IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THOMAS RADFORD,

Plaintiff,

:

:

:

vs. : CIVIL ACTION 14-0527-KD-C

:

CEDRIC MARSHALL, et al.,

Defendant.

:

:

:

ORDER AND REPORT AND

RECOMMENDATION

Plaintiff Thomas Radford, an Alabama prison inmate proceeding pro se,

filed a complaint under 42 U.S.C. § 1983. This action was referred to the 

undersigned pursuant to 28 U.S.C. § 636(b)(1)(A & B) and General L.R.

72(a)(2)(R), and is now before the Court on various outstanding motions put 

forth by Radford (Docs. 31-35, 44, 45, 48-50) and Defendants’ motions for 

summary judgment (Docs. 30 & 57). For the reasons stated below, it is ordered

that Radford’s non-dispositive motions be granted in part and denied in part. 

The motions to amend or supplement the complaint (Docs. 44, 49, 50) are to be 

granted in favor of Plaintiff but the remaining motions (Docs. 31, 32, 33, 34, 35, 

48) are to be denied. In addition, it is recommended that summary judgment be 

granted in favor of Defendants Sergeant Cedric Marshall, former Alabama 

Department of Corrections Commissioner Kim T. Thomas, Warden Cynthia 

Stewart, Lieutenant R. Davis, C.O.I. Bruce A. Fitch, Sergeant E. McQueen, C.O.I 

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C. Brown, C.O.I. R. Washington, and C.O.I. D. Wetzel, and the claims presented 

by Plaintiff be dismissed with prejudice.

1

I. Background. 

Plaintiff Radford is currently incarcerated at J.O. Davis/Fountain 

Correctional Facility (“Fountain”), where he is serving a 28-year sentence for 

kidnapping and murder convictions. (Doc. 1 at 4, 6). In his complaint, Radford 

claims that on November 4, 2014, an inmate, who was acting as “shift runner,” 

was responsible for delivering monthly transaction sheets to the inmates in 

Plaintiff’s dorm.

2 Radford asked Sergeant Marshall, the Shift Commander on 

duty, why the inmate shift runner was allowed to “handle mail/[his] personal 

property” and was told by Sergeant Marshall that, “we were short of hands so 

we let him pass them out.”3 (Id. at 5). 

Additionally, in an amended complaint, Radford states that on January 12, 

2015, Lieutenant R. Davis, again, gave an inmate “the U.S. Mail to pass out” to 

other inmates. (Doc. 25 at 1). And, on February 3, 2015, Radford claims “C.O.I. 

																																																							 1 To the extent that any defendants have not technically moved for summary 

judgment, it is appropriate to enter summary judgment on any claims presented against 

them pursuant to Rule 56(f)(1), Federal Rules of Civil Procedure (“After giving notice 

and a reasonable time to respond, the court may: (1) grant summary judgment for a 

nonmovant ....”). The Plaintiff is notified by the issuance of this Order and Report and 

Recommendation of the reasons for recommending that all Defendants should be 

granted summary judgment and he will have an opportunity through the filing of 

objections to the Report and Recommendation to be heard as to why summary judgment 

would not be appropriate as to any and all defendants.

2 An inmate’s transaction sheet contains personal information, including one’s 

prison account balance and social security number. (Doc. 43 at 4).

3 Sergeant Marshall denies this incident and further denies ever authorizing or 

approving any inmate to pass out mail to another inmate. (Doc. 29-1). Defendants 

C.O.I. Brown, C.O.I. Washington, and C.O.I. Wetzel were in the shift office with 

Sergeant Marshall following the incident and witnessed Radford’s conversation with 

Sergeant Marshall. (Doc. 1 at 4). 

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Bruce A. Finch gave U.S. Mail to Inmate Bell[] to pass out and Plaintiff has not 

receive[d] his transaction slip that Inmate Bell was passing out.” (Id.). Radford 

asserts he reported the February 3, 2015, incident to Shift Commander Sergeant 

McQueen and McQueen “shook his head,” “seeing nothing wrong with C.O.I. 

Bruce A. Finch passing mail over to Inmate Bell to pass out for him.” (Id.). 

In amended complaints, Radford brings forth supplementary claims 

against supervisory officials, Warden Cynthia Stewart and former Department of 

Corrections Commissioner Kim Thomas, challenging the conditions of his 

confinement. Specifically, Radford alleges he has been without hot water for his 

showers and heated air from the summer of 2013 until February 2015. (Docs. 4, 

10, 44, 49). He claims that he was repeatedly told that the heating units would be 

fixed but they were not, thereby subjecting him to winter temperatures in 

November 2014 as low as 26 degrees Fahrenheit and wind chills as low as 19 

degrees Fahrenheit without heated air or hot water. (Docs. 4 at 4-5; 10 at 3-4). 

Radford claims, due to the defendants’ failure to maintain operable heating 

equipment, he suffered “actual injury” on or about November 13-14, 2014, but 

fails to articulate any specific injury. (Docs. 4, 10). 

Additionally, in a supplemental pleading, Radford alleges on April 16, 

2015, Warden Stewart acted in retaliation against him for filing this lawsuit by 

failing “to fix the hot water to shower ... leaving Plaintiff . . . [to take] a cold 

shower and [he] got sick.” (Doc. 44 at 1). Radford states he developed a cough 

and sore throat and had to been seen by a doctor on May 7, 2015.4 (Id. at 1, 5, 7). 

																																																							 4 Plaintiff submitted a sick call request on May 7, 2015, complaining, inter alia, “My 

throat is hurting and I got a cough from the cold shower. We haven’t had hot water to 

shower with for weeks. Plus I need my medical profile reviewed.” (Doc. 44 at 6).

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Radford brings this action against the defendants asserting violations of 18 

U.S.C. §§ 1701, 1702, the Eighth Amendment, and the Administrative 

Regulations of the Alabama Department of Corrections. (Doc. 10 at 8; Doc. 25-1 

at 2; Doc. 44). He seeks injunctive and declaratory relief to stop the Alabama 

Department of Corrections from allowing inmates to handle mail and to order 

that the heating units be repaired and made operable; he further seeks 

compensatory and punitive damages, and any other relief the Court deems 

appropriate for the alleged violations. (Doc. 10 at 7; Doc. 25-1 at 3). 

II. Outstanding Motions.

5

a. Motions to Amend (Docs. 44, 49, 50).

Federal Rule of Civil Procedure 15(a) permits a party to amend a pleading 

once 'as a matter of course at any time before a responsive pleading is served,' or, 

otherwise, 'only by leave of court or by written consent of the adverse party.'" 

