Lindley v. Birmingham, City of, Alabama et al

Filing 132

MEMORANDUM OPINION, as set out, re defendants' Motion for SummaryJudgment, 120 . An order in accordance will be entered contemporaneously with this Memorandum Opinion. Signed by Judge Sharon Lovelace Blackburn on 3/23/15. (CTS, )

FILED
2015 Mar-23 AM 09:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
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GERALD NEIL LINDLEY,
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Plaintiff,
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vs.
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NURSE FREDIA L. TAYLOR, in her
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professional and official capacity as an
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employee of the City of Birmingham, and }
CASE NO. 2:10-cv-0141-SLB
as a Nurse at the Birmingham City Jail;
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CORRECTIONAL OFFICER TANGERY }
THOMAS, in her individual and official
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capacity; CORRECTIONAL OFFICER }
BERNADINE HARPER, in her individual }
and official capacity; JOSSLYN A.
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TARVER, in her individual and official
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capacity; SERGEANT VERLYNE
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MOTEN, in her individual and official
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capacity,
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}
Defendants.
MEMORANDUM OPINION
This case is before the court on Defendants’ Motion for Summary Judgment, (Doc.
120)1, and defendants’ Motion to Strike Plaintiff’s Evidentiary Submissions, (Doc. 129).
Plaintiff Gerald Neal2 Lindley has alleged various federal and state law claims against
defendants related to his nine-day confinement in the Birmingham City Jail, during which
1

Reference to a document number, (“Doc. ___”), refers to the number assigned to
each document as it is filed in this court’s record on appeal.
2

Apparently, plaintiff’s middle name was misspelled on the original complaint and
thus misspelled in the caption of the case. Plaintiff signed his affidavit “Neal.” (Doc. 1252 at 6.)

he allegedly developed an infection in his leg that required surgery upon his transfer to
another facility. Upon consideration of the Motion, the supporting and opposing memoranda,
arguments of counsel and the relevant law, the court finds, for the reasons stated below, that
Defendants’ Motion for Summary Judgment is due to be denied in part and granted in part,
and defendants’ Motion to Strike is due to be denied. Since the disposition of the Motion to
Strike affects which factual claims will have sufficient evidentiary basis to be included in the
statement of facts for summary judgment analysis, the court addresses the Motion to Strike
first.
I. Motion to Strike
The Motion to Strike attacks the admissibility of portions of plaintiff’s personal
affidavit, (Doc. 125-2), the entirety of the records from Shelby County Jail, (Doc. 125-7), the
entirety of the medical and billing records, (Doc. 125-8), the Photos (Docs. 28-15, 28-16, 2817, 28-18, 28-19),3 and the Notice of Claim, (Doc. 125-12).
Defendants assert that “Evidence submitted in opposition to a Motion to Summary
Judgment must be admissible.” (Doc. 129 at 2.) In fact, when objecting that “a fact is not
supported by admissible evidence,” the objecting party must show that the “fact cannot be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

3

These documents were listed as exhibit I in Plaintiff’s Evidentiary Submission in
Support of Response in Opposition to Motion for Summary Judgment, (Doc. 125 at 1),
but somehow were not attached or did not make it into the court’s electronic docket in
that document.
2

Therefore, all of defendants’ objections that certain documents are inadmissible because they
have not had a proper foundation laid for their admission, or have not been authenticated,
without merit. And defendants’ other claim, that the submissions are “double hearsay and/or
triple hearsay,” is too generalized to do much good. The documents are not inadmissible
hearsay in their entirety because they can be presented as records of a regularly conducted
activity. F.R.E. 803(6). Defendants are correct that plaintiff is not a medical expert and his
testimony that he had staph cannot stand alone as evidence that he in fact had a staph
infection. (See Doc. 129 at 2-3.) However, the fact that he had a staph infection is supported
by other admissible evidence, (see Doc. 125-8 at 4, 7),4 and what plaintiff’s complaint is
really all about, the “extensive infection” in his knee, (id. at 11), or “very serious fasciitis of
his leg,” (id. at 13), that required immediate hospitalization, is not debatable.
As to defendants’ remaining concern, about the relevance of certain evidence,
(specifically, plaintiff’s evidentiary submission, Exhibit J, Notice of Claim), it is sufficient
to say that if the court finds that the evidence is not relevant, the court will not consider the
evidence in determining whether summary judgment is due to be granted.
Defendants’ Motion to Strike will be denied.

4

See also Doc. 125-7 at 3.
3

II. Motion for Summary Judgment
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of showing no
genuine issue of material fact and that it is entitled to judgment as a matter of law. See Clark
v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see also Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving
party must go beyond the pleadings and show that there is a genuine issue for trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 (“[I]t is never enough simply to state
that the non-moving party cannot meet its burden at trial.”).
4

In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. As the Supreme Court has recently reaffirmed,
“[t]he evidence of the nonmovant[s] is to be believed, and all justifiable inferences are to be
drawn in [their] favor.” Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (emphasis
added). “If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
STATEMENT OF FACTS5
Detainees ordinarily have no reason to be especially grateful when released from one
jail directly into the care of the next, but in this case, it might have saved plaintiff’s life or
limb. The Shelby County Sheriff’s Department picked plaintiff up from the Birmingham City
Jail the morning of February 2, 2008, took him to the Shelby County Jail, processed him,
looked at the infected sore on his leg, gave him a shower and dressed him, and took him
immediately to a nearby hospital. He underwent surgery three days later. (Doc. 125-8 at 3,
11.)

