McNealey v. Shaw et al

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ELIAS DANIEL MCNEALEY, )
AIS # 212257, )
)
Plaintiff, )
)
vs. ) CIV. A. NO. 24-0017-TFM-MU
)
SGT. CALVIN SHAW, et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Elias Daniel McNealey, an Alabama prison inmate proceeding without a
lawyer, filed a complaint under 42 U.S.C. § 1983. The complaint names as defendants
Sergeant Calvin Shaw, Lieutenant Ronald Sigler (incorrectly named in the complaint as
“Zigler”), and Captain Gretchen Rooker. (See Doc. 1). McNealey seeks monetary
damages for Defendants’ alleged excessive force against him and for their conspiracy
to bring false disciplinary charges against him. (Id.). Defendants filed an answer to the
complaint and a special report, along with supporting evidentiary materials, denying the
claims asserted against them. (Docs. 18, 19). After review of Defendants’ filings, the
Court converted Defendants’ answer, special report, and attached affidavits, medical
records, incident report, use of force report and disciplinary report into a motion for
summary judgment. (See Doc. 20). Although the Court directed McNealey to respond to
the motion with affidavits, sworn or verified declarations, or statements made under
penalty of perjury, and other evidentiary materials, to date, he has filed no response.
This motion has been referred to the undersigned for appropriate action pursuant
to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). For the reasons
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discussed below, the undersigned recommends that Defendants’ motion for summary
judgment be GRANTED.
I. Summary Judgment Standard
Summary judgment is proper if the moving party “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The “substantive law will identify which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court does not “weigh
the evidence and determine the truth of the matter” on summary judgment. Id. at 249.
Rather, the Court “determine[s] whether there is a genuine issue for trial.” Id. at 250.
“The mere existence of a scintilla of evidence” supporting the nonmoving party is not
sufficient to defeat a motion for summary judgement. Id. at 252.
Because Defendants are seeking summary judgment, they must demonstrate, by
identifying evidence in the record, the absence of a genuine dispute of material fact or
show that the nonmoving party, Plaintiff, does not have evidence in support of some
element of his case on which he bears the ultimate burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). If Defendants carry their burden, then
Plaintiff is required to “‘go beyond the pleadings,’ and by [his] own affidavits, or by
‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts
showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64
F.3d 590, 593-94 (11th Cir. 1995) (per curiam) (quoting Celotex, 477 U.S. at 324). “[I]f
the record taken as a whole could lead a rational trier of fact to find for the nonmoving
party,” then a genuine issue of material fact exists. Hickson Corp. v. Northern Crossarm
Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004).
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In considering a motion for summary judgment, courts are required to “view the
evidence, draw all reasonable factual inferences, and resolve all reasonable doubts in
favor of the non-movant.” Baxter v. Roberts, 54 F.4th 1241, 1253 (11th Cir. 2022)
(quoting Stryker v. City of Homewood, 978 F.3d 769, 773 (11th Cir. 2020)). This
requirement extends only “to the extent supportable by the record.” Id. (quoting Scott v.
Harris, 550 U.S. 372, 381 n.8 (2007). Where “opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott, 550 U.S. at 380.
II. Summary Judgment Facts1
Plaintiff McNealey was incarcerated at Camden Community Work Center
(“Camden”) when the incident alleged in the complaint arose. He is suing Defendants
for violations of his Eighth and Fourteenth Amendment rights. McNealy claims that, on
November 12, 2023, Sgt. Shaw used excessive physical force against him “for no good
cause and arbitrarily wrote [him] a disciplinary to shield the violation and refused the
required body chart.” (Doc. 1 at 5). He further claims that Lt. Sigler and Capt. Rooker
conspired with Sgt. Shaw to bring disciplinary charges against him without evidence to
support the charge. (Id. at 5-6).
