers, 475 U.S. 312, 320-321, 106 S.Ct. 1078, 1085, 89

L.Ed.2d 251 (1986) (citation omitted).

While defendants Ashworth, Pate, and Marsh have stated (whether by affidavit 

or deposition testimony, or both)23 they did not see Dunn kick and hit Johnson and, in 

any event, could not have done anything to physically stop Dunn’s assault,

24 the 

evidence offered by plaintiff, and considered in the light most favorable to plaintiff, 

refutes the testimony of the moving defendants. Such evidence establishes that Dunn’s 

assault occurred after plaintiff was handcuffed and laying unresisting on the ground 

and was an assault which all inmate witnesses could clearly observe though they all 

were in positions much further away from Dunn than were the moving defendants.25

Moreover, there is testimony from plaintiff and other inmate witnesses that the moving 

defendants could have taken some action after Dunn’s initial kick but took no action to 

 23 While the undersigned does not believe plaintiff alleges that defendant English is 

in any manner liable for failing to intervene to stop Dunn’s assault, to the extent he is making 

that allegation, English is entitled to summary judgment inasmuch as the evidence clearly 

establishes that English was not working at Holman Correctional Facility on December 31, 2010.

24 See Campbell v. Harvill, 2012 WL 928607, *5 (M.D. Ga. Feb. 15, 2012) (“To be held 

liable for his nonfeasance, an officer (1) must have observed or had reason to know that 

excessive force would be or was being used, and (2) must have had both the opportunity and 

the means to prevent harm from occurring.”), report and recommendation adopted by, 2012 WL 

929614 (M.D. Ga. Mar. 19, 2012).

25 The undersigned not only finds the moving defendants’ testimony that they did 

not “see” Dunn’s attack incredibly convenient but, as well, at least at this point in time, 

incredible given that all inmate witnesses saw the attack and were much more removed from 

Dunn than were Ashworth, Marsh, and Pate. The undersigned will be in a much better position 

to judge the credibility of all witnesses (including that of defendants Ashworth, Pate, and 

Marsh) at the evidentiary hearing to be held in this case. See Gladys, infra, at *4 (“It is well 

established that assessing the credibility of the allegations made by a plaintiff or defendant is 

beyond the scope of a trial court’s ruling on a motion for summary judgment.”).

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30

physically stop Dunn, nor did any of the aforementioned three defendants order Dunn 

to stop the assault. Accordingly, the undersigned finds that Ashworth, Pate, and Marsh 

are not entitled to qualified immunity in this regard, as disputed issues of material fact 

exist regarding whether these three defendants witnessed Dunn’s use of excessive force 

and failed to intervene. Compare, e.g., Connell v. Tate, 2012 WL 252817, *13 (M.D. Fla. Jan. 

25, 2012) (“Since Plaintiff’s claim of excessive force survives the Motion for Summary 

Judgment, his claim of failure to protect will also survive the Motion for Summary 

Judgment[.] . . . Although Defendant Esford claims he is entitled to qualified immunity 

because he did not witness the use of force, . . . he originally claimed that he witnessed 

the use of force. Plaintiff asserts that Esford witnessed the incident and failed to 

intervene when Plaintiff was being beaten by the officers, and Esford was in a position 

to intervene. The facts, as alleged, show that Defendant Esford violated a constitutional 

right, failing to intervene when Plaintiff was being beaten by correctional officers when 

Esford was in a position to intervene.”) with Johnson v. DeLoach, 692 F.Supp.2d 1316, 

1328 (M.D. Ala. Feb. 25, 2010) (“Johnson contends defendant Boozer slapped him in the 

face, struck him on the head, threw him to the floor and choked him for no reason and 

while he posed no threat to Boozer. . . . Johnson maintains defendants Bradford and 

Golson ‘just stood [there] and watched’ without intervening to stop Boozer. . . . The 

defendants further argue neither Bradford nor Golson witnessed any use of excessive 

force against Johnson. Viewing the facts in the light most favorable to Johnson, as is 

required at this stage of the proceedings, the court concludes defendants Boozer, 

Bradford and Golson are not entitled to qualified immunity as the plaintiff has alleged 

facts sufficient to survive their motion for summary judgment regarding the excessive 

force claim lodged against them. . . . A genuine issue of material fact likewise exists 

regarding whether Bradford and Golson witnessed the use of excessive force and failed 

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31

to intervene.”); see Campbell, supra, at *5 (“[I]t is established in the Eleventh Circuit that 

[an] ‘officer has a duty to intervene when another officer uses excessive force.’”).

Excessive Force—Ashworth’s Use of Pepper Spray. Turning to the excessive 

force claim asserted against defendant Penton Ashworth, for his use of pepper spray 

against Johnson, the undersigned notes with interest the following discussion from 

Connell v. Tate, supra:

[I]n order to prevail on an excessive-force claim, a plaintiff must 

demonstrate that those who used force against him acted with a malicious 

purpose. In addition, a plaintiff must prove that a requisite amount of 

force was used against him. The Eighth Amendment’s prohibition of cruel 

and unusual punishments necessarily excludes from constitutional 

recognition de minimis uses of physical force, provided that the use of 

force is not of a sort repugnant to the conscience of mankind.26 In 

determining whether the amount of force used against an inmate was de 

minimis, a court may consider the extent of the injuries suffered by the 

inmate. Nevertheless, a court ultimately should decide an excessive force 

claim based on the nature of the force rather than the extent of the injury.

27

Id. at *12 (internal quotations marks and citations omitted; footnotes added).28

In Thomas v. Bryant, 614 F.3d 1288 (2010), the Eleventh Circuit reiterated that 

while “the use of chemical agents on recalcitrant prisoners is not per se 

unconstitutional, there are constitutional boundaries to its use.” Id. at 1310 (all citations 

omitted). The appellate court further noted that the district court’s determination that 

 26 It is clear that “the use of de minimis force—including chemical sprays—can 

support an excessive-force claim[.]” Thomas v. Comstock, 222 Fed.Appx. 439, 442 (5th Cir. Mar. 

16, 2007). 

27 Beyond the extent of injury inflicted, other relevant factors in evaluating an 

excessive-force claim include “the need for 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.’” Hudson v. 

McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992), quoting Whitley v. Albers, 

supra, 475 U.S. at 321, 106 S.Ct. at 1085. As touched on hereinafter, this case presents material 

questions of fact regarding each of these factors such that summary judgment is inappropriate.

28 Thus, “[t]he absence of serious injury is [] relevant to the Eighth Amendment 

inquiry, but does not end it.” Hudson v. McMillian, 503 U.S. at 7, 112 S.Ct. at 999.

