IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MANDINGO PETTWAY,

Plaintiff,

:

:

:

vs. : CIVIL ACTION 14-0495-WS-C

:

CYNTHIA STEWART, et al.,

Defendants.

:

:

REPORT AND RECOMMENDATION

Plaintiff Mandingo Pettway, 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) and Local Rule 72.2(a)(2)(R), 

and is now before the Court on Defendants’ motion for summary judgment 

(Docs. 12, 13) and Plaintiff’s response thereto (Doc. 15). For the reasons stated 

below, it is recommended that summary judgment be granted in favor of 

Defendants Stewart and King1, and the claims presented by Plaintiff Mandingo 

Pettway be dismissed with prejudice. 

I. Summary of Allegations. 

Plaintiff is currently within the custody of the Alabama Department of 

Corrections (“ADOC”) serving two consecutive life sentences for convictions of 

murder and two counts of first-degree robbery. (Doc. 1 at 6; Docs. 13-1; 13-3). 

Based on the nature of the crimes committed, the ADOC classified Plaintiff as a 

medium custody inmate, with a restricted “R” status, to be housed at a level four 

 1 Plaintiff has identified and named as a defendant in this action “Nautical King.” 

(Doc. 1 at 5). The undersigned takes notice from the record that the correct name of 

Defendant King appears to be Nanciata King. (See Docs. 12 and 13 where Defendants 

identify the Classification Supervisor at G.K. Fountain Correctional Facility to be 

Nunciata King). In this report and recommendation the Court will refer to said 

defendant as Defendant King, Ms. King, or Classification Supervisor King, noting that 

Nunciata King is the intended defendant in this action. 

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correctional facility. (Doc. Doc. 15 at 8). Plaintiff’s “R” offender classification 

restricts him from being eligible for lower security custody and the privileges 

that would accompany the same, such as work release or any off-property job. 

(Doc. 13 at 3; Doc. 13-3 at 3; Doc. 15 at 8). The Central Restriction Review 

Committee (“CRRC”) is solely responsible for the classification of restricted 

offenders. (Doc. 13-4 at 1-2). The CRRC follows the procedure and categories 

found in the ADOC’s Classification Manual to determine the restricted status of 

inmates. (Doc. 13-2 at 2). While the CRRC’s restricted classification is not 

appealable, it may be reviewed by the CRRC upon the request of a classification 

specialist. (Doc. 13-3 at 4). 

Notably, the record shows the classification of Plaintiff has been reviewed 

periodically during his incarceration. On June 29, 2012, Yvonne Johnson, a 

classification officer at ADOC’s Draper Correctional Facility, requested the CRRC 

review and remove Plaintiff’s “R” security status based on the 2010 revisions of 

the ADOC’s Classification Manual. (Doc. 13-3 at 4). The CRRC completed the 

review but chose to uphold it’s restricted offender status of Plaintiff. (Id.). The 

committee used the facts of Plaintiff’s crime (mainly that he shot his victim 

multiple times) to determine that Plaintiff fell within the manual’s criteria of a 

violent inmate, and pursuant to “number 9” of the pertinent section, CRRC is 

given discretion to review Plaintiff’s case and provide a restricted status where 

warranted.

2

 2 The revised manual states that:

The following category of inmates will require review for the “R” suffix:

. . . 

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Plaintiff’s classification was again reviewed by the ADOC on October 30, 

2013. (Doc. 15 at 8). The classification review summary discloses that, in 

addition to the crimes for which Plaintiff is currently serving time, he also 

committed prior crimes of first-degree assault (beating and stabbing his victim) 

and throw/shooting into an occupied vehicle. In Plaintiff’s favor, however, the 

classification summary reveals that Plaintiff has not received a disciplinary 

report since March 23, 2012; he has completed classes including Anger 

Management, Personal Development, Self-Awareness, Cabinet Making, Cabinet 

Making-Tutor and has obtained certificates in Creative Writing and Long 

Distance Dads. (Id.). Plaintiff received a security level score of four and, despite 

his in-prison accomplishments, it was recommended that Plaintiff remain at a 

medium security, level four institution “due to consecutive life sentences” and 

“R” status that make him “ineligible for custody reduction lower than Medium.” 

(Id.). 

