Lucio v. Tarrant, Alabama, City of et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/15/2015. (AVC)
2015 Jul-15 PM 03:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TAMMY L. LUCIO,
CITY OF TARRANT, ALABAMA, et al.,
Case No.: 2:13-CV-1970-RDP
This matter is before the court on the Motions for Summary Judgment filed by
Defendants Keith Smith (Doc. # 94), Larry Rice (Doc. # 96) and Chase Ramsey (Doc. # 98).
The Motions have been fully briefed. (Docs. # 95, 97, 99, 103, 104, 108, and 111-13).
Relevant Background and Facts1
On or about September 19, 2011, Plaintiff Tammy L. Lucio was taken into custody for
disorderly conduct and was transported to the City of Tarrant Jail. (Doc. # 56). While there,
Plaintiff alleges that Defendant Smith pushed her, causing her to fall and break her arm.
Thereafter, among other things, Plaintiff alleges that she was denied medical attention for her
arm, despite repeated requests for same. She claims this caused permanent damage to her arm.
(Doc. # 56).
The court views the facts in the light most favorable to Plaintiff, the non-movant. The court has reviewed
the evidence, and all factual inferences arising from it, in the light most favorable to the nonmoving party. Also,
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). Thus,
the court recognizes that the facts that may be presented if this case were to proceed to trial may be different than the
facts presented on summary judgment; however, the court must take Plaintiff’s plausible versions of the facts as true
at this stage. If the facts are in dispute, they are stated in a manner most favor to the non-movant. See Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
The Rule 56 evidence indicates that Officer Smith transported Plaintiff to the Tarrant jail
and escorted her inside to the booking room. (Doc. # 100-1 p. 97). Officer Smith removed
Plaintiff’s handcuffs in the booking room. (Doc. # 100-1 p. 99). After the booking process was
completed, Officer Smith instructed Plaintiff to change into jail clothes, which she did in the
visitation hall, under the supervision of Officer Sharon Briggs. (Doc. # 100-1 p. 102). After
Plaintiff changed clothes, Officer Smith stood in the doorway between the booking room and the
visitation hall. (Doc. # 100-1 p. 104). Plaintiff was standing within arm’s reach of Officer
Smith. (Doc. # 100-1 p. 104). Plaintiff testified that she turned toward Officer Smith to ask him
to use the phone. (Doc. # 100-1 p. 105-07). Officer Smith, however, perceived Plaintiff’s action
to be aggressive toward him. (Doc. # 100-7 ¶ 4). With open hands, Officer Smith pushed
Plaintiff away from him in order to put some distance between them. (Doc. # 100-7 ¶ 4). As a
result of the push, Plaintiff fell to the floor, hitting her left wrist on a stool as she fell. (Doc. #
100-1 p. 120).
After Plaintiff got up, Officer Smith escorted her to a jail cell. (Doc. # 100-1 p. 126).
Plaintiff told Officer Smith that she had broken her arm and needed to go to the hospital. (Doc. #
100-1 p. 127). Once being placed in a cell, Plaintiff “hollered” and kicked the door for a time
period she believes to be about thirty minutes. (Doc. # 100-1 pp. 128-129). Officer Smith
returned to Plaintiff’s cell with “at least four” paramedics. (Doc. # 100-1 p. 130). Plaintiff
described the examination by the paramedics as follows:
And what did they do?
They examined me, looked at me and wanted to place a blood pressure
cuff on this arm. I told the gentleman that this was the hurt arm, could he
put it on this right arm. And that agitated Officer Smith, and he removed
them from my cell, the paramedics.
Before they took your blood pressure?
They never took my blood pressure because I told him to put it –do it on
this arm instead of this arm.
You mean you told him –
My left arm, they wanted to take it on my left arm. And I asked the
paramedics to remove it and take my blood pressure on my right arm.
And that agitated Officer Smith and he removed the paramedics. The
paramedics left after that.
Did the paramedics ever examine your left wrist?
