IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARCUS “MARK” PALMER, #209502, :

Plaintiff, :

vs. : CIVIL ACTION 14-00149-KD-B

OFFICER BREWER, et al., :

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff Marcus “Mark” Palmer, an Alabama prison inmate 

proceeding pro se and in forma pauperis, filed a complaint under 

42 U.S.C. § 1983. This action has been referred to the 

undersigned for appropriate action pursuant to 28 U.S.C. § 

636(b)(1)(B) and Local Rule 72.2(c)(4). Upon review of 

Plaintiff’s complaint, it is recommended that Defendant Ammons 

be dismissed with prejudice from this action, prior to service 

of process, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii)

because Plaintiff’s claims against him are either frivolous or 

fail to state a claim upon which relief can be granted.

I. Complaint. (Doc. 1).

In his complaint, Plaintiff names as Defendants Officer 

Brewer, Officer Lindsey, and Sergeant Ammons. (Doc. 1 at 9). 

Plaintiff’s allegations against them are as follows.

On or about February 7, 2014, Defendant Brewer was 

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overseeing showers for the segregation inmates at Holman 

Correctional Facility. When he reached Plaintiff’s cell, he 

handcuffed Plaintiff, and escorted Plaintiff to the shower area. 

(Id. at 3). Defendant Lindsey placed Plaintiff in a shower and 

removed his handcuffs. When Plaintiff finished showering, 

Defendant Lindsey handcuffed Plaintiff with his wrists behind 

his back. (Id.). When Plaintiff neared his cell, Defendant 

Brewer directed the cube officer to open Plaintiff’s cell door. 

(Id.). When Plaintiff “was going in[to his] cell, [Defendant] 

Brewer intentionally pushed the door closed before [Plaintiff] 

was in the cell, and the door rammed hard against [his] 

shoulder[.]” (Id.). Plaintiff screamed and asked Defendant 

Brewer why he did that. (Id.). Defendant Brewer laughed and 

told Plaintiff to put his hands through the tray slot so the 

handcuffs could be removed. (Id.). 

When Plaintiff put his hands through the tray slot,

Defendant “Brewer pulled on the door, causing the door to smash 

[Plaintiff’s] fingers between the tray door and the inside of 

[the] cell door.” (Id.). Plaintiff screamed and pulled his 

fingers away. He told Defendant Brewer that Defendant Brewer had 

broken his fingers. (Id.). Brewer laughed and told Plaintiff 

to stick his hands through the slot so he could remove the 

handcuffs. (Id.). Plaintiff complied and the handcuffs were 

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removed. (Id.). 

Once Plaintiff looked at his bloody and swollen hands, he 

began hollering and telling Defendant Brewer that he needed to 

go to the infirmary. (Id.). “Defendant Brewer just stood in 

[his] window laughing[.]” (Id.). And Defendant Lindsey, who 

was looking down the tier, refused to help him. (Id.). 

Plaintiff began yelling for them to get Lieutenant Bolar, but 

Defendant Brewer said that he would not do anything and walked 

away. (Id.). 

Plaintiff and other inmates started kicking their doors for 

about thirty minutes. (Id.). Then, Plaintiff yelled through 

his vent to the inmate on the tier below him and asked the 

inmate to get help. (Id.). All the while, Defendants Brewer 

and Lindsey continued showering other inmates. (Id.). 

After about fifteen minutes, Officer English came to 

Plaintiff’s cell and Plaintiff told him what had happened. (Id.

at 4). Officer English left, and about fifteen minutes later, 

Defendant Ammons appeared and stood across from Plaintiff’s cell 

for about ten minutes talking to Defendants Brewer and Lindsey. 

(Id.). Defendant Ammons then went to Plaintiff’s cell, and 

Plaintiff told him what happened. (Id.). Defendant Ammons 

escorted Plaintiff to the infirmary. (Id.). On the way to the 

infirmary, they met Lieutenant Bolar, to whom Plaintiff 

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explained what had transpired and asked to see Investigation and 

Intelligence in order to file charges against Defendant Brewer. 

