Fikes v. Abernathy et al

Filing 99

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 5/14/2018. (PSM)

FILED
2018 May-14 PM 04:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
PHILLIP CORDELL FIKES, as the
personal representative of the Estate of
Phillip David Anderson,
Plaintiff,
vs.
RON ABERNATHY, et al.,
Defendants.

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7:16-cv-00843-LSC

MEMORANDUM OF OPINION

), motion for summary judgment (doc. 78), and
Defendants Sheriff Ron
Sergeant

Chief
d Detention Officer
motion for summary

judgment (doc. 84). Plaintiff Phillip Cordell Fikes

Fikes

) brought

this suit as the personal representative of the Estate of Phillip David Anderson
), alleging deliberate indifference to serious medical
needs under 42 U.S.C. § 1983 and state law claims for negligence, wantonness,
wrongful death, and intentional infliction of emotional distress. For the reasons
Page 1 of 28

stated below,

for summary judgment is due to be granted, and

the law enforcement d

for summary judgment is due to be

granted in part and denied in part.
I.

BACKGROUND1
Anderson was arrested on Saturday, February 7, 2015, based on an

outstanding warrant for contempt of court arising out of his failure to appear at a
child support hearing in Tuscaloosa County. He was taken to the Tuscaloosa
County jail

, where he remained until February 15, 2015, the day of his

death.
During the intake process, Anderson informed jail officials about his health
problems and daily medications. 2 Anderson answered in the affirmative when asked
whether he had any current illnesses and health problems. On February 9, 2015,
Dr.

nursing notes from the

visit indicate that Dr. Bobo prescribed naproxen for Anderson. According to
1

own examination of
not be the actual facts. See
17 F.3d 1386,
1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence supporting a
specifically cited by the parties. See
, 647 F.3d 1057, 1061 (11th
istrict court judges are not required to ferret out delectable facts buried in a
(internal quotes omitted).
2

Anderson listed propananol (for hyperthyroid), albuterol (for COPD) and tromodol (for
shoulder pain) as his necessary daily medications.
Page 2 of 28

Plaintiff, Anderson did not receive any of the daily medication he required.
Consequently, on Thursday, February 12, 2015,
visited the jail attempting to deliver

daughter, Erica Fikes
thyroid medication.

Erica testified that the jail officials would not accept the medication because it was
only in its original bottle, but not in the original box.
Healthcare for inmates in the jail is conducted by Whatley Health Services,
-profit, community health center, pursuant to a
contract between Whatley and Tuscaloosa. Whatley in turn contracts with a
physician and also nurses to provide care. Tuscaloosa also has a contract with
Capstone Health Services Foundation, an Alabama non-profit corporation, to
provide psychiatric services to the inmates at the jail. There was a charge of
twenty-five dollars ($25.00) for an inmate to see the doctor and obtain medical care
at the jail at all times

time in the Tuscaloosa Jail. Abrams and Collard each served as shift supervisors
over the area which included CB11 during a number of shifts within the relevant
time frame. The Tuscaloosa County Policy and Procedure Directives
state that

detention officers and other personnel are trained to

respond to health-related situations within a four minute response time
Page 3 of 28

-

7 at 23.) The training program that personnel undergo includes instruction in the
recognition of signs and symptoms, as well as information concerning required
action in potential emergency situations. The Directives contain a provision
explaining that while the determination of when to transfer an inmate to an
emergency facility and decisions regarding transportation by ambulance are usually

decision by the Shift Supervisor for immediate transport of [an] inmate to the
designated emergency facility via EMS.

Id.)

According to Fikes, beginning with one of his first meals in jail and
continuing throughout his detention, Anderson felt ill and was unable to keep his
food down. He was in severe pain throughout his stay at the facility, and spent time
prostrate on the floor moaning and holding his stomach, asking for help. On Friday,
February 13, 2015, Anderson was administered medication by Tuscaloosa County
Jail medical staff for constipation. The following day, Saturday, February 14, 2015,
at approximately 8:18 p.m., Detention Officer Jeremiah Van H

H

notified the Supervisor on duty that Anderson was complaining of stomach pain,
shortness of breath, and that he had been unable to hold down food for a number of
days. Supervisor Anderson then called Nurse Bridgette Thomas
who advised that Anderson had been seen and was being treated.
Page 4 of 28