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the DOC’s non-spontaneous use-of-force policy was unnecessary and without 

penological justification in McKinney’s particular case was “in keeping” with its prior 

decisions and the decisions of other circuit courts of appeals, “which have concluded 

that where chemical agents are used unnecessarily, without penological justification, or 

for the very purpose of punishment or harm, that use satisfies the Eighth Amendment 

objective harm requirement.” Id. at 1311, citing Danley v. Allen, 540 F.3d 1298, 1311 (11th 

Cir. 2008) (“holding that prolonged exposure to pepper spray due to a failure to 

properly decontaminate an inmate may form the basis of an Eighth Amendment 

claim”); Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (“use of additional bursts of 

pepper spray after inmate attempted to comply with officer’s orders and which possibly 

contributed to inmate’s asphyxiation and death sufficiently alleged objective 

component of excessive force claim”); Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984) 

(“’[I]t is a violation of the Eighth Amendment for prison officials to use mace or other 

chemical agents in quantities greater than necessary or for the sole purpose of 

punishment or the infliction of pain.’”); see Skrtich, supra, 280 F.3d at 1304 (“The law of 

excessive force in this country is that a prisoner cannot be subjected to gratuitous or 

disproportionate force that has no object but to inflict pain.”). Given this observation by 

the Eleventh Circuit, it would no doubt agree with the Eighth Circuit that “[a] basis for 

an Eighth Amendment claim exists when . . . an officer uses pepper spray without 

warning on an inmate who may have questioned his actions but who otherwise poses 

no threat.” Treats v. Morgan, 308 F.3d 868, 873 (2002). Treats, of course, involved a denial 

of the defendants’ motion for summary judgment on the basis of qualified immunity. 

See id. at 874 & 875 (“In order to overcome the claims of qualified immunity, Treats 

must also show that his constitutional rights were clearly established. . . . Since Treats 

has presented sufficient evidence at this threshold stage to show a violation of a clearly 

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33

established constitutional right, the district court did not err in denying summary 

judgment to appellants.”).

Resolution of the constitutional issue turns on the circumstances of 

the individual case or the particular “prison setting.” Not every instance 

of inmate resistance justifies the use of force, and use of pepper spray will 

not be justified every time an inmate questions orders or seeks redress for 

an officer’s actions. The test is whether the officer’s use of force was 

reasonable under the circumstances, or whether it was punitive, arbitrary, 

or malicious.

Id. at 872-873 (internal citations omitted). 

In this case, considering the facts in the light most favorable to Johnson, the 

undersigned finds that it cannot grant Ashworth summary judgment on the basis of 

qualified immunity. ADOC regulations provide that before pepper spray is employed 

an inmate must be warned that it is about to be employed (presumably so the inmate 

can cover his eyes) and can be utilized only when necessary to gain control of a 

situation once lesser methods are unsuccessful—or have been determined ineffective—

or when an inmate utilizes physical resistance to a lawful command. In this case, 

plaintiff and defendant Ashworth cannot even agree upon whether Ashworth warned 

the inmate that he was about to be sprayed with the Red Sabre, much less whether 

Ashworth’s order was lawful and—even if lawful—whether Johnson would have 

continued to be noncompliant had Ashworth issued a warning before spraying him in 

the face. See Treats, supra, 308 F.3d at 872-873. Because “the credibility of the allegations 

made by a plaintiff or defendant is beyond the scope of a trial court’s ruling on a motion 

for summary judgment[,]” and Johnson has established/alleged “facts sufficient to 

survive a motion for summary judgment concerning his excessive force claim[]” 

asserted against Ashworth, Ashworth’s “motion to summary judgment on the basis of 

qualified immunity is [] due to be denied.” Gladys v. Alabama Department of Corrections, 

2012 WL 3542203, *4 & *5 (N.D. Ala. July 11, 2012) (use of pepper spray), report and 

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34

recommendation adopted by, 2012 WL 3542292 (N.D. Ala. Aug. 13, 2012); see Skritch, supra, 

280 F.3d at 1301 (“[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.” (internal citation 

omitted)). 

As for plaintiff’s claim against defendants Pate and Marsh for failing to 

intervene, the undersigned declines to grant summary judgment in favor of these 

defendants since plaintiff’s claim of excessive force against Ashworth survives 

summary judgment, see Connell, supra, at *13 (“Since Plaintiff’s claim of excessive force 

survives the Motion for Summary Judgment, his claim of failure to protect will also 

survive the Motion for Summary Judgment[.]); Johnson v. Deloach, supra, 692 F.Supp.2d 

at 1328 (“[D]isputed issues of material fact exist regarding the need for the use of force 

by Boozer, the amount of force used by Boozer and whether Boozer acted ‘maliciously 

and sadistically’ to cause harm. A genuine issue of material fact likewise exists 

regarding whether Bradford and Golson witnessed the use of excessive force and failed 

to intervene.”), Ashworth admittedly sprayed Johnson twice, and these defendants 

were close-at-hand when Johnson was sprayed with the Sabre Red.

29

C. Defendants’ Contention that Plaintiff’s Case is Barred by the Prison 

Litigation Reform Act (“PLRA”). The moving defendants, citing to § 1997e(e) of the 

PLRA, contend that Johnson’s case is barred by the PLRA because he has failed to allege 

 29 Again, while this Court has no indication that plaintiff asserts a claim against 

defendant English for failing to protect him from Ashworth’s pepper spray assault, to the extent 

he is making that allegation, English is entitled to summary judgment inasmuch as the evidence 

clearly establishes that English was not working at Holman Correctional Facility on December 

31, 2010.

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more than a de minimis injury. (Doc. 189, at 32-34.) “No Federal civil action may be 

brought by a prisoner confined in a jail, prison, or other correctional facility, for mental 

or emotional injury suffered while in custody without a prior showing of physical 

injury.” 42 U.S.C. § 1997e(e). The Eleventh Circuit has specifically held that “in order to 

satisfy the statute, ‘the physical injury must be more than de minimis, but need not be 

significant.’” Dixon v. Toole, 225 Fed.Appx. 797, 799 (11th Cir. Apr. 4, 2007) (citation 

omitted).

