The Estate of Marquette F Cummings Jr et al v. Thomas et al

Filing 35

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 7/31/2017. (KAM, )

FILED
2017 Jul-31 PM 12:04
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THE ESTATE OF MARQUETTE F.
CUMMINGS, JR. and ANGELA
GAINES,
Plaintiffs,
v.
CARTER DAVENPORT, in his official
and individual capacities,
Defendant.

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Case No.: 2:15-cv-02274-JEO

MEMORANDUM OPINION 1
This action arises from the death of Marquette F. Cummings, Jr., who was an inmate at
St. Clair Correctional Facility. (Doc. 29 “Am. Compl.”). Plaintiffs, the Estate of Marquette F.
Cummings, Jr., by and through its Executor, Victor Revill, (the “Estate”) and Angela Gaines,
Mr. Cummings’s mother, (collectively, “Plaintiffs”) assert various state and federal claims
against Carter Davenport, the former warden of St. Clair Correctional Facility (“Warden
Davenport”), in his official and individual capacities. (Id.). Currently pending before the court
is Warden Davenport’s Motion to Dismiss the Amended Complaint. (Doc. 32). The parties have
briefed the motion. (Docs. 32 & 34). Upon consideration, and as discussed below, the court
finds the Estate’s § 1983 claim against Warden Davenport based on deliberate indifference to
Cummings’s serious medical needs in violation of the Eighth Amendment survives the Warden’s
motion to dismiss, and this claim may proceed. All of Plaintiffs’ remaining claims are due to be
dismissed.
1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 25).

I.

PROCEDURAL POSTURE
Plaintiffs initiated this action on December 15, 2015, asserting various federal and state

claims against the following defendants: Kim Thomas and Jefferson Dunn, Commissioners for
the Alabama Department of Corrections (“ADOC”); Warden Davenport; the University of
Alabama at Birmingham Hospital (“UAB Hospital”); Dr. Sherry Melton, a medical supervisor at
UAB Hospital; and various unnamed defendants associated with the ADOC or UAB Hospital.
(Doc. 1). In their Complaint, Plaintiffs asserted the following claims against Warden Davenport
in his individual and official capacities: (1) § 1983 claims for deliberate indifference in violation
of the Eighth Amendment; (2) a § 1983 claim for failure to train and negligent supervision based
on the failure to protect Cummings from harm; and (3) a state law wrongful death claim. (Doc.
1).
The original defendants in this action filed motions to dismiss Plaintiffs’ claims against
them. (Docs. 8, 12 & 14). For his part, Warden Davenport argued that the claims against him
were due to be dismissed under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure because Plaintiffs failed to state plausible claims against him and because the claims
were barred by sovereign immunity and qualified immunity. (Doc. 8).
Upon consideration of the defendants’ motion, the court found that all of Plaintiffs’
claims were due to be dismissed, with the exception of the Estate’s § 1983 claim against Warden
Davenport in his individual capacity based on deliberate indifference to Mr. Cummings’s serious
medical needs. (Doc. 28). Accordingly, the court entered an order granting in part and denying
in part the ADOC defendants’ motion to dismiss, and dismissing the following claims asserted
against Warden Davenport: (1) all of the claims asserted by Ms. Gaines; (2) all of the claims
asserted against the Warden in his official capacity; (3) a § 1983 claim for deliberate indifference

2

in violation of the Eighth Amendment based on the failure to protect Cummings from harm; (4) a
§ 1983 claim for failure to train and negligent supervision based on the failure to protect
Cummings from harm; and (5) a state law wrongful death claim. (See id.).
After the court entered its order dismissing most of Plaintiffs’ claims, Plaintiffs filed an
Amended Complaint on October 5, 2016, asserting claims against only Warden Davenport.
(Doc. 29). The Amended Complaint includes several new allegations regarding ADOC policies
and Warden Davenport’s knowledge of a threat to Cummings’s safety. (See id., ¶¶ 5-6, 29-30,
36, 38). In the Amended Complaint, Plaintiffs reassert claims against the warden that the court
previously dismissed with prejudice pursuant to Rules 12(b)(1) and 12(b)(6). 2 (See Docs. 28 &
29). Thus, Plaintiffs’ Amended Complaint implicitly seeks partial relief from, or reconsideration
of, the court’s Memorandum Opinion and Order granting in part and denying in part the ADOC
Defendants’ motion to dismiss. Therefore, to the extent that Plaintiffs’ Amended Complaint
includes new allegations and reasserts claims against Warden Davenport that were previously
dismissed with prejudice, the court construes the Amended Complaint as a motion to alter or
amend a judgment under Rule 59(e) of the Federal Rules of Civil Procedure and treats the new
allegations as newly-discovered evidence. On that basis, the court will reconsider the issues
raised by Warden Davenport’s motion to dismiss and Plaintiffs’ opposition to the motion.
II.

