Carstarphen v. Reynolds et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANDRE MAURICE 	)
CARSTARPHEN, JR. 	)
)
Plaintiff, 	)
)
vs. 	) 	CIV. ACTION NO. 1:24-0007-KD-N
)
LEVEL REYNOLDS, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff Andre Maurice Carstarphen, Jr., filed this action, without an attorney (pro se),
under 42 U.S.C. § 1983, alleging violations of his constitutional rights during his confinement at
Mobile County Metro Jail (“Metro Jail” or “the Jail”). After initial review of the complaint and
amended complaints (Docs. 1, 5, 11, 14, 15), Carstarphen was allowed to continue with claims
against Defendants Warden Noah Price Oliver, Sergeant Donnell Carter, Officer Quedarius
Brown, Lieutenant Level Reynolds, and Dr. Ronald Perdue for alleged constitutional violations
related to incidents which occurred on December 9, 2022 and July 17, 2023.
This action 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). Before the Court is the motion for
summary judgment of Defendants Noah Price Oliver, Sergeant Donnell Carter, Officer
Quedarius Brown, and Dr. Ronald Perdue (Doc. 49) 1 and Plaintiff’s responses thereto (Docs. 50,
51). For the reasons discussed herein, it is RECOMMENDED that this motion be GRANTED,
in part, and DENIED, in part.
1 	Defendant Lieutenant Level Reynolds, however, has yet to be served with the complaint
and is not a party to the motion for summary judgment.
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Additionally, Plaintiff is hereby placed on Notice by the filing of this Report and
Recommendation of the Court’s intention to recommend the granting of summary judgment for
Defendant Lieutenant Level Reynolds, pursuant to Fed. R. Civ. P. 56(f)(3).
I. 	BACKGROUND AND COMPLAINT ALLEGATIONS.
Carstarphen alleges in his complaint that on December 9, 2022, while housed at Metro
Jail, Inmate Rodrick Lee “ran inside [his] assigned cell and jumped [him]” and “there was no
officer to stop the fight.” Doc. 15, PageID.125. Carstarphen claims he suffered a herniated disc
in his neck and a skull fracture and was refused medical care by Dr. Perdue, including missing
two follow up appointments at USA Medical Center for his injuries and a follow up appointment
in April 2023, which caused his neck to be “permanently crooked,” Id., PageID.125-26. He
further challenges that Dr. Perdue took away his neck brace and released from the Jail infirmary
before he was fully healed and that Lieutenant Level Reynolds (knowing the lack of security in
general population) told doctors and nurses to put him back in general population. Id.,
PageID.126-27. Carstarphen alleges he is “mess[ed] up forever” because Dr. Perdue took away
his neck brace too soon and that he lives in pain because Dr. Perdue stopped his pain medication.
Id., 125-26. He further claims that Lt. Reynolds did nothing about the inmate attack incident,
“not so much as a report,” despite that Plaintiff informed Detective Henderson that he wanted to
press charges against the attacker(s). Id.; PageID.125.
Carstarphen further claims, on July 17, 2023, excessive force was used against him after
Correctional Officer Brown and Sergeant Carter entered his cell (along with other unnamed
officers) and informed him that he was being “re-housed.” Id., PageID.126. Plaintiff was
informed to pack his things. Id. Carstarphen claims while packing his belongings, Sergeant
Carter ordered Officer Brown to tase him with electric shock gloves until Carstarphen screamed
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in pain and agony. Id. Officer Brown “taunted” Carstarphen saying he “screamed like a girl.” Id.
Carstarphen claims he was unable to defend himself because he was handcuffed to the back. Id.
Carstarphen alleges no body chart was performed following the incident nor did he receive any
medical attention. Id.
Carstarphen is suing Warden Noah Price for the lack of security at the jail, the excessive
force against him, and denial of medical care. He is suing Sgt. Carter and Officer Brown for
using excessive force against him. And he is suing Dr. Perdue for denying him medical care,
denying him follow up appointments with outside providers for his injured neck, taking away his
cervical collar, transferring him to general population, and for stopping his pain medication.
Carstarphen seeks monetary damages in the amount of one million dollars and requests
prescription pain medication. Id., PageID.129.
In response to Carstarphen’s complaint, Defendants Warden Noah Price Oliver, Sergeant
Donnell Carter, Officer Quedarius Brown, and Dr. Ronald Perdue filed answers, special reports,
and exhibits. See Docs. 38, 40, 41, 44. Because Dr. Perdue requested that his special report be
treated as a motion for summary judgment, see Doc. 41, PageID55-56, and based on the record
before the Court, the undersigned converted the answers, special reports, and exhibits of
Defendants to a motion for summary judgment, see Doc. 49, and Carstarphen responded in
opposition. See Docs. 50, 51. This motion is now ripe for consideration.
II. 	SUMMARY JUDGMENT STANDARD.
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 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
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long as there is ‘no genuine issue of material fact.’”) (emphasis in original) (citation omitted).
“An issue of fact is ‘material’ if it might affect the outcome of the suit under governing law and
it is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir.
2013) (quotations omitted). “As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden by
presenting evidence showing there is no dispute of material fact, or by showing or pointing out to
the district court that the nonmoving party has failed to present evidence in support of some
element of its case on which it bears the ultimate burden of proof. Id. at 322-24.
Once the moving party has met its burden, “the burden shifts to the nonmoving party to
show that specific facts exist that raise a genuine issue for trial.” Dietz v. Smithkline Beecham
Corp., 598 F.3d 812, 815 (11th Cir. 2010). This requires the nonmovant to “either point to
evidence in the record,” Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994), or “to go
beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 F. Supp. 2d 1286,
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1290 (S.D. Ala. 2013) (citing Celotex, 477 U.S. at 324); see also Fed. R. Civ. P. 56(e). The
nonmoving party “must do more than show that there is some metaphysical doubt as to the
material facts.” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574
(1986). At the same time, “the evidence of the nonmovant must be believed and all justifiable
inferences must be drawn in its favor.” Id.
The requirement to view the facts in favor of the nonmoving party extends only to
“genuine” disputes over material facts. Garczynski, 573 F.3d at 1165. “A genuine dispute
requires more than ‘some metaphysical doubt as to material facts.’” Id. (citations omitted). A
“mere scintilla” of evidence is insufficient; the nonmoving party must produce substantial
evidence in order to defeat a motion for summary judgment. Id. 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. v. Dunmar Corp., 43 F.3d
587, 599 (11th Cir. 1995). More importantly, 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 v. Harris, 550 U.S. 372, 380 (2007).
