McCall, et al. v. Houston County, et al.
OPINION. Signed by Honorable Judge Myron H. Thompson on 7/3/14. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
TRACEY MCCALL, as
administratrix of the
estate of Jonathan McCall, )
HOUSTON COUNTY, et al.,
CIVIL ACTION NO.
As administratrix of the estate of decedent Jonathan
defendants in her wrongful-death lawsuit: Houston County,
Alabama; Houston County Jail Administrator Keith Reed;
Corrections Deputy James West; and Licensed Practical
Nurse Ashley Kennedy. Plaintiff administratrix asserts
that the defendants’ conduct caused the death of her
brother in violation of the Fourteenth Amendment (as
enforced through 42 U.S.C. § 1983) and the State of
She also alleges violations of Title II of
the Americans with Disabilities Act, 42 U.S.C. § 12131 et
seq., and § 504 of the Rehabilitation Act, 29 U.S.C.
Jurisdiction is proper under 28 U.S.C. §§ 1331
This cause is before the court on cross-motions for
For the reasons that follow, plaintiff
defendants’ motion will be granted in part and denied in
I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
This case arises from the death of Jonathan McCall,
an inmate at the Houston County Jail, on July 13, 2009.
The medical cause of death was cecal volvulus, a twisting
obstruction, pain, and, if untreated, ultimately death.
See Evans Rpt. (Doc. No. 87-1) at 3-4.
noted, the facts in this case are undisputed.
A. Events Preceding July 13
McCall suffered from serious mental illness for years
See Silberberg Rpt. (Doc. No.
87-1) at 55.
After being discharged from the Army
because of his mental illness, he cycled between his
mother’s house, mental hospitals, treatment centers, and
the Houston County Jail.
administratrix in this case), McCall was involuntarily
committed in March of 2009.
He went to live at a
facility operated by SpectraCare, an organization that
provides mental-health treatment.
On April 28, he called
911 and threatened to harm himself or others.
arrested for terrorist threats, and transported to the
Houston County Jail.
When he arrived at the jail, McCall was screened for
ideation, that he was currently taking medication, and
that he had recently been hospitalized or treated by a
Despite a jail policy requiring a referral to
jail medical staff as soon as possible based on his
positive response to the suicide question, McCall was not
assessed by medical staff or a psychiatrist on this
Indeed, the jail had no psychiatrist at all
during McCall’s incarceration at the jail in 2009, the
former jail psychiatrist having recently quit.
SpectraCare personnel continued to meet regularly
with McCall while he was at the jail.
A case manager met
with him frequently during May and June, and on July 9.
prescriptions on May 27, apparently without examining
continuing contact with McCall.
A judge also ordered a
psychological evaluation to determine whether McCall was
fit to be released.
The evaluation was scheduled for
July 14, the day after he died.
After his death, staff at the jail reported that
McCall often had exhibited strange behaviors.
arguing with himself, spending time naked in his cell,
urinating on himself, masturbating in his cell, putting
toilet paper in his mouth, and licking a glass window.
director of the Houston County Jail’s clinic, assessed
McCall because of his behavior.
Smoak noted no medical
On June 28, officers noticed that McCall was acting
more strangely than usual.
He was unresponsive and lying
on the floor, rocking back and forth, and moaning.
was also lightly hitting his head against the floor.
Officers called the medical unit to ask for someone to
come check McCall, but no medical personnel came.
Later that day, Nurse Kennedy came to the N-Pod,
where McCall was housed, to drop off medications for the
inmates; she did not examine McCall.
At that time,
corrections officers administered medications to inmates
in the N-Pod, while nurses administered medications to
inmates in the rest of the jail.
This arrangement was a
The jail has since revised its
policy to require nurses to administer medications in the
N-Pod as well.
One of the corrections officers, Kelly Landreau,
Landreau then found Kennedy at another pod
and asked her to check on McCall.
saying that McCall was crazy and “I can’t fix crazy.”
Kennedy Dep. (Doc. No. 90-30) at 127.1
Landreau and another officer discussing the fact that no
sergeant about the matter.
The sergeant called Landreau
overheard conversation and that McCall was crazy and
1. There is conflicting evidence as to the wording of
The officer remembered her words as:
“I’m not messing with him. He’s crazy. There’s no cure
for crazy.” Landreau Dep. (Doc. No. 90-32) at 37. The
court does not consider the difference material.
“insanity never killed anyone.”
90-32) at 47.
Landreau Dep. (Doc. No.
There is no record that jail medical
personnel ever examined McCall from that day until the
day he died, nearly two weeks later.
On July 7, the jail pharmacy ran out of Risperidone,
an antipsychotic medication that McCall was prescribed
medication, and officers recorded various problems of the
following days: he was not coming out of his cell,
complained of inability to sleep, and stated that he
believed the Nazis were after him and something was being
Risperidone for seven days, from July 7 until his death.
According to plaintiff administratrix’s medical expert,
this is a very long time for an individual with McCall’s
mental illness to go without antipsychotic medication.
See Silberberg Rpt. (Doc. No. 87-1) at 60.
amount of time McCall went without his medication may
prisoners took their pills and when they did not.
According to Nurse Kennedy, sometime around July 9
she saw McCall in a visitation room.
waived at her, and she waived back.
He smiled and
She did not observe
any signs of physical distress or any indication he
needed medical care.
Kennedy Aff. (Doc. No. 90-22) at
On July 11, Physician’s Assistant Smoak ordered that
Smoak had no legal authority to make this
See Smoak Dep. (Doc. No. 90–36) at 117.
Furthermore, Trazadone is not a proper substitute for
2. The plaintiff objects to this portion of Kennedy’s
affidavit as self-serving, speculative, hearsay, and
lacking personal knowledge.
At summary judgment, the
court may consider evidence that is admissible or
reducible to admissible form. Rowell v. BellSouth Corp.,
433 F.3d 794, 800 (11th Cir. 2005). The first objection
is not a basis for exclusion of evidence.
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 53 (1st Cir. 2000). The remaining objections
interpretations as set forth above, and are overruled as
instigate a manic phase for a bi-polar patient. See
Silberberg Rpt. (Doc. No. 87-1) at 59. It can also
exacerbate constipation, and may have contributed to
McCall’s cecal volvulus.
See Smoak Dep. (Doc. No. 90–36)
at 49, 115.
The same day, two days before his death, McCall
apparently asked to see a nurse, and an officer relayed
the request to the medical unit.
90-28) at 174.3
Bozswana Int. (Doc. No.
There is no record that anyone from the
medical unit came to see McCall.
3. The Houston County Sheriff’s Department, in the
course of its investigation of this matter, recorded and
transcribed a number of interviews. See Alabama Bureau
of Investigation Report (Doc. No. 90-28). The interviews
are not sworn.
