Kruse v. Byrne et al
ORDER granting 110 Jimmie William's Motion for Summary Judgment as to Plaintiff's federal claim which is dismissed with prejudice. Plaintiff's state law claims against Williams and Sherman are dismissed without prejudice. The motion to stay (doc. 147) is denied as moot and the Rule 37 motion (doc. 120) is moot.. Signed by Judge Kristi K. DuBose on 12/3/2013. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FRANK KRUSE, as personal representative )
of Jacob Jordan, deceased,
DALE BYRNE, et al.,
CIVIL ACTION NO. 11-00513-KD-C
This action is before the Court on the Motion for Summary Judgment (Doc. 110) and
supporting documents (Docs. 112 – 116, 118) filed by Defendant Jimmie L. Williams (“Nurse
Williams”) pursuant to Federal Rule of Civil Procedure 56, along with the Response in opposition
(Doc. 128) and supporting exhibits (Docs. 129 – 135) filed by Plaintiff Frank Kruse, as personal
representative of Jacob Jordan, deceased (“Plaintiff”), and Nurse Williams’s Reply (Doc. 137) to
said Response. The motion has been taken under submission and is ripe for adjudication as to
Nurse Williams.1 (Doc. 138 at 5). Upon consideration, and for the reasons stated herein, the Court
finds that the motion is due to be GRANTED as to the federal claim against Nurse Williams and
that the remaining state law claims in this action are due to be DISMISSED without prejudice.
On September 7, 2011, Plaintiff initiated this action by filing a Complaint with the Court,
Defendants Connie Pimperl and Kenneth May were also parties to the motion for summary
judgment. In its previous Order (Doc. 138), the Court granted the motion as to Pimperl and May, finding
that Plaintiff had abandoned his claims against them by “expressly declin[ing] to respond to the motion as it
relates to Pimperl and May.” (Id. at 4-5). The Court withheld ruling on the motion as it relates to Williams,
finding that additional discovery as to Plaintiff’s witness Jemal Walker should be allowed before ruling on
the motion as to Nurse Williams. Accordingly, the Court reopened discovery for a limited period for this
limited purpose and allowed Nurse Williams the opportunity to supplement her Reply with any new evidence
obtained. (Id. at 5).
In a letter dated October 25, 2013, that was addressed to the Court and copied to opposing counsel,
counsel for Nurse Williams informed the Court he did not believe that further deposing Walker would be
fruitful, and therefore he did not intend to submit any further evidence or argument in support of Nurse
Williams’s motion for summary judgment.
asserting claims for violations of 42 U.S.C. § 1983 and for wrongful death under state law. (Doc.
1). On April 11, 2012, Plaintiff, with leave of the Court (Doc. 24), filed his Amended Complaint
(Doc. 25), which added Nurse Williams and others as parties to this action. On July 25, 2012, again
with leave of the Court (Doc. 74), Plaintiff filed his Second Amended Complaint (Doc. 75), the
operative complaint in this action.2 The Second Amended Complaint (Doc. 75) alleged claims
against Nurse Williams for 1) deliberate indifference to Plaintiff’s serious medical needs in
violation of 42 U.S.C. § 1983 (Count I), 2) for wrongful death under state law (Count V), and 3) for
medical malpractice under state law (Counts VI). Plaintiff’s claims are based on the circumstances
surrounding the death of Jacob Jordan (“Jordan”) on July 9, 2010, while in the custody of the
Baldwin County Corrections Center (“BCCC”).3
On November 9, 2012, the Court denied Nurse Williams’s motion to dismiss the claims
against her based on qualified immunity as to the federal claims and absolute immunity as to the
state law claims. (Docs. 95, 98). On August 30, 2013, Nurse Williams filed the present Motion for
Summary Judgment (Doc. 110), which was timely pursuant to the Court’s scheduling order (see
Docs. 103, 106).
Nurse Williams argues that she is due summary judgment in her favor for the following
1. She is entitled to qualified immunity as to Plaintiff’s § 1983 claim in Count I. (Doc.
112 at 17-30).
2. Plaintiff cannot show causation between Nurse Williams’s actions and Jordan’s
“Under . . . federal law, an amended complaint supersedes the initial complaint and becomes the operative
pleading in the case.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007).
The Court has original jurisdiction over Plaintiff’s federal claims pursuant to 28 U.S.C. §§ 1331 (federal
question) and 1343(a)(3) (civil rights) and has supplemental jurisdiction over Plaintiff’s state law claims
pursuant to 28 U.S.C. § 1367(a).
death so as to subject her to liability for any of Plaintiff’s claims against her. (Id. at
3. She is entitled to absolute and/or state-agent immunity as to Plaintiff’s state law
claims. (Id. at 33-41).
Standard of Review
“The court shall grant summary judgment 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.” Fed. R.
Civ. P. 56(a). Rule 56(c) governs procedures and provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may
object that the material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose
a motion 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 stated.
Fed. R. Civ. P. 56(c).
A party seeking summary judgment bears the initial responsibility of informing the district
court of the basis for its motion and identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). As the
Eleventh Circuit has articulated, however,
The nature of this responsibility varies . . . depending on whether the legal issues, as
to which the facts in question pertain, are ones on which the movant or the nonmovant would bear the burden of proof at trial.
. . . Celotex requires that for issues on which the movant would bear the burden of
proof at trial,
that party must show affirmatively the absence of a genuine issue of material
fact: it must support its motion with credible evidence ... that would entitle it
to a directed verdict if not controverted at trial. In other words, the moving
party must show that, on all the essential elements of its case on which it
bears the burden of proof at trial, no reasonable jury could find for the nonmoving party. If the moving party makes such an affirmative showing, it is
entitled to summary judgment unless the non-moving party, in response,
come [s] forward with significant, probative evidence demonstrating the
existence of a triable issue of fact.
[United States v. ]Four Parcels[ of Real Property], 941 F.2d [1428, ]1438[ (11th Cir.
1991)] (citations and internal quotation marks omitted; emphasis in original).
For issues, however, on which the non-movant would bear the burden of proof at
the moving party is not required to support its motion with affidavits or other
similar material negating the opponent's claim in order to discharge this
initial responsibility. Instead, the moving party simply may show [ ]-that is,
point[ ] out to the district court-that there is an absence of evidence to support
the non-moving party's case. Alternatively, the moving party may support its
motion for summary judgment with affirmative evidence demonstrating that
the non-moving party will be unable to prove its case at trial.
Four Parcels, 941 F.2d at 1437-38 (citations, footnote, and internal quotation marks
omitted; emphasis in original).
If the party moving for summary judgment fails to discharge the initial burden, then
the motion must be denied and the court need not consider what, if any, showing the
non-movant has made. Coats & Clark, 929 F.2d at 608. If, however, the movant
carries the initial summary judgment burden in one of the ways discussed above,
responsibility then devolves upon the non-movant to show the existence of a genuine
issue as to the material fact.
For issues on which the movant would bear the burden of proof at trial, the nonmovant, in order to avoid summary judgment, must come forward with evidence
sufficient to call into question the inference created by the movant's evidence on the
particular material fact. Only if after introduction of the non-movant's evidence, the
combined body of evidence presented by the two parties relevant to the material fact
is still such that the movant would be entitled to a directed verdict at trial-that is,
such that no reasonable jury could find for the non-movant-should the movant be
permitted to prevail without a full trial on the issues. Anderson[ v. Liberty Lobby,
Inc.], 477 U.S. [242,] 249-50, 106 S. Ct. [2505,] 2511[ (1986)].
For issues on which the non-movant would bear the burden of proof at trial, the
means of rebuttal available to the non-movant vary depending on whether the
movant put on evidence affirmatively negating the material fact or instead
demonstrated an absence of evidence on the issue. Where the movant did the former,
then the non-movant must respond with evidence sufficient to withstand a directed
verdict motion at trial on the material fact sought to be negated. Where the movant
did the latter, the non-movant must respond in one of two ways. First, he or she may
show that the record in fact contains supporting evidence, sufficient to withstand a
directed verdict motion, which was “overlooked or ignored” by the moving party,
who has thus failed to meet the initial burden of showing an absence of evidence.
Celotex, 477 U.S. at 332, 106 S. Ct. at 2557 (Brennan, J., dissenting). Second, he or
she may come forward with additional evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary deficiency. See Melissa L.
Nelkin, One Step Forward, Two Steps Back: Summary Judgment After Celotex, 40
Hastings L.J. 53, 82-83 (1988).
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993) (headings and footnotes
The mere existence of a factual dispute will not automatically necessitate denial; rather, only
factual disputes that are material preclude entry of summary judgment. Lofton v. Sec’y of Dep’t of
Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a
legal element of the claim under the applicable substantive law which might affect the outcome of
the case. It is genuine if the record taken as a whole could lead a rational trier of fact to find for the
nonmoving party.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010)
(en banc) (citation omitted).
If a non-moving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof, the moving party is entitled to summary judgment.