5

As required when determining a motion for summary judgment, the court has
construed the facts in the light most favorable to plaintiff, the non-moving party. All
disputed facts are resolved in his favor and all reasonable inferences arising from those
facts are drawn in his favor. See Crawford v. Carroll, 529 F.3d 961, 964 n.1 (11th Cir.
2008) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
5

Plaintiff was arrested and booked into the City of Birmingham Jail on the night of
January 23-24, 2008.6 (Affadavit of Gerald Neal Lindley, Doc. 125-2 at 2-3.) Plaintiff first
noticed the sore on his right knee on or about January 27, 2008 (a Sunday), and within twelve
hours it was “highly inflamed, swollen,” and, it seemed to him, “obviously infected.” (Doc.
125-9 at 1.) “Starting January 28, 2008, [plaintiff] began to request that someone look at [his]
right knee and the sore . . . and continued to fill out the forms [requesting to see the doctor]
at each nurse call [(four times per day)] until the day [he] was released to Shelby County.”
(Doc. 125-2 at 3.) The infection became “steadily worse.” (Id. at 4.) At least five different
nurses visited him, and each time he showed them the sore, but he received no treatment.
(Doc. 125-9 at 2.) Plaintiff “showed [his] knee to both nurse Taylor and nurse Brown,” and
when he “showed the nurses [his] leg, [his] entire knee area was clearly swollen, red, and
very warm to the touch.” (Doc. 125-2 at 3-4.)7
6

When plaintiff arrived at the jail, he was booked for “Assault 2nd.” (Doc. 125-13
(Davis Depo. at 40).) According to Kathy Davis, the Chief Jail Administrator, plaintiff
may have been arrested because of his outstanding Shelby County warrant for assault,
and, once he was in Birmingham custody, the Birmingham traffic charges showed up as
well. (Id. at 41-42.) But Davis also testified that plaintiff was arrested because of the
outstanding warrant on the traffic tickets, (id. at 28-29), and that the Birmingham Jail
would not have held plaintiff for longer than a few hours waiting on Shelby County to
pick him up, (Id. at 26-27). Davis testified that plaintiff would not have been put in the J2 area if traffic tickets were the only concern because that area is for “high risk”
detainees. (Id. at 100.)
7

Plaintiff “specifically remember[s] talking to and showing the condition of [his]
knee to nurse Fredia Taylor, nurse Allinda Brown, Correctional Officer John Glenn, [and]
Correctional Officer Montgomery.” (Id. at 4.) Additionally, the court notes that Nurse
Taylor is referred to as Frida Taylor and Fredia Taylor. Apparently the correct spelling of
her name is “Fredia Taylor.” (See Doc. 28-5.)
6

Defendant Fredia Taylor is a licensed practical nurse (LPN), (Doc. 125-18 (Taylor
Depo. at 8)), who worked the 3:00 p.m. to 11:00 p.m. shift at the Birmingham City Jail, (id.
at 9). Two nurses worked the day shift (7:00 a.m. to 3:00 p.m.), two nurses worked the
evening shift (3:00 p.m. to 11:00 p.m.), and one nurse worked the 11:00 p.m. to 7:00 a.m.
shift. (Id.) Taylor testified that she worked on the J-1 floor of the jail and “wouldn’t go up
[to J-2-D].”8 (Id. at 14-15.) According to Kathy Davis, the Chief Jail Administrator, area
J-1-A is a “medical block.” (Doc. 125-13 (Davis Depo. at 104).)
Taylor testified that whenever someone turns in a “doctor form,” that person is “going
to see a doctor,” although if the person turns in multiple forms, those forms might be noted
in the person’s chart for the doctor to see once the person is examined. (Taylor Depo. at 22.)9
Dr. Robinson, the jail’s physician at the time, visited on Mondays, Wednesdays, and Fridays.
(Id. at 31; see also 27:13-21, 39:2-7, 39:19-22; see also Davis Depo. at 16.) A psychiatrist
also visited occasionally, and there were two “staff nurses,” including Taylor, and a “number
of agency nurses” that came in to fill out the staff. (Id. at 32-34.) That was the medical

8

During the deposition, plaintiff’s counsel was apparently under the impression that
Lindley stayed in J-2-D block at the jail. In fact, Lindley stayed in J-2-A. (See Davis Depo. at
101-102; Doc. 125-3 at 3.)
9

A fair reading of this testimony is that a nurse does not have discretion to decide not to
inform the doctor about a request to see a doctor, but that each time a nurse sees a detainee, the
nurse necessarily exercises discretion as to whether the detainee’s complaints warrant immediate
medical attention.
Davis, however, testified that the nurse has some discretion as to whether the detainee
should see the doctor. (Davis Depo. at 22-23.)
7

department at the jail. (Id. at 33:19-34:4; see also Davis Depo. at 15.) Taylor and Brown were
City of Birmingham employees. (Davis Depo. at 70.)
“After being refused medical care for several days, [plaintiff] complained to a
correctional officer” and was told to fill out a “grievance form.” (Doc. 125-2 at 4.) However,
the officer would not provide him the form, and whenever officers would ask what was
wrong and he would tell them, “[t]hey would refuse to give [him] a [grievance] form and tell
[him] to fill out a medical request form.” (Id.) According to Davis, the Chief Jail
Administrator,10 when a detainee complains of a medical problem to a correctional officer,
the correctional officer is supposed to call the nurse, and “the nurse’s responsibility is to call
the detainee down to the nurse’s station to find out” what is wrong. (Davis Depo. at 19-20.)
Defendant Verlyne Moten was “the person responsible for making sure that the grievances
were answered in a timely manner,” (Doc. 125-11 (Moten Depo. at 86)), and it was her job
to “make sure the detainees get the care they need,” (id. at 81), but she didn’t recall plaintiff
having any medical problems while at the jail, (id. at 84-85).
A “staff [sic] infection” is mentioned three times in what plaintiff has identified as the
“Cell Block Post Ledger,” which is a “ledger book kept . . . in the cell block by the
correctional officers.” (See Ex. E, Doc. 125-5; Davis Depo. at 87:18-88:1.) On January 31,

10

Davis described her position as “the top person on site.” (Davis Depo. at 10-11.)
Davis oversaw three lieutenants and thirteen sergeants. (Id. at 12.) Being a sergeant is a
promotion from being a correctional officer, (Doc. 125-11 (Moten Depo. at 7-8)), and
Davis never testified as to how many correctional officers she oversaw.
8

