Foster v. Advanced Correctional Healthcare Inc et al

Filing 108

MEMORANDUM OPINION - Based on the foregoing reasons, the Court grants Madison Countys motion to dismiss as to the civil conspiracy claim and denies the remainder of Madison Countys motion to dismiss. The Court denies the correctional officers motion to dismiss and denies Mr. Morrisons motion to dismiss. Signed by Judge Madeline Hughes Haikala on 9/21/2018. (KEK)

FILED
2018 Sep-21 AM 09:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

WHITNEY ELIZABETH FOSTER,
Plaintiff,
v.
ADVANCED CORRECTIONAL
HEALTHCARE, INC., et al.,
Defendants.

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Case No.: 5:16-cv-00521-MHH

MEMORANDUM OPINION
This case is before the Court on three motions to dismiss filed by various
defendants. While incarcerated at the Madison County Jail, plaintiff Whitney
Foster alleges that she did not receive adequate treatment for many severe health
problems.

She eventually was hospitalized and now suffers from permanent

neurological deficits and cortical blindness. In her amended complaint, Ms. Foster
asserts claims of deliberate indifference to medical needs under 42 U.S.C. § 1983,
conspiracy to violate civil rights under 42 U.S.C. § 1983, negligent medical
practice, negligent correctional care, wantonness, and civil conspiracy. (Doc. 60,
pp. 16, 18-21).
In her amended complaint, Ms. Foster names as defendants Advanced
Correctional Healthcare, Inc. (“ACH”), the corporation contracted to provide
1

healthcare to inmates residing in the Madison County Jail; Dr. Arthur Williams, a
physician at Madison County Jail; specific nurses at the jail (“the nurses”);1
Madison County; Blake Dorning, the Madison County Sheriff; Jerry Morrison as
the personal representative of the estate of Steve Morrison, the Jail Administrator
(“Mr. Morrison”); and specific correctional officers at the jail (“the correctional
officers”).2 (Doc. 60, pp. 1-3).
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Madison
County asks the Court to dismiss the claims of negligent correctional care,
wantonness, and civil conspiracy asserted against it.

(Doc. 62, p. 1).

The

correctional officers ask the Court to dismiss the § 1983 and tort claims asserted
against them. (Doc. 84, p. 1). Mr. Morrison asks the Court to dismiss the § 1983
claims asserted against the estate of Steve Morrison. (Doc. 86, p. 1). For the
following reasons, the Court grants in part and denies in part Madison County’s
motion to dismiss and denies both the correctional officers’ and Mr. Morrison’s
motions to dismiss.
I. STANDARD OF REVIEW
Rule 12(b)(6) enables a defendant to move to dismiss a complaint for
1

The nurses are Emmanuel Mbi, Tanya Jones, Sherri Hakes, Maria Sanchez, Demetrius
Johnson, Denetris Hudgins, Mary Jones, Michelle Kirk, C. Ashley, and D. Smith. (Doc. 60, ¶ 6).
2

The correctional officers are Cassie Maloney, Joyce Williams, Benzilla Anderson,
Mildred Patton, Sheree King, Charity Beasley, Shelby Spicer, Felicia DeShields, and Emily
Nobles. (Doc. 60, ¶ 11).
2

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint
against the “liberal pleading standards set forth by Rule 8(a)(2).” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Pursuant to Rule 8(a)(2), a complaint must
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Specific facts are not necessary; the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Erickson,
551 U.S. at 93 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, (2007)).
In deciding a Rule 12(b)(6) motion to dismiss, a court must view the
allegations in a complaint in the light most favorable to the non-moving party.
Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). A court must
accept well-pled facts as true. Grossman v. Nationsbank, N.A., 225 F.3d 1228,
1231 (11th Cir. 2000).
II. FACTUAL BACKGROUND
The factual allegations in the amended complaint, viewed in the light most
favorable to Ms. Foster, indicate that pursuant to its contract with Madison County,
ACH provides healthcare services to inmates at the Madison County Jail. (Doc.
3

60, ¶¶ 15, 17). The contract caps outside medical care costs at $200,000 per
quarter.

(Doc. 60, ¶ 17).

The contract permits ACH to keep as profit the

difference between the $200,000 cap and actual outside medical care costs incurred
in a quarter when those costs fall below $200,000. (Doc. 60, ¶ 17). According to
Ms. Foster, this contract provision incentivized ACH to deny prison inmate
referrals to outside medical care providers as a cost controlling mechanism, the
“result of which [was] unnecessary inmate suffering.” (Doc. 60, ¶ 17).3
Ms. Foster alleges that ACH personnel refused to refer inmates for outside
care when necessary, failed to respond to or evaluate inmates’ serious medical
needs, and let inmates’ health deteriorate. (See Doc. 60, ¶ 30). She also alleges
that Sheriff Dorning and Mr. Morrison encouraged correctional officers to defer to
ACH personnel for medical decisions even though the officers were aware that
ACH’s medical care endangered inmates because ACH elevated cost control over
healthcare. (Doc. 60, ¶¶ 22-23, 25). Ms. Foster asserts that at least six inmates
died due to the failure of ACH and correctional personnel to provide inmates with

3

The contract was amended five weeks prior to Ms. Foster’s incarceration to provide that
the difference, if any, between the $200,000 cap and actual outside medical care costs incurred in
a quarter would be returned to Madison County. (Doc. 60, ¶ 17.1). Neither Sheriff Dorning,
Madison County, ACH, Dr. Williams, nor Mr. Morrison notified nurses or officers of the
contract change, thereby allegedly allowing the inadequate medical care policies to continue.
(Doc. 60, ¶ 17.1).
4

basic medical care.4 (Doc. 60, ¶¶ 24, 28). Ms. Foster alleges that no defendant
investigated the circumstances of these deaths, nor did the defendants investigate
grievances regarding medical care. (Doc. 60, ¶¶ 27-28).
Ms. Foster was arrested and booked at Madison County Jail on April 4,
2014. (Doc. 60, ¶ 31). Before her arrest, she had been taking 80 mg of methadone
daily. The methadone was administered by a methadone clinic. (Doc. 60, ¶ 35).
Once incarcerated, Ms. Foster alleges that she “began to show visible signs of
being weak and suffering from methadone withdrawal.” (Doc. 60, ¶ 38). The
visible symptoms grew more severe each day, although the defendants “did
nothing to help her.” (Doc. 60, ¶ 38).
Ms. Foster experienced elevated blood pressure on numerous occasions.
(Doc. 60, ¶¶ 39, 41).

On April 6, 2014, nurses placed her on vistaril and

dicyclomine, as was “protocol for withdrawal patients.” (Doc. 60, ¶ 40). Nurses
did not write down multiple blood pressure readings “in the 200s.” (Doc. 60, ¶
42.1). Nurses and correctional officers accused Ms. Foster of faking when she
slurred her speech, bit her tongue, and exhibited limited control of her body. (Doc.

4

Regarding three of the deaths in 2013, “[a]ll three inmates died when ACH and
Madison County Jail personnel refused to send them to the hospital. In all three cases,
correctional officers deferred to ACH medical personnel even though (1) it was obvious to a
layperson that the inmate needed to be sent to a hospital for evaluation and treatment and (2) it
was obvious to the correctional officers that ACH was doing nothing for the detainee/jailee.”
(Doc. 60, p. 7, ¶ 24). See Elliott v. Madison Cnty., et al, Case No. 5:14-cv-1309 (Smith);
Jefferson v. Madison Cnty., et al, Case No. 5:14-cv-1959 (Kallon); Woods v. Madison Cnty., et
al, Case No. 5:14-cv-1964 (Bowdre).
5

60, ¶ 47). Ms. Foster was seen in the clinic on April 18, 2014, given ibuprofen,
and put on three day blood pressure watch. (Doc. 60, ¶ 48).
On April 21, 2014, Ms. Foster began having strokes and seizures, during
which she was harassed and ridiculed by officers and nurses. (Doc. 60, ¶¶ 50-51).
She was found shaking and sweating, with a blood pressure of 180/110, slightly
lethargic, and slurring her words. (Doc. 60, ¶¶ 53-54). She was given clonidine,
apparently for methadone withdrawal. (Doc. 60, ¶ 54). The next day, Ms. Foster
called her mom and told her with slurred speech that she was going to die. (Doc.
60, ¶ 57). Ms. Foster was left to lie on the ground, and a nurse picked her up and
dropped her, saying “get the fu** up.” (Doc. 60, ¶ 58). Some officers and nurses
put Ms. Foster in the shower because she urinated on herself. (Doc. 60, ¶ 58).
On April 22, 2014, correctional officers saw Ms. Foster shaking and
sweating. Ms. Foster alleges that the officers knew she was having strokes. (Doc.
60, ¶ 59.1). Ms. Foster asserts that the officers knew she had to be sent to the
hospital, but no defendant would send her to the hospital. (Doc. 60, ¶ 59.1). The
officers harassed and ridiculed her throughout the day. (Doc. 60, ¶ 59.1). That
night, officers found Ms. Foster twitching in her bunk, complaining of hurting all
over and tensing muscles. (Doc. 60, ¶ 59).
On the morning of April 23, 2014, a nurse could not pull Ms. Foster out
from under a bed. (Doc. 60, ¶ 61). Dr. Williams ordered that Ms. Foster be sent to
6

the Huntsville Hospital emergency room due to signs of a stroke. (Doc. 60, ¶ 62).
When Ms. Foster arrived at the hospital, her blood pressure was 154/131, she had a
heart rate of 115, she looked like she had been beaten, she was blind, and she was
partially paralyzed. (Doc. 60, ¶ 64).
Ms. Foster remained hospitalized for three weeks and was diagnosed with
Posterior Reversible Encephalopathy Syndrome; Ms. Foster contends her condition
is no longer reversible. (Doc. 60, ¶ 65). Ms. Foster has some use of her arms and
legs, but the repeated strokes and seizures caused permanent neurological deficits
and cortical blindness. (Doc. 60, ¶ 65).
III. DISCUSSION
A. Madison County’s Partial Motion to Dismiss State Law Tort Claims
Madison County asks the Court to dismiss the state law tort claims (civil
conspiracy, negligent correctional care, and wantonness) that Ms. Foster asserts
against it.5 (Doc. 62, p. 1). Madison County argues that Ms. Foster failed to
comply with Alabama law requiring proper pre-suit notice before bringing an
5

The amended complaint contains more than these three claims against Madison County.
Ms. Foster also brings deliberate indifference to medical needs and conspiracy to violate civil
rights claims under § 1983 against Madison County. (Doc. 60, ¶¶ 68, 76). Madison County
recognizes this and requested dismissal at one point: “To the extent that the [amended complaint]
can be read to assert that Madison County violated the civil rights of the plaintiff . . . it is due to
be dismissed.” (Doc. 62, ¶ 3). Madison County also disputes the § 1983 allegations in its brief
in support of its partial motion to dismiss before reiterating the same request for dismissal. (Doc.
63, pp. 7-9). However, Madison County states that it “has not moved to dismiss plaintiff’s §
1983 claim and that issue is not currently before the Court.” (Doc. 91, p. 2). Accordingly,
despite Madison County’s initial requests and briefing, the Court will address only Madison
County’s requests to dismiss the three state law tort claims.
7

actionable claim against a county.
1. Civil conspiracy claim against Madison County
Madison County raises a procedural challenge to Ms. Foster’s conspiracy
claim. Under Alabama law, before a plaintiff may sue a county, the plaintiff must
present a notice of claim to the county within 12 months after accrual of the claim.
Ala. Code § 11-12-8 (1975). This notice must be “itemized.” Ala. Code § 11-125. The plaintiff cannot file suit until the county denies the claim or the claim is
denied by operation of law after 90 days.

Ala. Code § 6-5-20. Ms. Foster

presented Madison County her notice of claim within 12 months of accrual of the
claim. (Doc. 63, p. 22). The claim was denied by operation of law after 90 days.
(Doc, 70, p. 19). Madison County argues that the notice is not properly itemized
because it omits a theory of liability asserted in the amended complaint.
The itemization requirement in § 11-12-5 provides a county “with notice of
claims against the county and an opportunity to audit and investigate the claims.”
Elmore Cnty. Comm'n v. Ragona, 540 So. 2d 720, 723 (Ala. 1989). The “items”
should include “a factual background, a description of the event or transaction
giving rise to the claim, the alleged basis for the county’s liability for damages
resulting from the event or transaction, the nature of the damages, and the
compensation demanded.” Id. Minor deficiencies in a notice of claim are not fatal
if they do not “prevent the [county] from having adequate notice of the claims
8

against it and an opportunity to audit and investigate the claims.”

Helms v.

