IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ZACHERY WILSON, )

AIS #00198832 )

Plaintiff, ) 

)

v. ) CIVIL ACTION NO. 15-00160-KD-N

 )

TAWANNA BYRD, GARY HETZEL,)

GWENDOLYN GIVENS, and )

WALTER MYERS, )

 Defendants. )

REPORT AND RECOMMENDATION

Plaintiff Zachery Wilson, 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)(B), Federal Rule of Civil Procedure 72(b)(1), and 

S.D. Ala. GenLR 72(a)(2)(R), and is now before the Court Defendants’ motion for

summary judgment (docs. 25, 26). For the reasons stated below, it is recommended 

that summary judgment be granted in favor of Defendants Tawanna Byrd,1 Gary 

Hetzel, Walter Myers, and Gwendolyn Givens, and the claims presented by Plaintiff 

Zachery Wilson be dismissed with prejudice. 

I. Summary of Allegations.

Plaintiff Wilson is currently incarcerated at Holman Correctional Facility 

(“Holman”), where he is serving eight life sentences for convictions of attempted 

 1 The complaint names Tawanna Byrd as the Chief Steward at Holman and a 

defendant in this action. (Doc. 1). Defendants’ special report identifies Tawanna Thomas 

as Chief Steward at Holman. (Doc. 26 at 1). Given that Tawanna Byrd has been used in 

the caption of this case and has yet to be changed by the clerk’s office, the court will 

continue to use the name “Tawanna Byrd” in its analysis but notes that the correct 

identification of Defendant Byrd is in actuality Tawanna Thomas. 

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murder, assault, auto theft, kidnapping, attempted kidnapping, rape, sodomy, and 

burglary. (Doc. 1 at 5; Doc. 26-2 at 1; Doc. 26-2 at 3). In his complaint, Wilson

identifies numerous unsanitary conditions in the kitchen facility at Holman, which 

he claims are “inhumane” and constitute cruel and unusual punishment in violation 

of the Eighth Amendment. (Doc. 1 at 4). Specifically, he claims the food trays, 

cups, and utensils provided to the inmates are not properly cleaned due to 

maintenance issues with the dishwasher. (Id. at 9). Additionally, Wilson claims 

the meals prepared at Homan are not “wholesome balanced meals” and are 

prepared and served by individuals without hairnets or mouth protection. (Id. at 4-

5, 9). And furthermore, Wilson asserts there are general sanitation problems in the 

kitchen such as bacteria (due to collapsed draining), mold, mildew and fungus on 

the ceiling, and infestation of roaches, rats, and vermin. (Id. at 9-10, 12). He 

contends these kitchen conditions are commonplace and caused him to suffer food 

poisoning on December 26, 2013, when he experienced symptoms of nausea and 

vomiting that persisted through December 31, 2013, and led to his hospitalization

in the prison infirmary. (Id. at 4). In the infirmary he was treated with IV fluids, 

received a restricted diet, and was observed until he tolerated food, at which time 

he was released on January 2, 2014, without any lingering symptoms or recurrence 

of symptoms.2 

The complaint alleges each named defendant was aware of these kitchen 

conditions, and failed to act or eradicate such conditions causing him to suffer food 

 2 Plaintiff Wilson states he was hospitalized on December 31, 2013 through January 

4, 2014; however, the medical records presented by the defendants show that Wilson was 

actually released on January 2, 2014. (See Doc. 26-6 at 8). 

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poisoning on December 26 through 31, 2013. (Id. at 5-6, 13). In attempt to prove 

the defendants knew of the unsanitary kitchen conditions, Wilson provided a copy of 

a complaint letter, addressed to “To whom it may concern,” dated February 25, 

2014, signed by 506 general population inmates at Holman. (Doc. 1 at 15-21). The 

letter references unsanitary living conditions at Holman, including, inter alia:

There are live animals, living in the dining hall, such animals are 

birds, roaches & rats! Birds fly over our heads, while we are eating, 

dropping waste . . .on our person, as well as our food! Roaches crawl 

around at will, on tables, on counters, on walls, on the trays, cups & 

eating utensils! (The rats are the same.) “Rat feces” are often found in 

the food! This to is prohibited by the Eighth Amendment! 

. . .

The animal situation has been a problem for some time, the birds have 

been flying for at least 4 months now! We have been complaining to 

the administration for way to long. They have flat our refused to take 

action!

