Davis et al v. Fultondale, City of et al

Filing 100

MEMORANDUM OPINION. Signed by Judge R David Proctor on 8/4/2015. (AVC)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEVEN DAVIS,
Plaintiff,
v.
CITY OF FULTONDALE, et al.,
Defendants.

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2015 Aug-04 AM 09:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

Case No.: 2:13-CV-1070-RDP

MEMORANDUM OPINION
This matter is before the court on Defendant Belinda Cox’s Motion for Summary
Judgment. (Doc. # 93). The Motion has been fully briefed. (Docs. # 94, 96 and 97).
Plaintiff asserts a deliberate indifference to serious medical need claim against Defendant
Belinda Cox pursuant to 42 U.S.C. § 1983, as well as state law negligence and wantonness claims
based on the same events. (Doc. # 79).
I.

Relevant Background and Facts1
On September 15, 2012, Defendant Cox was working as dispatcher for the Fultondale

Police Department. (Doc. # 79 at & 9). Just after midnight on that date, Fultondale police
1

If facts are in dispute, they are stated in the manner most favorable to the non-movant. Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). These are the facts for summary judgment purposes only; they may
not be the actual facts. See Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir. 1994) (“‘[W]hat
we state as ‘facts’ in this opinion for purposes of reviewing the rulings on the summary judgment motion [] may not be
the actual facts.’” (citation omitted).
The court must note that it has been somewhat frustrated by the manner in which Plaintiff has presented his
factual disputes in this case. Rather than presenting evidence in the record which shows there is a genuine dispute of
fact regarding the evidence presented by Defendant Cox, Plaintiff merely argues that the testimony presented is
self-serving, and a jury could determine that Defendant Cox and other witnesses are not credible. (Doc. # 96 at p.
2-8). This is insufficient to demonstrate that there is a genuine issue of fact for a jury to decide. Appendix II to the
Scheduling Order (Doc. # 46) instructs that, in supporting and responding to summary judgment, “Counsel must state
facts in clear, unambiguous, simple, declarative sentences.” (Doc. # 46, Appx. II(D)). Appendix II further instructs
that “[a]ny statements of fact that are disputed by the non-moving party must be followed by a specific reference to
those portions of the evidentiary record upon which the dispute is based. All material facts set forth in the statement
required of the moving party will be deemed to be admitted for summary judgment purposes unless controverted by
the response of the party opposing summary judgment.” As stated above, mostly, Plaintiff argues that the evidence
presented by Cox may not be believed by a jury. However, even where he does actually dispute facts, the court’s
examination of the record cites listed in support of Plaintiff’s disputes revealed evidence that did not, in fact,
contradict the facts as presented by Defendant Cox.

officers Jim Henderson and David Hale arrested Plaintiff for public intoxication. (Doc. # 79 ¶¶
11-12; Doc. # 81-3 p. 21). Plaintiff was brought to the booking room/holding cell area of the
Fultondale Jail at approximately 12:24 a.m.

(Doc. #81-5).

Officers Henderson and Hale

testified that they believed that Plaintiff was intoxicated or under the influence of narcotics.
(Doc. # 81-2 at 22, 28-29; Doc. # 81-3 p. 22).
Officer Hale tased Plaintiff at 12:26 a.m. (Doc. #81-5). Although Cox did not see
Henderson tase Plaintiff, she testified that she heard him hit the floor. (Doc. # 95-2 p. 33). At
12:27 a.m., Cox looked into the holding cell. She saw Officer Hale still holding the taser and
Plaintiff lying on the floor with the wires still in his chest. (Doc. # 95-2 p. 34; Doc. #81-5). Cox
left the cell and, within approximately a minute, called for Fultondale Fire & Rescue to come to the
jail to attend to someone who had been tased. (Doc. # 95-1 p. 2). After Plaintiff was tased,
Officer Hale observed that he was breathing, and left the cell. (Doc. # 81-3).
Officers Henderson and Hale, along with Reserve Officer Randall Posey, remained in the
booking room/holding cell area until 12:30 a.m. (Doc. #81-5). When the officers exited the
booking room, Cox informed the officers that she had called the fire department paramedics to
come to the jail. (Doc. # 95-2 at pp. 45-46). Cox heard someone comment that Plaintiff was
snoring. (Doc. # 95-2 p. 46; Doc. # 84-2 p. 30-31). Officer Posey testified that he could hear
Plaintiff snoring. (Doc. # 84-2 p. 30-31).
At 12:33 a.m., the paramedics, Fultondale Fire Department Rescue 71, radioed Cox to
report that they were in route to the jail. (Doc. # 95-3).
Cox’s view of the holding cell from her monitor in the dispatch office showed only
Plaintiff’s legs and feet. (Doc. # 95-2 p. 48; Doc. #81-5). As Cox waited for the paramedics to
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arrive, she occasionally glanced at the monitor. Cox testified that Plaintiff appeared to be asleep,
which was consistent with what she had heard from one of the officers. (Doc. # 95-2 p. 47, 60).
In Cox’s experience, it was not unusual for an inmate to sleep on the floor. (Doc. # 95-2 p. 61).
Cox did not enter the holding cell to physically check Plaintiff’s pulse, nor did she examine
whether he was breathing. (Doc. # 95-2 p. 49). Cox was able to listen to and to communicate with
detainees in the holding cells through an intercom. (Dox. # 95-2 p.31). If she was unable to rouse
a detainee by her voice, she could call an officer to go into the cell to check the detainee. (Doc. #
95-2 p.32). Cox made no attempt to use the intercom to determine whether Plaintiff was
breathing or snoring, nor did she attempt to rouse him. (Doc. # 95-2 pp.46, 49, 60, 63- 64, 69-70,
75-76).
At approximately 12:35 a.m. the paramedics reported to Cox that they were at the jail, and
they arrived inside the booking room/holding cell area at about 12:37 a.m. (Doc. # 95-3). At
approximately 12:38 a.m., Cox left the booking room to call an ambulance.2 (Doc. #81-5).
As a dispatcher, Cox did not go through peace officer certification or training. (Doc. #
95-2 p. 28). Cox had received no training or education on the use of a taser and had never seen a
taser deployed. (Doc. # 95-2 pp. 28-29). Cox was not aware of how a person generally reacts
2

Plaintiff has alleged in his Amended Complaint that:

34. When the EMTs arrived over ten minutes later, Plaintiff Davis had stopped breathing. He was blue,
unconscious and unresponsive on the cell floor. The EMTs immediately began Emergency resuscitation efforts,
including CPR chest compressions and defibrillation. After Plaintiff Davis was administered a defibrillator shock,
his heart returned to a normal sinus rhythm. He was thereafter intubated and transported to a hospital.
35. Plaintiff Davis remained hospitalized for seven days. He was diagnosed with anoxic encephalopathy
(brain damage due to lack of oxygen). As a direct and proximate result of the events at the City Jail, Plaintiff Davis
suffered a traumatic brain injury, and has permanent brain damage, seizure disorder, short term memory loss, and
suffers a permanent disability. He can no longer work or take care of himself. He cannot make decisions,
communicate effectively, or function in society.
(Doc. 79, Plaintiff’s Third Amended Complaint at para. 33-34).

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after being tased. (Doc. # 95-2 pp. 77-78). Cox had never been told that if someone who had
been tased did not move for an extended period of time, she was required to check on them, (Doc.
# 95-2 p. 53), nor did she have any familiarity with tasers prior to this incident. (Doc. # 95-2 p.
61).
II.

Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party
asking for summary judgment always bears the initial responsibility of informing the court of the
basis for its motion and identifying those portions of the pleadings or filings which it believes
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, the Rule requires the non-moving party to go beyond the
pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or
admissions on file -- designate specific facts showing that there is a genuine issue for trial. See id.
at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
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granted. See id. 249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere allegations.”
Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v. Liberty Lobby,
Inc. teaches, Rule 56(c) “does not allow the plaintiff to simply rest on his allegations made in the
complaint; instead, as the party bearing the burden of proof of trial, he must come forward with at
least some evidence to support each element essential to his case at trial.” Anderson, 477 U.S. at
252. “Mere allegations” made by plaintiffs are insufficient. Id.
Summary judgment is mandated “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be granted
if the non-moving party’s evidence is merely colorable or is not significantly probative.” Sawyer v.
Southwest Airlines Co., 243 F. Supp.2d 1257, 1262 (D.Kan. 2003) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself 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. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so onesided that one party
must prevail as a matter of law.’” Sawyer, 243 F. Supp.2d at 1262 (quoting Anderson, 477 U.S. at
251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp.2d 1366, 1371 (S.D. Fla. 1999) (“The law
is clear … that suspicion, perception, opinion, and belief cannot be used to defeat a motion for
summary judgment.”).
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III.

Discussion
Plaintiff has sued Cox under 42 U.S.C. § 1983 and alleges that she was deliberately

indifferent to his serious medical needs. He also asserts state law negligence and wantonness
claims. (Doc. # 79). Obviously, Cox is not the only defendant sued in this case; Plaintiff has
also sued the City of Fultondale and the officers involved in the events leading up to (and
including) his tasing—Henderson and Hale. The Eleventh Circuit has made clear that each
individual defendant must be judged separately based on what each person knows and did.
Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir. 2008).
A.

Cox Is Entitled To Summary Judgment On Plaintiff’s Section 1983 Claim
Alleging Deliberate Indifference To A Serious Medical Need

Plaintiff contends that Cox was deliberately indifferent to his serious medical needs in
violation of section 1983. The Eighth Amendment prohibits cruel and unusual punishment,
which includes deliberate indifference to a prisoner’s serious medical needs. Estelle v. Gamble,
429 U.S. 97, 104 (1976). Claims of deliberate indifference to serious medical needs arise under
the Eighth Amendment when the claimant is a convicted prisoner. However, when a section 1983
Plaintiff is a pre-trial detainee, the claim must be asserted under the Fourteenth Amendment.
Gilmore v. Hodges, 738 F.3d 266, 271 (11th Cir. 2013). In any event, the minimum standard for
providing medical care to a pretrial detainee is identical to the minimum standard required by the
Eighth Amendment for a convicted prisoner, and courts analyze the claim under the decisional law
of both amendments. Id.
“Our cases have consistently held that knowledge of the need for medical care and an
intentional refusal to provide that care constitutes deliberate indifference.” Adams v. Poag, 61 F.3d
1537, 1543-44 (11th Cir. 1995) (citing Carswell v. Bay Cnty., 854 F.2d 454, 457 (11th Cir. 1988);
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Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)). However, not every
claim of inadequate medical treatment states a cognizable claim under the federal constitution. Id.
“Medical treatment [is deliberately indifferent] only when it is so grossly incompetent, inadequate,
or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (citation omitted) (Eighth Amendment case).
To establish that a jail official was deliberately indifferent to his serious medical need, a
prisoner must meet both an objective and a subjective standard of proof. Campbell v. Sikes, 169
F.3d 1353, 1363 (11th Cir. 1999).
To establish the objective component, a prisoner is required to show both (1) an objectively
serious medical need that, if left unattended, poses a substantial risk of serious harm, and (2) that
the response by the prison official to that need was poor enough to constitute an unnecessary and
wanton infliction of pain.

Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).