Farris v. United States, 333 F.3d 1211, 1215 (11th Cir. 2003) (per curiam). A motion 

for leave to amend complaint should be granted "when justice so requires" but 

the denial of a motion to amend has been determined to be appropriate when 

there is evidence of “undue delay, bad faith, or dilatory motive on [the] part of 

movant, repeated failure to cure deficiencies by amendments that were 

previously allowed, undue prejudice to opposing party by virtue of allowance of 

amendment, futility of amendment, etc. . .” Foman v. Davis, 371 U.S. 178, 182, 9 L. 

Ed. 2d 222, 83 S. Ct. 227 (1962). Generally, courts should allow for amendments 

																																																							 5 In addition to the discussed motions, the docket reflects that Plaintiff currently 

has outstanding motions for law library and legal assistance (Doc. 31), to appoint 

counsel (Doc. 32), for discovery (Docs. 33, 35), and for status (Doc. 34). These nondispositive motions are denied since Plaintiff has failed to provide a factual and legal 

basis for the motions in light of the findings herein. The motion for status is deemed 

moot with the entering of this Report and Recommendation.				

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to pleadings unless it is absolutely clear that amendment would be futile, giving 

pro se litigants an opportunity to amend his or her complaint to correct any 

deficiencies. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Rule 15(a) 

embodies a “policy favoring liberal amendment,” Verizon Del., Inc. v. Covad 

Communs. Co., 377 F.3d 1081, 1091 (9th Cir. 2004); “leave to amend should be . . .

granted more liberally to pro se plaintiffs,” Lira v. Herrera, 427 F.3d 1164 (9th Cir. 

2005) (quoting Ramirez v. Galaza, 334 F.3d 850, 867 (9th Cir. 2003) (internal 

quotations and alterations omitted), “where no prejudice or disadvantage [is]

suffered by the opposing side.” McDowall v Orr Felt & Blanket Co., 146 F.2d 136 

(6th Cir. 1944) (citing Norton v. Larney, 266 U.S. 511, 516 (1925)). 

Keeping in mind the leniency afforded pro se plaintiffs, and the established 

tendency of courts to allow amendments to complaints, the Court hereby grants 

Plaintiff’s “Motion to Supplement Pleadings” (Doc. 44), “Motion for Leave to 

Supplement Complaint” (Doc. 49), and “Motion for Leave to 

Amend/Supplement Complaint” (Doc. 50). Radford’s claims, facts, and 

additional named defendants referenced in these motions are hereby

incorporated into Plaintiff’s complaint and have been taken into consideration 

for purposes of deciding if summary judgment is appropriate in this action. 

b. Motion for “Case Number, 84 Summons, and 30 days to Amend” 

(Doc. 45).

As stated above, liberality in amendment of pleadings is important to 

assure a party fair opportunity to present his claims and defenses; however, 

equal attention should be given to the proposition that there must be an end to 

particular litigation. NCI Group, Inc. v. Cannon Servs., 2011 U.S. Dist. LEXIS 

131908, *16-18, n.9 (N.D. Ga. Nov. 16, 2011) (“The Eleventh Circuit has expressed 

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particular concern regarding amendments that follow motions for summary 

judgment. In Freeman v. Continental Gin Co., 381 F.2d 459, 469 (5th Cir. 1967), the 

court stated: ‘A busy district court need not allow itself to be imposed upon by 

the presentation of theories seriatim. Liberality of amendment is important to 

assure a party a fair opportunity to present his claims and defenses, but equal 

attention should be given to the proposition that there must be an end finally to a 

particular litigation. . . . Much of the value of summary judgment procedure . . . 

would be dissipated if a party were free to rely on one theory in an attempt to 

defect [sic] a motion for summary judgment and then, should that theory prove 

unsound, come back long thereafter and fight on the basis of some other 

theory.’"). Radford’s motion, filed on July 30, 2015, titled “Motion for Case 

Number, 84 Summons, and 30 day[s] to Amend Complaint” (Doc. 45) is one such 

motion that comes in conflict with generous amendment rulings and should be 

denied. 

The motion listed approximately 84 defendants’ names in the style of the 

case and stated, “Plaintiff asking for a Case Number and 84 Summons to bring 

these defendant[s] to Court in the Southern District of Alabama.” (Id. at 3). The 

motion is completely void of any facts or claims against any named defendant 

and identified no commonality with the current action. The motion is 

unintelligible as it lacks sufficient detail for the Court to discern its purpose, 

much less merit, and for these reasons the motion cannot be entertained. 

Therefore, the undersigned recommends that Plaintiff’s “Motion for Case 

Number, 84 Summons, and 30 Days to Amend Complaint” be denied. 

c. Motion for Protective Order against Corizon Health (Doc. 48). 

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Plaintiff's motion for a restraining order is directed to Corizon Health 

(“Corizon”), a third party provider of healthcare services to inmates at Fountain, 

who is not a defendant to this action. Plaintiff claims on August 12, 2015, he was 

interviewed or questioned about his mental wellbeing by a Corizon employee, 

Ms. Nichols. (Doc. 48). Plaintiff avers he has never suffered from any mental 

illness or taken medication for the same and states that each time he files a 

lawsuit, “Corizon Health Service come around stating Plaintiff needs medication 

which is not true.” (Id. at 2). Radford alleges his First Amendment rights, 

purportedly to bring suit, are being violated by Corizon and seeks relief in the 

form of “a[n] order to protect.” (Id.). However, Plaintiff Radford has not met his 

burden of establishing a constitutional violation, nor the needed elements for the 

Court’s intervention.6

It is well established that inmates are protected by the First Amendment 

from retaliation by prison officials for filing lawsuits or administrative 

grievances. Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986); Mitchell v. 

Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). “To state a first amendment claim 

for retaliation, a prisoner need not allege violation of a separate and distinct 

constitutional right.” Thomas v. Evans, 880 F.2d 1235, 1242 (11th Cir. 1989). 

Rather, “[t]he gist of a retaliation claim is that a prisoner is penalized for 

																																																							

6 Federal Rule of Civil Procedure 26(c) affords the court discretionary power to 

enter a protective order where good cause is shown. “A party or any person from 

whom discovery is sought may move for a protective order in the court where the action 

is pending . . . The court may, for good cause, issue an order to protect a party or person 

from annoyance, embarrassment, oppression, or undue burden or expense, including . . . 

forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery 

to certain matters. . . .” Fed. R. Civ. P. 26(c)(1)(D). 

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exercising the right of free speech,” id., with a practice that is "not reasonably 

related to legitimate penological objectives" or take certain actions "with the 

intent of chilling that First Amendment right." Harris v. Ostrout, 65 F.3d 912, 916 

(11th Cir. 1995), citing Turner v. Safley, 482 U.S. 78, 85-89 (1987). 

“To state a retaliation claim cognizable under § 1983, a prisoner must 

demonstrate that (i) he engaged in a constitutionally protected activity, (ii) he 

suffered adverse treatment simultaneously with or subsequent to such activity, 

and (iii) a causal connection existed between the protected activity and the 

adverse action.” Flynn v. Scott, 2006 WL 1236718, *5 (M.D. Ala. 2006) (citing 

Donnellon v. Fruehauf Corp., 794 F.2d 598, 600-01 (11th Cir. 1986); Farrow v. West, 

320 F.3d 1235, 1248 (11th Cir. 2003)).

An inmate has the initial burden of establishing a prima facie case 

of unlawful retaliation by a preponderance of the evidence, which 

once established raises a presumption that prison officials retaliated 

against the inmate. . . . Merely alleging the ultimate fact of 

retaliation, however, is insufficient. . . . Additionally, conclusory 

allegations are insufficient to demonstrate the existence of each 

element requisite to demonstration of a retaliation claim. . . . If an 

inmate establishes a prima facie case, the burden then shifts to 

prison officials to rebut the presumption by producing sufficient 

evidence to raise a genuine issue of fact as to whether the prison 

official retaliated against the inmate. This may be done by the 

prison official articulating a legitimate, non-retaliatory reason for 

the adverse decision or action, which is clear, reasonably specific 

and worthy of credence. The prison official has a burden of 

production, not of persuasion, and thus does not have to persuade 

a court that he or she actually was motivated by the reason 

advanced. . . . Once the prison official satisfies this burden of 

production, the inmate then has the burden of persuading the court 

by sufficient evidence that the proffered reason for the adverse 

decision is a pretext for retaliation.

Flynn, 2006 WL 1236718 at 5-6 (citations omitted). A prisoner “must allege facts 

showing that the allegedly retaliatory conduct would not have occurred but for 

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the retaliatory motive.” Hempstead v. Carter, 2006 WL 2092383, *5-6 (N.D. Fla. 

2006) (emphasis added) (citing Jackson v. Fair, 846 F.2d 811, 820 (1st Cir. 1988)). 

“[A] causal connection may be alleged by a chronology of events that create a 

plausible inference of retaliation. Id. (citing Cain v. Lane, 857 F.2d 1139, 1143 n. 6 

(7th Cir. 1988)). However, “[t]he relevant showing . . . must be more than the 

prisoner’s ‘personal belief that he is the victim of retaliation.’” Id. (citing Johnson 

v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)). The prisoner must present with 

more than "general attacks" upon a defendant's motivations and must produce 

"affirmative evidence" of retaliation from which a jury could find that plaintiff 

had carried his burden of proving the requisite motive. Crawford-El v. Britton, 

523 U.S. 574, 600 (1998) (citations omitted). While a plaintiff may not be held to a 

heightened burden of proof, see id. at 580-86 (holding that in retaliation claim 

prisoner could not be required to show "clear and convincing" evidence of 

defendant's unconstitutional motives), courts should approach prisoner claims of 

retaliation "with skepticism and particular care" due to the "near inevitability" 

that prisoners will take exception with the decisions of prison officials and "the 

ease with which claims of retaliation may be fabricated." Dawes v. Walker, 239 

F.3d 489, 491 (2nd Cir. 2001), overruled in part on other grounds by Swierkiewicz v. 

Sorema N.A., 534 U.S. 506 (2002).

Radford presents to the Court no facts or details indicating Ms. Nichols 

interviewed him in, or for the purposes of, retaliation for the filing of the instant 

action. The interview was conducted nine months after the filing of the current 

action. Additionally, Radford does not mention that he was ever placed on 

medication or diagnosed with an illness subsequent to his interview with Ms. 

Nichols. Thus, the undersigned finds no evidence that Corizon, Radford’s 

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healthcare provider, has acted unconstitutionally and further finds no reason 

that a protective order should be entered against Corizon. Thus, Radford’s 

“Motion for Protective Order Against Corizon Mental Health Services” (Doc. 48) 

is denied. 

III. Summary Judgment Legal 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. Bd. of Pub. Educ. for Bibb Cnty., 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 the existence of a 

genuine issue . . . [of] material fact." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 

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(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.'") (internal citations omitted); see Comer v. City of 

Palm Bay, Fla., 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.’”) 

(internal quotations and citations omitted).

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 

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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 

repetition of his conclusional allegations' and is unsupported by evidence 

showing an issue for trial.").

In considering whether Defendants are entitled to summary judgment in 

this action, the Court has viewed the facts in the light most favorable to 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.

IV. Discussion.

a. Improper Handling of Mail7

																																																							 7 Former Alabama Department of Corrections Commissioner Kim T. Thomas and

Warden Cynthia Stewart are named as Defendants to this claim based solely on their 

supervisory positions and had no knowledge of inmate mail handling prior to notice per 

the instant lawsuit. (Doc. 29-3). Additionally, Thomas is not responsible for the daily 

running or operation of Fountain. (Id.). 

In order to state a claim upon which relief can be granted in a § 1983 action, 

Plaintiff must establish a causal connection between each defendant's actions, orders, 

customs, policies, or breaches of statutory duty and the alleged deprivation of his 

constitutional rights. See Frankum v. Chapman, 2009 U.S. Dist. LEXIS 133760, 2009 WL 

1118875, *3 (S.D. Ala. Apr. 24, 2009)(unpublished). Liability for an alleged constitutional 

violation cannot be established on the basis of respondeat superior. See Edwards v. Alabama 

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On three separate occasions, November 4, 2014, January 12, 2015, and 

February 3, 2015, Radford alleges an inmate shift runner was allowed to deliver 

his transaction sheet to him,

8 and other inmates at Fountain. Radford claims 

having an inmate runner in possession of another inmate’s mail is a violation 18 

U.S.C. §§ 1701 and 1702, Alabama Department of Corrections Regulations, and 

the Eighth Amendment. 

																																																																																																																																																																				 Dep't of Corrs., 81 F. Supp. 2d 1242, 1255 (M.D. Ala Jan. 14, 2000) ("A theory of respondeat 

superior is not sufficient to support their § 1983 claim.") (unpublished). "[S]upervisory 

liability under § 1983 occurs either when the supervisor personally participates in the 

alleged unconstitutional conduct or when there is a causal a connection between the 

actions of a supervising official and the alleged constitutional deprivation." Cottone v. 

Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). "The necessary causal connection can be 

established 'when a history of widespread abuse puts the responsible supervisor on 

notice of the need to correct the alleged deprivation, and he fails to do so.'" Id. (citations 

omitted).

"Alternatively, the causal connection may be established when a supervisor's 

'custom or policy . . . result[s] in deliberate indifference to constitutional rights' or when 

facts support 'an inference that the supervisor directed the subordinates to act 

unlawfully and failed to stop them from doing so.'" Id. (citations omitted). In such 

instances, Plaintiff must show that the policy or custom was "the 'moving force [behind] 

the constitutional violation.'" Pinkney v. Davis, 952 F. Supp. 1561, 1569 (M.D. Ala. Jan 15, 

1997) (citations omitted). "[I]t is clear that not only must there be some degree of 'fault'

on the part of [defendants] in establishing the policy or tolerating the custom, but there 

must be a causal link between the custom or policy and the constitutional deprivation." 

Id. (citations omitted).

The evidence before the Court is uncontroverted that neither Warden Stewart

nor former Commissioner Thomas directly participated in authorizing inmate shift 

runners to hand out inmate transaction sheets on the three enumerated occasions. 

Further, Radford has not identified any policy or custom involving improper inmate 

mail handling. Radford has failed to show a causal connection between actions by 

Defendants Stewart and Thomas and any alleged constitutional violation of mail 

handling. Further, he has failed to show that Defendants Stewart and Thomas were 

deliberately indifferent to his needs. Accordingly, Defendants Stewart and Thomas are 

entitled to summary judgment and Radford’s claims against them for improper 

handling of mail must be dismissed as a matter of law.

8 Plaintiff Radford uses the terms “mail” and “transaction sheet” interchangeably 

throughout his pleadings. Based on a reading of all Radford’s claims and facts 

presented, the Court surmises that Plaintiff’s complaint is referring to Defendants’

liability for allowing inmates to pass out or deliver the prison inmates’ monthly 

transaction sheets, not United States Mail. However, the distinction is irrelevant to the 

Court’s analysis of Plaintiff’s claims. 

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The two federal statutes challenged criminalize obstruction of the United 

States’ Mail. Section 1701 states:

Whoever knowingly and willfully obstructs or retards the passage 

of the mail, or any carrier or conveyance carrying the mail, shall be 

fined under this title or imprisoned not more than six months, or 

both.

18 U.S.C. § 1701. Section 1702 states:

Whoever takes any letter, postal card, or package out of any post 

office or any authorized depository for mail matter, or from any 

letter or mail carrier, or which has been in any post office or 

authorized depository, or in the custody of any letter or mail 

carrier, before it has been delivered to the person to whom it was 

directed, with design to obstruct the correspondence, or to pry into 

the business or secrets of another, or opens, secretes, embezzles, or 

destroys the same, shall be fined under this title or imprisoned not

more than five years, or both.

18 U.S.C. § 1702. Congress’ intent in enacting such laws was to protect letters 

sent by mail from embezzlement and interference until they reached their 

destination by proper delivery from the United States’ Postal Service. United 

States v. McCready, 11 F. 225, 237 (C.C. W.D. Tenn. 1882). Thus, these laws are 

criminal statutes and do not support a civil cause of action, such as Plaintiff’s § 

1983 suit. See Matson v. Hrabe, 11-3192-RDR, 2014 U.S. Dist. LEXIS 8135, 2014 WL 

273187 (D. Kan. Jan. 23, 2014); Schowengerdt v. General Dynamics Corp., 823 F.2d 

1328 (9th Cir. 1987) (finding these sections to be penal statutes governing 

criminal offenses, and no private right of action exists under either of these 

criminal statutes); Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97 (2d 

Cir. 1981) (same); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (same).

Absent some expression of Congressional intent to create a private right of 

action, a plaintiff cannot maintain a civil claim against a defendant for violation 

of a federal criminal statute. See, e.g., Adventure Outdoors, Inc. v. Bloomberg, 552 

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F.3d 1290, 1303 (11th Cir. 2008) (rejecting notion that Congress authorized "a 

federal private right of action any time a civil plaintiff invokes a federal criminal 

statute"). Nothing in the text of § 1701 or § 1702 expressly or impliedly creates a 

private right of action, and federal courts have consistently refused to recognize 

civil claims for mail-tampering or obstruction crimes. See, e.g., Brett v. Brett, 503 

F. App’x 130 (3rd Cir. 2012) (finding no basis for civil liability in plaintiff's claim 

that defendants opened his mail, in violation of 18 U.S.C. § 1702, because 

"criminal statutes do not give rise to civil liability"); McFarlane v. Roberta, 891 F. 

Supp.2d 275, 285 (D. Conn. 2012) (rejecting plaintiff's civil claim for violation of 

criminal statute prohibiting mail tampering because Congress did not intend to 

create a private, civil cause of action for violations); Durso v. Summer Brook 

Preserve Howmeowners Ass'n, 641 F. Supp. 2d 1256, 1268 (M.D. Fla. 2008) (opining 

that 18 U.S.C. § 1705 "provides for criminal penalties but does not create civil 

liability," and dismissing plaintiff's civil cause of action predicated on violation of 

§ 1705); Robinson v. Hubbard, 07-CV-2051 W (AJB), 2008 U.S. Dist. LEXIS 33486, 

2008 WL 1833495, *2 (S.D. Cal. Apr. 23, 2008) ("the federal statutes criminalizing 

mail tampering do not provide a private civil cause of action"). For these 

reasons, Defendants are plainly entitled to summary judgment on Radford’s 

claim that Defendants violated 18 U.S.C. §§ 1701, 1702. 

Next, Radford alleges in his complaint and opposition to Defendants’ 

motion for summary judgment that Defendants violated Alabama Department of 

Corrections (“ADOC”) Administrative Regulations. (Doc. 43 at 1). The ADOC 

Administrative Regulations provide:

7. At no time shall mail be distributed or handled by an inmate or 

be accessible to any inmate other then the addressee. 

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8. A staff person shall deliver incoming mail to the inmate(s) to 

whom it is addressed. 

ADOC, Admin. Reg. 448, V., 7-8. While defendants deny that the ADOC 

regulations were not followed (Docs. 29-1, 29-2), the Court accepts as true the 

nonmovant’s, Radford’s, evidence on a motion for summary judgment. 

McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (In 

deciding a motion for summary judgment, "[t]he evidence, and all reasonable 

inferences, must be viewed in the light most favorable to the nonmovant ...."). 

However, Radford's allegations do not provide facts that convey a plausible 

claim for a violation of constitutional right. At best, Radford has asserted that 

Defendants violated a state regulation; however, such a violation does not 

necessarily demonstrate a violation of the Constitution. Smith v. State of Georgia,

684 F.2d 729, 732 n.6 (11th Cir. 1982) ("Not every violation of a state agency of its 

own rules rises to the level of a [constitutional] infringement.").

Courts have regularly held that interference with an inmate's "legal mail" 

implicates an inmate's right of access to courts and free speech as guaranteed by 

the First and Fourteenth Amendments of the United States Constitution. 