The preparation process of our food is very poor! We eat cold food on a 

regular basis! Most foods are prepared way to early. For example: at 

breakfast, they cook French fries that we will eat at lunch, the fries are 

then kept in an oven as an attempt to keep them warm! What 

happens in this process is the oven dehydrates the food, thus causing 

the food to be hard like jerky! And it is still cold when served & there 

are 3 deep fryers.

. . . 

The trays, utensil & cups are not being properly sanitized, which has 

lead to people being infected with food poison & or hepatitis A-B, etc. . . 

(Doc. 1 at 15-16).3 

Plaintiff Wilson filed this action on March 17, 2015, against Defendants Chief 

Steward Byrd, Wardens Myers and Givens, and former Warden Hetzel, in their 

official and individual capacities, seeking relief in the amount of $20,000 

compensatory damages, $50,000 punitive damages, and $10,000 emotional damages 

 3 In addition to the unsanitary condition of the kitchen, the letter also complained of 

the lack of hot water for showers, the unprofessional attitudes of the Holman staff 

members, and the amount of “copays” for medical treatment. (Doc. 1 at 15-16).

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from each defendant. (Doc. 1 at 7). Defendants answered the complaint and filed a 

special report which were converted into a motion for summary judgment. (Docs. 

25, 26). Plaintiff Wilson has responded to the motion for summary judgment (doc. 

31), and after a thorough review of the record, the Court finds the motion for 

summary judgment is ripe for consideration. 

II. Legal Standards. 

a. Summary Judgment.

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 

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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 

(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.

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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 nonmoving 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 nonmoving 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 

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could be made based upon the materials before it on summary judgment." 

Resolution Trust Corp., supra, 43 F.3d at 599.

b. Official Capacity Claims.

To the extent Wilson is proceeding against the defendants in their official 

capacities, those claims fail. (Doc. 1 at 1). The Eleventh Amendment, which 

specifically prohibits suits against "the United States by Citizens of another State, 

or by Citizens or Subjects of any Foreign State," has long been held to apply 

"equally to suits against a state brought in federal court by citizens of that state."

Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998). "The state need 

not be formally named as a defendant for the amendment to apply; state officials 

sued in their official capacity are also protected by the amendment." Id. (citing 

Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S. Ct. 3099, 87 L. Ed. 2d 114 

(1985)). "Section 1983 provides a federal forum to remedy many deprivations of 

civil liberties, but it does not provide a federal forum for litigants who seek a 

remedy against a State for alleged deprivations of civil liberties." Will v. Mich. Dep't 

of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).

Plaintiff alleges that Defendants Wardens Myers, Givens, former Warden 

Hetzel, and Chief Steward Byrd, all of whom were employed by the State of 

Alabama Department of Corrections as officers at Holman Correctional Facility at 

the time of the incident alleged in the complaint, violated his constitutional rights.

It is well settled in this circuit that suits seeking monetary relief against state 

correctional officers in their official capacities are generally barred by the Eleventh 

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Amendment. See Taylor v. Adams, 221 F.3d 1254, 1256 (11th Cir. 2000); Lancaster 

v. Monroe Cnty., 116 F.3d 1419, 1429 (11th Cir. 1997); Dean v. Barber, 951 F.2d 

1210, 1215 n.5 (11th Cir.1992); Free, 887 F.2d at 1557.

Official capacity lawsuits are "in all respects other than name, . . . 

treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 

159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985). "A state official may 

not be sued in his official capacity unless the state has waived its 

Eleventh Amendment immunity, see Pennhurst State Sch. & Hosp. v. 

Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), or 

Congress has abrogated the state's immunity, , 517 U.S. 44, 59, 116 S. 

Ct. 1114, 134 L. Ed. 2d 252 (1996). Alabama has not waived its 

Eleventh Amendment immunity, see Carr v. City of Florence, 916 F.2d 

1521, 1525 (11th Cir. 1990) (citations omitted), and Congress has not 

abrogated Alabama's immunity. Therefore, Alabama state officials are 

immune from claims brought against them in their official capacities." 

Lancaster v. Monroe Cnty., 116 F.3d 1419, 1429 (11th Cir. 1997); 

Powell v. Barrett, 496 F.3d 1288, 1304, 1308 (11th Cir. 2007) (state 

defendants sued in their official capacity for monetary damages are 

immune from suit under the Eleventh Amendment).