III. 	DISCUSSION AND ANALYSIS.
1. 	Claims Related to December 9, 2022 Inmate Attack
The record clearly supports Carstarphen’s claim that he was attacked by Inmate Roderick
Lee on December 9, 2022. Doc. 38-7. It also supports his claim that no officer was present at the
time of the attack. Id. It further supports his claim that he suffered a frontal sinus fracture and
was ambulanced to USA Medical for treatment. Doc. 41-2, PageID.448-50. However, belied by
the record are Carstarphen’s allegations that nothing was done about the attack, that he suffered a
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herniated disc or a “slipped disc” in his neck, and that Dr. Perdue was deliberately indifferent to
his medical needs by taking away his cervical collar, transferring him from the medical wedge to
general population, denying him follow up appointments with outside providers, and denying
him pain medication.
A. 	Response to the Inmate Attack
To start, Defendants have shown that following the December 9, 2022 inmate attack, a
disciplinary action was initiated; however, after Carstarphen stated that he could not remember
the incident, the disciplinary hearing was concluded. See Doc. 38-8. Thereafter, Deputy
Henderson investigated the incident, resulting in the issuance of a signed warrant for Assault 2nd
degree on Roderick Lee in violation of Ala. Code § 13A-6-21. Doc. 38-9, PageID.217-18. The
warrant, however, was redacted by the Mobile County District Attorney’s Office on February 17,
2023, after it was reported that Inmate Lee died in state custody on January 27, 2023. See Doc.
38, PageID.188. Carstarphen has not put forth any evidence to that show that a genuine issue of
material fact exists as to the actions taken in response to the attack. Accordingly, Carstarphen
has failed to carry his burden of showing there exists an issue for trial as to his claim that
“nothing [was done] about this incident not as so much as a report.” Doc. 15, PageID.125.
B. 	Medical Care Received Following the Inmate Attack
Carstarphen’s claims against Dr. Perdue rise and fall on his assertion that he suffers from
a herniated disc. He does not. Because he does not, and for the reasons explained herein, Dr.
Perdue is entitled to summary judgment on the claims asserted against him.
The record demonstrates that Carstarphen received extensive care for his injuries
following the December 9, 2022 inmate attack, starting with Dr. Perdue’s immediate evaluation
and ambulance transfer to USA Medical for treatment, where CT scans confirmed that
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Carstarphen suffered a frontal sinus fracture, but a “normal” cervical spine, no numbness,
tingling, or weakness, no abrasions or hemorrhages, and no neurological deficits. Doc. 41-2,
PageID.450, 452-63. Based on complaints of neck pain, Carstarphen was placed in a cervical
collar (with instructions to keep the collar on until he followed up with neurosurgery in two to
four weeks) and returned to the Jail the same day, id., PageID.399, 450, where he was placed in
the medical unit.2 Id., PageID.473. Upon examination on December 13, 2022, Dr. Perdue
scheduled Carstarphen for the neurology follow up requested by USA Medical Emergency
Department,3 and increased Carstarphen’s pain medicine from Tylenol to Tylenol #3 for a period
of ten (10) days, until December 22, 2022 due to his complaints of pain. See Docs. 41-1;
PageID.293-94; 41-2, PageID.334-36, 339, 451. Because Tylenol #3 contains codeine (an opioid
painkiller) and carries a risk of dependence/addiction, dizziness, and increased falls, Dr. Perdue
testified it is not meant for long-term use, and he did not refill Carstarphen’s prescription for it
passed the typical 7–10-day period. Doc. 41-2; PageID.399. Carstarphen was, instead, provided
Ibuprofen 600mg, twice a day, and on December 31, 2022, Dr. Perdue changed Carstarphen’s
pain medication to Tylenol 325mg, twice a day, because it has less gastric issues with long-term
use than Ibuprofen. Id.; PageID.317, 338; see also Doc. 41-1; PageID.295. When Carstarphen
2 	The record reflects that Carstarphen was initially housed in the clinical observation unit
where he received close monitoring and neurologic checks. Doc. 41-1; PageID.291-93. Dr.
Perdue testified that the clinical observation unit serves inmates who require a higher level of
care and functions as a solitary confinement unit for inmates with medical conditions that need
additional monitoring. Doc. 41-1; PageID.291. Carstarphen was moved to the less restrictive
“medical wedge” on December 13, 2022. Docs. 41-1; PageID.291-93; 41-2, PageID.161.
3 	Dr. Perdue testified that such offsite visits “require significant coordination between the
medical providers, the jail staff, and the offsite providers,” but by the time he next saw
Carstarphen on December 29, 2022, the neurology appointment had been scheduled; however,
Carstarphen, as an inmate, was not allowed to know the exact date of his follow up due to
security concerns. Doc. 41-1; PageID.294-95.
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continued to complain of pain,4 Dr. Perdue (on January 6, 2023) prescribed Naproxen 500mg,
twice a day, id., PageID.317, 339-340, and then (on January 23, 2023) prescribed Meloxicam
7.5mg, twice a day. Id., PageID.317, 340-68. Dr. Perdue testified that Naproxen and Meloxicam
are the strongest non-narcotic pain medications to which he had access. Doc. 41-1; PageID.296.
Thereafter, on February 14, 2023, Carstarphen was prescribed Tizanidine (a muscle relaxer)
4mg, once at night, in addition to Meloxicam. Doc. 41-2, PageID.317.
On February 23, 2023,5 Carstarphen followed up with a USA Medical neurologist, who
determined Carstarphen had “[no] red flag symptoms which would warrant immediate
intervention;” however, due to complaints of neck and radiating pain (including tingling and
numbness of his left arm and the inability to stand/walk for long periods),6 history of trauma, and
physical exam showing abnormal reflexes, the neurologist made the following prescription
recommendations: (1) “NSAID + Tylenol for pain,” (2) gabapentin 300 BID vs Lyrica or
comparable for nerve pain,” (3) “muscle relaxer (methocarbamol 750mg, tizanidine 4mg, or
cyclobenzaprine 10mg)” and further “recommend[ed] ASAP MRI cervical spine (non-contrast)
4 	Carstarphen complained of neck pain on December 27 and 31, 2022; January 11, 17, 19,
and 23, 2023; and February 3, 8, 14, and 20, 2023. Doc. 41-2; PageID.399, 482-86, 487; Doc.
41-3, PageID.653-54.
5 	To the extent Carstarphen challenges any delay in obtaining this follow up appointment,
Carstarphen has failed to establish a constitutional violation. In determining whether delay in
medical treatment constitutes deliberate indifference, courts consider the seriousness of the
medical need, whether delay worsened the medical condition, and the reasons for the delay.
Farrow v. West, 320 F.3d 1235, 1247 (11th Cir. 2003). Additionally, a complaining plaintiff
“must place verifying medical evidence in the record” establishing the detrimental effect caused
by the delay. Surber v. Dixie Cty. Jail, 206 F. App'x 931, 933 (11th Cir. 2006) (internal citation
omitted). Carstarphen has placed no such evidence into the record, nor does the medical record
contain evidence which demonstrates that any delay in appointments caused any detrimental
effect to Carstarphen. Id.
