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

Filing 68

OPINION AND ORDER directing that the 55 motion to dismiss is denied, as further set out. Signed by Honorable Judge Myron H. Thompson on 3/29/13. (scn, )

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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 and as Guardian Ad Litem of the minor child of Jonathan McCall, Plaintiff, v. HOUSTON COUNTY, et al., Defendants. ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. ) 1:11cv559-MHT ) (WO) ) ) ) OPINION AND ORDER It is ORDERED that the motion to dismiss (Doc. No. 55) is denied. *** The complaint alleges that Jailers Ronnie Phillips and James West and Nurse Ashleigh Kennedy were on duty, heard the decedent’s calls for medical help, and was deliberately and complaint sufficient is intentionally to indifferent. allege federal and The state claims of failure to provide medical needs or services. Phillips, West, and Kennedy are not entitled to ‘qualified immunity,’ for “the state of the law ... gave [them] fair warning that their alleged treatment of [the Porters] was unconstitutional.” 730, 740 (2002). Hope v. Pelzer, 536 U.S. Nor are Phillips and West entitled to ‘absolute immunity’ under state law, for “jailers are not entitled to absolute immunity under Art. I, § 14 of the Alabama Constitution,” LeFrere v. Quezada, 588 F.3d 1317 (2009 11th Cir.); nor are they state-agent immunity in light of the allegations that the conduct was wilful and in bad faith. 2000). Ex parte Cranman, 792 So.2d 392 (Ala. Because Nurse Kennedy is not a sheriff or deputy sheriff and is more comparable to a jailer, the logic in these cases applies to her as well. The court assumes that Phillips, West, and Kennedy have been sued in their ‘individual capacities’ only. DONE, this the 29th day of March, 2013. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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