STANDARD OF REVIEW
Rule 8(a)(2) of the Federal Rules of Civil Procedure states that a complaint must contain

“a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R.
CIV. P. 8(a)(2). Pleadings that contain nothing more than “a formulaic recitation of the elements

2

Warden Davenport moved to dismiss all of the claims asserted against him in the
Amended Complaint, but he did not raise a specific objection to the assertion of claims that the
court previously dismissed with prejudice. (See Doc. 32).
3

of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based
merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual
allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & 557 (2007).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to
dismiss a complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV.
P. 12(b)(6). To meet the requirements of Rule 8(a)(2) and survive a motion to dismiss, “a
complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.’”
Adinolfe v. United Tech. Corp., 786 F.3d 1161, 1169 (11th Cir. 2014) (quoting Twombly, 550
U.S. at 555 & 570). “Specific facts are not necessary; the statement needs only ‘give the
defendant fair notice of the claim . . . and the grounds upon which it rests.’” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555). When deciding a motion to dismiss,
the court must assume the truth of the factual allegations in the complaint and give the plaintiff
the benefit of all reasonable factual inferences. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Hazewood v. Found. Fin. Grp., LLC, 551 F.3d 1223, 1224 (11th Cir. 2008). Legal
conclusions couched as factual allegations are not entitled to the same assumption of veracity.
Iqbal, 556 U.S. at 678.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of an
action when the court finds that it does not have subject matter jurisdiction. FED. R. CIV. P.
12(b)(1). “Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction can be
asserted on either facial or factual grounds.” Carmichael v. Kellogg, Brown & Root Services,
Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (citing Morrison v. Amway Corp., 323 F.3d 920, 925
n.5 (11th Cir. 2003). Facial challenges to subject matter jurisdiction, such as the challenges
presented in this action, are based solely on the allegations in the complaint. Id. “When

4

considering such challenges, the court must, as with a Rule 12(b)(6) motion, take the complaint’s
allegations as true.” Id.
Finally, the decision to alter or amend a judgment pursuant to Rule 59(e) is within the
sound discretion of the district court. See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(citing Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). “While, as a rule, parties are not
entitled to two bites at the apple, there are occasions in which reconsideration should be
entertained.” Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990) (quotation and internal
quotation marks omitted).

“The only grounds for granting a rule 59 motion are newly-

discovered evidence or manifest errors of law or fact.” Arthur, 500 F.3d at 1343 (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (alteration in original omitted).
III.

FACTUAL BACKGROUND
Marquette F. Cummings, Jr. was an inmate at St. Clair Correctional Facility in

Springville, Alabama (“St. Clair”). (Am. Compl. ¶ 3). During the weekend of January 3-5,
2014, Cummings witnessed “a physical altercation” between Timothy Gayle 3 and another inmate
at St. Clair. (Id. ¶ 4). “Following that altercation, Cummings and Gayle were involved in an
incident that required that both inmates [to] be separated by St. Clair Correctional Officers.”
(Id.).
Plaintiffs allege that pursuant to ADOC Administrative Regulation 300 (“AR-300”) and
ADOC Administrative Regulation 302 (“AR-302”), officers completed a report about the first
altercation involving Gayle and a report about the altercation between Cummings and Gayle.
(Id. ¶ 5). According to Plaintiffs, both reports were given to Warden Davenport immediately
after the altercations. (Id.). Plaintiffs also allege that after the altercations and “administratively
3

Timothy Gayle is an inmate at St. Clair who was convicted of murder. (See Doc. 29-1 at