2008, during the 7 a.m. to 3 p.m. shift, Defendant Tangery Thomas wrote, “It was stated J2Acell 6 has a staff [sic] infection couldn’t be verified by nurse.” (Doc. 125-5 at 3; see also Doc.
121-3 at 6-7, Thomas’s Responses to Plaintiff’s Interrogatories.) Thomas explained that she
heard a “rumor” that “the occupant of Cell J-2-A cell 6 had a staph infection . . . [and] noted
it on the log and checked with the nurse to see if she had any medical requests or documents
reporting or requesting treatment for a staph infection,” but “no medical documentation was
received by the nurse to verify anyone having a staph infection.” (Doc. 121-3 at 6-7,
Thomas’s Responses to Plaintiff’s Interrogatories.) While at the jail, plaintiff was kept in J-2A, cell 6. (See Davis Depo. at 101-102; Doc. 125-3 at 3.) Upon reading this entry on the same
shift, Moten spoke with Thomas about it, then “checked with the nurse to confirm if any
inmates were being treated for a staph infection.11 No medical documents were found stating
any inmates in the jail were being treated for a staph infection.” (Doc. 121-1 at 6-7, Moten’s
Responses to Plaintiff’s Interrogatories.) Moten then wrote, “There is no medical
documentation on detainee’s having staff [sic] infection.” (Doc. 125-5 at 1; Doc. 121-3 at 7.)
The entry for the 3:00 p.m. to 11:00 p.m. shift on February 1 states, “Detainee Gerald Lindley
w/m [(white male)] has staff [sic] infection to the leg.” (Doc. 125-5 at 2.) The entry
immediately below that, written by defendant Josslyn Tarver upon starting the February 1,

11

The daily personnel report for January 31, 2008 lists defendants Thomas and
Bernadine Harper as being on duty in area J-2. (Doc. 125-4.) Moten is also listed,
although her area is not, and in its place is her rank, “CSU,” (id.), which probably means
“Correctional Supervisor,” (see City of Birmingham Jail Rules and Regulations, Doc.
125-16 at 4, 6 ¶ II.C.).
9

2008, 11:00 p.m. to 7:00 a.m. shift, states, “Nothing to pass on.” (Id. at 2; see Doc. 125-15
at 6-7.)
By the time Shelby County Officers picked him up at the Birmingham Jail on
February 2, 2008, he had to be helped out of his clothes and could not walk on his own.12
(Doc. 125-2 at 4-5.) While he was being processed into the Shelby County Jail, a nurse
examined his knee. (Id. at 5.) The nurse noted that Lindley was “unable to walk,” that his
knee had an abscess with a “blackened center,” and that it was “hot to the touch.” (Doc.
125-7 at 1.) Lindley was showered, dressed, and then taken to the hospital. (Doc. 125-2 at
5.) Soon after arriving, he was taken to the emergency room, started on an intravenous drip,
and seen by a “number of doctors.” (Id.) The doctors made an incision at his knee, which
“drained a large amount of foul[-]smelling dark fluid.” (Id.)
The Operative Report listing date of surgery as February 5, 2008 states: “The patient
had extensive infection of the right lower extremity, which was not responding to antibiotics.
. . . [T]he patient had been able to milk large amount of pus out of his thigh through an
opening to the right of the patella.” (Doc. 125-8 at 11.) He was placed under general
anesthesia for surgery, his wound was “debrided,” and “strips of fascia” were removed, along
with “some necrotic fascia.” (Id.) The Operative Report listing date of surgery as February

12

Moten remembered seeing Lindley “standing at the counter” just before he was
to be picked up by Shelby County police, and she remembered talking to “a nurse or
Sergeant King at Shelby County,” who was “pretty much upset and irate” and wanted to
know “why did we send a detainee to them that needed medical treatment. (Moten Depo.
at 63-64.)
10

6, 2008 states: “The previous evening, the patient had had aggressive and extensive
debridement of very serious fasciitis of his leg,” but by this point there was “[m]uch less
necrosis of the fascia.”13 He was again placed under general anesthesia, and the wound was
debrided. (Doc. 125-8 at 13.) He remained in the hospital until February 14, 2008. (Doc. 1252 at 5.) In a followup statement on February 21, 2008, the doctor said, “He has been on a
wound vac. This has been removed . . . . We are going to continue the wound vac for about
another week . . . . The width of the wound . . . may mean that we are obliged to close this
with a split thickness skin graft.” (Doc. 125-8 at 7.) In a followup statement on March 31,
2008, the doctor stated, “Cultures obtained during [the February 6th] procedure grew Staph
aureus.”14 (Doc. 125-8 at 4.) The Shelby County Nurse Notes entry for February 7, 2008,
notes “MRSA15 grew out of culture.” (Doc. 125-7 at 3.) A physical exam statement dated

13

Débridement is “[t]he removal from a wound, etc., of damaged tissue or foreign
matter.” OED Online, http://www.oed.com/view/Entry/47930 (last visited January 13,
2015). Fasciitis is “inflammation of [a ‘thin sheath of fibrous tissue investing a muscle’].”
OED Online, http://www.oed.com/view/Entry/68359 (quoting
http://www.oed.com/view/Entry/68341) (last visited January 13, 2015). Necrosis is
“[d]eath of tissue or cells; an instance or area of this.” OED Online,
http://www.oed.com/view/Entry/125717 (last visited January 13, 2015).
14

“Staphylococcus aureus causes most staph infections.” MedlinePlus, National
Institutes of Health, http://www.nlm.nih.gov/medlineplus/staphylococcalinfections.html
(last visited January 13, 2015.) Staphylococcus is “[a] form of pus-producing bacteria.”
OED Online, http://www.oed.com/view/Entry/189060 (last visited January 13, 2015).
15

MSRA stands for methicillin-resistant Staphylococcus aureus. OED Online,
http://www.oed.com/view/Entry/111722 (last visited January 13, 2015).
11