Celotex, 477 U.S. at 323. In reviewing whether a non-moving party has met its burden, the Court
must stop short of weighing the evidence and making credibility determinations of the truth of the
matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in its favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992)
(internal citations and quotations omitted).
Jordan was diagnosed with Addison’s disease5 when he was approximately seventeen years
old. (Doc. 113-7 at 2). On June 25, 2010, while incarcerated in Mobile County Metro Jail, Jordan
complained to the medical staff that he was feeling weak and nauseated. (Med. Staff Notes, Doc.
114-2 at 10). Consequently, Jordan was housed in the jail’s medical unit overnight and was pushed
liquids. (Id.). The next day, Jordan reported that he was feeling better and was returned to his
barracks. (Id.). A blood sample was taken from Jordan that day and sent for testing. (Lab Report,
id. at 12). The results were returned on July 2, 2010, and revealed critical levels of low sodium and
high potassium. (Id. at 11-12).
On July 2, 2010, Jordan was transferred to the BCCC on an outstanding warrant. (Doc. 135
at 17, p. 65).6 On that date, a BCCC officer prepared a medical report on Jordan, which Jordan
signed. (Doc. 113-1 at 2-3). In a section marked “Current Medications,” the report lists “TAKE
The Court has made its determination of facts by “review[ing] the record, and all its inferences, in the light
most favorable to [the Plaintiff,] the nonmoving party.” Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th
Cir. 1997). Moreover, on summary judgment, “[t]he court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). See also, e.g., Sharpe v. Global Sec. Int'l,
766 F. Supp. 2d 1272, 1282 (S.D. Ala. 2011) (Steele, C.J.) (“[T]he Court . . . will not independently examine
uncited portions of the record in search of support for a particular proposition[ on summary judgment].”
Addison’s disease causes a sufferer’s adrenal glands to produce insufficient cortisol, which is a substance
that helps the body regulate sodium and potassium levels, blood sugar, and blood pressure. (Dr. Sherman
Depo., Doc. 113-5 at 18, p. 66).
Williams contends that Metro Jail did not transfer Jordan’s medical file or inform BCCC staff of Jordan’s
MEDS FOR ADDISON’S DISEASE.” (Id. at 3). A “Comments” section of the report also noted:
“INMATE HAS ADDISON’S DISEASE[.]” (Id.).
Nurse Williams became a licensed practical nurse (LPN) in 1984. (Williams Depo., Doc.
113-4 at 4, p. 9). At the time of the relevant events in this action, Nurse Williams worked as an
LPN at the BCCC. (Id. at 3, p. 8). She retired from the BCCC on November 30, 2012, after ten
years in that capacity. (Id.) Prior to working at the BCCC, she served as an LPN for ten years at
Holman Prison in Atmore, Alabama. (Id. at 4, pp. 11-12).
On July 8, 2010, Nurse Williams arrived to work at the BCCC at approximately 2:00 p.m.
(Id. at 8, p. 28). According to Nurse Williams’s notes (Doc. 113-1 at 9-10), which are represented
to have been written as the night progressed, the following occurred:7
At approximately 4:00 p.m. (1600 hours), Nurse Williams responded to a “code blue”8 in the
BCCC’s U block, where she found Jordan lying supine on the floor with his hand under his head
and his right leg elevated. (Doc. 113-1 at 9). Nurse Williams performed a medical assessment of
Jordan. Jordan’s skin was warm and dry to the touch, his blood pressure was 98/72, his heart rate
was 85 bpm, and his oxygen saturation was 100%. (Id.). Jordan stated to Nurse Williams: “I’m
sick.” “I passed out.” “I need to go to the hospital.” “When I was at Metro they sent me to the
hospital and gave me IV fluids.” “I feel worse now than then.” (Id.). Jordan also told Nurse
Williams that he had not had his medication in approximately 2-3 months. (Id.).
After the “code blue,” Nurse Williams took Jordan to M block, where he could be monitored
more closely. (Doc. 113-4 at 25, p. 96). Jordan was able to walk on his own, and Nurse Williams
Williams was aware that Jordan had been sick the day before and had told another nurse then that he was
dehydrated. (Doc. 131 at 12, p. 47).
At the BCCC, a “code blue” indicates a medical problem where either an inmate is unresponsive or a jail
officer is incapable of handling the inmate (e.g. getting the inmate back into his bunk) and a medical
assessment is needed. (Doc. 113-4 at 9, p. 31).
walked with Jordan to M block. (Id. at 28, p. 106). At M block, Nurse Williams had Jordan lie on
the floor on a mat and blanket. (Id. at 16-17, pp. 60-62).
At approximately 4:30 p.m. (1630 hours), Nurse Williams was told that Jordan’s mother had
called, saying that “he’s going to pass out” and that her “son needs to go to the hospital.”9 (Doc.
113-1 at 9). At approximately 6:30 p.m. (1830 hours), around the time for Jordan’s evening meal,
Nurse Williams received a call from an M block officer informing her that Jordan was throwing up,
moaning, and saying that he needed to go to the hospital. (Id.; Doc. 131 at 16, pp. 62-63). Nurse
Williams telephoned Dr. Charles E. Sherman (“Dr. Sherman”), the BCCC’s staff physician,
informing him that a “code blue” had been called for Jordan due to him passing out, that his blood
pressure at the time was 98/72 (which Dr. Sherman opined “is better than it was”), and that both
Jordan and his mother were saying that he needed to go to a hospital.10 (Doc. 113-5 at 26-27, pp.
100-02). Dr. Sherman claims that during this phone call Nurse Williams told him she believed that
Jordan and his mother were “putting on” about Jordan’s symptoms and that “[s]he didn't think there
was anything to that.” (Id. at 27, pp. 102-03).11
At the time Nurse Williams called him, Dr. Sherman believed that Jordan had Addison’s
disease and that Jordan had some dehydration. (Id. at 27, pp. 103-04). However, he didn’t believe
that Jordan was suffering an Addisonian crisis, as “his blood pressure wasn't super low[,] [h]e
wasn't short of breath[,] [h]e wasn't diaphoretic[,] [h]e wasn't having severe abdominal pain, wasn't
In emergency situations, the BCCC nursing staff could call an ambulance to have inmates taken to the
hospital without first consulting the facility doctor. (Pimperl Depo., Doc. 113-2 at 11, pp. 38-39; Williams
Depo., Doc. 113-4 at 7-8, pp. 24-25).
At the time she called Dr. Sherman, Williams was aware that Jordan suffered from Addison’s disease, that
he had been sick and dehydrated the day before, and that he had previously been prescribed and administered
Prednisone and Gatorade. (Williams Depo., Doc. 131 at 12, pp. 46-48).
Williams denies, or at least does not remember, telling Dr. Sherman anything suggesting a belief that
Jordan and/or his mother were faking his symptoms. (Doc. 113-4 at 22-23, pp. 84-85).
pale.” (Id. at 19, p. 71). Dr. Sherman ordered Nurse Williams to give Jordan 25 mg of Phenergan
and to feed him clear liquids (e.g. chicken broth) that night. (Id. at 28, pp. 107-08; Doc. 113-1 at
9).12 Nurse Williams brought Jordan 2 Styrofoam cups of warm broth and encouraged him to sip
liquids only. She also administered Phenergan to Jordan through a shot. During this time, Jordan
was lying on his mat on the floor and stated “I’ve never felt this bad” and “I’m dehydrated.” (Doc.
113-1 at 9-10).
Nurse Williams testified at deposition that she checked on Jordan “two or three” times that
evening after administering him the Phenergan. (Doc. 131 at 16-17, pp. 64-65). At approximately
7:30 p.m. (1930 hours), an officer informed Nurse Williams that Jordan was asleep, with his chest
rising and falling. (Id. at 10). At approximately 8:00 p.m., an officer informed Nurse Williams that
Jordan was lying on his mat watching television. (Id.). Nurse Williams went to M block again at
approximately 9:45 p.m. (2145 hours), where she observed Jordan lying on his mat, pull his blanket
up, close his eyes, and appear to go to sleep. (Id.; Doc. 131 at 17, pp. 66-67). Jordan voiced no
further complaints of nausea or vomiting that were relayed to Nurse Williams. (Doc. 113-1 at 9-10;
Doc. 113-4 at 14, pp. 49-50).
Jemal Walker (“Walker”), another BCCC inmate, was in the medical unit when Jordan was
brought in around 4:00 p.m. on July 8, 2010. (Walker Aff., Doc. 130 at 1-2, ¶ 2). Jordan “appeared
weak and sick” to Walker and “vomited a few times shortly after he got there.” (Id.). Later that
evening, Walker observed a nurse (presumably Nurse Williams) bring in chicken broth and food.
