McCall, et al. v. Houston County, et al.

Filing 182

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, )
)
Plaintiff,
)
)
v.
)
)
HOUSTON COUNTY, et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
1:11cv559-MHT
(WO)

OPINION
As administratrix of the estate of decedent Jonathan
McCall,

plaintiff

names

the

following

remaining

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
Alabama’s
§ 6-5-410.

wrongful-death

statute,

1975

Ala.

Code

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.
§ 794.
(federal

Jurisdiction is proper under 28 U.S.C. §§ 1331
question),

1343

(civil

rights),

and

1367

(supplemental jurisdiction).
This cause is before the court on cross-motions for
summary judgment.

For the reasons that follow, plaintiff

administratrix’s

motion

will

be

denied

and

the

defendants’ motion will be granted in part and denied in
part.

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.

The court

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.”
Fed.

R.

Civ.

P.

56(a).

The

2

court

must

view

the

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).

II. BACKGROUND
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
of

part

of

the

large

intestine

that

can

cause

obstruction, pain, and, if untreated, ultimately death.
See Evans Rpt. (Doc. No. 87-1) at 3-4.

Except where

noted, the facts in this case are undisputed.

A. Events Preceding July 13
McCall suffered from serious mental illness for years
prior

to

diagnosed

his
with

death.

At

various

schizophrenia,

schizoaffective disorder.

times

bipolar

he

had

disorder,

been
and

See Silberberg Rpt. (Doc. No.

3

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.
Upon

a

petition

from

his

sister

(plaintiff

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.

He was

arrested for terrorist threats, and transported to the
Houston County Jail.
When he arrived at the jail, McCall was screened for
medical

issues.

He

reported

suicide

attempts

or

ideation, that he was currently taking medication, and
that he had recently been hospitalized or treated by a
doctor.

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

4

assessed by medical staff or a psychiatrist on this
basis.

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.
A

SpectraCare

physician

wrote

McCall

additional

prescriptions on May 27, apparently without examining
McCall.

Jail

personnel

were

aware

continuing contact with McCall.

of

SpectraCare’s

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.
those

reported

were

rocking

back

and

forth,

Among
pacing,

arguing with himself, spending time naked in his cell,
urinating on himself, masturbating in his cell, putting

5

toilet paper in his mouth, and licking a glass window.
On

June

15,

Physician’s

Assistant

Jason

Smoak,

the

director of the Houston County Jail’s clinic, assessed
McCall because of his behavior.

Smoak noted no medical

issues.
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.

He

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.
time-saving measure.

This arrangement was a

The jail has since revised its

6

policy to require nurses to administer medications in the
N-Pod as well.
One of the corrections officers, Kelly Landreau,
attempted

to

give

unresponsive.

the

pills

to

McCall,

but

he

was

Landreau then found Kennedy at another pod

and asked her to check on McCall.

Kennedy refused,

saying that McCall was crazy and “I can’t fix crazy.”
Kennedy Dep. (Doc. No. 90-30) at 127.1
Sometime

later

that

evening,

Kennedy

overheard

Landreau and another officer discussing the fact that no
medical

personnel

reiterated
McCall.

that
She

ever

there
then

checked
was

and

said

that

nothing

spoke

sergeant about the matter.
Kennedy

on

to

McCall.
she

Kennedy

could

Landreau’s

do

for

supervising

The sergeant called Landreau

had

spoken

to

her

about

the

overheard conversation and that McCall was crazy and

1. There is conflicting evidence as to the wording of
this statement.
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.
7

“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
daily.

McCall

complained

about

not

receiving

his

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
added

to

his

water.

McCall

did

not

receive

any

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.

The actual

amount of time McCall went without his medication may
have

been

longer,

as

the

record

8

indicates

that

the

medical

unit

did

not

keep

reliable

records

of

when

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

¶ 35.2
On July 11, Physician’s Assistant Smoak ordered that
another

drug,

Risperidone.
substitution.

Trazadone,

be

substituted

for

the

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.
See
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 53 (1st Cir. 2000). The remaining objections
are
unfounded
as
to
Kennedy’s
observations
and
interpretations as set forth above, and are overruled as
well.
9

Risperidone;

rather,

it

can

exacerbate

psychosis

or

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”)).
Indeed, both
parties cite to the interviews.
Without making any
finding as to their ultimate admissibility, the court
will consider them at this stage.
10

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
not

hear

any

sounds

McCall

may

have

been

making.

