Bell v. Johnson et al
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 12/14/16. (MRR, )
2016 Dec-15 AM 08:06
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
HEALTHCARE, INC.; KEVIN
WILSON; JOSEPH WARDELL;
FRANK JONES; LATONYA
WILSON; SERGEANT REEVES;
and APRIL JOHNSON,
Case No. 2:16-CV-278-TMP
This cause is before the court on the motions to dismiss or, in the alternative,
for partial summary judgment, 1 filed by defendants April Johnson (doc. 14), Joseph
Wardell (doc. 29), Kevin Wilson (doc. 30), and Frank Jones (doc. 34), and the
The motions must be construed as motions for summary adjudication under Federal
Rule of Civil Procedure 56 only if the court considers the affidavits attached to the motions filed
by Johnson, Reeves, Wardell, Kevin Wilson, and Jones, in which each of the defendants assert that
any actions described in the complaint were performed in the line and scope of his or her
employment with the Jefferson County Sheriff=s Office. (See exhibits to docs. 14, 25, 29, 30, and
The affidavits provide nothing more than a defendant=s self-serving legal conclusion, and
will not be considered by the court. Accordingly, the motions are treated as motions to dismiss
filed pursuant to Federal Rule of Civil Procedure 12, and not as motions for summary judgment
filed pursuant to Rule 56. Plaintiff=s response (doc. 39) includes a motion to strike the affidavits,
which hereby is GRANTED.
motion to dismiss filed by Sergeant Reeves (doc. 25). Defendants seek dismissal of
some of plaintiff=s claims. This matter has been fully briefed. The court has
considered the pleadings and the arguments set forth by both parties. The parties
have consented to the exercise of jurisdiction by the undersigned pursuant to 28
U.S.C. ' 636(c).
STANDARD OF REVIEW
Before the Supreme Court decided Bell Atlantic v. Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), a court could dismiss a complaint only
where it was clear that no relief could be granted under any set of facts that could be
proved consistent with the allegations,@ as set forth in Conley v. Gibson, 355 U.S.
41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The well-established Rule 12(b)(6) standard
set forth in Conley was expressly rejected in Twombly when the Supreme Court
examined the sufficiency of a plaintiff=s complaint and determined:
Federal Rule of Civil Procedure 8(a)(2) requires only Aa short and plain
statement of the claim showing that the pleader is entitled to relief,@ in
order to Agive the defendant fair notice of what the ... claim is and the
grounds upon which it rests,@ Conley v. Gibson, 355 U.S. 41, 47, 78 S.
Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the Agrounds@ of his Aentitle[ment] to
relief@ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the
550 U.S. at 555 (citations omitted). The Court went on to criticize Conley, stating
that “[t]he ‘no set of facts’ language has been questioned, criticized, and explained
away long enough” by courts and commentators, and “is best forgotten as an
incomplete, negative gloss on an accepted pleading standard: once a claim has been
stated adequately, it may be supported by showing any set of facts consistent with
the allegations in the complaint.” Twombly, 550 U.S. at 562-63. The Supreme
Court emphasized, however, that “we do not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is plausible on its face.”
550 U.S. at 570. The Supreme Court expanded on the Twombly standard when it
decided Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949B50, 173 L. Ed. 2d
868 (2009), reiterating the Twombly determination that a claim is insufficiently
pleaded if it offers only “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action.” Iqbal, 129 S. Ct. at 1949. The Court further
Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.... Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior
era, but it does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not “show[n]”—“that the pleader is
entitled to relief.”
Iqbal, 129 S. Ct. at 1949B50 (citation omitted). See also Sinaltrainal v. CocaBCola
Co., 578 F.3d 1252 (11th Cir. 2009) (“The mere possibility the defendant acted
unlawfully is insufficient to survive a motion to dismiss” and “the well-pled
allegations must nudge the claim ‘across the line from conceivable to plausible””
(quoting Iqbal and Twombly)). Applying these standards, the court examines the
merits of the defendant=s motion to dismiss.