Johnson v. Folks, 2014 U.S. Dist. LEXIS 16027, 7-9 (S.D. Ala. Jan. 17, 2014) 

(quoting Johnson v. Keaton, No. 2:05-CV-1238-WKW, 2008 U.S. Dist. LEXIS 75356, 

2008 WL 4493242, at *6 (M.D. Ala. Sept. 29, 2008)).

It is clear from the pleadings that the defendants were state officials at the 

time the action arose and are entitled to sovereign immunity under the Eleventh 

Amendment for claims seeking monetary damages from them in their official 

capacities. Therefore, all defendants are entitled to absolute immunity from 

Plaintiff Wilson's claims asserted against them in their official capacities.

c. Individual Capacity Claims.

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The defendants have denied that they violated any of Plaintiff's 

constitutional rights and have asserted the defense of qualified immunity. (See Doc. 

25). Qualified immunity protects government actors from liability, when 

performing discretionary functions, to the extent that "their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable person 

would have known." See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 

73 L. Ed. 2d 396 (1982). In Lassiter v. Alabama A&M University, 28 F.3d 1146 

(11th Cir. 1994), the Eleventh Circuit restated the principles governing qualified 

immunity cases:

That qualified immunity protects government actors is the usual rule; 

only in exceptional cases will government actors have no shield against 

claims made against them in their individual capacities. . . . Unless a 

government agent's act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was 

knowingly violating the law would have done such a thing, the 

government actor has immunity from suit.

28 F.3d at 1149 (internal footnote and citations omitted) (bold added).

The defendant has the initial burden of proving that he acted within the 

scope of his discretionary authority. Jordan v. Doe, 38 F.3d 1559, 1565 (11th Cir. 

1994). To determine whether a defendant acted within the scope of his 

discretionary authority, the court must consider whether the actions of which the 

plaintiff complains "(1) 'were undertaken pursuant to the performance of his duties,' 

and (2) were 'within the scope of his authority.'" Id. at 1566 (quoting Rich v. Dollar, 

841 F.2d 1558, 1564 (11th Cir. 1988)). Thus, the term "discretionary authority" in 

this context includes actions that not only entail an element of discretion but also 

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those actions that are more ministerial in nature. See id. Accordingly, discretionary 

authority will generally be found if the defendant is working within the confines of 

his or her job.

In this case, Plaintiff does not contest that Defendants were acting within the 

scope of their discretionary authority. Each of the claims asserted against 

Defendants in this case is clearly related to the Defendants' responsibilities with 

regard to their jobs as Holman supervisors. Their alleged actions, or failure to act, 

in this case were, accordingly, within the scope of their discretionary authority. 

Thus, the Court will analyze whether or not Plaintiff has carried his burden of 

alleging a constitutional violation. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 

S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Because Plaintiff is a prisoner, the Eighth 

Amendment's proscription against "cruel and unusual punishments" governs his 

claims. See Hale v. Tallapoosa Cnty., 50 F.3d 1579, n.4 (11th Cir. 1995) (explaining 

if plaintiff was a pretrial detainee his claim would be govern by the Fourteenth 

Amendment versus the Eighth Amendment). 

III. Discussion.

1. Conditions of Confinement Claim. 

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. Prison conditions constitute cruel and unusual punishment 

only when they result in the "unquestioned and serious deprivation of basic human 

needs." Rhodes, 452 U.S. at 347.

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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). In this action, Wilson claims not only that he 

suffered an incident of food poisoning on December 26, 2013, but: 

that each defendant herein were conscious of the fateful chance the 

plaintiff could experience and endure Infectious Maladies, Bacteria’s, 

and Septicemia, therefrom the inhuman, inadequate, and grossly 

disproportionate food and conditions within the deplorable/appalling, 

dilapidated and sordid kitchen-cafeteria, and failed to take reasonable 

steps to abate and/or ameliorate the conditions, food preparation, and 

services thereof, challenged herein this lawsuit, and therefore each 

defendant “deliberate indifference” to the known “substantial risk” of 

serious harm to the plaintiff’s safety, health, welfare, and well-beings, 

resulted in the plaintiff experiencing, and enduring a severe crisis of 

hypochondria....Each defendant conspicuously had objective and 

subjective knowledge of the birds, rates, roaches and other vermin 

within the kitchen-cafeteria... 

(Doc. 31 at 5) (capitalization and punctuation omissions). 

To demonstrate a violation of an Eighth Amendment right in a section 1983 

prison conditions action, a plaintiff must prove three elements: (1) "a condition of 

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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.

a. Condition of Confinement and Causation. 

