Osborne v. Cheatham et al

Filing 32

ORDER ADOPTING 24 Report and Recommendations. Accordingly, 2 Motion to Dismiss is GRANTED as to (1) all claims asserted against any dft, including Vincent Cheatham, in their official capacities; (2) all claims against Commissioner Thomas; and (3 ) all claims against Warden Smith for negligence, outrage, and negligent hiring and supervision; the Motion is DENIED as to the claim for deliberate indifference brought against warden Smith in her individual capacity. Signed by Judge Abdul K Kallon on 1/14/2016. (YMB)

FILED
2016 Jan-14 AM 10:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
OLIVIA OSBORNE,
Plaintiff,

vs.
VINCENT CHEATHAM, et al.,
Defendants.

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Civil Action Number
2:13-cv-01991-SGC

ORDER
On September 30, 2015, the magistrate judge entered a report and
recommendation, doc. 24, regarding a motion to dismiss filed by defendants
Warden Shirley Smith and Commissioner Kim Thomas, doc. 2. The parties were
allowed fourteen (14) days in which to file objections to the recommendation made
by the magistrate judge. On October 14, 2015, plaintiff Olivia Osborne objected to
the magistrate judge’s report and recommendation. Doc. 28.
Having reviewed the pleadings, the briefs, the magistrate’s report, and the
recommendation, the court hereby ADOPTS the recommendation of the
magistrate judge. Even if Osborne is correct that the statutes of limitation for the
negligence and outrage claims against Warden Smith in her individual capacity had
not expired because Warden Smith’s alleged imposition of birth control on
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Osborne constituted a continuous tort, see, e.g., Moon v. Harco Drugs, Inc., 435
So. 2d 218, 220-21 (Ala. 1983) (noting that a “continuous tort” could include
“when there is a ‘single sustained method pursued in executing one general
scheme’”) (citations omitted), these claims still fail. First, Osborne’s negligence
claim fails by its very terms because an officer’s negligent actions are protected by
state-actor immunity. 1 See Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000);
see also Giambrone v. Douglas, 874 So. 2d 1046, 1057 (Ala. 2003) (“The
immunity afforded State agents . . . is not abrogated for negligent and wanton
behavior; instead, immunity is withheld only upon a showing that the State agent
acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her
authority.”). Therefore, Osborne’s negligence claim against Warden Smith cannot
survive. Second, as to Osborne’s outrage claim, although—as the magistrate judge
noted—the allegations against Warden Smith “are outrageous in the colloquial
sense,” doc. 24 at 17, the actions alleged here fall outside of the three, arguably
four, narrow contexts in which Alabama courts have recognized the tort of outrage:
“wrongful conduct in the family-burial context,” Little v. Robinson, 72 So. 3d
1168, 1172 (Ala. 2011) (citing Whitt v. Hulsey, 519 So. 2d 901) (Ala. 1987));
1

Osborne apparently contends that state agent immunity does not apply because Smith was
purportedly acting “willfully, maliciously, fraudulently, and in bad faith” when negligently
failing to do her duties. Doc. 4 at 6-7. The court reminds Osborne that, on a motion to dismiss,
the court is restricted to the averments made in the complaint, see St. George v. Pinellas Cnty,
285 F.3d 1334, 1337 (11th Cir. 2002) (noting that, with a motion to dismiss, “[t]he scope of the
review must be limited to the four corners of the complaint”) (citation omitted), and that her
claim against Agent Warden Smith is a garden variety negligence claim. See doc. 1 at ¶ 35.
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“barbaric methods employed to coerce an insurance settlement,” id. (citing Nat’l
Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133) (Ala. 1983)); and “egregious
sexual harassment,”2 id. (citing Busy v. Truswal Sys. Corp., 551 So. 2d 322 (Ala.
1989)). Because Osborne does not argue and the court does not find that Warden
Smith’s actions fall within any of these categories, this claim is similarly due to be
dismissed.
Accordingly, Warden Smith and Commissioner Thomas’s motion, doc. 2, is
GRANTED as to: (1) all claims asserted against any defendant, including Vincent
Cheatham, in their respective official capacities; (2) all claims against
Commissioner Thomas; and (3) all claims against Warden Smith for negligence,
outrage, and negligent hiring and supervision. The motion to dismiss is due to be
DENIED as to the claim for deliberate indifference brought against Warden Smith
in her individual capacity.
DONE the 14th day of January, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

2

See also O’Rear v. B.H., 69 So. 3d 106, 118-19 (Ala. 2011) (affirming an outrage judgment
against a physician who, when asked by a teenage boy’s mother to counsel the boy about the
unhappiness he experienced as a result of his parents’ divorce, instead began exchanging
addictive prescription drugs for sex for a number of years, resulting in the boy’s drug addiction).
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