Visually, he concluded that McCall did not appear to be
in pain and was a healthy color.
completed his prisoner count.
the situation.

West moved on and

He informed Officer Dye of

There was no record from the previous

shift concerning behavior by McCall.
Officers

West

and

Dye

next

encountered

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
(continued...)
11

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
urine.
offered

McCall was shivering and moaning.
McCall

unresponsive.

his

medication,

but

Officer Dye
McCall

was

The officers agreed that the medical unit

needed to examine McCall.

West Aff. (Doc. No. 90-17) at

9.5

4. (...continued)
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.
12

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.
of

Dye’s

report

to

the

sergeant

and

West was aware
the

sergeant’s

response.6
According to Dye, he also called the medical unit
around this time and spoke to Nurse Kennedy.
(Doc. No. 86-2) at 2.

Dye Aff.

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

Kennedy states

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
(continued...)
13

that she spoke to Dye about McCall only once that day and
that their conversation was non-substantive.

Kennedy

7. (...continued)
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
voluntary).
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.
14

Aff. (Doc. No. 22) at 10; Kennedy Int. (Doc. No. 90-28)
at 115.8
Officer West visually checked on McCall periodically
during

the

position.
noon.

day

and

saw

him

in

generally

the

same

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
witness’s deposition.
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.
2006).
Plaintiff
administratrix’s
objection
is
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.
15

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
anything.

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.
Dye
Kennedy.9

called

the

medical

unit

and

He asked to speak with Smoak.

spoke

to

Nurse

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.

Smoak

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.
16

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.

The officers

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
p.m.

Dye informed them of McCall’s behavior, that he had

alerted

the

medical

unit,

cleaned the following day.

and

that

McCall

would

be

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.
breathing.

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.

Paramedics

were called and took McCall to the hospital.

Efforts to

revive him ceased later that evening.

17

Cecal volvulus, the intestinal twisting from which
McCall died, is an extremely painful condition.

It takes

hours or days to develop, and most cases are treated
because that extended time period is so painful.

Thus,

death

among

due

to

this

condition

healthy young people.
at 90.

is

very

uncommon

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.

Id.

III. DISCUSSION
Plaintiff

administratrix

asserts

the

following

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;

18

and (3) a claim under Alabama’s wrongful-death statute
against West, Kennedy, and Reed.
Plaintiff

administratrix

seeks

partial

summary

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
counts.

The defendants seek summary judgment on all

claims.

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
punishments,”

U.S.

Const.

Amend.

VIII,

including

deliberate indifference to the medical needs of inmates.

19

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

While the

Eighth Amendment does not technically apply prior to
conviction,

the

“identical”

Fourteenth

Amendment

deliberate-indifference

treatment of

applies

standard

for

pretrial detainees such as McCall.

an
the

Goebert

v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007).

To

establish deliberate indifference, a plaintiff must show
(1) “that [he] had a serious medical need”; (2)

“that

the prison official acted with deliberate indifference to
[his]

serious

medical

causation.

it

that

and

(3)

that

there

is

The first prong is objective, in the

Id.

sense

need”;

looks

to

the

inmate’s

actual

medical

condition; the second is subjective, in the sense that it
looks to the official’s state of mind.
There

appears

to

be

no

dispute

established the first, objective prong.

that

McCall

has

“A medical need

that is serious enough to satisfy the objective component
is

one

that

has

been

diagnosed

by

a

physician

as

mandating treatment or one that is so obvious that even

20

a lay person would easily recognize the necessity for a
doctor's attention.”

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,

condition.”

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).

“Proof

of deliberate indifference requires a great deal more
than

does

proof

of

negligence:

‘To

be

deliberately

indifferent a prison official must know of and disregard
an

excessive

risk

to

inmate

health

or

safety;

the

official must both be aware of facts from which the
inference could be drawn that a substantial risk of

21

serious

harm

and

Goodman

inference.’”

exists,

v.

he

must

Kimbrough,

also
718

draw
F.3d

the
1325,

1331-32 (11th Cir. 2013) (quoting Purcell ex rel. Estate
of Morgan v. Toombs Cnty., Ga, 400 F.3d 1313, 1319-20
(11th

Cir.

2005))

(emphasis

and

internal

quotations

omitted).
“As such, imputed or collective knowledge cannot
serve

as

the

indifference.

basis

for

a

claim

of

deliberate

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)
(citations omitted).