1 Because Plaintiff's complaint was signed under penalty of perjury (see Doc. 1 at 7),
the Court will consider the factual allegations in the complaint in ruling on the motion for
summary judgment. See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986) (per
curiam). The undersigned notes, however, the “facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the case.” Priester v.
City of Riveria Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000).
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In response, Defendants have put forth evidence that, on November 12, 2023, at
or about 9:57 a.m., McNealey entered the dorms and the T.V. room to ask inmates
about his missing T-liners clippers. (Doc. 19-1 at 5). Sgt. Shaw observed him using a
loud tone of voice and cursing at other inmates, asking “who has my T-liners?” (See
Docs. 19-1 to 19-4). McNealey continued to B dormitory and again asked, “which one of
you motherfuckers has my T-liners?” (Id.). Sgt. Shaw entered B dormitory and
instructed McNealey to lower his voice and report to the shift office. (Id.). McNealey
failed to obey the order and instead returned to the movie T.V. room 2. (Id.). Sgt. Shaw
again instructed McNealey to report to the shift office. (Id.). But McNealey did not. (Id.).
Sgt. Shaw then approached McNealey, grabbed his forearm and told McNealey, again,
to go to the shift office. In response, McNealey complained that Sgt. Shaw touched him
and did not comply with Sgt. Show’s order, until Sgt. Shaw retrieved his Sabre Red
Spray, and Lt. Johnson (nondefendant) entered the room. (Doc. 19-1 at 4). Then,
McNealey reported to the shift office. (Id.).
The Incident Report put forth by Defendants contains a handwritten and signed
statement by McNealey. (See Doc. 19-1 at 5). According to the statement, McNealey
first heard a direct order from Sgt. Shaw when Sgt. Shaw grabbed his arm and spun
him around and told him to go to the shift office. (Id.). Not knowing this was Sgt. Shaw,
McNealey stated, “don’t put your hands on me.” (Id.). Upon realizing it was Sgt. Shaw,
McNealey explains he said, “Sgt. Shaw, would you please not put your hands on me
sir.” (Id.). Then Sgt. Shaw pulled out his Sabre Red Spray and ordered McNealey to go
to the shift office. (Id.). McNealey complied. (Id.).
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Capt. Rooker investigated the use of force claim. (Doc. 19-1 at 7; 19-2). The
investigation included interviewing Sgt. Shaw, Lt. Johnson, and McNealey, as well as
reviewing camera footage related to the incident. (Id.). Capt. Rooker determined the
force used was justified and acceptable to gain compliance from a noncompliant inmate.
Consequently, Capt. Rooker recommended that McNealey receive the appropriate
disciplinary charges for his actions. (Id.).
McNealey was charged with failure to obey a direct order of an Alabama
Department of Corrections (ADOC) Employee. (Doc. 19-1 at 8). On November 19,
2023, Lt. Sigler held a disciplinary hearing on the charges against McNealey. The
hearing was held in accordance with the ADOC regulation which governs inmate
disciplinary hearings. (Docs. 19-1 at 11; 19-3). At the hearing, McNealey was found
guilty of refusing the direct orders of Sgt. Shaw and continuing to behave in an irate and
disorderly manner. (Doc. 19-1 at 10). McNealey was sanctioned with extra duty, loss of
telephone privileges, and loss of visiting privileges for 30 days. (Doc. 19-1 at 10). Capt.
Rooker approved the Disciplinary Report and sanctions based on the documentation
presented, “which included all statements, the hearing officer’s findings, and the basis of
finding of fact.” (Docs. 19-1at 10; 19-2 at 3).
III. Legal Analysis
McNealey has brought claims against Defendants, pursuant to § 1983, for
violations of his Eighth and Fourteenth Amendment rights. He claims that Sgt. Shaw
used excessive physical force against him “for no good cause and arbitrarily wrote [him]
a disciplinary to shield the violation and refused the required body chart.” (Doc. 1 at 5).
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He further claims that Lt. Sigler and Capt. Rooker conspired with Sgt. Shaw to bring
disciplinary charges against him without evidence to support the charge. (Id. at 5-6).
A. Immunity Defenses
To the extent McNealey is proceeding against the correctional officer defendants
in their official capacities, those claims fail. 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 (1985)). Accordingly, the correctional officer defendants in this action, all of whom
were employed by the State of Alabama Department of Corrections at the time of the
incidents alleged in the complaint, are immune from suit in their official capacities. See
Parker v. Williams, 862 F.2d 1471, 1476 n.4 (11th Cir. 1989), overruled on other
grounds in Turquitt v. Jefferson Cnty., 137 F.3d 1285 (11th Cir. 1998). Thus, the officer
defendants, in their official capacities, are entitled to summary judgment as a matter of
law.
“Qualified immunity protects government officials performing discretionary
functions from suits in their individual capacities unless their conduct violates ‘clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v.
Pelzer, 536 U.S. 730, 739 (2002)). While there is no doubt that Defendants were acting
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within their discretionary authority at all times when the acts in question occurred, the
Eleventh Circuit has made clear that the defense of qualified immunity “is not available
in cases alleging excessive force in violation of the Eighth Amendment, because the
use of force ‘maliciously and sadistically to cause harm’ is clearly established to be a
violation of the Constitution by the Supreme Court decisions in Hudson and Whitley.”
Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002) (citation omitted); see also
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (holding that qualified immunity does not
extend to an officer who “knew or reasonably should have known that the action he took
within his sphere of official responsibility would violate the constitutional rights of the
[plaintiff]”) (internal quotation marks omitted and alteration in original). As to the
remaining claims, Defendants are entitled to qualified immunity unless McNealey can
show that their conduct violated a clearly established statutory or constitutional right of
which a reasonable person would have known. See Belcher v. City of Foley, Ala., 30
F.3d 1390, 1395 (11th Cir. 1994).
B. Claims Under 42 U.S.C. § 1983
Plaintiff brings this action under 42 U.S.C. § 1983. “In order for a plaintiff to
establish a claim under 42 U.S.C. § 1983, he must prove (1) a violation of a
constitutional right, and (2) that the alleged violation was committed by a person acting
under the color of state law.” Martinez v. Burns, 459 F. App'x 849, 850-851 (11th Cir.
2012) (citing Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005)). There is no
dispute that the named defendants, as employees of the Alabama Department of
Corrections, are state actors for purposes of this action. Thus, to establish his asserted
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claims, Plaintiff must establish that each Defendant, personally, acted to deprive him of
a constitutional right.
1. Excessive Force under the Eighth Amendment
The Eighth Amendment's prohibition against cruel and unusual punishment, U.S.
Const. amend. VIII, governs the use of force by prison officials against convicted
inmates. Campbell v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999). To establish an
Eighth Amendment excessive force claim against Sgt. Shaw, McNealey must prove
both an objective and subjective component. That is, he must show that the alleged
wrongdoing was objectively “harmful enough” to establish a constitutional violation and
that Sgt. Shaw “act[ed] with a sufficiently culpable state of mind; i.e., that [he] acted
maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992)
(citations omitted); see also Lumley v. City of Dade City, Fla., 327 F.3d 1186, 1196
(11th Cir. 2003) (to satisfy the objective component, the plaintiff must show the
complained of conduct “shocks the conscience”). Both inquiries are contextual, and “the
objective harm inquiry is responsive to contemporary standards.” Thomas v. Bryant, 614
F.3d 1288, 1304 (11th Cir. 2010). Thus, not every “malevolent touch” by a prison guard
amounts to excessive force; a de minimis use of force is not cognizable under the
Eighth Amendment “provided that the use of force is not a sort repugnant to the
conscience of mankind.” See Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (quotation
marks omitted).
“[W]here a prison security measure is undertaken to resolve a disturbance . . .
that indisputably poses significant risks to the safety of inmates and prison staff, . . . the
question of whether the measure taken inflicted unnecessary and wanton pain and
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suffering ultimately turns on whether the force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for the very purpose of
causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986); see also Skrtich v.
Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002). Factors relevant to this determination
include the “need for the application of force, the relationship between that need and the
amount of force used, the threat reasonably perceived by the responsible officials, and
any efforts made to temper the severity of a forceful response.” Skrtich, 280 F.3d at
1300. The absence of injury is “one factor that may suggest ‘whether the use of force
could plausibly have been thought necessary’ in a particular situation.” Hudson, 503
U.S. at 7 (quoting Whitley, 475 U.S. at 321). “The extent of injury may also provide
some indication of the amount of force applied.” Wilkins, 559 U.S. at 37. Once the need
for force ceases, any continued force applied can constitute an Eighth Amendment
violation. Williams v. Burton, 943 F.2d 1572, 1576 (11th Cir. 1991). When considering
these factors, courts afford “a wide range of deference to prison officials acting to
preserve discipline and security, including when considering decisions made at the
scene of a disturbance.” Fennell v. Gilstrap, 559 F. 3d 1212, 1217 (11th Cir. 2009)
(quotation marks omitted).
Here, the only facts asserted by McNealey in support of the blanket statement in
his complaint that Sgt. Shaw “used excessive physical force upon [his] person for no
good cause ...” is his November 12, 2023 written account of the incident in which he
stated: “Sgt. Shaw grabbed me on my arm [and] spent [sic] me around [and] told me to
go to the shift office.” (Doc. 19-1 at 5). McNealey has not disputed or recanted this
statement, nor has he offered any additional evidence of force. While McNealey claims
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he was denied a body chart following the incident, he makes no allegations that he was
harmed in any way - no pain, no bruises, no scratches. When McNealey did receive a
body chart four days after the incident, no visible markings were found on his right arm
or anywhere on his body. See Doc. 19-1 at 6; Cf. Wilkins v. Gaddy, 559 U.S. at 36-38
(recognizing that courts are to look to the force used, not merely the sustained injury,
but also noting that “[a]n inmate who complains of a push or shove that causes no
discernible injury almost certainly fails to state a valid excessive force claim.”). Neither
does McNealey dispute that the force was used to stop him from entering the prison
dorms and TV rooms to loudly inquire about his missing clippers.
Under these circumstances, the force used is simply insufficient to rise to the
level of a constitutional violation, as it “is not of a sort repugnant to the conscience of
mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992); see also Fowler v. Hodge, 94
F. App'x 710, 713 (10th Cir. 2004) (grabbing of inmate’s arm to change direction,
twisting his back and causing him pain “do[es] not create a triable case under the Eighth
Amendment”); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (inmate’s
allegations “that he was bumped, grabbed, elbowed, and pushed” were “not sufficiently
serious or harmful to reach constitutional dimensions”). Furthermore, the force was
clearly used in an “effort to maintain or restore discipline,” Hudson, 503 U.S. at 7, and
stopped as soon as McNealey followed the direct order given by Sgt. Shaw.
Accordingly, McNealey has failed to carry his burden of establishing that
excessive force was used against him in violation of the Eighth Amendment.
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2. Conspiracy under § 1983
To establish a conspiracy claim under § 1983, a plaintiff must prove a
conspiratorial agreement between the defendants and the violation of a constitutional
right. McNealey claims that his constitutional rights were violated when a false
disciplinary was brought against him by Sgt. Shaw to cover up the excessive force used
against him and when Lt. Sigler and Capt. Rooker conspired to support the allegedly
false report. However, even if true, McNealey “does not have a constitutionally
protected right not to be ‘falsely or wrongly accused’ of a disciplinary infraction.” Hunter
v. Breining, Civil Action 22-00146-JB-B, 2023 WL 2173195, at * 4 (S.D. Ala. Jan. 24,
2023) (citing Freeman v. Rideout, 808 F.2d 949, 951 (7th Cir.), cert. denied, 485 U.S.