(Id.). The nurses told Lieutenant Bolar that Plaintiff’s 

fingers were broken and that he needed to go to a hospital. 

(Id.). Later, Plaintiff was taken to the hospital where he told 

the doctor what happened and that his shoulder and hands were in 

extreme pain. (Id). After x-rays, the doctor told Plaintiff 

that his hand “was not broken, just smashed real bad and badly 

bruised[.]” (Id.). Plaintiff received a tetanus shot and some 

pain medicine. (Id.). 

With respect to the specific claims against Defendant 

Ammons, Plaintiff alleges that he failed to intervene to protect 

Plaintiff and “failed to train and supervise.” (Id. at 10). 

For facts to support his allegations against Defendant Ammons, 

Plaintiff refers the Court to the general narrative of the 

claims in this action. (Id.).

For relief, Plaintiff seeks declaratory and injunctive 

relief, punitive damages in the amount of $100,000 from each 

Defendant, and the institution of assault charges. (Id. at 11).

II. Standards of Review Under 28 U.S.C. § 1915(e)(2)(B).

Because Plaintiff is proceeding in forma pauperis, the 

Court is reviewing his Complaint (Doc. 1) under 28 U.S.C. 

§ 1915(e)(2)(B). Under § 1915(e)(2)(B)(i), a claim may be

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dismissed as “frivolous where it lacks an arguable basis in law 

or fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 

1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as 

a matter of law where, inter alia, the defendants are immune 

from suit, id. at 327, 109 S.Ct. at 1833, or the claim seeks to 

enforce a right that clearly does not exist. Id.

Moreover, a complaint may be dismissed under 28 U.S.C. 

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which 

relief may be granted. Mitchell v. Farcass, 112 F.3d 1483, 1490 

(11th Cir. 1997). To avoid dismissal for failure to state a 

claim upon which relief can be granted, the allegations must 

show plausibility. Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007). “A 

claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 

L.Ed.2d 868 (2009). That is, “[f]actual allegations must be 

enough to raise a right to relief above the speculative level” 

and must be a “‘plain statement’ possess[ing] enough heft to 

‘sho[w] that the pleader is entitled to relief.’” Twombly, 550

U.S. at 555, 557, 127 S.Ct. at 1965, 1966 (second brackets in 

original). But “[t]hreadbare recitals of the elements of a 

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cause of action, supported by mere conclusory statements, do not 

suffice.” Id. Furthermore, when a successful affirmative 

defense, such as a statute of limitations, appears on the face 

of a complaint, dismissal for failure to state a claim is also 

warranted. Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 

920-21, 166 L.Ed.2d 798 (2007). 

When considering a pro se litigant’s allegations, a court 

gives them a liberal construction holding them to a more lenient 

standard than those of an attorney, Haines v. Kerner, 404 U.S.

519, 520, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972), but it

does not have “license . . . to rewrite an otherwise deficient 

pleading [by a pro se litigant] in order to sustain an action.” 

GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369

(11th Cir. 1998), overruled on other grounds by Randall v. 

Scott, 610 F.3d 791, 710 (11th Cir. 2010) (relying on Iqbal, 556 

U.S. 662, 129 S.Ct. 1937). Furthermore, a court treats as true 

factual allegations, but it does not treat as true conclusory 

assertions or a recitation of a cause of action’s elements. 

Iqbal, 566 U.S. at 681, 129 S.Ct. at 1951. In addition, a pro 

se litigant “is subject to the relevant law and rules of court 

including the Federal Rules of Civil Procedure.” Moon v. 

Newsome, 863 F.2d 835, 837 (11th Cir.), cert. denied, 493 U.S. 

863 (1989).

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III. Discussion.

A. Allegations Directed to Defendant Ammons. 

In Plaintiff’s descriptive narrative of his claims, 

Defendant Ammons is first mentioned on page 4 when Plaintiff

states that Defendant Ammons appeared fifteen minutes after 

Officer English left his cell door. (Doc. 1 at 4). After 

arriving, Defendant Ammons first spoke with Defendants Brewer 

and Lindsey, and after ten minutes, he went to Plaintiff’s door. 

(Id.). Plaintiff told Defendant Ammons what happened and he 

escorted Plaintiff to the infirmary. (Id.). This is the extent 

of Plaintiff’s factual allegations against Defendant Ammons.

B. Failure-to-Intervene Claim.

The facts, as alleged by Plaintiff, do not show that 

Defendant Ammons was present when Plaintiff’s hand and shoulder 

were injured. Yet, Plaintiff alleges that Defendant Ammons 

failed to intervene. (Doc. 1 at 10). The Court is unaware of 

any duty to intervene when one is not present during the 

incident or to intervene after the injury. See Little v. 

Nelson, CA No. 12-00229-KD-B, 2012 WL 3637912, at *2 n.2 (S.D. 

Ala. Aug. 1, 2012) (unpublished) (ruling that “[t]he Court is 

not aware of any duty to act or intervene after a beating has 

taken place”). Rather, “an officer who is present at the scene 

and who fails to take reasonable steps to protect the victim of 

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another officer’s use of excessive force, can be held personally 

liable for his nonfeasance.” Crenshaw v. Lister, 556 F.3d 1283, 

1293-94 (11th Cir. 2009) (quotation omitted). However, the

“non-intervening officer [must be] in a position to intervene 

yet failed to do so.” Id. at 1294. And, a failure-to-intervene 

claim appears to be only recognized when it is related to an 

excessive force violation. Roddy v. City of Huntsville, Ala., 

947 F. Supp.2d 1271, 1300 (N.D. Ala. May 24, 2013)

(unpublished), aff’d, 947 F.3d 1271 (11th Cir. 

2013)(unpublished). Inasmuch as Defendant Ammons was not 

present when force was used, Plaintiff’s claim for failure to 

intervene against Defendant Ammons is frivolous and is thus due 

to be dismissed with prejudice. 

C. Claim for Failure to Train and to Supervise.

Plaintiff’s other claim against Defendant Ammons is for 

failure to train and to supervise. (Doc. 1 at 10). The 

complaint is devoid of any factual allegations regarding 

Plaintiff’s failure to train and supervise claim except for his

conclusory assertion of the claim. Plaintiff, however, is 

required to plead “a plain statement of the claim showing that 

[he] is entitled to relief.” FED.R.CIV.P. 8(a). “The point is to 

‘give the defendant fair notice of what the claim is and the 

grounds upon which it rests.’” Davis v. Coca-Cola Bottling Co. 

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Consolidated, 516 F.3d 955, 974 (11th Cir. 2008) (emphasis 

added)(quoting Twombly, 550 U.S. 544 (2007)). Furthermore, the

complaint’s “factual allegations must be enough to raise a right 

to relief above the speculative level[.]” Twombly, 550 U.S. at 

555, 127 S.Ct. at 1964. “[T]hreadbare recitals of the elements 

of a cause of action, supported by mere conclusory statements, 

do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949.

A plaintiff must plead “factual content that allows the 

court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged” so the claim is facially 

plausible. Id. A claim that is not “plausible on it face” is 

subject to dismissal for failure to state a claim. Id. 

“Plausibility requires more than ‘a sheer possibility that a

defendant has acted unlawfully[] . . . [and] ‘allows the court 

to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.’” Grider v. Cook, 590 F. App’x 876, 

880 (11th Cir. 2014) (unpublished) (quoting Iqbal, supra).

In the action at hand, Plaintiff failed to plead any facts 

that support a claim for failure to train or supervise. 

Accordingly, this claim is frivolous as a matter of law and is 

thus due to be dismissed with prejudice. See Kilgo v. Ricks, 

983 F.2d 189, 194 (11th Cir. 1993) (dismissing as frivolous a 

claim against the prison commissioner because there were no 

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allegations of personal participation or a policy).