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

22

dispute.

The court will grant summary judgment in favor

of West.
The first issue is whether West had a subjective
knowledge of a risk of serious harm.
at 1327.

Goebert, 510 F.3d

The court concludes that he did.

West was

aware that McCall was having some kind of problem on July
13.

He observed McCall several times throughout the day,

naked, on the floor, lying in his own urine.

He heard

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
that

he

staff,

believed
although

required
not

one

constituted an emergency.

an
he

examination
thought

at

by

medical

the

time

West Dep. (Doc. No. 90-34) at

25; West Aff. (Doc. No. 90-17) at 9.

23

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
[for

deliberate

at 1327.

“‘[O]fficials, to be liable

indifference],

must

be

aware

of

a

substantial risk of serious harm to the inmates and not
take

reasonable

measures

to

alleviate

that

risk.’”

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
conditions

where

it

is

apparent

that

delay

would

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
risk,

plaintiff

administratrix

24

cites

Officer

Dye’s

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.

Dye

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.

In the

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:
was

the

fact

that

the

officers’

concerns

had

been

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
by

taking

McCall

to

the

instructed to do so.
Eleventh

Circuit

Court

medical

unit

without

being

As is illustrated by a pair of
of

25

Appeals

cases

from

2010,

reporting medical concerns may or may not be enough to
avoid deliberate-indifference liability, depending on the
circumstances.
In

the

Harper,

plaintiff

had

Eleventh

Circuit

sufficiently

found

alleged

indifference to survive a motion to dismiss.
1235.

that

the

deliberate
592 F.3d at

The jailers in that case were aware that the

prisoner
physically
himself.

was

hallucinating,

weak,

and

slurring

incoherent

Id. at 1234.

and

had

his

words,

urinated

on

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.

The

jailers also notified another jailer of the circumstances
during a shift change.
noted,

“neither

However, as the Eleventh Circuit

[jailer]

took

any

steps

to

actually

secure immediate medical attention for [the prisoner],
whose need for prompt treatment appeared dire.”

26

Id. at

1235.

These

sufficient

to

allegations,
support

a

the

court

violation

of

found,

the

were

Fourteenth

Amendment.
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.

In that

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
from

her

vagina.

Id.

at

1154-55.

Eventually

the

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.

The prisoner

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.

27

Because the plaintiff

had not “presented evidence that her situation was so
obviously dire that two lay deputies must have known that
a

medical

professional

prisoner’s]

condition,”

had
the

grossly
court

misjudged

concluded

[the

that

no

reasonable jury could find that they knew the situation
was an emergency.
This

case

is

Id.
somewhere

in

between

Harper

and

Officers West and Dye did more than the

Townsend.

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
the

provision

of

actual

medical

care.

But

unlike

Townsend, they cannot rely on an assessment by Nurse
Kennedy

or

Physician’s

Assistant

Smoak,

as

neither

actually examined McCall that day.
There

is

another

aspect

mitigates West’s liability.
that

the

jail’s

policy

of

the

situation

that

It is apparently undisputed

was

that

jailers

could

not

unilaterally bring inmates to the medical unit except in

28

an emergency.10

Rather, they needed to wait for the

medical unit to call and ask for an inmate to be brought
up.

In the case of an emergency, officers could call

911.

According to West, while he believed McCall needed

medical attention, he did not believe the situation was
an emergency.

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
deliberate indifference.

“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.
29

1384

(11th

Cir.

1982).

In

this

case,

given

his

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.

He

could have called 911. In this sense, the court agrees
with plaintiff administratrix’s expert: McCall’s behavior
“should

have

caused

alarm

and

prompted

immediate

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
considered

in

the

light

most

favorable

to

plaintiff

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

30

situation,
problem

in

but

that

no

he

believed

emergency,

there

along

with

was

a

medical

dedication

to

following protocol and being satisfied with notifying
other authorities.
negligent,

is

indifference.

That West was wrong, and was perhaps
insufficient

to

show

deliberate

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
unit

and

their

supervisor.

While

that

might

be

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
began.

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
(continued...)
31

ii. Nurse Kennedy
Both plaintiff administratrix and Nurse Kennedy also
seek summary judgment regarding Kennedy’s liability under
the

Fourteenth

Amendment.

Here,

factual

disputes

preclude summary judgment in favor of either party.
11. (...continued)
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
at 1327.
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.
32

The core dispute regarding Nurse Kennedy is what, if
anything, she knew of McCall’s condition on July 13.