Visual. They looked at it. They never touched it. They just looked at it.
Did they ever take your hand and press the tips of your fingers?
(Doc. # 100-1 pp. 131-132).
Okay. Had they checked any other vital sign before Officer Smith
instructed them to leave?
All they were able to do, according to you, was look at your left arm and
start to take your blood pressure?
(Doc. # 100-1 p. 136).
The Patient Care Narrative prepared by the paramedics reflects that the paramedics
obtained Plaintiff’s name, address, age, date of birth and chief complaint of left wrist pain. (Doc.
# 100-4). The paramedics also checked and recorded Plaintiff’s pulse, respirations and specific
oxygen. (Doc. # 100-4). The paramedics also noted that “Pt. in custody of Tarrant Police Dept.
Pt. c/o (L) wrist pain. Pt. states her (L) arm hurts. Normal cap refill. No obvious deformity. Pt.
stable. Pt. left in custody of Tarrant P.D.” (Doc. # 100-4). Nothing in the Patient Care
Narrative indicates that Plaintiff’s arm was broken or that she needed further medical attention.
(Doc. # 100-4). Officer Smith signed the form refusing treatment. (Doc. # 100-4).
After the paramedics left her cell, Plaintiff had no further interaction of any kind with
Plaintiff’s only interaction with Officer Ramsey was on the morning of September 20,
2011, where Officer Ramsey supervised Plaintiff for approximately 5 minutes while she placed a
phone call. (Doc. # 100-1 pp. 142-144). In her deposition, Plaintiff described her full interaction
with Officer Ramsey as follows:
Okay. So Tuesday morning is your first morning in the Tarrant jail in
September of 2011?
Who’s the first officer that you have any communication with Tuesday
And what was the nature of that communication?
He - - I stopped him and I asked him - - told him about my arm, that my
arm was hurt and I needed to go to the hospital. And, also, could I use the
phone to let my family know that I was hurt in this jail and had not been
able to - - been taken to the hospital.
Okay. What did he say?
He let me out to use the phone.
How far is it from the cell you were in to where you could use the phone?
The booking area where I was initially, where I came in.
Just a few --
So a few steps.
A few steps. Did he stand there while you used the phone?
He stood beside me.
How long were you on the phone?
Five minutes maybe at the most. No more than five minutes.
And then did you go directly back to your cell?
Did Officer Ramsey say anything about your request to - - did you say you
asked him to go to the hospital?
I asked him to go to the hospital.
And did he say anything in response to that request?
Just that he would pass it on, he would pass the information on. Whatever
Did he examine your arm at all?
He visibly saw the swelling. I showed it. Like, look, like I need to go to
the hospital. See.
Did he touch your arm --
-- at all?
Did he ask you what happened?
Did you tell him how your arm was injured?
You showed him your swollen arm. He said he would pass it on?
And then took you back to your cell?
And you had no further interaction with Officer Ramsey during this
September 2011 incarceration?
(Doc. # 100-1 pp. 141-144).
Plaintiff encountered Detective Rice twice during her incarceration in the Tarrant jail.
(Doc. # 101-1 p. 188). The first interaction occurred on the morning of September 21, 2011.
[(Doc. # 100-6). That morning, Detective Rice learned that Plaintiff was at the jail. (Doc. # 1002).
Detective Rice reviewed the EMT’s Patient Care Narrative on Plaintiff before talking to
her. (Doc. # 100-2). Nothing in the Patient Care Narrative caused Detective Rice to believe that
Plaintiff’s arm was seriously injured or that she had any kind of serious medical condition. (Doc.
# 100-2). Detective Rice retrieved Plaintiff from her cell and took her to his office. (Doc. # 1001 p. 144). In his office, Detective Rice interviewed Plaintiff regarding a felony theft of a wallet
from a man at the American Legion (Doc. # 100-1 p. 145), and a felony theft of a gun from a
woman’s home (Doc. # 100-1 p. 202). Plaintiff confessed to both crimes. (Doc. # 100-1 pp. 145,
192). Plaintiff did not ask Detective Rice to take her to the hospital, nor did she request any
other form of medical assistance from him before or during this September 21, 2011 interview.