Plaintiff brings this § 1983 suit challenging his custody classification, 

specifically his “R” security restriction, alleging that he is due for parole 

consideration in July 2016, thus he is eligible, “same as the other inmates”, for a 

custody change to minimum-in or minimum-out.

3

 (Doc. 1 at 4-5). He is suing 

Classification Specialist King for violating his constitutional rights and 

discriminating against him on August 18, 2014, while housed at G.K. Fountain 

 9 - Inmates with offenses which may or may not involve death but are of 

such a violent nature that restriction may be warranted will be reviewed 

on a case-by case basis.

(Doc. 13-3 at 5; see also ADOC Classification Manual, 5.4.3.1.1, p. 38). 

3 Plaintiff asserts that an inmate must be within three years of his estimated end of 

sentence date or possible parole date “to be considered for min-in or min-out custody.” 

(Doc. 1 at 4). 

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Correctional Facility (“Fountain”). Plaintiff claims King discriminated against 

and prejudiced him by treating him differently than other inmates when she 

failed to recommend his restricted status be removed. (Doc. 1 at 4-5). And, he is 

suing Fountain’s Warden Stewart for being ‘aware of the unlawful conduct of 

her subordinate[, King,] and fail[ing] to correct that unlawful conduct.” (Id. at 5). 

Defendants have answered the suit, denying all allegations of violating 

Plaintiff’s constitutional rights regarding his current classification level and

asserting available defenses,4 and filed a special report, evidencing that they have 

no authority to classify inmates as restricted offenders and that task is the 

responsibility of the CRRC. (Doc. 13 at 2). The Court has converted Defendants’ 

filings to a motion for summary judgment. (Doc. 14). Plaintiff opposes the 

motion for summary judgment and submits that his risk assessment score of 

four, on October 30, 2013, dictates that he should be eligible for a lowered 

security status. (Doc. 15). After a thorough review of the record, the Court 

determines that this motion is ripe for consideration. 

II. Summary Judgment Standard. 

 4 It is unclear from the complaint whether Plaintiff is suing Defendants in their 

official or individual capacities. To the extent he bringing this action against Defendants 

in their official capacities, both defendants are immune from suit. 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 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. 

As to claims against the defendants in their individual capacities, Defendants 

may be entitled to qualified immunity. 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). It is undisputed that Defendants were acting within the 

scope of their discretionary authority as prison officers at Fountain; thus, the Court will 

analyze whether or not Plaintiff has carried his burden of alleging a constitutional 

violation. See Id.

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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 

(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 

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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 

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. 

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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.

III. Discussion. 

Plaintiff complains that his risk assessment score of four that was 

determined on October 30, 2013, within three years of his parole consideration 

date, should make him eligible for a lower security level. (Doc. 15 at 2). He 

maintains that his behavior while imprisoned, maturity, education, class and 

program participation should carry weight in determining his classification not 

merely the elements of his committed crime. (Id. at 4). He challenges the denial 

of a lower security level claiming it is discriminatory, violating his Equal 

Protection rights, and is cruel and unusual punishment, in violation of the Eighth 

Amendment. (Doc. 1 at 5; Doc. 15 at 4). 

A. Custody Classification.

Plaintiff contends that his prison record and completion of various 

rehabilitative programs entitles him to recommendation and/or receipt of a 

lower custody classification, and Defendants violated his constitutional rights by 

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not recommending or granting his restricted offender status be removed. (Doc. 

15 at 4). This claim provides no basis for relief, as an Alabama prisoner has no 

constitutionally protected interest in the procedure affecting his classification 

level because the resulting restraint, without more, does not impose an "atypical 

and significant hardship on the inmate in relation to the ordinary incidents of 

prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 

(1995); Francis v. Fox, 838 F.2d 1147 (11th Cir. 1988); Jones v. Diamond, 594 F.2d 997 

(5th Cir. 1979). An inmate “has no constitutionally protected liberty interest in 

being classified at a certain security level or housed in a certain prison.” Kramer 

v. Donald, 286 F. App'x 674, 676 (11th Cir. 2008) (per curiam) (citing Moody v. 

Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976) (noting that 

Congress has given prison officials full discretion to control conditions of 

confinement, including prisoner classification)). Consequently, prison officials 

may assign inmates to any security classification level they choose without 

necessarily violating any constitutional right of the inmates. See Olim v. 