However, no party has objected to the
court’s consideration of the transcribed interviews at
summary judgment. Cf. Nelson v. Greater Gadsden Hous.
Auth., 802 F.2d 405, 408 (11th Cir. 1986) (citing Davis
v. Howard, 561 F.2d 565, 570 (5th Cir. 1977)) (“we have
upheld summary judgment where material introduced
pursuant to that motion was uncertified, or otherwise
inadmissible, and yet unchallenged”)).
parties cite to the interviews.
Without making any
finding as to their ultimate admissibility, the court
will consider them at this stage.
B. Events of July 13, 2009
On the day that McCall died, Officer West and Officer
Ronnie Dye worked the first shift, from 7:00 a.m. to 3:00
p.m., covering the N-Pod.
West encountered McCall first
that day, between 7:00 a.m. and 7:15 a.m., while counting
prisoners and checking that all cell doors were locked.
He saw McCall naked on the floor of his cell, face down,
in a liquid that West believed might have been urine.
The door to McCall’s cell was closed, and so West could
Visually, he concluded that McCall did not appear to be
in pain and was a healthy color.
completed his prisoner count.
West moved on and
He informed Officer Dye of
There was no record from the previous
shift concerning behavior by McCall.
together between 7:45 a.m. and 9:00 a.m., while passing
out the prisoners’ medications.4 The officers entered the
4. In all of his statements, West says he was present
cell this time.
McCall was still on the floor, he was
naked and sprawled out on his stomach, and Dye was able
to determine by smell that the liquid he was lying in was
McCall was shivering and moaning.
The officers agreed that the medical unit
needed to examine McCall.
West Aff. (Doc. No. 90-17) at
for this interaction. In his statements, Dye does not
mention West’s presence, but also does not deny it. The
court concludes there is no genuine dispute on this
issue: West was present
5. Plaintiff administratrix objects to this paragraph
of West’s affidavit, arguing that the statement is
hearsay and lacks a basis in personal knowledge. If the
conversation took place, West surely has personal
knowledge of what was said. As to the hearsay objection,
while these statements would be hearsay if offered to
prove the truth of the matter asserted, namely that
McCall did need medical care, they are not hearsay if
offered for another purpose, such as establishing West’s
state of mind or knowledge. Fed. R. Evid. 801. As to
any such other purpose, plaintiff administratrix’s
objection is overruled. At summary judgment, the court
may consider evidence that is admissible or reducible to
admissible form. Rowell, 433 F.3d at 800.
Dye contacted the sergeant supervising their shift at
this point and reported that McCall was unresponsive and
lying in his urine.
The sergeant responded that McCall
would be given a shower later in the day.
West was aware
According to Dye, he also called the medical unit
around this time and spoke to Nurse Kennedy.
(Doc. No. 86-2) at 2.
He states that he told her that
McCall was lying in his urine, unresponsive, and moaning.
He also states he told her someone from the medical unit
needed to come down to examine McCall.7
6. See West Aff. (Doc. No. 90-17) at 10; West Int.
(Doc. No. 90-28) at 78. There is no evidence to dispute
West’s knowledge of this conversation, although again
Dye’s statements do not mention it.
7. The defendants object to this portion of Dye’s
affidavit, arguing that it contradicts his prior
Sheriff’s Department interview, in which he described
calling the medical unit only in the afternoon. In that
interview, he stated that Kennedy answered and that Dye
told her that he needed to speak with Physician’s
Assistant Smoak but “didn’t tell her what it was about.”
Dye Int. (Doc. No. 90-28) at 25. The court may disregard
that she spoke to Dye about McCall only once that day and
that their conversation was non-substantive.
a subsequent affidavit that directly contradicts sworn
deposition testimony. See Hadley v. Gutierrez, 526 F.3d
1324, 1330 (11th Cir. 2008); Clay v. Equifax, Inc., 762
F.2d 952, 960 n.5 (11th Cir. 1985); Van T. Junkins &
Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657
(11th Cir. 1984) (“When a party has given clear answers
to unambiguous questions which negate the existence of
any genuine issue of material fact, that party cannot
thereafter create such an issue with an affidavit that
merely contradicts, without explanation, previously given
clear testimony.”). Here, the prior statement was not a
deposition under oath, but an unsworn interview subject
only to a Garrity notice. See Garrity v. State of N.J.,
385 U.S. 493, 494 (1967) (holding that, absent waiver,
incriminating statements by law-enforcement officers
facing termination for remaining silent are not
An investigatory interview, even with a
Garrity notice, is very different from a deposition,
which is sworn under oath. But the court need not reach
the question of whether it may reject Dye’s affidavit
based on the prior interview, because in any event it
would not do so in this case. The affidavit does not
contradict any clear answers to unambiguous questions in
the interview. In the interview, Dye describes only a
single call to the medical unit, in the afternoon. But
no question was asked, and no answer given, about any
other calls Dye may have made to the medical unit in the
morning. While Dye’s failure to mention an earlier call
in which he discussed the matter with Kennedy may be
raised to attack his credibility on cross-examination at
trial, his silence in the interview is not a sufficient
basis to disregard the affidavit at summary judgment.
Therefore, the objection is overruled.
Aff. (Doc. No. 22) at 10; Kennedy Int. (Doc. No. 90-28)
Officer West visually checked on McCall periodically
Officer Dye again entered McCall’s cell around
Dye was passing out the lunch trays in the N-Pod,
and West was not present.
At this point, McCall’s feet
8. Plaintiff administratrix objects to this portion
of Kennedy’s affidavit on the grounds that it constitutes
hearsay and contradicts Dye’s testimony. If offered for
some purpose other than the truth of the matter, such as
to establish Kennedy’s lack of knowledge of McCall’s
condition, the evidence is admissible. See supra note 5.
Furthermore, while the court may reject a witness’s
affidavit if it directly contradicts that same witness’s
prior deposition testimony, see supra note 7, the same is
not true of the affidavit that merely contradicts another
To reject an affidavit on the
latter basis would amount to nothing more than the
judgment that one witness is credible and the other is
not; it is elementary that such determinations are
inappropriate at summary judgment.
See Moorman v.
UnumProvident Corp., 464 F.3d 1260, 1266 n.1 (11th Cir.
overruled. Finally, the court notes that Kennedy stated
in her deposition that “I remember speaking to Dye and
him telling me kind of what was going on.” Kennedy Dep.
(Doc. No. 90-30) at 136.
This statement arguably
contradicts her later affidavit, in which she described
the call as non-substantive, but is too ambiguous to
justify disregarding the affidavit at summary judgment.
were on the ground and he was leaning much of his weight
onto the metal bunk.