1).
5

required reporting,” Gayle and Cummings were not put into protective custody, put in separate
dorms, or otherwise separated from one another. (Id. ¶ 6).
Following the weekend incident or altercation, Gayle stabbed Cummings in the eye with
a shank at approximately 7:40 a.m. on Monday, January 6, 2014, causing Cummings to bleed
profusely. (Id. ¶ 7; Doc. 29-1 at 1). Other inmates helped Cummings to the infirmary at St.
Clair, and he was quickly airlifted to UAB Hospital for treatment. (Id.). After Angela Gaines
learned her son had been stabbed and where he was taken for treatment, she went to UAB
Hospital to be with Cummings sometime during the afternoon of January 6. (See id. ¶¶ 9-13).
Dr. Sherry Melton, a medical supervisor at UAB Hospital, changed Cummings’s code
status to Do Not Resuscitate (“DNR”) at about 9:17 p.m. on January 6, 2014 without
authorization from Gaines or any other family member and without notifying Gaines and
Cummings’s family of the decision. (Id. ¶ 17; Doc. 1 ¶ 3(h)). Plaintiffs allege that Dr. Melton
relied upon statements from Warden Davenport to change Cummings’s code status to DNR even
though Gaines and several other family members were at the hospital. (Am. Compl. ¶¶ 18 &
20). Plaintiffs further allege that “Warden Davenport authorized UAB medical personnel to stop
giving Cummings medication and to disconnect the life support machine.” (Id. ¶ 21).
Plaintiffs allege that contrary to Gaines’s wishes, and “[b]ased on [the] directive from
Warden Davenport, Cummings was taken off of life support . . . .” (Id. ¶ 24). Cummings passed
away at 7:05 p.m. on January 7, 2014, just hours after UAB medical personnel removed his life
support. (Id. ¶¶ 24-25).
IV.

ANALYSIS
Based on the facts set forth above, Plaintiffs assert the following claims against Warden

Davenport in both his individual and official capacities: (1) § 1983 claims for deliberate

6

indifference in violation of the Eighth Amendment; (2) a § 1983 claim for failure to train and
negligent supervision based on the failure to protect Cummings from Gayle; and (3) a state law
wrongful death claim. (Am. Compl.). Warden Davenport asks this court to dismiss each of the
claims against him pursuant to Rules 12(b)(1) and 12(b)(6), arguing that the claims are barred by
sovereign and qualified immunity and that Plaintiffs failed to state plausible claims against him.
(Doc. 32).
A. Plaintiffs’ Standing to Assert their Claims
This Court previously dismissed the § 1983 claims and wrongful death claims asserted by
Gaines against Warden Davenport because she lacks standing to assert the claims. (Doc. 28 at 67, 10 & 25-26). Nothing alleged in Plaintiffs’ Amended Complaint changes Gaines’s lack of
standing to assert the claims in this action. Instead, for the reasons discussed in the court’s prior
order, the pending § 1983 and wrongful death claims can only be asserted by the Estate. See
Estate of Gilliam v. City of Prattville, 639 F.3d 1041, 1043 (11th Cir. 2011); Brown v. Mounger,
541 So.2d 463, 463-64 (Ala. 1989) (citing Ala. Code § 6-5-410); see also (Doc. 28 at 6-7).
Thus, to the extent Plaintiffs’ claims are asserted by Gaines, they are due to be dismissed.
B. Official Capacity Claims Against Warden Davenport
The court previously dismissed the official claims asserted against Warden Davenport on
the basis of sovereign immunity under the Eleventh Amendment to the United States
Constitution and Article I, § 14 of the Alabama Constitution of 1901. (Doc. 28 at 8-9, 25-26). In
response to Warden Davenport’s motion to dismiss the amended complaint, the Estate now
argues that sovereign immunity does not apply in this case because the warden acted in bad faith
and because the State waived its Eleventh Amendment Immunity. (Doc. 34 at 15-17). The court
is not persuaded.

7

The Estate asserts that its claims against Warden Davenport fall within an exception to
the State’s sovereign immunity.

(Doc. 34 at 15-16).