In

first considering plaintiff administratrix’s motion, the
court takes the evidence in the light most favorable to
Kennedy.

In this light, she knew next to nothing.

She

received only one call from Officer Dye, who simply asked
her

to

be

connected

to

Physician’s

Assistant

Smoak.

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
state.

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.”
Dep.

(Doc.

No.

90-30)

at

33

127.

This

Kennedy

constituted

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
medications adjusted.
8.

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.

Id.

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

34

the control booth and nothing appeared to be wrong.

Id.

The officers who had reported the problem earlier said he
was fine.
On

Id.

these

indifferent.

facts,

Kennedy

was

not

deliberately

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.
jury

could

conclude

that

her

comment,

A reasonable
“I

can’t

fix

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

35

moaning.

He told her someone from the medical unit

needed to come down to examine McCall.

Kennedy never

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
significantly

different

meaning

as

well.

From

this

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.

Contrary

to Kennedy’s statement, Landreau’s deposition does not
indicate that he told her everything was fine.

On the

contrary, a fair reading of his deposition and interview
is

that

Landreau

sought

out

Kennedy

specifically

to

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.

36

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
ignored
Kennedy,

Landreau’s
McCall

was

warnings,
crazy

and

because,
“I

Kennedy Dep. (Doc. No. 90-30) at 127.

according

can’t

fix

to

crazy.”

In other words, a

jury could conclude that Kennedy had decided to ignore
all

concerns

illness.

regarding

McCall

because

of

his

mental

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.

Indeed, the

situation is reminiscent of Carswell v. Bay Cnty., 854
F.2d 454, 457 (11th Cir. 1988), relied on by plaintiff

37

administratrix.

In

that

case,

the

Eleventh

Circuit

upheld a jury verdict of deliberate indifference against
a physician’s assistant working at the jail.

The court

cited evidence that two members of the jail’s staff
notified

the

physician’s

assistant

of

the

inmate’s

serious condition and that the physician’s assistant
ignored those warnings.
taken

in

the

light

Similarly, here, the evidence
most

favorable

to

plaintiff

administratrix indicates that Kennedy ignored several
warnings

on

multiple

days

about

McCall’s

medical

condition, including information that he was moaning
naked in his own urine.

This would constitute deliberate

indifference.
Nurse Kennedy also seeks summary judgment based on
qualified immunity.

“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.’”

38

Pearson v.

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
authority.

Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th

Cir. 2002). Plaintiff administratrix argues that Kennedy
has failed to meet that burden.
government
purview

of

official
his

proves

that

discretionary

The law is that, “A
he

acted

authority

within
by

the

showing

objective circumstances which would compel the conclusion
that

his

actions

were

undertaken

pursuant

to

the

performance of his duties and within the scope of his
authority.”

Hutton v. Strickland, 919 F.2d 1531, 1537

(11th Cir. 1990) (internal quotation marks omitted).

The

actions and omissions with which plaintiff administratrix
charges Kennedy in this case clearly fall within this
definition.

The court finds she was acting within her

discretionary authority.

39

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
viewed

in

the

light

most

favorable

plaintiff

administratrix, the evidence is sufficient to support a
finding

that

Kennedy

violated

McCall’s

Fourteenth

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’s

place

would

be

on

notice

that

what

the

defendant official was doing would be clearly unlawful
given the circumstances.”

Pace v. Capobianco, 283 F.3d

40

1275,

1282

explained,

(11th
“The

Cir.

2002).

requirement

As

that

a

this
right

court
be

has

clearly

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
(2001);

however,

if

the

plaintiff

can

show

that

‘a

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
1152.

1159

Brundidge,

(11th
2012

Cir.
WL

2005).”

705358

at

Schultz
*5

(M.D.

v.

City

Ala.

of

2012)

(Thompson, J.).
As discussed above, Carswell is materially similar to
the instant case.
was

notified

of

There, as here, a medical professional
serious

problems

by

correctional

officers, and there, as here, the medical professional
ignored those warnings.

The court finds that Carswell

41

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
The

court

next

turns

to

the

claim

against

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).

It is

undisputed that Reed had no personal involvement with
McCall.
connection,

Thus,

to

plaintiff

establish

to

administratrix

42

required
must

causal

show

that

(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
policy

...

result[ed]

in

deliberate

indifference

to

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.”
(alteration

in

original,

internal

quotation

Id.
marks

omitted).