D. Claim for Delay in Medical Treatment.

In his complaint, Plaintiff did not identify a claim for a 

delay in medical treatment as being a claim that he wants to 

pursue against Defendant Ammons; however, because Plaintiff is 

pro se, the Court is liberally construing his complaint and

finds that his factual allegations tend to support such a claim. 

That is, Plaintiff alleges that Defendant Ammons spoke to 

Defendant Brewer and Lindsey for ten minutes before coming to 

his cell. (Doc. 1 at 4)). Then, Defendant Ammons escorted 

Plaintiff to the infirmary. (Id.). 

In order to state a claim under the Eighth Amendment, a 

plaintiff must allege a deliberate indifference to a serious 

medical need. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 

285, 291, 50 L.Ed.2d 251 (1976). In order to prevail, “a 

plaintiff must show: ‘(1) a serious medical need; (2) the 

defendant's deliberate indifference to that need; and (3) 

causation between that indifference and the plaintiff’s 

injury.’” Jackson v. Capraun, 534 F. App’x 854, 857 (11th Cir. 

2013) (unpublished) (quoting Youmans v. Gagnon, 626 F.3d 557, 

563 (11th Cir. 2010) (alterations and quotation marks omitted). 

The deliberate indifference element of this claim requires: “(1) 

subjective knowledge of a risk of serious harm; (2) disregard of 

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that risk; (3) by conduct that is more than gross negligence.”

Id. (quotation omitted). And in the context of a claim for a 

delay in receiving medical treatment, a prisoner must show that 

he has suffered an increased physical injury due to the delay. 

Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007). To 

make this showing, the Court will consider: “(1) the seriousness 

of the medical need; (2) whether the delay worsened the medical 

condition; and (3) the reason for the delay.” Id.

The weaknesses in Plaintiff’s delay of treatment claim is 

that Plaintiff did not allege an injury that he sustained as a 

result from the delay and he did not plead allegations that 

describe Defendant Ammons state of mind. Plaintiff’s 

allegations are devoid of allegations showing that Defendant 

Ammons was aware of any risk of serious harm befalling Plaintiff 

if he first spoke to the two officers. Furthermore, Plainiff 

acknowledges that Defendant Ammons’ took him to the infirmary 

shortly after arriving and investigating the situation. Such 

action is not behavior that evinces deliberate indifference. 

See Jackson, 534 F. App’x at 857 (finding that the delay caused 

by the officer in filling out the arrest report and in helping 

in the arrest of two other people did not demonstrate disregard 

to plaintiff’s back pain by conduct that was more than gross 

negligence). Considering that Plaintiff was already injured by 

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the time that Defendant Ammons arrived, and that the injury 

turned out not be as serious as Plaintiff thought, it does not 

appear that Plaintiff’s injury increased on account of any 

delay. Thus, Plaintiff has not stated a claim for delay in 

medical treatment claim against Defendant Ammons. Accordingly, 

this claim is due to be dismissed with prejudice.1

IV. Conclusion.

Based upon the foregoing reasons, it is recommended that 

Defendant Ammons be dismissed with prejudice from this action,

prior to service of process, pursuant to 28 U.S.C. §

1915(e)(2)(B)(i) and (ii), because Plaintiff’s claims against 

him are either frivolous or fail to state a claim upon which 

relief can be granted.

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

 1 The Court is foregoing a discussion of 42 U.S.C. § 1997e(e) 

as being another ground on which to dismiss Plaintiff’s punitive 

damages claims against Defendants Ammons for delay of medical 

treatment. Similarly, with respect to the delay in medical 

treatment claim, the request for declaratory and injunctive 

relief and assault charges would also be subject to being 

dismissed for a different reason, failure to state a claim. 

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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 precedent, 

“the failure to object limits the scope of [] appellate review 

to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 

2013). 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 7th day of April, 2015.

 /s/ Sonja F. Bivins______ 

UNITED STATES MAGISTRATE JUDGE

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