Benton v. Walker County, Alabama et al
Filing
83
MEMORANDUM OPINION AND ORDER- For the reasons stated above, Defendant Sheriff Underwoods motion for summary judgment 53 is GRANTED IN PART AND DENIED IN PART; Defendant Nicholas Harbins motion for summary judgment 55 is DENIED; Defendant Walker Countys motion for summary judgment 58 is GRANTED; and Plaintiff Bentons motion for summary judgment 61 is DENIED. Signed by Magistrate Judge John H England, III on 03/24/2020. (AKD)
FILED
2020 Mar-24 AM 10:54
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
TERRY BENTON,
Plaintiff,
v.
WALKER COUNTY, ALABAMA, et al.,
Defendants.
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Case No.: 6:17-cv-00384-JHE
MEMORANDUM OPINION AND ORDER1
Plaintiff Terry Benton brings this action for violation of his civil rights pursuant to 42
U.S.C. § 1983. (Doc. 3-3). After the undersigned ruled on a motion for partial dismissal, the
following claims remain: (1) a § 1983 Failure to Protect Claim against Officer Nicholas Harbin in
his individual capacity; (2) § 1983 Failure to Protect Claim Against Sheriff Underwood in his
individual capacity; (3) § 1983 Failure to Provide Adequate Medical Care Claim against Sheriff
Underwood in his individual capacity; (4) § 1983 Failure to Fund Claim against Walker County;
and (5) a state law claim for negligence, wantonness and/or recklessness against Officer Harbin.
(Doc. 15).
Discovery has closed (doc. 47), and the parties have filed multiple motions for
summary judgment (docs. 53, 55, 58, 61). Those motions have been fully briefed and are ripe for
review.
For the reasons explained below, Defendant Sheriff Underwood’s motion for summary
judgment (doc. 53) is GRANTED IN PART AND DENIED IN PART; Defendant Nicholas
Harbin’s motion for summary judgment (doc. 55) is DENIED; Defendant Walker County’s
1
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 11).
1
motion for summary judgment (doc. 58) is GRANTED; and Plaintiff Benton’s motion for
summary judgment (doc. 61) is DENIED.
I. Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat
2
a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)
(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
The applicable Rule 56 standard is not affected by the filing of cross-motions for summary
judgment. See Gerling Global Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th
Cir. 2001).
Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary
judgment will not, in themselves, warrant the court in granting summary judgment unless one of
the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.”
United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted).
II. Summary Judgment Facts
Plaintiff Terry Benton (“Benton”) was arrested on July 16, 2015, for failure to register as
a sex offender, booked into the Walker County Jail, and assigned to the “B-Dorm.” (Doc. 64-1 at
50-56). B-Dorm is a general population dorm that houses pretrial and convicted sex offenders.
(Doc. 64-1 at 33 (122:3-8); doc. 62-2 at 23-24 (85:9-86:18); doc. 62-3 at 28 (103:17-105:21)). The
individual cells in B-Dorm do not lock, and inmates can move freely throughout the dorm. (Id.).
Upon arrival, Benton was not assigned a cell, but slept on a mat on the floor in the day room for
two weeks until he was “invited” to share a cell. (Doc. 64-1 at 5 (10:19-13:6)).
A. Conditions at Walker County Jail
Benton testifies that inmates in the jail were known to fashion “homemade” weapons by
chipping away at the concrete walls and that he observed fights in the jail that resulted in serious
injury. (Doc. 64-1 at 7-8, 32 (21:25-22:21, 120:10-19)). Although Sheriff Underwood was aware
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that inmates fought routinely, there was no procedure for keeping track of the number of inmate
fights or their severity. (Doc. 62-2 at 17-18 (59:7-63:10)). Sheriff Underwood was unaware of
whether jail staff disciplined inmates for fighting. (Id. at 30 (112:12-113:16)).
Prior to Sheriff Underwood taking office, in 1995,2 Walker County entered into a federal
consent decree, requiring the jail to meet certain minimal operational standards. (Doc. 62-3 at 7,
9 (21:1-5, 26:10-28:14)); see Terrell v. Herring, CV 93-B-2690-J. Finding compliance, the Court
terminated the Consent Order in 2006. See Terrell v. Herring, CV 93-B-2690-J at doc. 83.
Under the Consent Decree, to be minimally staffed, there was supposed to be at least
fourteen officers assigned to each shift to ensure the safe operation of the jail. (Doc. 62-3 at 13-14
(44:2-15, 46:12-48:21)). During the relevant time period, it was the Sheriff’s practice to have five
to seven officers on shift. (Id.). When there were five officers on duty, three officers were locked
in stationary positions – central control, pod control, and booking, leaving only one officer to
attend to the mail dorms and one officer for the female dorms. (Id.).
Sheriff Underwood testified that he has never been able to fully staff the jail and that
inadequate staffing compromises the ability of the officers to respond to problems and effectively
monitor inmates, which could create a dangerous environment where fights are more likely to
occur. (Doc. 62-2 at 16-17 (56:24-59:6)). Sheriff Underwood further testified that he cannot hire
more staff because the Walker County Commission would not approve his requests to do so. (Id.
at 20-21 (73:5-74:17)).
In 2014, following reports that inmates had escaped, by going to the post-office across the
street to pick up contraband and returning without detection, the Jail Administrator Trent
2
Although the parties provide 1993 as the year the consent decree was adopted, court
records indicate the consent order was adopted on March 16, 1995. See Terrell v. Herring, CV
93-B-2690-J at docs. 50 & 83.
4
McCluskey gave an interview to a news reporter and stated that the jail was ill-equipped with
inferior door locks; the perimeter fence was held together with clothes hangers and had requested
thirty-three additional security cameras and more lighting. (Doc. 62-3 at 11-12 (35:17-38:21)).
McCluskey informed Sheriff Underwood and the County Commission that the video surveillance
system was “very inadequate” and needed to be upgraded with at least thirty-three additional
cameras to ensure the safety of inmates and the correctional officers. (Id. at 22-24 (80:1-86:1)).
McCluskey also testified that if an inmate assault occurred in one of these thirty-three blind spots,
the guards would not learn about it until afterwards. (Id.).
On August 5, 2015, Sheriff Underwood sent the County Commission a letter explaining
the jail was in need of repair and requesting an additional $735,000.00 to make repairs and
improvements to the jail, based on a recommendation from an outside consulting company. (Doc.
62-2 at 7 (19:19-20:1); doc. 63-6 at 2-20). Sheriff Underwood did not receive a response from
the County Commission, who, instead, cut his budget four out of five consecutive years by four to
five percent each year. (Doc. 62-2 at 15 (51:6-52:10)).
The capacity at Walker County Jail is 278 inmates. (Doc. 62-2 at 16 (54:15-55:8)). On
August 17, 2015, the jail was near capacity with 273 inmates. (Doc. 63-3 at 2).