6 	Dr. Perdue testifies, and the record supports, that these complaints were “never voiced to
[Dr. Perdue] by Mr. Carstarphen . . . and were contrary to [Dr. Perdue’s] observations of Mr.
Carstarphen in the Jail.” Doc. 41-1, PageID.297.
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and prompt follow up with USA Neurology.” Doc. 41-2, PageID.496-501, 503. Additionally,
despite having no known fractures, Carstarphen reported continuing to wear the cervical collar
because “he [was] scared to take it off due to severe pain,” so the neurologist noted that
Carstarphen “[would] remain in collar until further notice.” Id., PageID.497. Upon return to the
Jail, Dr. Perdue reviewed the neurologist’s plan and recommendations, ordered an MRI for
Carstarphen, and continued his prescriptions for Meloxicam (a NSAID) and Tizanidine (a
muscle relaxer). See Doc. 41-3, PageID.652-53. The record reflects that Carstarphen was in no
acute distress and the plan was for Carstarphen to continue his current treatment of pain
medication and wearing the cervical collar. Id.; see also Doc. 41-2; PageID.317. Notably, this
was the last time Dr. Perdue examined Carstarphen.
Carstarphen returned to USA Medical for an MRI scan on March 10, 2023. No follow-
up instructions were provided at that time. Docs. 41-2; PageID.507; 41-3, PageID.652. On
March 15, 2023, without having received the MRI results, Dr. Schulte examined Carstarphen
(who was not wearing his cervical collar because he was told he could remove it for washing)
and found his upper extremity strength to be normal (though Dr. Schulte noted that Carstarphen
did not appear to be giving full effort) and his leg and arm reflexes were noted as bilaterally
equal and brisk. Doc.41-3, PageID.652. Due to Carstarphen’s complaints of pain, Dr. Schulte
added Tylenol as a pain reliever to Carstarphen’s current prescriptions for Meloxicam and
Tizanidine (prescribed from March 15 through April 13, 2023). Id., PageID.317, 346.
On March 19, 2023, Dr. Perdue contends, and Carstarphen directly disputes, that
Carstarphen requested to be moved out of the medical wedge. Compare Doc. 41-3; PageID.651
(nursing notes of Derek Rushing, RN); Doc. 41-4; PageID.681 (affidavit of Nurse Derek
Rushing) to Doc. 46; PageID.740 (Carstarphen’s response to summary judgment). Dr. Perdue
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contends, and Carstarphen has not disputed, that correctional staff reported that he was starting
fights in the medical wedge. Docs. 41-3, PageID.651; 41-4; PageID.681.
The Jail received the results of the MRI on March 20 and 21, 2023; the imaging revealed
degenerative disc changes with a “small disc bulge at C5-C6” but showed no fracture or
herniated disc, no cord signal abnormalities, and no marrow replacement process.7 Doc. 41-2,
PageID.505, 509-12. Dr. Perdue testified that the disc change noted on Carstarphen’s MRI
represents normal, often age-related deterioration due to wear and tear and is “not an emergent
medical condition that if left unattended poses a substantial risk of serious harm” and is normally
treated with “anti-inflammatory drugs, muscle relaxing drugs, and lifestyle modifications
(including exercise and stretching).” Doc. 41-1; PageID.300. Dr. Perdue also testified to the
stark differences in a disc bulge versus a herniated disc. See Id.; PageID.299-300.
Thereafter, in “early April 2023,” Carstarphen was transferred from the medical wedge to
general population. Docs. 41-1; PageID.301; 41-5; PageID.690. It is unclear from the record
who is responsible for the transfer. Dr. Perdue testifies that he “was not involved in th[e]
transfer,” Doc. 41-1; PageID.301, and more directly, that he “did not transfer Mr. Carstarphen
out of the medical wedge, id., PageID.313, and Dr. Schulte (nonparty) testifies, “[i]t is my
7 	Specifically, the MRI report states:
CT-C3: No spinal canal narrowing or neuroforaminal narrowing
C3-C4: Mild facet hypertrophy without spinal canal narrowing or neuroforaminal
narrowing
C4-C5: Mild fact change with small disc bulge. No significant neuroforaminal
narrowing
C5-C6: Disc desiccation with posterior disc bulge. Mild neuroforaminal narrowing
without significant canal narrowing.
C6-C7 and C7-T1: show no spinal canal narrowing or neuroforaminal narrowing.
Doc. 41-2, PageID.505.
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understanding that Mr. Carstarphen was transferred from the medical wedge to general
population in early April 2023” Doc. 41-5; PageID.690, implying that he was not responsible for
move. Both doctors affirm, however, that there was no medical indication for Carstarphen to
remain in the medical wedge because the MRI indicated no fracture that would necessitate the
continued wearing of a cervical collar or medical monitoring. See Docs. 41-1, PageID.302; 41-5,
PageID.690. Indeed, the doctors testified that Carstarphen “had no legitimate medical reason to
remain in the cervical collar,” as “[n]eck pain is not an appropriate indication for wearing a
cervical collar,” and that “[f]rom a medical standpoint, Mr. Carstarphen needed to be using his
neck muscles and building up his neck strength to help with his pain – which he could not do if
he remained in the cervical collar.” Doc. 41-5; PageID.690. It is also clear from the record that
Carstarphen continued to receive pain medication upon his transfer to general population, with
Dr. Perdue prescribing the combination of Tizanidine 4 mg, once at night, and Meloxicam
7.5mg, twice a day on April 15 and April 23, respectively. Doc. 41-2; PageID.317.
The record shows that Dr. Perdue stopped working for NaphCare and at the Metro Jail on
April 26, 2023, Doc. 41-1; PageID.287, but Carstarphen continued to receive Tizanidine and
Tylenol until June 12, 2023, and Meloxicam until July 21, 2023. See Doc. 41-2; PageID.364,
368. After July 2023, the pain medications for Carstarphen’s neck stopped being administered,8
8 	It appears from the record after July 21, 2023, Carstarphen no longer received Meloxicam
or Tizanidine. See Doc. 41-2; PageID.369-92. Regarding the administration of pain medications
after July 21, 2023, the record reflects that Ibuprofen and Tylenol were provided to Carstarphen
from November 26 through 30, 2023, after he strained his arm while working out. Id.,
PageID.381-82; Doc. 41-3, PageID.573. On December 20, 2023, Carstarphen received a seven
(7) day prescription for Ibuprofen and Tylenol after his hand was injured in a fight. See Doc. 41-
3; PageID.584-85. For unknown reasons, from January 14 through 22, 2024, Carstarphen
received Ibuprofen and Tylenol (he did submit a grievance on December 28, 2023 with
complaints of severe pain in his neck, back, leg, and hand). Id., PageID.677; Doc. 41-2,
PageID.387-89. And from January 18 through 22, 2024, he was prescribed Ibuprofen (with
Tums) following complaints of chest pain. Doc. 41-3, PageID.589-93.