April 2, 2008 states: “He has a very long stripe down the entire length of his thigh and most
of his leg . . . . I still think he needs a skin graft . . . .” (Doc. 125-8 at 5.)
For ten months, until the wound healed, he received follow up treatment from doctors
and nurses. (Doc. 125-2 at 5.) A “deep and wide” scar remains on his leg, “running from the
top of [his] thigh to below [his] knee.” (Id. at 6.)
Lindley filed suit on January 22, 2010, just before the two-year statute of limitations
ran, naming various defendants including “Kathy Davis – in her individual and official
capacity as Chief of Birmingham City Jail, . . . Nurse Frida (last name unknown) – in her
individual and official capacity as a Nurse at the Birmingham City Jail; Correctional Officer
Glenn (first name unknown),” and two other last-name-only officers. Davis joined in a
motion to dismiss on February 18, 2010, and filed her answer on March 12, 2010. An
extended period of discovery commenced, during which Glenn, Moten, and Taylor were
deposed on October 14, 2010, and Davis was deposed on November 9, 2010. The court
granted Lindley leave to file a motion to amend his complaint. Lindley filed the Amended
Complaint on December 31, 2010, putting forward four counts: (1) a claim under 42 U.S.C.
§ 1983 against all defendants for violations of rights secured to him by the Fifth, Eight, Ninth
and Fourteenth Amendments to the Constitution; (2) a claim against all defendants for
violation of the Equal Protection Clause of the Fourteenth Amendment; (3) a claim for
negligence against all defendants; and (4) a claim for spoliation of evidence against all
defendants. (Doc. 50 at 8-12.) He seeks declaratory and monetary relief. (Id.) The Amended

12

Complaint named new defendants, including the defendants remaining in this case. (Id.)
Lindley is suing all remaining defendants in their individual and official capacities. (Id. at
¶¶ 10, 14, 15, 21, 23.) After dispositive motions, appeals, and remands, the case is before the
court on the remaining defendants’ Motion for Summary Judgment. (Doc. 121.)16
ANALYSIS
I. Statute of Limitations
Even civil claims arising from the most serious injuries caused by the most culpable
defendants live and die by a statute of limitations. As the Eleventh Circuit recognized in its
examination of this case, plaintiff’s claims are subject to Alabama’s two-year statute of
limitations. (See Doc. 103-1 at 3 (citing McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir.
2008); Ala. Code § 6-2-38 (1975)).) Therefore, once his claims arose on or about February
2, 2008, plaintiff had two years to file a claim against the defendants. His original complaint
was timely but did not name the present defendants.17 The question is whether his otherwise
untimely amended complaint, which did name the present defendants, can be saved by the
relation back doctrine.
The Eleventh Circuit has explained in this case,
Federal Rule of Civil Procedure 15(c) governs when an amended complaint
may “relate back” to an earlier complaint, and therefore be considered filed at
the time of the initial complaint. An amended complaint that adds a party or
16

After the second remand from the 11th Circuit, this case was reassigned to the
undersigned on May 13, 2013. (Doc. 104.)
17

The original complaint did name “Nurse Frida (last name unknown)” as a defendant.
13

changes the name of a party relates back where (1) the claim “arose out of the
same conduct, transaction or occurrence set out—or attempted to be set
out—in the original pleading;” (2) the new party “received such notice of the
action that it will not be prejudiced in defending on the merits;” (3) the party
being added received such notice within the time period of Rule 4(m), 120
days; and (4) the party being added “knew or should have known [within the
Rule 4(m) time period] that the action would have been brought against it, but
for a mistake concerning the proper party's identity.” Fed. R. Civ. P.
15(c)(1)(B), (C)(i-ii); see Fed. R. Civ. P. 4(m).
The Supreme Court addressed the interplay between Rule 4(m) and Rule
15(c) in determining when a plaintiff may file an amended complaint in
Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 130 S. Ct. 2485 (2010). In that
case, the defendant asserted that “Rule 15(c) requires a plaintiff to move to
amend her complaint or to file and serve an amended complaint within the
Rule 4(m) period.” Id. at 2497 n. 5. The Supreme Court rejected that assertion
finding that “the speed with which a plaintiff moves to amend her complaint
or files an amended complaint after obtaining leave to do so has no bearing on
whether the amended complaint relates back.” Id. at 2496. Rather, the pertinent
question is whether within the Rule 4(m) period the defendant “knew or should
have known that it would have been named as a defendant but for an error.”
Id. at 2493.
Lindley v. City of Birmingham, Ala., 515 F. App’x 813, 815-16 (11th Cir. 2013).
Since the original complaint in this case was filed on January 22, 2010, plaintiff must
show that by May 22, 2010, one-hundred and twenty days later, each defendant “knew or
should have known that it would have been named a defendant but for an error.” Id. at 816
(quoting Krupski, 560 U.S. at 2493) (internal quotations omitted). To this end, plaintiff
presents two arguments: first, the present defendants “share an ‘identity of interest’ with the
defendants named in the original complaint;” second, they “share common counsel.” (Doc.
124 at 14.) In support of his first argument, plaintiff points out that the present defendants,
like some of the original defendants, were employed at the Birmingham City Jail and that
14

Moten “received calls from the Shelby County Jail regarding Lindley’s condition” on
February 2, 2008. (Id. at 18-19.) In support of the second argument, he notes that he “filed
his notice of claim against the City on May 21, 2008” and “[i]n less than two weeks[,] an
assistant city attorney had received the notice of claim and began an investigation,” pursuant
to which the attorney “faxed a copy of the Notice of Claim to Principle Corrections
Supervisor Russell Davis at the Birmingham City Jail, asking that Davis forward ‘any and
all information, complaints etc. . . that your department may have regarding the matter.’”
(Doc. 124 at 19-20.)
Notice based on “identity of interest” stems from a recognition that “the parties are
so closely related in their business operations or other activities that the institution of an
action against one serves to provide notice of the litigation to the other.” Sanders-Burns v.
City of Plano, 594 F.3d 366, 374 n.8 (5th Cir. 2010) (quoting Kirk v. Cronvich, 629 F.2d 404,
408 n.4 (5th Cir. 1980)18 (in turn quoting 6 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure 1499 (1972))). Therefore, when a sheriff’s office is sued, the sheriff
himself shares an “identity of interest” with his office such that notice of the suit passes
interchangeably between them. See Kirk, 629 F.2d at 408.