An

objectively serious medical need is “one 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.” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (internal quotation
marks omitted). In “delay in treatment” cases, even when treatment is ultimately provided,
deliberate indifference may be “inferred from an unexplained delay in treating a known or obvious
serious medical condition.” Harris v. Coweta Cnty., 21 F.3d 388, 394 (11th Cir. 1994).
To establish the subjective component, a prisoner must establish three factors: (1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) that the conduct
complained of is more than merely negligent. McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.
1999). Additionally, as with any tort claim, the prisoner must show that an injury was caused by
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the defendant’s wrongful conduct. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir.
1995). It is not enough to show that the care provided was less than optimal, or that a different
course of treatment might have been preferable. The required subjective elements of a deliberate
indifference claim ensure that “mere accidental inadequacy, negligence in diagnosis or treatment,
[and] even medical malpractice” are not actionable under section 1983. Taylor, 221 F.3d at 1258.
A prisoner also cannot establish a violation simply because he “may have desired different modes
of treatment” than that which was provided to him. Hamm v. DeKalb County, 774 F.2d 1567, 1576
(11th Cir. 1985). Such a course of treatment claim, by definition, involves the “exercise of
professional judgment” and as such is not actionable. Estelle, 429 U.S. at 105.
1.

Plaintiff Has Failed To Show That Cox Was Indifferent to An
Objectively Serious Medical Need

As discussed above, to establish that Plaintiff had an objectively serious medical need,
Plaintiff must present evidence either that he had a medical need that either was diagnosed by a
physician as mandating treatment, or was so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003).
Here, there was no physician-diagnosed condition. Therefore, the question is whether it would
have been obvious to a lay person that Plaintiff needed medical attention. Here the facts are
undisputed—although Cox was unfamiliar with how tasers work and their effects, within about a
minute of seeing that Plaintiff had been tased, Cox called for medical help. (Doc. # 95-1 p. 2).
Plaintiff appears to argue that Cox’s indifference stems not from a failure to obtain medical
attention, but the urgency (or lack thereof) with which it was provided. More specifically,
Plaintiff argues Cox was indifferent because, when she called a fire and rescue unit, she did not
specify that it was an emergency, and she failed to check on Plaintiff again after calling for medical
8

help.
Cox called for medical attention within a minute of seeing that Plaintiff had been tased and
specified the medical issue which was presented—she told the Fultondale Fire & Rescue personnel
that Plaintiff had been tased. Thereafter, medical personnel were on the scene within eleven
minutes. The evidence before the court does not establish that it should have been obvious to a
lay person that Plaintiff needed more immediate medical attention than that provided. Cox called
the paramedics, she heard someone say he was asleep, and what she saw on the monitor was
consistent with a sleeping inmate. At least with respect to Cox, nothing about this course of
events shows any deliberate indifference to an objectively serious medical need.
2.

Plaintiff Failed To Show Cox Had Subjective Knowledge Of A Serious
Medical Need

Even if the facts showed a deliberate indifference to an objectively serious medical need
(and, to be clear, they do not), Plaintiff must also show that Cox subjectively perceived a serious
medical need to which she was indifferent. Here, Plaintiff has again failed to meet his burden.
After Cox made her initial call for medical help to Fire and Rescue, one of the officers
indicated to Cox that Plaintiff was snoring. (Doc. # 95-2 p. 46; Doc. # 84-2 p. 30-31). Cox
testified that Plaintiff appeared to be asleep, which was consistent with what she had heard from
one of the officers. (Doc. # 95-2 p. 47, 60). Further, in Cox’s experience, it was not unusual for
an inmate to sleep on the floor. (Doc. # 95-2 p. 61). No evidence has been presented that Cox
had any subjective knowledge that Plaintiff was in distress.
“Each individual Defendant must be judged separately and on the basis of what that person
knows.” Burnette, 533 F.3d at 1331. Plaintiff has not presented evidence that Cox (1) had
subjective knowledge of a risk of serious harm to Plaintiff as a result of his being tased, and (2)
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disregarded that risk. Cox had already called for medical help and reported that the issue was that
Plaintiff had been tased. Thereafter the paramedics were on the scene within about ten minutes.
“[A]n official’s failure to alleviate a significant risk that he should have perceived but did not,
while no cause for commendation, cannot under our cases be condemned as the infliction of
punishment.” Farmer v. Brennan, 511 U.S. 825, 838 (1994). Plaintiff has not shown that Cox
was subjectively aware that Plaintiff had a serious medical need that required more immediate
medical attention than that for which she had already called for help.
Summary judgment is appropriate here because the undisputed evidence does not show
deliberate indifference by Cox to either an objectively serious medical need or one that she
subjectively perceived.
B.