Later that same day, Anderson was taken to the medical clinic by Detention
Officer Clay Montgomery

who told the staff there that Anderson

needed to be seen. Upon arrival at the clinic, Anderson was moaning and groaning
and holding his stomach stating that he did not feel well. Nurse Thomas and
another nurse
consulted with Dr. Bobo. The nurses informed Montgomery that the doctor could
not see Anderson until the following Monday, February 16th. Anderson continued
to moan and groan and proceeded to lie down on a bench in the medical center.
The nurses administered a liquid medication that Anderson could not keep down,
he vomited for a number of minutes while gagging, moaning and holding his
stomach. Montgomery was advised that there was nothing else that could be done
until Monday. Anderson then was escorted back to CB 11 all the while holding his
stomach and verbalizing that he was in pain.
At approximately 11:00 p.m. on Saturday evening, Supervisor Raymond
Anderson, Sergeant Michael Hall and Sergeant Darren Strong responded to CB 11
where they visually observed Anderson lying on his bed moaning, groaning,
sweating and holding his stomach. He was unable to speak to the officers when they
asked him what was wrong. They proceeded to the medical clinic to notify the
medical personnel. The nurses on duty informed the officers that Anderson was
Page 5 of 28

being treated for constipation and he would be put on a liquid diet the following
day.
On Sunday, February 15, 2015, at approximately 12:45 a.m., Detention
Officers Edward Pierce

and Meagan Franklin

responded

to noises coming from CB 11. They observed Anderson lying on the floor between
two tables moaning and holding his stomach. Pierce and Franklin notified Nurse
Thomas who entered the cellblock and looked at Anderson. She stated that she had
already notified her supervisor, Nurse Elizabeth Evers, as well as Dr. Bobo of
the
hospital. A little while later, at approximately 1:01 a.m., Supervisor Raymond
Anderson called Pierce and instructed him to take Anderson to the medical clinic
where Nurse Thomas saw Anderson, but did not administer any medication.
Anderson was then returned to his cellblock.
Abrams, a deputy sheriff who serves as a Sergeant with the criminal
investigation division, and Eric Bailey, a deputy sheriff who serves as the Chief of
Jail Operations began their shift as Shift Supervisors at 7 a.m. on Sunday the 15th.
Though the details are disputed, at one point during their shift, they checked on
Anderson. Multiple inmates had reported that, the evening prior, Anderson had
hollered in pain all throughout the night.
Page 6 of 28

At approximately 12:04 p.m., Detention Officer David Cannon
responded to CB 11 due to inmates kicking on the door. Cannon observed
Anderson lying on the floor and inmates holding his head, the inmates stated he
had passed out on the way to the bathroom. Cannon approached Anderson and
asked him what was wrong but, Anderson did not respond. A wheelchair was
obtained by Collard at the direction of the nurse.

Nurse Stephanie Kaiser and

Sergeant Abrams arrived in CB 11 and initiated CPR (Cardiopulmonary
Resuscitation). The AED (Automated External Defibulator) was also utilized to
assist with life-saving measures. Some inmates in CB 11
family to inform them of the situation. NorthStar EMS, Inc., responded to the
facility and assisted with lifesaving measures and, ultimately transported Anderson
to DHC Regional Me
Bailey, Chief of Jail Operations,
family regarding his condition. Shortly after being transported, Anderson was
pronounced dead

the cause of death was determined to be a perforated duodenal

ulcer.

vestigation of

death soon afterwards.

Page 7 of 28

III.

MOTIONS FOR SUMMARY JUDGMENT
A. Standard of Review

genuine dispute as to any material fact3 and the movant is entitled to judgment as a

Id. A

evidence such that a reasonable factfinder c
Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007)
(quoting Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.
2001)). The trial judge should not weigh the evidence, but determine whether there
are any genuine issues of fact that should be resolved at trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by

ew[ing] the materials presented and all
Animal
, 789 F.3d 1206, 1213 14 (11th Cir. 2015)

Urquilla-Diaz v. Kaplan
Univ., 780 F.3d 1039, 1049 (11th Cir. 2015); see also Ave. CLO Fund, Ltd. v. Bank of Am., N.A.,
723 F.3d 1287, 1294 (11th Cir. 2013).
3

Page 8 of 28

(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However,

Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.

nonmov
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young
v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a motion
for summary judgme

McGee v.
Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013). Although the
trial courts must use caution when granting motions for summary judgment,

procedural shortcut, but rather as an integral part of the Federal Rules a
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
B.