18

Kirk was overruled on other grounds in Schiavone v. Fortune, AKA Time, Inc.,
477 U.S. 21, 106 S. Ct. 2379, 91 L.Ed.2d 18 (1986), see Sanders-Burns, 594 F.3d at 373
n.7, and is otherwise binding on this court pursuant to Bonner v. City of Prichard, Ala.,
661 F.2d 1206, 1209 (11th Cir. 1981).
15

But that is not necessarily so for all the sheriff’s deputies. In Garvin v. City of
Philadelphia, 354 F.3d 215 (3d Cir. 2003), where the plaintiff sued the city and “Police
Officer John Doe,” the Third Circuit stated that “absent other circumstances that permit the
inference that notice was actually received, a non-management employee . . . does not share
a sufficient nexus of interests with his or her employer so that notice given to the employer
can be imputed to the employee for Rule 15(c)(3) purposes.” Id. at 225 (quoting Singletary
v. Pennsylvania Dep’t of Corrs., 266 F.3d 186, 200 (3d Cir. 2001)) (internal quotations
omitted). In some tension with this point is Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir.
1998), where the Fifth Circuit: (1) found that “there was a sufficient identity of interest
between the newly-named [police] officers” and the originally-named defendants, the city
and one “Officer Osborne,” to infer notice; and (2) “presum[ed]” that the initial city attorney
“investigated the allegations, thus giving the newly-named officers . . . notice of the action.”
Id. at 320; but see Garvin, 354 F.3d at 227 (“[W]e [have] specifically distanced our court
from [the aspect of Jacobsen that seemingly combines the analysis of identity of interest and
shared attorney].”).
The court is persuaded that the distinction between management and non-management
employees is important in the identity of interest analysis in this case. The difference is one
of responsibility for another: an employee “highly . . . placed in the [organization’s]
hierarchy,” Garvin, 354 F.3d at 227, is responsible in many ways for the well-being of the
organization. Thus, a court may presume that the higher-up is knowledgeable about business

16

affecting the entire organization. That is not so easily said of non-management employees,
who, while certainly having some general stake in the well-being of the organization, are not
necessarily looking out for any interest other than their own. So while the sheriff must share
an identity of interest with the sheriff’s office, a brand new deputy, one of fifty, say, does not
share that same identity with the office of the sheriff, or an identity with any other fellow
deputy.
On this point in this case, then, this court parts ways with the court in Jacobsen. Here,
while Davis might share an identity of interest with “City of Birmingham Jail” originally
sued, Sergeant Moten, one of thirteen sergeants Davis oversaw, (see Davis Depo. at 12), does
not; nor do the other remaining defendants, the nurse, or the three correctional officers share
an identity of interest with the (last-name-only) correctional officers originally sued.
But this court rejoins the court in Jacobsen in its analysis of constructive notice based
on shared attorney. This case and Jacobsen are potentially distinguishable from Garvin in
that in this case and Jacobsen, specifically identifiable “non-management” co-employees of
the present defendants were named in the original complaint: in Jacobsen (“Officer
Osborne”) in this case (“Nurse Frida” and “Correctional Officer[s]” Glenn, Smith,19 and
Bird). (See Doc. 1.) In Garvin, the plaintiff simply named “Police Officer John Doe.” It is

19

Correctional officer John Glenn appears on the January 31, 2008 entry for the
Jail’s personnel report. (Doc. 125-4.) Correctional officer Smith appears in the cell block
post ledger entry for January 31, 2008 as having been on duty on the J2 post for the 3 p.m.
to 11 p.m. shift. (Doc. 125-5 at 2.)
17

easy to conclude that merely naming “Police Officer John Doe” in a complaint does not
launch the city’s attorneys into an investigation within 120 days sweeping so broadly that it
may be presumed sufficient to put every city police officer on notice of a potential suit
against him or her. See Garvin, 354 F.3d at 226-227.20 In this case, however, it is hard to
imagine that the city’s attorney, who would later represent defendant Fredia Taylor once she
was named in the Amended Complaint, (Doc. 50), would not have contacted Taylor soon
after being presented with a complaint against “the City of Birmingham Jail” and “Nurse
Frida.” (See Doc. 1.)
For the other defendants, it is more appropriate to follow the rule that “a plaintiff must
show . . . some communication or relationship between the shared attorney and the
[unnamed] defendant prior to the expiration of the 120-day period.” Garvin v. City of
Philadelphia, 354 F.3d 215, 225 (3d Cir. 2003) (internal quotations omitted)). Plaintiff’s
second argument makes an initial misstep by conflating the filing of his “notice of claim”
with the filing of his suit. The latter is the focus when a plaintiff is trying to impute notice

20

In Richmond v. McElyea, 130 F.R.D. 377 (E.D. Tenn. 1990), a case on which
plaintiff heavily relies, the magistrate judge found that “when [the originally named
defendant] Knox County and its attorneys learned of this lawsuit, they ‘should have taken
steps to investigate the claim, including collecting and preserving evidence against any
foreseeable eventuality.’ Certainly, this investigation involved discussions with the
officers on duty at the Intake Center on the night that plaintiff was arrested.” Id. at 381
(quoting Kirk, 629 F.2d at 408). This court is unwilling to presume that the attorneys for
Birmingham identified, or should have identified, within 120 days of the Complaint being
filed, every correctional officer and sergeant who worked in plaintiff’s area during his
stay and discussed with them the possibility that the suit was directed at them rather than
the named defendants.
18

of the filing of a lawsuit via shared counsel. But more importantly, plaintiff’s argument
ignores that the shared attorney relationship or communication must arise “prior to the
expiration of the 120-day period” after the filing of the suit. Id. And there is no evidence in
the record that this showing could be met here. The mere fact of shared representation later
is not enough; some evidence of actual communication or relationship within the 120-day
period is required. See Smith v. City of Philadelphia, 363 F. Supp. 2d 795, 800 (E.D. Pa.
2005) (finding that a shared attorney’s pleading, which was filed within the 120-day period
and which identified later-named defendants in response to a plaintiff’s motion to compel,
was evidence that those later-named defendants had a relationship with the shared attorney
within the 120-day period, imputing notice; but finding that notice could not be imputed to
the later-named defendant not identified in that pleading).
Because plaintiff has not shown that defendants Thomas, Harper, Tarver, and Moten
“received such notice within the time period of Rule 4(m), 120 days” of the filing of the
original complaint, and “knew or should have known [within the Rule 4(m) time period] that
the action would have been brought against [them], but for a mistake concerning the proper
party’s identity,” Fed. R. Civ. P. 15(c)(1)(B), (C)(i-ii), the claims asserted against them in the
Amended Complaint do not relate back to the date of the original Complaint and are thus
time-barred. Only plaintiff’s claims against Taylor remain.21 Those claims are for deliberate

21

Since only claims against one defendant in her official capacity remain,
defendants’ arguments in section III.a. regarding duplicity have been rendered moot. (See
Doc. 121 at 19-20.)
19

indifference to serious medical need in violation of the Eighth Amendment, violation of the
Equal Protection clause of the Fourteenth Amendment, negligence, and spoliation.

II. Federal Claims and Qualified Immunity
Lindley claims that Taylor displayed negligence and deliberate indifference toward
the infection on his leg, an infection so serious that once he was released into the care of
another county, a nurse immediately recognized the problem and had him transported to the
hospital, where he was treated for fourteen days. “Deliberate indifference to a [detainee’s]
serious medical needs is a violation of the Eighth Amendment.” Goebert v. Lee County, 510
F.3d 1312, 1326 (11th Cir. 2007); see also id. (explaining applicability of the Fourteenth
Amendment in situations like this one). Lindley’s burden is to prove he had a serious medical
need, that Taylor acted with deliberate indifference toward it, and that such indifference
caused his injury. Id.
Taylor’s assertions that “[p]laintiff must [and did not] prove that he had MSRA or a
staph infection while incarcerated at the Birmingham City Jail” is not merely misguided, but
disappointing. First, it does not matter the name of the bacteria infecting Lindley’s leg or
even that it was bacterial; Lindley could have mistakenly called his infection the plague. It
is sufficient that by the time he was released from the Birmingham City Jail, the infection had
so obviously manifested on his skin that it required immediate hospitalization, an immediate
procedure to drain the pus from his leg, and two rounds of surgery shortly thereafter. But

20

second, there is strong evidence that Lindley’s self-diagnosis of a staph infection was in fact
correct. Therefore, defendant cannot seriously argue that Lindley did not suffer from a
serious medical need “that has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Goebert, 510 F.3d at 1326 (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994)).
To establish deliberate indifference, Lindley “must prove three things: (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 brackets omitted). Whether Taylor subjectively knew
of the risk of serious harm is a question of fact subject to demonstration in the
usual ways, including inference from circumstantial evidence, and a factfinder
may conclude that a [nurse] knew of a substantial risk from the very fact that
the risk was obvious. Disregard of the risk is also a question of fact that can be
shown by standard methods.
Goebert, 510 F.3d at 1327 (internal citations and quotations omitted). In the context of delay
in providing medical care, guiding the analysis of whether a defendant’s conduct amounted
to something “more than gross negligence” are these factors: “(1) the seriousness of the
medical need; (2) whether the delay worsened the medical condition; and (3) the reason for
the delay.” Id.
Lindley relies on his allegations in his affidavits of May 21, 2008, (see Doc. 125-9 at
1-2), and October 25, 2010, (Doc. 125-2 at 3-4), which are substantially the same. Because

21

the specific allegations are important in attempting to pin liability on Taylor, the court quotes
directly and at length from the affidavits:
On Sunday, January 27, 2008[,] I discovered a sore on my right knee. Within
12 hours the sore had gotten much worse. It had become swollen and sore. My
skin around the sore had begun to turn red. . . . Starting January 28, 2008, I
began to request that someone look at my right knee and the sore. I specifically
recall reporting my medical need to Nurses Fredia Taylor and Allinda Brown.
. . . I began filling out [medical request] forms on Monday, January 28, 2008[,]
and continued to fill out the forms at each nurse call [four times per day] until
[February 2, 2008]. With each day, the condition of my knee became worse.
. . . During the week of January 28, 2008[,] I continued to fill out requests to
see the doctor. I showed my knee to both nurse Taylor and nurse Brown. They
told me that it was not serious and would only give me a Tylenol pain reliever.
. . . Later in the week, I became feverish . . . . At the time I showed the nurses
my leg, my entire knee area was clearly swollen, red and very warm to the
touch.
...
[T]he infection became steadily worse, it became more and more painful, my
leg became more and more swollen, my knee and leg had a pronounced red
tone, and was plainly and clearly inflamed. On several occasions I raised my
pants leg and showed my knee and leg to both the nurses and several
correctional officers. Later in the week and over the next weekend
[(presumably beginning Friday, February 1, 2008)], it became too painful to
raise my pants leg over my knee and at that time I would lower my pants in
order to show the nurse or correctional officers my knee and leg. I specifically
remember talking to and showing the condition of my knee to nurse Fredia
Taylor . . . .22
(Doc. 125-2 at 3-4.)

22

Taylor testified that she didn’t remember seeing him as an inmate, but shortly
thereafter testified that she only recalled him being in the jail after being shown a picture
of him. (Doc. 125-18 (Taylor Depo. at 9-10).) When told that Lindley likely stayed in J-2D (which is incorrect; he stayed in J-2-A, (see, e.g., Doc. 125-3 at 12)), Taylor testified
that she “wouldn’t go up there.” (Id. at 14.)
22