Qualified Immunity Bars Plaintiff’s Section 1983 Claim

Cox also argues that she is entitled to qualified immunity. “Qualified immunity protects
government officials performing discretionary functions from suits in their individual capacities
unless their conduct violates clearly established statutory or constitutional rights of which a
reasonable person would have known.” Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir.
2007) (internal quotation marks omitted). “An official asserting the affirmative defense of
qualified immunity must initially establish that he was acting within his discretionary authority.”
Skop v. City of Atlanta, Georgia, 485 F.3d 1130, 1136 (11th Cir. 2007). “If the official was acting
within the scope of his discretionary authority ... the burden shifts to the plaintiff to show that the
official is not entitled to qualified immunity.” Id. at 1136-37. Here, Plaintiff has not challenged
the assertion that Cox was at all times acting within the scope of her discretionary authority.
Moreover, the Third Amended Complaint alleges that Cox was working in her capacity of
10

dispatcher during the relevant time frame. (Doc. # 79 at && 9-10).
Therefore, “[t]o overcome qualified immunity, [] plaintiff must satisfy a two prong test; he
must show that: (1) the defendant violated a constitutional right, and (2) this right was clearly
established at the time of the alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d
1252, 1264 (11th Cir. 2004). “The threshold inquiry” a court must consider in a qualified
immunity analysis is whether Plaintiff has alleged a constitutional violation. Hope v. Pelzer, 536
U.S. 730, 736 (2002). “If no constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified immunity.” Saucier v.
Katz, 533 U.S. 194, 201 (2001).
As discussed above, Plaintiff has failed to present evidence establishing a constitutional
violation. That is, Plaintiff has not presented evidence that Cox was deliberately indifferent to a
serious medical need. With the benefit of hindsight, Plaintiff now contends that Cox should have
acted with more urgency in seeking medical treatment. But at the time, Cox was not aware of any
facts which indicated that Plaintiff was suffering from an obviously life threatening condition.
Under these circumstances, Plaintiff’s allegations (and the undisputed evidence) do not give rise to
a constitutional claim. The facts demonstrate that, at most, Cox may have been negligent; but to
establish a deliberate indifference claim, Plaintiff must demonstrate facts showing conduct that
was more than negligent.
In addition, for all these same reasons, Plaintiff has not demonstrated that a reasonable
officer in the place of Cox would have known that she was violating the clearly established rights
of Plaintiff in acting (or even allegedly failing to act) as Cox did. Therefore, Cox is entitled to
judgment as a matter of law on the basis of qualified immunity on Plaintiff’s section 1983 claim.
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B.

