Pharr v. Harris et al

Filing 35

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 4/21/16. (SAC )

FILED
2016 Apr-21 PM 04:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BERNADETTE PHARR, as Personal
Representative of the Estate of Jeffrey
Tucker,
Plaintiff,
v.
JIMMY HARRIS, et al.,
Defendant.

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CV-15-BE-1362-E

MEMORANDUM OPINION
This matter is before the court on “Defendant, the Estate of Allen Kay’s Motion to
Dismiss” (doc. 28); this court’s “Order” to show cause in writing why the court should not grant
the Estate’s motion to dismiss (doc. 30); and “Plaintiff’s Motion to Alter or Amend Judgment as to
Order Dismissing Wrongful Death Claim against Smith and Response in Opposition to the
Dismissal of Plaintiff’s Wrongful Death Claim against the Estate of Allen Kay” (doc. 33). For the
reasons stated in this Memorandum Opinion, the court FINDS that the Kay Estate's motion to
dismiss Count II's claims against it is due to be GRANTED and that the Plaintiff's motion to alter
or amend is due to be DENIED.
The court will first address the motion to alter or amend its previous ruling. A motion to
alter or amend under Fed. R. Civ. P. 59 does not provide a mechanism for a dissatisfied party to relitigate a matter. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (“A Rule 59(e) motion
cannot be used to relitigate old matters, raise argument or present evidence that could have been

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raised prior to the entry of judgment”). The Eleventh Circuit has recognized two grounds for
granting a Rule 59 motion: "[1] newly-discovered evidence or [2] manifest errors of law or fact."
Id. at 1343 (quoting In re Kellogg, 197 F.3d 116, 119 (11th Cir. 1999)). The Eleventh Circuit
Court of Appeals and district courts under its authority have recognized that an intervening change
in controlling law is also a ground for reconsideration and an exception to the law of the case
doctrine. See, e.g., Summit Medical Center of Alabama, Inc. v. Riley, 284 F. Supp. 2d 1350, 1355
(M.D. Ala. 2003) (addressing a Rule 59 motion); Oliver v. Orange Cnty., Fla., 456 F. App'x 815,
818 (11th Cir. 2012) (listing the following exceptions to the law of the case doctrine, allowing a
district judge to reconsider a prior ruling: "(1) new evidence; (2) an intervening change in the law
that dictates a different result; or (3) that the prior decision was clearly erroneous and would result
in manifest injustice.").
In the instant case, the Plaintiff has not demonstrated that any one of these grounds exists.
Her counsel has cited an Alabama case dated 2000, which does not represent an intervening change
in law, and which addressed state-agent immunity for physicians, not the issue addressed here:
State sovereign immunity for deputy sheriffs under Article I, § 14 of the Constitution of the State of
Alabama, and Ala. Code § § 36-22-3(5), 15-6-1, and 14-6-19. The Plaintiff acknowledges that
both Defendants Smith and Kay had deputy sheriff certification (“APOST” Certification through
the Alabama Peace Offers’ Standards and Training Commission) during the relevant period and
further acknowledges that immunity extends for their actions performed within the course and
scope of their employment as deputy sheriffs. Despite the fact that § 14-6-19 reflects that the
sheriff's statutory duties include furnishing "necessary medicines and medical attention to those
who are sick or injured" at the county jail, nevertheless, the Plaintiff argues that immunity should
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not extend to duties that are medical in nature, even when performed by those with deputy sheriff
certification. In arguing that a "medical duties" exception should exist to the immunity provided to
sheriffs and deputy sheriffs, the Plaintiff provided no support for this argument in the Alabama
Constitution, or in Alabama statutory law, or in the Alabama decisions interpreting them.
This federal court cannot and will not carve out a new exception to Alabama's grant of
immunity to deputy sheriffs. And, where no ambiguities currently exist in that law and no
substantial doubt exists about the answer to a material state law issue, the court sees no reason to
certify this issue to the Alabama Supreme Court, an option that the Plaintiff mentions in her
motion.1 See Johnson v. Conner, 720 F.3d 1311, 1313-14 (11th Cir. 2013) (certifying questions of
state law to the Alabama Supreme Court "[b]ecause this appeal depends on questions of unsettled
Alabama law, and because we believe substantial doubt exists about the answer to a material state
law question upon which the case turns . . . ."). The court understands that the Plaintiff feels that
the current immunity law applies unfairly to her in this case, but this federal court must apply
Alabama law as it exists. The court notes that Count I's claim remains: a federal claim brought
pursuant to § 1983 against Smith and others for alleged deliberate indifference to Tucker's serious
medical need in violation of the United States Constitution.
Finding that the Plaintiff has not demonstrated any reason for altering or amending the
order dismissing Count II against deputy sheriff Smith, the court FINDS that the motion to alter or
amend is due to be DENIED.
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In her motion, the Plaintiff states “that if there is a a [sic] substantial question of state
law, it is appropriate to certify the question to the Alabama Supreme Court.” (Doc. 33, at 4).
However, her motion requests that the court reconsider its dismissal of Count II’s claim against
Smith and allow the same claim against Kay to proceed; she does not specifically request that
this court certify such a question to the Alabama Supreme Court.
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As to the motion to dismiss Count II's claim against the Estate of Allen Kay, the court
FINDS that the motion is due to be GRANTED for the same reasons that it granted Smith's
motion. No dispute exists that Allen Kay was an APOST-certified deputy sheriff; the affidavit of
Michael Edmondson (doc. 7-1) stated that Kay was a deputy with the sheriff's office during the
relevant period in September of 2013 referenced in the Complaint. Further, no dispute exists that
Kay's duties included
identifying treatment(s) for inmate medical needs and perform treatment(s) as
deemed necessary. When medical needs dictate, determine need for physician or
other medical treatment(s), i.e. hospitalization. Maintain medical records and
files and document[ ] all medical related information regarding inmates and acting
[as] a nurse (RN) assigned to the DeKalb County Jail, providing medical
assistance to the inmates within the jail and acting as a supervisor of the medical
staff.
(Doc. 7-1, at 3 paragraph 4).
In the Memorandum Opinion addressing Deputy Smith’s motion to dismiss (doc. 21), this
court found that providing medical attention is in the line and scope of the sheriff's employment,
and that, because the deputy sheriff is a legal extension of the sheriff, providing medical attention
is in the line and scope of the deputy sheriff's employment. The court FINDS that such analysis
in the previous Memorandum Opinion (doc. 21) applies to Kay and to the determination of the
motion on behalf of his Estate, and the court adopts that analysis as to the Kay Estate's motion;
the court FINDS that State sovereign immunity applies to bar the claims against Kay in Count II
because he was acting within the line and scope of his employment as a deputy sheriff when he
engaged in the conduct alleged in that Count.
The court will enter a separate Order denying the motion to alter and amend and
dismissing the wrongful death claim in Count II against the Estate of Allen Kay pursuant to Rule
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12(b)(1). However, the court will not dismiss Kay’s Estate as a party Defendant, because Count I
asserts a claim that Kay was deliberately indifferent to Tucker's serious medical needs, and the
motion to dismiss did not address that claim.
Dated this 21st day of April, 2016.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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