At times, these allegations devolve into generalized accusations against the entire
nursing staff. But, taken as true and construed in the light most favorable to Lindley as the
non-movant, and combined with the fact that plaintiff required immediate hospitalization
after being released from the Birmingham City Jail, these allegations are enough to support
a justifiable inference that at some point, Taylor saw Lindley’s leg in a condition bad enough
to where refusing treatment (other than Tylenol) represented deliberate indifference to a
serious medical need.23 See Newsome v. Chatham Cnty. Detention Ctr., 256 F. App’x 342,
345-346 (11th Cir. 2007) (affidavit like the ones here, though “self-serving,” was “sufficient
evidence to create a genuine issue of material fact that the nurses were deliberately
indifferent,” and the evidence must be construed in the light most favorable to the nonmovant); Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014). It is important that he “specifically
recall[ed]” and “specifically remember[ed]” reporting to and showing his condition to
Taylor,24 (see Doc. 125-2 at 3-4), because the court can justifiably infer from this that he
showed his leg to her at a time when it obviously required prompt medical attention. The
court emphasizes the importance of the fact that officials from Shelby County immediately
recognized Lindley’s dire condition and took him to the hospital, at which time doctors made

23

The court recognizes that this affidavit is subject to different interpretations, and,
if not read in the light most favorable to Lindley, could support a finding that Taylor only
looked at the sore on Lindley’s leg at some point, but not necessarily after it had become
“clearly swollen,” or “clearly inflamed.”
24

That other nurses may have also ignored Lindley’s complaints does not affect
Taylor’s culpability.
23

an incision to drain pus from his leg, put him on an IV drip, and sent him into surgery three
days later for debridement from which Lindley would take ten months to recover. Taylor puts
forward no reason for refusing to treat Lindley or for not having him examined by a
physician.
As for causation, it is enough that Taylor’s deliberate indifference may have caused
Lindley to languish in pain for a number of days after requesting attention. See Newsome v.
Prison Health Servs., Inc., CV405-042, 2009 WL 1469203 (S.D. Ga. May 26, 2009) (citing
Farrow v. West, 320 F.3d 1235, 1242-1243 (11th Cir. 2003)). But the court can justifiably
infer from the February 5, 2008 Operative Report from Dr. Sherer, which states, “[t]he
patient had extensive infection of the right lower extremity, which was not responding to
antibiotics,” and, “[l]arge amounts of necrotic fascia were debrided,” that Taylor’s deliberate
indifference also may have caused Lindley’s infection to progress beyond the point that it
would respond to antibiotics, the failure of which led to plaintiff’s surgery, and may have
caused there to be more “necrotic fascia,” and thus more debridement (and loss of more
tissue and skin), than there otherwise would have been had Lindley received earlier medical
attention. (See Doc. 125-8 at 11.) These are questions for the jury.
Taylor argues that she is entitled to qualified immunity for the federal claims against
her in her individual capacity. “To claim qualified immunity, a defendant official must first
show that [her] allegedly wrongful act or omission occurred while [she] was engaged in a
discretionary duty.” Goebert, 510 F.3d at 1329. The parties do not dispute and the court

24

agrees that Taylor was at all relevant times acting within the scope of her discretionary
authority as a nurse at the jail. (See Doc. 121 at 22; Doc. 124 at 29-30.) “If, interpreting the
evidence in the light most favorable to the plaintiff, the court concludes that the defendant
was engaged in a discretionary function, then the burden shifts to the plaintiff to show that
the defendant is not entitled to qualified immunity.” Holloman ex rel. Holloman v. Harland,
370 F.3d 1252, 1264 (11th Cir.2004)). The analyses of deliberate indifference and violation
of clearly established law seem interdependent, in that if a defendant is deliberately
indifferent to a serious medical need, then it seems clear that her actions are unlawful. At one
time, the Eleventh Circuit seemingly mandated this result: “A finding of deliberate
indifference necessarily precludes a finding of qualified immunity; prison officials who
deliberately ignore the serious medical needs of inmates cannot claim that it was not apparent
to a reasonable person that such actions violated the law.” Hill v. Dekalb Reg'l Youth Det.
Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994) (quoting Hamilton v. Endell, 981 F.2d 1062, 1066
(9th Cir.1992)). But the Eleventh Circuit has subsequently backed away from that statement.
See, e.g., Goebert v. Lee Cnty., 510 F.3d 1312, 1329 (11th Cir. 2007) (finding that the jail’s
facility commander engaged in “deliberate indifference to the true facts of an inmate’s
medical condition and needs,” and conducting a separate analysis to determine whether the
facility commander was, nonetheless, entitled to qualified immunity).

25

“A judicial precedent with materially identical25 facts is not essential for the law to be
clearly established, but the preexisting law must make it obvious that the defendant’s acts
violated the plaintiff’s rights in the specific set of circumstances at issue.” Youmans v.
Gagnon, 626 F.3d 557, 563 (11th Cir. 2010); see also Hope v. Pelzer, 536 U.S. 730, 742-43
(2002) (“The Court of Appeals’ conclusion to the contrary exposes the danger of a rigid,
overreliance on factual similarity. . . . [From prior precedent, the] unlawfulness of the alleged
conduct should have been apparent to the respondents.”). Since Taylor did nothing for the
five or so days that Lindley’s sore was infected, other than give Lindley Tylenol, she is not
relying on the notion that prior precedent did not make it “apparent” that the medical
attention she was providing was constitutionally inadequate. Therefore, if she is entitled to
qualified immunity, it must be because prior precedent did not clearly establish that
plaintiff’s infected leg sore, which had been worsening over the course of five days, was a
“serious medical need.”
To begin with, Taylor’s deliberate indifference when presented with Lindley’s
infected sore is probably the sort of “egregious [] violation” that merely requires a “general
[] statement of law” from prior precedent. See Goebert, 510 F.3d at 1330. So the fact that “an
official acts with deliberate indifference when [she] intentionally delays providing an inmate
with access to medical treatment, knowing that the inmate has a life-threatening condition

25

Indeed, even a “materially similar” case is not required. Hope v. Pelzer, 536 U.S.
730, 739 (2002).
26

or an urgent medical condition that would be exacerbated by delay,” id. (quoting Lancaster
v. Monroe County, Alabama, 116 F.3d 1419, 1425 (11th Cir. 1997)), is probably “fair
warning” enough in this case, see Hope, 536 U.S. at 741. But more specific prior precedent
also gave Taylor the requisite fair warning that Lindley’s infected leg sore constituted a
“serious medical need.” In finding that sores resulting from scabies were a serious medical
need, the court in Ciccone v. Sapp, 238 F. App’x 487, 489 (11th Cir. 2007), a non-binding
opinion, cited the binding opinion in Andujar v. Rodriguez, 486 F.3d 1199, 1203-04 (11th
Cir. 2007), which it characterized as “holding that a dog bite that caused more than
superficial wounds, impaired walking, and left the plaintiff crying in pain could be deemed
objectively serious.” This court, likewise, finds that the holding in Andujar that a dog bite
was a serious medical need provided Taylor the requisite fair warning that the infected sore
described in this case was also a serious medical need.26 A reasonable nurse would have
known that refusing treatment under these circumstances was unlawful. Therefore, Taylor
is not entitled to qualified immunity. Her motion for summary judgment on Count I is due
to be denied.