982 (1988)). “Rather, the right a prisoner possesses is not to be denied a liberty interest
without due process,” such as the hearing that an inmate receives on those charges. Id.
“To state a claim for violation of due process, a plaintiff must allege facts showing
‘(1) a deprivation of a constitutionally-protected liberty or property interest; (2) state
action; and (3) constitutionally-inadequate process.’” Roller v. Holloway, No. 22-12012,
2023 WL 142396, at *3 (11th Cir. Jan. 10, 2023) (quoting Arrington v. Helms, 438 F.3d
1336, 1347 (11th Cir. 2006). “In the context of prison disciplinary proceedings, a prisoner
has no liberty interest to which due process attaches unless he can demonstrate that he
suffered an ‘atypical and significant hardship ... in relation to the ordinary incidents of
prison life.’” Id. (quoting Sandin v. Conner, 515 U.S. 472, 484-86 (1995)).
In this case, the finding of guilt at McNealey’s disciplinary hearing resulted in
extra duty for 30 days at 2 hours per day under Supervision 1st shift, the loss of
telephone privileges for thirty (30) days, and the loss of visitation privileges for thirty (30)
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days. (Doc. 19-1 at 10). These consequences do not impose any “atypical and
significant hardship on [him] in relation to the ordinary incidents of prison life.” See
Sandin, 515 U.S. at 484. “[T]he withdrawal of incentives or privileges has been found
not to implicate liberty interests.” Hunter, 2023 WL 2173195, at * 3; see also Charriez v.
Sec’y, Fla. Dep’t of Corrs., 596 F. App’x 890, 894 (11th Cir. 2015) (finding that a one-
year loss of visitation privileges did not implicate a state-created liberty interest as no
right to unfettered visitation exists); Walker v. Loman, 2006 WL 3327663, at *1, 3 (M.D.
Ala. 2006) (holding that ninety-day loss of store, telephone, and visitation privileges,
recommended custody increase, and referral for possible free-world prosecution did not
result in the deprivation of a liberty interest). “In addition, Alabama state courts have
determined a prisoner does not have a state-created liberty interest in store, telephone
and visitation privileges, Dumas v. State, 675 So. 2d 87, 88 (Ala. Crim. App. 1995), or in
being required to perform extra work, Summerford v. State, 466 So 2d 182, 185 (Ala.
Crim. App. 1985).” Hunter, 2023 WL 2173195, at * 3. Therefore, because no liberty
interest was implicated by the discipline imposed, McNealey was not entitled to receive
due process as outlined in Wolff v. McDonnell, 418 U.S. 539 (1974), and accordingly,
no constitutional violation can be proven.
The Court notes, that in this case, McNealey did, however, receive a hearing that
provided the minimum due process protections set forth in Wolff v. McDonnell, 418 U.S.
539 (1974). Review of the record confirms, and McNealey does not dispute, that:
• he was served with notice of the disciplinary hearing;
• another officer who was not directly involved in the underlying charge was
appointed to be the hearing officer;
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• he was present for the hearing and was given the opportunity to present
his own testimony;
• he was given the opportunity, though he declined, to summon witnesses;
and
• he was given the opportunity, though he declined, to question the
arresting officer.
(See Doc. 19-1 at 8-11).
Consequently, McNealey has failed to establish a constitutional violation related
to the disciplinary charges brought against him and, accordingly, Defendants, in their
individual capacities, are entitled to qualified immunity on the conspiracy claim brought
by McNealy.
IV. Conclusion
Based on the foregoing, the undersigned Magistrate Judge 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 asserted by Plaintiff McNealey.
Therefore, it is RECOMMENDED that Defendants’ motion for summary judgment be
GRANTED and that Plaintiff McNealey’s action against Defendants Sergeant Calvin
Shaw, Lieutenant Ronald Sigler, and Captain Gretchen Rooker 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
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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. 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 the 20th day of November, 2024.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE
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