As to the first and third element of establishing his claim, Plaintiff fails to 

show that a condition of his confinement, an unsanitary kitchen, was the proximate 

cause of harm suffered, nausea and vomiting. While Plaintiff Wilson contends he 

suffered food poisoning due to the kitchen conditions, this is a mere conclusory 

statement lacking evidentiary support, Fullman v. Graddick, 739 F.2d 553, 556-57 

(11th Cir. 1984) ("In civil rights actions . . . a complaint will be dismissed as 

insufficient where the allegations it contains are vague and conclusory."), as Wilson 

fails to identify what he ate or link his nausea and vomiting symptoms to any food 

obtained from the kitchen or a kitchen condition. He further fails to allege any 

other inmate or staff member becoming ill after eating the same food(s) he ate, 

which would surely occur in a case of food poisoning from a communal facility like a 

prison. (See Doc. 26-1 at 2 where Defendant Byrd avers she has no knowledge of 

any other inmate or staff member getting sick at the alleged time.). Additionally, 

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the medical records support that Wilson was in need of medical care due to nausea, 

but the records belie his claim of “food poisoning.” 

A comparison of the medical records to Plaintiff’s allegations creates

contradictory theories or causes for his nausea and vomiting. The submitted 

medical records show that on December 13, 2013, Wilson was examined during sick 

call and complained he felt dizzy and nauseous, like he was going to pass out. (Id. 

at 31). On December 26, 2013, the day Wilson contends he suffered food poisoning, 

he was examined by the nursing staff and complained, “My stomach is very 

irritated and I can’t hold any of my food down without throwing-up! It’s been 

bothering me off and on since I inhaled the burning smoke in seg!”4 (Id. at 

24) (emphasis added). At this time he was prescribed Phenergan for his nausea 

symptoms. (Id.). Wilson was seen again on December 28, 29, and 30, 2013, with 

complaints of abdominal pain and vomiting after eating, and Phenegran and 

Maalox were prescribed to treat his symptoms.5 (Id. at 26, 27, 29). On December 

31, 2013, Wilson was admitted to the infirmary due to his complaints of nausea and 

vomiting, where he received Prilosec for his stomach discomfort and Meclizine and 

intravenous Phenergan for his nausea. (Id. at 41). The following day, January 1, 

2014, Wilson denied any symptoms of nausea or vomiting, stated he did not want 

 4 The record details that on December 2, 2013, Wilson received a Body Chart after an 

undisclosed incident. (Doc. 26-6 at 36). The body chart notes his breathing to be normal, 

non-labored and his lungs were clear. (Id.). During the examination, he stated to the nurse 

that “they are setting fire after fire out there.” (Id.). Arguably, on December 26, 2013, 

when Wilson referred to smoke inhalation, he may have been referencing this December 2, 

2013 incident.

5 The nurse commented on December 29, 2013, that when Wilson was brought to the 

health care unit, he initially “engaged in lively conversation.” (Doc. 26-6 at 27). 

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any more nausea medication, and requested more food. (Id. at 41-44). Wilson 

continued to improve throughout the day and on January 2, 2014, Wilson stated he 

was “ready to go back down the hall,” and he was released from the infirmary. (Id. 

at 8, 46). Thus, based on the record, the undersigned finds that beyond the 

unfortunate symptom of nausea/vomiting, there are no direct links to the conditions 

of confinement and to Wilson experiencing a bout of food poisoning, much less any 

evidence directly connecting the conditions of the kitchen to Plaintiff’s nausea. In 

fact, the record reveals in December of 2013, Wilson attributed his nausea to smoke 

inhalation. (Doc. 26-6 at 24). The undersigned finds no indication or evidence of 

Wilson ever complaining to the medical staff that he got sick on December 26, 2013, 

after eating food prepared in the condition or due to the conditions of the kitchen. 

Furthermore, the record is void of a medical professional diagnosing Wilson with 

food poisoning or of information of anyone else being ill due to the food on December 

26, 2013. It is not until the filing of this complaint on March 17, 2015 that Plaintiff 

asserts the conditions of the kitchen caused his sickness on December 26, 2013. 

Taking Plaintiff’s allegation as true, that he became ill from tainted food 

served at Holman on December 26, 2013, does not, alone, amount to a constitutional 

deprivation. See Islam v. Jackson, 782 F. Supp. 1111, 1114 (E.D. Va. 1992) (holding 

an isolated two week period of food contamination, including food infested with 

maggots, not sufficiently serious). Courts have consistently admitted that the lack 

of sanitation in certain prison kitchen and food areas, while “appalling” and a risk 

factor for “contracting any number of food-borne diseases,” does not in and of itself

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amount to an Eighth Amendment violation. See Grubbs v. Bradley, 552 F.Supp. 