B. Harbin’s Employment
Former Sheriff Tirey hired Nicholas Harbin as a correctional officer in 2006. (Doc. 63-1
at 5 (11:7-19)). Prior to working at Walker County Jail, Harbin had no experience as a correctional
officer and received two weeks training at Jail School in Selma, Alabama. (Id.). Harbin does not
establish policy or procedure for the jail. (Id. at 6 (16:19-24)). Sheriff Underwood was the chief
policy maker for the jail; he was responsible for making sure the jail had written policies and
procedures, that the jail staff was trained, and that the policies and procedures were being followed
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and enforced. (Doc. 62-2 at 8-9 (23:9-26:2)).
C. The August 17, 2015 Lunch Tray Incident and Punishment
On August 17, 2015, Harbin was working the day shift as a “rover.” (Doc. 63-1 at 11-12
(37:22-38:25)). Harbin’s duties that day included feeding the inmates. (Id.). Harbin began feeding
inmates lunch at 10:28 AM. (Doc. 63-1 at 31). Harbin obtained a head count, and Benton got in
line to receive his tray of food. (Doc. 64-1 at 8 (23:4-24:13)). Benton placed his food tray under
the table, got back in the food line, and got a second tray of food from the jail trustee helping
Harbin. (Id.). Although the practice is one food tray per inmate, there is no official rule as to how
many food trays an inmate can have. (Doc. 63-2 at 18 (66:15-67:19)). And, it was common for
inmates to try to trick the guards into receiving an extra tray. (Id. at 12 (41:3-13)). In fact, Harbin
had been counseled by his supervisor regarding the proper procedure for dispensing food trays.
(Id. at 11 (39:39:11-40:16)). In the past, when he had run out of food trays, presumably because
an inmate had taken more than one, Harbin had not wanted to give the remaining inmates any food.
(Id.). He was counseled that any inmate taking more than one tray was his (Harbin’s) fault, and
he had to feed all the inmates. (Id.).
On August 17, 2015, when Harbin realized an extra tray had been handed out, he entered
the dorm, shut the door, and demanded to know who took it. (Doc. 64-1 at 8 (24:17-25:5)). When
no one answered, Harbin radioed the officer in central command (i.e., the “cube officer”) and
instructed him to turn off B-Dorm’s phones, kiosk, and to allow no store or visitation privileges,
and then he left the dorm. (Id. at 9 (26:16-27:2)). Harbin testified that he knew by punishing the
entire dorm, it would make the other inmates angry and ferret-out the person who caused the
privileges to be revoked. (Doc. 63-1 at 14 (48:9-50:1)). Harbin also stated that he believed group
punishment was an effective tool for controlling inmate behavior because the inmates have their
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own way of taking care of the inmate who caused their privileges to be revoked. (Id.). McCluskey
testified that it was Sheriff Underwood’s routine practice to allow group punishment by revoking
privileges for an entire dorm without due process. (Doc. 62-3 at 41-43 (157:11-163:11)). Sheriff
Underwood was also aware that use of such group punishment without due process could create
dangerous conditions for the individual who caused the loss of privileges because inmates have
their own system of justice. (Doc. 62-2 at 25 (91:2-93:5)).
B-Dorm inmates discovered that the phones and kiosk had been turned off and began to
threaten Benton that they would beat and kill him for having lost their privileges. (Doc. 64-1 at 9,
25 (27:3-28:2, 95:5-25)). Afraid for his safety, Benton push the emergency call button and the
cube officer opened the locks to let Benton out of the dorm. (Id.). As Benton exited the dorm,
Harbin approached him in the corridor and saw the other inmates in the dorm beating on the glass,
slamming their cell doors, and yelling “get that bitch out of here; we’re going to beat that bitch’s
ass.” (Id. (28:4-29:18,95:5-15)). Benton asked Harbin to take him into protective custody. (Id.).
Appearing to know the answer, Harbin asked Benton what he did to “piss off” the other inmates,
and Benton admitted to taking the extra food tray. (Id. at 9-10, 25 (29:19-30:3, 95:17-21)). Benton
told Harbin the other inmates wanted to kill him because Harbin had taken away their privileges.
(Id.). Harbin told Benton that it would not have been such a big deal if he had spoken up sooner,
and they would not be having a problem right now. (Doc. 63-1 at 18 (65:9-21)).
Harbin moved Benton to protective custody in M-Dorm for his safety. (Doc. 64-1 at 10
(30:5-20)). A supervisor told Harbin that he would have to complete paperwork for Benton to
remain in protective custody. (Doc. 63-1. at 15 (50:2-51:12)). Rather than complete a report,
Harbin decided to return Benton to B-Dorm. (Id.). About an hour after having been placed in
protective custody, Harbin returned to Benton’s cell and told Benton to get his stuff because he
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was taking him back to B-Dorm. (Doc. 64-1 at 10 (31:12-32:16); doc. 63-1 at 19 (66:4-12)).
Benton told Harbin he couldn’t go back to B-Dorm because he was in danger of being attacked.
(Doc. 64-1 at 10 (31:12-32:16)). Harbin responded that “[Benton] tried the wrong damn officer
on the wrong fucking day” and that he was “not one of these rookies that just started working here.
. . . It don’t feel good now does it.” (Doc. 64-1 at 10 (32:17-33:3); doc. 63-1 at 19 (13:67:21)).
D. The August 17, 2015 Assault and Response
Within five minutes of having been returned to B-Dorm, Benton was attacked by five other
inmates, beaten, and struck in the face with a chunk of concrete wall. (Doc. 64-1 at 11, 32 (34:135:21, 120:2-121:2), doc. 63-1 at 31). According to Benton, upon returning to B-Dorm, another
inmate named William Scruggs asked who he told on to get back in there. (Doc. 64-1 at 11 (34:125)). Benton told Scruggs he didn’t tell on anyone, and Scruggs told him that he didn’t want
Benton in B-Dorm anyway. (Id.). According to Benton, Scruggs and other inmates started
swinging at him and kicking him. (Id. (34:21-35:14)).
Harbin called a “code blue” (inmates fighting) over the radio and took the injured Benton
to booking for medical observation. (Doc. 63-1 at 17, 31 (60:19-61:5)). Benton received injuries
to the nose and mouth and was “bleeding pretty bad.” (Doc. 64-1 at 11 (36:1-37:6). Officers took
Benton to a shower to wash off, clothing and all, then back to the booking room where he laid on
the concrete floor. (Id.). Officers gave Benton two tampons (to stop the bleeding in his nose).
(Id.). With pain in his ribs, nose, and tooth, and with his eyes swollen shut, Benton spent the night
in the booking room. (Id. (37:8-25).
A representative of the jail medical staff, jail nurse Roger Childers, saw Benton the next
morning. (Doc. 64-1 at 11 (37:8-25)). Childers told Benton he couldn’t do much for a broken
nose and offered Advil. (Id.). Equipment was brought to the jail to perform x-rays on Benton’s
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face, and the radiologist determined there were no broken bones. (Id. at 12 (38:6-13, 22)).
