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

Filing 224

OPINION. Signed by Honorable Judge Myron H. Thompson on July 2, 2015. (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.
)
)
KEITH REED, et al.,
)
)
Defendants.
)

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

OPINION
As the administratrix of the estate of decedent
Jonathan

McCall,

the

against

defendants

plaintiff

Houston

brought

County

Jail

this

lawsuit

Administrator

Keith Reed, Corrections Deputy James West, and Licensed
Practical Nurse Ashley Kennedy.

The plaintiff asserted

both a federal claim pursuant to 42 U.S.C. § 1983 (that
the

defendants’

deliberate

indifference

to

decedent

McCall’s serious medical needs caused his death in the
Houston County Jail, in violation of the United States
Constitution)

and

a

state

wrongful-death

claim.

Subject-matter jurisdiction was proper under 28 U.S.C.
§§ 1331 (federal question), 1343(a)(3) (civil rights),
and 1367 (supplemental).

After the parties settled, a

judgment was entered dismissing and closing the case.
The parties now ask the court to set aside that
judgment pursuant to Federal Rule of Civil Procedure
60(b), add decedent McCall’s minor beneficiary
party,

and,

determine

after

whether

conducting
the

a

pro

settlement

ami

is

as a

hearing

in

the

to

best

interests of the minor, find that the settlement is
fair,

just,

approval.

reasonable
For

the

and

reasons

warrants
that

the

follow,

court’s

the

court

consents to all of these requests.

I. BACKGROUND
This case arises out of Jonathan McCall’s death in
the Houston County Jail.
he

died

because

of

the

McCall’s estate claimed that
deliberate

personnel at the Houston County Jail.
2

indifference

of

The plaintiff

administratrix
medical

care

alleges
refused

that
to

a

nurse

provide

responsible

treatment

to

for
the

decedent McCall as his conditioned worsened, stating
that he had a mental illness and “insanity never killed
anyone” or, at the least, “I’m not messing with him.
He’s crazy.

There’s no cure for crazy.”

McCall v.

Houston Cnty., 2014 WL 3045552, at *2 (M.D. Ala. 2014)
(Thompson,
alleges

J.).

that

the

The
jail

plaintiff

administratrix

improperly

switched

also

McCall’s

medicine several days before he died and that, on the
day

he

died,

he

received

no

medical

attention

even

though he “was lying in his urine, unresponsive, and
moaning.”

Id. at *3.

As relevant here, after the court granted in part
and denied in part the defendants’ motion for summary
judgment, McCall v. Houston Cnty., 2014 WL 3045552, at
*19, the parties reached a settlement in August 2014,
and, in September of that year, the court entered a
judgment dismissing this case.
3

While the plaintiff has

brought
estate

this
of

lawsuit

decedent

as

the

McCall,

administratrix

the

beneficiary

of
of

the
that

settlement is actually McCall’s child, who is a minor
and was not a party to this litigation.
The parties settled for $ 500,000.

This was the

full amount of the insurance policy for the defendants.
Out

of

this

settlement,

the

plaintiff’s

counsel

received $ 250,000 in attorney’s fees and $ 41,633.87
in costs.

The estate was left with $ 208,366.12.

Following the settlement, the parties intended to
ask the Houston County Probate Court to conduct a pro
ami,

or

fairness,

protected

in

the

settlement

hearing

proceeds

to

ensure

settlement.
in

the

the

They

probate

minor
housed

court,

and

was
the
the

probate court appointed a guardian ad litem for the
minor.
Court

However, in October 2014, the Alabama Supreme
ruled

that

probate

courts

do

not

have

jurisdiction in the distribution of settlements from
wrongful-death

cases.

Kirksey
4

v.

Johnson,

---

So.

3d ----, 2014 WL 5311315, at *10 (Ala. 2014).

Closed

off from the probate court, the plaintiff, joined by
defendants, asked this federal court to set aside the
earlier dismissal and conduct a pro ami hearing.
As detailed in the court’s prior opinion, McCall v.
Reed,

2015

(Thompson,

WL

3397831,

J.),

there

at

was

*1
a

(M.D.