(Id. at 2, ¶ 3). Walker heard Jordan tell the nurse “that he was very sick and needed to go to the
hospital.” (Id.). Walker then heard the following exchange:
The nurse said that [Jordan] could not go without a doctor’s order and the doctor said
Earlier on July 8, 2010, Jordan approached Defendant Pimperl to tell her that he did not feel well. Pimperl
called Dr. Sherman to report Jordan’s condition. At that time, Dr. Sherman prescribed Gatorade and a
tapering dosage of Prednisone for Jordan.
he did not need to go. Jordan repeated what he had said and the nurse said “what are
you in here for?” and Jordan said “for pot” and the nurse said “well, if you hadn’t
used pot you could go to the hospital.” Because of the way the nurse talked to
Jordan it was my impression that she did not pay him any attention or show any
Walker states that no one came into M block to check on Jordan after the nurse delivered the
broth. (Id., ¶ 5). Jordan was lying on the floor under a glass window. (Id.). Walker tried to help
Jordan eat some of the broth, but Jordan was too nauseated to eat much. Walker observed Jordan
vomit “a couple of times” and helped Jordan to the shower to get him clean, as Jordan was unable to
get up and do so himself. (Id., ¶ 4). Jordan “kept telling [Walker] that he was going to die if they
did not get him to the hospital.” (Id.).
Later that evening, Walker helped Jordan get situated on his mat. A little while later, after
Jordan closed his eyes and Walker believed he was asleep, Walker went over to him and felt he was
warm to the touch. (Id., ¶ 6). A short time later, Walker again went over to check on Jordan, this
time finding him cold to the touch and with no pulse. (Id. at 2-3, ¶ 6). Walker then reported this to
a corrections officer, though “[i]t took about 15 to 20 minutes for anyone to come in the medical
unit.” (Id. at 3, ¶ 6). Jordan died on July 9, 2010, at the BCCC.
Plaintiff’s Motion for Relief under Fed. R. Civ. P. 37 & Motion to Strike
After the motion for summary judgment was filed, Plaintiff filed a motion for relief under
Federal Rule of Civil Procedure 37 (Doc. 120) requesting, inter alia, that the Court “issue an Order
precluding any party from using as evidence, . . . on any motion, . . . any tapes of telephone
conversations between the deceased and his mother that were not produced or provided to [Plaintiff]
until August 6, 2013, after the August 1, 2013 discovery deadline.” (Id. at 1 (footnote omitted)).
Contemporaneous with its response in opposition to the present motion for summary judgment,
Plaintiff also filed a motion to strike from consideration the same recordings, as well as the unsworn
reports of certain defense expert witnesses (Williams Exs. P & Q) (Doc. 127).13 However, the Court
finds Plaintiff’s motion to strike (Doc. 127) and, to the extent it applies to the present motion for
summary judgment, his Rule 37 motion (Doc. 120) to be MOOT, as the Court has not relied on any
of the offending evidence in making its determinations, see infra.
§ 1983 Claim14
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
[I]n the aftermath of the substantive 2010 amendments to Rule 56, it appears that motions to
strike summary judgment exhibits are no longer appropriate. As revised, Rule 56 provides
that “[a] party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). The
Advisory Committee's note specifies further that such an objection “functions much as an
objection at trial, adjusted for the pretrial setting” and that “[t]here is no need to make a
separate motion to strike.” Id. advisory committee's note (emphasis added).FN5
FN5 – The Court acknowledges that, as to the propriety of motions to strike
evidence submitted in support of or in opposition to a motion for summary
judgment, Alabama and federal procedures differ. Quite recently, the Alabama
Supreme Court reaffirmed its adoption of the old federal practice that a party must
move to strike an affidavit that violates Rule 56 lest his objection be considered
waived. See Ex parte Secretary of Veterans Affairs, ––– So.3d ––––, No. 1101171,
2012 WL 415479, at *5 (Ala. Feb. 10, 2012) (citing Perry v. Mobile Cnty., 533
So.2d 602 (Ala. 1988)). However, as three dissenting justices recognized, the
federal summary judgment rule no longer reads as it did a quarter-century ago, and
it is now clear that, in federal court, “a motion to strike is not desired.” Id. at *12 n.
8 (Murdock, J., dissenting).
N. Assur. Co. of Am. v. C & G Boat Works, Inc., Civ. A. No 11-00283-KD-N, 2012 WL 1712594, at *5 &
n.5 (S.D. Ala. May 15, 2012) (DuBose, J.).
The Eleventh Circuit has held that Alabama’s survivorship law, Ala. Code § 6-5-462, applies to § 1983
actions. See Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041 (11th Cir. 2011), cert.
denied, 132 S. Ct. 817 (2011). “Under that provision, ‘a deceased’s unfiled tort claims do not survive the
death of the putative plaintiff.’ ” Id. at 1046 (quoting Bassie v. Obstetrics & Gynecology Assocs. of
Northwest Ala., P.C., 828 So. 2d 280, 282 (Ala. 2002)). However, “when a constitutional violation actually
causes the injured party's death, a § 1983 claim can be asserted through the Alabama wrongful death statute,
Ala. Code § 6–5–410.” Id. at 1047. Accord Kruse v. Corizon, Inc., Civ. A. No. 12-0212-WS-B, 2013 WL
3366040, at *2-3 (S.D. Ala. July 5, 2013) (Steele, C.J.) (discussing Estate of Gilliam).
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . .
42 U.S.C. § 1983.
Plaintiff’s § 1983 claim against Nurse Williams alleges that, “acting under color of state
law[,]” she was “deliberately indifferent to Jacob Jordan's serious medical needs related to his
Addison's Disease[,]” thus “depriv[ing] Jacob Jordan, the Plaintiff's decedent, of his rights as a pretrail detainee under the Fourteenth Amendment to the Constitution of the United States . . .” (Doc.
75 at 14-16, ¶¶ 36-37).
Williams asserts that she is entitled to qualified immunity as to Plaintiff’s § 1983 claim. The
Eleventh Circuit has set forth the following the analysis for applying qualified immunity:
“The doctrine of qualified immunity provides that government officials performing
discretionary functions generally are shielded from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Case v. Eslinger, 555 F.3d 1317,
1325 (11th Cir. 2009) (internal quotation marks omitted). “Qualified immunity
balances two important interests-the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. ----, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009). “[Q]ualified
immunity is a privilege that provides ‘an immunity from suit rather than a mere
defense to liability.’ ” Bates v. Harvey, 518 F.3d 1233, 1242 (11th Cir. 2008)
(quoting Saucier v. Katz, 533 U.S. 194, 200-01, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d
272 (2001)) . . .
“To invoke qualified immunity, the official first must establish that he was acting
within the scope of his discretionary authority” when the alleged violation occurred.
Id. at 1325. “If, interpreting the evidence in the light most favorable to the plaintiff,
the court concludes that the defendant was engaged in a discretionary function, then
the burden shifts to the plaintiff to show that the defendant is not entitled to qualified
immunity.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.
2004). “[T]he plaintiff must ... show that: (1) the defendant violated a constitutional
right, and (2) this right was clearly established at the time of the alleged violation.”
Id. “The judges of the district courts and the courts of appeals [are] permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Pearson, 129 S. Ct. at 818.
Townsend v. Jefferson Cnty., 601 F.3d 1152, 1157-58 (11th Cir. 2010). “ ‘[W]hether an official
protected by qualified immunity may be held personally liable for an allegedly unlawful official
action generally turns on the “objective legal reasonableness” of the action, assessed in light of the
legal rules that were “clearly established” at the time it was taken.’ ” Messerschmidt v. Millender,
132 S. Ct. 1235, 1245 (2012) (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citation
omitted)). “In order to overcome summary judgment because of qualified immunity, the facts in
dispute must raise a genuine issue of fact material to the determination of the underlying issue.”
Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012) (quotation omitted).
Was Williams acting within the scope of her discretionary authority?
In determining whether an official was “acting within the scope of his discretionary
authority,” the Court assesses whether the official’s actions are “of a type that fell within the
employee's job responsibilities. [The Court’s] inquiry is two-fold. We ask whether the government
employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal),
(b) through means that were within his power to utilize.” Holloman ex rel. Holloman v. Harland,
370 F.3d 1252, 1265 (11th Cir. 2004). Though Plaintiff appears to dispute Williams’s assertion that
she was a government official acting within the scope of her discretionary authority at the time of
the relevant events, he does not present any argument against this assertion (instead appearing to
concede the point for purposes of summary judgment).15 Regardless, the record reveals no genuine
issue of material fact that Williams was a government official (i.e. a nurse employed by a county
correctional facility) acting within her discretionary authority (i.e. treating inmates) at all relevant
(See Doc. 128 at 24 (“Even if Defendant Jimmie Williams could show that she acted within her
discretionary authority, she is not entitled to a summary judgment on the basis of qualified immunity with
regard to the Section 1983 claim in this case, because it was clearly established – well before July 2010 – that
a jail official violates a pre-trial detainee's Fourteenth Amendment right to due process if he acts with
deliberate indifference to the serious medical needs of the detainee.”)).
times. Accordingly, “the burden shift[s] to [Plaintiff] to present evidence that [Williams] violated
[Jordan’s] clearly established constitutional rights.” Townsend, 601 F.3d at 1158.
Did Williams violate Jordan’s clearly established constitutional rights?