Plaintiff Robbie Bell brought this action pursuant to 42 U.S.C. ' 1983, through
counsel, asserting violations of the Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution, and also asserting violations of Alabama law. Her
claims arise from an incident that occurred when Bell was 56 years old. The facts,
as set forth in the amended complaint (doc. 8) describe her experience at the
Jefferson County Jail - Bessemer Annex (Athe Jail@). Bell was arrested on a
misdemeanor charge on March 11, 2015, and was taken to the Jail. 2
defendant who has moved for dismissal 3 was working at the Jail when Bell was
taken into custody as a pretrial detainee.4
It should be noted that, in her Second Amended Complaint (Doc. 8), the plaintiff
affirmatively alleges that each of the individual defendants was acting in the line and scope of his
or her respective duties as a deputy in the Jefferson County Sheriff’s Department. For example, at
paragraphs 7 through 12, plaintiff alleges that each respective individual defendant was “a
jailer/deputy on duty at the time of the incident making the basis of this claim….” In various
paragraphs in each count of the amended complaint, the plaintiff alleges that the individual
defendants were “exercising their positions of authority and acting under the color of State Law in
their capacity as public officials and representatives of the Jail and/or Jefferson County Sheriff’s
Office….” At Count VIII, she alleges that each individual defendant violated a duty to provide
medical case arising from an Alabama statute that imposes such a duty on sheriffs and counties,
which clearly implies their roles as sheriff’s deputies. More generally, the various constitutional
claims pleaded in the amended complaint arise only because each defendant was a sheriff’s
deputy. If they were not acting within their capacities as deputies/jailers, they would owe no such
constitutional duties to the plaintiff.
The plaintiff also has described other jail employees involved in the acts
complained of and has provided photographs taken from the jail surveillance equipment, but has
not provided a name for those defendants. The final defendant, Advanced Correctional
Healthcare, Inc., is the corporate entity alleged to have been under contract to provide medical
treatment to inmates. The corporate defendant has not sought dismissal of any claims, and the
status of any claims against those not-yet-named individuals or the corporate entity is not
considered in this opinion except where expressly noted.
The plaintiff describes each of these defendants as a Ajailer/deputy.@ As discussed
infra, the job title and duties of these defendants are integral facts to the assertions of absolute
immunity under the Alabama Constitution.
Bell contends that Johnson, for no reason, violently threw her to the floor of a
holding cell and that, as a result of Johnson’s actions, Bell suffered three fractures to
her pelvic bone and severe bruising, swelling, and intramuscular bleeding. She
further asserts that Kevin Wilson, Wardell, and Reeves were present during the
attack and did not attempt to stop the attack, assess Bell’s condition, alert medical
personnel, or request medical treatment. Bell further asserts that she was left on the
floor of the cell, lying in the fetal position and moaning, and was not checked on by
any jailors or given any medical attention. Bell contends that Johnson returned to
the cell and dressed Bell into a jail jumpsuit, that Kevin Wilson and Wardell lifted
Bell from the floor onto a bench in the cell, and that she constantly cried out in pain.
She was left on the bench for about 3 hours without any medical attention except that
a nurse, whose name is not known to the plaintiff, looked through the cell-door
window at Bell. Next, Wardell and Kevin Wilson carried plaintiff to the isolation
floor of the Jail and left her alone in a cell there. Latonya Wilson was on duty in the
isolation hall and saw Bell crying out in pain, but left her there alone for another 10
hours. After about 10 hours, Bell was forced to crawl down the hallway because
she was unable to walk. She was then placed in a wheelchair, was taken in the
wheelchair to a family member’s car, and was allowed to leave.
The amended complaint asserts the following claims against the moving
• Count I B Excessive Force, against Defendant Johnson;
• Count II B Assault and Battery, against Defendant Johnson;
• Count III B Failure to Intervene, against Johnson, Kevin Wilson, Wardell,
Jones, Latonya Wilson, and Reeves;
• Count IV B Denial of Due Process/Deliberate Indifference, against Johnson,
Kevin Wilson, Wardell, Jones, Latonya Wilson, and Reeves;
• Count V B Denial of Due Process/Illegal Punishment, against Johnson, Kevin
Wilson, Wardell, Jones, Latonya Wilson, and Reeves; 6
• Count VI B Tort of Outrage, against Johnson, Kevin Wilson, Wardell, Jones,
Latonya Wilson, and Reeves;
Claims asserted against the unnamed defendants or the corporate defendant are not
relevant to these motions and are not addressed herein. Defendant Advance Correctional
Healthcare, Inc., has filed an answer. Defendant Latonya Wilson has filed neither an answer nor a
motion to dismiss, but counsel has entered a notice of appearance on her behalf.
Because the plaintiff was a pretrial detainee at the time in question, her claims are
analyzed under the Fourteenth Amendment. See, e.g., Cottrell v. Caldwell, 85 F.3d 1480, 1490
(11th Cir. 1996) (AClaims involving the mistreatment of arrestees or pretrial detainees in custody
are governed by the Fourteenth Amendment's Due Process Clause@). Nevertheless, in regard to
providing pretrial detainees with such basic necessities as food, living space, and medical care, the
minimum standard allowed by the due process clause is the same as that allowed by the Eighth
Amendment for convicted persons, which is “deliberate indifference” to the need for medical care.
Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985), cert. denied, 475 U.S. 1096
(1986); Melton v. Abston, ___ F.3d ___, 2016 WL 6819670, at *6 (11th Cir. Nov. 18, 2016). Her
claims related to the use of excessive force, however, are analyzed under an “objective
reasonableness” standard. Kingsley v. Hendrickson, ___ U.S. ___, 135 S. Ct. 2466, 2473, 192
L. Ed. 2d 416 (2015).
• Count VII B Civil Conspiracy, against Johnson, Kevin Wilson, Wardell,
Jones, Latonya Wilson, and Reeves; and
• Count VIII B Failure to Provide Necessary Medicines and Medical Attention,
against Johnson, Kevin Wilson, Wardell, Jones, Latonya Wilson, and Reeves.
The defendants argue that the federal claims brought against them in their
official capacities7 are due to be dismissed based upon the sovereign immunity set
forth in the Eleventh Amendment. (Doc. 39, p. 2). Plaintiff has acknowledged
that the claims against these defendants in their official capacities were included in
error, and stipulates to the dismissal of the official-capacity claims. In addition, the
plaintiff stipulates to the dismissal of Count III B Failure to Intervene, against Jones
and Johnson, 8 and to any request for injunctive relief.
(Doc. 39, p. 2).
Accordingly, the motions to dismiss are due to be granted as to all claims against all
movants in their official capacities, and as to any claims for injunctive relief against
all movants. Also, the motions are granted and as to the Count III—Failure to
Defendant Johnson has not sought dismissal of the federal claims asserted against
her in her individual capacity, only in her official capacity. (Doc. 14, n. 1).
Plaintiff does not agree to dismiss the failure-to-intervene claims against any other
defendants in their individual capacities.
Intervene claims set forth against defendants Johnson and Jones are DISMISSED.9
Still in dispute are the defendants= claims that (1) they are immune from liability for
any of the state-law claims based on the absolute immunity afforded them under the
Alabama Constitution, and (2) that Claim VIII B Failure to Provide Medical Care is
not cognizable as a private cause of action under Alabama law.
A. Absolute Immunity under the Alabama Constitution
Bell has asserted state-law claims of outrage and failure to provide necessary
medical attention (Counts VI and VIII) against Kevin Wilson, Wardell, Latonya
Wilson, Reeves, and Johnson. Bell also has asserted a state-law assault and battery
claim against Johnson. (Count II).10 The moving defendants assert that they are
entitled to immunity from these claims in their individual capacities based upon
state-law absolute immunity.
Plaintiff asserts that the immunity is not available
where it may be demonstrated that the actions were taken outside of the line and
scope of the defendant’s employment.
The Count III—Failure to Intervene claims set forth against defendants Kevin Wilson,
Wardell, Latonya Wilson, and Sergeant Reeves, in their individual capacities are not challenged in
the motions to dismiss and remain pending.
Because the plaintiff has expressed consent to the dismissal of all official-capacity
claims (doc. 39, p. 2), these claims are asserted against these defendants as individual-capacity
Article I, Section 14 of the Alabama Constitution provides immunity from suit
against any state officer or employee when the action is, in reality, a lawsuit against
Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989). The extension of
state-law immunities is governed, of course, by state law. Carr v. City of Florence,
916 F.2d 1521, 1525 (11th Cir. 1990). Section 14 immunity has been extended to
both sheriffs within the state and to deputy sheriffs, when they are sued in their
individual capacities “for acts they perform in the line and scope of their
employment.” Ex parte Donaldson, 80 So. 3d 895, 897 (Ala. 2011). See also
Alexander v. Hatfield, 652 So. 2d 1142 (Ala. 1994). The extension of the immunity
to a deputy has been explained as appropriate because the Aacts of the deputy are the
acts of the sheriff.@ Donaldson, 80 So. 3d at 898.11
The Alabama Supreme court has affirmed the dismissal of claims against
deputy sheriffs even where the complaint alleged that the deputies acted
Anegligently, willfully, maliciously, fraudulently, in bad faith and beyond their
authority@ in failing to monitor a jail inmate who ultimately committed suicide. Ex
parte Sumter County, 953 So. 2d 1235, 1237 (Ala. 2006). See also Ex parte Davis,
In McMillian v. Johnson, the Eleventh Circuit Court of Appeals held that Alabama
law provides a bar to such suits against a sheriff in his individual capacity. McMillian v. Johnson,
101 F.3d 1363, 1365 (11th Cir. 1996) (admitting that the language used was Aconfusing@ in Tinney
v. Shores, 77 F.3d 378 (11th Cir. 1996), but that Tinney mandated that sovereign immunity apply
to shield sheriffs from suit when sued in their individual capacities).
9 So. 3d 480 (Ala. 2008) (finding deputies absolutely immune where negligence
prevented inmate from receiving medication, resulting in the inmate=s death). Even
though the immunity has been extended generally to deputy sheriffs, the courts have
recognized a limit to that extension.
The Alabama Supreme Court has held that Aa jailer employed by a sheriff@ is
not the same as a deputy sheriff and is not entitled to the same immunity. Ex parte
Shelley, 53 So. 3d 887 (2009). 12 In Shelley, a jailer was driving a van to transport
an inmate from a correctional facility to a county jail. The jailer apparently ran a
red light and collided with a vehicle. The inmate was killed in the accident. The
jailer sought absolute immunity under the state constitution, citing Alabama
Supreme Court holdings, including Ex parte Sumter, supra, which stated that jailers
and deputies are Aalter egos@ of the sheriff and are entitled to the same immunity.
53 So. 3d at 891-92. The court pointed out that not all jailers are deputy sheriffs,
and that the citations were dicta. 53 So. 3d at 892. Because the court found that
The Eleventh Circuit Court of Appeals determined in Lancaster v. Monroe County,
Ala., 116 F.3d 1419 at 1429-30 (11th 1997), that AAlabama jailers are state officials entitled to
Eleventh Amendment immunity when sued in their official capacities@ because jailers Aare
responsible to the sheriff for their performance of state-mandated duties.@ The Eleventh Circuit
Court of Appeals in LeFrere v. Quezada, 582 F.3d 1360 (2009), certified the question as to
whether a jailer is entitled to absolute immunity under Alabama law, but the Alabama Supreme
Court declined to answer the certified question. 588 F.3d 1317 (2009). Shortly thereafter,
however, the state court decided Shelley. Shelley then became the governing case. That
changed, however, when the Alabama Legislature extended the immunity by statute in 2011.
Ala. Code ' 14-6-1.
the jailer who drove the van in Shelley was not a deputy sheriff but was merely a jail
employee, the court declined to extend the immunity, noting that as a van driver for
the jail the defendant was not Aa constitutional officer@ and could be distinguished
from a deputy sheriff who has been given the powers of a sheriff, who Astand[s] in
the stead@ of the sheriff and who can Aundertake every act that the sheriff could
perform.@ Shelley, 53 So. 3d at 896, quoting Rogers v. Carroll, 20 So. 602 (1896).
While the courts recognized limits on absolute immunity to employees
working within the power of the sheriffs, the Alabama Legislature has determined
that the immunity provided to jailers should be more expansive. In the aftermath of
Shelley, the Alabama Legislature in 2011 enacted the Jailer Liability Protection
Act. 13 Alabama Code § 14-6-1 now provides that persons “employed by the sheriff
shall be acting for and under the direction and supervision of the sheriff and shall be
entitled to the same immunities and legal protections granted to the sheriff” under
the Constitution of Alabama when those employees are acting within the “line and
scope of their duties and are acting in compliance with the law.” Ala. Code ' 4-6-1.
The duties of a sheriff are further explained in Alabama Code § 36-22-3(b), which
provides that deputies or jailers working “under the direction and supervision of the
The defendants have not raised this statute in their motions to dismiss, except to
assert that the duties of working in the jail were part of their duties as deputy sheriffs.
sheriff [are] entitled to the same immunities and legal protections granted to the
sheriff under the Constitution of Alabama of 1901, as long as he or she is acting
within the line and scope of his or her duties and is acting in compliance with the
In this case, the plaintiff identifies each defendant as a Ajailer/deputy.@ 14 The
question of whether they are entitled to absolute immunity under Section 14 and
Alabama Code Sections 14-6-1 and 36-22-3(b) must be resolved by determining
whether the defendants were acting within the Aline and scope of their duties@ and Ain
compliance with the law@ as set forth in Section 14-6-1. What job title they held, or
what duties they performed, are no longer decisive factors in determining absolute
Because the plaintiff herself has alleged affirmatively that the
defendants were acting within the line and scope of their duties, the only remaining
question is whether, under the facts alleged by the plaintiff (which are taken as true
for purposes of the motions to dismiss), the individual defendants were “in
compliance with the law.” What the Alabama legislature intended this phrase to
mean is unclear and something of a riddle. While courts are required to construe
Because the motions at hand are motions to dismiss, and have not been converted to
motions for summary judgment, as discussed infra, the defendants= affidavits which state that they
are deputy sheriffs, is not considered because those affidavits are not part of the pleadings in this
case. Nonetheless, as pointed out in fn. 2, supra, the plaintiff has affirmatively alleged that the
individual defendants were jailer/deputies and acting within the line and scope of the authority.
statutes in a way that gives meaning to every part of the statute, it seems unnecessary
to extend immunity to jailers if it applies only in those instances when they are
acting “in compliance with the law.” If the jailer is acting “in compliance with
law,” it seems unlikely that he can be civilly liable for his acts, but if he does not act
“in compliance with the law,” (that is, when he has done something that may expose
him to civil liability), he loses the immunity.
The definition of acting "in compliance with the law," however, has not yet
been provided by the Alabama Supreme Court. The question has twice been
certified to the Alabama Supreme Court, but that court has declined to answer. See
Johnson v. Conner, 720 F.3d 1311 (11th Cir. 2013), 15 Sawyer v. Collins, No.
2:12-0020-KD-M, 2012 WL 6052000 (S.D. Ala. Dec. 5, 2012). In an unpublished
opinion, the Eleventh Circuit Court of Appeals remanded to the district court an
issue relating to the immunity afforded under Section 14-6-1, noting that the
Alabama Supreme Court has failed to address the meaning of the phrase Ain
compliance with the law.@ See Ronnie Guy Young v. Kimberly Myhrer, et al., Case
No. 2:14-cv-00407-VEH (11th Cir., June 2, 2016).
Johnson ultimately was decided on the basis of the non-retroactivity of the statute,
and not the meaning of "in compliance with the law." Johnson v. Conner, 754 F.3d 918 (11th Cir.
Another court within this district has examined the application of the
immunity supplied by Section 14-6-1 in the context of defendant jailers and liability
for a failure to provide medical care in Hobbs v. Powell, 138 F. Supp. 3d 1328 (N.D.
Ala. 2015). After first finding that the statute was not unconstitutional, the court
denied a Rule 12(b)(6) motion, finding that the grant of immunity to a jailer was not
available unless the jailer was both acting in the line and scope of his or her duties,
and Ain compliance with the law.@ 138 F. Supp. 3d at 1328, 1340. The court
further noted that the Alaw@ might encompass jail regulations and procedures as well
as constitutional or statutory requirements. 138 F. Supp. 3d at 1338-39.
Alabama case law persuades the court that resolution of the state-law
immunity defense requires that the factual basis of each defendant=s status and
conduct be examined. For that reason, it may be that the question of immunity for
jailers under § 14-6-1 was not intended to be answered on the basis of the pleadings
alone, but reserved for decision on a factual evidentiary basis. In response to the
pending motions to dismiss, the plaintiff has requested the opportunity to conduct
discovery on the issue of the defendants= employment status16 and conduct, and thus
The court does not retreat from its conclusion that the plaintiff has pleaded
affirmatively that the individual defendants were acting within the line and scope of their authority
as jailer. The only immunity question is whether, factually, their actual conduct was “in
compliance with the law.” That must await development through discovery.
the question of the application of Section 14 immunity to these defendants in their
individual capacities may be revisited at a later juncture.17 At this time, however,
the motions to dismiss Counts II, VI, and VII on that basis are due to be denied.
B. Failure to Provide Medical Attention
The plaintiff has asserted as Count VIII that the defendants are liable under
Alabama Code § 14-6-19 for “failure to provide necessary medicines and medical
attention.” The Alabama statute requires that “[n]ecessary clothing and bedding
must be furnished by the sheriff or jailer, at the expense of the county, to those
prisoners who are unable to provide them for themselves, and also necessary
medicines and medical attention to those who are sick and injured, when they are
unable to provide them for themselves.”
Alabama Code § 14-6-19.
defendants assert that the statute does not provide any private cause of action against
individuals, citing Johnson v. Conner, 2012 WL 3962012 (M.D. Ala. Sept. 10,
2012), aff’d on other grounds, 754 F.3d 918 (11th Cir. 2014). The plaintiff has not
responded to the contention that no private right of action exists against the
This conclusion is consistent with the general rule that courts should avoid issuing
advisory opinions. If the factual evidence developed through discovery establishes without
substantial dispute that one or more of the individual defendants did nothing supporting a cause of
action against him or her, it is unnecessary to reach the vexing question of immunity under Ala.
Code § 14-6-1. Doing so at this stage of the case would be an unnecessary advisory opinion.
In Johnson, the district court noted that claims against counties have been
found to be viable under Section 14-6-19, but that the plaintiff Acited no authority@ to
demonstrate that an individual deputy or jailer could be liable in his individual
capacity for a failure to provide the care set forth in the statute. But the court in
Johnson did not go so far as to limit liability under the statute to counties or to
The clear language of the statute places the responsibility for providing medical
attention on Athe sheriff or jailer.@ Moreover, some Alabama case law implies that
it is at least possible for a defendant jailer to be liable in his or her individual
capacity for the failure to provide Anecessary medicines and medical attention@ to an
injured inmate. For example, in the Alabama Supreme Court held that a genuine
issue of fact precluded summary judgment for a jail nurse sued under § 14-6-1. The
court wrote, “The facts of this case raise a genuine issue of material fact as to
whether [Nurse] Manning provided Wilson the ‘necessary medicines and medical
attention’ required by § 14–6–19.” Wilson v. Manning, 880 So. 2d 1101, 1109
(Ala. 2003). The court expressly noted that Nurse Manning had assumed to herself
the duty imposed by the statute on sheriffs and jailers; thus recognizing the existence
of a duty under the statute upon which suit could be brought. Other than Johnson,
which relies simply on the absence of definitive case authority, no court has stated
explicitly that the language of the statute does not imply that a private cause of
action may be sustained in such a case. Because Wilson v. Manning at least implies
that such a claim is recognized in Alabama law, the motion to dismiss Count VIII is
due to be denied.
Based upon the foregoing, it is ORDERED and ADJUDGED as follows:
1. April Johnson=s motion to dismiss (Doc. 14) is due to be GRANTED as to
all federal claims asserted against her in her official capacity, the Section 1983 claim
for failure to intervene in Count III, and all claims for injunctive relief. Her motion
to dismiss due to be DENIED as to all state-law claims;
2. Brian Reeves= motion to dismiss (Doc. 25) is due to be GRANTED as to
all federal claims asserted against him in his official capacity and all claims for
injunctive relief, but it due to be DENIED as to all state-law claims;
Josephs Wardell=s motion to dismiss (Doc. 29) is due to be GRANTED
as to all federal claims asserted against him in his official capacity and all claims for
injunctive relief, but it due to be DENIED as to all state-law claims;
4. Kevin Wilson=s motion to dismiss (Doc. 29) is due to be GRANTED as to
all federal claims asserted against him in his official capacity and all claims for
injunctive relief, but it due to be DENIED as to all state-law claims;
5. Frank Jones= motion to dismiss (Doc. 34), is due to be GRANTED as to
all federal claims asserted against him in his official capacity, the Section 1983
claim for failure to intervene in Count III, and all claims for injunctive relief, but it
due to be DENIED as to all state-law claims.
The federal claims against Johnson in her individual capacity asserted
pursuant to Sections 1983 and 1985 for excessive force, denial of due
process/deliberate indifference, denial of due process/illegal punishment, and civil
conspiracy (Counts I, IV, V, and VII) were not made the subject of the motion and
The federal claims against Jones in his individual capacity
asserted pursuant to Sections 1983 and 1985 for denial of due process/deliberate
indifference, denial of due process/illegal punishment, and civil conspiracy (Counts
IV, V, and VII) also were not addressed in his motion and remain pending.
The federal claims asserted pursuant to Section 1983 for failure to intervene
(Count III) remain pending against Kevin Wilson, Joseph Wardell, and Brian
Reeves in their individual capacities, as well as against Latonya Wilson (who has not
filed any motion to dismiss).
All state-law claims against all defendants remain pending.
A separate order will be entered.
DATED the 14th day of December, 2016.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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