(Doc. # 100-1 p. 151).
Plaintiff then accompanied Detective Rice and Lt. Cox in an effort to recover the stolen
items. (Doc. # 100-1 p. 152). Plaintiff was with Detective Rice and Lt. Cox for about an hour as
they successfully retrieved both stolen items. (Doc. # 100-1 pp. 177-182). Plaintiff did not ask
Detective Rice or Lieutenant Cox for any medical assistance while they recovered the stolen
property. (Doc. # 100-1 pp. 153, 183-184). Plaintiff did not mention her alleged left wrist injury
to any of the people that she and the Detective Rice encountered during the course of recovering
the stolen property. (Doc. # 100-1 pp. 176, 180, 182-183).
Detective Rice then returned Plaintiff to her cell in the Tarrant jail. (Doc. # 100-1 p. 184).
Plaintiff did not ask Detective Rice for any medical assistance upon their return to the jail before
she was returned to her cell for the day. (Doc. # 100-1 pp. 184-185).
The second interaction between Detective Rice and Plaintiff occurred the next day – on
the morning of September 22, 2011. Detective Rice took Plaintiff from her cell into his office
and took recorded statements from Plaintiff confessing to the two felony theft crimes. (Doc. #
100-1 p. 190). On the way to Detective Rice’s office, Plaintiff told Detective Rice that she
needed to go to the hospital because she thought her arm was broken. (Doc. # 100-1 pp. 190191). Plaintiff never told Detective Rice how she had injured her arm, nor did she attempt to
show her arm to Detective Rice. (Doc. # 100-1 p. 151; Ex. 2). Detective Rice did not notice any
swelling, bruising, or obvious deformities of Plaintiff’s arm during his interactions with her on
either September 21 or September 22, 2011. (Doc. # 2). Detective Rice responded to Plaintiff’s
statement by saying Jefferson County had good x-ray machines, and she would get an x-ray
when she got there. (Doc. # 100-1 p. 191). Detective Rice returned Plaintiff to her cell after
obtaining her taped confessions. (Doc. # 100-1 p. 192). Detective Rice had no further interaction
with Plaintiff during her September 2011 incarceration. (Doc. # 100-1 p. 192).
Later that day, however, Officer Ricky Ganey took Plaintiff to St. Vincent’s East
Hospital for a second assessment of her arm. (Doc. # 100-1 p. 266; Doc. # 104 at & 24). Officer
Ganey then transported Plaintiff from St. Vincent’s East to the Jefferson County jail on evening
of September 22, 2011. (Doc. # 100-1 pp. 269-270).
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
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.”).
Plaintiff advances the following claims against the moving defendants:
Against Defendant Smith, Plaintiff asserts two Section 1983 claims, one for the
use of excessive force and the other for deliberate indifference to Plaintiff’s serious medical
need, and state law negligent hiring, training and/or supervision and assault claims. (Doc. # 56).
Against Defendant Rice, Plaintiff asserts a Section 1983 claim for deliberate
indifference to Plaintiff’s serious medical need and a state law negligent hiring, training and/or
supervision claim. (Doc. # 56).
Against Defendant Ramsey, Plaintiff asserts a Section 1983 claim for deliberate
indifference to Plaintiff’s serious medical need and a state law negligent hiring, training and/or
supervision claim. (Doc. # 56).
The court addresses each of Plaintiff’s claims below.
Plaintiff’s Negligent Hiring, Training and/or Supervision Claims Fail as a
Matter of Law
In ruling on Defendant Reno’s Motion to Dismiss, this court already held that Plaintiff’s
Negligent Hiring, Training and/or Supervision Claims are due to be dismissed in their entirety.