Plaintiff’s § 1983 claim against Williams alleges that she was deliberately indifferent to
Jordan’s serious medical need (i.e. complications arising from his Addison’s disease), resulting in
his death. In relevant part, Plaintiff’s § 1983 “deliberate indifference” claim against Williams in her
Second Amended Complaint alleges:
Before Jacob Jordan died shortly after midnight on July 9, 2010, Defendant . . .
Williams . . . knew that Jacob Jordan suffered from Addison's Disease, knew that
Jacob Jordan was becoming increasingly ill and knew that, because of the serious
nature of Jacob Jordan's illness, he needed to be taken to a hospital for timely and
appropriate medical treatment. In spite of this knowledge and in spite the repeated
requests by Jacob Jordan and his mother, Peggy Jordan, that Jacob Jordan be taken to
a hospital or else he might die, Defendant . . . Williams . . . with deliberate
indifference failed to see that Jacob Jordan was taken to a hospital for timely and
appropriate medical treatment . . . Defendant . . . Williams . . . had knowledge of a
condition requiring timely and appropriate medical treatment, yet Defendant . . .
Williams . . . did not take timely and appropriate action and thereby deprived Jacob
Jordan, the Plaintiff's decedent, of his rights as a pre-trail detainee under the
Fourteenth Amendment to the Constitution of the United States in violation
of 42 U.S.C. § 1983.
(Doc. 75 at 14-16, ¶¶ 36-37).
Plaintiff’s arguments in response to Williams’s motion for summary judgment appear
consistent with these allegations – that Williams displayed “deliberate indifference” by failing to
send Jordan to a hospital for treatment despite his and his mother’s repeated requests. (See Doc.
128 at 3-4 (“Williams knew that Jacob had not been taking his medication. In fact, the absence of
medication made it even more important that Jacob be taken to the hospital.” (citation omitted)), 29
(“The importance of Williams’s true reason for not sending Jacob to the hospital is highlighted in
Rogers vs. Evans, 792 F. 2d 1052 (11th Cir. 1986) . . .”), 30, 32 (“Significantly, the reason why
Williams did not send Jacob to the emergency room located less than a mile from the jail is in
dispute . . . [H]ere, there are at least three possible explanations why Jacob was not sent to a hospital
emergency room . . .”)).
“[A] prison official’s ‘deliberate indifference to [the] serious medical needs of [a] prisoner
constitutes the unnecessary and wanton infliction of pain ... proscribed by the Eighth Amendment.’
” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (quoting Estelle v. Gamble, 429 U.S. 97,
104 (1976) (quotation marks and citation omitted)). “As a pre-trial detainee, [Jordan]’s rights
exist[ed] under the due process clause of the Fourteenth Amendment rather than the Eighth
Amendment. Nonetheless, Plaintiff[’]s claims are subject to the same scrutiny as if they had been
brought as deliberate indifference claims under the Eighth Amendment.” E.g., Mann v. Taser Int'l,
Inc., 588 F.3d 1291, 1306 (11th Cir. 2009) (internal citation omitted). As such, “decisional law
involving prison inmates applies equally to cases involving arrestees or pretrial detainees.” E.g.,
Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996).
In order to prove deliberate indifference [Plaintiff] must shoulder three burdens.
First, he must satisfy the objective component by showing that [Jordan] had a
serious medical need. Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (per
curiam). Second, he must satisfy the subjective component by showing that the
prison official acted with deliberate indifference to [Jordan’s] serious medical need.
Id. Third, as with any tort claim, he must show that the injury was caused by the
defendant's wrongful conduct. See Hale v. Tallapoosa County, 50 F.3d 1579, 1582
(11th Cir. 1995).
Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007).
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.” Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d
1176, 1187 (11th Cir. 1994), overruled in part on other grounds by Hope v. Pelzer,
536 U.S. 730, 739, 122 S .Ct. 2508, 2515, 153 L.Ed.2d 666 (2002). In the alternative,
a serious medical need is determined by whether a delay in treating the need worsens
the condition. Hill, 40 F.3d at 1188–89. In either case, “the medical need must be
one that, if left unattended, poses a substantial risk of serious harm.” Farrow v. West,
320 F.3d 1235, 1243 (11th Cir. 2003).
Mann, 588 F.3d at 1307.
Williams concedes: “[I]t is clear that Jordan had a serious medical need.” (Doc. 112 at 21).
Moreover, under the “alternative test” identified in Mann, supra, the Court finds sufficient record
evidence to support a determination that Jordan’s Addison’s disease constituted a serious medical
need, as it posed a substantial risk of serious harm if left unattended, see Williams v. Arnold, 207 F.
App'x 980, 981 (11th Cir. 2006) (per curiam) (“People with Addison's disease must take
medications daily or risk serious health problems, including death.”), 16 and that delays in treatment
appear to have worsened the condition to the point that it resulted in Jordan’s death.
“ ‘However, not “every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” ’ ” Farrow, 320 F.3d at 1243 (quoting
McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999) (citation omitted)). “The inadvertent or
negligent failure to provide adequate medical care ‘cannot be said to constitute “an unnecessary and
wanton infliction of pain.” ’ ” Id. (quoting Estelle, 429 U.S. at 105-06). “Medical malpractice does
not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at
106. See also Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (“Mere incidents of
negligence or malpractice do not rise to the level of constitutional violations.”); Mann, 588 F.3d at
1308 (“While the deputies may have made an error in judgment, mere negligence or a mistake in
As the Magistrate Judge’s Report and Recommendation noted (Doc. 95 at 12 n.6; Kruse v. Byrne, Civ. A.
No. 11-00513-KD-C, 2012 WL 5469801, at n.6 (S.D. Ala. Oct. 19, 2012) (Cassady, M.J.), report and
recommendation adopted in part, Civ. A. 11-00513-KD-C, 2012 WL 5470604 (S.D. Ala. Nov. 9, 2012)
(DuBose, J.), Williams sidestepped the issue of whether the prisoner plaintiff’s Addison’s disease constituted
a serious medical need. See 207 F. App'x at 984 (“Regarding the objective component of the Eighth
Amendment test, Williams contends that there is no genuine issue of material fact concerning his serious
medical need because neither party disputes that Addison's disease can be fatal if not properly treated. The
magistrate, however, concluded that the existence of a serious medical need was not established merely by
Williams' diagnosis with Addison's disease. Instead, the magistrate determined that the relevant inquiry was
whether Williams' condition during the time he went without medication constituted a serious medical need.
There is no need for us to determine the correctness that determination because, even if Williams met the
objective component, he has failed to create a genuine issue of material fact about the subjective
judgment does not rise to the level of deliberate indifference. Plaintiffs' showing that harm resulted,
without more, cannot carry the burden required for deliberate indifference.”). “Nor does a simple
difference in medical opinion between the prison’s medical staff and the inmate as to the latter’s
diagnosis or course of treatment support a claim of cruel and unusual punishment.” Harris, 941
F.2d at 1505. See also Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (“[T]he question of
whether governmental actors should have employed additional diagnostic techniques or forms of
treatment ‘is a classic example of a matter for medical judgment’ and therefore not an appropriate
basis for grounding liability under the Eighth Amendment.” (quoting Estelle, 429 U.S. at 107));
Lynch v. Jackson, 478 F. App'x 613, 618 (11th Cir. 2012) (per curiam) (“Where medical treatment
provided is ‘minimally adequate,’ no deliberate indifference exists.” (quoting Harris, 941 F.2d at
In order to establish deliberate indifference on the part of a defendant, a plaintiff must show:
“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is
more than gross negligence.” Goebert, 510 F.3d at 1327 (quotation and brackets omitted).
“Whether a particular defendant has subjective knowledge of the risk of serious harm is a question
of fact ‘subject to 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 the
very fact that the risk was obvious.’ ” 17 Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)
Plaintiff cites Rogers v. Evans, 792 F.2d 1052, 1061 (11th Cir. 1986), for the proposition that “[o]rdinarily,
summary judgment should not be granted in cases where motive, intent, subjective feelings, and reactions are
to be searched.” 792 F.2d at 1059. (Doc. 128 at 29). However, this does not obviate the need for Plaintiff to
present sufficient evidence creating a genuine issue of material fact as to any of these factors. Cf. Rogers,
792 F.2d at 1059 (“Nothing in the record supports a factual dispute about the motives of these low level staff,
who acted upon their understanding of directions from the medical staff. No specific allegation has been
pleaded against any of these personnel to support an inference of callous indifference for Rogers's welfare . .
. After a full opportunity to muster all the evidence they could, [the plaintiffs] did not place a material
disputed fact before the district court. Thus, the state of mind of these personnel was not at issue.” (internal
citation and quotation omitted)).
(citation omitted)). “Disregard of the risk is also a question of fact that can be shown by standard
methods.” Id. (citing Farmer, 511 U.S. at 846). Accord Martinez v. Burns, 459 F. App'x 849, 851
(11th Cir. 2012) (per curiam) (“Whether a defendant has subjective knowledge of the risk of serious
harm and whether they disregarded that risk are questions of fact that can be demonstrated in the
usual ways, including inference from circumstantial evidence.” (citing Goebert, 510 F.3d at 1327).18
“If reasonable minds might differ on the inferences arising from undisputed facts, then a court
should deny summary judgment.” Rogers v. Evans, 792 F.2d 1052, 1061 (11th Cir. 1986).