E. Walker County Jail Medical Care
Childers is a registered nurse and principal owner of Preemptive Forensic Health Solutions,
LLC (“PFHS”), the entity that contracts with Walker County Commission to triage inmates’ health
care needs and provide basic medical services. (Doc. 63-4 at 7; doc. 63-5 at 2-7). PFHS controlled
the triage process and thus could restrict inmates’ access to medical care and reduce the associated
cost to the County Commission. (Doc. 63-4 at 7). Walker County Commission did not appoint a
health care authority to create health care policy and procedures for the jail. (Doc. 63-4 at 7).
Sheriff Underwood delegated decisions pertaining to appropriate health care for inmates to nurse
Childers, who determined whether a nurse practitioner or medical doctor needed to be brought in,
who would be hired and paid by Childers’ company on a case by case basis. (Doc. 62-3 at 19
(68:5-69:8); doc. 62-2 at 16 (55:20-56:7); doc. 63-4 at 7).
The jail did not keep medical records, and there was no physician oversight of the medical
care provided to inmates at the Walker County Jail. (Doc. 63-4 at 7-8). There was no medical
authority other than PHFS to supervise, inspect, and verify that appropriate care was being
provided. (Id.).
F. Additional Medical Care
On August 21, 2015, Benton requested to see a doctor about his continued complaints
regarding his injured nose and ribs hurting. (Doc. 64-1 at 12 (39:4-19)). Thus, four days after the
assault, Benton was taken to Walker Baptist Hospital and examined by Thomas Deitz, a nurse
practitioner, who noted Benton was in moderate pain and diagnosed a facial injury that consisted
of abrasions to his face, bruising, and a torn nasal septum. (Doc. 63-7 at 10-12 (30:1-41:23), 1314 (45:19-47:24)). The overlaying layers of tissue of Benton’s nasal septum were compromised
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and the cartilage was disrupted. (Id.). Benton was prescribed Afrin for his nosebleeds, Naprosyn
Sodium for his pain, and Bactroban and Bactrim (antibiotics) for his open wounds. (Id. at 44).
The Bactrim was prescribed as a preventative measure because Benton was at an increased risk of
infection, such as MRSA,3 since he was in prison. (Id. at 13 (43:13-24)). He was directed to
follow-up with an ear, nose, and throat specialist within three days. (Id. at 14 (47:9-16); doc. 637 at 39).
When Benton returned to the jail, his hospital records and prescriptions were given to
officers, who gave them to Childers. (Doc. 64-1 at 33-34 (125:19-127:2); doc. 62-3 at 21 (74:1775:3)). Walker County Jail’s policy was for Childers’ and his staff to fill and dispense prescription
medication to inmates. (Doc. 62-2 at 31 (116:25-117:14); doc. 62-3 at 18, 21-22 (63:3-13, 74:1978:8)). The Sheriff was responsible for ensuring Childers and his staff complied with these policies
pertaining to the provision of medical care and prescription medication; yet, there was no policy
or practice in place to ensure inmates received medication prescribed by their physicians. (Id.).
When inmates complained about not receiving medical care, which they did regularly, Sheriff
Underwood would forward their complaints to Childers. (Doc. 62-2 at 32-33 (120:21-122:10);
62-3 at 17 (59:23-61:23)). When Benton did not receive his prescribed medication or his followup visit with an ENT, on September 2, 2015, Benton filed a medical request with jail staff. (Doc.
62-2 at 32-34 (121:21-126:12), 54-56). As his wounds continued to ooze, his face became swollen
and his nose continued to bleed, there is no indication Benton received anything other than
Naprosyn for his pain. (Id.; doc. 64-1 at 13 (44:22-46:7)).
On September 15, 2015, Benton was released from the Walker County Jail on his own
recognizance and transferred to the Fayette County Jail. (Doc. 53-1 at 13 (45:12-21)). At no time
3
MRSA is methicillin-resistant Staphylococcus aureus, an antibiotic-resistant bacterium.
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during his confinement at Walker County Jail in July, August, and September 2015, did Benton
communicate with Sheriff Underwood. (Id. at 19-20 (68:3-7, 69:20-25, 70:1-5)).
On September 22, 2015, Walker County paid Pegasus Emergency Group of Troy,
Alabama, $ 1,729.00, for the care provided to Benton. (Doc. 59-1 at ¶ 7 & p.9). Any direct
payment to Walker Baptist Hospital or the x-ray provider, MobileXUSA, would have been
regularly billed to Walker County with services provided to other inmates included on one invoice.
(Id. at ¶ 8).
After being seen by the Fayette County Jail physician Dr. Magourik on October 9, 2015,
on October 10, 2015, the Fayette County Sheriff’s Office took Benton to the emergency room at
DCH-Fayette, complaining of facial swelling for the previous three days. He was diagnosed with
cellulitis and prescribed Bactoban, Bactrim, and Ibuprofen; Benton also received a Ketrolac shot
to treat the infection that had developed in his face. (Doc. 63-9 at 2-15). On October 12, 2015,
Benton’s condition appeared worse. He was again seen by Dr. Magouirk, who referred him to
DCH, where he was admitted for antibiotic treatment. (Doc. 64-1 at 14 (46:9-47:24)). Benton
remained in the hospital for three days, where he was treated for facial cellulitis and an abscess to
the left side of his face and lips, which grew MRSA (Methicilli-resistant Staphylococcus aureus).
(Doc. 63-9 at 20-47, 49). He was prescribed IV antibiotics, oral antibiotics, and morphine, then
discharged on October 15, 2015, when his symptoms resolved. (Id.).
Because Benton had filed criminal assault charges against the inmates who attacked him,
on November 17, 2015, Benton was transported to the Walker County Jail. (Doc. 76-1 at 20
(70:18-72:9)). At some point between November 21, 2015, Benton filed a grievance with Sheriff
Underwood concerning the August 17, 2015 attack and lack of medical care he received
afterwards. (Doc. 56-3 at 39-40 (144:11-147:3)). On December 23, 2015, Sheriff Underwood
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notified Harbin that he intended to suspend Harbin for five days without pay for four incidents,
including the one included in Benton’s grievance. (Doc. 62-2 at 27 (98:13-22)). Harbin did not
dispute he committed the wrongs, agreed to the suspension, and admitted he had an “explosive
temper.” (Doc. 62-3 at 39-40 (148:6-150:21), 80-83).
G. Walker County Commission
The fiscal year of the Walker County Commission runs from October 1 through September
30 of the immediately following year, meaning the 2014-2015 fiscal year ran from October 1, 2014
through September 30, 2015. (Doc. 59-1 at ¶ 3). Benton’s assault occurred on August 17, 2015,
during the 2014-2015 Walker County fiscal year. During fiscal year 2014-2015, Walker County
paid Preemptive Forensic Health Solutions (“PFHS”) for onsite medical care and treatment of
inmates at the Walker County Jail, and for those services, Walker County paid PFHS $ 15,120.00
per month. (Id. at ¶ 5). For fiscal year 2014-2015, Walker County paid a total of $ 544,513.73,
for inmate health care and medications. (Id. at ¶ 5). This total includes not only payments for
PFHS, but also for any care provided to an inmate that the inmate did not have funds or resources
to pay for, which specifically includes care and treatment at emergency rooms, hospitals, and
physician’s offices, having prescription medications filled, and having x-rays performed, whether
at the jail or at an offsite facility or office. (Id.). Such medical examinations, care, or treatment,
or any medication or x-ray did not require any preapproval by Walker County (or its Commission).