(Docs. # 75 and 76). Alabama does not recognize a cause of action for a supervisor’s negligent
training or supervision of a subordinate. See e.g., Doe v. City of Demopolis, 799 F.Supp.2d 1300,
1312 (S.D. Ala. 2011) (“Alabama law does not recognize a cause of action against a supervisor
or municipality for negligent training or supervision.”); Ott v. City of Mobile, 169 F.Supp.2d
1301, 1314-15 (S.D. Ala. 2001) (dismissing a negligent retention, training, and supervision claim
against a municipality because “Alabama recognizes no cause of action against a supervisor for
negligent failure to supervise or train a subordinate … .”).
In a similar action filed in the Middle District of Alabama, that court granted summary
judgment in favor a city police chief on a state law claim for negligent training, supervision, and
retention. See Borton v. City of Dothan, 734 F.Supp.2d 1237, 1262 (M.D. Ala. 2010) (emphasis
added). The Borton court reached its conclusion after citing the general rule that a police chief
could not be liable for negligent training or supervision because “no such cause of action exists
under Alabama law. . . .” Borton, 734 F.Supp.2d at 1258 (citing Hamilton v. City of Jackson, 508
F. Supp. 2d 1045, 1054-58 (S.D. Ala. 2007)); see also Crutcher v. Vickers, 2012 WL 3860557,
*13 (N.D. Ala. 2012). If no such cause of action lies against a chief of police in Alabama, it
follows that Plaintiff cannot establish such a claim against these Defendants.
Plaintiff’s claim for negligent hiring, training, and supervision fails to state claim upon which
relief can be granted, and Defendants Smith, Rice and Ramsey are each entitled to dismissal of
those claims asserted against them.
Defendants Are Entitled To Summary Judgment On Plaintiff’s Section 1983
Claims Alleging A Deliberate Indifference To A Serious Medical Need
As part of one of the section 1983 claims she has advanced, Plaintiff contends that
Defendants were deliberately indifferent to her serious medical needs. 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). Nevertheless, 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); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)). 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
To establish that a jail official is deliberately indifferent to her serious medical need, a
prisoner must satisfy both an objective and a subjective component. Campbell v. Sikes, 169 F.3d
1353, 1363 (11th Cir. 1999). Regarding the objective component, a prisoner must show both an
objectively serious medical need that, if left unattended, poses a substantial risk of serious harm,
and also 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).
In connection with 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) conduct that is
more than mere negligence. 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 the
defendant’s wrongful conduct. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582 (11th Cir.
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 she “may have desired different
modes of treatment” than that which was provided to her. 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.
Plaintiff Failed To Show An Objectively Serious Medical Need
In this case, shortly after arriving at the police station, Smith pushed Plaintiff, causing her
to fall and break her arm. After being placed in a cell, Plaintiff “hollered” and kicked the door
for what she believes to be about thirty minutes. (Doc. # 100-1 pp. 128-129). Thereafter, Smith
returned to Plaintiff’s cell with “at least four” paramedics. (Doc. # 100-1 p. 130). Plaintiff
disputes the adequacy of the treatment by the paramedics, and claims Smith interfered with that
treatment, but it is undisputed that upon Plaintiff’s complaint of an injury, Defendants called the
paramedics who examined Plaintiff. This does not demonstrate a deliberate indifference to
Plaintiff’s claimed medical need.
As to Plaintiff’s claim that Smith interfered with the
examination of her, that claim is an inadequacy or negligence in diagnosis or treatment claim
which is not actionable under section 1983. Taylor, 221 F.3d at 1258. Defendants called the
paramedics, and the paramedics reported that they examined Plaintiff. They did not notice
evidence of a broken arm. Their report states: “Pt. c/o (L) wrist pain. Pt. states her (L) arm
hurts. Normal cap refill. No obvious deformity. Pt. stable.” (Doc. # 100-4).