1052, 1128 (D.C. Tenn. 1982) (The presence of vermin alone did not amount to a 

constitutional violation, but the court found multiple unsanitary conditions.). 

Additionally, in suits such as this one, single incidents of food poisoning are not 

serious enough to constitute a violation of the Eighth Amendment. See Watkins v. 

Trinity Serv. Group Inc., 2006 U.S. Dist. LEXIS 85592 (M.D. Fla. Nov. 27, 2006) 

(isolated food poison and maggot incident were not sufficiently serious deprivations 

to violate prisoner’s constitutional right, as physical injuries of diarrhea vomiting, 

cramps, and nausea were considered de minimis); George v. King, 837 F.2d 705, 707 

(5th Cir. 1988) (holding that a single incident of prisoner food poisoning is not a 

constitutional violation); Bennett v. Misner, 2004 U.S. Dist. LEXIS 19568, 2004 WL 

2091473 *20 (D. Or., Sept.17, 2004) ("Neither isolated instances of food poisoning, 

temporary lapses in sanitary food service, nor service of meals contaminated with 

maggots are sufficiently serious to constitute an Eighth Amendment violation."). 

[I]f prisoners regularly and frequently suffer from food poisoning with 

truly serious medical complications as a result of particular, known 

unsanitary practices which are customarily followed by the prison food 

service organization, and the authorities without arguable justification 

refuse to attempt remedial measures, the requisite deliberate 

indifference might well be manifested or inferred. But such deliberate 

indifference is certainly not even suggested by a single incident . . . 

George v. King, 837 F.2d 705, 707 (5th Cir. 1988). 

Furthermore, even if Wilson had prevailed in showing that the kitchen 

conditions caused his harm, he has failed to prove deliberate indifference on the 

part of Defendants. 

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b. Deliberate Indifference. 

Wilson makes the blanket statement that all Defendants knew of the 

atrocious conditions in the kitchen and knew that he, as well as other inmates, 

could be harmed by the conditions, but failed to act resulting in his contracting food 

poison. He submits three sources of evidence in support of showing the subjective 

knowledge of the defendants in this action: 1) General Population Inmate letter 

regarding unsanitary living conditions, 2) the case citation of Pugh v. Locke, 406 

F.Supp. 318 (M.D. Ala. 1976), and 3) the verbal responses given by each defendant 

when Wilson personally approached him or her and inquired about the bird in the 

kitchen. Defendants, however, offer affidavits and evidentiary support showing 

they did act to eradicate known unsanitary conditions in the kitchen, and Wilson 

does not put forth any evidence disputing or contradicting the evidence put forth by 

Defendants.6 

 6 Plaintiff challenges Defendants’ motion for summary judgment (or their evidence) in 

his response that “he totally disagree[s]” with Defendant Byrd’s averment that cases of food 

poisoning typically occur in large numbers and are evaluated by testing by the Health 

Department.” (Doc. 31 at 10). This argumentative response is totally unsupported by 

Wilson and is simply a reiteration of his claim that he contracted a case of “food poison” on 

December 26, 2013. 

Additionally, Wilson disputes Defendants’ account of an incident with a single bird 

in the cafeteria and argues there were multiple birds that flew in the kitchen area for 

weeks. (Doc. 31 at 12). As to this contention, the court takes judicial notice of case number 

14-cv-0114-KD-B, filed by Wilson that contains overlapping facts concerning the conditions 

at Holman, in particular “the bird.” See Young v. City of Augusta, Ga., 59 F.3d 1160, 1166 

n.11 (11th Cir. 1995) (At its discretion, the Court may take judicial notice of documents 

filed in other judicial proceedings, because they are public documents.). In this unrelated

complaint, Wilson references supervisors knowing “about the bird in the kitchen;” that 

“[t]hey would say that bird can’t do no harm. And they just let the bird continue to fly over 

our food and drop turds from the sky on us like H-bombs.” (S.D. Ala. Case No: 14-cv-0114-

KD-B, Doc. 1 at 14-15)(emphasis added). Notably, Wilson refers to only a single bird in this 

complaint.