Wakinekona, 461 U.S. 238, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983); Meachum v. Fano, 

427 U.S. 215, 224, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Hewitt v. Helms, 459 U.S. 

460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983); Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 

S. Ct. 274, 50 L. Ed. 2d 236 (1976). Additionally, prison administration may 

assign a restricted “R” status to inmates and inmates have no constitutional right 

to have the same removed or to have their security custody level lowered. See 

Turpin v. Pittman, 2013 U.S. Dist. LEXIS 166290 (M.D. Ala. Oct. 8, 2013) (“Because 

Turpin has no constitutional right to a specific classification and/or security 

status, correctional officials may change his classification for a good reason, a bad 

reason, or no reason at all. Thus, the decision to deny him medium-out custody 

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status and to classify and/or recommend he be reclassified as a restricted 

offender does not violate his constitutional rights.”); King v. Boyd, CASE NO. 

2:10-CV-715-TMH[WO], 2012 U.S. Dist. LEXIS 185024 (M.D. Ala. Nov. 30, 2012) 

(constitutional rights were not violated by classification of plaintiff as a restricted 

offender and by refusal to recommend removal of the restricted status); Johnson 

v. Boyd, 2011 U.S. Dist. LEXIS 86938 (M.D. Ala. May 26, 2011) (“The court need 

not decide whether Plaintiff has been classified improperly because, even if his 

classification is incorrect, his constitutional rights have not been violated.”). 

Even if the Court were to determine that the failure to recommend 

Plaintiff’s restricted offender status is a stated constitutional violation, 

Defendants would be protected from suit pursuant to their asserted defense of 

qualified immunity. It is clear that Defendants were performing discretionary 

functions as prison officers, and their denial of Plaintiff’s request to have his “R” 

status removed or lowered is not a violation of “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 

fact, the undersigned finds just the opposite, the law clearly reads that prisoners 

have no constitutional right to a certain classification or security level. 

B. Equal Protection.

Plaintiff asserts inmates who are within three years of their parole 

consideration or release dates are recommended for min-in or min-out custody; 

however, he claims Defendants discriminated against him by denying him a 

recommendation for a lower security status of min-in or min-out custody –

despite that his parole consideration date was set for July 2016. (Doc. 1 at 4-5). 

He alleges that Defendant King violated his right to Equal Protection when she 

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“fail[ed] to recommend[] the (R) to be removed from Plaintiff[‘s] prison file.” (Id. 

at 4). 

"The Equal Protection Clause of the Fourteenth Amendment requires the 

government to treat similarly situated people alike." Hernandez v. Florida Dep't of 

Corrs., 281 F. App'x 862, 867 (11th Cir. 2008) (citing City of Cleburne, Tex. v. 

Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)). In 

order for a prisoner to establish an equal protection claim, he must allege: "(1) he 

is similarly situated with other prisoners who received more favorable treatment; 

and (2) his discriminatory treatment was based on some constitutionally 

protected interest such as race." Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001) 

(quotation omitted). In the prison context, interests that are protected by the 

Constitution from invidious discrimination are "race, religion, national origin, 

poverty or some other constitutionally protected interest." Damiano v. Florida 

Parole & Prob. Comm'n, 785 F.2d 929, 932-33 (11th Cir.1986); see Cruz v. Skelton, 543 

F.2d 86, 92-93 (5th Cir. 1976) (invidious intent is required to be shown to state an 

equal protection claim as mere statistical disparity is insufficient), cert. denied, 433 

U.S. 911, 97 S. Ct. 2980, 53 L. Ed. 2d 1096 (1977). In this Circuit prisoner plaintiffs

must provide “exceptionally clear proof” of discrimination that would include a 

showing that they were treated differently from “similarly situated” inmates, i.e., 

that other inmates with similar convictions and backgrounds had their restricted 

status removed. Fuller v. Georgia State Bd. of Pardons and Paroles, 851 F.2d 1307, 

1310 (11th Cir. 1988); see also E & T Realty Co. v. Strickland, 830 F.2d 1107, 1112-

1113 (11th Cir. 1987) (claims of mere disparity of treatment are insufficient to 

establish discrimination).

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Defendants have properly supported their motion by producing evidence 

that neither Stewart nor King is responsible for determining the restricted status 

of inmates and, further, that neither has control to change or alter the restricted 

status, but instead, that power rests solely with the CRRC. (Doc. 13-4 at 1-2; Doc. 