Procunier v. Martinez, 416 U.S. 396, 412-13, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974), 

overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S. Ct. 

1874, 104 L. Ed. 2d 459 (1989). Prison officials have a responsibility to forward 

mail to inmates promptly. Bryan v. Werner, 516 F.2d 233, 238 (3d Cir. 1975); 

Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) (Allegations that mail 

delivery was delayed for an inordinate amount of time are sufficient to state a 

claim for a violation of the First Amendment.), but see Crofton v. Roe, 170 F.3d 957, 

961 (9th Cir. 1999) (A temporary delay or isolated incident of delay does not 

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17

violate a prisoner's First Amendment rights.). Additionally, "censorship of 

prisoner mail, whether incoming or outgoing, impinges on the interest in 

communication of both the inmate and the nonprisoner correspondent." Saxbe v. 

Washington Post Co., 417 U.S. 843, 865, 94 S. Ct. 2811, 41 L. Ed. 2d 514 (1974). 

However, there are no federal laws mandating which specific persons may 

handle or pass out a prisoner’s mail once deposited by the U.S. Postal Service in 

the mailroom at the prison; this is a policy and regulatory issue left for prison 

administration. See Lewis v. Sec'y, DOC, 2:10-cv-547-Ftm-29DNF, 2013 U.S. Dist. 

LEXIS 134140, 2013 WL 5288989 (M.D. Fla. Sept. 19, 2013) (“[T]he Postal 

Operations Manual of the United States Post Office states that ‘[m]ail addressed 

to inmates at institutions is delivered to the institution authorities who, in turn, 

deliver the mail to the addressee under the institution's rules and regulations.’ 

United States Postal Operations Manual § 615.1 (2009).”).

Inasmuch as Radford does not have a liberty interest that was impacted 

by the handling of mail, and his claim regarding a violation of a regulation does 

not sound in the nature of a constitutional violation, the Court finds that his 

claim for a violation of the ADOC’s regulations is not of constitutional 

magnitude and, therefore, should be dismissed. See Adams v. Green, 2:07-CV-309-

WHA (WO), 2007 U.S. Dist. LEXIS 44676, 2007 WL 1663094 (M.D. Ala. May 18, 

2007) (unpublished) (Complaint was dismissed as frivolous where prison 

officials engaged in conduct violating their own administrative regulations but 

not the Eighth or Fourteenth Amendment.).

Lastly, Radford asserts Defendants acted with deliberate indifference to 

his financial safety and security by allowing inmate runners to possess and 

deliver monthly transaction sheets to inmates. He claims:

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18

By another inmate having Plaintiff Mail/Transaction slip with 

Plaintiff amount of money, S.S.# poses a dangerous position for 

Plaintiff and a risk that PMOD account be stolen from Plaintiff by 

phone on the wall here in prison. You can take money off your 

account by phone by dialing my AIS# 156846 and my last social 

security 4 dital[sic] 0000 and the inmate can use my I.D. number 

and call any where he wanted. In one month a inmate can clear my 

PMOD account without me knowing it. We only get one 

transaction slip per month. By a inmate having my transaction slip 

put my life in danger here among murder, killers, robbers, etc. 

knowing how much Plaintiff has on his transaction slip so let us not 

play down this transaction slip saying it doesn’t amount to 

anything . . . I rather a inmate have my mail instead of my PMOD 

account transaction slip.

(Doc. 43 at 4-5) (alterations in capitalization). To establish a successful Eighth 

Amendment claim against the Defendants, Radford must prove that there was "a 

substantial risk of serious harm," that the defendants were subjectively 

deliberately indifferent to that risk, and causation. Hale v. Tallaossa Cnty., 50 F.3d 

1579, 1582 (11th Cir. 1995); see also Farmer v. Brennan, 511 U.S. 825, 832-34, 114 S. 

Ct. 1970, 128 L. Ed. 2d 811 (1994). This includes an objective and subjective 

component. The objective standard requires that the alleged deprivation be 

"objectively, 'sufficiently serious,'" Farmer, 511 U.S. at 834 (quoting Wilson v. 

Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991)), and "embodies 

broad and idealistic concepts of dignity, civilized standards, humanity, and 

decency . . ., but must be balanced against competing penological goals." LaMarca

v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993) (quoting Estelle v. Gamble, 429 U.S. 

97, 102, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (internal quotation marks omitted)). 

The subjective component of an Eighth Amendment claim generally "inquires 

whether the officials acted with a sufficiently culpable state of mind." Sims, 25 

F.3d at 983-84 (citing Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 117 L. Ed. 

2d 156 (1992)). This component "follows from the principle that 'only the 

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19

unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" 

Farmer, 511 U.S. at 834 (quotation and citation omitted). In prison conditions 

cases, the required state of mind for a defendant is "deliberate indifference" to an 

inmate's health or safety. Id. (citations omitted). It is not enough that an inmate 

proves that the defendant should have known of the risk, but did not, as actual 

knowledge is the key. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 

1996). A prison official's duty under the Eighth Amendment is to ensure 

"reasonable safety," "a standard that incorporates due regard for prison officials' 

'unenviable task of keeping dangerous men in safe custody under humane 

conditions.'" Farmer, 511 U.S. at 844-45 (citations omitted).

While the Court recognizes Radford’s fears and respects the severity of 

possible damage should his personal account information get into the wrong 

hands, Radford has failed to establish the necessary elements of an Eighth 

Amendment violation. The passing out of inmate mail by a non-officer or prison 

staff member may be considered irresponsible or even negligent, but it is hardly 

objectively serious and against human decency. See Daniels v. Williams, 474 U.S. 

327, 328, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (A defendant can never be held 

liable under § 1983 for negligence.); see also Zarnes v. Rhodes, 64 F.3d 285, 290 (7th 

Cir. 1995). And, Radford fails to present one scintilla of evidence that 

Defendants allowed an inmate to pass out Radford’s transaction sheet with the 

intention of causing Radford, or any other inmate, harm. Radford’s own facts 

dilute and belie the proposition that any defendant acted with a culpable state of 

mind, as he claims upon notifying Sergeant Marshall of the mail infraction on 

November 4, 2014, Sergeant Marshall stated, ”we were short of hands so we let 

him pass them out” (doc. 1 at 5) and when he reported the February 3, 2015 mail 

Case 1:14-cv-00527-KD-C Document 58 Filed 12/10/15 Page 19 of 31
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incident, Sergeant McQueen simply “shook his head,” “seeing nothing wrong 

with C.O.I. Bruce A. Finch passing mail over to Inmate Bell to pass out for him.” 

(Doc. 25). Defendants’ responses are devoid of subjective recklessness or a 

knowledge of harm to Plaintiff. Farmer, 511 U.S. at 839-40 (The “subjective 

recklessness” standard of criminal law is the test for “deliberate indifference” 

under the Eighth Amendment.) There is no liability for "an official's failure to 

alleviate a significant risk that he should have perceived but did not . . . ." Id. at 

838. 

Additionally, Radford fails to show any harm as a result of the alleged 

practice of allowing an inmate to pass out his mail. See Michael v. Arpaio, 06-2560-

PHX-DGC, 2006 U.S. Dist. LEXIS 88715, 2006 WL 3499917 (D. Ariz., December 4, 

2006) (Plaintiff inmate’s claim that jail officers hand out mail without checking 

inmate ID's lacked merit because he was not “injured in any way by the alleged 

failure to check inmate identification in connection with the distribution of 

mail"). Courts have held causation to be a necessary element in prison mail 

handling cases and find no liability where the plaintiff suffered no harm, despite 

the notable potential for harm. For example, in Northup v. Bell, the inmate 

plaintiff complained of the prison’s practice of handing out mail without 

checking inmate IDs and speculated that he could be harmed by other inmates if 

they were to obtain his mail and begin writing to his family, including 

pedophiles writing to and establishing relationships with his grandchildren. 

Northup, 6:11cv222, 2012 U.S. Dist. 95060, *10 (E.D. Tex., June 12, 2012). The court 

opinioned that Northup lacked a valid constitutional claim and could not pursue 

a § 1983 action based on “a mere remote or speculative possibility of injury.” Id. 

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at *11 (citing Reichenberger v. Pritchard, 660 F.2d 280, 285 (7th Cir. 1981); Bailey v. 

Southerland, 821 F.2d 277, 279 (5th Cir. 1987)). 

The allegations in the instant complaint do not suggest a systematic 

pattern or practice of violating Plaintiff's constitutional rights, nor does Plaintiff 

succeed in showing Defendants acting with the requisite intent necessary to 

prove deliberate indifference. Further, Plaintiff has not made any showing that 

he was harmed in any way. In consideration of all these factors, the complaint 

fails to state a constitutional claim upon which relief may be granted. It is 

recommended that these claims against all defendants be dismissed with 

prejudice.

b. Conditions of Confinement.

In his complaint, Radford claims he suffered “actual injury” on November 

13 and 14, 2014, due to the lack of heated air and hot water for showers at 

Fountain. 9 (Doc. 10 at 3). Plaintiff claims the faulty heating systems at the 

prison equate to cruel and unusual punishment in violation of the Eighth 

Amendment. 

The Eighth Amendment provides that, "[e]xcessive bail shall not be 

required, nor excessive fines imposed, nor cruel and unusual punishments 

inflicted." U.S. Const. Amend. VIII. To demonstrate a violation of an Eighth 

																																																							 9 The exact time frame of his claim is a bit unclear. Radford first alleges he has 

been without heat throughout the summer and fall of 2013 and “will continue to suffer 

in the winter or fall of 2014.” (Doc. 4 at 5; 10 at 4). Radford’s response to Defendants’ 

motion for summary judgment, however, claims he was without heat (or hot water) for 

four or five months before filing his complaint in November of 2014, but notes that the 

problem actually started prior to that time period. (Doc. 43 at 2). While the fluctuating 

dates are perplexing, they are not controlling and, in this action, are immaterial, as 

Plaintiff fails to carry his burden of establishing his claim. 

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Amendment right in a section 1983 prison conditions action, a plaintiff must 

prove three elements: (1) "a condition of confinement that inflicted unnecessary 

pain or suffering"; (2) "the defendant's deliberate indifference to that condition;" 

and (3) "causation." LaMarca v. Turner, 995 F.2d 1526, 1535 (11th Cir. 1993), cert. 

denied, 510 U.S. 1164, 114 S. Ct. 1189, 127 L. Ed. 2d 539 (1994)(internal quotation 

marks and citations omitted). "The wrong in Eighth Amendment cases is the 

deliberate indifference to a constitutionally infirm condition; that wrong must, in 

turn, have been the proximate cause of the plaintiffs' injuries." 995 F.2d at 1538-

39.

1. Lack of Hot Showers.

Radford makes a general allegation that he was denied hot showers while 

imprisoned at Fountain and claims he was injured on November 13 and 14, 2014 

by the failure of Defendants to “replace broken heat system that supply heat and 

the hot water system.” (Doc. 10 at 3). The Court surmises from the entirety of 

pleadings that the heat pump for the water at Fountain was not working or 

faulty from the summer of 2013 through February 2015, when Warden Stewart 

avers, and Plaintiff does not deny, all heating units were operable. (See Doc. 29 

at 3; Doc. 29-2; Doc. 43 at 2). While Radford asserts he was continually denied 

hot showers, he fails to provide evidence that he was deprived of a single human 

need, or causally connect an injury sustained in connection with this complained 

of condition.10 Additionally, Defendants provide that while hot water was 

																																																							 10 The only injury Radford purports to have sustained is “a cold.” He claims he 

contracted a cold from taking a cold shower on April 16, 2015, when Warden Stewart 

retaliated against him for filing this lawsuit and forced him to take a shower without hot 

water. (Doc. 44 at 1). Radford attaches, as proof of his injury, a sick call request that he 

initiated on May 7, 2015, complaining of a cough and sore throat, approximately three 

weeks after he claims to have taken a cold shower. (Id. at 1, 5, 7). This allegation is 

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inoperable in Plaintiff’s dorm, Plaintiff Radford and other inmates were allowed 

to shower in other dorms.11 (Doc. 29 at 5). 

"[T]he Constitution does not mandate comfortable prisons." Rhodes v. 

Chapman, 452 U.S. 337, 349 (1981). Rather, all that is required under the Eighth 

Amendment is that prison officials "ensure that inmates receive adequate food, 

clothing, shelter, and medical care, and . . . 'take reasonable measures to 

guarantee the safety of the inmates[.]'" Farmer, 511 U.S. at 832 (citations omitted); 

see also Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572 (11th Cir. 1985) (finding that 

the Eighth Amendment requires that a prisoner receive "reasonably adequate 

food, clothing, shelter, and sanitation."). "[E]xtreme deprivations are required to 

make out a conditions-of-confinement claim," "[b]ecause routine discomfort is 

'part of the penalty that criminal offenders pay for their offenses against 

society[.]'" Hudson, 503 U.S. at 9 (citations omitted). "While an inmate 'need not 

await a tragic event' before seeking relief, . . . he must at the very least show that 

a condition of his confinement 'pose[s] an unreasonable risk of serious damage to 

his future health' or safety. . . ." Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 

2004) (citations omitted). "Nothing so amorphous as 'overall conditions' can rise 

to the level of cruel and unusual punishment when no specific deprivation of a 

single human need exists." Wilson, 501 U.S. at 305. Prison conditions constitute 

																																																																																																																																																																				 vague, tenuous, and too remote in time to attribute it as an act of retaliation or a suffered 

injury due to a cold shower. Radford fails to carry his burden of proving retaliation by 

Warden Stewart (see, supra, Section II., c. for the standard of proving retaliation) or 

causally connecting any injury to his conditions of confinement claim. 

11 Radford does not dispute that he and other inmates were allowed to shower in 

another dormitory, but complains that the alternate dormitory’s shower was unfit as it 

occupied only three working showerheads for all inmates to share. (Doc. 43 at 1).

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cruel and unusual punishment only when they result in the "unquestioned and 

serious deprivation of basic human needs." Rhodes, 452 U.S. at 347.

Radford’s claim of showers lacking hot water does not rise to a 

constitutional violation. Courts have held that inmates are entitled to reasonably 

adequate sanitation, personal hygiene, and laundry privileges, see, e.g., Green v. 

Ferrell, 801 F.2d 705, 771 (5th Cir. 1986), but frequent showers have been found 

not to be mandated, see Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 

1988), cert. denied, 488 U.S. 9018, 109 S. Ct. 260, 102 L. Ed. 2d 248 (1988) (holding 

that one shower a week is constitutionally sufficient). Likewise, courts have 

consistently found that the Constitution does not mandate hot showers for 

inmates as a necessity to life. See Lopez v. Robinson, 914 F.2d 486, 492 (4th Cir. 

1990) (noting that low cell temperatures must cause serious medical or 

psychological harm to implicate the Eighth Amendment); Hopkins v. Klindworth, 

556 F. App’x 497, 499 (7th Cir. 2014) (“Prisoners do not have a constitutional right 

to hot water.); Kennedy v. Gusman, 06-5274 SECTION: “B” (1), 2007 U.S. Dist. 

LEXIS 32711, *8-9 (E.D. La. May 2, 2007) (“[E]ven if plaintiff’s allegations are true 

regarding the lack of hot water for showers, there appears to be no support for a 

proposition that prisoners have a constitutional right to hot showers.); Carter v. 

Dawson, 1:07-cv-01325-AWI-BAM (PC), 2014 U.S. Dist. LEXIS 121333, *49 (E.D. 

Cal. Aug. 29, 2014) (Finding no clearly established right to hot showers in prison 

and noting “[o]nly extreme deprivations can be characterized as punishment 

prohibited by the Eighth Amendment.”). Thus, Radford has failed to state a 

claim upon which relief may be granted, and Defendants are entitled to 

summary judgment on this claim. 

2. Lack of Heat in Winter Months. 

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On November 16, 2014, Plaintiff filed his amended complaint alleging 

unconstitutional confinement claims, namely that he was being held at Fountain 

without indoor heat during the winter months (and hot showers). Warden 

Stewart avers that as of February 2015 all heaters and hot boilers are operable at 

Fountain and that there is a full time maintenance staff assigned to Fountain to 

handle such issues. (Doc. 29 at 3; Doc. 29-2). Radford does not dispute that the 

heating units are now operable (see doc. 43 at 2) but complains of the length of 

time it took to repair the units. (Doc. 43 at 2). Radford states “it took from 10-13-

14 to February 2015 to fix and have hot water [and] heat to keep warm,” and 

alleges this equates to cruel and unusual punishment. (Id.). 

The Eighth Amendment governs the conditions under which 

convicted prisoners are confined and the treatment they receive 

while in prison. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 

128 L.Ed.2d 811 (1994). Although the Amendment does not require 

comfortable prisons, it prohibits inhumane ones. Id. The Eighth 

Amendment guarantees that prisoners will not be "deprive[d] ... of 

the minimal civilized measure of life's necessities." Rhodes v. 

Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L.Ed.2d 59 

(1981) (quoted in Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir. 

2004)). "[B]asic human necessities include food, clothing, shelter, 

sanitation, medical care, and personal safety." Harris v. Thigpen, 941 

F.2d 1495, 1511 (11th Cir. 1991) (cited in Collins v. Homestead Corr. 

Inst., 452 F. App'x 848, 850-851 (11th Cir. 2011)). "[T]o make out a 

claim for an unconstitutional condition of confinement, 'extreme 

deprivations' are required . . . ." Thomas v. Bryant 614 F.3d 1288, 

1304, 1306-07 (11th Cir. 2010) (citing Hudson v. McMillian, 503 U.S. 

1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)).

Magwood v. Beem, 4:14cv314-MW/CAS, 2015 U.S. Dist. LEXIS 22875, *42 

(N.D. Fla. Jan. 27, 2015). 

It is well settled that prisoner claims of inadequate heating, cooling, and 

ventilation, as Radford asserts, are governed by the Eighth Amendment. See

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Chandler v. Crosby, 379 F.3d 1278, 1294 (11th Cir. 2004). The Eleventh Circuit has 

examined such claims and determined:

[T]he Eighth Amendment is concerned with both the “severity”

and the “duration” of the prisoner's exposure to inadequate cooling 

and ventilation. Cf. Dixon, 114 F.3d at 643 (“It is not just the severity 

of the cold, but the duration of the condition, which determines 

whether the conditions of confinement are unconstitutional.”). 

That is, “[a] condition which might not ordinarily violate the Eighth 

Amendment may nonetheless do so if it persists over an extended 

period of time.” Id. Severity and duration do not necessarily form 

a perfect sliding scale, but our analysis should be informed by a 

consideration of both factors.

. . .

[A] prisoner's mere discomfort, without more, does not offend the 

Eighth Amendment. See Woods, 51 F.3d at 581 ("While the 

temperature in extended lockdown may be uncomfortable, that 

alone cannot support a finding that the plaintiff was subjected to 

cruel and unusual punishment in violation of the Eighth 

Amendment."). Eighth Amendment claims are governed by the 

standards we discuss at length in Part III.A, supra. In particular,

a prison official cannot be found liable under the 

Eighth Amendment for denying an inmate humane 

conditions of confinement unless the official knows of 

and disregards an excessive risk to inmate health or 

safety; the official must both be aware of facts from 

which the inference could be drawn that a substantial 

risk of serious harm exists, and he must also draw the 

inference.

Farmer, 511 U.S. at 837, 114 S. Ct. at 1979.