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The General Population letter, filed by Wilson, fails to support his 

constitutional claim because it is dated February 25, 2014, approximately two 

months after he suffered the symptoms of nausea and vomiting. (See Doc. 1 at 15; 

Doc. 31 at 5-7). Additionally, the letter is not addressed to any specific person, 

much less a named defendant.7 Thus, the letter fails to demonstrate that any 

named Defendant knew of the kitchen conditions on December 26, 2013 and failed 

to act, thereby, causing him to suffer food poisoning.8

Wilson maintains the conditions of his confinement on December 26 through 

31, 2013 were “’substantially similar’ to the extreme conditions described within” 

Pugh v. Locke, 406 F.Supp. 318 (M.D. Ala. 1976), aff’d as modified by, Newman v. 

Alabama, 559 F.2d 283 (5th Cir. 1977), rev’d in part on other grounds, Alabama v. 

Pugh, 438 U.S. 781 (1978), and argues that pursuant to Pugh the conditions at 

Holman violate the Eighth Amendment. (Doc. 31 at 1-4). Pugh consisted of 

consolidated class actions of plaintiff prisoners seeking declaratory and injunctive 

 

Despite Wilson’s arguably refutable objection, the number of birds is not a material 

issue in the determination of this suit, as Wilson fails to carry his burden of establishing 

deliberate indifference. 

7 Plaintiff Wilson does allege that he “submitted duplicates of [the letter] to the 

defendants herein, which was to ‘No Avail.’” (Doc. 31 at 9). Taking as true Wilson’s 

allegation that each defendant received a copy of the letter, no one could have received it 

before Plaintiff was sickened in December of 2013, as it wasn’t written until February 25, 

2014. 

8 Wilson’s response to the motion for summary judgment also references Defendants’ 

knowledge of the conditions of confinement due to the “Peaceful General Population 

Shutdown” which occurred on January 1, 2014. (Doc. 31 at 7). This, however, is similar to 

the written letter in that the shutdown does not prove subjective knowledge on the part of 

the defendants as it occurred subsequent to Wilson’s sickness and hospitalization. 

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relief for conditions of confinement that amounted to constitutional violations.9 In 

comparing his case to Pugh, Plaintiff Wilson identifies numerous violent acts, 

including deaths, which have occurred at Holman and lists general deficiencies, 

such as overcrowding, noise levels, recreation space, vermin and insects, medical 

facilities and treatment, visitation, and educational and rehabilitative 

programming, as evidence that on December 26 through 31, 2013, he experienced 

the same or similar conditions at Holman that the court found to be 

unconstitutional in Pugh. (Doc. 31 at 1-4). Wilson’s reliance on Pugh, however, is 

flawed. 

First, Wilson has drafted his §1983 action to challenge only the kitchen 

conditions at Holman; he cannot reframe or redraft his complaint in a response to 

summary judgment. Even if the court were to allow his expanded argument, Wilson 

still fails to link his nausea and vomiting to any of the complained of prison 

conditions. Second, on December 28, 1988, in Newman v. Alabama, Civil Action No. 

3501-N, 1988 U.S. Dist. LEXIS 18633 (M.D. Ala. 1988), Judge Varner determined 

the state prison system had changed since Pugh and that all future lawsuits must 

proceed separately for violations of the Constitution and not based on violations of 

the injunctions placed by Pugh. Therefore, Wilson cannot rely merely on the claims 

and injunction ordered by Pugh but instead must meet his burden of pleading an 

 9 The facts of Pugh established excessive overcrowding in the prisons, a lack of guards 

to reasonably protect the inmates from each other, lack of sanitation throughout the 

prisons, restricted visitation and rehabilitation programs, and lack of medical or mental 

health treatment. Id. The court determined the overcrowding to be primarily responsible 

for or the exacerbating source of all other problems at the prisons. Id. at 328-30.

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Eighth Amendment violation based on establishing Defendants acted with 

deliberate indifference, and that burden he fails to carry. 

Lastly, Wilson claims Defendants did nothing to abate or improve the 

unsanitary conditions of the kitchen, thereby causing his nausea and vomiting on 

December 26, 2013. In attempt to prove deliberate indifference, Wilson claims he 

personally asked each defendant what he or she was going to do about the bird 

flying in the kitchen area, and that each defendant responded in the following way:

Defendant Byrd stated, “you are a ‘inmate,’ you don’t tell me how to do my job” (doc. 

1 at 10); Defendant Hetzel stated, “ Yall fix it, yall fix everything else, get your 

‘laundry bag’, and ‘catch’ the ‘birds’” (id. at 10-11); Defendant Givens stated, “So 

what, aint no birds flying inside my office” (id. at 11); Defendant Myers stated, 

Birds, Oh yall don’t like the birds.” (Id.). While these verbal responses are flippant 

at best, they do not indicate a failure to act for the purpose or with the knowledge of 

Plaintiff contracting food poison. In fact, Defendants all acknowledge that a bird 

did enter the kitchen facility through a vent and flew into the dry storage room. 