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id.; PageID.369-92, though he continued to receive abundant medical care from the nursing staff
and Dr. Schulte until he was transferred from Metro Jail on February 29, 2024. Doc. 41-3,
PageID.625. For instance, Carstarphen was seen multiple times for complaints of chest pain,
dental and neck pain, an annual exam, and after injuring his hand in two fights. See Doc. 41-3.
The record further supports that while Carstarphen received medical evaluations in response to
his submitted requests, he often refused the treatment or medication prescribed, for example:
• 	On July 15, 2023, Carstarphen was evaluated by Dr. Schulte, as he was “unhappy”
with the nurse’s opinion to continue Mobic and Tizanidine for his pain and demanded
to see a doctor. He stated he had a herniated cervical disc and had been told by USA
Medical that “he needs to wear a C collar. He notes with a C collar he would be
placed in medical wedge.” Doc. 41-3, PageID.649. Dr. Schulte reviewed the notes
from USA Medical and found “there was initial concern about a herniated disc but
this wasn’t found on an MRI. Neurosurgery at USA released him and their note stated
he could wear a C collar for comfort, but it wasn’t indicated.” Id. (cleaned up). Upon
examination, Dr. Schulte found no point tenderness of the neck, no upper and lower
extremity weakness, and symmetrical upper extremity musculature. Dr. Schulte
further noted, “I originally planned to place Carstarphen in medical wedge but
changed my mind due to observations of staff while he was in the holding cell out of
my line of vision.” Id. (cleaned up); see also Doc. 41-5, PageID.693-94 (Dr. Schulte’s
testimony of previous encounters with Carstarphen where he would “feign injury”).
• 	On October 4, 2023, Carstarphen was seen for complaints that his neck was
“bothering him and he would like to continue to wear a brace on his neck;” but when
he was offered “medications for pain[,] [] he declined.” Doc. 41-3, PageID.641.
• 	On November 17, 2023, Carstarphen was evaluated by the nursing staff, requesting
“to be placed back on neck brace” and stating that “his neck is hurting really bad and
it felt better when he had the brace.” Carstarphen’s previous MRI was reviewed, and
the nurse found “there was nothing that needed to be addressed surgically at that
point” and advised Carstarphen that a “neck brace will do more harm than good.” The
nurse further advised that she was “more than happy to prescribe Meloxicam and
Robaxin for his pain. But he stated that medication is not working well.” She
“advised that there was little she could do past medication to help him as the
recommendations also indicated this was the best course of action. Carstarphen
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declined meds and stated he doesn’t want to do that. He also states he is getting out in
a few weeks and will go see another doctor then.” Id., PageID.638 (cleaned up with
alterations for readability).
Despite these requests for the return of his cervical collar and stronger pain medications, Dr.
Perdue asserts, and the record reflects, that Carstarphen was involved in two inmate altercations,
where his hands were injured for fighting in July and December of 2023, see Doc. 41-3,
PageID.534, 584-86, 595, 648, and he reported in February 2024 that he “works out daily.” Id.,
PageID.633.
C. 	Deliberate Indifference to Health and Safety.
As a pretrial detainee, Carstarphen’s medical care claim falls under the Due Process
Clause of the Fourteenth Amendment. Nelson v. Tompkins, 89 F.4th 1289, 1296 (11th Cir. 2024).
The “minimum standard allowed by the due process clause is the same as that allowed by the
eighth amendment for convicted persons.” Id. (quoting Hamm v. DeKalb Cnty., 774 F.2d 1567,
1574 (11th Cir 1985)). To prevail on such a claim, an inmate must show that the official acted
with “deliberate indifference” – that is, the official knew of and disregarded an excessive risk to
the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). This standard
requires a plaintiff to meet both an objective and subjective component. Sims v. Mashburn, 25
F.3d 980 (11th Cir. 1994).
To meet the objective element required to demonstrate a denial of medical care, a
plaintiff first must demonstrate the existence of an “objectively serious medical need.” Farrow v.
West, 320 F.3d 1235, 1243 (11th Cir. 2003). A serious medical need is “‘one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor's attention.’” Id. (quoting Hill v. Dekalb Reg'l
Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), overruled in part on other grounds by
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Hope v. Pelzer, 536 U.S. 730, 739, (2002)). “In either of these situations, the medical need must
be one that, if left unattended, pos[es] a substantial risk of serious harm.” Id. (internal quotation
marks and citation omitted).
To meet the subjective requirement, a plaintiff must demonstrate “deliberate
indifference” to a serious medical need. Farrow, 320 F.3d at 1243. To demonstrate deliberate
indifference, the plaintiff must show that the defendant: (1) had subjective knowledge of a risk of
serious harm, (2) disregarded that risk, and (3) acted with more than negligence. Farmer, 511
U.S. at 826; see also Wade v. McDade, 67 F.4th 1363, 1371–72 (11th Cir. 2023) (collecting
cases discussing two different standards applied by the Eleventh Circuit - some panels have
applied a “more than mere negligence” standard while others have applied a “more than gross
negligence standard” which equates to a reckless disregard), reh'g en banc granted, opinion
vacated sub nom. No. 21-14275, 2023 WL 6613842 (11th Cir. Oct. 11, 2023).
Carstarphen has failed to establish either prong. Instead, his claims are more aptly read as
conclusory allegations that center on a disagreement in medical treatment. Claims such as these
are “tantamount to a medical judgment call,” not constitutional violations. McElligott v. Foley,
182 F.3d 1248,1295 (11th Cir. 1999). The law is clear, a plaintiff “has no constitutional right to
specific medical treatment on demand simply because he thinks he needs a certain procedure nor
does he have a constitutional right to be treated by a specific doctor, nurse, or other medical
personnel,” McLaughlin v. Darbouze, No., 2:04-cv-1028-MEF, 2007 WL 484550, at *5 (M.D.
Ala. Feb. 9, 2007) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“Society does not expect
that prisoners will have unqualified access to health care.”). The Eleventh Circuit has further
explained that “where a prisoner has received . . . medical attention and the dispute is over the
adequacy of the treatment, federal courts are generally reluctant to second guess medical
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judgment and to constitutionalize claims that are sound in tort law.” Hamm v. DeKalb Cnty., 774
F.2d 1567, 1575 (11th Cir. 1985) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (1st Cir.