(Id. at ¶ 9). Except for payments scheduled by contract, Walker County was billed after the service
or medication was provided. (Id.).
The Sheriff, jail administrator, and jail staff coordinated with the onsite medical provider
for any offsite treatment that was needed for an inmate. (Doc. 56-3 at 48 (180:3-21)). Similarly,
any follow-up or further medical care or treatment at an offsite location was coordinated with and
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handled by jail staff. (Id. at 48-49 (180:22-181:13)).
III. Analysis
A. Defendant Walker County
Benton asserts one claim against Walker County, alleging that the County failed to
adequately fund inmate medical care at the Walker County Jail.
The Supreme Court has
recognized that inmates must rely on prison authorities to treat their medical needs. Harris v.
Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991) (quoting Estelle v. Gamble, 429 U.S. 97, 103
(1976)). Thus, federal and state governments are constitutionally required to provide minimally
adequate medical care to those whom are incarcerated. Id. Lack of funds cannot justify an
unconstitutional lack of competent medical care and treatment. Ancata v. Prison Health Servs.,
Inc., 769 F.2d 700, 705 (11th Cir. 1985).
However, Alabama counties have only the powers delegated to them by the legislature.
Shaw v. Coosa Cnty. Comm., 330 F. Supp. 2d 1285, 1288 (M.D. Ala. 2004) (citing Turquitt v.
Jefferson Cnty., Ala., 137 F.3d 1285, 1289 (11th Cir. 1998)). Alabama counties have no role in
operating, administering, or overseeing jails. Pettus v. Hill, Case No. CV 05-B-2496-NE, 2008
WL 11425363, at *7-8 (N.D. Ala. Mar. 31, 2008) (citing ALA. CODE § 11-14-10). Rather, in
Alabama, the sheriff “has legal custody and charge of the jail in his county and all prisoners
committed thereto. . . . “ ALA. CODE § 14-6-1 (1975). Sheriffs have full responsibility for daily
management of the jails, including inmate supervision, and they are not subject to county oversight
in their performance of this responsibility. Turquitt, 137 F.3d at 1289. The Alabama Department
of Corrections, a state agency, oversees the county jails and has the authority to regulate and
inspect them to aid in securing just, humane, and economic management. Id.
Alabama counties do possess some duties with respect to county jails; however, none of
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these duties “relates to the daily operation of the jails or to the supervision of inmates.” Turquitt,
137 F.3d at 1289. “The duties of the counties with respect to the jails are limited to funding the
operation of the jail and providing facilities to house the jail.” Id. Specifically, Alabama Code §
14-6-19 provides, in pertinent part, that “[t]he sheriff of a county shall provide to prisoners at the
expense of the county, all of the following . . . [n]ecessary medicine and medical attention to those
prisoners who are sick or injured, when they are unable to provide them for themselves.”
(emphasis added).
Thus, Alabama law places a duty on the county to fund the medical care
described in the statute. See Shaw v. Coosa Cnty. Commission, 330 F. Supp. 2d 1285, 1288-89
(N.D. Ala. 2004).
Benton’s sole claim against Walker County is a § 1983 claim for failure to fund, alleging
that Walker County “caused or contributed” to the medical customs and policies at Walker County
Jail “by not providing adequate funds for medical treatment for the prisoners in its custody and in
other ways, by encouraging a culture where saving money was encouraged over the protections of
inmates’ constitutional rights.” (Doc. 3-3 at 22, ¶ 85). Benton has not shown that Walker County
(nor its County Commission) failed to adequately fund inmate medical care and treatment in Fiscal
Year 2014-2015, specifically for August 2015. The undisputed evidence demonstrates Walker
County paid for onsite medical care by PFHS, paid for inmates’ x-rays, paid for inmates’ offsite
medical care and treatment at the hospital and physicians’ offices, and paid for prescription
medications – totaling $ 544,513.74 that year. (Doc. 59-1 at ¶ 5).
It appears Benton takes issue with the medical care he received from the onsite provider,
but there is no evidence that any medical evaluation, treatment, care, or prescription medication
was “restricted” or not provided due to lack of funding from Walker County. Decisions regarding
Benton’s medical care were made by jail staff, and Walker County did not have to approve any
14
such medical care or medications. Furthermore, while Walker County made scheduled payments
to PFHS, Walker County could have been billed for additional medical services and medication
after they were provided. There is no evidence to support Benton’s claim against Walker County
for failure to fund. Walker County’s motion for summary judgment (doc. 58) will be GRANTED,
and the single failure to fund claim against Walker County will be DISMISSED.4
B. Defendant Officer Harbin
Benton assertions a § 1983 claim for failure to protect against Office Harbin, as well as
state law claims for negligence, wantonness, and/or recklessness. (See doc. 15).
1. Failure to Protect
Failure to protect claims are analyzed under the Eighth Amendment deliberate indifference
standard. Farmer v. Brennan, 511 U.S. 825, 823-33 (1994). Technically, claims brought by a
pretrial detainee, “are considered under the Due Process Clause of the Fourteenth Amendment,
which prohibits the imposition of punishment on those who have not yet been convicted of a crime,
whereas the Eighth Amendment’s prohibition against cruel and unusual punishment governs
claims of convicted inmates. . . .” Smith v. Terry, 2:13-cv-216-WHA, 2016 WL 4942066, at *2
(M.D. Ala. Aug. 15, 2016) (citations and internal quotations omitted). “As to these claims, the
Eleventh Circuit has long held that the applicable standard is the same, so decisional law involving
prison inmates applies equally to cases involving arrestees or pretrial detainees.” Id. The standard
for deliberate indifference requires the plaintiff to produce sufficient evidence that (1) the
defendant knew of and disregarded “an excessive risk to inmate health or safety;” (2) the defendant
was “aware of facts from which the inference could be drawn that a substantial risk of serious harm
Accordingly, Benton’s motion for summary judgment (doc. 61) is due to be DENIED
as to this claim against Walker County.
4
15
exist[ed];” and (3) the defendant must also draw that inference.” Farmer, 511 U.S. at 837. The
condition must be “extreme” such that there is a “strong likelihood of injury, rather than a mere
possibility, before an official’s failure to act can constitute deliberate indifference.” Estate of
Owens v. GEO Group, Inc., 660 Fed. Appx. 763, 767 (11th Cir. 2016). “[T]he deliberate
indifference standard—and the subjective awareness required by it—is far more onerous than
normal tort-based standards of conduct sounding in negligence: ‘Merely negligent failure to
protect an inmate from attack does not justify liability under [§] 1983.’” Goodman v. Kimbrough,
718 F.3d 1325, 1332 (11th Cir. 2013) (quoting Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.
1990)).
In support of his motion for summary judgment, Harbin argues Benton cannot prove his
failure to protect claim because Harbin was not aware of a substantial risk of serious harm existed.