(Doc. 26-1 at 1; Doc. 26-2 at 2; Doc. 26-3 at 1; Doc. 26-4 at 1). Defendant Givens 

avers that she (and others) attempted to remove the bird unsuccessfully (doc. 26-3 

at 1-2), and all Defendants aver that an inmate was ultimately able to capture the 

bird and remove it from the area. (Doc. 26-1 at 1; Doc. 26-2 at 2; Doc. 26-3 at 1-2; 

Doc. 26-4 at 2). Thus, the record shows that through no fault of Defendants, the 

bird entered the facility, and Defendants attest, and Plaintiff does not deny, that 

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they attempted to remedy the situation, albeit not in the manner Wilson desired by 

contacting an exterminator. 

Furthermore, the record before the court reveals several measures 

Defendants have taken to ensure the health and safety of the inmates and to 

comply with health standards in keeping a sanitary kitchen environment for 

Holman. The record shows that Holman has a pest control contract. (Doc. 26-2 at 

2). The prison also complies with routine inspections by the Alabama Department 

of Public Health, the Alabama Department of Corrections Environmental 

Supervisor, and the Alabama Department of Corrections Institutional Coordinator, 

as well as the facility’s wardens, captains, and kitchen stewards. (Doc. 26-2 at 1; 

Doc. 26-3 at 2; Doc. 26-4 at 2). Dishwasher temperatures are checked and recorded 

three (3) times daily by the Hazard Analysis Critical Control Point Program to 

ensure all eating utensils, trays, and cups are properly sanitized. (Id. at 2). 

Covered food warmer trays are used to preserve food at safe temperatures until the 

food can be served, and the temperature of the foods are checked every two hours to 

prevent any food borne illnesses. (Id.; Doc. 26-1 at 2). Additionally, the facility is 

cleaned on a regular basis by the inmates. (Doc. 26-2 at 2).

Plaintiff Wilson has failed to go beyond his pleadings and show or even allege 

facts showing there is a genuine issue for trial; therefore, Wilson has failed to carry 

his burden of overcoming summery judgment. 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 

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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.’”). Therefore, the undersigned 

recommends summary judgment be granted in favor of Defendants. 

2. Supervisory Liability Claim. 

As to Wilson’s claim against Defendants that they are responsible for his 

illness due to the fact that they are supervisory officers and are responsible for the 

conditions present at Holman, such a claim is rooted in the theory of respondeat 

superior and is not actionable. In order to state a claim upon which relief can be 

granted in a § 1983 action, a 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." Frankum v. Chapman, 

2009 U.S. Dist. LEXIS 35267, 2009 WL 1118875, *3 (S.D. Ala. 2009) (citations 

omitted). Liability for an alleged constitutional violation cannot be established on 

the basis of a theory of respondeat superior. See Edwards v. Ala. Dep't of Corrs., 81 

F. Supp. 2d 1242, 1255 (M.D. Ala. 2000) ("A theory of respondeat superior is not 

sufficient to support [a] § 1983 claim. . . .").

"It is well established in this Circuit that supervisory officials are not 

liable under § 1983 for the unconstitutional acts of their subordinates 

on the basis of respondeat superior or vicarious liability." Hartley v. 

Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (internal quotation 

marks and citation omitted); Gonzalez, 325 F.3d at 1234, 2003 WL 

1481583, at *4 (concluding supervisory officials are not liable on the 

basis of respondeat superior or vicarious liability). Instead, supervisory 

liability under § 1983 occurs either when the supervisor personally 

participates in the alleged unconstitutional conduct or when there is a 

causal connection between the actions of a supervising official and the 

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alleged constitutional deprivation. Gonzalez, 325 F.3d at 1235, 2003 

WL 1481583, at *5; Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 

1990). 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." 

Gonzalez, 325 F.3d at 1234, 2003 WL 1481583, at *5 (quoting Braddy 

v. Fla. Dept. of Labor & Emp’t, 133 F.3d 797, 802 (11th Cir.1998)); 

Brown, 906 F.2d at 671. 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 or knew that the subordinates would act unlawfully and 

failed to stop them from doing so." Gonzalez, 325 F.3d at , 2003 WL 

1481583, at *5 (quoting Rivas v. Freeman, 940 F.2d 1491, 1495 (11th 

Cir. 1991)); Hartley, 193 F.3d at 1263; see also Post v. City of Ft. 