Defendant Is Entitled To State Agent Immunity On Plaintiff’s State Law
Claims

Plaintiff’s only argument that Cox is not entitled to state agent immunity is that “a State
agent shall not be immune from civil liability in his or her personal capacity when the Constitution
... of the United States ... require[s] otherwise.” (Doc. # 96 at 26 (quoting Ex parte Kennedy, 992
So.2d 1276, 1282-1283 (Ala. 2008)). Thereafter, Plaintiff simply incorporates the arguments he
made previously in support of claim that there had been a constitutional violation.
Plaintiff does not dispute that a police dispatcher is a peace officer as contemplated by § 6–
5–338. “Therefore, for purposes of this appeal we assume that the police dispatcher in this case is
a ‘peace officer.’” Swan v. City of Hueytown, 920 So.2d 1075, 1079-80 (Ala. 2005) (citing
Howard v. City of Atmore, 887 So.2d 201, 203 (Ala. 2003)( (a sworn law-enforcement officer who
was serving as a jailer/dispatcher while recuperating from surgery was a “peace officer” within the
meaning of § 6–5–338) and Houston County Comm’n v. Hart, 477 So.2d 321, 322 (Ala. 1985) (a
dispatcher is a trained law-enforcement officer and thus entitled to the minimum starting salary for
all county law-enforcement officers)).
Ala. Code § 6–5–338 provides that:
[e]very peace officer ... shall at all times be deemed to be [an] officer [ ] 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.
The test set out in Ex parte Cranman, 792 So.2d 392 (Ala. 2000), defines Alabama’s doctrine of
state-agent immunity. The same test in Cranman for deciding state-agent immunity questions
“governs whether law enforcement officers are entitled to statutory, discretionary-function
immunity under § 6–5–338(a).” Brown v. City of Huntsville, Ala., 608 F.3d 724, 741 (11th Cir.
12

2010). Under Cranman,
[a] State agent shall be immune from civil liability in his or her personal capacity
when the conduct made the basis of the claim against the agent is based upon the
agent’s ….
(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, or serving as peace officers under circumstances entitling such
officers to immunity pursuant to § 6–5–338(a).
Hollis v. City of Brighton, 950 So.2d 300 (Ala. 2006) (modifying category (4) of Ex parte
Cranman) (emphasis added). Cox was engaged in a discretionary function in determining what
actions to take following Plaintiff’s tasing. See Byrd v. Sullivan, 657 So. 2d 830, 833 (Ala. 1995)
(determining whether student needed emergency medical treatment was discretionary function).
Cox was also engaged in a discretionary function when monitoring Plaintiff from her dispatch
office prior to the arrival of the paramedics. See Id.
By enacting section 6–5–338, the Alabama Legislature intended to afford municipal peace
officers the immunity enjoyed by their state counterparts. Ex parte Dixon, 55 So.3d 1171, 1176
(Ala. 2010); Sheth v. Webster, 145 F.3d 1231, 1237 (11th Cir. 1998). By its very terms, the
statute extends state-agent immunity to peace officers performing discretionary functions within
the line and scope of their duties. Ex parte Dixon, 55 So.3d at 1176; Moore v. Crocker, 852 So.2d
89, 90 (Ala. 2002). Discretionary functions have been deemed to be “those acts as to which there
is no hard and fast rule as to the course of conduct that one must or must not take, and those acts
requiring exercise in judgment and choice and involving what is just and proper under the
circumstances.” Moore v. Adams, 754 So.2d 630, 632 (Ala. 1999) (citing Wright v. Wynn, 682
So.2d 1, 2 (Ala. 1996), and L.S.B. v. Howard, 659 So.2d 43 (Ala. 1995)).

13

Plaintiff’s state law negligence and wantonness claims against Cox are based on events
occurring while she was engaged in a discretionary function. Therefore, she is entitled to the
presumption of state-agent immunity on those claims. Peace officers are immune from liability
for conduct involving discretionary acts unless the “conduct is so egregious so as to amount to
willful or malicious conduct or conduct engaged in bad faith.” Hawkins v. City of Greenville, 101
F.Supp.2d 1356, 1362 (M.D. Ala. 2000).

Plaintiff has presented no such evidence here.

Therefore, consistent with the court’s Rule 56 findings and ruling on Cox’s assertion of qualified
immunity, Cox is also entitled to state-agent immunity on these claims.
IV.

Conclusion
For the foregoing reasons, Defendant Cox is entitled to summary judgment on all of

Plaintiff’s claims against her.
A separate order will be entered.
DONE and ORDERED this August 4, 2015.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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