(Doc. 56 at 9-15). First, Harbin argues the assault occurred not because of the loss of privileges,
but because Benton was an informant, which he didn’t know anything about. (Doc. 56 at 10).
Next, Harbin argues that, although Benton was at a substantial risk of serious harm when privileges
were revoked, that risk was abated when privileges were restored, and he could not have
anticipated Benton was still at risk. (Id. at 13).
Sufficient evidence has been presented to create a genuine issue as to whether Officer
Harbin was subjectively aware Benton was at a serious risk of substantial harm when he returned
him to B-Dorm after revoking all of B-Dorm’s privileges. The question of “[w]hether a prison
official had the requisite knowledge of a substantial risk is a question of fact,” and such knowledge
may be inferred based on the obviousness of the risk.” Farmer, 511 U.S. at 842, 844-45; Bugge
v. Roberts, 430 Fed. Appx. 753, 758 (11th Cir. 2011). After Harbin instructed the cube officer to
turn off the phones, B-Dorm inmates discovered that the phones and kiosk had been turned off and
16
begun to threaten Benton that they would beat and kill him for having lost their privileges. (Doc.
64-1 at 9, 25 (27:3-28:2, 95:5-25)). This was not some unsurprising turn of events. Harbin testified
that he knew by punishing the entire dorm, it would make the other inmates angry and ferret-out
the person who caused the privileges to be revoked. (Doc. 63-1 at 14 (48:9-50:1)). Harbin also
stated that he believed group punishment was an effective tool for controlling inmate behavior
because the inmates have their own way of taking care of the inmate who caused their privileges
to be revoked. (Id.).
Although Harbin moved Benton into protective custody for about an hour, the evidence
demonstrates that a supervisor told Harbin that he would have to complete paperwork for Benton
to remain in protective custody. (Doc. 63-1. at 15 (50:2-51:12)). Rather than complete a report,
Harbin decided to return Benton to B-Dorm. (Id.). Benton told Harbin he couldn’t go back to BDorm because he was in danger of being attacked. (Doc. 64-1 at 10 (31:12-32:16)). Harbin
responded that “[Benton] tried the wrong damn officer on the wrong fucking day” and that he was
“not one of these rookies that just started working here. . . . It don’t feel good now does it.” (Doc.
64-1 at 10 (32:17-33:3); doc. 63-1 at 19 (13:67:21)). This evidence supports Benton’s claim that
Harbin remained aware of the specific, continued threat against his safety and returned Benton to
B-Dorm where the other inmates were waiting to enact their revenge.
2. Qualified Immunity
The doctrine of qualified immunity protects government officers when they are sued in
their individual capacities from liability for civil damages so long as their conduct “does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). An officer will be entitled to qualified immunity if his actions were
17
objectively reasonable, that is if an objectively reasonable officer in the same situation could have
believed that his actions were lawful based on the law clearly established at the time. Id. (citing
Anderson v. Creighton, 483 U.S. 635, 638-41 (1987)). “The purpose of this immunity is to allow
government officials to carry out their discretionary duties without the fear of personal liability or
harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly
violating the federal law.” Id. (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(internal quotation marks and citations omitted).
There is no dispute that Officer Harbin, a public official, was acting within the scope of his
discretionary authority at the time he allegedly violated Benton’s constitutional rights. The parties
disagree as to whether Harbin’s actions “violated clearly established law.” Qualified immunity
will not apply if Harbin’s conduct violated such clearly established law, meaning “a reasonable
public officer would not have believed his actions to be lawful in light of law that was clearly
established at the time of the purposed violation. Anderson v. Creighton, 438 U.S. 635, 641 (1987);
Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996).
Relevant case law establishes that, beyond restraining prison officials from inflicting
“cruel and unusual punishment,” the Constitution imposes duties on these officials, who must “take
reasonable measures to guarantee the safety of the inmates.” Bowen v. Warden, Baldwin State
Prison, 826 F.2d 1312, 1319-20 (11th Cir. 2016) (quoting Farmer, 511 U.S. 825, 832). The
Supreme Court has made clear that “prison officials have a duty . . . to protect prisoners from
violence at the hands of other prisoners.” Id. at 833. Here, the evidence shows that, although
Harbin briefly removed Benton from B-Dorm to protective custody, he subsequently returned him
to B-Dorm instead of filling out paperwork to transfer him to protective custody. (Doc. 63-1. at
15 (50:2-51:12)). Harbin’s argument that any risk or threat had abated is belied by the record. To
18
the contrary, Harbin’s testimony shows that he returned Benton to B-Dorm knowing the inmates
would handle the problem their own way. Harbin is not entitled to qualified immunity on Benton’s
failure to protect claim because Benton’s rights were clearly established at the time of the violation.
3. Immunity as to State Law Claims Against Harbin
Harbin contends he is shielded from liability as to Benton’s state law claims under several
different theories, including sovereign immunity pursuant to Article I, § 14 of the Alabama
Constitution; the Alabama Jailer’s Act as codified in Alabama Code §§ 36-22-3(b) and 14-6-1; as
well as State Agent and Discretionary Function Immunity. (Doc. 56 at 21-26).
a. Sovereign Immunity
The Alabama Constitution provides for sovereign immunity in Article I, § 14, which states
“the State of Alabama shall never be made a defendant in any court of law or equity.” Sovereign
immunity extends to Alabama sheriffs “when they are executing their law enforcement duties.”
McMillian v. Monroe Cnty, Ala., 520 U.S. 781, 793 (1997). Deputy sheriffs are also immune to
suit to the same extent as a sheriff because “the deputy sheriff is the alter ego of the sheriff.”
Hereford v. Jefferson Cnty., 586 So. 2d 209, 210 (Ala. 1991). However, jailers working for a
sheriff’s office “cannot properly be viewed in legal contemplation as an extension of the sheriff or
as one officer with the sheriff.” Ex parte Shelley, 53 So. 3d 887, 898 (Ala. 2009). Thus, the
Alabama Constitution does not provide immunity from suits against jailers such as Officer Harbin
in their individual capacities for money damages. See id.; see also Young v. Myhrer, 243 F. Supp.
3d 1243, 1252-53 (N.D. Ala. 2017). Officer Harbin is not entitled to the sovereign immunity
provided in Article I, § 14 of the Alabama Constitution.
b. The Alabama Jailer Liability Protection Act
In June 2011, the Alabama Legislature enacted the Jailer Liability Protection Act, which
19
amended Alabama Code §§ 14-6-1 and 36-22-3 to provide immunity for jail personnel. See Young,
243 F. Supp. 3d at 1253. Alabama Code § 14-6-1 now reads as follows:
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 added). The related statutory counterpart provides as follows:
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 she is acting within the line and scope of his
or her duties and is acting in compliance with the law.
ALA. CODE § 36-22-3(b). (emphasis added).