Summary Judgment Motion

On September 19, 2016, Tuscaloosa filed a motion to dismiss (doc. 31),
which was granted in part and denied in part on May 25, 2017. (Doc. 45.) As
only claim remaining
Page 9 of 28

against Tuscaloosa is that it improperly funded healthcare at the Tuscaloosa
County Jail via involvement in an allegedly deliberate plan to delay medical
treatment in order to lower medical costs

which in turn

death. (See Doc. 45 at 8 (
1983 is for not appropriating the funds that the sheriff needs for maintenance of the
4

(citing Turquitt v. Jefferson Cty., Ala., 137 F.3d 1285, 1290 (11th Cir. 1998))).

however, this Court is nonetheless obligated to determine whether Tuscaloosa is
entitled to judgment as a matter of law on the undisputed facts.5 See Trs. of Cent.

Serv., Inc., 374 F.3d 1035, 1039 (11th Cir. 2004) (A district court
entry of summary judgment on the mere fact that the motion was unopposed but,
rather, must cons

(internal quotation marks

omitted)).
4

Section 14-6-19 of the Alabama Code provides that:
[n]ecessary clothing and bedding must be furnished by the sheriff or jailer, at the
expense of the county, to those prisoners who are unable to provide for
themselves, and also necessary medicines and medical attention to those who are sick
or injured, when they are unable to provide for themselves.
Ala. Code § 14-6-19 (1975) (emphasis added).
5

evidence before this Court has created a situation in which all of
evidence is
undisputed. While the Court must view the facts in a light most favorable to Fikes, it can be said
that there are no genuine issues as to any fact material to
motion for summary
judgment.
Page 10 of 28

Tuscaloosa County is required under Alabama law to provide funds for both
the upkeep of the jail and necessary medical care for the inmates held in the jail.
Ala. Code § 14-6-19 (1975). At the federal level, the Due Process Clause (for
pretrial detainees)6 and the Eighth Amendment of the U.S. Constitution requires
local governments to provide necessary medical care to incarcerated persons.
Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007)
.

In

order to prevail on a claim against a county under § 1983, a plaintiff must show that
as a result of a county policy[,] . . . the
action was taken with the requisite degree of culpability, and . . . a direct
causal link [exists] between the

action and the deprivation of federal

Cagle v. Sutherland, 334 F.3d 980, 986 (11th Cir. 2003) (quoting Bd. of Cty.
, 520 U.S. 397, 404 (1997)). Culpability can
be established by showing
knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is
McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.

6

cruel and unusual punishment. Technically, the Fourteenth Amendment Due Process Clause,
not the Eight Amendment prohibition on cruel and unusual punishment, governs pretrial
detainees like [Anderson]. However, the standards under the Fourteenth Amendment are
identical to those under th
Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir.
2007)(internal citations omitted).
Page 11 of 28

1999).

Supreme Court h

rely on prison authorities to treat [their] medical needs; if the authorities fail to do
Federal and state governments therefore have a
constitutional obligation to provide minimally adequate medical care to those
whom they are punishing by incarceration. Harris v. Thigpen, 941 F.2d 1495, 1504
(11th Cir. 1991) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). A county is not
absolved of this duty solely by contracting with a private medical provider. Ancata
v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir. 1985).
Tuscaloosa proffered the affidavit of Bill Lamb

, the Chief

Financial Officer for Tuscaloosa County, who prepares and administers the
budgets for all county offices, to show that its funding was more than minimally
adequate. He testified that during the fiscal year in which Anderson was
incarcerated, the county expended nearly $1.8 Million on medical care at the
Tuscaloosa County Jail, on an inmate population averaging less than 600. (See Doc.
79-1.) Of that total, $1,383,291.78 was for medical services and $402,617.15 was
allocated for drugs and medical supplies. When divided, the sum equals
approximately $3,000 per inmate for medical care. Additionally, Lamb testified