13-2). Alternatively, classification officers, such as Defendant King, possess the 

ability to request a restricted status be removed by the CRRC; by all accounts, 

however, this is a discretionary recommendation that King did not make for 

Plaintiff. In support of Defendants, the record reveals that Plaintiff’s security 

status had been reviewed at least twice while incarcerated. Once, the CRRC 

compared its original findings to the revisions of the classification manual to 

determine whether or not Plaintiff should be considered a restricted offender. 

The committee ruled Plaintiff should remain on restricted status based on the

nature and elements of the crime(s) he committed. Subsequently, a risk 

assessment was conducted, accounting for Plaintiff’s prison behavior and 

rehabilitative classes and certifications; however, it was determined that, due to 

his “R” status, he should remain as a level four custody inmate. 

Therefore, the burden shifts to Plaintiff to produce specific facts that 

would establish that the Defendants intentionally discriminated against him due 

to his race, religion, or other constitutionally protected interest, and Plaintiff fails 

to carry this burden. Plaintiff neglects to identify any other inmate in his same 

position that received removal of his restricted status. He fails to allege that any 

other restricted inmate was allowed a lower security level or min-in/min-out 

custody. In fact, the record is completely void of comparison to any other 

restricted inmate’s situation and of a discriminatory reason why Plaintiff believes 

he was denied a recommendation to have his restricted status changed. 

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In his complaint, Plaintiff makes the conclusory allegation that:

Defendant [] King acted [with] prejudice and discrimination by not 

treating the Plaintiff [like] similarly situated [] other inmates, she 

has failed[ed] to recommend[] the (R) be reomove[d] from 

Plaintiff[‘s] prison file. 

(Doc. 1 at 4). This bare, conclusory allegation is insufficient to state an equal 

protection claim or the overcome summary judgment. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (“The mere 

existence of a scintilla of evidence in support of the plaintiff's position will be 

insufficient; there must be evidence on which the jury could reasonably find for 

the plaintiff.”). The fact that other inmates within three years of their release 

dates and parole considerations have possibly had their restricted status 

removed has not been presented nor do “restricted inmates” represent a

constitutionally protected class. Additionally, arbitrary application of 

administrative rules within a prison does not run afoul of the Constitution and is 

insufficient to state a claim. E&T Realty, 830 F.2d at 1114 (“Even arbitrary 

administration of a statute, without purposeful discrimination, does not violate 

the equal protection clause. Shango, 681 F.2d at 1104; Jurek v. Estelle, 593 F.2d 672, 

685 n.26 (5th Cir.1979) (where plaintiff alleges "arbitrary and capricious" 

administration of statute, plaintiff still must prove intentional discrimination), 

issue vacated without being addressed, 623 F.2d 929, 931 (5th Cir.1980) (en banc), cert. 

denied, 450 U.S. 1014, 101 S. Ct. 1724, 68 L. Ed. 2d 214 (1981)”). Consequently, 

given that Plaintiff fails to even allege that other inmates with a restricted status 

and a similar criminal history have had their “R” status removed due to the 

timing of their possible release from prison, Plaintiff has failed to carry his 

burden of overcoming summary judgment on this claim.

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C. Due Process.

5

Plaintiff appears to assert that, in determining his custody classification, 

Defendants failed to take into account his prison behavior and actions (which 

suggests a lower risk than his criminal convictions and current “R” status 

indicate). (See Doc. 15). To the extent Plaintiff challenges the classification level 

assigned to him was made arbitrarily and in violation of his right to due process, 

his claim lacks merit. In order to state a claim for a violation of due process, a 

deprivation of "life, liberty, or property" must have occurred (and be alleged) in 

order for due process to attach. Wolff v. McDonnell, 418 U.S. 539, 556-58, 94 S. Ct. 

2963, 2974-75, 41 L.Ed.2d 935 (1974); cf. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. 

Ct. 975, 983, 108 L.Ed.2d 100 (1990) ("In procedural due process claims, the 

deprivation by state action of a constitutionally protected interest in 'life, liberty, 

or property' is not in itself unconstitutional; what is unconstitutional is the 

deprivation of such an interest without due process of law." (emphasis in original 

and citations omitted)). 

As discussed supra at section III. A., Alabama inmates have no 

constitutionally protected interest in the procedure dictating or affecting their 

classification levels because the resulting restraint, whether more or less 

restrictive, does not impose an “atypical and significant hardship on the inmate 

in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 

472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Since a prisoner’s custody level 

 5 Plaintiff does not directly state a challenge to his right to due process under the 

Fourteenth Amendment, but out of an abundance of caution and leniency given to pro se

litigants, Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007)("A 

document filed pro se is to be liberally construed, and a pro se complaint, however 

inartfully pleaded, must be held to less stringent standards than formal pleadings 

drafted by lawyers..."), the Court will address such a claim. 

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is not a constitutionally protected interest, correctional officials may assign 

Plaintiff to any classification level without implicating due process rights or 

protections. See Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 

236 (1976). Therefore, to successfully state a due process claim regarding the 

Defendants’ classification of him, Plaintiff must show that Defendants acted to 

deny or restrict him a lower security status “maliciously or in bad faith.” 

Hendking v. Smith, 781 F.2d 850, 852 (11th Cir. 1986). Applying the facts in the 

record to this standard, the Court finds the CRRC is provided with the 

responsibility of determining which inmates receive a restricted offender status. 

Additionally, the record clearly explains, per the CRRC’s notations, that 

Plaintiff’s “R” status is based on the committee’s view of the nature and 

circumstances of Plaintiff’s committed crimes. Id. at 852. The submitted 

evidence also proves that the ADOC has unequivocally determined that the 

CRRC’s classification decisions are final and unappealable.6 (Doc. 13-3 at 2). 

“Plaintiff's disagreement with prison officials' determination that he meets the 

ADOC's current classification criteria for restricted offender status does not 

render their decision arbitrary or capricious, and Plaintiff has presented no 

evidence indicating that prison officials acted in an arbitrary or capricious way 

by not recommending him for removal as a restricted offender.” Hester v. 

 6 The ADOC Classification Manual states the Restricted Custody “cases may be

reviewed by the Central Restriction Review Committee (CRRC) comprised of the

Associate Commissioner of Operations, the Associate Commissioner of Programs,

and/or the Director/Assistant Director of Classification or their designees. 

Classification Specialists should complete the appropriate CRRC Review Worksheet

(See Attachments 8.5. and 8.6.) and then forward the form by email to the Assistant

Director of Classification for presentation to the committee. Decisions made by the

CRRC are final and not subject to the appeal process.” (Doc. 13-3 at 2; see also ADOC 

Classification Manual 5.4.3.1.2).

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Thomas, CIVIL ACTION NO: 2:12-CV-207-THM[WO], 2014 U.S. Dist. LEXIS 

109850, *23-24, (M.D. Ala. July 14, 2014) (citing Thornton v. Hunt, 852 F.2d 526, 527

(11th Cir. 1988). 

Accordingly, if Plaintiff intended to attempt to state a due process 

violation, he has failed to carry his burden of overcoming summary judgment 

and has not shown he is entitled to relief on such a claim. 

D. Eighth Amendment.

Plaintiff asserts that Defendants violated his Eighth Amendment right by 

refusing him a security level change. (Doc. 15 at 4). He claims that the 

guidelines for determining “R” status serve “no legitimate penological interest” 

because all that is used in the “R” custody determination are factors of a criminal 

case, not the positive elements of prison life and time served. (Doc.15 at 3). 

Plaintiff argues the permanent “R” status forces him “to remain in a classification 

more dangerous and filled with risks of injury being with inmates who display 

behavior inconsistent with the positive aspect shown by Plaintiff,” and thereby 

“imposes a risk to Plaintiff’s safety.” (Id. at 4-5). Plaintiff further claims that 

keeping him in a level four facility based solely on his “R” status amounts to 

deliberate indifference of his true classification “based upon real and honest 

criteria.” (Id. at 4). 

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

Under the Eighth Amendment, prison officials are required to "provide humane 

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conditions of confinement; prison officials must ensure that inmates receive 

adequate food, clothing, shelter, and medical care, and must 'take reasonable 

measures to guarantee the safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 

832, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 

517, 526-27, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). Whether a violation exists 

requires a fact intensive determination of what conditions exist and whether 

objectively and subjectively the conditions offend the Constitution by amounting 

to seriously sufficient deprivations to which officials were deliberately 

indifferent. Henderson v. Boyd, 2011 U.S. Dist. LEXIS 86928, *16 (M.D. Ala., June 

9, 2011) (citing Farmer, 511 U.S. 825)). To establish a constitutional violation, 

Plaintiff must establish the complained of action denied him “the minimal 

civilized measure of life’s necessities,” Rhodes, 452 U.S. at 347, and the condition 

under which he is held must pose “an unreasonable risk of serious damage to his 

future health." Chandler v. Crosby, 379 F.3d 1278, 1289-90 (11th Cir. 2004). 

Additionally, Plaintiff must prove that the officials knew of this serious risk of 

harm to Plaintiff and acted with deliberate indifference by disregarding the risk. 

Farmer, 511 U.S. at 828. 

In this action, Plaintiff identifies the overcrowding, interaction with more 

violent criminals, and the denial of rehabilitative programs and jobs as the 

unconstitutional conditions under which his restricted status is forcing him to be 

held. These stated conditions, however uncomfortable to the Plaintiff, are not 

shown to be inhumane and are viewed by most as the normal and expected 

problems of prison life that do not rise to the level of an Eighth Amendment 

violation. See Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997) (“Harsh and 

uncomfortable prison conditions do not automatically create such a 

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[constitutional] violation.); see also Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 

115 L. Ed. 2d 271 (1991) (overcrowding, without more, does not rise to the level 

of a constitutional violation); Thompson v. Cnty. of Medina, OH, 29 F.3d 238, 242 

(6th Cir. 1994) (holding that plaintiffs could not establish a violation of their 

Eighth Amendment right to safety where they provided no evidence of a causal 

relationship between the jail's classification system and their injuries). 

Importantly, Plaintiff makes no allegation that Defendants denied his 

recommendation for “R” status removal in an attempt to inflict pain or suffering, 

or out of knowledge of a risk of harm to Plaintiff, or for any punitive reason. 

“Because the mere act of classification 'does not amount to an infliction of pain,'" 

the Eighth Amendment does not prohibit inmate classification. Myron v. 

Terhune, 476 F.3d 716, 719 (9th Cir. 2007) (quoting Hoptowit v. Ray, 682 F.2d 1237, 

1251 (9th Cir. 1982)). Therefore, with no facts or allegations of deliberate 

indifference to Plaintiff’s health or safety, Plaintiff fails to carry his burden of 

proving an Eighth Amendment violation - as the record shows the decision to 

deny Plaintiff a lower security status or to classify Plaintiff as a restricted 

offender was and is based soundly in the criteria of the revised classification 

manual and does not rise to the level of a constitutional violation. Thus, 

Defendants are entitled to summary judgment on this claim. 

E. Respondeat Superior.

Plaintiff claims Warden Cynthia Stewart is liable for failing to correct her 

subordinate, Classification Supervisor King, when King failed to recommend 

removal of Plaintiff’s restricted status. (Doc. 1 at 5). 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 

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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 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 

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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).

Plaintiff alleges Defendant Stewart, as a supervisor and Warden at 

Fountain, knew King failed to recommend him for min-in or min-out custody 

and did not act to remedy the situation. Reading the facts in the light most 

favorable to Plaintiff, the undersigned finds no support that King or any prison 

official violated Plaintiff’s constitutional rights by failing to recommend his 

restricted offender status be removed. The record instead shows that the CRRC 

is solely responsible for the classification of restricted offenders and that the 

committee upon its last review chose to retain Plaintiff’s “R” status, which makes 

him ineligible for a lower security status. This is not a policy established by 

Defendant Stewart and she has no responsibility for implementing; therefore, she 

is not responsible for classification decisions or the execution of ADOC 

classification policies.

7 Therefore, the undersigned finds Defendant Stewart has 

 7 Even if the undersigned were to find that Plaintiff’s claim established a 

constitutional violation, Defendant Stewart would be entitled to qualified immunity 

from this action. Given the breadth of law announcing the lack of protected interest in 

an inmate’s housing classification, the Court finds Defendant Stewart would not have 

known she was violating any law. See Lassiter v. Alabama A&M University, 28 F.3d 1146 

(11th Cir. 1994)(“Unless a government agent's act is so obviously wrong, in the light of 

pre-existing 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.”)

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no supervisory liability, and Plaintiff has failed to carry his burden of showing a 

genuine issue of material fact exists for trial. 

IV. 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 all counts and that Plaintiff Pettway’s action against Defendants 

Stewart and King 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. Gen.LR 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 

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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 22nd day of February 2016. 

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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