The standard by which Reed may be “held liable

in

individual

[his]

capacity

for

subordinate is extremely rigorous.”

the

actions

of

a

Cottone v. Jenne,

326 F.3d 1352, 1360 (11th Cir. 2003) (internal quotation
marks omitted).
Plaintiff

administratrix’s

principal

theory

of

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.

She argues

that Reed had the following policies which resulted in

43

deliberate indifference: (1) policy of officers rather
than
(2)

nurses
policy

dispensing
of

requiring

medications
written

in

the

N-pod;

request

for

medical

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.
Reed

argues

that

he

had

the

authority

only

implement policy, not the authority to create it.

to
The

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
policy.

That testimony does not support that position.

44

Reed in fact states that, while he makes changes to
policies, he “make[s] sure [the Sheriff] approves of
them.”

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.”).

Plaintiff administratrix

points to no other evidence indicating that any policy is
attributable to Reed as opposed to the sheriff.

In other

words, the undisputed evidence is that the sheriff makes
policy, not Reed.
his

As such, Reed cannot be held liable in

supervisory

capacity

for

the

results

of

those

policies.
In the alternative, citing Greason v. Kemp, 891 F.2d
829,

836

(11th

Cir.

1990),

plaintiff

administratrix

argues that Reed is liable for failing to train and
supervise

others.

The

law

is

that,

“A

supervisory

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

45

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.”

Belcher v.

City of Foley, Ala., 30 F.3d 1390, 1397 (11th Cir. 1994)
(quoting Popham v. City of Talladega, 908 F.2d 1561,
1564–65

(11th

Cir.

1990)).

Again,

indifference is a stringent standard:

deliberate

“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
constitutional
omitted).

right.”

Id.

at

1397-98

(citations

The standard is the same for failure to

supervise.
Plaintiff administratrix argues that Reed failed to
train personnel adequately to handle mentally ill inmates
and failed to supervise the medical staff.

46

However, she

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.
She

has

conduct.

also

failed

to

point

to

a

history

of

such

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).

On

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.
hold

him

accountable

without

47

evidence

of

his

To
own

wrongdoing

would

be

to

impose

respondeat

superior

liability, which the court may not do.
Reed

is

entitled

to

summary

judgment

on

the

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

execution

policy

of

the

government’s

or

custom

...

[inflicts] the injury that the [county] may be held
liable.’” Id. (quoting City of Canton v. Harris, 489 U.S.
378, 385 (1989)).
a

[county],

Thus, “to impose § 1983 liability on

plaintiff

[administratrix]

must

show:

(1) that [a] constitutional right[ was] violated; (2)
that the [county] had a custom or policy that constituted

48

deliberate indifference to that constitutional right; and
(3) that the policy or custom caused the violation.”

Id.

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
the jail.
Houston County argues that it is entitled to summary
judgment

because

responsibility

for

the

welfare

of

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.”

Turquitt v.

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
inmates.”
recognized
funding.

Id.
in

However,

Turquitt,

as

the

counties

do

Eleventh
have

a

Circuit
role

in

See id. at 1289 (“The duties of the counties

49

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)).

Indeed, Alabama

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).
plaintiff

administratrix

alleges,

1975

Thus the policy
of

underfunding,

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.

In McDowell,

the inmate was having problems walking and urinating and
jail

staff

hospital.

ordered

a

transport

to

take

him

to

the

His case was incorrectly thought not to be an

50

emergency and other inmates had injuries which required
immediate care, so his transportation was delayed for
over

a

day.

paralyzed.
liability
pointing

As

a

result,

he

was

left

partially

There, as here, the plaintiff alleged county
based
to

on
the

a

policy

of

inadequate

unavailability

of

funding,

additional

transportation.
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.”
1291.

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

51

“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.
incident,

however

“Simply put, this isolated

unfortunate,

does

not

demonstrate

evidence of the County's ‘persistent’ or ‘widespread’
policy.”

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
known

or

obvious

consequences.’”

Id.

at

1291

(quoting Davis ex rel. Doe v. Dekalb County Sch. Dist.,
233 F.3d 1367, 1375-76 (11th Cir. 2000)).

52

It is not

enough, the court made clear, to point to “a generalized
policy of understaffing.”

Id.

Instead, the county “must

have a ‘deliberate intent’ to inadequately staff.”
(citation omitted).

