IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CEDRIC ANDERSON,

AIS #198757

Plaintiff,

:

:

:

:

vs. : CIVIL ACTION 15-113-KD-M

:

OFFICER THOMAS,

Defendant.

:

:

:

REPORT AND RECOMMENDATION

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

Alabama prison inmate, Cedric Anderson, proceeding pro se 

and in forma pauperis, was referred to the undersigned 

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

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

Complaint (Doc. 1), and Defendant Christopher Thomas’ 

Answer and Special Report. (Docs. 14, 15). The Court has 

converted these documents into a Motion for Summary 

Judgment (Doc. 16), and, after consideration of such, and 

for the reasons set out below, it is recommended that 

Defendant’s Motion for Summary Judgment be granted and that 

Plaintiff’s action be dismissed with prejudice.

I. FACTS AND PROCEEDINGS

Plaintiff is an Alabama Department of Corrections 

(“ADOC”) inmate, currently serving a twenty-year sentence 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 1 of 18
2

for manslaughter and sexual abuse in the second degree at 

Fountain Correctional Facility. (Doc. 1 at 6). As the 

only defendant, Plaintiff names Officer Christopher Thomas 

(“Defendant Thomas”). (Doc. 1). On March 15, 2014, 

Plaintiff contends he was attacked by another inmate, David 

Pogue, and that Defendant Thomas failed to protect him from 

said attack. Plaintiff states that he was “stabbed in 

[the] left eye, and prior to this inmate attacking me, he 

had warned Officer Thomas that he was going to attack me, 

and this officer did nothing to protect me from this 

assault by the inmate, which as a result I have lost sight 

in my left eye, and have had numerous doctor appointments 

with specialist[s] and had surgery performed on my eye 

which I still cannot see out of with clarity, and all the 

officer had to do was protect me from the attack and warn 

me of the threat of attack from the inmate, but did 

neither.” (Doc. 1 at 4-5). 

For relief, Plaintiff requests an “award [for]

monetary damages for the deliberate disregard to my safety, 

and the failure to protect me from assault. Punitive and 

compensatory damages sought.” (Id. at 7).

Defendant Thomas filed his Answer and Special Report 

denying Plaintiff’s allegations and pleading the defenses 

of, inter alia, immunity, contributory negligence, unclean 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 2 of 18
3

hands, and assumption of the risk. (Doc. 14). Defendant’s 

Special Report states that on March 15, 2014, Defendant was 

assigned to I-Dorm, and around 1:15 a.m., inmate David 

Pogue approached Defendant and stated, “[c]all the code. I 

just hit a dude in the face with a broom.” (Doc. 15-1 at 

2). Inmate Pogue then entered I-Dorm’s TV room and broke a 

broom. (Id.). Defendant immediately radioed for 

Correctional Lieutenant Quentin Curry to report to I-Dorm. 

Around 1:17 a.m., Lieutenant Curry, Sergeant Brazwell and 

Officer Hadley entered I-Dorm. Defendant reported the 

incident to Curry, and Hadley gave inmate Pogue a direct 

order to give Officer Hadley the broom handle, which he 

did. (Id.). Curry questioned Pogue who explained that 

Pogue hit Plaintiff with a stick because Plaintiff woke him 

up and threatened him with a knife. (Id.). Pogue was then 

escorted to the shift office, and all other inmates were 

given a loud verbal command to get on their assigned bed. 

(Id.). All inmates complied, and the officers searched for 

Plaintiff by following a trail of blood drops on the left 

side of I-Dorm. Plaintiff was found on bed 38A holding a 

white cloth to his face. (Id.). 

Plaintiff was escorted to the Health Care Unit for 

treatment. Around 1:35 a.m., Curry took photos of the 

blood droplets on the floor, then entered the Health Care 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 3 of 18
4

Unit to question Plaintiff. (Id.). Plaintiff did not make 

an oral statement about the incident and refused to submit 

a written statement as well. (Id.). At 1:46 a.m., a 

medical assessment of Plaintiff was completed and the nurse 

informed Curry that Dr. Iliff concluded that Plaintiff 

needed to be transported by state vehicle to Atmore 

Community Hospital. (Id.). Plaintiff was taken to the 

hospital and the on-call warden was notified of the events. 