The Eleventh Circuit
ha[s] repeatedly found that “an official acts with deliberate indifference when he or
she knows that an inmate is in serious need of medical care, but he fails or refuses to
obtain medical treatment for the inmate.” Lancaster v. Monroe County, Ala., 116
F.3d 1419, 1425 (11th Cir. 1997); Mandel v. Doe, 888 F.2d 783, 788 (11th Cir.1989)
(noting that “knowledge of the need for medical care and intentional refusal to
provide that care constitute deliberate indifference”). Even where medical care is
ultimately provided, a prison official may nonetheless act with deliberate
indifference by delaying the treatment of serious medical needs, even for a period of
hours, though the reason for the delay and the nature of the medical need is relevant
in determining what type of delay is constitutionally intolerable. See Harris v.
Coweta County, 21 F.3d 388, 393–94 (11th Cir. 1994); Brown v. Hughes, 894 F.2d
1533, 1537–39 (11th Cir. 1990) . . . [D]eliberate indifference may [also ]be
established by a showing of grossly inadequate care as well as by a decision to take
Plaintiff has cited to Chavez v. Cady, 207 F.3d 901 (7th Cir. 2000), which distinguished the standard
for determining “deliberate indifference” by correctional officers from the standard applied to “a medical
professional such as [a] nurse[,]” the analysis of which “is a little different”:
In Collignon v. Milwaukee County, 163 F.3d 982 (7th Cir.1998), we pointed out that the
professional judgment standard applies in Fourteenth Amendment claims to decisions made
by professionals such as physicians and nurses within their area of expertise. But we also
said that the Fourteenth Amendment professional judgment standard is “comparable” to the
deliberate indifference standard and requires “essentially the same analysis.” Collignon, at
988, 989. First, a plaintiff must establish an objectively serious medical need. Then the
plaintiff must show “(1) that the professional knew of the serious medical need, and (2)
disregarded that need.” At 989. The trier of fact can conclude that the professional knew of
the need from evidence that it was obvious and, further, it can be assumed that “what might
not be obvious to a lay person might be obvious to a professional acting within her area of
expertise.” At 989.
207 F.3d at 904-05.
an easier but less efficacious course of treatment. See Steele v. Shah, 87 F.3d 1266,
1269–70 (11th Cir. 1996); Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989).
Moreover, “[w]hen the need for treatment is obvious, medical care which is so
cursory as to amount to no treatment at all may amount to deliberate indifference.”
Mandel, 888 F.2d at 789; Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704
(11th Cir. 1985).
McElligott, 182 F.3d at 1255.19
“The final requirement for a deliberate indifference claim is that a defendant have a causal
connection to the constitutional harm.” Goebert, 510 F.3d at 1327 (citing Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003)). “Causation, of course, can be shown by personal participation in
the constitutional violation.” Id. (citing Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)
The undisputed record evidence does not support a determination that Williams “fail[ed] or
refuse[d] to obtain medical treatment” for Jordan, id. (quotation omitted), as Williams did provide
Jordan some medical care, including obtaining and implementing a doctor’s prescribed course of
treatment. Cf. Hill, 40 F.3d 1176, 1187 (11th Cir. 1994) (“Swain personally had administered this
The Court rejects Williams’s assertion that “where a prisoner has received medical attention and the
dispute concerns the adequacy of the medical treatment, deliberate indifference is not shown . . . ” (Doc. 112
at 22-23 (citing Hamm v. DeKalb County, 774 F.2d 1567 (11th Cir. 1985)) (italics omitted). See also Doc.
112 at 28 (“This case concerns the ‘adequacy’ of the treatment and not its constitutionality. Accordingly,
Count I should be dismissed.”)). This is an incorrect statement of the law. While “a simple difference in
medical opinion between the prison’s medical staff and the inmate” certainly does not “support a claim of
cruel and unusual punishment[,]” Harris, 941 F.2d at 1505, McElligott makes clear that “a showing of
grossly inadequate care” or of “a decision to take an easier but less efficacious course of treatment” can
demonstrate deliberate indifference, 182 F.3d at 1255. See also id. at 1259 (“We reject Dr. Foley's argument
that summary judgment was appropriate because Dr. Foley provided medical care to Elmore. ‘It is ... true
that when a prison inmate has received medical care, courts hesitate to find a Eighth Amendment violation.’
However, Dr. Foley simply misstates the controlling law when he argues that his provision of medical care to
Elmore precludes an Eighth Amendment claim. ‘Hesitation does not mean, however, that the course of a
physician's treatment of a prison inmate's medical or psychiatric problems can never manifest the physician's
deliberate indifference to the inmate's medical needs. We reaffirm ... that grossly incompetent medical care
or choice of an easier but less efficacious treatment can constitute deliberate indifference.’ ” (quoting
Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989))
Hamm does not indicate otherwise. In that case, the Eleventh Circuit held that “[a]lthough Hamm
may have desired different modes of treatment,” the record evidence supported the determination that “the
care the jail provided did not amount to deliberate indifference.” Hamm, 774 F.2d at 1575.
medicine to Hill and monitored him closely for this diagnosed medical problem. Thus, the
mandated treatment for his diagnosed ailment undisputedly was received by Hill. Cf. Aldridge v.
Montgomery, 753 F.2d 970, 972–73 (11th Cir. 1985) (per curiam) (holding that a state prisoner
demonstrated a triable issue of fact when he presented evidence that a deputy failed to administer an
ice pack and pain medication as instructed by attending doctor after suturing a wound).”). For the
same reasons, the record also does not suggest that Williams could be accused of providing
“medical care which is so cursory as to amount to no treatment at all . . .” McElligott, 182 F.3d at
1255 (quotation omitted).
The question, then, is whether there is sufficient evidence to show that Williams’s conduct
exceeded gross negligence. “The meaning of ‘more than gross negligence’ is not self-evident but
past decisions have developed the concept. In cases that turn on the delay in providing medical
care, rather than the type of medical care provided, [the Eleventh Circuit] ha[s] set out some factors
to guide [the Court’s] analysis. Where the prisoner has suffered increased physical injury due to the
delay, [the Eleventh Circuit] ha[s] consistently considered: (1) the seriousness of the medical need;
(2) whether the delay worsened the medical condition; and (3) the reason for the delay.” Goebert,
510 F.3d at 1327. The Court finds, however, that both Plaintiff’s arguments and the record
evidence indicate that this case turns on the type of medical care provided, rather than any delay in
providing it. Essentially, Plaintiff argues that Nurse Williams should have sent Jordan to the
hospital instead of or in addition to providing treatment at the BCCC medical unit. Such an
argument, instead, suggests deliberate indifference by “a showing of grossly inadequate care” or
“by a decision to take an easier but less efficacious course of treatment.” McElligott, 182 F.3d at
“For medical treatment to rise to the level of a constitutional violation, the care must be ‘so
grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.’ ” Jackson v. Jackson, 456 F. App'x 813, 814 (11th Cir. 2012) (per curiam)
(quoting Harris, 941 F.2d at 1505). See also Howell v. Evans, 922 F.2d 712, 721 n.9 (11th Cir.
1991), vacated pursuant to settlement, 931 F.2d 711 (11th Cir. 1991), opinion reinstated sub nom.,
Howell v. Burden, 12 F.3d 190 (11th Cir. 1994) (“The refusal to provide proper treatment must not
be simply a medical choice but a gross violation of accepted practice. When the Supreme Court set
up this standard in Estelle, it referred to two cases of grossly inadequate treatment: one where the
doctor injected penicillin into a patient he knew to be allergic, the other where the doctor threw
away a salvageable ear and stitched the stump. 97 S. Ct. at 291 n.10.”). “[P]rison officials who
actually knew of a substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted . . . Whether one puts
it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found
liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 844-45.
Upon consideration of the record and the applicable authority, the Court concludes that
Plaintiff has not presented sufficient evidence of deliberate indifference by Williams in her failure
to send Jordan to a hospital. More specifically, while sufficient evidence has been presented
indicating that Williams had subjective knowledge of a risk of serious harm,20 sufficient evidence
The record contains evidence that Williams was aware that Jordan suffered from Addison’s disease
and that he had recently been experiencing adverse symptoms. The Court notes that if, as Plaintiff asserts,
Williams truly believed that Jordan was faking his symptoms, then such a fact could arguably negate her
“subjective knowledge of a risk of serious harm,” since she would have subjectively believed that Jordan was
not in danger of any serious harm. See Campbell v. Sikes, 169 F.3d 1353, 1373 (11th Cir. 1999) (“As
discussed regarding Sikes, this expert affidavit does not suffice to support a finding that Ford knew her care
was grossly inadequate but persisted in that treatment. At best, it might support a finding that Ford's care was
grossly inadequate or a finding that Ford should have known or perceived—or ‘had to know’—her care was
grossly inadequate. However, . . . ‘[t]here is no liability for “an official's failure to alleviate a significant risk
that he should have perceived but did not....” ’ ” Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996)
(citing Farmer, 511 U.S. at 838, 114 S. Ct. 1970).”).