Id.

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
the

Board

would

conclude

that

the

County’s

budget

decisions would lead to events that occurred here.”

Id.

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.

Id.

Given

the unusual circumstances of this case, with a serious
but treatable physical illness ‘masked’ by serious mental
illness,

it

seems

implausible

that

plaintiff

administratrix could come forward with proof that the
county should have expected the events that occurred.

53

“The alleged constitutional violation here was not a
‘highly

predictable

failure

to

budget

Sheriff’s Office.”
Finally,

the

consequence’

(and

hence,

of

the

adequately

[county's]
staff)

the

McDowell, 392 F.3d at 1292.
Eleventh

Circuit

found

that

the

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.

Id.

Instead, courts must

“look to whether a complete review of the budget decision
(and the resulting understaffed Jail) reveals that the
[county
injuries

board
were

decision.”

members]
a

plainly

should

have

obvious

known

that

consequence

[the]

of

Id. (internal quotation marks omitted).

that
The

court found that there was no such causal connection in

54

McDowell.

For the reasons described above, this court

concludes likewise as to the instant case.
Two of the cases on which plaintiff administratrix
relies

to

establish

Cir.

county’s

County’s

liability

are

In Moore v. Morgan, 922 F.2d 1553, 1555

inapposite.
(11th

Houston

1991),

failure

overcrowding;

the

the
to

only

issue

address

plaintiff’s

presented

known

was

the

unconstitutional

deliberate-indifference

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
continue.
F.3d

1014,

Similarly, in Marsh v. Butler Cnty., Ala., 268
1026

n.6

(11th

Cir.

2001),

the

Eleventh

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

55

not offer reason to doubt the teachings of McDowell, a
deliberate-indifference case.
A

third

case

on

which

plaintiff

administratrix

relies, Anderson v. City of Atlanta, 778 F.2d 678, 685
(11th

Cir.

1985),

is

more

relevant

to

this

case.

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
asked

for

medical

attention,

but

that

no

medical

personnel had seen him and the jailers had not checked in
on him during the night as frequently as their policy
required.

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)
liable

for

practice.

a

deliberately

The

notwithstanding

district

verdict

for

56

indifferent
court
the

policy

entered

defendants,

and

judgment
and

the

Eleventh

Circuit

reversed

and

reinstated

the

jury’s

verdict (with an exception not relevant here).
In

analyzing

the

case,

the

court

was

clear

in

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.
685.

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.
witness

had

understaffed.

testified

that

In Anderson, nearly every
the

jail

was

chronically

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.

Furthermore, there

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

57

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
city’s underfunding.

This conclusion was underscored by

the

not

jury’s

decision

to

impose

liability

on

any

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,
but

only

in

the

plaintiff’s burden.

evidence

presented

to

carry

the

Like McDowell, and unlike Anderson,

plaintiff administratrix in this case has failed to offer
sufficient evidence to establish that Houston County’s

58

policy of underfunding violated McCall’s constitutional
rights.
favor

Therefore, summary judgment will be entered in

of

Houston

County

on

the

Fourteenth

Amendment

claim.

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).

The county

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
such claims.
Title
including

II

of

local

the

ADA

prohibits

governments,

from

public

entities,

excluding

from

participation, denying benefits to, or discriminating
against individuals with disabilities by reason of those
disabilities.

42 U.S.C. § 12132.

Section 504 of the

Rehabilitation Act imposes parallel restrictions on local

59

governments that receive federal financial assistance.
29 U.S.C. § 794.
“In order to state a Title II claim, a plaintiff
generally

must

prove

(1)

that

he

is

a

qualified

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;
and

(3)

that

the

discrimination
disability.”

was

exclusion,
by

reason

of

of
the

benefit,

or

plaintiff’s

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072,

1083 (11th Cir. 2007).
§ 504.

denial

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
illness.

She argues that the county excluded, denied

benefits to, and discriminated against McCall by failing

60

to

fund

staff

and

medical

care

adequately,

and

in

particular by failing to hire a psychiatrist for six
months.

Finally, she argues this was on account of his

disability,

pointing

to

staff

members’

lack

of

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.
that

plaintiff

administratrix

must

show

But that means
the

funding was “by reason of” McCall’s disability.

lack

of

There is

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
compensatory
require

a

damages

showing

under
that

Title

the

II

of

defendant

the

ADA

...

intentionally

discriminated or acted with bad faith.”) (citing Wood v.

