USCA11 Case: 23-10200 Document: 31-1 Date Filed: 08/28/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10200
Non-Argument Calendar
____________________
OCTAVIOUS BUFORD,
Plaintiff-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF
CORRECTIONS,
CYNTHIA STEWART,
Warden of Holman Correctional Facility,
In her individual capacity,
TERRY RAYBON,
Assistant Warden of Holman Correctional Facility,
In his individual capacity,
LEON BOLLING,
Warden of the St. Clair Correctional Facility,
USCA11 Case: 23-10200 Document: 31-1 Date Filed: 08/28/2023 Page: 2 of 6
2 Opinion of the Court 23-10200
In his individual capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cv-00095-WS-MU
____________________
Before WILLIAM PRYOR, Chief Judge, and ABUDU and ANDERSON,
Circuit Judges.
PER CURIAM:
Octavious Buford, an Alabama prisoner, appeals the sum-
mary judgment in favor of Terry Raybon, assistant warden of Hol-
man Correctional Facility, and against Buford’s complaint that
Raybon ordered or failed to stop officers from beating Buford in
retaliation for complaining about his conditions of confinement.
42 U.S.C. § 1983. We affirm.
We view the evidence in the light most favorable to Buford
as the nonmoving party. Lee v. Ferraro,
284 F.3d 1188, 1190 (11th
Cir. 2002). In February 2020, Buford complained about his condi-
tions of confinement to Raybon and Warden Cynthia Stewart.
During one discussion, Buford joked with them, “If I sue
you . . . do you think you could pay?” Raybon asked if Buford
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23-10200 Opinion of the Court 3
would accept $100,000, but Buford said, “That’s not
enough . . . . because the way you got me up under these condi-
tions.” Raybon “walked off” and “sent the riot team” at him. About
ten members of the “riot” team entered his cell. An officer asked,
“What you and Warden Raybon got going on?” and told Buford to
get out of bed. Buford said, “I’m not fixing to let y’all jump on me
like that . . . [with] no authority.” The officers started whispering
to each other and “just reached in there and started spraying” him
with large cans of mace before telling him to “cuff up,” which he
did. After he was handcuffed, the officers entered his cell, jumped
on him, kicked him, stomped him, dragged him down a ramp and
flipped him upside down, and kept stomping him for five to ten
minutes.
The officers took Buford to the infirmary, but the medical
assessment reported no discernable injuries such as redness, mark-
ings, or scratches. Buford received disciplinary infractions for diso-
beying a corrections officer and for possessing contraband. The in-
cident report stated that an officer had ordered Buford to cuff up
for a contraband search, and when Buford refused, the officer ad-
ministered a one-second burst of pepper spray, handcuffed Buford,
and discovered a cell phone under the toilet. A week later, Buford
spoke with a mental health counselor about the incident and said,
“I refused to cuff up and they sprayed me. I know I was wrong. . . . I
need to learn to control my temper.”
Buford sued Raybon and several other officers for various
violations of the Eighth Amendment. Buford alleged that Raybon
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ordered the officers to beat him, knew that the officers were beat-
ing him, and failed to stop or prevent the beating. Buford submitted
depositions of two inmate witnesses, Mario Avila and Earl Ma-
nassa. Avila attested that he could see Buford’s cell from the reflec-
tion on the window in the “cube,” which was a secured guard post
with a direct line of sight into the cells. When asked about Raybon’s
location during the beating, Avila said, “I think he stayed inside the
cube.” When asked again whether Raybon was inside the cube dur-
ing the incident occurred, Avila said, “I think so. . . . Yeah. I think
so. . . . I think [he] was in the cube.” Avila believed that the warden
“should be present” during an extraction. Manassa stated that he
could not see the cube or the inside of Buford’s cell, but he saw
several officers go to the cell and smelled pepper spray.
In his affidavit, Raybon denied ever ordering a “hit” on an
inmate, directing officers to use unwarranted force on an inmate,
or retaliating against an inmate for exercising his constitutional
rights.
The district court granted summary judgment in favor of
Raybon. The district court ruled that Buford could not establish
that Raybon ordered the officers to beat him because his testimony
was that Raybon “sent the riot team” to his cell, not that Raybon
sent the riot team with orders to assault him. And the district court
ruled that Buford could not establish that Raybon was liable for
failing to stop the beating. The district court explained that alt-
hough Buford argued that Raybon was present at the scene and
watched the beating, Buford’s assertion that Raybon was stationed
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23-10200 Opinion of the Court 5
in the cube and could see Buford’s cell relied solely on Avila’s tes-
timony. The district court explained that Avila’s testimony was not
that Avila saw Raybon in the cube or knew what Raybon could see
from his location, but that he “th[ought]” Raybon was in the cube
“when all of this happened,” which meant that Avila lacked per-
sonal knowledge that Raybon saw the alleged beating, Federal
Rules of Evidence 602. The district court determined that Buford
failed to establish that Raybon knew of a constitutional violation
without any evidence that Raybon saw it.
We review de novo a summary judgment. Underwood v. City
of Bessemer,
11 F.4th 1317, 1327 (11th Cir. 2021). Summary judg-
ment is appropriate when “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 district court correctly entered summary judgment in
favor of Raybon because Buford’s evidence was insufficient to es-
tablish a genuine issue of material fact about whether Raybon saw
or otherwise knew that the officers were beating Buford. At the
summary judgment stage, Buford had to present substantial evi-
dence to permit a reasonable jury to find that Raybon was “in a
position to intervene in an ongoing constitutional violation” and
“failed to do so.” Williams v. Radford,
64 F.4th 1185, 1199 (11th Cir.
2023). Buford failed to do so. Buford did not see Raybon during the
beating because Raybon had “walked off” after their discussion.
Manassa could not see the cube from his cell. And the entirety of
Avila’s deposition, even the portions not considered by the district
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court, establishes that Avila did not testify that he knew that Ray-
bon saw the alleged beating. So, viewed in the light most favorable
to Buford, none of the evidence creates a genuine issue of material
fact about whether Raybon knew to intervene during the beating.
See
id. And Buford does not challenge the ruling that his testimony
that Raybon “sent” officers to his cell failed to establish that Raybon
ordered the officers to assault him. See Sapuppo v. Allstate Floridian
Ins. Co.,
739 F.3d 678, 680–81 (11th Cir. 2014).
We AFFIRM the summary judgment in favor of Raybon.