Dye asked if McCall wanted lunch,
and McCall again groaned incoherently.
Dye left the food
tray and later returned to find McCall had not eaten
As West was preparing to take his break, Dye
told him that he intended to call Physician’s Assistant
Smoak because the situation was not good and someone from
the medical unit needed to see McCall.
He asked to speak with Smoak.
Dye told Smoak
that McCall was naked, had been lying in his urine, and
now was leaning across his bunk.
Dye expressed concern
because McCall was on psychiatric medication.
asked Kennedy to confirm that McCall had been taking his
medications and was scheduled to meet with a psychiatrist
the following day, which she did.
According to Smoak,
nothing Dye told him indicated that McCall was having a
medical, rather than psychiatric, problem.
9. According to Kennedy, this was their only phone
conversation that day.
Although the supervising sergeant initially had told
Dye and West that McCall would be given a shower later
that day, the sergeant later determined that the jail was
too busy that day and McCall would instead be showered
and his cell cleaned the following day.
noted in a log book that McCall was lying naked in his
cell and would be showered on the following day.
Other officers took over for the second shift at 3:00
Dye informed them of McCall’s behavior, that he had
cleaned the following day.
At 4:36, one of the second-
shift officers contacted the medical unit and entered
McCall’s cell because some of the other inmates had said
he did not look right.
McCall was unresponsive and not
Nurse Kennedy arrived, entered the cell,
checked for a pulse, and started CPR.
This was the first
medical attention McCall received that day.
were called and took McCall to the hospital.
revive him ceased later that evening.
Cecal volvulus, the intestinal twisting from which
McCall died, is an extremely painful condition.
hours or days to develop, and most cases are treated
because that extended time period is so painful.
healthy young people.
See Evans Report (Doc. No. 87-1)
In the opinion of plaintiff administratrix’s
medical expert, had McCall been sent to the hospital at
the time of the previous call or calls to the medical
unit that day, he would have been appropriately treated
and most likely would have made a full recovery.
claims: (1) a claim under the Fourteenth Amendment (as
enforced through 42 U.S.C. § 1983) against Officer West,
Nurse Kennedy, Administrator Reed, and Houston County;
(2) claims under the Americans with Disabilities Act and
§ 504 of the Rehabilitation Act against Houston County;
and (3) a claim under Alabama’s wrongful-death statute
against West, Kennedy, and Reed.
judgment as to the liability of West and Kennedy under
the Fourteenth Amendment.
She does not seek summary
judgment against the other defendants or as to the other
The defendants seek summary judgment on all
They argue that (1) none of the defendants
violated McCall’s Fourteenth Amendment rights, and in any
event the individual defendants are entitled to qualified
immunity; (2) there is no basis for relief under the ADA
or Rehabilitation Act; and (3) the individual defendants
are entitled to immunity from the state-law claim under
1975 Ala. Code § 14-6-1 and Alabama state-agent immunity.
A. Fourteenth Amendment
The Eighth Amendment prohibits “cruel and unusual
deliberate indifference to the medical needs of inmates.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Eighth Amendment does not technically apply prior to
pretrial detainees such as McCall.
v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007).
establish deliberate indifference, a plaintiff must show
(1) “that [he] had a serious medical need”; (2)
the prison official acted with deliberate indifference to
The first prong is objective, in the
condition; the second is subjective, in the sense that it
looks to the official’s state of mind.
established the first, objective prong.
“A medical need
that is serious enough to satisfy the objective component
mandating treatment or one that is so obvious that even
a lay person would easily recognize the necessity for a
Id. (internal quotations omitted).
“In the alternative, a serious medical need is determined
by whether a delay in treating the need worsens the
Mann v. Taser Int’l, Inc., 588 F.3d 1291,
1307 (11th Cir. 2009).
Certainly under the latter, if
not the former, definition, McCall’s need was serious.
The second, subjective prong of the test, deliberate
indifference, requires “‘(1) subjective knowledge of a
risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than [gross] negligence.’” Goebert,
510 F.3d at 1327 (quoting Bozeman v. Orum, 422 F.3d 1265,
1272 (11th Cir. 2005)) (alteration in original).
of deliberate indifference requires a great deal more
indifferent a prison official must know of and disregard
official must both be aware of facts from which the
inference could be drawn that a substantial risk of
1331-32 (11th Cir. 2013) (quoting Purcell ex rel. Estate
of Morgan v. Toombs Cnty., Ga, 400 F.3d 1313, 1319-20
“As such, imputed or collective knowledge cannot
Each individual Defendant must be judged
separately and on the basis of what that person knows.”
Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008)
The court will thus examine each
defendant individually as to the subjective prong.
i. Officer West
Both plaintiff administratrix and Officer West seek
summary judgment regarding Officer West’s liability under
the Fourteenth Amendment.
The relevant facts are not in
The court will grant summary judgment in favor
The first issue is whether West had a subjective
knowledge of a risk of serious harm.
Goebert, 510 F.3d
The court concludes that he did.
aware that McCall was having some kind of problem on July
He observed McCall several times throughout the day,
naked, on the floor, lying in his own urine.
him moaning and was aware that he did not respond to
anything that was said to him all day, did not eat, and
did not take his medication.
Although he had observed
McCall behaving strangely in the past due to his mental
illness, West viewed McCall’s actions on that day as
strange even for him.
West Dep. (Doc. No. 90-34) at 22.
West recognized that there was a medical problem, one
constituted an emergency.
West Dep. (Doc. No. 90-34) at
25; West Aff. (Doc. No. 90-17) at 9.
Based on this
undisputed evidence, West was subjectively aware of a
risk of serious harm.
The next question is whether West disregarded that
risk by conduct that is more than gross negligence.
Goebert, 510 F.3d
“‘[O]fficials, to be liable
substantial risk of serious harm to the inmates and not
Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1235 (11th
Cir. 2010) (quoting Marsh v. Butler Cnty., Ala., 268 F.3d
1014, 1027 (11th Cir. 2001)). “‘Deliberate indifference’
can include ‘the delay of treatment for obviously serious
detrimentally exacerbate the medical problem, the delay
does seriously exacerbate the medical problem, and the
delay is medically unjustified.’”
Id. (quoting Taylor v.
Adams, 221 F.3d 1254, 1259-60 (11th Cir.2000)).
To establish that Officer West disregarded a known
statement that, despite being in regular contact with
McCall throughout the day, West “never did anything about
it” and “never reported the situation with McCall.”
Aff. (Doc. No. 86-2) at 3.
However, it is undisputed
that West was aware that Dye, his partner, had both
reported McCall’s situation to his superior officers and
had made at least one call to the medical unit.
court’s view, whether West made reports himself or was
simply aware that the reports had been made by another
corrections officer is not a material difference.