Barbour Cnty., 914 So. 2d 825, 830 (Ala. 2005) (internal quotation marks omitted)
(notice was properly itemized for asserting substantially similar, but not identical,
theories of liability as the complaint); see Ragona, 540 So. 2d at 723 (notice signed
by an attorney without personal knowledge complied with the § 11-12-5 “personal
knowledge” requirement).
Madison County argues first that Ms. Foster’s notice is inadequate because it
does not mention the conspiracy claim that Ms. Foster asserts in the amended
complaint. Ms. Foster contends that she sufficiently placed Madison County on
notice of her conspiracy claim because her conspiracy claim “derive[s] directly
from the underlying wrongs.” (Doc. 70, p. 22). The Alabama Court of Civil
Appeals rejected a similar argument in Jacks v. Madison Cnty., 741 So. 2d 429
(Ala. Civ. App. 1999). In Jacks, the plaintiff’s complaint contained counts of
breach of contract, fraudulent misrepresentation, trespass, and nuisance against a
county that built a water storage tank and road on the plaintiff’s property, but the
plaintiff’s pre-suit notice only identified a breach of contract claim. Although the
trespass and nuisance claims arose from the same events as the breach of contract,
the Court of Civil Appeals found that the “[plaintiff’s] failure to present her
nuisance and trespass claims to the county barred her assertion of those theories in
her complaint.” Id. at 434. Similarly, in this case, Ms. Foster’s notice mentions
9

negligence and wantonness consistent with the claims in her amended complaint,
but the notice does not mention conspiracy. Accordingly, the notice fails to meet
the § 11-12-5 itemization requirement for lack of an “alleged basis for the county's
liability.” Ragona, 540 So. 2d at 723. Therefore, the Court grants Madison
County’s motion to dismiss the civil conspiracy claim.
2. Negligence and wantonness claims against Madison County
The County’s challenge to Ms. Foster’s negligence and wantonness claims
also concerns her pre-suit notice. Madison County argues that Ms. Foster cannot
state claims for negligence and wantonness because Ms. Foster’s notice “does not
address, in any way, Madison County’s duty to fund the jail.” (Doc. 63, p. 12).
The parties agree that the County’s only duty with respect to the jail is to fund the
operation of the jail, but disagree on the consequences of omitting that specific
factual allegation from the notice. The Court finds that the omission does not
prevent Ms. Foster from stating claims of negligence and wantonness.
While Ms. Foster’s notice did not accurately identify the duty Madison
County breached, it did identify bases of liability.

Section 11-12-5 and the

Supreme Court of Alabama require only the latter. In Helms, the plaintiffs’ presuit notice identified a trespass claim with the language, “During the scraping
process the [defendant’s] grader went outside of the established right-of-way and
came upon the property of the claimants. This caused the long leaf pines to be
10

destroyed.” 914 So. 2d at 830. The notice identified an improper taking claim
with the language, “[T]his further caused the right-of-way to be expanded without
the consent of the property owners and without compensation to the property
owners.” Id. The Supreme Court of Alabama found that “the bases for the
County’s liability as stated in [the plaintiffs’ pre-suit notice] are substantially the
same as those stated in their complaint.” Id.
Similarly, Ms. Foster states substantially the same bases of liability in her
notice and in her amended complaint. In her notice, she claims she is entitled to
damages because:
Madison County Jail, and its agents and/or employees had a statutory
duty under Alabama law to attend to the medical needs of inmates in
the Madison County Jail. Those agents and/or employees were
negligent, wanton, and/or breached the standard of care in meeting
Foster’s medical needs, specifically including for headache,
confusion, slurred speech, high blood pressure, TIA and stroke.
As a proximate consequence of said negligent or wanton conduct of
the aforesaid parties, Whitney Elizabeth Foster, was caused to suffer
encephalopathy due to PRESS syndrome, cortical blindness, and other
physical injuries.
(Doc. 63, p. 22). In count four and count five of her amended complaint, Ms.
Foster brings claims for negligent and wanton care at the hands of agents and/or
employees of Madison County Jail, consistent with the claims in her notice. (Doc.
60, pp. 3-20). Madison County did not have to “‘presume’ certain claims may be
brought against it.” (Doc. 91, p. 6). Rather, Ms. Foster told Madison County
11

precisely which claims she might bring.
Madison County argues that the notice is invalid because Madison County is
not obligated to attend to the medical needs of inmates, yet the notice states,
“Madison County Jail . . . had a statutory duty under Alabama law to attend to the
medical needs of inmates . . . .” (Doc. 91, pp. 3-4). Section 11-12-5 does not
require that the complainant state the particular duty a county breached. Rather, it
requires the complainant allege a basis of liability.

Arguably misstating the

County’s duty when the basis of liability is otherwise properly alleged still satisfies
the purpose of § 11-12-5 by giving the County “notice of claims against [it] and an
opportunity to audit and investigate the claims.” Ragona, 540 So. 2d at 723. The
notice informed the County of the particular tort claims, the general setting and
events giving rise to the claims, and the source of the alleged negligence and
wantonness, namely “agents and/or employees” of the County. (Doc. 63, p. 22).
Even if misstating the duty is a deficiency, it is minor, and the County “[can] not
complain that relatively minor deficiencies in claims prevent [it] from acquiring
knowledge of actions pending against [it].” Id. (citing Diemert v. City of Mobile,
474 So. 2d 663, 666 (Ala. 1985)).
In support of its argument that Ms. Foster’s notice is deficient, Madison
County relies on three cases. The first is Ford v. Jefferson County, 774 So. 2d 600
(Ala. Civ. App. 2000). (Doc. 63, pp. 12-13, Doc. 91, pp. 6-7). The facts of Ford
12

are irrelevant to this case. In Ford, the plaintiffs filed no pre-suit notice at all, and
unsuccessfully argued that filing a complaint in court satisfies the pre-suit notice
obligation. Ford, 774 So. 2d at 605. Ford is not a case evaluating the sufficiency
of an itemization in an otherwise compliant notice and thus is not persuasive in the
context of this case.
Second, Madison County relies on Jacks to argue that Ms. Foster’s notice
requires the County to presume potential claims may be brought against it. (Doc.
91, p. 6). Also, Madison County argues that Ms. Foster’s notice lacks an alleged
claim like the deficient notice in Jacks. (Doc. 63, p. 12). However, in Jacks, the
pre-suit notice did not identify the trespass or nuisance claims alleged in the
complaint. Jacks, 741 So. 2d at 434. The issue in Jacks is the complete omission
of claims, not the proper itemization of claims. Ms. Foster did not completely omit
the theories of negligence and wantonness, so Madison County’s reliance on Jacks
is misplaced.
Finally, Madison County heavily relies on Kelly v. Owens, et al., 2006 WL
3421257 (M.D. Ala. Nov. 28, 2006).