Inmate Pogue was not injured during the events, and after a 

medical assessment, he was released to ADOC for segregation 

placement. (Id. at 3). 

II. SUMMARY JUDGMENT STANDARD

In analyzing the propriety of a motion for summary 

judgment, the Court begins with the following basic 

principles. The Federal Rules of Civil Procedure grant 

this Court authority under Rule 56 to render “judgment as a 

matter of law” to the party who moves for summary judgment. 

FED.R.CIV.P. 56(a). Summary judgment is proper “if the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material 

fact. . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986). The Court must view the evidence produced by “the 

nonmoving party, and all factual inferences arising from 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 4 of 18
5

it, in the light most favorable to” that party. Barfield 

v. Brierton, 883 F.2d 923, 934 (11th Cir. 1989). However, 

Rule 56(e) states that:

If a party fails to properly support an 

assertion of fact or fails to properly 

address another party’s assertion of 

fact as required by Rule 56(c), the 

court may:

(1) give an opportunity to properly 

support or address the fact;

(2) consider the fact undisputed for 

purposes of the motion; 

(3) grant summary judgment if the 

motion and supporting materials—

including the facts considered 

undisputed—show that the movant is 

entitled to it; or

(4) issue any other appropriate order.

FED.R.CIV.P. 56(e). “[T]here is no issue for trial unless 

there is sufficient evidence favoring the nonmoving party 

for a jury to return a verdict for that party. . . . If the 

evidence is merely colorable, . . . or is not significantly 

probative, . . . summary judgment may be granted.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 

(1986) (internal citations omitted). “Summary judgment is 

mandated where a party fails to make a showing sufficient 

to establish the existence of an element essential to that 

party’s case, and on which that party will bear the burden 

of proof at trial.” Custom Mfg. and Eng’g, Inc. v. Midway 

Servs., Inc., 508 F.3d 641, 647 (11th Cir. 2007).

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 5 of 18
6

Also, it is well settled that a conclusion cannot be 

taken as true, and the Court will not accept conclusory 

allegations as facts in consideration of a motion for 

summary judgment. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 

(2009); see also Leigh v. Warner Bros., Inc., 212 F.3d 

1210, 1217 (11th Cir. 2000)(“[t]his court has consistently 

held that conclusory allegations without specific 

supporting facts have no probative value”); Fullman v. 

Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984)(a 

plaintiff’s mere verification of conclusory allegations is 

not sufficient to oppose a motion for summary judgment). 

III. DISCUSSION

As set out above, Plaintiff seeks redress pursuant to 

42 U.S.C. § 1983 for the injury he received on March 15, 

2014, by inmate Pogue who was allegedly able to attack him 

due to Defendant Thomas’ failure to protect Plaintiff from 

such an attack. Though Plaintiff does not specifically 

allege that his claim falls under the Eighth Amendment, the 

Court will treat it as such. Section 1983 provides in 

pertinent part:

Every person who, under color of any 

statute, ordinance, regulation, custom, 

or usage, of any State or Territory or 

the District of Columbia, subjects, or 

causes to be subjected, any citizen of 

the United States or other person 

within the jurisdiction thereof to the 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 6 of 18
7

deprivation of any rights, privileges, 

or immunities secured by the 

Constitution and laws, shall be liable 

to the party injured in an action at 

law, suit in equity, or other proper 

proceeding for redress . . . . 

42 U.S.C. § 1983 (1994). Additionally, 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. 

The Eighth Amendment’s proscription against cruel and 

unusual punishment prohibits prison officials from 

exhibiting deliberate indifference to a substantial risk of 

serious harm to an inmate. Farmer v. Brennan, 511 U.S. 

825, 828 (1994).

In DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

489 U.S. 189 (1989), the Supreme Court summarized a state’s 

constitutional responsibilities with regard to inmates:

[W]hen the State takes a person into its 

custody and holds him there against his 

will, the Constitution imposes upon it a 

corresponding duty to assume some 

responsibility for his safety and 

general well-being . . . . The rationale 

for this principle is simple enough: 

when the State by the affirmative 

exercise of its power so restrains an 

individual’s liberty that it renders him 

unable to care for himself, and at the 

same time fails to provide for his basic 

human needs – e.g., food, clothing, 

shelter, medical care, and reasonable 

safety – it transgresses the substantive 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 7 of 18
8

limits on state action set by the Eighth 

Amendment and the Due Process Clause. 