The question with regard to West is, therefore, this:
reported to their supervisors and to medical personnel
sufficient to absolve West of deliberate indifference?
Or, despite the officers having reported their concerns,
did West have some further obligation to act, for example
instructed to do so.
As is illustrated by a pair of
reporting medical concerns may or may not be enough to
avoid deliberate-indifference liability, depending on the
indifference to survive a motion to dismiss.
592 F.3d at
The jailers in that case were aware that the
Id. at 1234.
The jailers had informed the
arresting officer of the prisoner’s condition, and the
officer had said he would contact the chief of police and
that the officer, the chief, and the town would make a
decision regarding medical care for the prisoner.
jailers also notified another jailer of the circumstances
during a shift change.
However, as the Eleventh Circuit
secure immediate medical attention for [the prisoner],
whose need for prompt treatment appeared dire.”
By contrast, in Townsend v. Jefferson Cnty., 601 F.3d
1152, 1159 (11th Cir. 2010), the Eleventh Circuit found
that jailers were entitled to qualified immunity because
there was no violation of the inmate’s rights.
case, the prisoner, who was pregnant at the time, offered
evidence that she had contacted jailers many times over
the course of a 12-hour period because she was bleeding
prisoner was seen by a nurse, who briefly examined her
and determined that further examination was necessary but
that there was no emergency.
Id. at 1155.
continued to seek help from the jailers, but no nurse
returned until after she had miscarried.
Id. at 1155-56.
The court concluded that, “Both deputies were aware that
[the nurse] had determined [the prisoner’s] condition was
not an emergency.”
Id. at 1158.
Because the plaintiff
had not “presented evidence that her situation was so
obviously dire that two lay deputies must have known that
reasonable jury could find that they knew the situation
was an emergency.
Officers West and Dye did more than the
jailers in Harper, in alerting their supervisor and the
medical unit that there was a problem rather than just
telling individuals who were several steps removed from
Townsend, they cannot rely on an assessment by Nurse
actually examined McCall that day.
mitigates West’s liability.
It is apparently undisputed
unilaterally bring inmates to the medical unit except in
Rather, they needed to wait for the
medical unit to call and ask for an inmate to be brought
In the case of an emergency, officers could call
According to West, while he believed McCall needed
medical attention, he did not believe the situation was
West. Aff. (Doc. No. 90-17) at 10.
The limits of an individual officer’s authority are
relevant to the determination of whether he acted with
“There can be no duty, the
breach of which is actionable, to do that which is beyond
the power, authority, or means of the charged party.
Those whose callous indifference results in liability are
those under a duty-possessed of authority and means-to
prevent the injury.”
Williams v. Bennett, 689 F.2d 1370,
10. Various affidavits offered by the defendants
state that officers could transport inmates to the
medical unit if “necessary.”
It is unclear what that
statement means; does necessary just mean in the case of
an emergency? In any event, plaintiff administratrix’s
view is that officers were not allowed to transport
inmates absent an emergency; as the court is considering
the facts in the light most favorable to plaintiff
administratrix in addressing the defendants’ motion, it
will take this view as well.
assessment that there was no emergency, West’s discretion
was limited: he was not permitted to take McCall to the
medical unit without authorization.
West surely could have done more.
He could have
called the medical unit again (despite knowing that Dye
already had) and insisted that someone come down.
could have called 911. In this sense, the court agrees
with plaintiff administratrix’s expert: McCall’s behavior
corrective action” beyond “merely calling persons on the
telephone or merely passing on information to supervisors
and making notations in logs.”
Aiken Rpt. (Doc. No. 87-
1) at 25.
But the court is convinced that, with the evidence
administratrix, West’s conduct does not rise to the level
of deliberate indifference.
Rather, his failure to do
more appears to be a combination of a misappraisal of the
following protocol and being satisfied with notifying
That West was wrong, and was perhaps
Goebert, 510 F.3d at 1327 (conduct must be
constitute more than gross negligence).
West and Dye did
something to try to aid McCall: they alerted the medical
insufficient under other circumstances, for example if
McCall was visibly bleeding to death on the ground, in
this case his symptoms were more ambiguous as to the
urgency of the situation; it was somewhat difficult to
tell where mental illness ended and physical illness
The court need not, and does not, reach the
question of whether West’s conduct was simply negligent.
But, given what West knew, on this undisputed record, he
was not deliberately indifferent.11
11. Plaintiff administratrix also seems to argue, in
ii. Nurse Kennedy
Both plaintiff administratrix and Nurse Kennedy also
seek summary judgment regarding Kennedy’s liability under
preclude summary judgment in favor of either party.
the alternative, that West was deliberately indifferent
from the time he first saw McCall that day to the time
that he became aware Dye had informed the medical unit
and the supervising sergeant. In other words, plaintiff
administratrix argues that, even if West can claim
‘credit’ for Dye’s actions, that does not excuse West’s
inaction in the morning. The problem is twofold: first,
the undisputed record establishes that West had
significantly less information before he and Dye entered
McCall’s cell around 9:00 a.m. He did previously look
into the closed cell around 7:00 a.m., but all he saw was
that McCall was naked, face down, on the floor, in a
liquid which might, or might not, have been urine. He
did not, for example, know that McCall was groaning,
uncommunicative, and refusing to eat or take medicine.
What West knew is not sufficient, against the backdrop of
McCall’s prior behavior, to establish West’s subjective
knowledge of a risk of serious harm. Goebert, 510 F.3d
Second, even if West was deliberately
indifferent, the record does not establish causation.
See id. at 1326. For the steps he arguably should have
taken, namely contacting the medical unit and alerting
his supervisor, actually were taken later that morning by
Dye; because Dye’s warnings were ignored, McCall still
died. Thus even if West were deliberately indifferent
from 7:00 a.m. to 9:00 a.m., that deliberate indifference
did not cause McCall’s death.
The core dispute regarding Nurse Kennedy is what, if
anything, she knew of McCall’s condition on July 13.
first considering plaintiff administratrix’s motion, the
court takes the evidence in the light most favorable to
In this light, she knew next to nothing.
received only one call from Officer Dye, who simply asked
Smoak, in turn, asked Kennedy to confirm that McCall had
a psychiatrist appointment the following day, but did not
tell her the substance of Dye’s description of McCall’s
On this view of the evidence, Kennedy knew
nothing about McCall’s condition on July 13, and so could
not have been deliberately indifferent to it.
In arguing that Kennedy was deliberately indifferent
plaintiff administratrix also relies on Kennedy’s earlier
interactions with McCall.