26

By way of negative comparison, the court offers Youmans v. Gagnon, 626 F.3d
557 (11th Cir. 2010), where the Eleventh Circuit noted that “significant, sustained
bleeding requiring later stitches is a far greater indicator of a need for urgent medical care
than the mere presence of cuts and bruises as in the present case.” Id. at 565-66. In the
present case, significant, sustained infection requiring later surgery is a great indicator of
a need for urgent medical care.
27

III. State Law Claims
a. Negligence
Taylor claims that she is entitled to summary judgment on the state law claims for
negligence and spoliation of evidence against her because she has immunity as a peace
officer pursuant to Ala. Code § 6-5-338. Subsection (a) of the statute provides in relevant
part:
Every peace officer, except constables, who is employed or appointed
pursuant to the Constitution or statutes of this state, . . . and whose duties
prescribed by law . . . include the enforcement of, or the investigation and
reporting of violations of, the criminal laws of this state, and who is
empowered by the laws of this state to execute warrants, to arrest and to take
into custody persons . . . , shall at all times be deemed to be officers of this
state, and as such shall have immunity from tort liability arising out of his or
her conduct in performance of any discretionary function within the line and
scope of his or her law enforcement duties.
Ala. Code § 6-5-338(a).
A plain reading of the statute makes clear that Taylor, as a nurse in the City Jail, is not
a “peace officer . . . empowered by the laws of this state to execute warrants, to arrest and
to take into custody persons,” and therefore, she is not entitled to immunity under the statute.
And as Lindley points out in his brief, (Doc. 124 at 33), the Alabama Supreme Court’s
decision in Walker v. City of Huntsville, 62 So. 3d 474 (Ala. 2010), mandates this result: no
evidence in this case “shows that the jail nurse was employed or appointed as a peace officer
or that he or she exercised the duties of a peace officer identified in § 6–5–338(a), such as

28

the enforcement of or the investigation of criminal laws. The jail nurse, therefore, was not
. . . an officer of the State under 6–5–338.” Id. at 501 (internal citations omitted).
Taylor also argues that she is entitled to state-agent immunity under Ex parte
Cranman, 792 So. 2d 392 (Ala. 2000). But while Cranman’s “restatement of State-agent
immunity” is broader than the immunity extended by 6-5-338(a), see Walker, 62 So. 3d at
497, it still does not cover Taylor’s actions. In refusing to give Lindley medical care, Taylor
was not performing any of the actions covered by Cranman immunity. She was not:

(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a department or
agency of government, including, but not limited to, examples such as:
(a) making administrative adjudications;
(b) allocating resources;
(c) negotiating contracts;
(d) hiring, firing, transferring, assigning, or supervising personnel; or
(3) discharging duties imposed on a department or agency by statute, rule, or
regulation, insofar as the statute, rule, or regulation prescribes the manner for
performing the duties and the State agent performs the duties in that manner;
or
(4) exercising judgment in the enforcement of the criminal laws of the State,
including, but not limited to, law-enforcement officers' arresting or attempting
to arrest persons;27 or
(5) exercising judgment in the discharge of duties imposed by statute, rule, or
regulation in releasing prisoners, counseling or releasing persons of unsound
mind, or educating students.

27

In Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006), the court added the
following language to the end of this section: “or serving as peace officers under
circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code
1975.” Id. at 309 (emphasis removed).
29

Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000).
Taylor states that her conduct “certainly falls within category four,” (Doc. 121 at 28),
but she was not “enforc[ing] the criminal laws of the State” in examining and refusing to
treat Lindley, Ex parte Cranman, 792 So. 2d at 405, nor was she “serving as a peace
officer[],” see Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala. 2006). She also states that
her actions “fall directly within category 3,” (Doc. 121 at 28), but she does not identify any
“statute, rule, or regulation” that required her not to treat Lindley. That her actions do not
somehow squeeze into those—or any—category is made abundantly clear on the very next
page of Ex parte Cranman, where the court holds that “[t]he conduct of the [state-employed]
physicians, in their treatment of [plaintiff], does not fit within any category of conduct
recognized by the restated rule as immune. The physicians are therefore not entitled to
State-agent immunity.” 792 So. 2d at 406.
Because Taylor did not have state-law immunity in refusing to treat Lindley, her
motion for summary judgment as to Count III is due to be denied.
b. Spoliation
Taylor argues that she did not “voluntarily undert[ake] to preserve . . . evidence, or
agree[] to preserve . . . evidence,” and that no “specific request was made to [her] to preserve
. . . evidence.” (Doc. 121 at 30.) The court agrees, and Lindley abandoned this claim against
Taylor by failing to argue it in his brief. Therefore, Taylor is entitled to summary judgment
as to Count 4, and plaintiff’s claim against her for spoliation is due to be dismissed.

30

CONCLUSION
Based on the above analysis, the court finds that defendants’ Motion for Summary
Judgment, (Doc. 120), is due to be granted in part and denied in part. All defendants except
Taylor are due to be dismissed from this action because the Amended Complaint does not
relate back against them and is thus time-barred. The Amended Complaint does, however,
relate back against Taylor. Lindley’s claims for an Equal Protection Violation and Spoliation
against her are due to be dismissed. His claims for deliberate indifference to serious medical
need and state law negligence against her remain. An order in accordance will be entered
contemporaneously with this Memorandum Opinion.
DONE this 23rd day of March, 2015.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

31