[the] fiscal year, and the County [] never refused to pay any medical bill arising
Page 12 of 28

contract for medical services with Whatley provides
for routine doctor visits to the jail, and for a doctor to be on call for emergencies. It
also provides for around-the-clock nursing services and a clinic within the jail
facility which is stocked and equipped by the county. (See Doc. 79-4.)
The Court finds the funding amount to be adequate, especially when
considered in conjunction with the number of inmates. The Court also finds that
Tuscaloosa did not breach its duties to properly fund the jail, or more specifically,
to properly fund the medical treatment for those held in the jail, and finds no direct
. As such,
summary judgment7 (doc. 78) is due to be granted.
C. Law Enforcement Defendants Summary Judgment Motion
1. State law Claims (Negligence/Wantonness, Wrongful Death
and the Intentional Infliction of Emotional Distress)
In his response in opposition, Plaintiff concedes that Bailey and Abrams are
sheriffs or deputy sheriffs under Alabama law and, as such, are immune from the
state law claims against them. See Drain v. Odom, 631 So. 2d 971, 972 (Ala. 1994)

7

rt may : . . . grant summary judgment if
the motion and supporting materials including the facts considered undisputed show that the
mo
Fed. R. Civ. P. 56(e)(3).
Page 13 of 28

summary judgment is due to be granted as to all state law claims against them.
As against the law enforcement defendants, the only state law claims
remaining are against Collard, a detention officer. Alabama Code § 14-6-18 provides
immunity to detention officers who act within the line and scope of their duties and
in compliance with the law. Collard was acting within the line and scope of his
duties as a detention officer, therefore the state law claims against him can only
proceed if his actions were not in compliance with the law. 9
Plaintiff has presented evidence that Collard i
distress, bullied him, responded slowly and brought a broken wheelchair when

without helping and yanked Anderson up by the back of his shirt saying that he had
fallen down on purpose and threw him back on his bed. The Court finds that the
8

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.
-69

acting within the line and scope of his
employment. See Doc. 25 at 113. Additionally, Collard supplied an affidavit averring that
times relevant to this lawsuit, [he]
81-5 at 2.
Page 14 of 28

record, taken as a whole, could lead a reasonable jury to
alleged actions towards Anderson violated state law

precluding summary

judgment on all but one of the state law claims against him.
To prove a negligence claim under Alabama law, a plaintiff must establish
duty, breach, causation, and damages. Armstrong Business Servs., Inc. v. AmSouth
Bank, 817 So. 2d 665, 679 (Ala. 2001). A wantonness claim requires a plaintiff to
demonstrate that the defendant acted or failed to act with reckless indifference to
the consequences of its acts or omissions. Id. at 679 80. Plaintiff has presented
evidence th

an extenuating circumstance under

the Directives triggering a duty by Collard, as shift supervisor, to call EMS. Collard
failed to do so and his failure caused a delay in necessary medical treatment that
could have

Additionally, the evidence presented regarding

reasonable jury could conclude they were wanton. As such, the state law negligence
and wantonness claims may proceed against Collard.
Wrongful death claims in Alabama are governed by Alabama Code § 6 5
410.10 Anderson could have commenced an action for the wrongful acts, omissions,
10

(a) A personal representative may commence an action and recover such damages as the jury
may assess in a court of competent jurisdiction within the State of Alabama . . . for the wrongful
act, omission, or negligence of any person, persons, or corporation, his or her or their servants or
agents, whereby the death of the testator or intestate was caused, provided the testator or
Page 15 of 28

or negligence if they had not caused his death. As explained above, Plaintiff has
presented sufficient evidence of negligence to avoid summary judgment.
Therefore, the wrongful death claim may proceed against Collard.
To prevail on an intentional infliction of emotional distress
resent substantial evidence indicating

extreme and outrageous; and (3) caused emotional distress so severe that no
Harrelson v. R.J., 882 So. 2d
317, 322 (Ala. 2003) (citing Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041,
1043 (Ala. 1993)). T

does not recognize recovery for mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialiti

Id.
However, given

death, demonstrating the second and third element of the IIED claim will prove to
be a challenge to Fikes. To be sure, being belittled, yelled at and called a faker while
suffering acute physical pain, in the aggregate could have had an effect on
intestate could have commenced an action for the wrongful act, omission, or negligence if it had
Ala. Code § 6-5-410 (a) (1975).
Page 16 of 28

. However, Fikes has not carried his burden in providing
qualified as extreme and
beyond mere insults, or that they caused Anderson severe emotional distress. As
such, summary judgment is to be granted as to the IIED claim against Collard.
2. Federal law claims
The United States Supreme Court has held that only deliberate indifference
to serious medical needs of prisoners is actionable as a constitutional11 violation
under 42 U.S.C. § 1983. See Estelle, 429 U.S. at 105. To recover for deliberate
indifference under § 1983, a plaintiff must establish (1) a serious medical condition
that poses a substantial risk of harm if left unatt
deliberate indifference to that condition. See Bingham v. Thomas, 654 F.3d 1171,
1176 (11th Cir. 2011); see also Mann v. Taser Intern., Inc., 588 F.3d 1291 at 1306-07
(11th Cir. 2009) (citing Goebert., 510 F.3d at 1326).
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

11

Farrow v. West, 320 F.3d 1235,

As a pre-

to the same scrutiny as if they has been brought as deliberate indifference claims under the Eighth
Mann v. Taser Intern., Inc., 588 F.3d 1291 at 1306-07 (11th Cir. 2009) (citations
omitted).
Page 17 of 28

1243 (11th Cir. 2003) (quotation and citation omitted). The evidence, when viewed
in a light most favorable to Anderson, showed a serious medical need.
Next, Plaintiff is required to show that the defendants acted with deliberate
indifference to that need.

r

(2) disregard of that risk; and (3) by conduct that is more th
Bingham, 654 F.3d at 1176 (quoting Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.
2004)). The subjective knowledge requirement of this claim requires that the
drawn
that a substantial risk of serious harm exists, and he must also
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (explaining that knowledge of the risk

Id. at 842)
treatment is obvious, medical care which is so cursory as to amount to no treatment
Mandel v. Doe, 888 F.2d 783, 789
(11th Cir. 1989) (citing Ancata, 769 F.2d at 704).
a. Abrams and Collard
Abrams and Collard were shift supervisors on numerous occasions in the
time frame during which Anderson was incarcerated. They were on duty on
Page 18 of 28

February 15th

the date of his death. Their shift began at 7 a.m., and a report

indicates that they observed Anderson around 9:30 a.m. By noon that day,
Anderson had collapsed and lost consciousness. There are genuine disputes of fact
tions with Anderson.
Anderson was vomiting, profusely sweating,
was nauseous; had blood in his stool, acute abdominal pain and difficulty moving
around

all of which are clear and classic symptoms of an ulcer, a far more serious

condition than routine constipation.12 Additionally, Anderson had hollered and
continued to moan and groan in pain for days on end. While Anderson was taken to
the medical clinic on multiple occasions, Plaintiff has presented evidence that the
care Anderson was receiving was inadequate and he continued to exhibit obvious
signs of his deteriorating condition.13
Plaintiff has submitted evidence that both Abrams and Collard laughed at
Anderson

making fun of him and calling him a faker on numerous occasions in

addition to evidence
obvious even to a lay person. A reasonable jury could conclude that the need to
treat a man who yelled throughout the night and had been moaning, groaning,
12

See Dr. Homer Venters Depo 18-19, 27-28, 48, 50-51.
stomach was visibility distended but that evidence is disputed by Defendants.
13

See Id. at 37-38, 51, 71-72.
Page 19 of 28

sweating, asking for help, having difficulty walking, consistently vomiting and
holding his stomach would have been apparent

and that the treatment he had
Mandel v. Doe, 888

F.2d 783 (11th Cir. 1989). A reasonable jury could conclude that this situation
constituted an extenuating circumstance under the Directives which would have
required the Shift Supervisors to call EMS, and that their failure in doing was
deliberate indifferenc

serious medical needs.

Defendants argue that they are entitled to qualified immunity as to the
deliberate indifference claims because 1) there was no evidence of any specific
violation by any one defendant 2) they lack subjective knowledge of a serious
medical condition and 3) non-medical personnel are entitled to rely on the expertise
of medical staff.
, Dr. Homer Venters, testified in his deposition that he
believed
worsening, and that they had an independent obligation to go beyond the medical
staff and contact EMS to attend to Anderson. (Doc. 81-14 at 51.) Abrams and
Collard argue that they subjectively believed Anderson to be faking his condition.
However, this shows that they were aware of Anderson

, and

that they had ample opportunity to question the sufficiency of the treatment he was
Page 20 of 28

receiving from the medical personnel.

demonstration in the usual ways, including inference from circumstantial evidence,
and a factfinder may conclude that a prison official knew of a substantial risk from
Goebert, 510 F.3d at 1326 (citing Farmer,
511 U.S. at 842). Though Abrams and Collard deny having subjective knowledge of
, the Court finds that they had a duty to make an

party that willfully blinds itself to a fact . . . can be charged with constructive
United States v. Baxter Int'l, Inc., 345 F.3d 866, 902 (11th
Cir.
Goebert, 510
F.3d at 1328. As shift supervisors, both Abrams and Collard possessed the
authority to send Anderson to the hospital and to contact EMS to render him aid.
Plaintiff has presented evidence that their failure to do so and the delay that ensued
likely cost Anderson his life. 14
deliberate indifference claim is that a defendant
Goebert, 510 F.3d at 1327
14

See Doc. 81-14 at 23securi

Id.).
Page 21 of 28

(citing Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)). Further,
, of course, can be shown by personal participation in the
Id. (citing Zatler v. Wainwright, 802 F.2d 397, 401 (11th
Cir. 1986) (per curiam)). Plaintiff has presented evidence sufficient that a
reasonable jury could find both Abrams and Collard played a part in the deliberate
indifference exhibited toward Anderson.
Abrams and Collard assert that they are entitled to rely on the expertise of
medical staff and cite one published Eleventh Circuit opinion in support: Keith v.
DeKalb Cty., Ga., 749 F.3d 1034 (11th Cir. 2014).15 In Keith, the Eleventh Circuit
held that even assuming that a sheriff violated a plaintiff inmate s constitutional

a sheriff has a constitutional obligation to disregard the medical expertise of the
very contractors he has hired to ensure that the inmates mental health is tended
Id.
segregate a mental health inmate whom trained medical personnel [had] concluded
[did]

Id. This case is

distinguishable from the case at hand in that the decedent in Keith died at the hands
15

Defendants also cite Williams v. Limestone Cty., Ala., to support their reliance on the medical
professionals
.
curiam)
(unpublished) (neither county nor sheriff liable for deliberate indifference to a former county jail
inmate). However, unpublished cases are not binding on this Court. See, e.g., Twin City Fire Ins.
Co. v. Ohio Cas. Ins. Co., 480 F.3d 1254, 1260 n.3 (11th Cir. 2007).
Page 22 of 28

of another inmate, while Anderson died of an illness that the Plaintiff has presented
evidence showing would have been noticeable to a lay person. Determining the
danger an inmate poses to himself and others is more nuanced than detecting an
obvious medical need requiring

s attention.

In sum, Abrams and Collard are not entitled to qualified immunity on the
claims laid against them. If the accounts of Abram and
viewed in a light most favorable to Plaintiff, there remain genuine factual issues
that properly can be resolved only by a finder of fact because they may be
Liberty Lobby, 477 U.S. at 250. As

Abrams and Collard is due to be denied.
b. Abernathy and Bailey

under § 1983 for the unconstitutional acts of their subordinates on the basis of
Hartley v. Parnell, 193 F.3d 1263, 1269
(11th Cir. 1999) (citations omitted); see also Denno v. Sch. Bd. of Volusia Cty., Fla.,
218 F.3d 1267, 1276 (11th Cir. 2000). Instead, for Abernathy or Bailey to be liable,
there must be supervisory liability
personally participates in the alleged constitutional violation or when there is a
Page 23 of 28

causal connection between actions of the supervising official and the alleged
Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

history of widespread abuse puts the responsible supervisor on notice of the need to
Grey ex rel. Alexander v.
Bostic, 458 F.3d 1295, 1308 (11th Cir. 2006) (quoting Brown, 906 F.2d at 671).
pread abuse sufficient to notify
the supervising official must be obvious, flagrant, rampant and of continued
Id.
Plaintiff has not presented sufficient evidence of a causal connection.
Though he argues in his Response that Abernathy admits in his interrogatory
answers that: 1) he
which jail staff members or medical staff members interacted with Anderson during
present in the
medical clinic inside the jail and; 4) has not made any subsequent changes to jail
the Court finds this to be insufficient in
establishing the requisite causal connection or to establish a custom or policy that is
unconstitutional. Additionally, Plaintiff provides no examples or sufficient evidence
of unconstitutional policies or customs on the part of Bailey.
Page 24 of 28

Nor has Plaintiff presented sufficient evidence of widespread abuse that is
obvious and systemic which would put Abernathy or Bailey on notice of
constitutional violations

instead Plaintiff relies on this one isolated occurrence of
. Under precedent in this Circuit, Plaintiff has failed

to carry his burden of showing supervisory liability on the part of Abernathy or
Bailey as such, summary judgment is due to be rendered in their favor on all claims
remaining against them. 16
IV. MOTIONS TO STRIKE
A. Standard

judgment] must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stat

R. Civ.
Corwin v. Walt Disney Co., 475

F.3d 1239, 1249 (11th Cir. 2007) (quoting Broadway v. City of Montgomery, Ala., 530

16

Because Fikes has failed to establish the deliberate indifference on the part of Abernathy and
Bailey integral to the § 1983 claim against them, the Court need not address the issue of whether
Sheriff Abernathy or Chief Bailey are entitled to qualified immunity. See Saucier v. Katz, 533 U.S.
194, 201
overruled in part by Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
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F.2d 657, 661 (5th Cir. 1976)). 17 Thus, the Court analyzes the evidentiary
submission at issue within the motions to strike.
B.
1. Declarations of Keith Brifford, Eric Ligon and Gaffery Buggs
The law enforcement defendants move to strike certain evidence submitted
by Fikes in opposition to their summary judgment, including statements of fellow
inmates of Anderson, because those statements were inadmissible hearsay. To the
extent that the testimony of those inmates concerned their own observations, and
did not concern statements made by others, the motion to strike is due to be denied
as that testimony is not hearsay.
In addition, these declarations are at least partially corroborated by the
Tuscaloosa Homicide Unit summary statements of a number of inmates18 who
were housed in CB 11 during the time period of the events in question, in addition

17

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to close of business on September 30, 1981.
18

See e.g. James Merrymon statement, Doc. 81-13 at 8 (stating Anderson hollered all night long
on the 14th); Eric Booth statement, Doc. 81-13 at 20 (stating that Anderson moaned and hollered
in pain all throughout the night, had difficulty eating
kept telling the jail staff he was sick and continua
[said] something about his thyroid
problem
Traventi Gibson statement, Doc. 81-13 at 10
; Ronald Russell statement, Doc. 18-13 at 19.
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to the statement of a detention officer.19 The declarations are also consistent with
what Brifford, Ligon, and Buggs reported in their own statements. (See Doc. 81-13
at 11, 15 & 17.) Further, the evidence contained in the declarations, is, for the most
part, capable of being presumed in the form of admissible evidence at trial. 20
2. Declaration of Erica Fikes, Dr. Homer Venters and Dr. Emad Quyed
As it was not necessary for the Court to consider the other testimony in the
motion to strike in reaching its conclusions, the remaining portions of the motion
are due to be denied as moot.
C.

to Strike
paragraphs 6-7 and 9-17 of their Motion
Because the Court has used its discretion in making findings of fact in the

development of the record for the purposes of summary judgment by considering
other pertinent portions of the record, this section
moot. Though Plaintiff asserts that he has reason to believe that the nursing notes
are inaccurate in significant part, he provides no further support for those parts

19

Jeremiah Van Horn Declaration, Doc. 86-6 at 5, 8-9; Jeremiah Van Horn Statement, Doc. 81-13
at 34.
20

judgment if the statement could be reduced to admissible evidence at trial or reduced to
Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (citations
omitted).
Page 27 of 28

being struck. This portion of
denied.
IV.

Conclusion
For the reasons stated above,

for summary judgment

(Doc. 78) is due to be granted, and the law enforcement
summary judgment is due to be granted in part and denied in part. (Doc. 80.) An
Order consistent with the Memorandum of Opinion will be entered
contemporaneously herewith.
DONE and ORDERED on May 14, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190685

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