In particular, she argues that
Kennedy ignored officers’ requests that she check McCall
on June 28, explaining that “I can’t fix crazy.”
deliberate indifference, plaintiff administratrix argues,
not to McCall’s then-unknown medical problem but to his
known psychiatric problem.
Again with the facts considered in the light most
favorable Kennedy, the June 28 incident also fails to
establish deliberate indifference. According to Kennedy,
on June 28 she was told only that McCall was “not acting
right,” “crawling around his cell,” and might need his
Kennedy Aff. (Doc. No. 90-22) at
She claims not to have received other information,
such as whether he was hitting his head on the floor or
refusing food or medications.
She considered the
behaviors she was told about to be within the realm of
McCall’s ‘normal’ activities.
While she noted in her log
that Smoak should see McCall the next day, she did not
evaluate him herself because she believed his conduct
arose from mental illness and there was nothing she could
do about his mental illness.
Id. at 9.
When she went to
deliver medications to the officers, she saw McCall from
the control booth and nothing appeared to be wrong.
The officers who had reported the problem earlier said he
Again, based on this limited knowledge, it
was at worst negligent of her not to examine McCall
herself on June 28.
But she referred the issue to her
superior and followed up with the officers.
crazy,” Kennedy Dep. (Doc. No. 90-30) at 127, was nothing
more that an insensitive way of expressing the limits of
her medical abilities.
Viewed in the light most favorable to plaintiff
administratrix on the issue of whether summary judgment
should be entered in favor of Nurse Kennedy on the
Fourteenth Amendment claim, the facts regarding Nurse
Kennedy look quite different.
According to Officer Dye,
he called Kennedy in the morning on July 13 and told her
that McCall was lying in his urine, unresponsive, and
He told her someone from the medical unit
needed to come down to examine McCall.
came to examine McCall until she was called by the
second-shift officers, some eight hours later, at which
point he was near death.
Viewed in the light most favorable to plaintiff
administratrix, the prior June 28 incident takes on a
viewpoint, it appears Officer Landreau and his partner
called the medical unit at least once and spoke to
Kennedy once in person.
In each instance they indicated
that medical personnel should evaluate McCall.
to Kennedy’s statement, Landreau’s deposition does not
indicate that he told her everything was fine.
contrary, a fair reading of his deposition and interview
reiterate that someone needed to see McCall because he
was not fine, and it was in this context that she said
she could do nothing because McCall was crazy.
This interaction provides a telling context for the
events of July 13, one from which a jury could easily
infer that Kennedy ignored Dye’s warnings, just as she
Kennedy Dep. (Doc. No. 90-30) at 127.
In other words, a
jury could conclude that Kennedy had decided to ignore
Cf. Fielder v. Bosshard, 590 F.2d 105, 107-08
(5th Cir. 1979) (“Although these comments ... do not in
themselves establish cruel and unusual punishment, they
reflect the appellants’ attitudes. When considered in
conjunction with the events leading up to [the] death,
these statements tend to show that the appellants were
not merely unmindful or negligent prison officials.”).
On that version of events, Kennedy’s conduct could be
viewed to reflect deliberate indifference.
situation is reminiscent of Carswell v. Bay Cnty., 854
F.2d 454, 457 (11th Cir. 1988), relied on by plaintiff
upheld a jury verdict of deliberate indifference against
a physician’s assistant working at the jail.
cited evidence that two members of the jail’s staff
serious condition and that the physician’s assistant
ignored those warnings.
Similarly, here, the evidence
administratrix indicates that Kennedy ignored several
condition, including information that he was moaning
naked in his own urine.
This would constitute deliberate
Nurse Kennedy also seeks summary judgment based on
“The doctrine of qualified immunity
protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which
a reasonable person would have known.’”
Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
The initial burden is on Kennedy to establish that
she was acting within the scope of her discretionary
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th
Cir. 2002). Plaintiff administratrix argues that Kennedy
has failed to meet that burden.
The law is that, “A
objective circumstances which would compel the conclusion
performance of his duties and within the scope of his
Hutton v. Strickland, 919 F.2d 1531, 1537
(11th Cir. 1990) (internal quotation marks omitted).
actions and omissions with which plaintiff administratrix
charges Kennedy in this case clearly fall within this
The court finds she was acting within her
Next, in deciding whether an official is entitled to
this immunity, courts analyze (1) whether the plaintiff
has shown an actual violation of the right at issue and
(2), if so, whether the right was clearly established at
Pearson, 555 U.S. at 232.
the time it was violated.
Because the court has already found that, with the facts
administratrix, the evidence is sufficient to support a
Amendment right, the court will address only whether that
right was clearly established.
“Qualified immunity protects government officials, in
their individual capacities, from suit unless the law
preexisting the defendant official’s supposedly wrongful
act was already established to such a high degree that
every objectively reasonable official standing in the
defendant official was doing would be clearly unlawful
given the circumstances.”
Pace v. Capobianco, 283 F.3d
established] is fundamentally a question of fair notice:
If the law does not make the officer aware that his
‘conduct would be clearly unlawful,’ then he is protected
by qualified immunity, Saucier v. Katz, 533 U.S. 194, 202
materially similar case has already been decided’ in his
favor, then fair notice exists and qualified immunity
does not attach. Mercado v. City of Orlando, 407 F.3d
As discussed above, Carswell is materially similar to
the instant case.
There, as here, a medical professional
officers, and there, as here, the medical professional
ignored those warnings.
The court finds that Carswell
provided ample notice to Kennedy that her conduct would
violate McCall’s constitutional rights.
Nurse Kennedy is not entitled to summary judgment on
the Fourteenth Amendment claim.
iii. Administrator Reed
Administrator Reed under the Fourteenth Amendment as
enforced through 42 U.S.C. § 1983.
Theories of vicarious
responsibility, such as respondeat superior, are not
available in § 1983 actions.
Goebert, 510 F.3d at 1331.
Rather, “Supervisory liability lies where the defendant
personally participates in the unconstitutional conduct
or there is a causal connection between such conduct and
the defendant’s actions.”
Harper v. Lawrence Cnty.,
Ala., 592 F.3d 1227, 1236 (11th Cir. 2010).
undisputed that Reed had no personal involvement with
(1) “a history of widespread abuse put the [Reed] on
notice of the need to correct the alleged deprivation,
and he fail[ed] to do so”; (2) that Reed’s “custom or
constitutional rights”; or (3) that “facts support an
inference that the [Reed] directed the subordinates to
act unlawfully or knew that the subordinates would act
unlawfully and failed to stop them from doing so.”
The standard by which Reed may be “held liable
subordinate is extremely rigorous.”
Cottone v. Jenne,
326 F.3d 1352, 1360 (11th Cir. 2003) (internal quotation
liability as to Reed relies on the second type of casual
connection, namely one in which the supervisor’s custom
or policy results in deliberate indifference.
that Reed had the following policies which resulted in
deliberate indifference: (1) policy of officers rather
treatment; (3) policy of understaffing N–pod; (4) policy
of not accommodating mentally ill inmates; (5) policy of
inadequately administering drugs, particularly because of
flawed documentation; (6) custom of failing to train and
supervise medical staff; and (7) custom and policy of not
allowing officers to move inmates to the medical unit.
implement policy, not the authority to create it.
latter power, he argues, is vested in the sheriff alone.
See 1975 Ala. Code § 14-6-1 (“The sheriff has the legal
custody and charge of the jail in his or her county and
all prisoners committed thereto....”).
Plaintiff administratrix argues that Reed is the
policymaker, and cites Reed’s deposition testimony for
the proposition that he was responsible for changes to
That testimony does not support that position.
Reed in fact states that, while he makes changes to
policies, he “make[s] sure [the Sheriff] approves of
Reed Dep. (Doc. No. 90-27) at 48-9; see also id.
at 48 (“Q: But you adopted [the policies] and implemented
them or re-implemented them when you came on. Is that
right? A: The sheriff did.”).
points to no other evidence indicating that any policy is
attributable to Reed as opposed to the sheriff.
words, the undisputed evidence is that the sheriff makes
policy, not Reed.
As such, Reed cannot be held liable in
In the alternative, citing Greason v. Kemp, 891 F.2d
argues that Reed is liable for failing to train and
official is not liable under section 1983 for an injury
resulting from his failure to train subordinates unless
his ‘failure to train amounts to deliberate indifference
to the rights of persons with whom the subordinates come
into contact’ and the failure has actually caused the
injury of which the plaintiff complains.”
City of Foley, Ala., 30 F.3d 1390, 1397 (11th Cir. 1994)
(quoting Popham v. City of Talladega, 908 F.2d 1561,
indifference is a stringent standard:
“Failure to train
can amount to deliberate indifference when the need for
more or different training is obvious, such as when there
exists a history of abuse by subordinates that has put
the supervisor on notice of the need for corrective
measures, Greason, 891 F.2d at 837, and when the failure
to train is likely to result in the violation of a
The standard is the same for failure to
Plaintiff administratrix argues that Reed failed to
train personnel adequately to handle mentally ill inmates
and failed to supervise the medical staff.
points to no evidence that Reed was aware that jail
personnel were ignoring prisoners’ medical conditions
because they did not know how to handle mental illness
and no evidence that Reed was aware that medical-unit
personnel were failing to respond to requests to examine
prisoners or inaccurately recording medication records.
Cf. Greason, 891 F.2d at 837 (finding failure
to train and supervise where defendants were aware of the
underlying problems and did nothing to address them).
these facts, the need for training to avoid this kind of
harm was not obvious.
Belcher, 30 F.3d at 1397.
It is clear that a great number of things went wrong
in the jail with regard to McCall.
The policies were
problematic, the staff’s attitude was inappropriate, and
the failure to respond to his medical condition was
inexcusable. But plaintiff administratrix has pointed to
no evidence tying any of that to wrongdoing by Reed.
liability, which the court may not do.
Fourteenth Amendment claim.
iv. Houston County
Finally, plaintiff administratrix has sued Houston
County for a violation of the Fourteenth Amendment as
enforced through 42 U.S.C. § 1983.
Counties may be sued
under § 1983, but may not be held liable under a theory
of respondeat superior.
McDowell v. Brown, 392 F.3d
1283, 1289 (11th Cir. 2004).
“‘It is only when the
[inflicts] the injury that the [county] may be held
liable.’” Id. (quoting City of Canton v. Harris, 489 U.S.
378, 385 (1989)).
Thus, “to impose § 1983 liability on
(1) that [a] constitutional right[ was] violated; (2)
that the [county] had a custom or policy that constituted
deliberate indifference to that constitutional right; and
(3) that the policy or custom caused the violation.”
Plaintiff administratrix argues that Houston County is
liable for its policy of delaying the hiring of a jail
psychiatrist and for its policy of inadequate funding for
Houston County argues that it is entitled to summary
inmates is vested solely in the sheriff, a state official
by Alabama law, for “Alabama counties have no duties with
respect to the daily operation of the county jails and no
authority to dictate how the jails are run.”
Jefferson Cnty., Ala., 137 F.3d 1285, 1291 (11th Cir.
1998) (en banc).
As such, the county “cannot be liable
for the harms that befall jail inmates due to improper
operation of the jail or negligent supervision of its
See id. at 1289 (“The duties of the counties
with respect to the jails ‘are limited to funding the
operation of the jail and to providing facilities to
house the jail.’”) (quoting Stark v. Madison County, 678
So.2d 787, 787 (Ala. Civ. App. 1996)).
law provides that, “Necessary clothing and bedding must
be furnished by the sheriff or jailer, at the expense of
the county, to those prisoners who are unable to provide
them for themselves, and also necessary medicines and
medical attention to those who are sick or injured, when
they are unable to provide them for themselves.”
Ala. Code § 14-6-19 (emphasis added).
Thus the policy
appears to be one that Houston County could be held
liable for under some circumstances.
However, McDowell, on which plaintiff administratrix
relies, precludes liability in this case.
the inmate was having problems walking and urinating and
His case was incorrectly thought not to be an
emergency and other inmates had injuries which required
immediate care, so his transportation was delayed for
There, as here, the plaintiff alleged county
The Eleventh Circuit found that the county could not
be held liable in that case, and all three reasons the
court gave apply to this case as well.
First, the court
in McDowell found that the plaintiff had failed to show
a specific policy of “understaffing the Jail so as to
delay the transfer of inmates.”
McDowell, 392 F.3d at
While the plaintiff in that case, like plaintiff
administratrix here, had offered generalized evidence
that, “despite Sheriff’s Office requests for additional
personnel, other priorities often took precedent,” such
evidence was insufficient without a showing that the jail
“consistently failed” to transport individuals such as
the plaintiff to the hospital.
Id. at 1290.
In this case, plaintiff administratrix has offered
evidence that the jail was underfunded and that Houston
County knew of the underfunding.
But she has offered no
evidence that incidents such as this one were widespread;
on the contrary, plaintiff administratrix has pointed to
no similar incidents of a medical condition being ignored
because of mental illness.
“Simply put, this isolated
evidence of the County's ‘persistent’ or ‘widespread’
Id. at 1290-1.
Second, the Eleventh Circuit rejected the plaintiff’s
claim in McDowell because he failed to show that “the
[county’s] action was ‘taken with the requisite degree of
culpability, ... with deliberate indifference to its
(quoting Davis ex rel. Doe v. Dekalb County Sch. Dist.,
233 F.3d 1367, 1375-76 (11th Cir. 2000)).
It is not
enough, the court made clear, to point to “a generalized
policy of understaffing.”