1981)). Such is the case here, as Carstarphen challenges the length of time he was permitted to
wear his cervical collar, how long he was allowed to remain in the medical wedge, and the
adequacy of the medications he was prescribed. “The question of whether governmental actors
should have employed additional diagnostic techniques or forms of treatment is a classic
example of a matter for medical judgment and therefore not an appropriate basis for grounding
liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995)
(internal quotation marks and citations omitted); see also Brennan v. Thomas, 780 F. App’x 813,
821 (11th Cir. 2019) (recognizing that a mere “difference in medical opinion between the
prison’s medical staff and the inmate as to the latter’s diagnosis or course of treatment does not
support a claim of deliberate indifference”); Palazon v. Sec’y. for Dept. of Corr., 361 F. App’x
88, 89 (11th Cir. 2010) (“Merely accidental inadequacy, negligence in diagnosis or treatment, or
even medical malpractice actionable under state law” are insufficient to establish deliberate
indifference.); Blanchard v. White Cty. Det. Ctr. Staff, 262 F. App’x 959, 964 (11th Cir. 2008)
(holding that when a deliberate indifference claim turns on the quality of the treatment provided,
there is no constitutional deprivation if the medical care provided to the inmate is “minimally
adequate.”).
To start, Carstarphen does not dispute the care received by Dr. Perdue until he was
transferred from the medical wedge into general population in April 2023. However, the record
confirms that by April 2023, Carstarphen did not have an objectively serious medical need – as
the neurologist indicated on February 23, 2023 that Carstarphen was wearing his cervical collar
because he was afraid of pain from taking it off - not due to a medical reason or based on a
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physician’s orders, and the March 10, 2023 MRI report reflected that Carstarphen had no
fracture(s) or herniated disc(s) that would necessitate wearing a neck brace or being housed in a
healthcare unit. See Doc. 41-2, PageID.497, 505. Moreover, the record evidence suggests that
without a spinal fracture or herniated disc, wearing a cervical collar could cause Carstarphen
more harm than good. See Doc. 41-1; PageID.290; see also Doc. 41-3; PageID.638.
Furthermore, Dr. Perdue testified that a small disc bulge like the one found on Carstarphen’s
scan is a common finding in adults and is not one that poses a substantial risk of serious harm.
See Doc. 41-1; PageID.300. Accordingly, Dr. Perdue has carried his burden of showing that in
April 2023, because Carstarphen did not have an objectively serious medical need, namely a
herniated disc, the removal of his cervical collar and placement in general population did not
constitute deliberate indifference - regardless of who was responsible for making the decisions.
Similarly, Dr. Perdue is entitled to summary judgment on Carstarphen’s claim that he
was refused follow up appointments. The record demonstrates that Dr. Perdue obtained the
recommended follow ups for Carstarphen to be evaluated by a neurologist and taken for an MRI.
However, it does appear that Carstarphen never returned to the neurologist following the March
2023 MRI.9 Doc. 15; PageID.126 (Carstarphen claims “[he] had scheduled follow up
appointment [that] Dr. Perdue refused [him] of in April 2023.”). Notwithstanding, Carstarphen
has failed to show this amounted to a constitutional violation. As previously discussed, the MRI
imaging confirmed that Carstarphen did not have an objectively serious medical need.
Accordingly, no specialist treatment was warranted or necessary, and the denial of any such visit
9 	The record supports Carstarphen’s claim that he was to have a follow up appointment
with the neurologist following his MRI scan. The neurology notes from February 23, 2023
indicate that an MRI is recommend to check for a possible cervical disc herniation, and the notes
further reference having “the patient back to discuss” and recommend “prompt follow up with
USA Neurology.” Doc. 41-2, PageID.496, 503.
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cannot rise to the level of a constitutional violation. Moreover, Carstarphen has presented no
probative evidence or argument which demonstrates that Dr. Perdue in any way disregarded a
substantial risk to his health. Indeed, the record reflects that Carstarphen received significant
medical treatment; it was, arguably, just not the treatment he wanted. The law in this area is
clear, “[a] difference of opinion as to how a condition should be treated does not give rise to a
constitutional violation.” Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001); see also
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (It is insufficient to sustain a cause of
action under § 1983 for denial of medical care simply because the inmate did not receive the
medical treatment or attention he deemed appropriate.). Carstarphen has further failed to present
medical evidence that he suffered any detrimental effect because of Dr. Perdue’s actions or
inactions. And no evidence has been presented that the course of treatment taken by Dr. Perdue
was “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be
intolerable to the fundamental fairness.” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991)
(citation and internal quotation marks omitted). Consequently, Carstarphen’s unsubstantiated
opinion about the quality of medical care he received is insufficient to create a genuine issue, and
his failure to support his claim with medical evidence is fatal to it.
Additionally, to prevail on a Fourteenth Amendment claim of deliberate indifference to a
serious medical need, a plaintiff must show that the defendant was subjectively aware that his
own conduct put the plaintiff at a substantial risk of serious harm and failed to reasonably
respond to the risk, causing the plaintiff harm. See Wade v. McDade, 106 F.4th 1251, 1258, 1262
(11th Cir. 2024) (en banc). Here, Dr. Perdue’s testimony, that “[p]eople, both inside and outside
correctional facilities, live their lives with small bulging discs present – often without any
treatment or treatment that consists of exercise and anti-inflammatory drugs,” see Doc. 41-1;
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PageID.300, demonstrates a lack of subjective intent that negates a finding of deliberate
indifference as to denying further specialist visits, removing Carstarphen’s cervical collar, and
transferring him to general population.
Turning to Carstarphen’s claim that Dr. Perdue stopped his pain medications, courts have
found “turning a blind eye to a prisoner's complaints of readily treatable pain can constitute a[]
[constitutional] violation, even if the condition is not life–threatening and the failure to treat does
not exacerbate the condition.” Diaz v. Godinez, 693 F. App'x 440, 443 (7th Cir. 2017). Again, for
treatment or a lack of treatment to rise to a constitutional level, this Circuit requires showing care
“so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.” Harris, 941 F.2d at 1505. This can be shown by “a decision to take an
easier but less efficacious course of treatment” or by showing “care which is so cursory as to
amount to no treatment at all.” Hammonds v. Theakston, 833 F. App'x 295, 300 (11th Cir. 2020)
(internal citations and quotations omitted). Coupled with this, however, is the general rule that
an inmate’s disagreement regarding the propriety of his medical treatment by medical providers
is not actionable in under § 1983. See, e.g., Ross v. Corizon Med. Servs., 700 F. App'x 914, 916
(11th Cir. 2017) (“The failure to administer stronger medication is generally a medical judgment
that is not an appropriate basis for imposing liability.”). The record, here, supports that Dr.
Perdue evaluated Carstarphen’s complaints for pain and routinely provided medication to
alleviate his pain, for instance:
• 	Initially, Dr. Perdue increased Carstarphen’s medication to Tylenol #3 upon his
complaints of pain. Noting that this was not a long-term option, Dr. Perdue prescribed
other non-steroidal anti-inflammatory drugs (NSAID), including Ibuprofen, Tylenol, and
the strongest non-narcotic pain medications to which he had access - Naproxen and
Meloxicam. See Doc. 41-1, PagID.296. Thereafter, Dr. Purdue added a muscle relaxer
(Tizanidine) to the regimen. Doc. 41-3, PageID.653-54. Notably, these are the
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medications that were ultimately recommended by the neurologist on February 23, 2023.
See Doc. 41-2, PageID.503.
• 	At the time Carstarphen was released into general population, he was prescribed
Meloxicam 7.5mg, twice a day, Acetaminophen 500, twice a day, and Tizanidine 4mg,
once at night. See Doc. 41-2, PageID.350.
• 	Between April 3 and 14, 2023, (for unknown reasons) Carstarphen missed or refused 15
doses of Acetaminophen. See Doc. 41-2, PageID.350-52.
• 	On April 26, 2023, when Dr. Perdue stopped working at the Jail, Carstarphen was
receiving Meloxicam 7.5mg, twice a day, and Tizanidine 4mg, once at night. Id.,
PageID.353-54.
• 	Carstarphen did not make another complaint of pain until July 2023, when he was
evaluated for complaints of a herniated disc and requested stronger pain medicine and to
have his cervical collar back (because with his “C collar he would be placed in medical
wedge”). See Doc. 41-3, PageID.626, 649-50.
Contrary to Carstarphen’s allegations, the record confirms that while Dr. Perdue was a physician
at the Jail, he consistently responded to Carstarphen’s complaints of pain and prescribed him
pain medications. See Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982) (requiring “an
affirmative causal connection between the actions taken by a particular person . . . and the
constitutional deprivation” to state a § 1983 claim). Indeed, no evidence exists showing that Dr.
Perdue denied Carstarphen his cervical collar for a herniated disc or that Dr. Perdue stopped
Carstarphen’s pain medications. To establish that untreated or inadequately treated pain
constitutes a serious medical need under the Fourteenth Amendment, the “pain must be
objectively so severe that the failure to treat it deprives him ‘of the minimal civilized measure of
life’s necessities.’” Brennan v. Thomas, 780 F. App’x 813, 820-21 (11th Cir. 2019) (quoting
Farmer, 51 U.S. at 834). Such is not the case here, as the record demonstrates that Carstarphen is
able to stand, sit, walk, work out daily, and be physically active enough to be involved in
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altercations with other inmates, namely fist fights in July and December of 2023. See Doc. 41-3,
PageID.584-85, 595, 633, 648. Accordingly, Carstarphen’s claim against Dr. Perdue reflects, at
most, his disagreement with the medical treatment provided and falls short of establishing a
constitutional violation. Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985)
(holding that the mere fact an inmate desires a different mode of medical treatment does not
amount to deliberate indifference violative of the Constitution).
To the extent Carstarphen claims that removal of his neck brace “mess[ed] [him] up
forever,” caused his neck to be “permanently crooked,” or caused him to be in “constant pain
every day all night,” Doc. 15; PageID.126-27, Dr. Perdue is entitled to summary judgment.
Again, Dr. Perdue has shown that there was no objective reason for Carstarphen to wear a
cervical collar, and Carstarphen, fatally, has failed to put forth any medical evidence that his
neck is actually “messed up” or “permanently crooked.” Moreover, mere negligence or
malpractice cannot rise to a constitutional level.
Ordinary malpractice or simple negligence won't do; instead, the plaintiff must
show “subjective recklessness as used in the criminal law.” [Farmer, 511 U.S. at
839–40.] Indeed, even where “prison [or medical] officials . . . actually knew of a
substantial risk to inmate health or safety,” they may nonetheless “be found free
from liability if they responded reasonably to the risk”—and, importantly for
present purposes, “even if the harm ultimately was not averted.” [Id. at 844.]
Swain v. Junior, 961 F.3d 1276, 1285–86 (11th Cir. 2020). Accordingly, Carstarphen has not
identified any specific facts nor provided evidence that could create a triable jury issue on
whether the conduct of Dr. Perdue was deliberately indifferent to his medical needs. Although he
complains about not receiving appropriate treatment, nothing in the record evidence
demonstrates his condition, as of March 10, 2023, was a serious medical need that required
treatment by a specialist or that the course of treatment provided by Dr. Perdue presented a
substantial risk of serious harm to him but was pursued anyway. See Campbell v. Sikes, 69 F.3d
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1353, 1370 (11th Cir. 1999). Neither has Carstarphen presented evidence that Dr. Perdue was
subjectively aware of any serious medical condition and consciously disregarded the risk of
harm. Here, the record supports that Carstarphen received medical treatment, though he
disagrees with the care received. Monteleone v. Corizon, 686 F. App'x 655, 659–60 (11th Cir.
2017) (citation omitted) (holding that failing to use a more effective medication may have
constituted negligence but did “not rise to the level of deliberate indifference”). Further, no
evidence has been presented that the course of treatment undertaken by Dr. Perdue was “so
grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
the fundamental fairness.” Harris, 941 F.2d at 1505 (citation and internal quotation marks
omitted). Accordingly, Dr. Perdue is entitled to summary judgment on all claims asserted against
him.
2. 	Excessive Force Claims Related to July 17, 2023 Incident.
Defendants have submitted personal affidavits along with Officer Narrative Forms
detailing the July 17, 2023 incident which, contrary to Carstarphen’s allegations, indicate that the
force used against Carstarphen was necessary to gain compliance over him after he refused
repeated orders from officers. See Docs. 38-1 through 38-5 (The affidavits simply “certify” the
statements made in the attached “narratives” are “true and correct.”). According to the
Defendants, when Sgt. Carter and Officer Brown (as well nonparty officers James Norville,
Robert Portis, and Jimmie Webster) entered Carstarphen’s cell and ordered him to pack his
belongings, he refused. Doc. 38-2. Defendants claim they gave “several verbal commands” for
Carstarphen “to pack up his belongings,” but Carstarphen refused to obey and continued to sit on
his bunk, stating, “This is a no hands on facility and [] you all cannot put your hands on me,” and
told the officers, “if [they] put [their] hands on him he was going to notify his attorney and file a
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lawsuit.” Id. Sgt. Carter claims he “again gave [] Carstarphen [s]everal more verbal commands
to pack up his belongings in an attempt to prevent the situation from escalating so that we could
place him in handcuffs and rehouse him without any incident having to take place,” but
Carstarphen continued to sit on his bunk and refused to move. Id. Sgt. Carter instructed Officer
Holmes to place Carstarphen in handcuffs, but Carstarphen “snatched” his arms away, and
Brown and Norville used their taser gloves (for three seconds) to gain control of Carstarphen. Id.