Id. at 189-200 (citations omitted).

In order to prevail on his Eighth Amendment claims, 

Plaintiff must prove three elements: “(1) a condition of 

confinement that inflicted unnecessary pain or suffering, 

Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citations 

omitted), (2) the defendant’s ‘deliberate indifference’ to 

that condition, Wilson v. Seiter, 501 U.S. 294 (1991) 

(citations omitted), and (3) causation, Williams v. 

Bennett, 689 F.2d 1370 (11th Cir. 1982) (citations 

omitted.).” LaMarca v. Turner, 995 F.2d 1526, 1535 (11th

Cir. 1993). 

In Sims v. Mashburn, 25 F.3d 980, 983 (11th Cir. 

1994), the court described the first two elements as 

follows:

An Eighth Amendment claim is said to 

have two components, an objective 

component, which inquires whether the 

alleged wrongdoing was objectively 

harmful enough to establish a 

constitutional violation, and a 

subjective component, which inquires 

whether the officials acted with a 

sufficiently culpable state of mind.

The objective component of an Eighth Amendment claim 

inquires whether the alleged wrongdoing amounted to the 

infliction of “unnecessary pain or suffering upon the 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 8 of 18
9

prisoner.” LaMarca, 995 F.2d at 1535. This standard 

requires that the alleged deprivation be “objectively, 

‘sufficiently serious.’” Farmer, 511 U.S. at 834 (quoting 

Wilson, 501 U.S. at 298). The objective standard “embodies 

broad and idealistic concepts of dignity, civilized 

standards, humanity, and decency . . ., but must be 

balanced against competing penological goals.” LaMarca, 

995 F.2d at 1535 (quoting Estelle v. Gamble, 429 U.S. 97, 

102 (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 (1992)). 

This component “follows from the principle that ‘only the 

unnecessary and wanton infliction of pain implicates the 

Eighth Amendment.’” Farmer, 511 U.S. at 834 (quoting 

Wilson at 297).

In a prison condition case, the required state of mind 

for a defendant is “deliberate indifference” to an inmate’s 

health or safety. Farmer, 511 U.S. at 834 (citations 

omitted). In defining “deliberate indifference,” the 

Supreme Court in Farmer stated:

We hold . . . that a prison official 

cannot be found liable under the Eighth 

Amendment for denying an inmate humane 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 9 of 18
10

conditions of confinement unless the 

official knows of and disregards an 

excessive risk to inmate health or safety; 

the official must both be aware of facts 

from which the inference could be drawn that 

a substantial risk of serious harm exists, 

and he must also draw the inference. 

Id. at 837.

The Court concluded that the “subjective recklessness” 

standard of criminal law is the test for “deliberate 

indifference” under the Eighth Amendment. Id. at 839-40. 

Moreover, 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. It is not 

enough that a plaintiff proves that the defendant should 

have known of the risk, even though he did not know; actual 

subjective 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). “Whether one puts it in terms of duty or 

deliberate indifference, prison officials who act 

reasonably cannot be found liable under the Cruel and 

Unusual Punishments Clause.” Id. 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 10 of 18
11

Having set forth the general legal principles relevant 

to Plaintiff’s claims, the Court now turns to the 

application of those legal principles to the facts before 

the Court. 

a. Failure to Protect

First, the Court notes that Plaintiff’s allegations 

are pled in a conclusory fashion. As stated above, bare 

bones allegations that are merely colorable and unsupported 

by evidence are insufficient to withstand a summary 

judgment review. Even viewing the evidence in the light 

most favorable to Plaintiff, the Court concludes that 

Plaintiff fails to carry the burden of proof on at least 

one element of his claim on which he would carry the burden 

at trial. Without supporting facts sufficient to bolster 

the statement that Defendant Thomas actually knew inmate 

Pogue would attack Plaintiff, such allegations cannot be 

taken as true, and Defendant’s Motion for Summary Judgment 

should be granted. 