Chandler, 379 F.3d at 1295. Courts have found exposure to cell temperatures 

violate the Eighth Amendment when the totality of the conditions of 

confinement are sufficiently “extreme” to create “an unreasonable risk of serious 

damage to [a prisoner’s] future health or safety” and the defendants acted with 

deliberate indifference to that risk of harm. Id. at 1289; see, e.g., Dixon v. Godinez,

114 F.3d 640, 643 (7th Cir. 1997) (temperatures in cell averaging 40 degrees 

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27

Fahrenheit and regularly falling below freezing for four consecutive winters); Del 

Raine v. Williford, 32 F.3d 1024, 1036 (7th Cir. 1994) (prisoner housed in cell with 

broken windows in which temperature was near outdoor temperature including 

a period of two days where wind chills were from -40 to -50 degrees Fahrenheit); 

also see Henderson v. DeRobertis, 940 F.2d 1055, 1056-1061 (7th Cir. 1991) (finding 

an Eighth Amendment violation clearly established where conditions included 

broken cell windows, below freezing temperatures inside the cell, no winter 

clothing, lack of extra blankets, and a malfunctioning heating system over period 

of four days in which temperature fell to -22 degrees Fahrenheit and a windchill 

of -80 degrees Fahrenheit outside). 

However, courts have determined no constitutional violation occurred 

when the conditions of confinement include allegations of only uncomfortable 

temperatures. See, e.g., Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) 

(concluding that while the temperature may be uncomfortable, that alone cannot 

support a finding that the plaintiff was subjected to cruel and unusual 

punishment in violation of the Eighth Amendment); Mays v. Springborn, 575 F.3d 

643, 648-49 (7th Cir. 2009) (prisoner's allegations of exposure to cold did not rise 

to level of objectively serious harm necessary to show Eighth Amendment 

violation where prisoner alleged he caught colds, suffered hurt ears and numb 

hands, and felt frostbite, but failed to show he was exposed to cold for long 

periods of time or that he suffered anything more than usual discomforts of 

winter); Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (high temperatures that

were the result of allegedly inadequate cooling were not a violation of the Eighth 

Amendment even though they aggravated Plaintiff's sinuses and were 

uncomfortable); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977) (federal court's 

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28

involvement occurs only when there are extreme temperatures that are injurious 

to an inmate's health); Thomas v. Rodgers, 3:13-cv-1052-J-32TEM, 2013 U.S. Dist. 

LEXIS 161709 (M.D. Fla. Oct. 16, 2013) (no Eighth Amendment violation when 

prisoner’s failure to allege how cold the temperature was in his cell, that he 

suffered any injury from his 36-hour exposure to cold temperatures, that the 

defendants knew of a risk of serious harm to plaintiff, or that he ever informed 

the defendants that he was uncomfortably cold); King v. Henry, 

5:09cv365/MCR/EMT, 2010 U.S. Dist. LEXIS 115185, *20, 2010 WL 4386539 (N.D. 

Fla. Sept. 24, 2010) (forty-eight day exposure to cold temperatures with access to 

a winter coat did not pose a risk of damage to plaintiff’s health "so grave that is 

violates contemporary standards of decency to expose anyone unwillingly to 

such risk"). 

At best, the record shows that Defendants might have been negligent, but 

that falls short of deliberate indifference. Thus, Radford has failed to carry his 

burden of establishing an Eighth Amendment Constitutional violation, as he 

failed to show Defendants acted with deliberate indifference to his health or 

safety. First, he fails to show that the conditions under which he was held were 

objectively harmful. While Radford states he was without heat on a day the 

wind chill factor was as low as 19 degrees Fahrenheit, Radford fails to specify or 

approximate the temperature of his cell; he never claims that there was a broken 

window letting in the bitter cold elements; he does not allege he was forced 

outside without proper warm clothing in the winter temperatures. In fact, 

Radford presents no evidence of any extreme cold experienced but the 

conclusory allegation that his cell was without heat on a day with temperatures 

as cold as 26 degrees Fahrenheit and a wind chill of 19 degrees Fahrenheit. 

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29

Second, Radford fails to raise a genuine issue of material fact regarding whether 

Defendants had knowledge of a risk to his health or safety. Radford does not 

submit that he filed formal grievances or identify officers to whom he 

complained, and the pleadings certainly lack evidence that Defendants 

subjectively believed the conditions constituted an unreasonable risk to Plaintiff. 

Third, Radford has failed to identify a single injury suffered due to the lack of 

heating.

12 The absence of specific facts to support this claim precludes Plaintiff 

from establishing a genuine issue of material fact concerning a deprivation of a 

single human need. For all these reasons, the undersigned finds Radford has not 

carried his burden to overcome Defendants’ motion for summary judgment. 

V. Conclusion.

Based on the foregoing analysis, the undersigned concludes that there are 

no genuine issues of material fact, and that all Defendants are entitled to 

judgment as a matter of law on all claims and causes of action interposed by 

Plaintiff. 

Therefore, it is ordered that:

1. Plaintiff’s motions to amend or supplement the complaint (Docs. 

44, 49, 50) are granted; and

2. Plaintiff’s other motions (Docs. 31, 32, 33, 34, 35, 48) are denied.

Furthermore, it is recommended that:

																																																							 12 Radford states that “[o]n or about November 13, 14, 2014 the Defendants, (Kim T. 

Thomas; Cynthia Stewart along with their agents, did cause actual injury to the Plaintiff, 

(e.g. by not fixing, or replacing broken heat system that supply heat and the hot water 

system too.)” (Doc. 10 at 3); however Radford fails to identify any sustained injury in 

any of his filings to the Court. 

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1. Plaintiff’s Motion for “Case Number, 84 Summons, and 30 days to

Amend” (Doc. 45), construed as a motion to amend, be denied; and 

2. Defendants’ motions for summary judgment be granted on all 

counts and that Radford’s action against Defendants Sergeant Cedric Marshall, 

former Alabama Department of Corrections Commissioner Kim T. Thomas, 

Warden Cynthia Stewart, Lieutenant R. Davis, C.O.I. Bruce A. Fitch, Sergeant E. 

McQueen, C.O.I C. Brown, C.O.I. R. Washington, and C.O.I. D. Wetzel be 

dismissed with prejudice.

NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of service of this 

document, file specific written objections with the Clerk of this Court. See 28 

U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. L.R. 72.4. The parties should note 

that under Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate 

judge's findings or recommendations contained in a report and recommendation 

in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to 

challenge on appeal the district court's order based on unobjected-to factual and 

legal conclusions if the party was informed of the time period for objecting and 

the consequences on appeal for failing to object. In the absence of a proper 

objection, however, the court may review on appeal for plain error if necessary in 

the interests of justice.” 11th Cir. R. 3-1. 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 

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that merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific. 

DONE this 10th day of December 2015. 

/s/WILLIAM E. CASSADY

UNITED STATES MAGISTRAGE JUDGE

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