Plaintiff has cited Goebert for the proposition that “[r]efusing care based on a subjective belief that a
prisoner is lying about the need for care can amount to deliberate indifference . . .” (Doc. 128 at 31). The
Court determines this to be too broad a reading of that case. Goebert stated that “[c]hoosing to deliberately
disregard, without any investigation or inquiry, everything any inmate says amounts to willful blindness[,]”
has not been presented showing that Williams disregarded that risk by conduct that was more than
Williams was not deliberately indifferent simply by failing to heed the pleas of Jordan and
his mother to send Jordan to the hospital. Dr. Sherman did not tell her to send Jordan to a hospital,
and “a simple difference in medical opinion between [Williams] and [Jordan] as to the latter’s . . .
course of treatment [does not] support a claim of cruel and unusual punishment.” Harris, 941 F.2d
at 1505 (citing Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (“Mere medical
malpractice, however, does not constitute deliberate indifference . . . Nor does a simple difference
in medical opinion. See Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) (‘[W]e disavow any
attempt to second-guess the propriety or adequacy of a particular course of treatment. Along with
all other aspects of health care, this remains a question of sound professional judgment.’) (citation
omitted).”)). This is particularly true since it has not been shown that Jordan or Jordan’s mother had
any medical training.
and, “[a]s ha[s been] said in other contexts ‘[a] party that willfully blinds itself to a fact ... can be charged
with constructive knowledge of that fact.’ ” 510 F.3d at 1328 (quoting United States v. Baxter Int'l, Inc., 345
F.3d 866, 902 (11th Cir. 2003)). However, the undisputed evidence does not support a finding that Williams
failed to make “any investigation or inquiry” regarding Jordan’s symptoms, as she performed some
assessment of Jordan and also contacted Dr. Sherman for direction as to a course of treatment. By
comparison, in Goebert, the Eleventh Circuit noted that the defendant jail commander’s “deposition
testimony, read in the light most favorable to [the plaintiff, le[d] to the conclusion that [the commander
automatically disbelieved any medical complaint by an inmate.” Id. Based on this determination, the court
determined that the commander’s “deliberate decision to automatically disbelieve all inmate statements about
medical care, regardless of the circumstances, amount[ed] to a decision to withhold medical care no matter
what the circumstances actually were.” Id. at 1329. Such a deliberate decision was “not gross negligence,
but instead [was] deliberate indifference to the true facts of an inmate's medical condition and needs.” Id.
See also Waldrop v. Evans, 871 F.2d 1030, 1036 (11th Cir. 1989) (“. . . [P]laintiffs are challenging the lack
of response to a known medical condition. In this case, Smith treated Waldrop for a self-inflicted injury when
he knew Waldrop was suffering from severe psychiatric problems. Smith was not a psychiatrist and was
therefore unable to evaluate the significance of this act. Nevertheless, Smith failed to notify Fodor or take
any other action in response because he felt this was simply an act to attract attention. The law was clear in
1984 that prison officials have an obligation to take action or to inform competent authorities once the
officials have knowledge of a prisoner's need for medical or psychiatric care. See, e.g., Estelle, 429 U.S. at
104-05, 97 S. Ct. at 291. Courts have held that failure to notify competent officials of an inmate's dangerous
psychiatric state can constitute deliberate indifference.”).
Moreover, the record evidence does not support a finding that Williams’s actions objectively
constituted conduct exceeding gross negligence or resulted from a choice to take an easier but less
efficacious course of treatment. Drawing all reasonable inferences in favor of Plaintiff, the record
evidence demonstrates the following sequence of events:
Williams’s first interaction with Jordan occurred around 4:00 p.m. on July 8, 2010, when
she responded to a “code blue” in Jordan’s cell block and found Jordan lying supine on the
floor. Faced with Jordan’s assertions that he was feeling sick and had passed out, she
brought him to the BCCC medical unit for further observation. Jordan was able to travel
from his cell to the medical unit of his own power.
At approximately 4:30 p.m., Williams was told that Jordan’s mother had called to say that
her son needed to go to the hospital. At approximately 6:30 p.m., after being informed by an
officer that Jordan had vomited, Williams called Dr. Sherman and reported to him Jordan’s
condition and symptoms. Dr. Sherman prescribed a course of treatment, which did not
include sending Jordan to a hospital; Williams then administered that course of treatment.21
The record is unclear as to how many times Williams checked on Jordan after giving him
the chicken broth and Phenergan. Walker states in his affidavit that “[n]o one came to check on
Jordan after the broth was brought in.” (Doc. 130 at 2, ¶ 5). Williams’s notes and deposition
testimony indicate that she twice asked officers in the medical unit about Jordan’s condition and
that she personally went to check on Jordan once, shortly before her shift ended that night.
Cf. Keele v. Glynn Cnty., Ga., 938 F. Supp. 2d 1270, 1295 (S.D. Ga. 2013) (Wood, C.J.) (“Thompson did
not have an untreated, objectively serious medical need until she developed rashes on Monday night. Nurse
Orr knew of this medical need and responded appropriately to it. Specifically, he assessed Thompson's
condition, called Dr. Gunderson, and complied with Dr. Gunderson's orders. Consequently, Plaintiff does not
suggest that Nurse Orr was indifferent to Thompson's medical needs at this time . . . Thompson had an
objectively serious medical need—rashes—during this first time period. Nurse Orr responded appropriately
to this need. Consequently, Nurse Orr is entitled to summary judgment on the deliberate indifference claims
that are based on conduct that occurred during this time period. ” (citation omitted)).
Williams represents that “there is no dispute between Walker’s affidavit and Williams’s
testimony” because Jordan was monitored by being observed “through his cell window” rather than
entering the room. (Doc. 137 at 6-7). However, Williams’s citations to the record evidence do not
support this nuance in how Jordan was observed. First, she cites to her “Ex. A, Bates # 002400”
(id. at 7), which is the second page of her notes made on July 8, 2010. (Doc. 113-1 at 10). While
the note made at 9:45 p.m. indicates that Williams visited the medical unit to check on Jordan, no
mention of a window is made. Second, Williams cites to her “Ex. E, 107:17-23, 108:1” (Doc. 137
at 7), which are pages of Dr. Sherman’s deposition that also make no mention of a window being
used to observe Jordan. (Doc. 113-5 at 28).22
As Williams has not submitted evidence indicating that either she or medical unit officers
observed Jordan through a window in the medical unit, there is an issue of fact as to whether
Williams visually checked on Jordan after Williams administered the chicken broth and Phenergan.
However, this issue of fact is not material to whether Jordan’s constitutional rights were violated by
Williams. This is because the undisputed evidence indicates that Williams did, at least, twice check
on Jordan’s condition through telephone conversations with medical unit officers.
In an unpublished opinion,23 the Eleventh Circuit has held that a nurse does not act with
deliberate indifference when she reasonably follows a doctor’s orders. Bauer v. Kramer, 424 F.
App'x 917, 919 (11th Cir. 2011) (per curiam) (“[A] nurse is not deliberately indifferent when she
reasonably follows a doctor’s orders by administering prescribed medication to an inmate.” See
A “Control+F” search of Dr. Sherman’s deposition did not turn up one use of the word “window.” A
similar search of Williams’s deposition revealed testimony discussing the presence of a window in the
medical unit “through which the correctional officers could look down and see him.” (Doc. 113-4 at 23, pp.
“Citation to unpublished opinions on or after January 1, 2007 is expressly permitted under Rule 32.1, Fed.
R. App. P. Unpublished opinions may be cited as persuasive authority pursuant to the Eleventh Circuit
Rules. 11th Cir. R. 36–2.” Gibbs v. United States, 865 F. Supp. 2d 1127, 1151 n.8 (M.D. Fla. 2012).
also Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1075 (7th Cir. 2012) (“As a matter of
professional conduct, nurses may generally defer to instructions given by physicians, ‘but that
deference may not be blind or unthinking, particularly if it is apparent that the physician's order will
likely harm the patient.’ Berry v. Peterman, 604 F.3d 435, 443 (7th Cir. 2010). A nurse may
therefore act with deliberate indifference if he or she ‘ignore[s] obvious risks to an inmate's health’
in following a physician's orders. Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 683 (7th
Cir. 2012).”); Thayer v. Adams, 364 F. App'x 883, 891 (5th Cir. 2010) (per curiam) (“Because
[Nurses ]Gonzales and Flisowski were not empowered to take action contrary to doctor's orders,
their inability to alleviate Thayer's pain is not a grievance of constitutional magnitude.”). Other
districts in this Circuit have found Bauer to be persuasive, see, e.g., Billue v. Gualtieri, No. 8:13CV-546-T-30TGW, 2013 WL 1405945, at *4 (M.D. Fla. Apr. 8, 2013) (Moody, J.) (“A nurse is not
deliberately indifferent when he/she reasonably follows a doctor's orders.” (citing Bauer)) (slip
copy); Welch v. Valentine, No. 5:10-CV-43 MTT, 2012 WL 3637738, at *3 (M.D. Ga. July 13,
2012) (Weigle, M.J.), report and recommendation adopted, No. 5:10-CV-43 MTT, 2012 WL
3627559 (M.D. Ga. Aug. 22, 2012) (Treadwell, J.) (“[A] nurse is not deliberately indifferent when
she reasonably follows a doctor's orders.” (citing Bauer)), as does this Court.