Specifically, the Estate argues that

sovereign immunity does not apply to claims for damages against a state official when the
official “acted fraudulently, in bad faith, beyond [his] authority, or in a mistaken interpretation of
law.” (Id. at 16 (quoting Drummond Company v. Alabama Department of Transportation, 937
So.2d 56 (Ala. 2006)). However, the “exception” to the State’s sovereign immunity that the
Estate relies upon only applies to actions for injunctive relief against a state official in his official
capacity or to actions for damages against a state official in their individual capacity; it does not
apply to actions for damages against a state official in his official capacity. See Ex parte
Moulton, 116 So. 3d 1119, 1141 (Ala. 2013). 4 Indeed, “it is well established that actions for
damages against State agents in their official or representative capacities are considered actions
to recover money from the State and are barred by State immunity under [Article I,] § 14” of the
Alabama Constitution of 1901. Id. at 1140 (citations omitted). In this action, the Estate seeks
monetary damages against Warden Davenport, see Am. Compl. at 11-12; thus, the claims
asserted against Warden Davenport in his official capacity are barred by the State’s sovereign
immunity.
Moreover, the State of Alabama has not waived its immunity under the Eleventh
Amendment. The Estate argues that the State has consented to suit or waived its immunity based
on Alabama Code § 41-9-74, which provides that the State will pay final judgments awarded
4

In Ex parte Moulton, the Supreme Court of Alabama clarified and restated the exception
to State immunity that it set forth in Drummond by holding that the “exception” applies only to:
“(a) actions for injunction brought against State officials in their representative capacity where it
is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken
interpretation of law, . . . and (b) actions for damages brought against State officials in their
individual capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their
authority, or in a mistaken interpretation of law, subject to the limitation that the action not be, in
effect, one against the state.” 116 So. 3d at 1141.
8

against members of the Board of Corrections and its employees for acts related to their official
duties on behalf of the State. (Doc. 34 at 17). However, § 41-9-74(c) expressly states that
“[n]othing in this section shall be deemed to waive the sovereign immunity of the state . . . .”
Ala. Code § 41-9-74(c) (1975). After evaluating the language of § 41-9-74, the Eleventh Circuit
found that the statute did not express any intent by the State to waive its sovereign immunity and
held that the State’s sovereign immunity bars suits against Board of Corrections employees in
their official capacities.

Williams v. Bennett, 689 F.2d 1370, 1377-78 (11th Cir. 1982).

Therefore, the Estate’s argument regarding waiver of Eleventh Amendment immunity is contrary
to binding precedent.
Based on the foregoing, and for the reasons stated in the court’s prior Memorandum
Opinion and Order, the Estate’s claims against Warden Davenport in his official capacity are
barred by the Eleventh Amendment and due to be dismissed under Federal Rule of Civil
Procedure 12(b)(1).
C. Individual Capacity Claims Against Warden Davenport
Plaintiffs assert multiple claims against Warden Davenport in his individual capacity
under § 1983 and state law. 5 (Am. Compl. at 6-11). For the reasons discussed below and in the
court’s prior Memorandum Opinion and Order, the court concludes the Estate has stated a
plausible § 1983 claim against Warden Davenport based upon an alleged Eighth Amendment
violation for interfering with Cummings’s medical care, and this claim may proceed. The
remaining claims against the warden in his individual capacity are due to be dismissed.

5

42 U.S.C. § 1983 provides a civil action against any person who, “acting under color of
state law, committed acts that deprived [Plaintiffs] of some right, privilege, or immunity
protected by the Constitution or laws of the United States.” Easley v. Dept. of Corrections, 590
F. App’x 860, 868 (11th Cir. 2014) (per curiam) (citing 42 U.S.C. § 1983).
9

1.

Claims Based on the Failure to Protect Cummings from Gayle

The Estate asserts several § 1983 claims against Warden Davenport in his individual
capacity for deliberate indifference based on the failure to protect Cummings from Gayle. (Doc.
29 at 6-11). This court previously dismissed those claims pursuant to Rule 12(b)(6) because the
Estate did not allege any facts to show (1) Warden Davenport had subjective knowledge of a
substantial risk of serious harm to Cummings, (2) the warden directed correctional officers to act
unlawfully or knew they would act unlawfully, (3) a history of widespread abuse that put the
warden on notice of a need to correct a constitutional violation, or (4) the existence of a custom
or policy that caused the alleged Eighth Amendment violation. (Doc. 28 at 11-17). After the
court entered its order dismissing the claims, Plaintiffs filed their Amended Complaint, which
includes new allegations regarding ADOC policies and Warden Davenport’s knowledge of a
threat to Cummings’s safety. (See Doc. 29). As discussed below, the court finds that even when
the new allegations against Warden Davenport are considered, the Estate still has not stated
plausible § 1983 claims against the Warden based on the failure to protect Cummings from
Gayle.
As discussed in the court’s prior order, to state a § 1983 claim for deliberate indifference
based on a prison official’s failure to protect an inmate from harm, a plaintiff must allege facts
showing a prison official had actual knowledge of a substantial risk of serious harm to an inmate
and disregarded that risk. (Doc. 28 at 12-13). In the Amended Complaint, the Estate alleges the
following facts relating to Warden Davenport’s knowledge of a risk to Cummings’s safety:
(1) Cummings witnessed a physical altercation between Gayle, who was
convicted of murder, and another inmate. Then, Cummings was involved in
an “incident” or “altercation” with Gayle that required correctional officers to
separate the two inmates.

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(2) Pursuant to AR-302 and AR-300, correctional officers filled out a report about
the altercation or incident between Gayle and Cummings and a report about
the earlier altercation between Gayle and another inmate. “Immediately
following these incidents, those reports were produced to Warden Davenport
pursuant to AR-302 and subsequently to Investigation and Intelligence
Division pursuant to AR-300.” 6
(3) “After these incidents and following the administratively required reporting,
Gayle and Cummings were never put into protective custody, put in separate
dorms, nor was a plan implemented, or even formed, to physically separate
each inmate away from the other, as required when put on notice through the
reporting of violent incidents.”
(4) Warden Davenport “had both objective and subjective knowledge that [Gayle]
posed a significant risk of danger to Cummings due to the required reporting
that corrections officers must make pursuant to AR-302.”
(5) “Every violent incident triggers [AR-300] (Investigation and Intelligence
Division and [AR-302] (Incident Reporting). The policies were followed by
the officers, and the reports were made and disclosed to the Warden pursuant
to the policy.”
(Doc. 29 ¶¶ 4-6, 29-30). Even accepting those allegations as true and giving Plaintiffs the
benefit of all reasonable factual inferences, the court finds that the Estate has not alleged facts
sufficient to show that Warden Davenport had subjective knowledge of a substantial risk to
Cummings’s safety.
As an initial matter, the allegation that the warden had “objective and subjective
knowledge that [Gayle] posed a significant risk of danger to Cummings due to the required
reporting” is merely a conclusory statement of an element of the Estate’s § 1983 claim for
deliberate indifference. See Bowen v. Warden Baldwin State Prison, 826 F.3d 1312, 1320 (11th
Cir. 2016) (citations omitted); see also Am. Compl. ¶ 30. Therefore, the court does not have to
6

The court notes that the Index of Administrative Regulations available on the ADOC
website does not include AR-302, nor is AR-302 available from the ADOC website listing the
department’s administrative regulations. See ADOC Index of Administrative Regulations
(March 25, 2014), http://www.doc.state.al.us/docs/AdminRegs/AR01external.pdf; see also
Administrative Regulations, http://www.doc.state.al.us/Regulations.aspx (last visited June 14,
2017).
11

accept the allegation as true, and it does not help support the claims against Warden Davenport.
See Iqbal, 556 U.S. at 678.
Next, the Estate’s allegations regarding the weekend “incident” or “altercation” between
Gayle and Cummings are not sufficient to show that Gayle posed a substantial risk of serious
harm to Cummings. Although the Estate alleges that the incident required correctional officers
to separate Gayle and Cummings, that allegation does not show that Gayle posed a continuing
risk to Cummings once the inmates were separated. (See Am. Compl. ¶ 4). The Estate’s
allegations also do not indicate whether the weekend incident or altercation between Gayle and
Cummings was physical or verbal, if Gayle instigated the incident or altercation, or if Gayle
threatened Cummings with more harm. (See id.). As a result, the Estate’s allegations are not
sufficient to show that Warden Davenport has subjective knowledge of a substantial risk of
serious harm to Cummings even if the warden received and reviewed a report of the incident or
altercation between Cummings and Gayle. Therefore, the Estate fails to state plausible § 1983
claims for deliberate indifference based upon Warden Davenport’s alleged failure to protect
Cummings from Gayle in violation of the Eighth Amendment.
Likewise, the Estate fails to state a plausible § 1983 claim against Warden Davenport for
failure to train and negligent supervision even when the new allegations in the Amended
Complaint are considered. The Estate alleges that the ADOC has regulations “designed to
prevent violence and death for inmates like Cummings,” and it further alleges that “[e]ither those
policies were followed resulting in the Warden being put on notice [of the weekend incident
between Cummings and Gayle], or the policies were not followed resulting in the systemic
failure of oversight tantamount to the deliberate indifference to the rights of Mr. Cummings.”
(Doc. 29, ¶¶ 36). However, as discussed above, the Estate’s allegations regarding the incident

12

between Cummings and Gayle are not sufficient to show that Gayle posed a substantial risk of
serious harm to Cummings, and, therefore, the Estate’s new allegations are not sufficient to save
their § 1983 claim for failure to train and negligent supervision based on the failure to protect
Cummings from Gayle.
Moreover, just as in the original Complaint, in the Amended Complaint, the Estate does
not allege a history of widespread abuse, and the allegations regarding the handling of a single,
weekend incident or altercation between Cummings and Gayle is not sufficient to show a history
of widespread abuse or the existence of a custom or policy. 7 (See Am. Compl.); see also Doe v.
School Bd. of Broward County, Fla., 604 F.3d 1248, 1266 (11th Cir. 2010) (quotation omitted).
Additionally, the Estate did not allege any facts to suggest that Warden Davenport directed
correctional officers to act unlawfully or knew they would act unlawfully. Accordingly, the
Estate has not alleged facts sufficient to state a plausible § 1983 claim based upon supervisory
liability or for failure to train.
Based on the foregoing, and for the reasons stated in the court’s prior Memorandum
Opinion and Order, the Estate’s § 1983 claims against Warden Davenport in his individual
capacity based upon the failure to protect Cummings from Gayle are due to be dismissed
pursuant to Rule 12(b)(6).
D. Deliberate Indifference to Cummings’s Medical Needs
The Estate asserts a § 1983 claim against Warden Davenport based on the Warden’s
alleged deliberate indifference to Cummings’s medical needs in violation of the Eighth
Amendment. (Am. Compl. ¶ 33). The court previously found that the Estate’s allegations are
7

The Estate includes statements regarding previous incidents and a history of violence at
St. Clair in its brief in response to Warden Davenport’s motion to dismiss, but the Estate did not
include any allegations regarding those incidents in its Amended Complaint and did not ask for
leave to further amend its complaint. (See Doc. 34 at 3-4).
13

sufficient to state a plausible § 1983 claim on this basis and, therefore, denied Warden
Davenport’s prior motion to dismiss as to the § 1983 claim for deliberate indifference to
Cummings’s serious medical needs. (Doc. 28 at 18-20, 25).
Warden Davenport argues that qualified immunity bars the Estate’s Eighth Amendment
claim against him. (Doc. 32 at 8-12). Qualified immunity shields a government official from
“liability for civil damages if [his] actions did not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Hope v. Pelzer, 536
U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To receive
qualified immunity, [a] government official must first prove that he was acting within his
discretionary authority.” Caldwell v. Warden, FCI Talladega, 748 F.3d 1090 1098 (11th Cir.
2014). “Once it is established that the defendant was acting within [his] discretionary authority,
‘the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Durruthy
v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003). However, “if a government official is acting
wholly outside the scope of his discretionary authority, he is not entitled to qualified immunity
regardless of whether the law in a given area was clearly established.” Harbert Int’l, Inc. v.
James, 157 F.3d 1271, 1281 (11th Cir. 1998) (citations omitted).
“‘To establish that the challenged actions were within the scope of his discretionary
authority, [a government official] must show that those actions were (1) undertaken pursuant to
the performance of his duties, and (2) within the scope of his authority.’ [] To that end, ‘a court
must ask whether the act complained of, if done for a proper purpose, would be within, or
reasonably related to, the outer perimeter of an official’s discretionary duty.’” Gray v. Bostic,
458 F.3d 1295, 1303 (11th Cir. 2006) (quoting Harbert Int’l, Inc., 157 F.3d at 1282). Here,
Warden Davenport asserts that he was acting within his discretionary authority with regards to

14

all of his “dealings” with Cummings because “making decisions about the health care of an
inmate is a duty normally associated with what correctional officials do . . . .” (Doc. 32 at 10).
On the other hand, the Estate contends Warden Davenport acted outside of the scope of his
authority. 8 (See Doc. 34 at 8).
While decisions regarding the provision of medical care for inmates may fall under the
Warden’s scope of authority, see Edwards v. Alabama Dept. of Corrections, 81 F.Supp. 2d 1242,
1252 (M.D. Ala. 2000), Warden Davenport did not cite any authority suggesting that a warden’s
authority to make decisions regarding the provision of medical care for inmates extends to
making end-of-life decisions for inmates. (See Doc. 32 at 8-12). Moreover, the court has found
no such authority. Instead, Alabama statutes indicate that making end-of-life decisions for an
inmate is not within a warden’s scope of authority, unless an inmate has an advance directive
that designates the warden as a health care proxy with the power to make end-of-life decisions,
or if the warden is a judicially-appointed a guardian for the inmate and “the appointment
specifically authorizes [him] to make decisions regarding the withholding of life-sustaining
treatment . . . .” See Ala. Code §§ 22-8A-4, 6 & 11(d)(1). 9 There is nothing before the court to

8

Qualified immunity is an affirmative defense to the Estate’s § 1983 claim against
Warden Davenport, see, e.g., Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003); the Estate
is not required to negate the defense in its complaint. La Grasta v First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004) (quoting Tregenza v. Great Am. Comm. Co., 12 F.3d 717, 718
(7th Cir. 1993)).
9

Alabama Code § 22-8A-4 addresses living wills and advance directives for health care
and provides, among other things, that “[a] competent adult may execute [] a living will that
includes a written health care proxy designation appointing another competent adult to make
decisions regarding the providing, withholding, or withdrawal of life-sustaining treatment . . . .”
Id. at § 22-8A-4(b). Next, Alabama Code § 22-8A-6 provides that a designated health care
proxy shall make decisions regarding the withholding or withdrawing of life-sustaining treatment
“according to the specific instructions or directions given to him . . . by the individual making the
designation, [or] [i]n the absence of specific directions or guidance, the designated proxy shall
make those decisions that conform as closely as possible to what the patient would have done or
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indicate that Cummings had an advance directive designating Warden Davenport as his health
care proxy or that the warden was a judicially-appointed guardian for Cummings. As a result,
the court finds that Warden Davenport has not met his burden of showing that he was acting
within the scope of his authority when he allegedly authorized or directed UAB Hospital to
remove Cummings’s life support. Therefore, at this stage of the case, Warden Davenport has not
shown he is entitled to qualified immunity.
Based on the foregoing, and for the reasons stated in the court’s prior Memorandum
Opinion and Order, Warden Davenport’s motion to dismiss is denied as to the Estate’s § 1983
claim based on Warden Davenport’s alleged deliberate indifference to Cummings’s serious
medical need in violation of the Eighth Amendment.
E. Wrongful Death
The Estate asserts a state law wrongful death claim against Warden Davenport based on
based on allegations that (1) he failed to protect Cummings from Gayle despite having actual
knowledge from the incident report that Gayle posed a threat to Cummings’s safety and (2) he
adopted a policy of not adequately responding to incidents that occur over the weekend. (See
Am. Compl. ¶ 38). As discussed above, the allegations regarding the weekend incident or
altercation between Cummings and Gayle are not sufficient to demonstrate that Warden
Davenport knew Gayle posed a substantial risk to Cummings’s safety. (See pp. 13-16, supra).
Additionally, the allegations in the Amended Complaint are not sufficient to show a policy or
custom of not adequately responding to incidents that occur on weekends. (See Am. Compl.).
As a result, and for the reasons discussed in the court’s prior Memorandum Opinion and Order,
intended under the circumstances . . . .” Id. Finally, Alabama Code § 22-8A-11 provides that in
the absence of an advance directive or designated health care proxy, a surrogate may be
designated to make decisions regarding the withholding or withdrawing of life-sustaining
treatment if certain conditions are met. Id.
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the Estate has not stated a plausible wrongful death claim, and the claim is due to be dismissed
pursuant to Rule 12(b)(6).
V.

CONCLUSION
Based on the foregoing, and for the reasons stated in the court’s prior Memorandum

Opinion and Order (Doc. 28), Warden Davenport’s motion to dismiss, (Doc. 32), is due to be
DENIED IN PART and GRANTED IN PART. The warden’s motion is due to be denied as to
the Estate’s § 1983 claim based on deliberate indifference for interfering with Cummings’s
serious medical needs in violation of the Eighth Amendment, and this claim may proceed. The
balance of Warden Davenport’s motion to dismiss is due to be granted, and Plaintiffs’ remaining
claims against Warden Davenport are due to be dismissed. An order consistent with the court’s
findings will be entered.
DATED this 31st day of July, 2017.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

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