As discussed above, an objectively serious medical need is “one that has been diagnosed
by a physician” or “one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Farrow, 320 F.3d at 1243. At the time Plaintiff claims
defendants were deliberately indifferent, there was no diagnosis by a physician that Plaintiff’s
arm was broken. Nonetheless, Defendants called the paramedics on the basis of Plaintiff’s
subjective complaints. Four paramedics (who have medical training which a lay person does
not), did not consider it “obvious” that Plaintiff needed medical attention. This is the case even
if, as Plaintiff contends, their examination was interrupted.
If it was not obvious to the
paramedics that Plaintiff’s arm was broken (according to Plaintiff, they tried to put a blood
pressure cuff on that arm), there is no basis for the argument that it was “so obvious” that
Defendants (who are lay people) should have easily recognized the need for medical attention.
And to reiterate, Defendants had already called the paramedics for medical attention. On these
facts, Plaintiff has failed to show that she had a legally cognizable, objectively serious medical
Plaintiff Failed To Show Subjective Knowledge of A Serious Medical
As discussed above, after Plaintiff’s fall, paramedics were called. Before Detective Rice
interviewed Plaintiff the next day about two felony thefts, he reviewed the paramedics’ report. It
revealed no medical diagnosis and reported no obvious problem. During the interview, Plaintiff
Plaintiff claims that the four paramedics visited her cell, but Smith became irritated with her and ordered
them out of the cell before they finished examining her arm. Nevertheless, the paramedics completed a Patient Care
Narrative. (Doc. 100-4). That narrative indicates that the paramedics checked on Plaintiff in her cell, noted her
chief complaint was a hurt arm, but saw no obvious deformity. (Id.). There is an obvious disagreement between
Plaintiff on the one hand, and Smith and the paramedics on the other, as to what occurred in the jail cell that day. If
this were a negligence case, this may well create a material issue of disputed fact. But here, Plaintiff must show
deliberate indifference to her medical needs. Even assuming her version of the events is correct, and that Smith did
not allow the paramedics to complete their examination of Plaintiff, it is still undisputed that the paramedics did
actually observe Plaintiff, placed a blood pressure cuff on her injured arm, and reported later that there were no
obvious deformities with respect to that arm.
confessed to the two thefts and then accompanied Rice and Lt. Cox in an effort to recover the
stolen items. (Doc. # 100-1 p. 152). Plaintiff was with Detective Rice and Lt. Cox for about an
hour as they successfully retrieved both stolen items. (Doc. # 100-1 pp. 177-182). Detective
Rice then returned Plaintiff to her cell. (Doc. # 100-1 p. 184). Plaintiff did not ask Detective
Rice for any medical assistance during her interview, while recovering the items, or upon their
return to the jail before she was returned to her cell for the day. (Doc. # 100-1 pp. 184-185).
Thus, Plaintiff has presented no evidence that Detective Rice had a subjective appreciation that
she had a serious medical need.
The following day, Detective Rice took Plaintiff from her cell into his office and took
recorded statements from Plaintiff confessing to the two felony theft crimes. (Doc. # 100-1 p.
190). On the way to Detective Rice’s office, Plaintiff told Detective Rice that she needed to go
to the hospital because she thought her arm was broken. (Doc. # 100-1 pp. 190-191). Detective
Rice did not notice any swelling, bruising, or obvious deformities in Plaintiff’s arm during his
interactions with her on either September 21 or September 22, 2011. (Doc. # 2). Detective Rice
returned Plaintiff to her cell after obtaining her taped confessions (Doc. # 100-1 p. 192) and, later
that day, Officer Ganey took Plaintiff to St. Vincent’s East Hospital for a second assessment of
her arm. (Doc. # 100-1 p. 266; Doc. # 104 at & 24).