However, should it be found that Plaintiff’s 

allegations are not conclusory, and, out of an abundance of 

caution, the Court will engage in an Eighth Amendment 

analysis.

Plaintiff’s bare bones allegations that Defendant 

Thomas knew Pogue would attack Plaintiff are insufficient 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 11 of 18
12

to state an Eighth Amendment violation of deliberate 

indifference for the following reasons. In order to 

establish his burden on the objective element of an Eighth 

Amendment failure to protect claim, Plaintiff must 

establish that the conditions under which he was 

incarcerated presented “a substantial risk of serious 

harm.” Farmer, 511 U.S. at 834. It is well-settled that 

“an excessive risk of inmate-on-inmate violence at a jail 

creates a substantial risk of serious harm . . . . And 

confinement in a prison where violence and terror reign is 

actionable.” Purcell ex rel. Estate of Morgan v. Toombs 

County, Ga., 400 F.3d 1313, 1320 (11th Cir. 2005). 

However, “occasional, isolated attacks by one prisoner on 

another may not constitute cruel and unusual punishment.” 

Id. Moreover, a “prison custodian is not the guarantor of 

a prisoner’s safety.” Id. at 1321 (citations omitted). 

Thus, “not . . . every injury suffered by one prisoner at 

the hands of another . . . translates into constitutional 

liability for prison officials responsible for the victim’s 

safety.” Farmer, 511 U.S. at 834. In sum, and as 

discussed above, a prison official’s duty under the Eighth 

Amendment is to ensure “reasonable safety.” Id. at 844 

(citations omitted). 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 12 of 18
13

In the present case, Plaintiff has not alleged that he 

was exposed to a substantial risk of serious harm, such as 

the constant threat of inmate-on-inmate violence, see 

Purcell, 400 F.3d at 1320, or to any other condition that 

presented a substantial risk of serious harm. Farmer, 511 

U.S. at 834; see also Hale v. Tallapoosa Cnty., 50 F.3d 

1579, 1583 (11th Cir. 1995)(“Hale established that, in the 

two years prior to the attack, that inmate-on-inmate 

violence occurred regularly). Failing to prove this 

essential element to his claim upon which he would carry 

the burden of proof at trial, the Court finds that 

Defendant Thomas’ Motion for Summary Judgment is due to be 

granted; however, the Court will nonetheless address the 

remaining elements of deliberate indifference Plaintiff 

must prove to succeed on his Complaint.

Viewing the evidence in the light most favorable to 

Plaintiff, the Court finds that he is unable to prove the 

subjective element of his claim: that Defendant Thomas 

“actually knew” of a substantial risk of harm to him and 

disregarded that knowledge allowing him to be attacked by 

an inmate who warned he would attack Plaintiff. Under the 

subjective component of the Eighth Amendment analysis, 

deliberate indifference requires that the prison official 

be aware of both the “facts from which the inference could 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 13 of 18
14

be drawn that a substantial risk of serious harm exists, 

and he must also draw the inference.” Farmer, 511 U.S. at 

387. 

A prison official cannot avoid liability “by showing 

that . . . he did not know that the complainant was 

especially likely to be assaulted by the specific prisoner 

who eventually committed the assault. . . .” Id. at 843. 

However, Eighth Amendment liability may be avoided by 

showing: “(1) ‘that they did not know of the underlying 

facts indicating a sufficiently substantial danger and that 

they were therefore unaware of a danger;’ (2) ‘that they 

knew the underlying facts but believed (albeit unsoundly) 

that the risk to which the facts gave rise was 

insubstantial or nonexistent;’ or (3) that ‘they responded 

reasonably to the risk, even if the harm ultimately was not 

averted.’” Daniels v. Baldwin Cnty. Corrs. Ctr., Rodriguez 

v. Sec’y Dept. of Corrs., 508 F.3d 611, 617-18 (11th Cir. 