Carstarphen was then escorted to his new location. Id. While being escorted, Defendants
contend Carstarphen made verbal threats to Officer Brown, stating “’I’m going to watch you. I’m
gonna be you best friend. I love you. And ‘My name rings bells, just you watch.’” Doc. 38-3;
PageID.200. Defendants contend Carstarphen ignored the offer for medical attention and
“remained fixated on [Officer] Brown.” Id.; see also Doc. 38-5.
Carstarphen’s excessive force claim is analyzed under the Fourteenth Amendment, which
“protects a pretrial detainee from the use of excessive force that amounts to punishment.”
Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). To state an excessive force claim, a pretrial
detainee must show only that the force “purposely or knowingly used against him was
objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389 (2015). The standard for
assessing a pretrial detainee's excessive force claim is “solely an objective one.” Id. Whether
conduct is considered objectively reasonable turns on the “facts and circumstances of each
particular case. Id. at 397 (citing Graham, 490 U.S. at 396). As Kingsley instructs:
A court must make this determination from the perspective of a reasonable officer
on the scene, including what the officer knew at the time, not with the 20/20 vision
of hindsight. See ibid. A court must also account for the “legitimate interests that
stem from [the government's] need to manage the facility in which the individual is
detained,” appropriately deferring to “policies and practices that in th[e] judgment”
of jail officials “are needed to preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 540, 547, 99 S. Ct. 1861, 60
L. Ed. 2d 447 (1979).
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Id. at 397. Kingsley provides six non-exclusive factors for determining whether force is
considered reasonable (or not), including: (1) the relationship between the need for the use of
force and the amount of force used, (2) the extent of the plaintiff's injury, (3) efforts made by the
officer to temper or to limit the amount of force, (4) the severity of the security problem at issue,
(5) the threat reasonably perceived by the officer, and (6) whether the plaintiff was actively
resisting. 576 U.S. at 397. Key in analyzing the reasonableness of force under the Fourteenth
Amendment is whether a plaintiff is actively resisting, id. at 397, which Defendants assert here.
Carstarphen, however, has filed a sworn-to narrative in response to Defendants’ motion which
directly disputes their claim, as he states:
As Sgt. Donnell Carter informed me to pack up my belongings, I did. While packing
up my property Carter made his officer apply excessive force for no reason each
officer shocked me relentlessly until I wasn’t able to pick myself up. I did not
become violent period at all with either officer; rather I was taunted by Q Brown
you scream like a girl. Do you recall that? Due to my medical history, these officers
had no right to put their hands on me they all shocked me because Carter told them
to. . . . I told Sgt. Carter I was going to sue if he laid his hands on me but I didn’t
refuse to obey his orders. He just insisted on tasing me to prove his superior
authority over me. This is the honest God truth. Norville, Brown, Holmes, Webster,
and Portis applied excessive unnecessary force because I said I would sue if they
touched me, and they did, and I wrote them up. This is not a hands-on facility.
Therefore, they are in violation of my constitutional rights and should be held
accountable for their actions.
Doc. 51, PageID.768 (cleaned up). Carstarphen’s response makes it impossible at this juncture
for the Court to determine the reasonableness of Defendants’ actions. “[W]hen conflicts arise
between the facts evidenced by the parties,” the court must “credit the nonmoving party's
version.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (emphasis omitted); see also
Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019) (holding a verified complaint must be
treated as testimony for purposes of summary judgment); Feliciano v. City of Miami Beach, 707
F.3d 1244, 1253 (11th Cir. 2013) (Courts “routinely and properly deny summary judgment on
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the basis of a party's sworn testimony even though it is self-serving.”) (quoting Price v. Time,
Inc., 416 F.3d 1327, 1345 (11th Cir.), as modified on denial of reh'g, 425 F.3d 1292 (11th Cir.
2005)). The Court pauses to note that despite Defendants assertion that Carstarphen repeatedly
refused to obey their orders, the record is void of any disciplinary charge or hearing report that
generally follows a rules violation for insubordination or disobeying orders. Cf., O’Bryant v.
Finch, 637 F.3d 1207 (11th Cir. 2011) (plaintiff’s version of the event was not credited where it
conflicted with a disciplinary panel’s decision). Additionally, Carstarphen claims to have
“written up” officers following the incident, yet Defendants have produced no such grievance or
denied the same. Insomuch as the Court is presented with conflicting sworn statements of the
parties, summary judgment may not be granted at this time.
At the summary judgment stage, the “court must draw all reasonable inferences in favor
of the nonmoving party, and it may not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted).
Credibility determinations and the weighing of evidence are the functions of a jury, not a judge.
Id. “As a general principle, a plaintiff's testimony cannot be discounted on summary judgment
unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of
law, meaning that it relates to facts that could not have possibly been observed or events that are
contrary to the laws of nature.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir.
2013). “However, where the non-movant relies upon implausible inferences drawn from that
evidence, summary judgment is appropriate.” Marbury v. Warden, No. 22-10916, 2022 WL
17175549, at *1 (11th Cir. Nov. 23, 2022) (citing Cuesta v. Sch. Bd. of Miami-Dade Cty., Fla.,
285 F.3d 962, 970 (11th Cir. 2002)). While “the court should review the record as a whole, it
must disregard all evidence favorable to the moving party that the jury is not required to
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believe.” Reeves, 530 U.S. at 151 (citation omitted). This is not a case where “opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, [and] a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007). Instead, the record evidence here consists of the officers’ testimony (or a variation
thereof), making this “a classic swearing match, which is the stuff of which jury trials are made.”
Feliciano, 707 F.3d at 1253. Consequently, Defendants Carter and Brown are not entitled to
summary judgment at this time.
3. 	Supervisory Liability.
Carstarphen alleges that Warden Noah Oliver Price is responsible for the lack of security
at the Jail that has caused him to be attacked by inmates on multiple occasions (including being
stabbed in July 2021 and beaten in December 2022), for officers’ excessive use force against
him, and denial of medical care and treatment at the Jail. According to Carstarphen, “inmates are
dying in the jail because Correction officers aren’t protecting inmates because they don’t have
enough staff.” Doc. 15, PageID.126. He further alleges inmate attacks are not being
investigated, and that medical treatment is denied.
Because Defendants have failed to address any claim asserted against Warden Price, the
undersigned finds that summary judgment is premature as to the claims against Warden Price.
The Court, however, advises Carstarphen “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); see also Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (If
a supervisor's liability cannot be established based on the supervisor's personal participation in
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the complained acts, a plaintiff must show a causal connection between the supervisor's actions
and the alleged constitutional deprivation.). Accordingly, to establish his claim, Carstarphen
“must present sufficient evidence of either (1) a custom or policy that results in deliberate
indifference to constitutional rights or . . . facts that support an inference that the supervisors
directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully
and failed to stop them from doing so; or (2) a history of widespread abuse that put the
responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do
so.” West v. Tillman, 496 F.3d 1321, 1328–29 (11th Cir. 2007) (internal quotation marks and
citations omitted) (alterations omitted). Currently, Carstarphen’s complaint falls vastly short of
this, as it lacks sufficient facts to demonstrate that Mobile Metro is/was a jail where “violence
and terror reign” and that Warden Price knew it and failed to respond reasonably to the risk.