Ala.

significant

2015)

question

whether the court could set aside the final judgment
under Rule 60(b) in order to conduct a pro ami hearing,
given that the minor was not a party to the litigation.
To

address

this

antecedent

procedural

question

of

whether the court should set aside the motion as well
as

the

later

substantive

question

of

whether

the

settlement was fair to the minor, the court appointed a
guardian

ad

beneficiary.

litem

for

Id. at *4.

decedent

McCall’s

minor

The defendants agreed to pay

the guardian’s fees.
The court held a subsequent hearing on this issue
and,

in

case

the

court

set
5

aside

the

judgment,

on

whether the settlement was fair, just, and reasonable.
During this hearing, the guardian stated that, after a
review

of

the

case

and

speaking

with

plaintiff

and

defense counsel, the circumstances of this case merit
granting the motion to set aside the final judgment and
joining the minor as a party.

All parties and the

guardian stated that the settlement was fair, just, and
reasonable and in the best interest of the minor.

II. THE RULE 60(b) MOTION AND JOINDER
OF THE MINOR AS A PARTY
A. Legal Standards
Federal

Rule

of

Civil

Procedure

60(b)

is

a

procedural vehicle for obtaining relief from a final
judgment.
for

The rule lists five defined circumstances

obtaining

relief

and

then,

as

relevant

to

this

case, provides a catch-all provision.

Fed. R. Civ. P.

60(b).

of

This

catch-all,

subpart

(6)

Rule

60(b),

allows the relief from final judgment in a federal case
for “any other reason [in addition to the five listed]
6

that

justifies

demonstrate

relief.”

that

extraordinary

‘the

to

“While

circumstances

warrant

relief,

the

movant

are

must

sufficiently

Toole

v.

Baxter

Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000),
this catch-all provision creates a ‘grand reservoir of
equitable power to do justice in a particular case.’
Nisson v. Lundy, 975 F.2d 802, 806 (11th Cir. 1992).”
Daniel

v.

Gen.

2008

WL

3876764, at *2 (M.D. Ala. 2008) (Thompson, J.).

A

motion

a

under

Motors

this

reasonable time.”

Acceptance

provision

“must

Corp.,

be

made

within

Fed. R. Civ. P. 60(c)(1).

Under Federal Rule of Civil Procedure 20 governing
permissive joinder,
“Persons may join in one action as
plaintiffs if: (A) they assert any
right to relief jointly, severally, or
in the alternative with respect to or
arising out of the same transaction,
occurrence, or series of transactions
or occurrences; and (B) any question
of
law
or
fact
common
to
all
plaintiffs will arise in the action.”

7

“The

purpose

convenience
disputes,

of

and

the

rule

expedite

thereby

is

the

to

final

preventing

promote

trial

determination

multiple

of

lawsuits.”

Charles Wright, Arthur Miller, et al., 7 Fed. Prac. &
Proc. Civ. § 1652 (3d ed.).

B. Discussion
In this case, the question whether the court should
use

its

judgment

equitable
is

power

to

intertwined

provide

with

relief

whether

from

the

the

minor

beneficiary can be joined as a party.
If the minor has a proper cause of action in this
case, she could, without a pro ami hearing, disaffirm
the settlement.
*2.
the

McCall v. Reed, 2015 WL 3397831, at

However, if the minor does not have an interest in
settlement--and

could

not

be

joined

as

a

party--there would be no reason for a pro ami hearing
because the minor would have no legal interest in the
case.

The court will grant relief from final judgment
8

in

this

case

only

if

the

reason

for

granting

that

relief, the pro ami hearing, would have any effect; if
not, there would be little reason to use the court’s
equitable powers.
As discussed at length in the prior opinion, it is
unclear whether a minor is a proper party in an action
alleging

deliberate

constitutional
Alabama law.

law

as

indifference
well

as

under

wrongful

federal

death

under

McCall v. Reed, 2015 WL 3397831, at *2.

It is particularly complicated because the rationale
for minors not being parties to wrongful-death cases in
Alabama

is

that

a

party

may

recovery

only

punitive

damages in these cases based on a deterrence theory
rather than compensatory damages for the family, but
the Eleventh Circuit Court of Appeals has found that
actions brought under 42 U.S.C. § 1983 must allow for
compensatory damages.

Id. (citing Gilmere v. City of

Atlanta, Ga., 864 F.2d 734, 740 n.7 (11th Cir. 1989)).
In other words, binding circuit law undercuts the logic
9

for excluding minors as parties in cases that allege
constitutional

torts

wrongful-death

claims.

understanding,

the

as

well

as

state-law

Consistent

court

finds

that

with

this

there

is

a

colorable contention that the minor beneficiary has a
right to relief jointly with the administratrix and
that the questions of fact about McCall’s death and the
questions

of

law

about

whether

the

defendants

are

liable are common to both the estate and the minor.
See Fed. R. Civ. P. 20.

The minor is a proper party

who can be ‘permissively joined.’
The next issue is whether, even if the minor is a
proper

party,

the

parties

and

the

minor

would

want

relief from the judgment in order to join the minor and
conduct a pro ami hearing.

As noted in the prior

opinion, “[t]he parties ... have a direct interest in
having the current judgment (which, according to them,
is not binding on the minor) set aside so that the
court

can,

after

a

pro

ami
10

hearing,

enter

a

new

judgment (which, according to them, would be binding on
the minor).” McCall v. Reed, 2015 WL 3397831, at *3.
Indeed, “[f]rom the parties' perspective, it appears
clear that it is to their advantage for the court to
set aside the dismissal judgment and hold a pro ami
hearing.”

Id.

The question that remained was whether

the minor beneficiary shared that interest, id., and
the

guardian

ad

litem

has

since

agreed

that

the

judgment should be set aside.
The court agrees with the parties and the guardian
ad litem.

When the minor is the sole beneficiary of a

settlement, she should be protected through a pro ami
hearing.
not

Moreover, because settlement agreements are

binding

on

minors

without

a

pro

ami

hearing,

leaving the current judgment in place would risk the
minor challenging the settlement when she reaches the
age of majority.

See id. at *2 (noting that minor can

disaffirm a contract).

Running that risk would hurt

the minor as well as the parties.
11

Parties would be

reluctant

to

disaffirmed

reach

five

settlements

to

ten

if

years

they

later,

could

meaning

be
that

litigation could drag on and the minor may not receive
needed

funds

quickly

after

a

parent

dies.

More

specifically here, “it may be that, for a minor who has
yet

to

receive

the

benefits

of

the

settlement,

the

status quo would not be in the minor's best interest,
for it could lead to further ligation (including an
effort by the defendants to have the judgment set aside
as unfair and then to litigate this case on merits)
that could put the settlement, and, in particular, the
minor's

benefits

from

it,

in

serious

jeopardy,

including entanglement in long-term litigation.” McCall
v. Reed, 2015 WL 3397831, at *4.
Moreover,

given

the

uncertainty

of

whether

the

minor has a legal claim at all in this case, the minor
has an interest in ensuring some protection now by the
court

now

conducting

a

pro

12

ami

hearing

rather

than

risking having no protection later if a court denies
the minor’s attempt to disaffirm the settlement.
In

sum,

there

is

good

cause

to

set

aside

the

judgment, join the minor beneficiary to the case, and
address the fairness of the settlement.

III.
Having

APPROVAL OF SETTLEMENT

reviewed

the

pleadings

in

this

case

and

heard a detailed explanation of the settlement, the
court finds that all the terms and provisions of the
proposed settlement are in the best interests of the
minor child and are fair, just, and reasonable under
the circumstances involved in this case.

It reaches

this conclusion for several reasons.
First, the decision to settle was logical.
case

involved

complicated

uncertain results at trial.

issues

that

would

This
have

It was a prison-litigation

case where there were no witnesses to McCall’s death
except

those

accused

of

wrongdoing.
13

The

plaintiff

would have to overcome these hostile witnesses as well
as federal and state immunity at trial to prevail.

On

the other hand, the defendant nurse responsible for the
decedent

McCall’s

care,

was

reported

by

another

corrections officer to have said that she “can’t cure
crazy,”

in

treatment.

explaining

why

she

did

not

provide

him

Additionally, no one from the jail medical

staff acted while he was dying on the ground in a pool
of his urine.

Bad facts and uncertain law for both

sides led to settlement.
Second, the settlement amount was reasonable.
plaintiff

received

the

highest

amount

that

The
the

defendants’ insurance policy would pay, and none of the
defendants
this total.
out,

there

had

enough

personal

assets

to

supplement

As the insurance policy has already paid
also

will

not

be

any

complications

with

collection of a judgment.
Third, although a 50 % contingency fee is on the
high end, it is reasonable in this case.
14

See Sweeney

v. Athens Reg’s Med. Ctr., 917 F.2d 1560, 1569 (11th
Cir. 1990) (approving 50 % contingency fee over the
objection of at least one expert given the difficulty
of a case); Large v. Hayes by and through Nesbitt, 534
So.

2d

1101,

1106

(Ala.

1988)

(noting

that

a

50 %

contingency fee has been upheld as a matter of law).
To decide whether attorney’s fees are reasonable, the
court is required to determine the “lodestar” figure or
“the product of the number of hours reasonably expended
to prosecute the lawsuit and the reasonable hourly rate
for work performed by similarly situated attorneys in
the

community.”

Simpleville

Music

v.

Mizell,

511

F.Supp.2d 1158, 1161 (M.D. Ala. 2007) (Thompson, J.)
(citing Norman v. Housing Auth. of Montgomery, 836 F.2d
1292, 1299 (11th Cir. 1988)). The fee applicant bears
the burden of “establishing entitlement and documenting
the appropriate hours and hourly rates.” Id. at 1162
(quoting Norman, 836 F.2d at 1303).
lodestar,

the

court

applies
15

the

In determining the
12–factor

test

set

forth in Johnson v. Georgia Highway Express, Inc., 488
F.2d 714, 717–19 (5th Cir. 1974) (abrogated on other
grounds, see Blanchard v. Bergeron, 489 U.S. 87, 109
S.Ct. 939, 103 L.Ed.2d 67 (1989))1 and then proceeds to
analyze

“whether

any

portion

of

this

fee

should

be

adjusted upwards or downwards.” Simpleville Music, 511
F.

Supp.

2d

at

1161

(citing

Johnson,

488

F.2d

at

717-19)2; see also Developers Sur. & Indem. Co. v. Old

1. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc), the Eleventh Circuit Court of
Appeals adopted as binding precedent all of the
decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
2. These 12 Johnson factors are: (1) the time and
labor required; (2) the novelty and difficulty of the
questions; (3) the skill required to perform the legal
services
properly;
(4)
the
preclusion
of
other
employment by the attorney due to acceptance of the
case; (5) the customary fee in the community; (6)
whether the fee is fixed or contingent; (7) time
limitations imposed by the client or circumstances; (8)
the amount involved and the results obtained; (9) the
experience, reputation, and ability of the attorneys;
(10) the “undesirability” of the case; (11) the nature
and length of the professional relationship with the
(continued...)
16

Towne Station, LLC, 2010 WL 3258617, at *1 (M.D. Ala.
2010) (Thompson, J.).
The lodestar figure for the plaintiff’s counsel is
well

above

the

$ 250,000

they

will

receive.

They

calculated it as follows:
Attorney

Hours

Samuel Fisher
C. Neville Reese
Sidney Jackson
Toni Braxton
Total

402.3
269.0
319.6
124.9

Rate
(hourly)
$ 550
$ 350
$ 225
$ 300

Total Fees
$ 221,265
$ 94,150
$ 71,910
$ 37,340
$ 424,795

Neither the defense counsel nor the guardian ad
litem objects to this lodestar figure.

Even if the

hourly figures were high, the total lodestar is almost
twice what the plaintiff’s counsel will be paid.

In

addition to the lodestar being much higher than the
attorney’s fees, other factors weigh towards approving
these contingency fees.

As discussed above, this is a

client; and (12) awards in similar cases.
F.2d at 717–19.
17

Johnson, 488

high risk case: constitutional torts cases under 42
U.S.C. § 1983 are difficult to prove in general and
prison-litigation cases often more so given the lack of
witnesses.
may

not

Without higher contingency fees, lawyers

even

take

meritorious

cases.

Indeed,

the

plaintiff submitted an affidavit noting how she

was

told it would be nearly impossible to find a lawyer and
how another lawyer from a national plaintiff-side law
firm investigated and then turned down the case due to
the risk.

Additionally, all parties and the guardian

ad litem agree that this is a fair amount and in the
interest of the minor.
Last,

the

court

finds

the

conservatorship

model

that the guardian ad litem described on the record to
be in the best interest of the minor.

The minor will

be able to petition to access the funds, but the funds
will be kept by a fiduciary until the minor reaches the
age of majority.

18

In

sum,

the

settlement

is

fair,

just,

and

reasonable and in the best interest of the minor.
Appropriate orders will be entered.
DONE, this the 2nd day of July, 2015.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE