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, )

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.

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