30 

There is no question, in the undersigned’s estimation, that plaintiff’s claims for 

compensatory damages surmount § 1997e(e)’s bar inasmuch as he has put forth a 

plethora of evidence of physical injury. This evidence consists not only of photographs 

depicting plaintiff’s bruised and swollen left eye (see Doc. 199, Exhibit 35), but, as well, 

the treatment records from the two hospitals to which Johnson was taken for treatment 

in the immediate aftermath of the assault (among other treatment afforded,31 a CT scan 

of plaintiff’s facial bones and C-spine were taken), treatment from Dr. Allen Jones, an 

ophthalmologist, for acute iritis (inflammation of the eye),32 along with plaintiff’s postassault development of a cataract and the evidence suggesting that the cataract may be 

attributable to the trauma he sustained on December 31, 2010. Needless to say, this 

 30 “The Eleventh Circuit has interpreted this provision of the PLRA to mean that if 

due to the defendant’s actions, a prisoner has not suffered some physical injury which is 

sufficient to satisfy the statutory provision in question, and the prisoner therefore cannot show 

anything more than mental or emotional suffering, the prisoner is foreclosed from obtaining 

compensatory or punitive damages even if there has been some violation of his constitutional 

rights.” Thomas v. Pieniozek, 2011 WL 810696, *3 (S.D. Fla. Feb. 1, 2011), report and recommendation 

adopted by, 2011 WL 777894 (S.D. Fla. Mar. 1, 2011). 

31 Johnson was treated at North Baldwin Infirmary for chemical burns to his neck 

and shoulders. (See Doc. 199, Exhibit 33.)

32 “Iritis is ‘inflammation of the iris usually marked by pain,’ among other 

symptoms.” Rice v. Shinseki, 2011 WL 5301555, *2 n.6 (Vet.App. Nov. 7, 2011) (citations omitted).

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evidence belies any suggestion by the defendants that Johnson’s eye injury was/is

trifling or minimal.

33 Cf. Luong v. Hatt, 979 F.Supp. 481, 486 (N.D. Tex. 1997) (“A 

physical injury is an observable or diagnosable medical condition requiring treatment 

by a medical care professional.”).

D. Plaintiff’s State Law Claims. Defendants Ashworth, Marsh, Pate, and 

English contend that they are entitled to state-agent immunity on all state-law claims.

(Doc. 189, at 34.) 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); see also Ryan v. Hayes, 831 So.2d 21, 30 & 31 (Ala. 2002) (same); Ex 

parte Butts, 775 So.2d 173, 177 & 178 (Ala. 2000) (same). 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, maliciously, fraudulently, in 

bad faith, beyond his [] authority, or under a mistaken interpretation of the law.” Ex 

 33 See BLACK’S LAW DICTIONARY, at 496 (9th ed. 2009) (defining de minimis as 

trifling, minimal, or “so insignificant that a court may overlook it in deciding an issue or case.”).

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parte Cranman, 792 So.2d at 405 (emphasis in original); Ryan, supra, 831 So.2d at 31 

(same); Ex parte Butts, 775 So.2d at 178 (same). The Alabama Supreme Court has

established a “burden-shifting” process when a party raises the defense of 

State-agent immunity. In order to claim State-agent immunity, the 

[defendants] bear the burden of demonstrating that [plaintiff]’s claims 

arise from a function that would entitle them to immunity. If the 

[defendants] make such a showing, the burden then shifts to [plaintiff], 

who, in order to deny the [defendants] immunity from suit, must establish 

that the [defendants] acted willfully, maliciously, fraudulently, in bad 

faith, or beyond their authority. A State agent acts beyond authority and is 

therefore not immune when he or she “fail[s] to discharge duties pursuant 

to detailed rules or regulations, such as those stated on a checklist.”

Giambrone v. Douglas, 874 So.2d 1046, 1052 (Ala. 2003) (internal citations omitted). With 

these principles in mind, the undersigned considers each of plaintiff’s state-law claims.

Assault and Battery. Alabama law is clear that an assault is “an intentional, 

unlawful offer to touch the person of another in a rude or angry manner under such 

circumstances as to create in the mind of the party alleging the assault a well-founded 

fear of an imminent battery, coupled with the apparent ability to effectuate the attempt, 

if not prevented.” O’Rear v. B.H., 69 So.3d 106, 117 (Ala. 2011) (internal quotation marks 

omitted; citations omitted). “A successful assault becomes a battery, which consists of 

the touching of another in a hostile manner.” Id. (citations omitted).

In a civil case, the elements of battery are: (1) that the defendant touched 

the plaintiff; (2) that the defendant intended to touch the plaintiff; and (3) 

that the touching was conducted in a harmful or offensive manner. Our 

Supreme Court has explained that a battery consists in an injury actually 

done to the person of another in an angry or revengeful or rude or insolent 

manner, as by spitting in the face, or in any way touching him in anger, or 

violently jostling him out of the way, or in doing any intentional violence to 

the person of another.

Wood v. Cowart Enterprises, Inc., 809 So.2d 835, 837 (Ala. Civ. App. 2001) ((internal 

quotation marks, brackets, and citations omitted; emphasis in original). Thus, under 

Alabama law, “[t]he plaintiff in an action alleging assault and battery must prove (1) 

that the defendant touched the plaintiff; (2) that the defendant intended to touch the 

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plaintiff; and (3) that the touching was conducted in a harmful or offensive manner.” 

Walker v. City of Huntsville, 62 So.3d 474, 494 (Ala. 2010) (internal quotation marks 

omitted; citations omitted).

34

Because defendant Dunn has not moved for summary judgment, and based 

upon the facts developed to date, there is no question but that Dunn’s actions in kicking 

and punching Johnson in the face constitutes an assault and battery under Alabama 

law. Moreover, taking the facts in the light most favorable to plaintiff Johnson, the 

undersigned recommends that the Court find that Ashworth’s unprovoked actions in 

twice spraying plaintiff with Sabre Red without warning also constitutes an assault and 

battery under Alabama law.35 Having made these determinations, the undersigned 

turns to a consideration of whether any of the other defendants are liable for the 

foregoing assaults and batteries.

Plaintiff nowhere contends in his memorandum brief that defendants Pate and 

Marsh are equally responsible for the pepper spray incident (see Doc. 199, at 38-39); 

instead, he merely contends that when he was taken to the ground and the other 

defendants were on top of him such actions constitute discrete independent harmful 

touches by each of them and, in addition, these defendants aided and abetted Dunn’s 

 34 Again, to the extent plaintiff’s complaint can be read as stating assault and 

battery claims against defendant English, this defendant is entitled to summary judgment on 

these claims because he was not on duty at Holman Correctional Facility on December 31, 2010.

35 Ashworth’s action in spraying the chemical agent in plaintiff’s face certainly 

constitutes a touching of plaintiff by this defendant and by Ashworth’s own admission he 

intended to touch Johnson in this manner. Finally, the touching was conducted in a harmful and 

offensive manner both because Johnson was not offering physical resistance to a lawful 

command and it came without warning in contravention to ADOC regulations. Moreover, in 

spraying Johnson with the chemical agent without warning Ashworth engaged in action 

beyond his authority or, otherwise, in bad faith.

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39

assault on his person (see id. at 39). Accordingly, Marsh and Pate are entitled to 

summary judgment with respect to the Ashworth assault with pepper spray. 

In addition, Ashworth, Pate and Marsh are entitled to summary judgment 

regarding the Dunn assault and with respect to plaintiff’s argument in his brief that 

their actions in being on top of Johnson and holding him down after he was handcuffed 

constitutes discrete harmful touchings. With respect to the harmful touching aspect of 

plaintiff’s argument, the undersigned finds it lacking not only because plaintiff did not 

make any mention of these “touches” in his amended complaint (see Doc. 111, at ¶ 41) 

but, as well, he offers no evidence whatsoever from which this Court can find that such 

“touches” were conducted in a harmful or offensive manner. As for the aiding and 

abetting aspect of plaintiff’s argument, Alabama law is clear that “’when, by 

prearrangement or on the spur of the moment, two or more persons enter upon a 

common enterprise or adventure and a criminal offense is contemplated, then each is a 

conspirator, and if the purpose is carried out, each is guilty of the offense committed, 

whether he did any overt act or not. This rests on the principle that one who is present, 

encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the 

other in the perpetration or commission of the offense, is a guilty participant, and in the 

eye of the law is equally liable with the one who does the act.’” Deal ex rel. Barber v. Hill, 

619 So.2d 1347, 1349 (Ala. 1993); compare id. with Thompson v. Johnson, 180 F.2d 431, 433 

& 433-434 (5th Cir. 1950) (case arising out of Mississippi in which the circuit court noted 

certain well-acknowledged principles of law “covering concerted wrongful action[,]”

including the following: “that in addition to persons who actually participate in an 

assault and battery, persons who aid, abet, or procure the commission thereof, are 

subject to a civil action therefor; that on the theory that the act of one is the act of all, the 

rule of joint and several liability of tort feasors prevails where the tort feasors act in 

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40

concert or unity of action, and, therefore, applies to tort feasors who intentionally unite 

in the wrongful act or who are present, assist, or participate therein; and that where two 

or more persons engage in a common enterprise, they are jointly liable for wrongful acts 

done in connection with that enterprise, at least where the enterprise is an unlawful 

one, in which case all are answerable for any injury done by any one of them, although 

the damage done was greater than was foreseen or the particular act done was not 

contemplated or intended by them.” (internal footnotes omitted)). The initial problem 

with Johnson’s argument in this regard is that nowhere in his complaint does he allege 

a conspiracy. Moreover, there is simply no evidence that Ashworth, Marsh and Pate 

entered into a conspiracy with Dunn to assault and batter plaintiff. Indeed, no one 

present when Dunn initially kicked Johnson on December 31, 2010, including Johnson 

himself, could have predicted that Dunn would assault plaintiff. Therefore, while there 

might be a question of fact regarding whether defendants Ashworth, Pate, and Marsh 

could have intervened to try to prevent Dunn’s continued assault of plaintiff’s person, 

there is simply no evidence which supports an inference that these three defendants 

entered into a conspiracy with Dunn to aid, assist, and abet in Dunn’s already-formed 

intention to assault and batter plaintiff. Cf. Deal ex rel. Barber, supra, 619 So.2d at 1349 

(“Even assuming the complaint to state a cause of action for conspiracy, and even 

assuming that Henderson’s acts might possibly have violated the Suits v. Glover 

standard, Deal’s affidavit does not present sufficient evidence to withstand the 

summary judgment motion. At most, her evidence shows that Hill failed to override 

Henderson’s already formed intention of punishing Deal. He was not Henderson’s 

supervisor, and there is no evidence that he had authority to instruct her not to punish 

Deal. Deal states in her affidavit that Hill gave Henderson the pointer after Henderson 

said she was going to paddle Deal, but this statement is not substantial evidence that 

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Hill entered into a conspiracy with Henderson to ‘inflict on [Deal] immoderate 

chastisement.’”). Accordingly, defendants Ashworth, Marsh and Pate are entitled to 

summary judgment to the extent plaintiff now contends these defendants conspired 

with Dunn to commit assault and battery.

Negligent Failure to Follow ADOC Regulations. It is now clearly established 

that Alabama allows a plaintiff to maintain a negligence cause of action against 

individual defendants who claim entitlement to state-agent immunity, provided those 

defendants acted beyond their authority or failed to discharge duties pursuant to rules 

and regulations. Compare, e.g., Ex parte Lawley, 38 So.3d 41, 44, 47, 48 & 49 (Ala. 2009) 

(“The complaint alleged claims of negligence and wantonness based upon the 

petitioners’ failure to reinstall lights on the remnants of the pier remaining in the Gulf of 

Mexico following Hurricane Ivan, as the plaintiffs alleged the petitioners were required 

to do by certain federal regulations. . . . The plaintiffs contend [] that the petitioners’ 

conduct falls within the exception to State-agent immunity that exists when a ‘State 

agent acts . . . beyond his or her authority.’ . . . More specifically, in this case, the 

plaintiffs rely on the principle articulated previously by this Court that a State agent 

acts beyond his or her authority when the agent fails ‘”to discharge duties pursuant to 

detailed rules or regulations, such as those stated on a checklist.”’ . . . The plaintiffs 

contend that these federal regulations, taken together, implicate the ‘beyond-authority’ 

exception to State-agent immunity because the regulations explicitly command that 

lights must be present on an obstruction in the navigable waters in the United States 

and that those lights cannot be removed without the approval of the Coast Guard. We 

agree with the plaintiffs. We reject the argument presented by the petitioners that these 

regulations do not sufficiently guide the actions of an owner of a structure under the 

circumstances presented and thus are not sufficiently detailed to serve as a basis for 

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application of the exception recognized in Cranman for acts beyond the authority of the 

State official or employee. . . . Given the materials presented to the trial court and to this 

Court, we cannot conclude that the trial court erred in refusing, on the ground of . . . 

State-agent immunity, to dismiss the complaint for failure to state a claim or to enter a 

judgment on the pleadings; for all that appears, the case before it was one of a simple 

disregard of a federal mandate.” (internal citations omitted)) with Giambrone, supra, 874 

So.2d at 1050, 1052, 1053, 1055-1056, 1056 & 1057 (“On May 29, 2001, Giambrone, 

individually, and as mother and next friend of Jake, brought this action. In it she alleged 

that Douglas was negligent and wanton in wrestling with Jake without having the 

proper qualifications or training. Giambrone also alleged that Furlow and Long had 

been negligent and wanton in failing to provide a qualified coach for the wrestling 

team. Giambrone claimed that the decisions and actions of the faculty members that 

had resulted in Jake’s injury did not involve the exercise of judgment. . . . The trial court 

entered a summary judgment in the faculty members’ favor based on State-agent 

immunity. . . . Giambrone’s action against Douglas arises from the decision Douglas 

made to engage in a wrestling match with Jake in an attempt to motivate the members 

of the wrestling team. Such a decision involves the exercise of judgment in educating 

students, a category included in the Cranman restatement of State-agent immunity. 

Nevertheless, Giambrone argues that Douglas was engaged in a ministerial act and that 

he was not ‘exercising judgment’ because, she says, he violated clear rules and 

regulations governing his position as head coach of the wrestling team. . . . Under our 

standard in Cranman, as applied in Butts, State-agent immunity is unavailable to 

Douglas if he ‘failed to discharge duties pursuant to detailed rules or regulations, such 

as those stated on a checklist.’ Unlike Nall, in this case Furlow, who was in a 

supervisory position, furnished Douglas with the guidelines and rules of the AHSAA, 

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43

the NFW, and the Athletic Directories, and we must consider whether Furlow’s 

furnishing those guidelines and rules imposed a duty upon Douglas to regulate his 

conduct during the practices of the wrestling team. . . . The guidelines in Spivey merely 

established the general responsibility to apply safety rules to the conduct of students 

and teachers; here, the guidelines and rules provided specific instructions regarding the 

proper techniques to be used in coaching the sport of wrestling. The guidelines and 

rules removed Douglas’s judgment in determining whether he should participate in a 

‘full speed’ challenge match with a student who was less experienced, much younger, 

and smaller than Douglas. Moreover, the guidelines and rules restricted the type of 

moves that are permissible in the sport of wrestling. Because a trier of fact could 

determine that Douglas performed an illegal move during an ‘inequitable’ challenge 

match, thereby failing to discharge his duties pursuant to ‘detailed rules or regulations,’ 

we cannot determine at this stage in the proceedings that Douglas is entitled to Stateagent immunity. Douglas did not meet his burden of establishing that his actions and 

decisions involved functions that entitled him to immunity. . . . Giambrone’s action 

against Furlow and Long arises from Furlow’s decision to recommend Douglas to the 

Board as the head wrestling coach and Long’s decision to defer such recommendations 

regarding athletic personnel to Furlow. Both decisions involved the exercise of 

judgment in educating students or in supervising personnel, categories within the 

Cranman restatement of State-agent immunity. However, unlike the duties Furlow 

imposed upon Douglas by his acceptance of the AHSAA guidelines and the NWF rules, 

no guidelines or rules were imposed upon Furlow and Long specifying how Furlow 

should choose a coach for the wrestling program and how involved Long should have 

been in the hiring process for athletic personnel. Because the Board had not adopted 

any guidelines or rules addressing those issues, Furlow and Long ‘were left to exercise 

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broad judgment’ in making their respective decisions regarding the appropriate level at 

which to supervise personnel, the qualifications required in a wrestling coach, and the 

safety measures that were to be provided at each wrestling practice. . . . These general 

statements [from the Athletic Directories and the AHSAA] are not the type of detailed 

rules and regulations that could remove the exercise of Furlow and Long’s judgment in 

the performance of required acts. Furlow and Long met their burden of establishing 

that their actions and decisions involved functions entitling them to immunity. In order 

to deny Furlow and Long immunity from suit, therefore, Giambrone must establish that 

they acted willfully, maliciously, fraudulently, in bad faith, or beyond their authority. 

Giambrone initially claimed that Furlow and Long acted beyond their authority by 

violating the guidelines or rules promulgated by the AHSAA, the NFW, and the 

Athletic Directories. However, because the guidelines and rules do not impose 

mandatory duties upon Furlow and Long, the decision whether to follow the guidelines 

and rules was within their judgment. . . . With the benefit of hindsight, one might 

conclude that judgment could have been better exercised and the incident avoided if 

Furlow had recommended a coach with more wrestling experience or if Long had been 

more involved in Douglas’s hiring. However, under our standard in Cranman,[] we do 

not hold State agents answerable in money damages for the consequences of poor 

judgment in the education of students. The immunity afforded State agents who 

exercise their judgment in the education of students and the supervision of personnel is 

not abrogated for negligent and wanton behavior; instead, immunity is withheld only 

upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad 

faith, or beyond his or her authority. The facts here do not fit within this exception to 

State-agent immunity.” (internal citations omitted)). Indeed, in the context of an action 

brought, in part, against two prison wardens and alleging negligence against them, as 

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well as that these two defendants “’acted willfully and beyond their authority’ and 

acted in violation of agency policy[,]” the United States District Court for the Middle 

District of Alabama specifically recognized that “the possibility that Mr. Daniels or Mr. 

Jones acted outside of his authority or failed to discharge duties pursuant to rules and 

regulations is not foreclosed by an assertion of negligence.” Wynn v. Lewis Trucking Co., 

2009 WL 499457, *2 & *3 (M.D. Ala. Feb. 27, 2009). 

In light of these principles, and in consideration of the contents of the ADOC’s 

use of force regulation (No. 327) and use of chemical agents regulation (No. 312) and the 

facts in dispute in this case, the undersigned finds that the Court should decline to grant 

Ashworth summary judgment on the basis of state-agent immunity with respect to the 

pepper spray incident. This is because the foregoing regulations can be read as 

establishing not only a duty to use the least amount of force necessary under a restricted 

set of circumstances—that is, in self-defense to physical assault, for protection of others, 

or when an inmate exercises physical resistance to a lawful command—but also a duty 

to use pepper spray only to gain or regain control of a situation when other lesser 

methods have proven to be unsuccessful and only after giving a verbal warning of its 

impending use and the facts in this case, taken in the light most favorable to plaintiff,

certainly suggest that Ashworth failed to discharge his duties under those regulations

(or otherwise acted beyond his authority) by spraying Johnson without warning in the 

context of a situation that did not warrant such use of force.

36

However, Pate and Marsh are entitled to summary judgment on this claim both 

with respect to the pepper spray incident and with respect to the Dunn assault, as is 

 36 Indeed, plaintiff has even questioned whether Ashworth’s instruction to Johnson 

to go to the “Q-Unit” was a lawful order since the defendants have not offered anything beyond 

hearsay evidence that Ashworth was instructed by medical staff to place Johnson in the Q-Unit.

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Ashworth with respect to Dunn’s assault. In this regard, plaintiff contends only that 

“[n]obody did anything to stop the abuse, even though regulation no. 327 demands that 

force stop if the inmate is not resisting.” (Doc. 199, at 38.) While it is true regulation 327 

states that force “will stop” when resistance by the inmate ceases, this mandate is 

directed to the individual applying the force. Nothing in the regulations which plaintiff 

cites to concomitantly provides that the officers who are not applying any force have an 

affirmative (or a mandatory) duty to stop another officer’s use of force, either by words 

or actions. Thus, there is nothing to suggest that Marsh and Pate failed to discharge any 

mandatory duties under the above-cited regulations with respect to their superior 

(Sergeant Ashworth) and fellow correctional officer (Dunn) spraying Johnson with 

pepper spray or that Ashworth, Marsh or Pate failed to discharge any mandatory duties 

under those regulations with regard to the Dunn incident. In addition, the evidence 

simply does not establish any evidence that the defendants acted willfully, maliciously, 

fraudulently, in bad faith, or beyond their authority in this regard. Cf. Wynn, supra, at *3 

(“[N]egligence falls below the standard of malicious, willful, or fraudulent 

behavior[.]”). Accordingly, the moving defendants (save Ashworth with respect to the 

pepper spray incident) are entitled to summary judgment with respect to plaintiff’s 

claim of negligent failure to follow ADOC regulations37.

38

 37 For these same reasons, the undersigned recommends that the Court enter 

summary judgment in favor of defendants Ashworth, Pate and Marsh on plaintiff’s claim that 

these defendants “willfully and wantonly fail[ed] 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[]” (Doc. 111, ¶ 59(d)). Cf. Giambrone, 

supra, 874 So.2d at 1057 (“The immunity afforded State agents who exercise their judgment in 

the education of students and the supervision of personnel is not abrogated for negligent and 

wanton behavior[.]”).

38 Again, to the extent plaintiff asserts this claim (and any wantonness claim arising 

out of the events on December 31, 2010—see Doc. 111, ¶ 59(a)-(d)) against English, English is 

(Continued)

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Negligent Retention and Supervision. Plaintiff’s negligent retention and 

supervision claim is asserted solely against defendants Penton Ashworth and James 

English. (See Doc. 111, ¶¶ 49-55.) In his brief, plaintiff appears to concede that his claim 

is solely a failure to supervise claim. (See Doc. 199, at 18-21.)39 And while plaintiff’s 

amended complaint gives every indication that this claim is a state-law claim (see Doc. 

111, ¶¶ 49-55), his brief in response to the motion for summary judgment seems to 

suggest that this is a § 1983 claim or some type of hybrid claim (see Doc. 199, at 18). 

Regardless of whether the claim is brought solely pursuant to § 1983, or under state law, 

the undersigned is of the opinion that it fails.

As Johnson correctly points out in his brief (Doc. 199, at 18), “’supervisors can be 

held liable for subordinates’ constitutional violations on the basis of supervisory 

liability under 42 U.S.C. § 1983.’” Williams v. Santana, 340 Fed.Appx. 614, 617 (11th Cir.

Aug. 11, 2009) (citations and brackets omitted).

Supervisory liability under § 1983 occurs when the supervisor personally 

participates in the alleged constitutional violation or when there is a 

causal connection between the actions of the supervising official and the 

alleged constitutional deprivation.40 . . .

A causal connection may be established when: 1) a “history of 

widespread abuse” puts the responsible supervisor on notice of the need 

to correct the alleged deprivation, and he or she fails to do so; 2) a 

 

entitled to summary judgment because he was no on duty a Holman Correctional Facility on 

December 31, 2013.

39 To the extent the undersigned has misread plaintiff’s brief, any state-law claims 

of negligent and/or wanton retention asserted against Ashworth and English cannot survive 

the defendants’ motion for summary judgment for the same reason that his negligent and 

wanton failure to supervise claims fail. 

40 In other words, the supervisor’s conduct must be “causally related to the 

constitutional violation committed by his subordinate[.]” Greason v. Kemp, 891 F.2d 829, 836 

(11th Cir. 1990).

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supervisor’s custom or policy results in deliberate indifference to 

constitutional rights; or 3) facts support an inference that the supervisor 

directed subordinates to act unlawfully or knew that subordinates would 

act unlawfully and failed to stop them from doing so.

Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (some internal quotation marks 

omitted; citations omitted; footnote added), cert. denied, 552 U.S. 1095, 128 S.Ct. 865, 169 

L.Ed.2d 723 (2008); see also A.P. ex rel. Bazerman v. Feaver, 293 Fed.Appx. 635, 651 n. 60 

(11th Cir. Aug. 21, 2008) (same); cf. Roy v. Johnson, 97 F.Supp.2d 1102, 1112 (S.D. Ala. 

2000) (“In order to state a § 1983 claim against a supervisor for failure to supervise, a 

plaintiff ‘must present some evidence that the [defendant] knew of a need to train 

and/or supervise in a particular area and the defendant made a deliberate choice not to 

take any action[,]” that this failure to train and/or supervise constitutes a custom or 

policy, and that the failure to train and/or supervise was the moving force behind the 

deprivation of a constitutional right.”). As reiterated by the Eleventh Circuit in Williams, 

supra, “’[t]he deprivations that constitute widespread abuse sufficient to notify the 

supervising official must be obvious, flagrant, rampant and of continued duration, 

rather than isolated occurrences.’” 340 Fed.Appx. at 617, quoting Brown v. Crawford, 906 

F.2d 667, 671 (11th Cir. 1990). This Court obviously need look individually at Ashworth 

and English to determine whether the evidence is sufficient to hold each liable in his 

individual capacity. See A.P. ex rel. Bazerman, supra, 293 Fed.Appx. at 651 & n.60.

As for the negligent supervision claim actually set forth in plaintiff’s amended 

complaint, clearly a state-law claim, “Alabama recognized a cause of action for 

negligent training or supervision in Big B, Inc. v. Cottingham, 634 So.2d 999, 1002-03 (Ala. 

1993).” Norman v. Southern Guaranty Ins. Co., 191 F.Supp.2d 1321, 1337 (M.D. Ala. 2002).

According to that court, “liability depends upon its being established by 

affirmative proof that such incompetency was actually known by the 

master or that, had he exercised due and proper diligence, he would have 

learned that which would charge him in law with such knowledge. 