Although Plaintiff asserts that she perceived her injury to be obvious, she has failed to
present evidence that any of the Defendants had “subjective knowledge of a risk of serious
harm.” McElligott, 182 F.3d at 1255. Defendants obtained an initial assessment of Plaintiff’s
condition by medical personnel shortly after she complained of an injury. The paramedics’
report of that assessment did not indicate any serious or obvious injury. Thereafter, Plaintiff
complained on and off about her arm, but she has presented no evidence that there was any
injury which was obvious to Defendants. To the contrary, the paramedics’ initial assessment of
Plaintiff indicated “no obvious deformity.” Thereafter, she assisted in the recovery of items she
had stolen without complaint. Nonetheless, after later complaints from Plaintiff, Defendants
arranged for Plaintiff to have further medical attention. The Rule 56 evidence Plaintiff relies
upon shows, at most, that Defendants were negligent; but that is insufficient to establish the
objective component of her deliberate indifference claim. McElligott, 182 F.3d at 1255.
Because Plaintiff failed to establish either the objective or the subjective components of
her deliberate indifference claim, and because nothing about Plaintiff’s treatment shocks the
conscious, Defendants are entitled to summary judgment on this claim. See Harris, 941 F.2d at
1505; Campbell, 169 F.3d at 1363.
Defendants Are Entitled To Summary Judgment On Plaintiff’s Section 1983
Claims Alleging Excessive Force
Claims of excessive force against prison officials also fall under the proscription against
cruel and unusual punishment. Like the deliberate indifference claim addressed above, the
standard applied to an excessive force claim also has a subjective and an objective component.
As to the objective component, “not every malevolent touch by a prison guard gives rise to a
federal cause of action.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (citing Hudson v. McMillian,
503 U.S. 1, 9 (1992)). An inmate who complains of a “push or shove” that causes no discernible
injury almost certainly fails to state a valid excessive force claim. Hudson, 503 U.S. at 9 (quoting
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). The prohibition against “cruel and
unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of
mankind.’” Hudson, 503 U.S. at 10 (citation omitted). Accordingly, the Eleventh Circuit requires
that a plaintiff suffer more than a de minimis injury to establish an excessive force violation,
although courts must remain mindful of the fact that a significant injury is not required. See
Johnson v. Breeden, 280 F.3d 1308, 1321 (11th Cir. 2002).
Under the subjective component, a plaintiff must show that a prison official's actions
amounted to an “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S. 312,
319 (1986). “Force is deemed legitimate in a custodial setting as long as it is applied ‘in a good
faith effort to maintain or restore discipline [and not] maliciously and sadistically to cause
harm.’” Skrtich v. Thornton, 280 F.3d 1295, 1300 (11th Cir. 2002) (quoting Whitley, 475 U.S. at
320-21). In determining whether an application of force was applied maliciously and sadistically
to cause harm, a variety of factors are considered including these five: “the need for the
application of force; the relationship between that need and the amount of force used; the extent
of the threat to the safety of staff and inmates, as reasonably perceived by officials; the extent of
injury; and any efforts made to temper the severity of the response.” Hudson, 503 U.S. at 7-8,;
see also Whitley, 475 U.S. at 321; Campbell v. Sikes, 169 F.3d 1353, 1375 (11th Cir. 1999).
Upon consideration of such factors, “inferences may be drawn as to whether the use of force
could plausibly have been thought necessary, or instead evinced such wantonness with respect to
the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.”
Whitley, 475 U.S. at 321 (quoting Johnson, 481 F.2d at 1033). Although the absence of serious
injury is relevant to an excessive force claim, the core judicial inquiry is not whether a quantum
of injury was sustained but rather whether force was applied in a good-faith effort to maintain or
restore discipline or whether it was applied maliciously and sadistically to cause harm. See
Wilkins, 559 U.S. at 37; see also Hudson, 503 U.S. at 4.
The court’s inquiry comes down to “whether the evidence goes beyond a mere dispute
over the reasonableness of a particular use of force or the existence of arguably superior
alternatives. Unless it appears that the evidence, viewed in the light most favorable to the
plaintiff, will support a reliable inference of wantonness in the infliction of pain under the
standard we have described, the case should not go to the jury.” Whitley, 475 U.S. at 322. “[T]o
determine whether the amount of force used by a police officer was proper, a court must ask
whether a reasonable officer would believe that this level of force is necessary in the situation at
hand.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (internal quotation marks omitted).