Whether Harbin is entitled to such protection from liability depends on if he was “acting
within the line and scope of his . . . duties” and whether he was “acting in compliance with the
law.” See id. While there does not appear to be direct guidance from the Alabama Supreme Court
or the Eleventh Circuit on the meaning of this language, several district courts have addressed this
issue, and the courts agree that the language must mean more than just a restatement of the jailer
act’s first prong. See Young, 243 F. Supp. 3d at 1255. Otherwise, the phrase would be superfluous.
Specifically, “acting within the line and scope of one’s duty is not enough to guarantee immunity,
as immunity is also conditioned on ‘acting in compliance with the law.’” Hobbs v. Powell, 138 F.
Supp. 3d 1328, 1337 (N.D. Ala. 2015).
Harbin cannot satisfy the second prong of the Alabama Jailer Liability Protection Act, that
20
he was “acting in compliance with the law.” There is sufficient evidence to create a genuine issue
of material fact as to Benton’s failure to protect claim (as explained above) as well as his state law
claims.
c. State Agent Immunity
Harbin also argues he is entitled to state agent immunity as outlined in Ex parte Cranman.
792 So. 2d 392, 405 (Ala. 2000). (Doc. 56 at 23-26). In Cranman, the Alabama Supreme Court
restated the rule governing State agent immunity as follows:
A State agent shall be immune from civil liability in his or her personal capacity
when the conduct made the basis of the claim against the agent is based upon the
agent's
(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a department or
agency of government, including, but not limited to, examples such as:
(a) making administrative adjudications;
(b) allocating resources;
(c) negotiating contracts;
(d) hiring, firing, transferring, assigning, or supervising personnel;
or
(3) discharging duties imposed on a department or agency by statute, rule,
or regulation, insofar as the statute, rule, or regulation prescribes the manner
for performing the duties and the State agent performs the duties in that
manner; or
(4) exercising judgment in the enforcement of the criminal laws of the State,
including, but not limited to, law-enforcement officers' arresting or
attempting to arrest persons; or
(5) exercising judgment in the discharge of duties imposed by statute, rule,
or regulation in releasing prisoners, counseling or releasing persons of
unsound mind, or educating students.
Notwithstanding anything to the contrary in the foregoing statement of the rule, a
State agent shall not be immune from civil liability in his or her personal capacity
(1) when the Constitution or laws of the United States, or the Constitution
of this State, or laws, rules, or regulations of this State enacted or
promulgated for the purpose of regulating the activities of a governmental
agency require otherwise; or
(2) when the State agent acts willfully, maliciously, fraudulently, in bad
21
faith, beyond his or her authority, or under a mistaken interpretation of the
law.
792 So. 2d at 405. When a party raises the state agent immunity defense, there is a burdenshifting process that must take place. Ex parte Estate of Reynold, 946 So. 2d 450, 452 (Ala. 2006)
(citing Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)).
To claim state agent
immunity, a State agent must bear the burden of demonstrating that the plaintiff’s claim arising
from a function that would entitle the State agent to immunity. Id. (citing Giambrone, 874 So. 2d
at 1052). If the State agent makes such a showing, the burden then shifts to the plaintiff to show
that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority.
Id. (citing Giambrone, 874 So. 2d at 1052). “A State agent acts beyond authority and is therefore
not immune when he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations,
such as those stated on a checklist.’” Id. (quoting Giambrone, 874 So.2d at 1052).
Harbin contends he is entitled to State agent immunity because he was exercising his
judgment in the administration of the jail when Benton was injured. (Doc. 79 at 12). Harbin has
carried his burden to show that Benton’s claim arose from a function that would entitle him to
State agent immunity. Harbin was exercising his judgment in the administration of the jail when
he decided to institute group punishment and then remove and return Benton. See Ex parte Dixon,
55 So. 3d 1171, 1179-80 (Ala. 2010). Thus, the burden shifts to Benton to prevent State agent
immunity from shielding Harbin from liability. As outline above, there is evidence that Harbin
acted either “willfully, maliciously, fraudulently, or in bad faith,” when he returned Benton to BDorm. There is evidence that shows Harbin knew group punishment would make the inmates turn
on each other. The evidence further shows that, although Harbin removed Benton from what was
becoming a violent situation, Harbin returned Benton to B-Dorm when confronted with having to
fill out paperwork. Furthermore, Harbin knew that the threat to Benton’s safety remained, as
22
Benton told Harbin he couldn’t go back to B-Dorm because he was in danger of being attacked,
(doc. 64-1 at 10 (31:12-32:16)), and Harbin responded that “[Benton] tried the wrong damn officer
on the wrong fucking day” and that he was “not one of these rookies that just started working here.
. . . It don’t feel good now does it.” (Doc. 64-1 at 10 (32:17-33:3); doc. 63-1 at 19 (13:67:21)).
There is sufficient evidence to show Harbin acted willfully and maliciously to prevent State agent
immunity from protecting him from liability.
For these reasons, Harbin’s motion for summary judgment (doc. 55) is DENIED. The
failure to protect and state law claims against Harbin will go forward.5
C. Defendant Sheriff Underwood
There are two remaining claims against Sheriff Underwood in his individual capacity: a
claim for failure to protect and a claim for failure to provide adequate medical care. (See doc. 15).
1. Failure to Protect6
Failure to protect claims are analyzed under the Eighth Amendment deliberate indifference
standard. Farmer v. Brennan, 511 U.S. 825, 823-33 (1994). Technically, claims brought by a
pretrial detainee, “are considered under the Due Process Clause of the Fourteenth Amendment,
which prohibits the imposition of punishment on those who have not yet been convicted of a crime,
whereas the Eighth Amendment’s prohibition against cruel and unusual punishment governs
claims of convicted inmates. . . .” Smith v. Terry, 2:13-cv-216-WHA, 2016 WL 4942066, at *2
(M.D. Ala. Aug. 15, 2016) (citations and internal quotations omitted). “As to these claims, the
Benton’s motion for summary judgment (doc. 61) is also DENIED as to the claims
asserted against Harbin. While there is evidence to support Benton’s claims against Harbin, there
are genuine issues of material fact that should be resolved at trial.
6
To clarify, there is separate claim for violation of Benton’s due process rights based on
the imposition of group punishment. (See doc. 15). Instead, Benton asserts a claim for failure to
protect for which the imposition of group punishment is part of the facts.
5
23
Eleventh Circuit has long held that the applicable standard is the same, so decisional law involving
prison inmates applies equally to cases involving arrestees or pretrial detainees.” Id. The standard
for deliberate indifference requires the plaintiff to produce sufficient evidence that (1) the
defendant knew of and disregarded “an excessive risk to inmate health or safety;” (2) the defendant
was “aware of facts from which the inference could be drawn that a substantial risk of serious harm
exist[ed];” and (3) the defendant must also draw that inference.” Farmer, 511 U.S. at 837. The
condition must be “extreme” such that there is a “strong likelihood of injury, rather than a mere
possibility, before an official’s failure to act can constitute deliberate indifference.” Estate of
Owens v. GEO Group, Inc., 660 Fed. Appx. 763, 767 (11th Cir. 2016). “[T]he deliberate
indifference standard—and the subjective awareness required by it—is far more onerous than
normal tort-based standards of conduct sounding in negligence: ‘Merely negligent failure to
protect an inmate from attack does not justify liability under [§] 1983.’” Goodman v. Kimbrough,
718 F.3d 1325, 1332 (11th Cir. 2013) (quoting Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.
1990)).