In Kelly, the plaintiff claimed that he

received inadequate medical treatment while incarcerated at the Coosa County Jail.
The only relevant portion of the plaintiff’s pre-suit notice stated, “Coosa County
had undertaken and hired medical personnel, including the services of a physician,
to provide medical services to inmates at Coosa County Jail.” Kelly, 2006 WL
13

3421257 at *7. In the related section of the complaint, the plaintiff alleged that
Coosa County breached the “duty [to provide necessary medicines and medical
attention to sick and injured inmates] by inadequate funding in a manner which
injured [the plaintiff] . . . . [T]he funding for medical care for prisoners was
inadequate such that plaintiff did not receive adequate medical care.” Id. The
district court concluded that the notice “cannot be construed as sufficient to notify
the Commission of a negligent failure to fund claim.” Id. (citations omitted). The
pre-suit notice did not “attribute to the Commission any non-compliance with its
statutory funding duty, either in general or specific terms,” such that “the
Commission had no reason to believe any subsequent lawsuit would specify this as
a basis of liability.” Id. at *8. The district court held:
Where a pre-lawsuit Notice of Claim describes the nature of the
liability claim in a manner which expressly rejects a particular theory
of recovery against the Commission, as did Kelly’s Notice, the
Commission is entitled to rely on that disclosure as it investigates and
considers the merits of the claim. Consequently, Rule 12(b)(6)
dismissal is warranted if the subsequent lawsuit purports to assert a
theory of liability which contradicts directly the specific facts reported
in the claim.
Id.
In contrast, Ms. Foster attributes negligence and wantonness to Madison
County, both in her notice and in her amended complaint. Her notice describes
Madison County’s failure to provide adequate medical care to inmates as does her
complaint. Unlike the notice in Kelly, nothing in Ms. Foster’s notice “expressly
14

rejects a particular theory of recovery” asserted in her complaint, nor does her
complaint “contradict[] directly the specific facts reported in the [notice].” Id.
Therefore, the pre-suit notice in Kelly is distinguishable from Ms. Foster’s notice.
Ms. Foster’s notice is comparable to the satisfactory notice in Helms because
the notice offers bases of liability “substantially the same as those stated in [her]
complaint.” Helms, 914 So. 2d at 830. Just as it focused on the purpose of § 1112-5 in Ragona, the Supreme Court of Alabama found in Helms that the “relatively
minor” discrepancies “did not prevent the Commission from having adequate
notice of the claims against it and an opportunity to audit and investigate the
claims.” Id. (internal quotation marks omitted). As previously discussed, the
discrepancies in Ms. Foster’s notice are minor because the bases of liability in the
notice and amended complaint are substantially the same. Although she did not
specifically identify the County’s duty to fund the jail in her notice, this is not fatal
under Helms. Therefore, the Court denies Madison County’s motion to dismiss
Ms. Foster’s negligent correctional care and wantonness claims.
B. The Correctional Officers’ Motion to Dismiss All Claims
The correctional officers ask the Court to dismiss the § 1983, negligent
correctional care, and wantonness claims that Ms. Foster asserts against them.
(Doc. 84, p. 1). The officers argue that Ms. Foster failed to state a claim under
Rule 12(b)(6) and that the officers are entitled to qualified and state law immunity.
15

(Doc. 84, p. 1).
1. § 1983 deliberate indifference to medical needs claim against the
correctional officers
The correctional officers assert that qualified immunity precludes Ms.
Foster’s § 1983 claim against them. (Doc. 84, ¶ 14). Qualified immunity is a
complete immunity from suit rather than a defense to liability. Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). Qualified immunity protects governmental officials
who are sued under 42 U.S.C. § 1983 in their individual capacities if 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). Qualified immunity attaches unless “a plaintiff pleads facts showing (1)
that the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. alKidd, 563 U.S. 731, 735 (2011) (citing Harlow, 457 U.S. at 818). As the Supreme
Court has explained:
A clearly established right is one that is “sufficiently clear that every
reasonable official would have understood that what he is doing
violates that right.” Reichle v. Howards, 566 U.S. ----, ----, 132 S. Ct.
2088, 2093, 182 L. Ed. 2d 985 (2012) (internal quotation marks and
alteration omitted). “We do not require a case directly on point, but
existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741, 131
S. Ct. 2074, 179 L. Ed. 2d 1149 (2011). Put simply, qualified
immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106
S. Ct. 1092, 89 L. Ed. 2d 271 (1986).
16

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
A plaintiff can establish that the law put an official on fair notice of
unlawfulness in multiple ways:
First, the plaintiffs may show that a materially similar case has
already been decided. Second, the plaintiffs can point to a broader,
clearly established principle that should control the novel facts of the
situation. Finally, the conduct involved in the case may so obviously
violate the constitution that prior case law is unnecessary. Under
controlling law, the plaintiffs must carry their burden by looking to
the law as interpreted at the time by the United States Supreme Court,
the Eleventh Circuit, or the [relevant State Supreme Court].
Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017) (alteration and
emphasis in original) (quoting Terrell v. Smith, 668 F.3d 1244, 1255-56 (11th Cir.
2012)).
Recently, the United States Supreme Court discussed the concept of “clearly
established law.” In White v. Pauly, 137 S. Ct. 548 (2017) (per curiam), a police
officer was accused of using excessive force in violation of the Fourth Amendment
when he arrived late to a crime scene and shot and killed an armed occupant of a
house without first giving a warning. Affirming the district court’s denial of
qualified immunity to the officer on a motion for summary judgment, the Court of
Appeals for the Tenth Circuit found that the rule requiring that the police officer
give a warning despite the threat of serious harm was clearly established at the
time of the shooting. Id. at 551. The Supreme Court reversed the decision because
17

the Court of Appeals “relied on general statements from [Supreme Court] case law
that (1) ‘the reasonableness of an officer’s use of force depends, in part, on
whether the officer was in danger at the precise moment that he used force’ and (2)
‘if the suspect threatens the officer with a weapon[,] deadly force may be used if
necessary to prevent escape, and if[,] where feasible, some warning has been
given.” Id. (alterations in original) (citing Pauly v. White, 814 F.3d 1060, 1083
(10th Cir. 2016), cert. granted, judgment vacated, 137 S. Ct. 548 (2017)). 6
The Supreme Court held that in the absence of “a case where an officer
acting under similar circumstances as [the officer at issue] was held to have
violated the Fourth Amendment,” the existing general statements about use of

6

According to the Supreme Court, the Tenth Circuit Court of Appeals drew the two
statements from Graham v. Connor, 490 U.S. 386 (1989), Tennessee v. Garner, 471 U.S. 1
(1985), and “their Court of Appeals progeny.” White, 137 S. Ct. at 552. The Supreme Court
distinguished the facts of White from Graham and Garner, saying:
[W]e have held that Garner and Graham do not by themselves create clearly
established law outside “an obvious case.” Brosseau v. Haugen, 543 U.S. 194,
[199] (2004) (per curiam); see also Plumhoff v. Rickard, [134 S.Ct. 2012, 2023]
(2014) (emphasizing that Garner and Graham “are ‘cast at a high level of
generality’”).
....
This is not a case where it is obvious that there was a violation of clearly
established law under Garner and Graham . . . . [The Court of Appeals]
recognized that this case presents a unique set of facts and circumstances in light
of White’s late arrival on the scene. This alone should have been an important
indication to the majority that White’s conduct did not violate a clearly
established right.
Id. (citation and internal quotation marks omitted).
18

deadly force did not clearly establish law prohibiting “a reasonable officer who
arrives late to an ongoing police action in circumstances like this from assuming
that proper procedures, such as officer identification, have already been
followed.”7 Id. Although “‘general statements of the law are not inherently
incapable of giving fair and clear warning’” to officers, the general statements on
which the Court of Appeals relied did not make the unlawfulness of the officer’s
actions apparent. Id. (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).
White reinforces that, as the Supreme Court has required for decades, the “clearly
established law must be ‘particularized’ to the facts of the case.” Id. (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Gaines, 871 F.3d at
1214 (finding that reliance upon case law “not particularized to the facts of the
case, but rather … merely setting out First Amendment principles at a high level of
generality” could not support a finding of qualified immunity).
Mindful of White and Gaines, the Court turns to Ms. Foster’s allegations
against the correctional officers. Ms. Foster alleges that the officers violated her

7

The correctional officers argue that White requires that a plaintiff identify a prior case in
which officers acting under similar circumstances were held to have violated a constitutional
right in order to satisfy the “clearly established” qualified immunity prong. (Doc. 84, ¶ 15; Doc.
85, p. 23). White contradicts the officers’ interpretation: “While this Court’s case law ‘do[es] not
require a case directly on point’ for a right to be clearly established, ‘existing precedent must
have placed the statutory or constitutional question beyond debate.’” 137 S. Ct. at 551
(alteration in original) (quoting Mullenix, 136 S. Ct. at 308).
19

constitutional right to be free from deliberate indifference to her medical needs.8
That right is well-settled in the law. To state a claim for deliberate indifference to
medical needs, Ms. Foster must allege a serious medical need, the officers’
deliberate indifference to that need, and a causal link between the officers’
indifference and her resulting injury. See Melton v. Abston, 841 F.3d 1207, 1220
(11th Cir. 2016) (citing Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306-07 (11th
Cir. 2009)).
A “serious medical need” is “one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Hill v. Dekalb Reg’l
Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), overruled in part on other
grounds by Hope v. Pelzer, 536 U.S. 730 (2002). Alternatively, “a serious medical
need is determined by whether a delay in treating the need worsens the condition.”
Mann, 588 F.3d at 1307 (citing Hill, 40 F.3d at 1188-89). “In either case, ‘the
medical need must be one that, if left unattended, poses a substantial risk of serious
harm.’” Id. (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)).
Ms. Foster has alleged a serious medical need. She suffered from serious

8

The Court infers that Ms. Foster was held at Madison County Jail as a pre-trial detainee
because Ms. Foster does not allege she was a convicted inmate. Therefore, her right to be free
from deliberate indifference to her medical needs arises from the Fourteenth Amendment. See
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (“As a pretrial detainee at Pickens
County Jail, Melton’s rights arose under the due process clause of the Fourteenth Amendment
rather than the Eighth Amendment.”). Even if she were a convicted inmate, in which case the
right would arise under the Eighth Amendment, Ms. Foster’s claims would be subject to the
same scrutiny. Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009).
20

withdrawal symptoms while incarcerated. (Doc. 60, ¶¶ 38, 40). She had elevated
blood pressure on numerous occasions. (Doc. 60, ¶¶ 39-42.1, 45, 48, 55, 56, 59).
She exhibited slurred speech, limited control of her body, shaking, sweating,
strokes, and seizures. (Doc. 60, ¶¶ 43, 47, 50-51, 53, 58, 61). Therefore, Ms.
Foster has satisfied the first element of pleading a deliberate indifference to
medical needs claim.
To satisfy the deliberate indifference element of her claim, Ms. Foster must
sufficiently allege that each correctional officer had subjective knowledge of a risk
of serious harm and disregarded that risk by conduct that is more than gross
negligence. See Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir.
2010).
To have subjective knowledge, a defendant “must both be aware of facts
from which the inference could be drawn that a substantial risk of harm exists, and
must also draw the inference.” Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir.
2005) (emphasis in original) (internal quotation marks and alteration omitted)
(citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The Court may infer that a
defendant had subjective knowledge from circumstantial evidence or from the fact
that the risk was obvious. Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir.
2007) (citing Farmer, 511 U.S. at 842).
Accepting the factual allegations in the amended complaint as true, Ms.
21

Foster has sufficiently alleged that each correctional officer had subjective
knowledge of a risk of serious harm to Ms. Foster. Ms. Foster states she was
“harassed and ridiculed by the [o]fficers . . . while she endured numerous strokes
and seizures.” (Doc. 60, ¶ 51). She asserts that all of the correctional officers saw
her “shaking, sweating[,] and knew she was having strokes” and that her condition
“was getting worse as the hours progressed.” (Doc. 60, ¶¶ 55.1. 59.1, 60.1). The
officers “kept telling her she was faking even though she was slurring her speech,
biting her tongue, and had limited control of her body.” (Doc. 60, ¶ 47). Officers
Spicer and Beasley found Ms. Foster twitching in her bunk after a request for
emergency assistance from another inmate. (Doc. 60, ¶ 59). Officers Maloney,
Patton, Spicer, Beasley, and Williams left Ms. Foster to lie on the ground during
commissary. (Doc. 60, ¶ 58). Officer Anderson completed an incident report
regarding Ms. Foster’s hospitalization following signs of a stroke. (Doc. 60, ¶
63.1). These allegations, accepted as true, show that the correctional officers had
subjective knowledge of a substantial risk of harm to Ms. Foster.
Also, Ms. Foster has sufficiently alleged that the correctional officers
disregarded the risk. Ms. Foster claims that each officer knew she had to be sent to
a hospital to treat her obvious medical needs, but none provided her with any
medical care, and instead “watched [her] deteriorate.” (Doc. 60, ¶¶ 52, 55.1. 59.1,
60.1).
22

Ms. Foster must sufficiently allege that the correctional officers’ disregard
amounted to “more than gross negligence.” Townsend, 601 F.3d at 1158. As the
Eleventh Circuit has explained:
The meaning of “more than gross negligence” is not self-evident but
past decisions have developed the concept. In cases that turn on the
delay in providing medical care, rather than the type of medical care
provided, we have set out some factors to guide our analysis. Where
the prisoner has suffered increased physical injury due to the delay,
we have consistently considered: (1) the seriousness of the medical
need; (2) whether the delay worsened the medical condition; and (3)
the reason for the delay. See Hill, 40 F.3d at 1189.
Goebert, 510 F.3d at 1312.
Ms. Foster’s allegations satisfy each of the “more than gross negligence”
factors. As previously discussed, her medical needs were very serious—strokes,
seizures, slurred speech, and limited body control. Her health deteriorated because
she did not receive adequate medical treatment. At first, Ms. Foster experienced
stomach cramps and increased anxiety due to elevated blood pressure. (Doc. 60, ¶
40). Then, she started “slurring her speech, biting her tongue, and had limited
control of her body.” (Doc. 60, ¶ 47). She was placed on blood pressure watch,
but “soaring blood pressure . . . left virtually untreated for days” caused strokes and
seizures. (Doc. 60, ¶ 50). Without proper treatment, she was hospitalized due to
signs of a stroke and now suffers from severe and permanent ailments. (Doc. 60,
¶¶ 62, 65-66). Ms. Foster alleges that throughout, correctional officers ridiculed
her and made no effort to help her receive medical care. Assuming the truth of Ms.
23