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Evidence of this actual or constructive knowledge may consist of specific 

acts of incompetency brought to the master’s attention or a pattern of 

incompetent acts such that the character, frequency, and seriousness of the 

acts must have brought the incompetency to the master’s attention in the 

exercise of due care. A plaintiff must also show that the above breach of 

the employer’s duty to reasonably supervise his or her employees 

proximately caused the plaintiff’s injury.

Id. (internal citations omitted). Thus, “[a] claim for negligent supervision is, at bottom, a 

negligence claim[,]” such that a plaintiff “must establish the elements of duty, breach, 

causation, and injury.” Camp v. Correctional Medical Services, Inc., 668 F.Supp.2d 1338, 

1365 (M.D. Ala. 2009), aff’d in part as clarified, 400 Fed.Appx. 519 (11th Cir. 2010), cert. 

denied sub nom. Naglich v. Camp, U.S. , 131 S.Ct. 2991, 180 L.Ed.2d 821 (2011). And, 

as these cases and Alabama cases make clear, negligent supervision (and for that matter 

retention) claims must necessarily be brought against the recalcitrant employee’s 

employer, not against the employee’s supervisors. Compare Norman, supra, at 1337 (“A 

plaintiff must also show that the above breach of the employer’s duty to reasonably 

supervise his or her employees proximately caused the plaintiff’s injury.” (emphasis 

supplied)) with Camp, supra, at 1365 (“To satisfy the breach element of a claim for 

negligent supervision, a plaintiff must present evidence that (1) the employee acted 

incompetently and (2) the employer had notice of the incompetency but failed to act.”

(emphasis supplied)); Ex parte Transportation Leasing Corp., 2013 WL 1858774, *4 (Ala. 

May 3, 2013) (“’It has been stated generally that, in order for an employer to be liable for 

the negligent hiring, training, retention, and supervision of its employee, the plaintiff 

must also prove “wrongful conduct” on the part of the employee.” (emphasis 

supplied)); and Beddingfield v. Linam, 2013 WL 857288, *9 (Ala. Mar. 8, 2013) (“This 

Court’s research has not found any Alabama case that sets out the elements of a claim 

of negligent supervision that does not involve an employer/employee relationship, nor 

has our research found any case that describes a claim of wanton supervision. We 

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decline to extend our holdings in negligent-supervision cases to recognize a cause of 

action based on a parent’s negligence or wantonness in supervising his or her own 

child.” (emphasis supplied)). In other words, “Alabama law is clear that the tort of 

negligent supervision or training requires as an element the existence of a masterservant relationship[]” and since “the status of ‘master’ is restricted to one who is 

actually or essentially the employer of the servant[,]” a “supervisor is not the master of 

a subordinate, nor is the subordinate the servant of the supervisor[.]” Ott v. City of 

Mobile, 169 F.Supp.2d 1301, 1315 (S.D. Ala. 2001). Thus, “Alabama recognizes no cause 

of action against a supervisor for negligent failure to supervise or train a subordinate[.]” 

Id.; see also Driskill v. Great Southern Life Ins. Co., 2003 WL 23318664, *2, *3 & *4 (N.D. Tex. 

Aug. 22, 2003) (“Driskill also alleges that Parsons is liable for negligent and wanton 

supervision of Gaines. Driskill acknowledges that Ott v. City of Mobile . . . addresses the 

question whether a mere supervisor—as opposed to a master—can be liable for 

negligent supervision. . . . The court [] concludes that Alabama law requires that the 

person sued essentially be the employer of the servant in order to be held liable for 

negligent supervision. . . . There is no arguably reasonable basis for predicting that 

Driskill could prevail against Parsons when no court has imposed liability for negligent 

supervision on a supervisor and, to do so, it would be necessary to ignore clear 

language limiting negligent supervision claims to ‘masters’—a group of persons that 

does not include supervisors.”). The holding by this Court in Ott was recently 

reaffirmed by the United States District Court for the Northern District of Alabama in 

Agee v. Mercedes-Benz U.S. International, Inc., 2013 WL 832354 (Feb. 28, 2013), plaintiff 

alleging in her complaint a claim for negligent and/or wanton failure to terminate, 

monitor and/or train against co-employees Carol Davis and Jeff Burbank and the court 

dismissing such claim on the basis that the complaint contained no allegation that Davis 

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and Burbank were plaintiff’s employer and the finding by the court that Davis and 

Burbank were not plaintiff’s employer. See id. at *6. 

In light of the foregoing, it is understandable that Johnson would try to morph 

his claim into one under § 1983 given that Ashworth and English were not Dunn’s 

employer, only arguably his supervisors, and Alabama simply does not recognize a 

cause of action against a supervisor for negligent failure to supervise a subordinate 

employee. Compare Agee, supra, with Ott, supra. Thus, plaintiff’s state-law claims of 

negligent and wanton supervision41 cannot survive the motion for summary judgment 

filed by Ashworth and English. Compare Agee, supra, at *6 (dismissing claim that 

asserted both negligent and wanton failure to terminate, monitor and/or train against 

plaintiff’s co-employees) with Driskill, supra, at *4 (“[T]he court holds that there is no 

reasonable possibility that Driskill has stated a valid claim for negligent or wanton 

supervision against Parsons [under Alabama law].”) and Buckentin v. SunTrust Mort. 

Corp., 2013 WL 830887, *12 (N.D. Ala. Mar. 4, 2013) (“To establish a wantonness claim 

requires more than a mere showing of a higher degree of culpability than negligence. 

Wantonness is characterized as a conscious act and requires a different and more 

stringent set of proof. Plaintiffs’ failure to establish even their negligent retention claim 

necessarily precludes their assertion of any wantonness claim related to the same 

subject matter.”). 

Therefore, the undersigned focuses on what now appears to be Johnson’s claim 

against Ashworth and English, that is, a failure to supervise claim under § 1983. (See 

Doc. 199, at 18-21.) Indeed, Johnson argues in his brief that taking the evidence in the 

 41 The wanton supervision/retention claims asserted against Ashworth and 

English are contained in ¶ 59(e) & (f) of the amended complaint. (See Doc. 111.)