Instead, the county “must
have a ‘deliberate intent’ to inadequately staff.”
In order to carry this burden in a
case in which the challenged policy is facially valid,
the plaintiff must “establish that a reasonable member of
decisions would lead to events that occurred here.”
at 1292 (emphasis added).
In this case, plaintiff administratrix has offered no
evidence at all that “a reasonable member of the [Houston
County] Board would conclude that the [county’s] budget
decisions would lead to events that occurred here.”
Indeed, it is hard to imagine how she could do so.
the unusual circumstances of this case, with a serious
but treatable physical illness ‘masked’ by serious mental
administratrix could come forward with proof that the
county should have expected the events that occurred.
“The alleged constitutional violation here was not a
McDowell, 392 F.3d at 1292.
plaintiff had failed to establish causation in McDowell.
“A plaintiff must prove causation by demonstrating that
the [county’s] deliberate conduct ... was the moving
force behind [the] injury....” Id. (internal quotation
marks and emphasis omitted).
It is insufficient to show
that, but for the budget decision, the violation would
not have occurred or to show that the budget decision
made a violation more likely.
Instead, courts must
“look to whether a complete review of the budget decision
(and the resulting understaffed Jail) reveals that the
Id. (internal quotation marks omitted).
court found that there was no such causal connection in
For the reasons described above, this court
concludes likewise as to the instant case.
Two of the cases on which plaintiff administratrix
In Moore v. Morgan, 922 F.2d 1553, 1555
claim was not at issue on appeal.
If a county is aware
of unconstitutional overcrowding, and does not authorize
funding to increase housing for prisoners, then obviously
it should know that unconstitutional overcrowding will
Similarly, in Marsh v. Butler Cnty., Ala., 268
Circuit addressed claims against the county based only on
the physical condition of the jail.
These cases shed
little light on the analysis for a funding argument in
the context of deliberate indifference and certainly do
not offer reason to doubt the teachings of McDowell, a
relies, Anderson v. City of Atlanta, 778 F.2d 678, 685
However, Anderson is importantly distinguishable from
both this case and McDowell.
In Anderson, a detainee had
died during the night at a jail.
The evidence indicated
that the jailers knew he was intoxicated and that he had
personnel had seen him and the jailers had not checked in
on him during the night as frequently as their policy
A jury found that none of the individual
officers was liable, but held the City of Atlanta (as
well as the director of the City’s Bureau of Corrections)
verdict (with an exception not relevant here).
Anderson, as it later was in McDowell, that proof of only
an “isolated event” would be insufficient to establish
liability for a county or city.
Anderson, 778 F.2d at
However, the difference in Anderson was that the
plaintiffs had offered ample evidence on each of the
issues about which the plaintiff in McDowell had failed
to carry his burden of proof.
In Anderson, nearly every
Corrections officers were unable to check
on inmates because they were “off doing someone else’s
job,” id. at 682, and required medical personal had
simply not been hired.
Id. at 684.
was sufficient evidence to establish that the city knew
that its understaffing would prevent officers from doing
their jobs properly.
Id. at 686.
In other words, it was
entirely foreseeable that the policy of underfunding
would lead to exactly the kind of situation before the
court in that case.
Finally, there was a clear causal
connection: Anderson had died because no nurse evaluated
him and because corrections officers did not look in on
him frequently enough, or, in other words, because of the
This conclusion was underscored by
individual officer, presumably because the jury blamed
the city’s policy rather than the individual officers’
conduct: “The jury could reasonably find that a policy of
understaffing resulted in the unavailability of medical
personnel and prevented individual officers from being
able to do their tasks properly.”
Id. at 686.
Thus, as they pertain to this case, Anderson and
McDowell do not differ in the legal standards applied,
Like McDowell, and unlike Anderson,
plaintiff administratrix in this case has failed to offer
sufficient evidence to establish that Houston County’s
policy of underfunding violated McCall’s constitutional
Therefore, summary judgment will be entered in
B. ADA and Rehabilitation Act
Plaintiff administratrix asserts that Houston County
violated the ADA (42 U.S.C. § 12131 et seq.) and § 504 of
the Rehabilitation Act (29 U.S.C. § 794).
seeks summary judgment as to these claims, arguing that
there was no discrimination based on disability and that,
in any case, the county is not the proper defendant for
participation, denying benefits to, or discriminating
against individuals with disabilities by reason of those
42 U.S.C. § 12132.
Section 504 of the
Rehabilitation Act imposes parallel restrictions on local
governments that receive federal financial assistance.
29 U.S.C. § 794.
“In order to state a Title II claim, a plaintiff
individual with a disability; (2) that he was either
excluded from participation in or denied the benefits of
a public entity’s services, programs, or activities, or
was otherwise discriminated against by the public entity;
Bircoll v. Miami-Dade Cnty., 480 F.3d 1072,
1083 (11th Cir. 2007).
The standard is the same under
See Cash v. Smith, 231 F.3d 1301, 1305 n. 2 (11th
Cir. 2000) (“Cases decided under the Rehabilitation Act
are precedent for cases under the ADA, and vice-versa.”).
Plaintiff administratrix argues that McCall was a
qualified individual with a disability, namely his mental
She argues that the county excluded, denied
benefits to, and discriminated against McCall by failing
particular by failing to hire a psychiatrist for six
Finally, she argues this was on account of his
understanding of mental illness.
These claims fail. As noted above, under Alabama law
the county is responsible for funding but not for the
actual provision of medical care or oversight of staff.
See Turquitt, 137 F.3d at 1291.
Thus lack of funding
alone must be the basis of these claims.
But that means
funding was “by reason of” McCall’s disability.
simply no evidence that the county failed to fund a
psychiatrist or other staff in a discriminatory manner.
See Merker v. Miami-Dade Cnty. Fla., 485 F. Supp. 2d
1349, 1356 (S.D. Fla. 2007) (Seitz, J.) (“Claims for
discriminated or acted with bad faith.”) (citing Wood v.
President & Trustees of Spring Hill College, 978 F.2d
1214, 1219 (11th Cir. 1992)).
The court will grant summary judgment Houston County
on the ADA and Rehabilitation Act claims.
C. Alabama Wrongful-Death Statute
Finally, plaintiff administratrix asserts violations
provides a cause of action for death resulting from a
defendant’s “‘wrongful act, omission, or negligence.’”
Ex parte Rodgers, --- So.3d ---, 2013 WL 1277130 (Ala.
2013) (quoting 1975 Ala. Code § 6-5-410(a)).