“If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for
instance, the officer would be justified in using more force than in fact was needed.” Saucier,
533 U.S. at 205.
Here, Plaintiff was standing within arm’s length of Officer Smith. (Doc. # 100-1 p. 104).
Plaintiff turned toward him, ostensibly to ask him to use the phone. (Doc. # 100-1 p. 105-07).
Smith, however, perceived Plaintiff’s action to be aggressive. (Doc. # 100-7 ¶ 4). Therefore,
Smith pushed her away. (Doc. # 100-7 ¶ 4). As a result of the single, defensive push, Plaintiff
fell and claims to have injured her arm as a result of the fall. (Doc. # 100-1 p. 120). Plaintiff
characterizes this as Smith breaking her arm. The court will not engage in semantics here (e.g.,
did Smith break Plaintiff’s arm or did her fall cause the break?). The key here is that there is no
evidence, at all, that Smith intended to harm Plaintiff in any way. Thus, the Rule 56 evidence
simply does not “support a reliable inference of wantonness in the infliction of pain … .”
Whitley, 475 U.S. at 322.
In addition, the record fails to reflect that Smith used force “maliciously and sadistically”
for the very purpose of causing harm. “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.” Saucier, 533
U.S. at 209. For these reasons, Defendant Smith is entitled to summary judgment on Plaintiff’s
excessive force claim.
Qualified Immunity Bars Plaintiff’s Section 1983 Claims
Defendants also argue they are 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 Defendants were at all times acting within the
scope of their discretionary authority.
“To overcome qualified immunity, the 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 undertake in a qualified
immunity analysis is whether plaintiff's allegations, if true, establish 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, relative to both Plaintiff’s deliberate indifference claim and her
excessive force claim, Plaintiff has failed to present evidence of a constitutional violation.
Therefore, Defendants are entitled to judgment as a matter of law on the basis of qualified
immunity on those claims.3
Defendants are Entitled to State Agent Immunity on Plaintiff’s Assault
Plaintiff only asserts an assault claim against Defendant Smith (for pushing her). (Doc. #
56 p. 10). However, even with respect to Plaintiff’s assault claim against him, Smith is entitled
to judgment as a matter of law because he is entitled to state agent immunity. Ala. Code § 6–5–
Section 6–5–338 of the Alabama Code 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.
Police officers are “peace officer[s] for purposes of § 6–5–338.” Borders v. City of Huntsville,
875 So.2d 1168, 1178 (Ala. 2003). 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. 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
There is also a substantial argument that Defendants are entitled to qualified immunity because, at the
time of the events giving rise to Plaintiffs claims, it would not have been clear to the reasonable public official that
their conduct violated Plaintiffs well-established constitutional rights.
(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
By enacting section 6–5–338, the Alabama Legislature intended to afford municipal lawenforcement officials 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 law-enforcement 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)).
Plaintiff does not even address Defendant Smith’s argument that he is entitled to state
agent immunity on her assault claim. (Doc. # 108). Therefore, she has not seriously disputed
that Smith was engaged in a discretionary function when he pushed her. Plaintiff had been
booked at the jail and Smith was preparing her to go to a cell. When Plaintiff, who was within
arm’s reach of Smith turned toward him, he perceived a threat and utilized a single, defensive
push to separate himself from Plaintiff. In doing so, Smith was exercising judgment in the line
and scope of his duties as a law enforcement officer. Although Alabama's state-agent immunity
does not apply for “acts taken willfully, maliciously, fraudulently, in bad faith, beyond authority,
or under a mistaken interpretation of law,” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256
(11th Cir. 2010), nothing about the facts of this case warrant depriving Smith of state agent
immunity on this basis. He is entitled to summary judgment on Plaintiff’s assault claim based on
state-agent immunity under Section 6–5–338(a).
For the foregoing reasons, Defendants are entitled to summary judgment on all of
Plaintiff’s claims against them.
A separate order will be entered.
DONE and ORDERED this July 15, 2015.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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