The undisputed evidence indicates that, after being told that Jordan had vomited after being
taken to the medical unit, Nurse Williams obtained and followed a course of treatment from Dr.
Sherman, which did not include sending Jordan to the hospital. Though Plaintiff argues that
Williams’s alleged disbelief in the seriousness of Jordan’s symptoms caused her to deliberately or
recklessly omit details from Dr. Sherman as to Jordan’s condition, and Plaintiff’s nursing expert
opines that Dr. Sherman might have ordered Jordan taken to the hospital had he known these
details, see infra, the record does not support a determination that any such omission constitutes
something more than negligence. Plaintiff argues that Nurse Williams both could and should have
made the decision on her own to send Jordan to the hospital. However, the undisputed evidence
indicates that Williams checked on Jordan at least twice after administering Dr. Sherman’s
prescribed treatment and received no indication that Jordan’s condition was worsening. As such,
the record does not support a determination that Nurse Williams “ignore[d] obvious risks to an
inmate's health in following [Dr. Sherman’s] orders.” Holloway, 700 F.3d at 1075 (quotation
omitted) (alterations added).24
“In a medical treatment case, a plaintiff may demonstrate the existence of a clearly
established medical standard either through reference to prior court decisions or to the
contemporary standards and opinions of the medical profession. Plaintiffs frequently resort to the
contemporary standards of the medical profession when the challenged action required the exercise
of medical judgment. In such an instance, a plaintiff may produce opinions of medical experts
asserting that the inmate's treatment was so grossly contrary to accepted medical practices as to
amount to deliberate indifference.” Adams, 61 F.3d at 1543 (internal citations omitted). The
Eleventh Circuit “has indicated that the testimony of medical experts can aid the court in
determining whether qualified immunity is appropriate where allegations hinge upon the
appropriateness of the actions of medical professionals . . .” Dolihite v. Maughon by & through
Videon, 74 F.3d 1027, 1046 (11th Cir. 1996). See also Rogers, 792 F.2d at 1058, 1062 (“Whether
an instance of medical misdiagnosis resulted from deliberate indifference or negligence is a factual
question requiring exploration by expert witnesses . . . Whether the Prolixin was a matter of gross
incompetence, negligence, or medical judgment is disputed and a proper subject of expert
“Such expert medical testimony, making reference to specific deficiencies in a
Walker indicates in his affidavit that Jordan “vomited a couple of times and could not get up by himself
to get cleaned up” after Nurse Williams brought Jordan the chicken broth. (Doc. 130 at 2, ¶ 4). However,
Walker admits that he helped Jordan clean himself up in the shower (id.), and there is no evidence that Nurse
Williams was aware of these vomiting episodes.
defendant's treatment and specific medically accepted standards might, in conjunction with the
specific facts of a case, persuade a court that the medical defendant's actions in the case were clearly
as great a departure from appropriate medical standards as previous departures found
unconstitutional in prior cases—i.e., might persuade a court that a reasonable professional in
defendant's shoes would have known that his challenged actions (or inaction) violated plaintiff's
constitutional rights.” Dolihite, 74 F.3d at 1046.
Plaintiff’s nursing expert, Sandra Tilton, states only that “[i]t's [her] opinion that [Williams]
did not follow the standards of care when she assessed Mr. Jordan.” (Tilton Depo., Doc. 134-1 at
27, p. 107). In support of this opinion, Tilton notes:
The statements that he made to her, she did not further question him or write her
observations down regarding his physical and -- well, not just his physical condition.
She did not question him further. Like when he complained of being dizzy, she didn't
question him about had he injured himself in any way, did he have a positive gait. At
that particular time when she gave him medication, she did not go back 30 to 45
minutes later and ask him how the medicine had affected him, did it take care of the
problem. In her notes at 4 o'clock, she noted that he was getting Gatorade and that it
was a half-full container. At no time did she ever go back and document how much
more Gatorade he drank or if, in fact, he drank any at all, even though she knew he
had been vomiting. And even though he repeatedly told her how bad he felt, and that
he needed to go to the hospital, she said she did not recall giving that information to
the doctor when she made the phone call to him.
(Id., pp. 107-08).
Tilton believes that “that if [Jordan] had been monitored correctly and assessed for his
condition before and after, with more vital signs and questions, that [Williams] may have arranged
to have him taken to the emergency room.” (Id., p. 108). She also opines that Dr. Sherman could
have determined that Jordan should have been sent to the hospital if Williams “had given him all the
information that she had received from the patient.” (Id.) Tilton states that a common ethos in
prison medicine is “when in doubt, send them out,” where “if what the patient is telling [a nurse]
doesn't add up and [the nurse is] not sure, [the nurse is] just going to send [the patient] out . . . [t]o
the emergency room, and let them make a further assessment.” (Id. at 27-28, pp. 108-09). At most,
these opinions place Williams’s actions on the level of negligence and are insufficient to support a
claim of deliberate indifference. Cf. Adams, 61 F.3d at 1546 (“In his deposition testimony, the
appellees' expert, Dr. DiBenedetto, concedes that Dr. Poag's course of treating Adams ‘seemed to be
adequate.’ He states, however, that the treatment she rendered was inadequate because ‘there
should have been some follow-up in three or four days when he [Adams] indeed was getting very
bad.’ He also stated that Dr. Poag should have performed pulmonary function studies . . . [W]e are
unable to conclude that the appellees' allegations against Dr. Poag rise to the level of deliberate
indifference. Accordingly, we reverse the district court's denial of qualified immunity as to Dr.
Poag.”).25 But cf. Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (“Although all actions
taken by Fodor are undisputed, the question of whether these actions constituted grossly
Adams in turn, reached its decision as to Dr. Poag by comparing the plaintiff’s expert testimony to that
from a previous case, Howell v. Evans, 922 F.2d 712, 719 (11th Cir. 1991), vacated pursuant to settlement,
931 F.2d 711 (11th Cir. 1991), and opinion reinstated sub nom., Howell v. Burden, 12 F.3d 190 (11th Cir.
In Howell v. Evans, the widow of a prison inmate who died from severe asthma sought to
impose section 1983 liability on one of the decedent's treating physicians. The plaintiff did
not contend, however, that the treatment rendered by the physician was inappropriate at the
time. Instead, the plaintiff asserted that as the decedent's condition worsened, a stronger
course of treatment was required; that the physician should have known that the decedent's
condition required close attention and could deteriorate at any moment; and, that the treating
physician's failure to closely monitor the decedent constituted deliberate indifference. The
court, however, rejected the plaintiff's claim on the grounds that none of the allegations
satisfied the criteria for deliberate indifference. Howell, 922 F.2d at 721. At most, the
appellees' allegation against Dr. Poag is that she did not diligently pursue alternative means
of treating Adams's condition. In Howell, however, the court held that such an allegation did
not “rise beyond negligence to the level of a refusal to treat as outlined by Estelle.” Howell,
922 F.2d at 721. As the court noted in Howell: “Estelle requires, however not merely the
knowledge of a condition, but the knowledge of necessary treatment coupled with a refusal
to treat properly or a delay in such treatment.” Howell, 922 F.2d at 721. As was the case in
Howell, we are unable to conclude that the appellees' allegations against Dr. Poag rise to the
level of deliberate indifference. Accordingly, we reverse the district court's denial of
qualified immunity as to Dr. Poag.
Adams, 61 F.3d at 1546 .
incompetent or otherwise deliberately indifferent medical care remains a contested issue. Dr. James
B. Craig testified that Fodor's treatment of Waldrop was proper and that Fodor exercised reasonable
professional skill and care. Dr. Slaughter, Waldrop's original treating physician, testified that these
decisions were cruel and inhuman. We hold that Fodor is not entitled to summary judgment because
he has failed to establish the absence of disputed issues of material fact.” (quotation marks
In Adams v. Poag, the Eleventh Circuit, faced with facts analogous to the ones in the instant
case, reversed a denial of qualified immunity to a nurse defendant on a “deliberate indifference,” as
Nurse Cody first examined Adams on September 16, 1989, when he complained of
breathing difficulties. Following a telephone consultation with Dr. Poag, she
administered Theophylline elixir. Nurse Cody also treated Adams on September 29,
1989; however, after examining him and failing to detect any respiratory distress, she
did not provide him any medication or refer his condition to other medical personnel.