2007)(citation omitted). “Whether a prison official had 

the requisite knowledge of a substantial risk is a question 

of fact subject to demonstration in the usual ways, 

including inference from circumstantial evidence.” Hale, 

50 F.3d at 1583 (quoting Farmer, 511 U.S. at 842). “Thus, 

‘a factfinder may conclude that a prison official knew of a 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 14 of 18
15

substantial risk from the very fact that the risk was 

obvious.’” Id. 

Plaintiff’s allegations fail to raise a question of 

fact as to the subjective component. Plaintiff’s Complaint 

merely states that “[Pogue] had warned Officer Thomas that 

he was going to attack me, and this officer did nothing to 

protect me from this assault by the inmate. . . . All the 

officer had to do was protect me from the attack and warn 

of the threat of attack from the inmate, but did neither.” 

(Doc. 1 at 4-5). Even a liberal construction of these 

allegations fails to demonstrate that Defendant Thomas was 

actually put on notice of a threat of actual harm, or was 

able to draw the inference that an attack might occur. 

Furthermore, Plaintiff relies on his own allegation that 

inmate Pogue gave Defendant the warning of the impending 

attack, rather than Plaintiff informing Defendant himself. 

If Plaintiff knew Pogue was an enemy, Plaintiff could have 

personally warned Defendant that he feared an attack from 

Pogue. Plaintiff also could have gone through the 

classification process of making Pogue a member of 

Plaintiff’s “validated enemies” list. The record, though, 

is devoid of any existence of such a list. 

Plaintiff also fails to offer any facts underlying the 

riff between him and Pogue. As a result, the Court finds 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 15 of 18
16

that Plaintiff’s non-disclosure of this is particularly 

damaging since knowledge of the identification of such 

enemies is required for guards to provide inmates with 

“reasonable safety.” Vague allegations that an attack 

might occur by an inmate, or upon an inmate, are not 

sufficient to impute knowledge to an officer supervising an 

entire dormitory. “Threats between inmates are common and 

do not, under all circumstances, serve to impute actual 

knowledge of a substantial risk of harm.” Daniels, at *8 

(citing Prater v. Dahm, 89 F.3d 538, 541 (8th Cir. 1996). 

In considering the evidence in its totality, 

Rodriguez, 508 F.3d 621, n. 15, Plaintiff has not 

enunciated, and the record does not reflect, any specific 

facts, such as previous altercations between Plaintiff and 

Pogue, or a history of bad blood between the two, which 

would have caused Defendant to be concerned about an 

assault on Plaintiff, had he actually been made aware of 

the situation. Daniels, at *9 (citing McBride v. Rivers, 

170 Fed. App’x 648, 652 (11th Cir. 2006)(“prisoner’s 

complaint that ‘me and that dude had problems. I’m in fear 

for my life . . .’ did not amount to subjective knowledge 

of serious risk of harm existed)). Moreover, Plaintiff has 

not alleged any facts which even suggest the source of 

conflict between him and Pogue. Id. The record is devoid 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 16 of 18
17

of any evidence sufficient to indicate that Pogue made 

threats against Plaintiff, or that these threats were made 

known to Defendant Thomas. 

Accordingly, the Court concludes that Plaintiff fails 

to prove that Defendant Thomas actually knew about the 

potential attack and failed to provide him with reasonable 

safety, and that Plaintiff fails to present evidence that 

he was being confined to a prison “where violence and 

terror reign[ed]” and where inmate-on-inmate violence 

abounded. Purcell, 400 F.3d at 1320.

IV. Conclusion

In conclusion, having found Plaintiff’s evidence 

insufficient for a jury to reasonably find that Defendant 

Thomas knew of a substantial risk of harm to Plaintiff, 

that Defendant was deliberately indifferent to that risk, 

and that Defendant’s conduct caused the deprivation of 

Plaintiff’s constitutional rights, it is recommended that 

Defendant’s summary judgment motion be granted and this 

action 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 

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 17 of 18
18

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 that merely 

incorporates by reference or refers to the briefing before 

the Magistrate Judge is not specific. 

DONE this 1st day of October, 2015.

 s/ BERT W. MILLING, JR 

UNITED STATES MAGISTRATE JUDGE

Case 1:15-cv-00113-KD-M Document 19 Filed 10/01/15 Page 18 of 18