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light most favorable to him, he has “provided substantial evidence of the ‘causal 

connection’ set forth in Williams.” (Id. at 21.) “Quite simply, Ashworth and English 

failed to report an excessive force case to Patterson and I & I which allowed Dunn to 

remain employed at Holman.” (Id.) Plaintiff argues in his brief that if Warden Patterson 

had been notified by Ashworth and English that Dunn hit inmate Broadhead in his 

head during a cell extraction on November 10, 2010, the warden would have been 

compelled to fire Dunn given that Dunn twice had been disciplined for fighting with 

co-employees while employed by the ADOC at Fountain from August 2006 to July 2007 

and Administrative Regulation 208 provides that correctional officers should be fired if 

they engage in “fighting, assault, physical violence or disruptive behavior” on three 

separate occasions. (See id. at 18-20.) Based on the foregoing allegations, it is apparent 

that plaintiff is attempting to establish causal connection through a history of 

widespread abuse by Dunn which put Ashworth and English “on notice of the need to 

correct the alleged deprivation,” and the failure of these defendants to do so. (See id. at 

18-21.) 

As the court made clear in Williams, supra, “’[t]he deprivations that constitute 

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

rampant and of continued duration, rather than isolated occurrences.’” 340 Fed.Appx. 

at 617, quoting Brown, supra, 906 F.2d at 671. With respect to English, and to the extent it 

even matters, there is absolutely no evidence that he knew about any of Dunn’s issues 

with co-employees when Dunn worked for the ADOC at Fountain Correctional 

Facility.42 Moreover, although English did have notice of the incident with Broadhead, it 

 42 In addition, nothing from the deposition testimony taken in this case gives any 

indication that English had any inkling that inmates viewed Dunn as a racist (and treated black 

(Continued)

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was Ashworth’s testimony that English specifically instructed Dunn not to hit inmates 

in the head. So, not only did English attempt to correct any arguable deprivation (that 

is, any arguable excessive use of force) but, as well, the Broadhead incident, of which 

English knew, cannot be viewed by this Court as anything more than an isolated 

occurrence which would not have put English on notice that he should do more than he 

did.43 Because there is no causal connection with respect to English, this defendant is 

entitled to summary judgment.

For these same reasons, Ashworth is also entitled to summary judgment. This 

defendant’s awareness of one of the altercations Dunn had with a co-employee at 

 

prisoners in a manner different than the treatment accorded white inmates) or that Dunn “liked 

to fight.” 

43 While the undersigned does not disagree with plaintiff that English (and 

Ashworth) should have set forth in the Broadhead incident report that Dunn hit Broadhead in 

the head with his closed fist, the undersigned cannot agree that such report would have 

resulted in Dunn’s dismissal. In this regard, plaintiff cites to a stale (and inapplicable) penalty 

provision contained in Administrative Regulation 208—that is ¶ 25 for fighting, assault, 

physical violence or disruptive behavior set forth in the 2005 version of Annex H attached to 

Administrative Regulation 208 (see Doc. 199, Exhibit 27, Annex H, at 1)—and argues that the 

altercations Dunn had with co-employees at Fountain Correctional Facility during Dunn’s first 

period of employment should “count” such that Dunn would have been dismissed had English 

(and Ashworth) reported Dunn’s conduct during the Broadhead cell extraction (see id.

(providing a first offense of infraction # 25 results in a 5-day suspension, a second offense 

results in a 15-day suspension, and a third offense results in dismissal)). The penalty provision 

plaintiff relies upon is not only stale, but, as well, plaintiff’s argument in this regard rests upon 

the unsupportable proposition that Dunn’s conduct while he was initially employed by the 

ADOC at a different prison facility would “follow” him upon reemployment with the ADOC. 

Not only does plaintiff not provide this Court with appropriate legal support in this regard but, 

indeed, if such conduct had followed Dunn, he would have been dismissed immediately upon 

issuance of the revamped Annex H to Administrative Regulation 208 in 2009, given that the 

reworked Annex H provides for a three-day suspension upon a first offense for fighting, 

assault, physical violence or disruptive behavior and dismissal upon a second offense. (See Doc. 

190, Exhibit 14, Annex H, #29, at 3.) Because plaintiff has offered this Court no logical 

explanation for such “apple” conduct (i.e., fighting with co-employees) following Dunn when 

he started hitting inmates (“oranges”) in the head during the latter part of 2010, it is clear to the 

undersigned that even had English (or Ashworth) reported Dunn’s action of hitting Broadhead 

in the head in the incident report the most that would have happened is that Dunn would have 

been given a three-day suspension for a first violation of infraction #30 contained in the 2009 

version of Annex H. (See Doc. 190, Exhibit 14, Annex H, #30, at 4.)

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Fountain and Dunn’s penchant for fighting simply does not equate to Ashworth’s 

knowledge that Dunn had a history of widespread abuse. Indeed, this evidence does 

not constitute a history of widespread abuse of prisoners or a widespread history of 

numerous prior incidents involving Dunn’s use of force against inmates, which is what 

is required here. Compare Williams, supra, 340 Fed.Appx. at 618 (“[T]he numerous prior 

incidents involving Barazal’s use of force were sufficient to put Parker on notice of 

misconduct that was sufficiently ‘obvious, flagrant, rampant and of continued duration’ 

to require him to act. . . . Even though it is not clear how the other complaints against 

Barazal were resolved, the fact that eight claims of violence or deprivation of 

constitutional rights were lodged against Barazal between July 1998 and August 2002 

indicates that Parker was on notice of a potential problem.” (emphasis supplied)) with 

Danley v. Allen, 540 F.3d 1298, 1315 (11th Cir. 2008) (“This Court has long recognized 

that supervisors are liable for the excessive force . . . of their employees where the 

supervisor received numerous reports of prior misconduct of that nature by those same 

employees and did nothing to remedy the situation.” (emphasis supplied)), overruling 

on other grounds recognized by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). Stated 

differently, the Broadhead incident was isolated and, therefore, was not sufficient to put 

Ashworth on notice of misconduct sufficiently “obvious, flagrant, rampant and of 

continued duration” to require him to act. Accordingly, Ashworth is also entitled to 

summary judgment in his favor on Johnson’s failure to supervise claim. 

CONCLUSION

Based upon the foregoing, the moving defendants’ motion for summary 

judgment is due to be GRANTED IN PART and DENIED IN PART. Defendant James 

English’s motion for summary judgment is GRANTED IN ITS ENTIRETY such that all 

claims asserted by Johnson against English should be DISMISSED WITH PREJUDICE. 

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The motion for summary judgment filed on behalf of defendants Penton Ashworth,

James Pate, and Roger Marsh should be GRANTED IN PART and DENIED IN PART, 

as more fully explained in the body of this report and recommendation.

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D.ALA. L.R. 72.4. In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the basis for the objection, 

and specify the place in the Magistrate Judge’s report and recommendation where the 

disputed determination is found. An objection that merely incorporates by reference or 

refers to the briefing before the Magistrate Judge is not specific.

DONE this the 10th day of June, 2013.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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