Nurse Cody asserts that she did not provide Adams any additional medication on that
occasion because he had been given medication one hour earlier and she thought
Adams should give the medication time to take effect. Nurse Cody examined Adams
again on October 3, 1989, did not detect any respiratory distress, found that he had
good air return and, therefore, returned Adams to his dormitory without
administering any medication or consulting with other medical personnel. Finally, on
October 4, 1989, Nurse Cody administered Theophylline elixir on the orders of a
The appellees assert that Nurse Cody on a number of occasions denied Adams
medical treatment or refused to allow him access to further treatment with other
medical personnel. Appellees specifically point to Nurse Cody's treatment of Adams
on September 29 and October 3, 1989 as grossly inadequate. They submitted the
affidavit of Freddie S. Hepner, a registered nurse, stating that Nurse Cody's failure to
alert a doctor on those two occasions to Adams's condition was grossly inadequate.
We disagree. Initially, we note that the appellees do not contend that Nurse Cody
declined to examine Adams on the two occasions in question. Moreover, on both
occasions she apparently evaluated Adams's condition and made the medical
determination that his condition did not require that she notify other medical
personnel. The appellees do not point us to any case in existence prior to the events
in question that would lead a reasonable nurse in Nurse Cody's position to conclude
that her actions in treating Adams constituted deliberate indifference. Nor do they
assert that contemporary standards of the medical profession required Nurse Cody to
alert other medical personnel of Adams's condition after she had made the
independent medical determination that such a course of action was not necessary.
Appellees also do not assert that Nurse Cody's examinations of Adams were so
cursory as to constitute deliberate indifference. In fact, Dr. DiBenedetto concedes
that Adams was examined every time he visited sick call. Dr. DiBenedetto also
concedes that he cannot assert that any of the examinations performed by the nurses
at MGCC were below the standards of the medical profession.
Ultimately, the appellees allegations against Nurse Cody can be reduced to the
assertion that she failed to recognize and treat Adams's progressively deteriorating
condition. Our review of the record convinces us that the appellees cannot support
the claim that Nurse Cody, or the other appellants, recklessly failed to detect
Adams's admittedly deteriorating condition. This is a tragic case. The appellees,
however, at most, have made out a colorable claim of medical malpractice.
Therefore, we reverse the district court's denial of qualified immunity as to Nurse
61 F.3d at 1547-48.
As with Nurse Cody, Plaintiff’s § 1983 claim against Nurse Williams “can be reduced to the
assertion that she failed to recognize and treat [Jordan]’s progressively deteriorating condition[,]”
and nothing in the record indicates that this failure rises above “a colorable claim of medical
malpractice.” Id. at 1548.
As the record reveals no genuine issue of material fact that Nurse Williams’s actions on July
8, 2010, did not constitute deliberate indifference to Jordan’s serious medical need, the Court finds
that Nurse Williams’s motion is due to be GRANTED as to Plaintiff’s § 1983 claim against her.26
Remaining State Law Claims
As the Court has determined that Williams is due to be granted summary judgment as to
Plaintiff’s federal claim against her, the only remaining claims in this action are the state law claims
asserted against Nurse Williams and Dr. Sherman (against whom no federal claims have been
asserted (see Second Amended Complaint, Doc. 75)). No basis for original jurisdiction over these
claims has been pled, nor is any apparent from the record.
Rather, the Court has exercised
As such, the Court need not address Nurse Williams’s arguments as to causation, or whether Jordan’s
rights were clearly established at the time of his death.
supplemental jurisdiction over these claims pursuant to 28 U.S.C. § 1367(a).
1367(c)(3) states: “The district courts may decline to exercise supplemental jurisdiction over a
claim under subsection (a) if . . . the district court has dismissed all claims over which it has original
jurisdiction . . .” In such circumstances, the undersigned has routinely done so,27 and the Eleventh
Circuit “ha[s] encouraged district courts to dismiss any remaining state claims when . . . the federal
claims have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th
Cir. 2004) (per curiam). See also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)
(“Needless decisions of state law should be avoided both as a matter of comity and to promote
justice between the parties, by procuring for them a surer-footed reading of applicable law.
Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a
jurisdictional sense, the state claims should be dismissed as well.”); Mergens v. Dreyfoos, 166 F.3d
1114, 1119 (11th Cir. 1999) (“[T]his Court has noted that ‘if the federal claims are dismissed prior
to trial, Gibbs strongly encourages or even requires dismissal of state claims.’ ” (quoting L.A.
Draper & Son v. Wheelabrator–Frye, Inc., 735 F.2d 414, 428 (11th Cir. 1984) (citing Gibbs, 383
U.S. at 726))); Dockens v. Dekalb Cnty. Sch. Sys., 441 F. App'x 704, 709 (11th Cir. 2011) (per
curiam) (“Once the district court properly granted summary judgment for the School System on the
FMLA claims, no federal claims remained. It was not abuse of discretion for the court to decline
supplemental jurisdiction over the state law claim.”).28
See, e.g., Mongham v. Soronen, Civ. A. No. 12-00288-KD-B, 2013 WL 705390, at *6 (S.D. Ala. Feb. 26,
2013) (DuBose, J.); Bandy v. Midland Funding, LLC, Civ. A. No. 12-00491-KD-C, 2013 WL 210730, at
*10 (S.D. Ala. Jan. 18, 2013) (DuBose, J.).
Plaintiff’s remaining state law claims, for medical malpractice and wrongful death under Alabama law, are
subject to a two-year statute of limitations. See Johnson ex rel. Estate of Darnell v. Brookwood Med. Ctr.,
946 So. 2d 849, 853 (Ala. 2006) (“It is well established that the two-year limitations period found in § 6-5410, Ala. Code 1975, for asserting wrongful-death actions (and not § 6-5-482, Ala. Code 1975, the medicalmalpractice limitations period) applies to wrongful-death cases alleging medical malpractice. Hall v. Chi,
782 So. 2d 218 (Ala. 2000); and McMickens v. Waldrop, 406 So. 2d 867 (Ala. 1981).”). The statute of
Accordingly, the Court makes no ruling as to Plaintiff’s state law claims against Williams
and Dr. Sherman, as set out in Counts IV, V, and VI of the Second Amended Complaint (Doc. 75),
and instead finds that they are due to be DISMISSED without prejudice. See, e.g., Ingram v. Sch.
Bd. of Miami-Dade Cnty., 167 F. App'x 107, 109 (11th Cir. 2006) (per curiam) (“When a court
decides not to exercise supplemental jurisdiction under § 1367(c)(3) because only state claims
remain, the proper action is a dismissal without prejudice so that the complaining party may pursue
the claim in state court. Crosby v. Paulk, 187 F.3d 1339, 1352 (11th Cir. 1999) (‘If he decides to
dismiss these state-law claims, then they should be dismissed without prejudice so that the claims
may be refiled in the appropriate state court.’).”).
In accordance with the foregoing analysis, it is ORDERED that Defendant Jimmie
Williams’s Motion for Summary Judgment (Doc. 110) is GRANTED as to Plaintiff’s federal claim
brought against her under 42 U.S.C. § 1983 (Count I of the Second Amended Complaint (Doc. 75)),
which is DISMISSED with prejudice. It is further ORDERED that Plaintiff’s state law claims
against Defendants Jimmie Williams and Charles E. Sherman (Counts IV, V, and VI of the Second
Amended Complaint (Doc. 75)) are DISMISSED without prejudice.29
limitations began running from the date of Jordan’s death – July 9, 2010. See Ala. Code § 6-5-410(d) (“The
action must be commenced within two years from and after the death of the testator or intestate.”). This
action was commenced on September 7, 2011. (Doc. 1). However, § 1367(d) provides that “[t]he period of
limitations for any claim asserted under subsection (a) . . . shall be tolled while the claim is pending and for a
period of 30 days after it is dismissed unless State law provides for a longer tolling period.” Accord
Martinez v. City of Orlando, No. 6:09CV802-ORL-22GJK, 2009 WL 3048486, at *2 (M.D. Fla. Sept. 21,
2009) (Conway, J.) (“28 U.S.C. 1367(d) provides that the statute of limitations is tolled while state law
claims are pending in federal court until thirty days after an order of dismissal. Therefore, Plaintiff may
pursue her state claims in state court if she so chooses, as long as she files in a timely manner.”); Lewis v.
DeKalb Cnty. Bd. of Educ., No. 5:11-CV-02627-JEO, 2013 WL 6073519, at *8 (N.D. Ala. Nov. 18, 2013)
(Ott, M.J.); Gainor v. Douglas Cnty., Ga., 59 F. Supp. 2d 1259, 1296 (N.D. Ga. 1998) (Carnes, J.).
Accordingly, dismissal of Plaintiff’s remaining state law claims will not prejudice her ability to timely refile
them in state court.
As such, Williams’s Motion to Stay Pretrial Deadlines (Doc. 147) is DENIED as moot.
Final judgment in accordance with this and previous Orders shall be entered by separate
DONE and ORDERED this the 3rd day of December 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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