Harrison v. Culliver, 746 F.3d 1288, 1299 (11th Cir. 2014); see also Marbury v. Warden, 936
F.3d 1227, 1234-35 (11th Cir. 2019) (To establish a constitutional violation for a generalized risk
of violence at a prison, a plaintiff must show “that serious inmate-on-inmate violence was the
norm or something close to it[,]” which may be evidenced by “pervasive staffing and logistical
issues rendering prison officials unable to address near-constant violence, tensions between
different subsets of a prison population, and unique risks posed by individual prisoners or groups
of prisoners due to characteristics like mental illness.”); but see Harrison v. Culliver, 746 F.3d
1288, 1299-1300 (11th Cir. 2014) (“[O]ccassional, isolated attacks by one prisoner on another”
does not rise the actionable level of a constant threat of violence.). This is not to say, however,
that Carstarphen may not be able to state such a claim if given the opportunity to amend his
complaint or pursue discovery (given that he has alleged being involved in multiple inmate
attacks that required hospital treatment and that officers were not present when they occurred).
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IV. 	NOTICE OF JUDGMENT INDEPENDENT OF THE MOTION.
Rule 56 of the Federal Rules of Civil Procedure permits the court, after it has given
notice and a reasonable time to respond, to "consider summary judgment on its own after
identifying for the parties material facts that may not be genuinely in dispute." Fed. R. Civ. P.
56(f)(3). Thus, by filing of this Report and Recommendation, the Court notifies the Plaintiff of
its intention to consider a recommendation to the District Judge that she enter summary
judgment, sua sponte, in favor of Defendant Level Reynolds on the claims raised against him in
this action.
Carstarphen is suing Lt. Reynolds for failing to “do anything” about the December 9,
2022 attack against him and for removing his neck brace and releasing him to general population
while knowing how unsafe general population is. As discussed in section III., 1., A., the record
confirms that an investigation was had into the December 9, 2022 attack and charges were
brought against Carstarphen’s attacker. Accordingly, such a claim lacks merit.
As to the holding Lt. Reynold’s liable for the removal of his cervical collar and release
from the medical wedge into general population, the facts and evidence are identical to or relate
directly to the claims and allegations made against Dr. Perdue. As previously discussed, the
record confirms that at the time Carstarphen was moved from the medical wedge to general
population and his neck brace was removed, he had no objectively serious medical need, and no
objective testing or subjective examination revealed a reason for Carstarphen to continue
wearing a neck brace. Neither has Carstarphen shown that he faced a known substantial risk of
serious harm by being placed in general population. For instance, he has put forth no allegations
that he had enemies in general population, that he feared for his safety at the time he was
released to general population, or, most importantly, that he had informed Lt. Reynold of any
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fear for his safety. Accordingly, the record lacks any evidence of deliberate indifference on the
part of any individual for the removal of Carstarphen’s neck brace and transfer to general
population in April of 2023. For the reasons stated in this report, after a review of all the
relevant facts, it is recommended that summary judgment be entered on behalf of Defendant Lt.
Reynolds and dismissal of all claims against him.
However, Defendant Lt. Reynolds has yet to be served with the complaint and is
therefore not a party to this motion for summary judgment. Given that Carstarphen presents no
additional allegations nor provides any differing facts as to his claims against Defendant Lt.
Reynolds as those against Dr. Perdue, the court maintains that its findings of facts and
conclusions of law regarding the claim presented against Dr. Perdue regarding the release of
Carstarphen into general population would be essentially identical to those of Defendant Lt.
Reynolds. Accordingly, Plaintiff Carstarphen is hereby put on notice by this report and the
analysis of his claims of the court's intention to consider summary judgment in favor of
Defendant Lt. Level Reynolds.
Accordingly, within the fourteen days provided for filing objections to this report and
recommendation, Plaintiff Carstarphen shall show cause, in writing, why the court should not
enter summary judgment pursuant to Rule 56(f)(3) of the Federal Rules of Civil Procedure in
favor of Defendant Reynolds on Plaintiff's 42 U.S.C. § 1983 claims. In responding to this notice,
Plaintiff should refer to Fed. R. Civ. P. Rule 56, including the following provision:
A party asserting that a fact . . . is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, 	electronically 	stored 	information, 	affidavits 	or 	declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
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(B) showing that the materials cited do not establish the absence . . . of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1). Plaintiff cannot rely only on his unsworn pleadings but must respond to
this notice by filing sworn affidavits, depositions, or other materials set forth in Rule 56(c)(1)(A)
— or by citing such evidence already of record in this matter — which set forth facts presented
in a form that would be admissible evidence demonstrating that there is a genuine dispute as to a
material fact for trial in this case. If plaintiff fails to file sworn affidavits or other acceptable
evidence as set forth in Rule 56 the court will accept the evidence identified above as undisputed,
for purposes of evaluating whether the court should grant summary judgment in the defendants'
favor. See Fed. R. Civ. P. 56(e). Plaintiff's failure to follow the requirements of Rule 56(c)(1)(A)
in opposing the proposed summary judgment could result in a recommendation from the
undersigned Magistrate Judge to the presiding District Judge that summary judgment be entered
in the favor of the Defendant Lt. Reynolds.
V. 	CONCLUSION.
Based on the forgoing analysis, the undersigned concludes that there are no genuine
issues of material fact as to the claims alleged against Dr. Ronald Perdue, and that Defendant
Perdue is entitled to judgment as a matter of law on all claims and causes of action asserted by
Plaintiff Carstarphen. Therefore, it is RECOMMENDED that Defendant Dr. Perdue’s motion
for summary judgment be GRANTED on all counts, and that Plaintiff Carstarphen’s action
against Defendant Dr. Perdue be DISMISSED with prejudice.
For these same reasons, pursuant to Fed. R. Civ. P. 56(f)(3), the undersigned notifies the
Plaintiff of its intention to consider a recommendation to the District Judge that summary
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judgment be entered, sua sponte, in favor of Defendant Level Reynolds on the claims raised
against him in this action.
Additionally, the undersigned RECOMMENDS that summary judgment be DENIED as
to the claims and causes of action asserted against Defendants Warden Price, Sgt. Carter, and
Officer Brown.
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 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.” 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 the 3rd day of June, 2025.
/s/_KATHERINE P. NELSON___________
UNITED STATES MAGISTRATE JUDGE
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