Lauderdale, 7 F.3d 1552, 1560-61 (11th Cir. 1993). "The standard by 

which a supervisor is held liable in [his] individual capacity for the 

actions of a subordinate is extremely rigorous." Gonzalez, 325 F.3d at 

1234, 2003 WL 1481583, at *4 (internal quotation marks and citation 

omitted).

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

supervisory liability is based on a supervisor's custom or policy, a plaintiff must 

show that the custom or policy was "the 'moving force [behind] the constitutional 

violation.'" Pinkney v. Davis, 952 F. Supp. 1561, 1569 (M.D. Ala. 1997) (citations 

omitted). "[I]t is clear that not only must there be some degree of 'fault' on the part 

of [defendant] 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).

Wilson alleges Defendants, as administrators at Holman, knew (and have 

known) of the unsanitary conditions in the prison’s kitchen. (Doc. 1 at 12). He 

claims there are no hairnets or mouth protection used while food is being prepared, 

that there are bird droppings on the food, that the food storage area is infested with 

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rats, that the dishwasher is not properly maintained to ensure the utensils are 

cleaned, that the ceiling contains mold, mildew and fungus. (Id. 9-10). Reading the 

facts in the light most favorable to Wilson, the undersigned finds no support that 

Defendants have established a policy of providing or tolerating unsanitary 

conditions necessary to establish a constitutional violation. 

The record shows that Defendants not only comply with inspections by the 

Alabama Department of Public Health, but Defendants work to remedy the 

necessary items or defects identified by the department when necessary. For 

instance, on May 13, 2013, seven months prior to the time of Wilson’s complaint, the 

health department inspected the Holman prison kitchen and found the food 

preparation methods used were sanitary, that food storage (including “temperature 

requirements during receiving, cooking, hot holding, cooling”) were all safe, food 

was separated and protected from contamination, cooling and thawing methods 

were approved, cooking surfaces were clean, and the equipment and utensils were 

sanitized. (Doc. 26-5 at 5). That inspection did find four critical items of concern: 1) 

the back flow preventer on the hose in washroom, 2) roaches were present, 3) the 

shield on the light above the grill needed attention, and 4) the fry baskets were 

broken. (Id.). The following health department inspection was conducted on June 

19, 2014, at which time the inspector found four critical items of concern: 1) 

plumbing leaks at the sink, 2) spray nozzle in the washroom, 3) no shield on lights 

in dry storage, and 4) roaches present. (Id. at 3). While the record shows there 

were roaches present at both inspections, there is a notation of the inspection report

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that Baldwin Pest Control was contacted and came on June 19, 2014 (id. at 2), and 

Defendants further aver that Holman has a contract for services with them. (Doc. 

26-1 at 2; Doc. 26-2 at 2; Doc. 26-3 at 2; Doc. 26-4 at 2). Notably, roaches were the 

only repeated area of concern on both inspections, indicating that Defendants 

attempted to fix the areas of concern itemized in the previous inspection – which 

negates Wilson’s effort to establish that Defendants turn a blind eye to the 

conditions of the kitchen or that they condone unsanitary practices. 

Furthermore, the independent examination of the kitchen facilities by the 

Department of Health call into question some of Wilson’s allegations as the 

inspections do not criticize the sanitation practices of food servers, nor do they 

mention mold, mildew, fungus, or bacteria on the sink, walls, or ceiling, and they 

fail to indicate the presence of any insects or vermin other than roaches. The 

undersigned finds no factual support in the record that Defendants have turned a 

blind eye to unsanitary conditions or practices in the kitchen at Holman and 

Plaintiff Wilson has failed to carry his burden of showing a genuine issue of 

material fact exists for trial. Thus, it is recommended that Defendants’ motion for 

summary judgment be granted. 

III. Conclusion.

Based on the foregoing analysis, the undersigned concludes that there are no 

genuine issues of material fact, and that Defendants are entitled to judgment as a 

matter of law on all claims and causes of action interposed by Plaintiff. Therefore, 

it is recommended that Defendants’ motion for summary judgment be granted on 

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all counts and that Plaintiff Wilson’s action against Defendants Tawanna Byrd, 

Gary Hetzel, Walter Myers, and Gwendolyn Givens be dismissed with prejudice.

The instructions that follow the undersigned’s signature contain important 

information regarding objections to the report and recommendation of the 

Magistrate Judge.

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. GenLR 72(c). 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 

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

Judge is not specific.

DONE this the 11th day of March 2016.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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