Foster’s allegations given the obviousness and seriousness of Ms. Foster’s medical
needs, the substantial deterioration of her health over a fairly short time, and the
correctional officers’ choice to mock her rather than seek medical assistance, the
officers conduct could amount to more than gross negligence.
The final element in a deliberate indifference to medical needs claim is a
“causal link between the defendants’ indifference and the plaintiff’s resulting
injury.” Melton, 841 F.3d at 1220. If proven, the circumstances surrounding Ms.
Foster’s deteriorating condition could demonstrate causation. The correctional
officers took no action or grossly inadequate action while Ms. Foster’s health
deteriorated and ultimately required a lengthy hospitalization.
Therefore, viewing Ms. Foster’s allegations in the light most favorable to
her, Ms. Foster has established that the officers were subjectively aware of Ms.
Foster’s serious medical needs, but deliberately disregarded those needs, thereby
causing Ms. Foster’s alleged permanent medical injuries and suffering. If these
allegations are proven to be true, they will demonstrate that the officers violated
Ms. Foster’s clearly established Fourteenth Amendment right to be free from
deliberate indifference to serious medical needs. Thus, the correctional officers are
not entitled to qualified immunity at this stage of the proceedings.
2. Negligence and wantonness claims against the correctional officers
The correctional officers argue that Ms. Foster has not stated a claim for
24

negligent correctional care and wantonness and that state law immunity precludes
the claims. (Doc. 64, p. 1).
a. Sufficiency of negligence and wantonness allegations
Under Alabama law,
To establish negligence, the plaintiff must prove: (1) a duty to a
foreseeable plaintiff; (2) a breach of that duty; (3) proximate
causation; and (4) damage or injury. To establish wantonness, the
plaintiff must prove that the defendant, with reckless indifference to
the consequences, consciously and intentionally did some wrongful
act or omitted some known duty. To be actionable, that act or
omission must proximately cause the injury of which the plaintiff
complains.
Hilyer v. Fortier, 227 So. 3d 13, 22 (Ala. 2017) (internal quotation marks and
citations omitted).
A duty to exercise care for a plaintiff may arise from a statute. Gowens v.
Tys. S., 948 So. 2d 513, 527 (Ala. 2006); Thompson v. Mindis Metals, Inc., 692 So.
2d 805, 807 (Ala. 1997). Also, a duty of care arises “when it is foreseeable that
harm may result if care is not exercised.” Hannah v. Gregg, Bland & Berry, Inc.,
840 So. 2d 839, 857 (Ala. 2002).
Ms. Foster states that the correctional officers had a duty under Ala. Code §
14-6-19 to provide “necessary medicines and medical attention to those who are
sick or injured, when they are unable to provide them for themselves.”

See

Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419, 1431 (11th Cir. 1997) (finding
that § 14-6-19 duty applies to non-medical jail personnel). As discussed, Ms.
25

Foster alleges that the officers were aware of her strokes, seizures, and limited
body control but ignored her medical needs, breaching their statutory duty. It is
foreseeable that harm may result if proper care is not exercised for an inmate who
is suffering from strokes and seizures.
The correctional officers argue that because they cannot diagnose or
prescribe clinical care for an inmate, their duty is limited to “provid[ing] inmates
with access to licensed healthcare providers, and Plaintiff judicially admits they
did so here.” (Doc. 85, p. 26). Ms. Foster admits that the officers provided her
access to ACH personnel on a few occasions, but her claims for negligence and
wantonness are premised on what the officers did not do, and she asserts that the
officers’ reliance on ACH was itself negligent and wanton. (Doc. 60, ¶¶ 86, 90).
Ms. Foster has established causation and damages for her negligence and
wantonness claims in the same way she has established causation and damages for
her deliberate indifference claim. Due to the officers’ failure to promptly obtain
adequate medical care, Ms. Foster’s symptoms worsened over time until she was
hospitalized. Therefore, Ms. Foster has sufficiently alleged the four elements of a
negligence claim.
To state a claim for wantonness, Ms. Foster must also demonstrate that the
correctional officers consciously undertook some action or omitted a duty with the
knowledge that such action or inaction would probably or likely cause injury. See
26

Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007); Tolbert v. Tolbert, 903 So. 2d 103,
114-15 (Ala. 2004) (“Implicit in wanton, willful, or reckless misconduct is an
acting, with knowledge of danger, or with consciousness, that the doing or not
doing of some act will likely result in injury.” (emphasis in original) (citation
omitted)). As discussed, Ms. Foster has adequately alleged that the correctional
officers recklessly disregarded her obvious medical needs. (See Doc. 60, ¶¶ 40, 47,
50, 55.1. 59.1, 60.1). The officers knew or should have known that Ms. Foster
needed medical attention, but they waited days before getting Ms. Foster to a
hospital. (See Doc. 60, ¶¶ 55.1. 59.1, 60.1). Accepting these allegations as true,
the Court finds that Ms. Foster has stated a wantonness claim under Alabama law.
b. State law immunity
The correctional officers argue that sovereign immunity under Ala. Code §
14-6-1 insulates them from Ms. Foster’s tort claims. (Doc. 84, ¶ 19). Section 146-1 provides correctional officers 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 § 14-6-1.9 Whether the
9

See also Ala. Code § 36-22-3(b) (“Any of the duties of the sheriff set out in subsection
(a) or as otherwise provided by law may be carried out by deputies, reserve deputies, and persons
employed as authorized in Section 14–6–1 as determined appropriate by the sheriff in
accordance with state law. Persons undertaking such duties for and under the direction and
supervision of the sheriff 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 he or
27

correctional officers are entitled to this immunity will depend on whether they
were “acting in compliance with the law” for purposes of § 14-6-1.
Courts have held that a cognizable § 1983 deliberate indifference claim
demonstrates noncompliance with the law.

In Sawyer v. Collins, 2012 WL

6046019 (S.D. Ala. Nov. 2, 2012), the plaintiff brought both a deliberate
indifference to medical needs claim and a negligence claim against jailers.
Analyzing a motion to dismiss, the United States District Court for the Southern
District of Alabama found that the plaintiff established a plausible claim of
deliberate indifference. Id. at *7. When deciding whether the jailers were entitled
to state law immunity from the negligence claim under § 14-6-1, the district court
remarked that it could not “say for sure what is meant by [acting in compliance
with the law].” Id. at *10. Still, the district court decided that a cognizable claim
of a constitutional violation stripped the jailers of immunity:
This conclusion is reached after noting that the Court has already
determined that a jury could find that Defendants were deliberately
indifferent to [Plaintiff’s] serious medical needs . . . . The Court finds
that a jury finding that [Defendants] violated the Eighth Amendment,
most likely, is not what the drafters of §§ 14–6–1 and 36–22–3 had in
mind when they required that sheriff’s employees “act[ ] in
compliance with the law.”
Id. at *11. This Court has already recognized that Ms. Foster sufficiently alleged a
viable constitutional violation against the Madison County correctional officers.
she is acting within the line and scope of his or her duties and is acting in compliance with the
law.”).
28

Similarly, Judge Hopkins, writing for this Court, found that state law
immunity would not extend to jailers when the plaintiff set out violations of both
the Constitution and § 14-6-19. Hobbs v. Powell, 138 F. Supp. 3d 1328, 1339
(N.D. Ala. 2015) (“[T]his case involves the potential violation of a constitutional
right and a civil statute guaranteeing medical care. The law defendant jailers
allegedly violated seems to squarely fall within Justice Shaw’s definition of the
‘law’ for purposes of § 14–6–1.” (citation omitted) (referencing the dissenting
opinion in Sawyer, 129 So. 3d at 1006)). Ms. Foster sufficiently alleges the same
violations.
This Court has not found, nor have the correctional officers identified, an
interpretation of § 14-6-1 extending state law immunity in the face of a plausible
constitutional violation.10

Accordingly, this Court follows the persuasive

authorities discussed above and holds that § 14-6-1 does not grant immunity to
correctional officers when a plaintiff adequately alleges a cognizable constitutional
violation. See, e.g., Young v. Myhrer, 243 F. Supp. 3d 1243, 1258 (N.D. Ala.
2017) (“[O]nly when sufficient evidence exists that a jailer has violated a criminal

10

The correctional officers’ case citations do not support their argument for immunity.
See Doc. 84, ¶ 19 (citing Johnson v. Conner, 720 F.3d 1311, 1313-14 (11th Cir. 2013) (declining
to interpret “in compliance with the law”); Young v. Myhrer, 243 F. Supp. 3d 1243, 1261 (N.D.
Ala. 2017) (dismissing tort claims on sovereign immunity grounds in absence of a viable
violation of Constitution, civil statute, or criminal statute), Redding v. Dale Cnty, Ala., 2016 WL
1243241, at *7 (M.D. Ala. March 14, 2016) (omitting discussion of “in compliance with the
law”), Stallworth v. Bibb Cnty, Ala., 2014 WL 3540521, at *4-5 (N.D. Ala. July 16, 2014)
(same)).
29

statute, a civil statute, or a constitutional principle does he lose the Jailer Act’s
sovereign immunity protection and become subject to Alabama tort laws.”);
Hobbs, 138 F. Supp. 3d at 1339-40 (refusing to extend immunity to jailers when
the plaintiff established violations of the Constitution and a state civil statute);
Johnson v. Milliner, 65 F. Supp. 3d 1295, 1305 (S.D. Ala. 2014) (denying
immunity when factual dispute precluding summary judgment existed over
whether the defendant violated the plaintiff’s constitutional right).

The

correctional officers are not protected by § 14-6-1 immunity at this stage of the
proceedings.
C. Mr. Morrison’s Motion to Dismiss All Claims
Mr. Morrison asks this Court to dismiss all claims asserted against the estate
of Steve Morrison. (Doc. 86). Mr. Morrison argues that Ms. Foster has not stated
claims for deliberate indifference to medical needs and conspiracy to violate civil
rights under § 1983 and that qualified immunity would preclude both claims if she
had. (Doc. 86, ¶¶ 1, 7).
1. § 1983 deliberate indifference to medical needs claim against Mr.
Morrison
The parties agree that Mr. Morrison cannot be held liable under § 1983 on a
theory of respondeat superior or vicarious liability. See, e.g., Iqbal, 556 U.S. at
676-77; West v. Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007); Cottone v. Jenne,
326 F.3d, 1352, 1360 (11th Cir. 2003). Instead, Ms. Foster seeks to hold Mr.
30

Morrison liable for the deliberate indifference to her medical needs in his status as
a supervisor. (Doc. 60, ¶¶ 70-71; Doc. 102, p. 3). A plaintiff establishes a claim
for supervisor liability by showing that a “supervisor either participated directly in
the unconstitutional conduct or that a causal connection exists between the
supervisor’s actions and the alleged constitutional violation.” Harrison v. Culliver,
746 F.3d 1288, 1298 (11th Cir. 2014) (citing Cottone, 326 F.3d at 1360).
The necessary 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.
Alternatively, the causal connection may be established when a
supervisor’s custom or policy results in deliberate indifference to
constitutional rights or when facts support an inference that the
supervisor directed the subordinates to act unlawfully or knew that the
subordinates would act unlawfully and failed to stop them from doing
so.
Cottone, 326 F.3d at 1360 (internal quotation marks, alterations, and citations
omitted).
This Court accepts as true Ms. Foster’s allegations establishing a causal
connection between Mr. Morrison’s actions and the deliberate indifference to her
medical needs. Defendants, including Mr. Morrison, “subjectively knew that [Ms.
Foster] suffered from a serious medical need and that she was unable to get
medical attention for herself,” and that the failure to treat her “would result in
serious injury, harm, and/or death.” (Doc. 60, ¶ 70). Ms. Foster’s serious medical
needs were “ignored, in part, because of the deliberately indifferent customs or
31

policies of . . . [Mr.] Morrison . . . to the serious medical needs of prisoners . . . .”
(Doc. 60, ¶ 71).
Allegedly, Mr. Morrison and others implemented “deliberately-indifferent
customs or policies” by establishing an “explicit or implicit agreement, plan, and
policy of delaying or denying necessary medical treatment to avoid liability for
inmate medical bills.” (Doc. 60, ¶ 19). Officers were trained to defer to ACH
personnel even in the case of a medical emergency and disciplined for contacting
outside emergency personnel. (Doc. 60, ¶ 19). Mr. Morrison and others developed
a policy by which severe withdrawal symptoms would be managed only inside the
jail, even though the defendants were aware such symptoms could only be safely
treated in a hospital. (Doc. 60, ¶ 20). Mr. Morrison knew that “ACH had a
practice of delaying or denying referrals of inmates for outside medical care . . .
that put cost control over inmate health and safety.” (Doc. 60, ¶ 25). Mr. Morrison
and others were “on notice that their plan was harmful to the health of detainees
and jailees” from complaints, deaths, and other lawsuits. (Doc. 60, ¶ 23). Mr.
Morrison and others did not take steps to investigate the circumstances of the
deaths of six Madison County Jail inmates over the course of four years. (Doc. 60,
¶ 28).
Mr. Morrison did not notify nurses or jailers that the profit motive was
removed from the ACH contract, and he did not implement changes to the policies
32

and customs incentivizing cost control over health and safety. (Doc. 60, ¶ 17.1).
The pre-amendment policies “continued to play a role in depriving detainees [of]
medical care.” (Doc. 60, ¶ 17.1).
This alleged conduct, if proven, would establish that Mr. Morrison was
aware that inmates were denied adequate medical care in an effort to control costs,
that ACH denied referrals to outside providers when necessary, that inmates
suffered serious harm as a result, and that Ms. Foster had serious medical needs
that were ignored. Therefore, Ms. Foster has stated a claim for supervisor liability
by alleging a causal connection between Mr. Morrison’s actions and the deliberate
indifference to her serious medical needs.
Mr. Morrison argues that he is entitled to qualified immunity from § 1983
supervisor liability. (Doc. 86, ¶ 7). Mr. Morrison will enjoy qualified immunity
unless Ms. Foster has pled facts showing Mr. Morrison violated a constitutional
right that was clearly established during her incarceration. See al-Kidd, 563 U.S. at
735 (citing Harlow, 457 U.S. at 818).
As the Court explained in the preceding paragraphs, Ms. Foster has pled
facts showing that Mr. Morrison violated her Fourteenth Amendment right to be
free from deliberate indifference to her serious medical needs by establishing a
causal connection between Mr. Morrison’s actions and the constitutional
deprivation. As the Court explained in section III.B.1 of this opinion, infra, Ms.
33

Foster’s right to be free from deliberate indifference to her serious medical needs
was clearly established at all times during her incarceration.

Therefore, Mr.

Morrison is not entitled to qualified immunity at this stage of the proceedings.
2. § 1983 conspiracy to violate civil rights claim against Mr. Morrison
Ms. Foster alleges that a “conspiracy existed between Madison County,
[Sheriff] Dorning, [Mr.] Morrison, ACH, Dr. Williams, and others that resulted in
the actual denial of [her] constitutional right to medical care for her serious
medical needs.” (Doc. 60, ¶ 77). She claims that the defendants “reached an
understanding” to deny her rights. (Doc. 60, ¶ 77). Mr. Morrison counters that the
factual content of the amended complaint is insufficient to state a plausible
conspiracy claim and is otherwise barred by the “intracorporate conspiracy
doctrine.” (Doc. 86, ¶¶ 15-16).
Ms. Foster may state a viable § 1983 claim for conspiracy to violate civil
rights by “showing a conspiracy existed that resulted in the actual denial of some
underlying constitutional right.” Grider v. City of Auburn, Ala., 618 F.3d 1240,
1260 (11th Cir. 2010) (citing GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359,
1370 (11th Cir.1998)). She must show that the alleged conspirators reached an
understanding to deny her rights, conspiratorial acts that impinged upon her rights,
and an actionable wrong to support the conspiracy. Id. As previously discussed,
Ms. Foster has sufficiently alleged that Mr. Morrison took actions impinging on
34

her constitutional right to be free from deliberate indifference to her serious
medical needs.

Thus, whether Ms. Foster has sufficiently alleged that Mr.

Morrison and other defendants reached an understanding to deny her rights will
determine whether Ms. Foster has stated a § 1983 claim for conspiracy. See Bailey
v. Bd. of Cnty. Comm'rs of Alachua Cnty., 956 F.2d 1112, 1122 (11th Cir. 1992)
(“[T]he linchpin for conspiracy is agreement.”).
Ms. Foster has pled a plausible claim of conspiracy. Ms. Foster alleges that
Mr. Morrison and other named defendants had an “explicit or implicit agreement,
plan, and policy of delaying or denying necessary medical treatment to avoid
liability for inmate medical bills” (Doc. 60, ¶ 19), developed a policy and practice
by which severe withdrawal symptoms would be treated only within the jail (Doc.
60, ¶ 20), knew that amending the contract with ACH would not cure the policy
elevating costs over health and consciously decided to keep deliberately indifferent
policies in place (Doc. 60, ¶¶ 17.1, 17.2), knew that ACH denied referrals to
control costs (Doc. 60, ¶¶ 18-19), and knew of the risks of the practice but
“explicitly agreed or implicitly agreed to this practice to avoid the costs associated
with hospitalization” (Doc. 60, ¶ 20). These allegations, viewed in the light most
favorable to Ms. Foster, permit the inference that an agreement was reached or an
understanding existed between Mr. Morrison and other defendants to deprive Ms.
Foster of her constitutional right to be free from deliberate indifference to her
35

serious medical needs.
The intracorporate conspiracy doctrine does not preclude Ms. Foster’s
conspiracy claim.

The intracorporate conspiracy doctrine provides that an

agreement between or among agents of the same legal entity, when the agents act
in their official capacities, is not an unlawful conspiracy. Ziglar v. Abbasi, 137 S.
Ct. 1843, 1867 (2017). The doctrine applies to public entities. Grider, 618 F.3d at
1261.

Essentially, Mr. Morrison argues that Ms. Foster has alleged an

unactionable conspiracy between agents of the same legal entity.
In fact, Ms. Foster alleges a conspiracy between three separate entities:
Madison County, Sheriff Dorning, who delegated his duties to Mr. Morrison, and
ACH and its agents. (Doc. 60, ¶ 77). Sheriff Dorning, and by extension Mr.
Morrison, is an executive officer of the State of Alabama, not Madison County.
See Ex parte Sumter Cnty., 953 So. 2d 1235, 1238 (Ala. 2006); King v. Colbert
Cnty., 620 So. 2d 623, 625 (Ala. 1993); Parker v. Amerson, 519 So. 2d 442, 443
(Ala. 1987). ACH is a private corporation contracted to provide services in the
Madison County Jail. (Doc. 60, ¶¶ 2-3). ACH is not an agent of the County, nor is
Mr. Morrison an agent of ACH.

No named entity is an agent of another.

Therefore, the intracorporate conspiracy doctrine does not bar Ms. Foster’s § 1983
conspiracy claim.

36

IV. CONCLUSION
Based on the foregoing reasons, the Court grants Madison County’s motion
to dismiss as to the civil conspiracy claim and denies the remainder of Madison
County’s motion to dismiss. The Court denies the correctional officers’ motion to
dismiss and denies Mr. Morrison’s motion to dismiss.
DONE and ORDERED this September 21, 2018.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

37