The standard by which a supervisor, such as the sheriff, can be held liable for the actions
of subordinates is “extremely rigorous.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).
Supervisory officials cannot be held liable under § 1983 for unconstitutional acts by their
subordinates based on respondeat superior or vicarious liability principles. Hartley v. Parnell,
193 F.3d 1263, 1269 (11th Cir. 1999). Instead, when, as here, there are no allegations of personal
participation, supervisor liability is permissible only if there is a “causal connection” between a
supervisor’s actions and the alleged constitutional violation. Cottone, 326 F.3d at 1360.
One way a plaintiff can show the requisite causal connection is by demonstrating that a
supervisor’s policy or custom resulted in “deliberate indifference to constitutional rights.”
24
Cottone, 326 F.3d at 1360-61. A plaintiff can also show that the absence of a policy led to a
violation of constitutional rights. Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). Either
way, though, to prove that a policy or its absence caused a constitutional harm, a plaintiff must
point to multiple incidents, see Rivas, 940 F.2d at 1495–96, or multiple reports of prior misconduct
by a particular employee, see Danley, 540 F.3d at 1315. “A single incident of a constitutional
violation is insufficient to prove a policy or custom even when the incident involves several
[subordinates].” Craig v. Floyd County, 643 F.3d 1306, 1312 (11th Cir. 2011).
The evidence includes testimony from Jail Administrator McCluskey that it was Sheriff
Underwood’s routine practice to allow group punishment by revoking privileges for an entire dorm
without due process. (Doc. 62-3 at 41-43 (157:11-163:11)). There is also evidence that Sheriff
Underwood was aware that use of group punishment could create dangerous conditions for the
individual who caused the loss of privileges because inmates have their own system of justice.
(Doc. 62-2 at 25 (91:2-93:5)). Furthermore, although Sheriff Underwood was aware that inmates
fought routinely, there was no procedure for keeping track of the number of inmate fights or their
severity. (Doc. 62-2 at 17-18 (59:7-63:10)). Sheriff Underwood was also unaware if jail staff
disciplined inmates for fighting. (Id. at 30 (112:12-113:16)).
Benton has presented sufficient evidence to create a genuine issue of material fact as to
supervisor liability for failure to protect against Sheriff Underwood. The evidence shows that
Sheriff Underwood allowed for the use of group punishment in Walker County Jail without
implementing policies or regulations to protect inmates from retaliatory violence that he knew
could result. For these reasons, Sheriff’s Underwood’s motion for summary judgment (doc. 53) is
25
DENIED as to Benton’s claim for failure to protect.7
2. Qualified Immunity
As explained above, the doctrine of qualified immunity protects government officers when
they are sued in their individual capacities from liability for civil damages so long as their conduct
“does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). Sheriff Underwood asserts he is entitled to qualified
immunity. (Doc. 53 at 17-20).
To invoke qualified immunity, Sheriff Underwood must first establish that he was acting
within the scope of his discretionary authority when the alleged violation occurred. Townsend v.
Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010).
Since the evidence shows Sheriff
Underwood was engaged in a discretionary function – establishing policies for jail supervision,
the burden shifts to Benton to show Sheriff Underwood is not entitled to qualified immunity. Id.
(citing Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)). Specifically, Benton must
demonstrate that (1) Sheriff Underwood violated a constitutional right, and (2) this right was
clearly established at the time of the alleged violation. Id. (citing Holloman, 370 F.3d at 1264).
Beyond just restraining prison officials from inflicting “cruel and unusual punishments”
upon inmates, the Constitution “imposes duties on these officials, who must ‘take reasonable
measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Thus, “prison officials have a duty . . . to protect prisoners from violence at the hands of other
prisoners.” Id. at 833. While every injury caused at the hands of other inmate is not actionable,
Benton’s motion for summary judgment (doc. 61) is also DENIED as to his claim for
failure to protect because there are questions of fact regarding the causal connection element.
7
26
there is a constitutional violation “when a substantial risk of serious harm, of which the official is
subjectively aware, exists and the official does not respond reasonably to the risk.” Caldwell v.
Warden, FCI Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014). As noted above, Harbin is not
entitled to qualified immunity on Benton’s failure to protect claim because Benton’s rights were
clearly established at the time of the violation. Sheriff Underwood nevertheless was aware that
use of group punishment could create dangerous conditions for the individual who caused the loss
of privileges because inmates have their own system of justice. (Doc. 62-2 at 25 (91:2-93:5)).
And, although Sheriff Underwood was aware that inmates fought routinely, he instituted no
procedure for keeping track of the number of inmate fights or their severity. (Doc. 62-2 at 17-18
(59:7-63:10)). Sheriff Underwood was also unaware if jail staff disciplined inmates for fighting.
(Id. at 30 (112:12-113:16)). Although there was a clearly established right for inmates to be
protected from violence from other inmates, Sheriff Underwood failed to develop any policies to
prevent situations like the one that occurred here. There is no evidence to support qualified
immunity as to Benton’s failure to protect claim against Sheriff Underwood.
3. Failure to Provide Adequate Medical Care
Generally, to establish liability under § 1983 for inadequate medical treatment, a prisoner
must demonstrate that the failure to provide him medical care amounted to cruel and unusual
punishment under the Eighth Amendment to the United States Constitution. Estelle v. Gamble,
429 U.S. 97 (1976). Because Benton was a pre-trial detainee and pretrial detainees are not subject
to punishment, Benton’s protections arise under the Due Process Clause of the Fourteenth
Amendment rather than the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16
(1979). “[T]he minimum standard for providing medical care to a pre-trial detainee under the
Fourteenth Amendment is the same as the minimum standard required by the Eighth Amendment
27
for a convicted prisoner; both the right to due process and the right to be free from cruel and
unusual punishment are violated by a government official’s deliberate indifference to serious
medical needs.” See Lancaster v. Monroe Cty., Ala., 116 F.3d 1419, 1425 n.6 (11th Cir. 1997)
(citing Hamm v. DeKalb Cnty., 774 F.2d 1567, 1573-74 (11th Cir. 1985)), overruled on other
grounds by LeFrere v. Quezada, 588 F.3d 1317, 1318 (11th Cir. 2009). That is, Benton must show
his inadequate care arose from “deliberate indifference to [his] serious medical needs.” Estelle,
429 U.S. at 104. This standard encompasses both objective and subjective components. Williams
v. Limestone Cnty., Ala., 198 Fed. Appx. 893, 896 (11th Cir. 2006).
First, a plaintiff must establish an “objectively serious medical need.” Farrow v. West, 320
F.3d 1235, 1243 (11th Cir. 2003). A serious medical need is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Id. (citation and quotation marks omitted). The
“medical need must be one that, if left unattended, poses a substantial risk of serious harm.” Id.
(citation and quotation marks omitted). After a plaintiff presents evidence of an objective serious
medical need, he must satisfy the subjective element by demonstrating that the prison official acted
with deliberate indifference to that need. An official acts with deliberate indifference when the
official knows that an inmate is in serious need of medical care but fails or refuses to obtain proper
treatment. Lancaster, 116 F3d at 1425. To prove deliberate indifference, Benton must show “(1)
subjective knowledge of a risk of serious harm [and] (2) disregard of that risk; (3) by conduct that
is more than mere negligence.” Farrow, 320 F.3d at 1245.
Underwood characterizes Benton’s injuries has a “bloody nose” and contends Benton’s
injuries did not constitute a “serious medical need,” pointing to testimony from the nurse
practitioner who treated Benton at Walker Baptist Hospital as stating the injury could heal on its
28
own. (Doc. 53 at 14-15 & doc. 70 at 8). This is not a complete characterization of Nurse
Practitioner Deitz’s testimony. To the contrary, Deitz testified that “you could choose to do
nothing and let it heal on its own. But I – I felt like I couldn’t. I had to treat it. . . . Because he
was in prison. . . . Because Staph is common in prison.” (Doc. 63-7 at 12 (40:3-15)). Thus,
Deitz’s testimony demonstrates that, in his medical opinion, Benton needed treatment because of
his living conditions. (See id.).
A “serious medical need” is an injury or condition that a physician has diagnosed as
requiring treatment or that “is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.” Taylor v. Hughes, 920 F3d 729, 733 (11th Cir. 2019). To
qualify as a “serious medical need,” an injury or condition, if not treated, must create a “substantial
risk of serious harm.” Id. For example, the Eleventh Circuit has concluded that a freely bleeding
cut that created a pool of blood on the ground and required stitches presented a serious medical
need. Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir. 1985) (per curiam). Broken
bones, see Brown v. Hughes, 894 F.2d 1533, 1538-39 (11th Cir. 1990) (per curiam), and,
depending on the circumstances, severe pain that is not promptly or adequately treated, McElligott
v. Foley, 182 F.3d 1248, 1255-59 (11th Cir. 1999), can present a serious medical need. However,
mere skin abrasions and bruising do not rise to this level. See Hinson v. Bias 927 F.3d 1103, 1122
(11th Cir. 2019).
Here, Benton was kicked in the face repeatedly by several other inmates. After the attack,
he was “bleeding pretty bad” and his eyes were swollen shut. ((Doc. 64-1 at 11 (36:1-37:25)).
Four days after the attack, he was still experiencing nose bleeds, and Deitz diagnosed “a nasal
septal laceration” and prescribed, Afrin (to dry up the nose bleeds), pain medication, and
antibiotics. (Doc. 63-7 at 35-36). Benton’s injuries sustained during the August 17, 2015 assault
29
constituted a serious medical need. Benton’s injuries were more than abrasions and bruising. It
is obvious to even a lay person that he needed medical attention and, that if left unattended, he was
at a risk of serious harm from continued bleeding and infection.
Next, Benton must prove deliberate indifference. To prove deliberate indifference, Benton
must show “(1) subjective knowledge of a risk of serious harm [and] (2) disregard of that risk; (3)
by conduct that is more than mere negligence.” Farrow, 320 F.3d at 1245. The evidence shows
that immediately after the assault, Benton was cleaned up and given supplies to help stop the
bleeding. (Doc. 64-1 at 11 (36:1-37:25)). Nurse Childers saw Benton the next day. He offered
Benton Advil for his pain and brought in x-ray equipment to determine if there were any broken
bones (there were not). (Doc. 64-1 at 11-12 (37:8-38:22)). Approximately four days later, when
the pain did not subside, Benton was taken to Walker Baptist Hospital, where Deitz prescribed
Afrin to stop the nosebleeds, naprosyn sodium for pain, and antibiotics to prevent infection. (Doc.
63-7 at 10-12 (30:1-41:23), 13-14 (45:19-47:24)). Deitz also recommended Benton follow-up with
an ENT three days later. (Doc. 63-7 at 39).
When he did not receive the medication or follow-up care Deitz prescribed, on September
2, 2015, Benton filed a medical request with jail staff. (Doc. 62-2 at 32-24 (121:21-126:12), 5456). There is no evidence Benton received his medication, other than Naproxyn for pain, prior to
his transfer to Fayette County Jail on September 15, 2015.
The shortcoming in Benton’s medical care is that he did not receive the antibiotic Deitz
prescribed. It is undisputed that Deitz proscribed the antibiotic prophylactically – as a
precautionary measure. Furthermore, although Benton filled out a medical request form on
September 2, 2015, he did not indicate he was not receiving his prescribed antibiotic. (Doc. 62-2
at 54). Instead, Benton requested to see the doctor about his “conditions with nose/nasal/sinuses”
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and his “thyroids.” (Id.). Benton also stated he needed to get his “eyes checked.” (Id.).
Benton alleges Sheriff Underwood was deliberately indifferent to his serious medical needs
by having no involvement in the provision of inmate medical care. (See doc. 62). While a lack of
necessary policies can satisfy the causal connection needed to impose supervisor liability for
constitutional deprivations (as discussed above), there is simply no evidence of deliberate
indifference in this case. Childers, who is responsible for providing medical care to Walker County
Jail inmates on behalf of Sheriff Underwood, initially treated Benton and would have been
responsible for his follow-up care. There is no evidence that Nurse Childers had subjective
knowledge that Benton needed his antibiotic and that serious harm would result if he did not
receive it. Furthermore, even if such subjective knowledge can be inferred for purposes of
summary judgment, there is no evidence Childers disregarded that risk by conduct more culpable
than mere negligence. Deliberate indifference requires proof of more than gross negligence.
Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th Cir. 2010). There is no such evidence of
culpability in this case. For this reason, Sheriff Underwood’s motion for summary judgment (doc.
53) is GRANTED as to Benton’s claim for deliberate indifference.8
IV. Conclusion
For the reasons stated above, Defendant Sheriff Underwood’s motion for summary
judgment (doc. 53) is GRANTED IN PART AND DENIED IN PART; Defendant Nicholas
Harbin’s motion for summary judgment (doc. 55) is DENIED; Defendant Walker County’s
motion for summary judgment (doc. 58) is GRANTED; and Plaintiff Benton’s motion for
summary judgment (doc. 61) is DENIED.
Likewise, Benton’s motion for summary judgment (doc. 61) is DENIED as to his claim
for deliberate indifference against Sheriff Underwood.
8
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Because genuine issues of material fact remain, the following claims will go forward: (1)
§ 1983 Failure to Protect against Officer Harbin; (2) § 1983 Failure to Protect against Sheriff
Underwood; and (3) state law claim for negligence, wantonness, and/or recklessness against
Officer Harbin. All claims are against the remaining defendants in their individual capacity. There
are no remaining claims against Walker County.
The parties are encouraged to discuss alternative dispute resolution, including the potential
for mediation, and to file a joint status report by April 7, 2020, including report their position on
whether or not they believe mediation would be beneficial to the resolution of this action.
DONE this 24th day of March, 2020.
_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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