Kennedy, and Reed have not argued that they are entitled
to summary judgment on the merits of this claim, that is,
that plaintiff administratrix failed to offer sufficient
evidence to establish a wrongful-death claim.
§ 14-6-1) and Alabama common-law state-agent immunity.
i. Statutory Immunity
West, Kennedy, and Reed invoke the recently amended
1975 Ala. Code § 14-6-1.
Under Alabama law, the sheriff
Ex parte Shelley, 53 So. 3d 887, 891 (Ala.
The Alabama Supreme Court ruled in 2009 that the
Constitution did not extend to employees of the sheriff
other than deputies.
Id. at 897.
In 2011, the Alabama
legislature amended § 14-6-1, which now provides:
“The sheriff may employ persons to carry
out his or her duty to operate the jail
and supervise the inmates housed therein
for whose acts he or she is civilly
responsible. Persons so employed by the
sheriff shall be acting for and under
the direction and supervision of the
sheriff and shall be entitled to the
same immunities and legal protections
granted to the sheriff under the general
laws and the Constitution of Alabama of
1901, as long as such persons are acting
within the line and scope of their
duties and are acting in compliance with
1975 Ala. Code § 14-6-1 (emphasis added).
and Reed argue that they are rendered immune by the new
amended § 14-6-1 does not apply to conduct that took
place before it was enacted.
In this case, the events at
issue took place in 2009, before the statute was amended.
The Eleventh Circuit has resolved this issue since
the parties submitted summary-judgment briefing.
Supreme Court the question of whether § 14-6-1 applies
Johnson v. Conner, 720 F.3d 1311, 1316
(11th Cir. 2013).
However, the Alabama Supreme Court
declined to address the issue.
Johnson v. Conner, ---
F.3d ---, 2014 WL 2619687 at *1 n.1 (11th Cir. 2014).
The Eleventh Circuit then examined the matter itself and
Id. at *2.
Therefore, the appellate
court found that it “must apply the statute in effect
when the injury occurred.”
Accordingly, this court
will apply the law in effect at the time of the injury in
this case, and, accordingly, concludes that the statute
does not provide absolute immunity for Officer West,
Shelley, 53 So.
Nurse Kennedy, and Administrator Reed.
3d at 897.
ii. Common-Law Immunity
common-law state-agent immunity from the state-law claim.
In Ex parte Butts, 775 So. 2d 173, 177-78 (Ala. 2000),
the Alabama Supreme Court adopted a restatement of stateagent immunity, first articulated by the plurality in Ex
parte Cranman, 792 So.2d 392 (Ala.2000), as follows, in
“A State agent shall be immune from
civil liability in his or her personal
capacity when the conduct made the basis
of the claim against the agent is based
upon the agent’s ....
(2) exercising his or her judgment in
the administration of a department or
agency of government ...
enforcement of the criminal laws of the
The court also recognized certain
follows, in part:
“[However,] a State agent shall not be
immune from civil liability in his or
her personal capacity
(1) when the Constitution or laws of the
United States, or the Constitution of
regulations of this State enacted or
governmental agency require otherwise;
(2) when the State agent acts willfully,
maliciously, fraudulently, in bad faith,
beyond his or her authority, or under a
mistaken interpretation of the law.”
The first question is whether West, Kennedy, and Reed
are state agents.
Plaintiff administratrix appears to
argue that Ex parte Shelley, which held that employees of
absolute immunity, also prevents West, Kennedy, and Reed
from invoking Cranman immunity.
However, this misreads
Shelley, which provides:
“‘When determining whether a State
interest in an action against a state
official or employee in his or her
individual capacity is sufficient to
trigger the immunity granted by [Ala.
Const.] § 14, our cases distinguish
between the standards applied to those
positions exist by virtue of legislative
pronouncement and those who serve as the
constitutional officers of this State.
We have held that State-agent immunity
may bar an action against a state agent
announced in Ex parte Cranman, 792 So.2d
392 (Ala. 2000). ...
Court has consistently held that a claim
for monetary damages made against a
constitutional officer in the officer's
individual capacity is barred by State
immunity whenever the acts that are the
basis of the alleged liability were
performed within the course and scope of
the officer's employment.’”
Shelley, 53 So. 3d at 897 (quoting Ex parte Davis, 930
So.2d 497, 500-01 (Ala. 2005)).
Shelley held only that
jailers were not the alter ego of the sheriff, himself a
This did nothing to prevent
them, as employees of the sheriff and thus of the state,
from invoking Cranman.
Under the burden-shifting framework established by
the Alabama Supreme Court, West, Kennedy, and Reed bear
the initial burden of establishing that they were acting
in a function of the type that would entitle them to
See Ex parte Estate of Reynolds,
946 So.2d 450, 452 (Ala. 2006); see also Grider v. City
of Auburn, 618 F.3d 1240, 1255 (11th Cir. 2010). If they
make “such a showing, the burden then shifts to the
Reynolds, 946 So.2d at 452.
West, Kennedy, and Reed argue for immunity under the
enforcement of the criminal laws.
They cite Howard v.
City of Atmore, 887 So. 2d 201 (Ala. 2003), which was a
wrongful-death claim based on the jailers’ failure to
prevent an inmate’s suicide.
In that case, the Alabama
Supreme Court found that “the Cranman categories include
the guarding of a city jail”.
Id. at 206.
Relying on Wilson v. Manning, 880 So. 2d 1101, 1109
West’s, Kennedy’s, and Reed’s conduct falls outside of
Wilson was a medical-malpractice suit brought
by an inmate against the jail’s director of nursing.
court found that the nurse was not immune under the
§ 14–6–19, which provides that “the sheriff or jailer” is
medical attention,” the court found that even if the
discretion to decline to provide necessary medicines and
treatment in violation of that statute.”
So. 2d at 1109.
This court finds that Wilson controls this case.
Both prongs (2) and (4) of Cranman specify situations in
jailers, applies to all of the individual defendants in
Thus the Alabama Supreme Court’s view that
the nurse in Wilson had no discretion to decline to
provide necessary medical treatment applies with equal
force to Nurse Kennedy and the other jail employees in
To that extent, Howard, which is about
Officer West, Nurse Kennedy, and Administrator Reed
are not entitled to Cranman immunity.
An appropriate judgment will be entered as follows:
summary judgment will be entered in favor of Houston
County on all claims against it, that is, claims under
the Fourteenth Amendment, the ADA, and § 504 of the
Rehabilitation Act; summary judgment will be entered in
favor of Officer West on the Fourteenth Amendment claim;
The following claims will go to trial:
the Fourteenth Amendment claim against Kennedy and the
state-law wrongful-death claim against West, Kennedy and
DONE, this the 3rd day of July, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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