61

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
of
§

Alabama’s
6-5-410,

Kennedy,

wrongful-death
against

and

statute,

individual

Administrator

1975

Officer

Reed.

Ala.

West,

Section

Code
Nurse

6-5-410

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)).

West,

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.
they

seek

summary

judgment

62

based

only

on

Rather,
immunity:

specifically,

statutory

immunity

(1975

Ala.

Code

§ 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

is

officer

a

state

immunity.
2009).

executive

and

enjoys

absolute

Ex parte Shelley, 53 So. 3d 887, 891 (Ala.

The Alabama Supreme Court ruled in 2009 that the

sheriff’s

absolute

immunity

under

the

Alabama

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
63

within the line and scope of their
duties and are acting in compliance with
the law.”
1975 Ala. Code § 14-6-1 (emphasis added).

West, Kennedy,

and Reed argue that they are rendered immune by the new
provisions.

Plaintiff

administratrix

counters

that

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.
Eleventh

Circuit

initially

certified

to

the

The

Alabama

Supreme Court the question of whether § 14-6-1 applies
retroactively.

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
concluded

that

retroactively.”

“amended

§

Id. at *2.

64

14–6–1

does

not

apply

Therefore, the appellate

court found that it “must apply the statute in effect
when the injury occurred.”

Id.

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
Alternatively,
Administrator

Reed

Officer
argue

West,
that

Nurse

they

are

Kennedy,
entitled

and
to

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
part:
“A State agent shall be immune from
civil liability in his or her personal
capacity when the conduct made the basis

65

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 ...
(4)
exercising
judgment
in
the
enforcement of the criminal laws of the
State ...”
Id.

at

177-78

(quoting

(plurality opinion)).
exceptions

to,

or

Cranman,

792

So.2d

392,

405

The court also recognized certain

limitations

on,

this

immunity

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
this
State,
or
laws,
rules,
or
regulations of this State enacted or
promulgated
for
the
purpose
of
regulating
the
activities
of
a
governmental agency require otherwise;
or
(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.”
Id.
66

as

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
the

sheriff

other

than

deputies

did

not

enjoy

his

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
state
agents
or
employees
whose
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
or
employee
under
the
principles
announced in Ex parte Cranman, 792 So.2d
392 (Ala. 2000). ...
However, this
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.’”
67

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
constitutional officer.

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
state-action immunity.

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
plaintiff

to

maliciously,

show

that

[they]

fraudulently,

[their] authority.”

in

bad

acted

willfully,

faith,

or

beyond

Reynolds, 946 So.2d at 452.

West, Kennedy, and Reed argue for immunity under the
fourth

prong

of

Cranman,

for
68

exercising

judgment

in

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
(Ala.

2003),

plaintiff

administratrix

responds

that

West’s, Kennedy’s, and Reed’s conduct falls outside of
Cranman.

Wilson was a medical-malpractice suit brought

by an inmate against the jail’s director of nursing.

The

court found that the nurse was not immune under the
second

prong

of

Cranman.

Citing

1975

Ala.

Code

§ 14–6–19, which provides that “the sheriff or jailer” is
responsible

for

providing

“necessary

medicines

and

medical attention,” the court found that even if the
nurse

were

exercising

her

discretion,

she

had

“no

discretion to decline to provide necessary medicines and

69

treatment in violation of that statute.”

Wilson, 880

So. 2d at 1109.
This court finds that Wilson controls this case.
Both prongs (2) and (4) of Cranman specify situations in
which

agents

Further,

are

1975

Ala.

immune
Code

for
§

exercising

14–6–19,

which

judgment.
specifies

jailers, applies to all of the individual defendants in
this case.

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

this case.
decisions

made

in

guarding

decisions

made

with

regard

an
to

inmate

medical

rather

than

treatment,

is

inapposite.
Officer West, Nurse Kennedy, and Administrator Reed
are not entitled to Cranman immunity.

70

***
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;
summary

judgment

Kennedy

on

no

entered

in

favor

Amendment claim.

will

be

claims;
of

and

entered
summary

Officer

West

in

favor

of

judgment
on

the

Nurse

will

be

Fourteenth

The following claims will go to trial:

the Fourteenth Amendment claim against Kennedy and the
state-law wrongful-death claim against West, Kennedy and
Reed.
DONE, this the 3rd day of July, 2014.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE