Elliott v. Madison County Alabama et al

Filing 89

MEMORANDUM OPINION AND ORDER that all Motions to Dismiss are DENIED and it is ORDERED that the STAY on discovery is LIFTED and all parties are directed to proceed forthwith to conduct discovery in accordance with the Uniform Initial Order as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/9/2015. (AHI)

FILED
2015 Mar-09 AM 10:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ROBERT ELLIOTT, as
personal representative of the
Estate of Nikki Listau, deceased,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
MADISON COUNTY, ALABAMA,)
et al.,
)
)
Defendants.
)

Civil Action No. 5:14-cv-1309-CLS

MEMORANDUM OPINION AND ORDER
Plaintiff, Robert Elliott, commenced this action in his representative capacity
as personal representative of the Estate of Nikki Listau, deceased, who died while she
was incarcerated in the Madison County, Alabama, Jail. Plaintiff’s Second Amended
Complaint asserts claims against eighteen defendants: i.e., (1) Madison County,
Alabama; (2) Advanced Correctional Healthcare, Inc. (“ACH”), an entity that is
described as “a private for-profit corporation that is under a contractual obligation to
provide medical care for inmates in the Madison County Jail”;1 (3) Norman R.
Johnson, M.D., ACH’s Chief Executive Officer; (4) Arthur M. Williams, M.D., “a
physician who was employed by ACH to provide physician medical services and to

1

Doc. no. 53 (Second Amended Complaint) ¶ 6.

be the director of the medical program for inmates at the Madison County Jail”;2 (5)
Janice Robinson, “a Licensed Practical Nurse who was employed by ACH as the
health services administrator and oversaw medical care at the jail on a day-to-day
basis”;3 (6) Blake Dorning, the Sheriff of Madison County; (7) Steve Morrison, the
Administrator of the Madison County Jail; (8) Pamela Batie, a correctional officer at
the Madison County Jail; (9) Jessica Pothier, a correctional officer at the Madison
County Jail; (10) Christine Collier, a correctional officer at the Madison County Jail;
(11) Vanessa Fields, a correctional officer at the Madison County Jail; (12) Nick
Wallace, a correctional officer at the Madison County Jail; (13) Roslyn Guyton, a
correctional officer at the Madison County Jail; (14) Randy Hooper, a correctional
officer at the Madison County Jail; (15) Michele Kirk, a Licensed Practical Nurse
employed by ACH to provide nursing services to inmates at the Madison County Jail;
(16) Deondra Montgomery, a Registered Nurse employed by ACH to provide nursing
services to inmates at the Madison County Jail; (17) Tanya Jones, a Licensed
Practical Nurse employed by ACH to provide nursing services to inmates at the
Madison County Jail; and (18) Tina Adams, a Licensed Practical Nurse employed by
ACH to provide nursing medical services for inmates at the Madison County Jail.4
2

Id. ¶ 8.

3

Id. ¶ 9.

4

Id. ¶¶ 5-22.
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All of the individual defendants were sued in their individual capacities only.
The Second Amended Complaint asserts two claims. The first claim, for
deliberate indifference to serious medical needs in violation of the Fourteenth
Amendment to the United States Constitution, appears to be asserted against all
individual defendants,5 as well as against defendant Madison County.6 The second
claim, for negligence and/or wantonness under Alabama law, is asserted against
defendant ACH, as well as against all individual defendants who were employed by
ACH, including Johnson, Williams, Robinson, Kirk, Montgomery, Jones, and

5

Id. ¶ 163 (“The individual defendants except Dorning and Johnson, acting under color of
state law within the meaning prescribed by 42 U.S.C. § 1983, were deliberately indifferent to
Listau’s serious medical needs as described above.”), ¶ 164 (“Defendants Dorning, Morrison,
Johnson, Wiliams, and Robinson are supervisory officials for the jail and were responsible for
development and implementation of policies and procedures for medical care at the jail and by action
and inaction established the unconstitutional customs and policies described above.”).
6

Doc. no. 53 (Second Amended Complaint) ¶ 165 (“Defendant Madison County intentionally
refused to adequately fund medical care as described above with deliberate indifference to the serious
medical needs of inmates such as Listau . . . .”). The Eleventh Circuit has held that
[d]eliberate indifference to a prisoner’s serious medical needs is a violation of the
Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50
L. Ed. 2d 251 (1976). Correctional officers are, of course, bound by the Eighth
Amendment’s prohibition against cruel and unusual punishment. Id. Technically, the
Fourteenth Amendment Due Process Clause, not the Eighth Amendment prohibition
on cruel and unusual punishment, governs pretrial detainees like [Lisau]. Snow ex rel.
Snow v. City of Citronelle, Ala., 420 F.3d 1262, 1268 (11th Cir. 2005). However, the
standards under the Fourteenth Amendment are identical to those under the Eighth.
Cook ex rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115
(11th Cir. 2005).
Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir. 2007) (alterations supplied).
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Adams.7
The case currently is before the court on the following motions: (1) the motion
to dismiss plaintiff’s Second Amended Complaint filed by defendant Madison
County, Alabama;8 (2) the motion to dismiss plaintiff’s Second Amended Complaint
filed by defendant Sheriff Blake Dorning;9 (3) the motion to dismiss plaintiff’s
Second Amended Complaint filed by correctional officer defendants Steve Morrison,
Pamela Batie, Jessica Pothier, Vanessa Fields, Nick Wallace, Roslyn Guyton, and
Randy Hooper;10 and, (4) the motion to dismiss plaintiff’s Second Amended
Complaint filed by defendant Arthur M. Williams, M.D.11 Upon consideration of
those motions, the movants’ briefs, and plaintiff’s responses, the court concludes that
all motions are due to be denied.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
7

Doc. no. 53 (Second Amended Complaint) ¶¶ 168-69.

8

Doc. no. 60.

9

Doc. no. 62.

10

Doc. no. 64.

11

Doc. no. 67.
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showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 550 (2007), it does demand “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted). As the Supreme Court stated in Iqbal:
A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” [Twombly,
550 U.S., at 555]. Nor does a complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss founded upon Federal Rule of
Civil Procedure 12(b)(6), [for failure to state a claim upon which relief
can be granted], a complaint must contain sufficient factual matter,
accepted as true, to “state a claim for relief that is plausible on its face.”
Id., at 570. A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. Id., at 556. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Ibid. Where a complaint pleads facts that are “merely
consistent with” a defendant’s liability, it “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id., at
557 (brackets omitted).
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. Id., at 555 (Although for the purposes of a
motion to dismiss we must take all of the factual allegations in the
complaint as true, we “are not bound to accept as true a legal conclusion
couched as a factual allegation” (internal quotation marks omitted)).
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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. Id., at 556. 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. 490 F.3d, at 157-158. 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.” Fed. Rule
Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
Iqbal, 556 U.S. at 678-79 (emphasis supplied) (first alteration supplied, other
alteration in original).
II. FACTUAL ALLEGATIONS OF PLAINTIFF’S SECOND AMENDED
COMPLAINT
Plaintiff’s Second Amended Complaint contains 140 paragraphs of factual
allegations, spanning approximately 24 pages.12 There is no need to reiterate all of
those factual allegations here. Instead, this section will contain a summary of the
underlying facts that form the basis for plaintiff’s claims, and other facts will be
12

See doc. no. 53 (Second Amended Complaint) ¶¶ 23-162.
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addressed, as necessary, in the context of discussing the various defendants’ motions
to dismiss.
Plaintiff’s decedent, Nikki Listau, was arrested from her home on the morning
of March 10, 2013, and was booked into the Madison County Jail that same day.13
At the time of booking, she “was not ambulatory without assistance, required a
wheelchair to get to her cell, exhibited strange behavior, was not even able to dress
herself, had poor hygiene, was identified as suffering from advanced delirium tremens
(DT’s) due to alcohol withdrawal, and was placed in a medical watch cell.”14 From
past jail admissions, Listau was known to be an alcoholic with a history of DT’s and
seizures during alcohol withdrawal.15 At booking, Listau reported that she normally
consumed vodka daily, but her last use had been four days earlier, on March 6th.16
All of the individual defendants, other than Sheriff Dorning, eventually became
aware of Listau’s medical condition. They also were aware of the symptoms and
seriousness of DT’s due to their prior training and experience.17
At approximately 9:40 a.m. on March 10, defendant Kirk identified Listau as

13

Id. ¶ 23.

14

Id. ¶ 24.

15

Id. ¶ 28.

16

Id. ¶ 29.

17

Id. ¶¶ 34, 37.
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suffering from severe DT’s and placed her under medical watch.18 Correctional
officers checked Listau every fifteen minutes thereafter.19 Defendants Robinson,
Montgomery, Jones, Adams, and Williams also became aware of Listau’s condition
on March 10.20 There are no other allegations about anything that occurred or did not
occur on March 10: the date of her entry to the jail.
Listau was seen by ACH nurses “multiple times” between 8:00 and 9:00 a.m.
on March 11.21 At approximately 8:15 a.m., Listau also was seen by an unnamed
mental health clinician, who observed her on the floor of her cell, rambling
incoherently and unable to stand.22 Some unidentified nurses and correctional
officers picked up Listau and laid her on her bunk, but no one took her vital signs.23
At approximately 8:42 a.m., defendant Collier entered Listau’s cell and again
found Listau on the floor, rambling incoherently and unable to stand.24 Collier
informed defendants Fields, Wallace, Batie, Williams, Robinson, Montgomery,
Adams, and Jones of Listau’s condition.25 Batie, in turn, informed defendant

18

Doc. no. 53 (Second Amended Complaint) ¶ 38.

19

Id. ¶ 41.

20

Id. ¶ 42.

21

Id. ¶ 43.

22

Id. ¶¶ 44-45.

23

Id. ¶¶ 46, 48.

24

Doc. no. 53 (Second Amended Complaint) ¶ 49.

25

Id. ¶¶ 50-51.
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Morrison.26 Despite the obviousness of Listau’s medical condition, no correctional
officer or health professional took her vital signs, took her to the hospital, or did
anything else to treat her.27 Instead, Listau was written up as refusing to cooperate
with officers to prepare for a court appearance.28
At 9:00 a.m., defendants Montgomery and Guyton entered Listau’s cell to
verify her reported condition.29 Montgomery’s notes from that encounter falsely state
that Listau refused to allow the medical staff to check her vital signs.30 By that point,
Listau was physically unable to communicate her medical needs, and she obviously
needed to go to the hospital.31 All of the individual defendants, other than Sheriff
Dorning, were aware of Listau’s condition by this time.32
At 9:40 a.m., Wallace, Hooper, and Guyton again found Listau on the floor of
her cell. Listau was barely responsive, although she was still breathing. Wallace,
Hooper, and Guyton again picked up Listau, placed her on her bunk, and reported
Listau’s condition to Batie. Batie, in turn, reported it to Morrison and unidentified

26

Id. ¶ 52.

27

Id. ¶¶ 53-55.

28

Id. ¶¶ 55-56.

29

Id. ¶ 57.

30

Doc. no. 53 (Second Amended Complaint) ¶ 58.

31

Id. ¶¶ 59-60.

32

Id. ¶ 61.
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ACH personnel.33 Listau did not receive any further treatment, including having her
vital signs checked.34
At 11:19 a.m., Listau was found in her cell, completely unresponsive.
Emergency personnel were contacted, and Listau was transported to the hospital,
where she died the following day, March 12.35 An autopsy revealed that Listau died
from severe blunt force injuries, including a broken left femur and multiple rib
fractures.36 According to the Second Amended Complaint, “Listau most likely
suffered these injuries as a result of one or more falls, presumably from her bunk,
while in her medical watch cell at the jail.”37 Her falls were the result of seizures
related to DT’s.38
Plaintiff alleges that five other inmates have died in the Madison County Jail
since 2010. In August of 2010, Julie Jean died as a result of lithium toxicity.39 In
December of 2011, Emanuel Patterson also died of lithium toxicity.40 In May of
2012, Frederick Foster died of unspecified causes.41 In August of 2013, Deundrez
33

Id. ¶ 62.

34

Id. ¶¶ 63-64.

35

Id. ¶¶ 23, 32, 65.

36

Doc. no. 53 (Second Amended Complaint) ¶ 25.

37

Id. ¶ 26.

38

Id. ¶ 27.

39

Id. ¶ 101.

40

Id. ¶ 103.

41

Id. ¶ 105.
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Woods died from a blood clot that was a complication of untreated gangrene in his
foot.42 In October of 2013, Tanisha Jefferson died from a ruptured intestine.43
To support his Fourteenth Amendment claim, plaintiff asserts that the
individual defendants, other than Dorning and Johnson, were deliberately indifferent
to Listau’s serious medical needs because, despite being aware of those needs, they
took no action, or insufficient action, to secure her treatment.44 Plaintiff also asserts
that Dorning, Morrison, Johnson, Williams, and Robinson, as supervisory officials
at the Madison County Jail, “were responsible for development and implementation
of policies and procedures for medical care at the jail and by action and inaction
established the unconstitutional customs and policies” that resulted in Listau’s
death.45 Sheriff Dorning also is alleged to be liable for the acts of ACH and its
agents, because he delegated his final policymaking authority to those individuals.46
Finally, plaintiff alleges that defendant Madison County should be held liable for the
other defendants’ deliberate indifference to Listau’s serious medical needs because
it had a policy of inadequately funding inmate medical care.47

42

Doc. no. 53 (Second Amended Complaint) ¶¶ 80-81.

43

Id. ¶¶ 82-83.

44

Id. ¶ 163.

45

Id. ¶ 164.

46

Id. ¶ 166.

47

Id. ¶ 165.
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To support his claim for negligence and/or wantonness, plaintiff asserts that all
the ACH employees who were named as defendants failed to meet the standard of
care applicable to inmates, thereby resulting in Listau’s death.48 He also asserts that
ACH is liable for its employees’ failure to satisfy the applicable standard of care,
because those employees were acting within the scope of their employment at all
relevant times.49
III. DISCUSSION
A.

Motion to Dismiss of Defendant Arthur M. Williams, M.D.
Defendant Arthur M. Williams, M.D., asks this court to dismiss the claim for

negligence and/or wantonness asserted against him in Count Two of plaintiff’s
Second Amended Complaint. That claim essentially is one for medical malpractice.
Accordingly, it is governed by the Alabama Medical Liability Act. See Ala. Code §
6-5-551 (“In any action for injury, damages, or wrongful death, whether in contract
or in tort, against a health care provider for breach of the standard of care, whether
resulting from acts or omissions in providing health care, or the hiring, training,
supervision, retention, or termination of care givers, the Alabama Medical Liability
Act shall govern the parameters of discovery and all aspects of the action.”). The

48

Doc. no. 53 (Second Amended Complaint) ¶ 168.

49

Id. ¶ 169.
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Alabama Act requires a complaint to include “a detailed specification and factual
description of each act and omission alleged by plaintiff to render the health care
provider liable to plaintiff and shall include when feasible and ascertainable the date,
time, and place of the act or acts.” Id. Courts have interpreted that statutory
provision as requiring a plaintiff to give his defendant “‘fair notice of the allegedly
negligent act.’” Betts v. Eli Lilly and Co., 435 F. Supp. 2d 1180, 1188 (S.D. Ala.
2006) (quoting Mikkelsen v. Salama, 619 So. 2d 1382, 1384 (Ala. 1993)). “Any
complaint which fails to include such detailed specification and factual description
of each act and omission shall be subject to dismissal for failure to state a claim upon
which relief may be granted.” Id.
According to Dr. Williams, plaintiff’s Second Amended Complaint does not
contain a sufficiently detailed specification and factual description of his alleged acts
and/or omissions, including the relevant dates, times, and places. This court
disagrees. All of Dr. Wiliams’s alleged acts and/or omissions occurred at the
Madison County Jail between the morning of March 10, 2013, when Listau was
booked, and approximately 11:19 a.m. on March 11, 2013, when the decision was
made to transport her to the hospital. During that well-defined time period, plaintiff
alleges that Williams was aware of Listau’s obviously severe medical condition, but

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that he did not take any action to provide her with treatment.50 He also alleges that
Williams’ treatment of Listau (as well as that of all the other health care providers
who were named as defendants) fell below the applicable standard of correctional
health care.51 Finally, plaintiff alleges that Listau suffered and died as a result of
Williams’ failure to provide adequate care.52 These allegations are more than
sufficient to place Williams on fair notice of plaintiff’s claim against him.
Accordingly, Williams’ motion to dismiss is due to be denied.
B.

Motion to Dismiss of the Correctional Officer Defendants Steve Morrison,
Pamela Batie, Jessica Pothier, Vanessa Fields, Nick Wallace, Roslyn
Guyton, and Randy Hooper
The motion to dismiss addressed in this section was filed by the correctional

officers who were on duty during Listau’s incarceration (hereinafter collectively
referred to as the “correctional defendants”), as well as by Steve Morrison, the Jail
Administrator.53 All of these defendants assert that plaintiff’s claim against them for
their actual participation in deliberate indifference to serious medical needs should
be dismissed because they are entitled to qualified immunity. Morrison additionally
50

See id. ¶¶ 34-36, 42, 51, 53-55, 60-61, 63, 66.

51

Id. ¶ 70.

52

Id. ¶¶ 66-67, 71.

53

Defendant Christine Collier did not file a motion to dismiss or other responsive pleading,
despite apparently having been served with a copy of plaintiff’s original complaint. See doc. no. 5,
at 7. Defendant Steve Morrison filed a motion on February 27, 2015, to quash service on Christine
Collier. Doc. no. 85. That motion remains pending. See doc. no. 87 (text order requiring plaintiff’s
response to the motion to quash by March 13, 2015).
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asserts that he cannot be held liable as a policymaker or supervisor, and that plaintiff
has not asserted sufficient facts to satisfy the standard for pleading supervisory
liability.
1.

Personal participation claims – correctional defendants and
Morrison

The correctional defendants and Morrison assert that they are entitled to
qualified immunity. The doctrine of qualified immunity protects governmental
officials who are sued under 42 U.S.C. § 1983 for money damages in their personal,
or individual, capacities, but only so long as “their conduct violates no clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Courts generally apply a
two-part test for evaluating whether a defendant is entitled to qualified immunity.
The “threshold question” for a district court to ask is whether the facts, viewed “in the
light most favorable to the party asserting the injury,” show that “the officer’s
conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001).54
If the threshold question is answered affirmatively, the court will proceed to analyze

54

The defendant claiming immunity must also “prove that ‘he was acting within the scope
of his discretionary authority when the allegedly wrongful acts occurred.’” Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002) (quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)).
Here, it cannot reasonably be disputed that the correctional defendants and Morrison were acting
within the scope of their discretionary authority during all of the events that form the basis of
plaintiff’s claims.
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the second aspect of the two-part inquiry: i.e., “whether the right was clearly
established.” Id.55
In determining whether the unlawfulness of an official’s actions was clearly
established, “‘the salient question is whether the state of the law [at the time of the
unconstitutional act] gave respondents fair warning that their alleged treatment of [the
plaintiff] was unconstitutional.’” Williams v. Consolidated City of Jacksonville, 341
F.3d 1261, 1270 (11th Cir. 2003) (alterations in original) (quoting Hope v. Pelzer,
536 U.S. 730, 741 (2002)). The Supreme Court has rejected the requirement that the
facts of previous cases must always be “materially similar” to those facing the
plaintiff. Hope, 536 U.S. at 739. Instead,
[f]or a constitutional right to be clearly established, its contours “must
be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. This is not to say that an official
action is protected by qualified immunity unless the very action in
question has previously been held unlawful, see Mitchell [v. Forsyth,
472 U.S. 511,] 535, n. 12, 105 S. Ct. 2806, 86 L. Ed. 2d 411; but it is to
say that in the light of pre-existing law the unlawfulness must be
apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,
97 L. Ed. 2d 523 (1987).
55

The Supreme Court has relieved lower courts from mandatory adherence to the order of
the two-part analysis articulated in Saucier. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(“On reconsidering the procedure required in Saucier, we conclude that, while the sequence set forth
there is often appropriate, it should no longer be regarded as mandatory.”). It is now within this
court’s discretion to, in appropriate cases, assume that a constitutional violation occurred for the
purpose of addressing, in the first instance, whether such a violation would be “clearly established.”
Id. That said, and under the circumstances of the present case, the tested sequence of analysis of
Saucier will be followed.
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Hope, 536 U.S. at 741 (alterations in original).
An officer can receive “fair notice” of his or her unlawful conduct in various
ways.
First, the words of the pertinent federal statute or federal
constitutional provision in some cases will be specific enough to
establish clearly the law applicable to particular conduct and
circumstances and to overcome qualified immunity, even in the total
absence of case law. This kind of case is one kind of “obvious clarity”
case. For example, the words of a federal statute or federal
constitutional provision may be so clear and the conduct so bad that case
law is not needed to establish that the conduct cannot be lawful.
Second, if the conduct is not so egregious as to violate, for
example, the Fourth Amendment on its face, we then turn to case law.
When looking at case law, some broad statements of principle in case
law are not tied to particularized facts and can clearly establish law
applicable in the future to different sets of detailed facts. See Marsh [v.
Butler County, Ala.], 268 F.3d [1014,] 1031-32 n.9 [11th Cir. 2001].
For example, if some authoritative judicial decision decides a case by
determining that “X Conduct” is unconstitutional without tying that
determination to a particularized set of facts, the decision on “X
Conduct” can be read as having clearly established a constitutional
principle: put differently, the precise facts surrounding “X Conduct” are
immaterial to the violation. These judicial decisions can control “with
obvious clarity” a wide variety of later factual circumstances. These
precedents are hard to distinguish from later cases because so few facts
are material to the broad legal principle established in these precedents;
thus, this is why factual differences are often immaterial to the later
decisions. But for judge-made law, there is a presumption against wide
principles of law. And if a broad principle in case law is to establish
clearly the law applicable to a specific set of facts facing a governmental
official, it must do so “with obvious clarity” to the point that every
objectively reasonable government official facing the circumstances
would know that the official’s conduct did violate federal law when the
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official acted.
Third, if we have no case law with a broad holding of “X” that is
not tied to particularized facts, we then look at precedent that is tied to
the facts. That is, we look for cases in which the Supreme Court or we,
or the pertinent state supreme court has said that “Y Conduct” is
unconstitutional in “Z Circumstances.” We believe that most judicial
precedents are tied to particularized facts and fall into this category. .
. . When fact-specific precedents are said to have established the law, a
case that is fairly distinguishable from the circumstances facing a
government official cannot clearly establish the law for the
circumstances facing that government official; so, qualified immunity
applies. On the other hand, if the circumstances facing a government
official are not fairly distinguishable, that is, are materially similar, the
precedent can clearly establish the applicable law.
Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (emphasis in original,
alterations supplied).
Pursuant to this framework, the court must first determine whether the
allegations of plaintiff’s Second Amended Complaint demonstrate that the
correctional defendants and Morrison violated Listau’s right to be free from
deliberate indifference to her medical needs. Such a claim requires allegations of:
(1) a serious medical need; (2) defendants’ deliberate indifference to that need; and
(3) a causal link between the defendants’ indifference and the plaintiff’s resulting
injury. Mann v. Taser International, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009).
In order to establish the deliberate indifference element, a plaintiff must show: “(1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
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conduct that is more than gross negligence.” Townsend v. Jefferson County, 601 F.3d
1152, 1158 (11th Cir. 2010) (internal quotation marks and alteration omitted).
With respect to the “subjective knowledge” component, the Eleventh Circuit
has held that a defendant “must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and must also draw the
inference.” Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (emphasis in
original) (citation, internal quotation marks, and alteration omitted). “No liability
arises for ‘an official’s failure to alleviate a significant risk that he should have
perceived but did not . . . .’” Burnette v. Taylor, 533 F.3d 1325, 1331 (11th Cir.
2008) (omission in original) (quoting Farmer v. Brennan, 511 U.S. 825, 825 (1994)).
In determining whether a delay in treatment rises to the level of deliberate
indifference, in the sense that the defendant had a “sufficiently culpable state of
mind,” Farmer, 511 U.S. at 834 (citation and internal quotation marks omitted) — in
other words, the question of whether the defendant’s actions or omissions constituted
“more than gross negligence” — relevant factors include: “(1) the seriousness of the
medical need; (2) whether the delay worsened the medical condition; and (3) the
reason for the delay.” Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007).
The defendants’ response to indications that a prisoner may need medical attention
must have been “poor enough to constitute ‘an unnecessary and wanton infliction of
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pain,’ and not merely accidental inadequacy, ‘negligen[ce] in diagnosi[s] or
treat[ment],’ or even ‘[m]edical malpractice’ actionable under state law.” Taylor v.
Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (alterations in original) (quoting Estelle
v. Gamble, 429 U.S. 97, 105-06 (1976)).
Here, plaintiff alleges that Listau’s serious medical condition was obvious to
everyone at the jail, including Morrison and the correctional defendants.56 Listau
suffered such apparent symptoms as inability to ambulate without assistance, strange
behavior, inability to dress herself, and poor hygiene, and she became increasingly
incoherent and unresponsive as the hours passed.57 Listau was placed in a medical
watch cell, and she was monitored by correctional officers every fifteen minutes.58
Thus, Morrison and the correctional defendants “had numerous opportunities to save
Listau’s life by sending her to the hospital.”59 They did not do so, however. Instead,
they took no action, or grossly inadequate action, to address Listau’s obviously
serious needs.60 Instead of acknowledging and addressing Listau’s condition, the
correctional officers falsely documented in jail records that she refused to cooperate

56

Doc. no. 53 (Second Amended Complaint) ¶¶ 34-37, 40, 49-53, 60, 61.

57

Id. ¶¶ 24, 45, 49, 62, 65.

58

Id. ¶¶ 24, 41.

59

Id. ¶ 33.

60

Id. ¶¶ 34, 54, 63.
-20-

with their efforts to take her vital signs and dress her for a court appearance.61
These allegations are sufficient to state a claim that Morrison and the
correctional defendants were subjectively aware of Listau’s serious medical needs,
but deliberately disregarded those needs, thereby resulting in Listau’s pain, suffering,
and eventual death. Moreover, plaintiff’s allegations, if proven to be true, will
demonstrate violations of Listau’s clearly established Fourteenth Amendment right
to be free from deliberate indifference to serious medical needs. Accordingly,
plaintiff has stated a viable Fourteenth Amendment claim for deliberate indifference
to a pretrial detainee’s serious medical needs, and Morrison and the correctional
defendants are not entitled to qualified immunity from that claim at this stage.
The court is not persuaded by defendants’ arguments to the contrary.
Defendants assert that plaintiff’s claim against them is not viable because they
reported Listau’s medical condition to ACH personnel, who were contractually
responsible for the health care of all inmates at the jail. It is true, as a general rule,
that “‘supervisory [correctional] officials are entitled to rely on medical judgments
made by medical professionals responsible for prisoner care.’” Cameron v. Allen,
525 F. Supp. 2d 1302, 1307 (M.D. Ala. 2007) (quoting Durmer v. O’Carroll, 991
F.2d 64, 69 (3d Cir. 1993); White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988);
61

Id. ¶¶ 55-58.
-21-

Williams v. Limestone County, Ala., 198 F. App’x 893, 897 (11th Cir. 2006))
(alteration in original). Even so, correctional officers cannot ignore an inmate’s
obviously dire medical situation, regardless of whether medical personnel also are
aware of the condition. See, e.g., Townsend v. Jefferson County, 601 F.3d 1152, 1159
(11th Cir. 2010) (correctional officers were entitled to qualified immunity where the
inmate had not “presented evidence that her situation was so obviously dire that two
lay deputies must have known that a medical professional had grossly misjudged [her]
condition”) (alteration supplied, citations omitted). As United States District Judge
Myron Thompson stated in an unpublished, but nevertheless well-reasoned and
highly persuasive opinion, “reporting medical concerns may or may not be enough
to avoid deliberate-indifference liability, depending on the circumstances.” McCall
v. Houston County, No. 1:11cv559-MHT, 2014 WL 3045552, *7 (M.D. Ala. July 3,
2014) (slip copy). In the McCall case, Judge Thompson found that a correctional
officer named West was not deliberately indifferent to an inmate’s serious medical
needs.
Rather, [West’s] failure to do more appears to be a combination of a
misappraisal of the situation, in that he believed there was a medical
problem but no emergency, along with dedication to following protocol
and being satisfied with notifying other authorities. That West was
wrong, and was perhaps negligent, is insufficient to show deliberate
indifference. Goebert, 510 F.3d at 1327 (conduct must constitute more
than gross negligence). West and Dye [another correctional officer] did
-22-

something to try to aid McCall: they alerted the medical unit and their
supervisor. While that might be insufficient under other circumstances,
for example if McCall was visibly bleeding to death on the ground, in
this case his symptoms were more ambiguous as to the urgency of the
situation; it was somewhat difficult to tell where mental illness ended
and physical illness began.
McCall, 2014 WL 3045552, at *8 (alterations and emphasis supplied).
Here, in contrast, plaintiff has alleged that the seriousness of Listau’s medical
problems was obvious to everyone who saw her, including Morrison and all of the
correctional defendants. There was no ambiguity as to the urgency of her medical
situation, which, construed in the light most favorable to plaintiff, was akin to
“visibly bleeding to death on the ground.” Assuming those allegations are true, as
the court must at the motion to dismiss stage, the failure of Morrison and the
correctional defendants to personally take any action, other than informing medical
personnel, to treat Listau constituted deliberate indifference to Listau’s serious
medical needs.
2.

Morrison’s liability as a policymaker/supervisor

Plaintiff’s Second Amended Complaint seeks to hold Morrison liable for
Listau’s death not only due to his personal participation in the alleged failure to
provide Listau with adequate medical care, but also due to his supervisory and
policymaking role as Administrator of the Madison County Jail.62 Morrison correctly
62

Doc. no. 53 (Second Amended Complaint) ¶ 11 (“Dorning has delegated his statutory
-23-

points out that he cannot be held liable under § 1983 on the basis of respondeat
superior, or vicarious liability. See, e.g., Belcher v. City of Foley, 30 F.3d 1390, 1396
(11th Cir. 1994). Even so, supervisor liability under § 1983 can rest
when the supervisor personally participates in the alleged constitutional
violation or when there is a causal connection between actions of the
supervising official and the alleged constitutional deprivation. The
causal connection can be established when a history of widespread
abuse puts the responsible supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so. The deprivations that
constitute widespread abuse sufficient to notify the supervising official
must be obvious, flagrant, rampant, and of continuing duration, rather
than isolated occurrences.
Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). The causal connection may
also be established “when the supervisor’s improper ‘custom or policy . . . resulted
in deliberate indifference to constitutional rights.’” Dalrymple v. Reno, 334 F.3d 991,
996 (11th Cir. 2003) (quoting Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir.
1991)).
Here, plaintiff’s Second Amended Complaint alleges that Morrison is the
individual to whom Sheriff Blake Dorning “has delegated his statutory duties
regarding medical care.”63 He also alleges that “Listau’s serious medical needs were

duties regarding medical care to Morrison.”), ¶ 73 (“Listau’s serious medical needs were ignored
because of the customs or policies of . . . Morrison . . . .”), ¶ 131 (reiterating that Morrison is the
person “to whom Dorning has delegated responsibility for managing the jail”).
63

Id. ¶ 11. See also id. ¶ 131 (reiterating that Morrison is the person “to whom Dorning has
delegated responsibility for managing the jail”).
-24-

ignored because of the customs or policies of defendants Dorning, Morrison,
Johnson, Williams, Robinson, and ACH . . . .”64 More specifically, Morrison,
Dorning, Johnson, Williams, Robinson, and ACH allegedly “failed to develop and
implement adequate policies and procedures for the handling of inmates with serious
health conditions and failed to adequately train correctional officers and medical staff,
with the foreseeable result that inmates such as Listau would not receive appropriate
treatment.”65

Those defendants also “have established deliberately-indifferent

customs or policies concerning inmate medical care, including but not limited to a
custom or policy of delaying or denying necessary medical treatment to avoid liability
for inmate medical bills.”66 Those defendants also were
part of an explicit or implicit agreement or plan to delay or deny
necessary medical care to avoid having to pay for medical care for the
inmate. This plan included a custom or policy of delaying or denying
necessary medical treatment by outside providers. Defendants were
aware this policy created a substantial risk of serious harm and inflicted
unnecessary pain and suffering on inmates.67
Finally, those defendants
were on notice that the above-described customs or policies regarding
medical care for inmates were harmful to the health of inmates and
caused them to experience unnecessary pain and suffering due to delay
64

Id. ¶ 73.

65

Id. ¶ 74.

66

Id. ¶ 75.

67

Doc. no. 53 (Second Amended Complaint) ¶ 76.
-25-

and denial of necessary medical care. Defendants had such knowledge
from prisoner complaints, communications from correctional officers,
from their own observations, from common sense, from other deaths,
from other lawsuits, and in other ways.68
Additionally, Morrison “was hired to cut costs at the jail.”69 As such, he and
Dorning “made it clear to correctional officers that inmate healthcare costs were a
problem at the jail, that one trip to the hospital could potentially blow the county’s
healthcare budget, and that they needed to cooperate with ACH to control costs.”70
Morrison even discussed the need to control costs, and the potential “crippling” effect
of inmate medical costs, in an April 2014 newspaper article.71 Morrison and Dorning
also have established a longstanding practice of failing to investigate inmate
grievances related to medical care and, instead, turning the grievances over to ACH,
which is known to also not investigate.72 In fact, all aspects of jail healthcare are
treated as being “solely within the discretion of ACH personnel.”73 Morrison and
Dorning have never requested ACH to make changes or improve the care of inmates,
and they have never even requested that ACH report to them regarding the quality of

68

Id. ¶ 77.

69

Id. ¶ 97.

70

Id. ¶ 93.

71

Id. ¶¶ 94, 121, and Exhibit 2.

72

Id. ¶¶ 110-12.

73

Doc. no. 53 (Second Amended Complaint) ¶ 113.
-26-

care being provided to inmates.74 Morrison and Dorning have “failed and refused to
evaluate the quality of inmate medical care and address the obvious systemic
problems that led to at least 6 deaths over the course of just over three years.”75 They
also have a longstanding practice of failing to investigate health-care-related incidents
at the jail, including even those that have resulted in the death of inmates.76
Importantly, plaintiff also asserts that “[t]he deferral of correctional officers to
ACH decisions to delay and deny necessary medical care in the name of cost control
is not only a matter of longstanding practice, it is also a matter of contract.”77
Plaintiff’s allegations in this regard are essential to his theory of supervisory liability,
and so they will be set out here in full:
123. Deferral by correctional officers to ACH deliberate
indifference is caused by both the letter of the contract and the structure
of the contractual relationship.
124. ACH has had the Madison County contract since before
2010.
125. ACH underbid other competitors to get the contract.
126. ACH got the contract by touting its ability to control the
expenses Madison County would incur for outside medical care like that
needed by Listau, Woods, and Jefferson.
74

Id. ¶¶ 118-19.

75

Id. ¶ 114.

76

Id. ¶¶ 95-96.

77

Id. ¶ 122.
-27-

127. ACH, Madison County, and Dorning negotiated a $200,000
per quarter cap on outside medical care.
128. If outside medical care costs exceeded $200,000 in a
quarter, Madison County would be responsible.
129. Based on historical healthcare expenditure numbers for the
Madison County Jail and reasonable predictions based on data for the
inmate population at the jail, the $200,000 per quarter number was
designed to give ACH a financial incentive to control outside medical
costs, which in turn has led ACH to delay and deny referrals to outside
providers.
130. Under the contract, if ACH beats the cap, ACH gets to keep
the difference between actual outside costs and the cap as profit.
131. As Morrison, to whom Dorning has delegated responsibility
for managing the jail, has stated publically, hospitalizations can quickly
deplete the quarterly budget . . . .
132. Pursuant to this agreement, correctional officers are trained
to defer to ACH regarding medical matters regardless of the severity of
the inmate’s condition.78
Correctional officers also are trained to defer to ACH on all medical matters,
and not to contact outside emergency personnel.79 Officers can be disciplined if they
contact outside emergency personnel, and they are indemnified by ACH’s insurance
company only if they defer to ACH.80 Because of the ACH agreement and its
indemnity provisions, “Dorning and Morrison have failed and refused to address
78

Id. ¶¶ 123-32.

79

Doc. no. 53 (Second Amended Complaint) ¶¶ 132-33.

80

Id. ¶¶ 134-38.
-28-

known systemic deficiencies regarding medical care at the Madison County Jail.”81
Instead, Dorning and Morrison cooperated with ACH in controlling costs, even
though they knew that doing so resulted in the denial of medical care to inmates.82
The cost control measures implemented by ACH, and approved by Dorning and
Morrison, included “staff[ing] the Madison County Jail inadequately, hir[ing] substandard medical personnel willing to put costs over inmate health and safety,
den[ying] inmates medications, and delay[ing] or den[ying] medically-necessary
referrals to outside providers, including necessary medical treatment like that denied
Listau, Woods, and Jefferson.”83 Additionally, Morrison, along with Dorning,
Williams, and Robinson,
developed a policy and practice regarding treatment of inmates
withdrawing from alcohol and drugs. While defendants were aware that
severe withdrawal symptoms, including DT’s, could only be safely
treated in a hospital, these defendants established a custom or policy that
withdrawal would always be managed inside the jail or by getting the
person released from jail, regardless of the severity of the symptoms.84
Morrison argues that, in spite of these detailed allegations, no claim against
him as a supervisor or policymaker can stand, because he “is not authorized or

81

Id. ¶ 143.

82

Id. ¶¶ 144-45.

83

Id. ¶ 151 (alterations supplied).

84

Id. ¶ 155 (emphasis in original).
-29-

charged with creating or implementing jail policy.”85 Morrison relies upon Section
14-6-1 of the Alabama Code, which states:
The sheriff has the legal custody and charge of the jail in his or
her county and all prisoners committed thereto, except in cases
otherwise provided by law. The sheriff may employ persons to carry out
his or her duty to operate the jail and supervise the inmates housed
therein for whose acts he or she is civilly responsible. Persons so
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 general laws and
the Constitution of Alabama of 1901, as long as such persons are acting
within the line and scope of their duties and are acting in compliance
with the law.
Ala. Code § 14-6-1 (emphasis supplied). According to Morrison, if the Sheriff had
sole authority over the jail, then he (Morrison) could have had no authority. See Doe
v. School Bd. of Broward County, Fla., 604 F.3d 1248, 1264 (11th Cir. 2010)
(“[F]inal policymaking authority over a particular subject matter does not vest in an
official whose decisions are ‘subject to meaningful administrative review.’”) (quoting
Scala v. City of Winter Park, 116 F.3d 1396, 1399, 1401 (11th Cir.1997)) (alteration
supplied).
Morrison relies upon the decision of the Middle District of Alabama in McCall
v. Houston County, supra. There, the plaintiff sought to hold Reed, the Houston

85

Doc. no. 65 (Brief in Support of Motion to Dismiss Second Amended Complaint of
Defendants Steve Morrison, Pamela Batie, Jessica Pothier, Vanessa Fields, Nick Wallace, Roslyn
Guyton, and Randy Hooper), at 20 (emphasis in original).
-30-

County Jail Administrator, liable for deliberate indifference under a policymaker
theory. Reed advanced the same argument Morrison has advanced here: i.e., “that
he had the authority only to implement policy, not the authority to create it. The latter
power, he argues, is vested in the sheriff alone.” McCall, 2014 WL 3045552, at *12.
Reed’s deposition testimony revealed that, while he did sometimes make changes to
jail policies, he always had to obtain the Sheriff’s approval first. Id. Because there
was no evidence that any policies were attributable to Reed, instead of the Sheriff,
Reed could not be held liable in his supervisory capacity for any constitutional
violations caused by those policies. Id.
The Reed decision suggests that there are certain circumstances under which
a Jail Administrator may be absolved from policymaking liability because the Sheriff
retains the final policymaking authority. It cannot, however, stand for the broad
proposition that a Jail Administrator in Alabama can never be held liable, as a
policymaker, for constitutional violations. Indeed, the Eleventh Circuit has allowed
such claims against Jail Administrators in the past. See, e.g., Harper v. Lawrence
County, Ala., 592 F.3d 1227, 1236-37 (11th Cir. 2010); Danley v. Allen, 540 F.3d
1298, 1313-16 (11th Cir. 2008). Thus, plaintiff’s supervisory/policymaking liability
claim against Morrison will not be dismissed under Alabama Code § 14-6-1. Plaintiff
is at least entitled to conduct discovery on that claim to determine the extent of
-31-

Morrison’s supervisory and policymaking authority.
Morrison also argues that plaintiff has not pled sufficient facts to state a claim
against him for supervisory or policymaking liability. That argument is without
merit. To the contrary, as set forth above, plaintiff has alleged plentiful facts
demonstrating that Morrison’s customs and/or policies caused the alleged violations
of Listau’s constitutional rights. Morrison cites to the County’s health care services
agreement with ACH in an attempt to demonstrate that, because the contract calls for
adequate health care to be provided to inmates, Morrison cannot be held responsible
for any constitutionally inadequate care. Stated slightly differently, Morrison asserts
that the ACH contract is a facially constitutional policy, and as long as Morrison
followed it, he cannot be held liable. Plaintiff’s complaint alleges more than that,
however. He asserts that the contract has been manipulated and evaded in attempts
to reduce costs, thereby resulting in constitutionally inadequate medical care for
inmates.
Plaintiff also alleged that Morrison was on notice that the County’s policies
and customs regarding inmate medical care caused the denial and/or delay of care.
Contrary to Morrison’s suggestion, plaintiff did not make that allegation based on
Morrison’s knowledge of past inmate deaths alone. Instead, Morrison’s knowledge
also came from prisoner complaints, communications from other correctional officers,
-32-

his own observations, common sense, other lawsuits, and in other ways. If discovery
reveals that Morrison did not, in fact, have any such knowledge, he will not be held
liable on that basis. For the time being, however, plaintiff has pled sufficient facts
to state a claim for violation of Listau’s clearly established rights and to consequently
move plaintiff’s supervisory/policymaker liability claim against Morrison past the
motion to dismiss stage.
C.

Motion to Dismiss of Defendant Blake Dorning
Plaintiff’s claim against defendant Blake Dorning for the most part mirrors the

supervisory/policymaker liability claim asserted against Morrison, except that
plaintiff has included a few additional factual allegations with regard to Dorning. He
alleges that Dorning has a “general practice” of failing and refusing to investigate all
serious incidents — not just health-care-related ones — involving his deputies.86
Dorning has also commented to the media that he believes ACH will make changes
in the jail healthcare system as a result of other inmate deaths, but in truth, he knows
that ACH has a history of failing to respond to inmate deaths and other health-carerelated incidents.87 Dorning was aware that ACH’s business model elevated cost
control over inmate safety, but he, nonetheless, retained ACH as the jail health care

86

Doc. no. 53 (Second Amended Complaint) ¶¶ 98-99.

87

Id. ¶¶ 115-17.
-33-

contractor, and rejected other, competing contractors because of the cost savings
ACH provided.88
Plaintiff also alleges that, while “Alabama law vests final policymaking
authority for inmate medical care in Dorning,” Dorning delegated that authority to
ACH via the County’s agreement with ACH and “longstanding practice.”89
According to plaintiff, this renders Dorning liable for ACH’s decisions.90
Additionally:
While the agreement [between the County and ACH] gives
Dorning and Madison County the authority to hold ACH accountable
regarding the costs of inmate healthcare, it provides no mechanism for
reporting and accountability regarding the quality of inmate healthcare,
and neither Dorning nor Madison County have made any effort to hold
ACH accountable for how it handles inmate healthcare.91
Dorning argues that plaintiff’s allegations are too conclusory, and lacking in
sufficient factual detail, to satisfy the pleading standard for supervisory/policymaker
liability claims. He also asserts that he cannot be held liable for constitutional
violations resulting from Madison County’s facially constitutional contract with
ACH. These are the same arguments advanced by Morrison. As with Morrison, the
court is not persuaded by those arguments, and finds that plaintiff has stated sufficient
88

Id. ¶¶ 147-48.

89

Id. ¶¶ 152-53.

90

Id. ¶ 153.

91

Id. ¶ 154 (alteration supplied).
-34-

facts which, if proven to be true, would demonstrate Dorning’s violations of Listau’s
clearly established rights.
Dorning also asserts that he cannot be held liable for his delegation of
policymaking authority to ACH. Plaintiff has effectively alleged that, because
Dorning delegated final policymaking authority to ACH, he has become the final
decisionmaker or policymaker for all of ACH’s actions and policies and is liable for
any constitutional violations resulting therefrom. The Eleventh Circuit has
strictly interpreted “Monell’s policy or custom requirement to preclude
§ 1983 liability for a subordinate official’s decisions when the final
policymaker delegates decisionmaking discretion to the subordinate, but
retains the power to review the exercise of that discretion.” Scala v. City
of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997). In other words,
final policymaking authority over a particular subject matter does not
vest in an official whose decisions are “subject to meaningful
administrative review.” Id. at 1401. Compare Hill v. Clifton, 74 F.3d
1150, 1152 (11th Cir. 1996) (accepting concession that city police chief
was not final policymaker with respect to employment decisions where
police chief’s decisions could be reversed by the city manager) with
Martinez v. City of Opa–Locka, Fla., 971 F.2d 708, 714-15 (11th Cir.
1992) (finding final policymaking authority where “the City Manager’s
decision to hire or fire administrative personnel is completely insulated
from review”).
Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248, 1264 (11th Cir. 2010).
Here, Dorning asserts that he never delegated final policymaking authority to
ACH because the County’s contract with that entity requires ACH to be accountable

-35-

to the County for certain performance, staffing, and reporting requirements.92
Plaintiff has not relied solely upon those formal contractual requirements, however.
Plaintiff also asserts that Dorning’s delegation of authority to ACH has been a matter
of long-standing practice, and that the written terms of the contract have been
disregarded in actual practice. Moreover, plaintiff has alleged that Dorning has not
made any effort to hold ACH accountable for the manner in which it handles inmate
health care under the contract. These allegations, if eventually supported by the
evidence, could demonstrate violations of Listau’s clearly established rights.
Accordingly, this claim will not be dismissed for failure to state a claim upon which
relief can be granted, and Dorning is not entitled to qualified immunity from this
claim at the motion to dismiss stage.
D.

Motion to Dismiss of Defendant Madison County, Alabama
Plaintiff’s claim against Madison County is based solely upon the County’s

alleged failure to adequately fund its jail.93 It is well-established that the County’s
sole responsibility with regard to jails is to fund them. See Turquitt v. Jefferson
County, Ala., 137 F.3d 1285, 1289-90 (11th Cir. 1998) (“ We recognize that Alabama
92

Doc. no. 63 (Brief of Blake Dorning in Support of Motion to Dismiss Second Amended
Complaint), at 26-27 (citing the contract between the County and ACH, which was attached to the
Second Amended Complaint as Exhibit 1, at ¶¶ 6(G), (I), (L), & (Q)).
93

Doc. no. 70 (Plaintiff’s Response to Madison County’s Motion to Dismiss), at 2 (“Plaintiff
only seeks to hold Madison County liable for its failure to adequately fund medical care, which the
Eleventh Circuit has recognized as a viable claim.”) (citations omitted).
-36-

counties possess some duties with respect to county jails. However, none of these
duties relates to the daily operation of the jails or to the supervision of inmates. The
duties of the counties with respect to the jails ‘are limited to funding the operation of
the jail and to providing facilities to house the jail.’”) (quoting Stark v. Madison
County, 678 So.2d 787, 787 (Ala. Civ. App. 1996)). Moreover, a
County’s liability cannot be dependent on the scant likelihood that its
budget decisions would trickle down the administrative facets and
deprive a person of his constitutional rights. Instead, liability must be
premised on a finding that “this” budget decision was “highly likely to
inflict the particular injury” [the plaintiff] suffered.
McDowell v. Brown, 392 F.3d 1283, 1292 (11th Cir. 2004) (quoting Board of County
Commissioners v. Brown, 520 U.S. 397, 412 (1997)) (emphasis in original, alteration
supplied). To ensure that the causation requirement is satisfied, the court should
“look to whether a complete review of the budget decision . . . reveals that the
[County] should have known that [the plaintiff’s] injuries were a ‘plainly obvious
consequence’ of that decision.” McDowell, 392 F.3d at 1292 (quoting Brown, 520
U.S. at 412) (alterations supplied).
Here, plaintiff’s failure-to-fund claim against the County rests upon the
following allegations:
145. Defendants Madison County and ACH and all individual
defendants were aware [that] the cost control measures implemented at
the Madison County Jail by ACH resulted in the denial of
-37-

constitutionally-required medical care for inmates with serious medical
needs.
146. ACH’s business model, reflected in the agreement,
succeeds by underbidding the competition and implementing severe cost
control measures, the necessary result of which is unnecessary inmate
suffering and liability claims (dealt with through liability insurance).
147. Defendants Dorning and Madison County were aware of
ACH’s business model, were aware [that] ACH put cost control over
inmate health and safety, yet retained ACH as the contractor (initially
and via contract renewals) because it saved the county money.
148. Madison County and Dorning rejected other contractors
because they believed ACH saved them money.
149. Thus, Madison County caused or contributed to the abovedescribed customs or policies by not providing adequate funds for
inmate medical care.94
Plaintiff also alleges that Madison County
intentionally refused to adequately fund medical care as described above
with deliberate indifference to the serious medical needs of inmates such
as Listau, had a policy of not adequately funding inmate medical care,
and did thereby contribute to cause Listau’s suffering and eventual death
and the individual defendants’ denial of necessary medical treatment for
Listau’s serious medical needs.95
The County contends that it cannot be held liable for failing to adequately fund
health care at the jail because the County’s contract with ACH does not include any
kind of monetary cap for the county’s liability. Indeed, the only cap is the $200,000
94

Doc. no. 53 (Second Amended Complaint) ¶¶ 145-49 (alterations supplied).

95

Id. ¶ 165.
-38-

quarterly cap on ACH’s liability for outside medical costs. Even so, a contractual
monetary cap on the County’s liability to fund medical care at the jail is not the basis
of plaintiff’s failure-to-fund theory. Instead, plaintiff’s theory is that “the structure
of the contract with ACH, including the $200,000 quarterly cap on outside healthcare
expenses and the indemnification of correctional officers by ACH, encourages all
parties involved to deny inmates outside medical care.”96 More specifically, plaintiff
asserts that Listau’s death (and the suffering experienced by other inmates) was the
result of the County’s acts of
1) hiring the cheapest contractor based on promises by the contractor
regarding its ability to control outside medical care costs; 2) delegating
to that contractor complete authority over outside medical referrals; 3)
using a quarterly cap on outside services to give the contractor a strong
economic incentive to deny outside medical care to inmates; 4)
evaluating the contractor’s performance based on cost-control only; 5)
ignoring and refusing even to investigate known incidents of deliberate
indifference by the contractor, including at least 6 deaths over roughly
3 years; and 6) continuing to retain the contractor despite knowledge of
its unconstitutional practices.97
Essentially, plaintiff asserts the contract encourages exploitation by ACH, which
increases its profit margin if it keeps quarterly outside medical care costs under
$200,000, and that the County knew about that exploitation but was deliberately
indifferent to it. Those allegations are sufficient to state a claim for deliberate
96

Doc. no. 70 (Plaintiff’s Response to Madison County’s Motion to Dismiss), at 2.

97

Id. at 4 (citing doc. no. 53 (Second Amended Complaint) ¶¶ 124-54).
-39-

indifference to Listau’s serious medical needs.
IV. CONCLUSION AND ORDERS
In accordance with the foregoing, all pending motions to dismiss are DENIED.
It is further ORDERED that the stay on discovery is LIFTED,98 and all parties are
directed to proceed forthwith to conduct discovery in accordance with the Uniform
Initial Order.
DONE this 9th day of March, 2015.

______________________________
United States District Judge

98

See doc. no. 75 (order granting motion to stay discovery pending a ruling on the motions
to dismiss).
-40-