Kruse v. Corizon, Inc. et al
ORDER granting 102 Lieutenant Keith Turner, Lieutenant Sadie Stallword, Sergeant Maurice Houston, Lieutenant Anthony Love, Corporal Michael Scott and Officer Joshua Robinson (the Correctional Officer defendants) Motion for Summary Judgment. Signed by Chief Judge William H. Steele on 7/5/2013. (mbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
FRANK H. KRUSE, etc.,
) CIVIL ACTION 12-0212-WS-B
CORIZON, INC., et al.,
This matter is before the Court on the motion of Lieutenant Keith Turner,
Lieutenant Sadie Stallworth, Sergeant Maurice Houston, Lieutenant Anthony Love,
Corporal Michael Scott and Officer Joshua Robinson (collectively, “the Correctional
Officer defendants”) for summary judgment. (Doc. 102). The parties have filed briefs
and evidentiary materials in support of their respective positions, (Docs. 103, 113, 122),
and the motion is ripe for resolution. After careful consideration, the Court concludes
that the motion is due to be granted.
According to the complaint, (Doc. 1), on the evening of Saturday, April 10, 2010,
the plaintiff’s decedent, James Michael Hall, was arrested on minor charges after
exhibiting bizarre behavior. Various correctional officers employed force against the
plaintiff, still exhibiting such behavior, on Saturday night, on Sunday afternoon, April 11,
and on Monday morning, April 12. Hall stopped breathing shortly after the third episode
and expired without regaining consciousness.
The complaint names 15 correctional officers, five health care workers and one
health care entity as defendants. The Court recently dismissed nine of the correctional
officers on the parties’ joint stipulation. (Doc. 109).1 The counts asserted against the
remaining six correctional officers are as follows:
• Count One
Unconstitutional use of force
• Count Two
Deliberate indifference to serious medical needs
• Count Four
Assault and battery/wrongful death
• Count Five
(Doc. 1 at 14-18).
Summary judgment should be granted only if “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). The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material
fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by
“negating an element of the non-moving party’s claim”; or (2) by “point[ing] to materials
on file that demonstrate that the party bearing the burden of proof at trial will not be able
to meet that burden.” Id. “Even after Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228
F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir.
“When the moving party has 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. [citation omitted] 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, no reasonable jury
The Court dismissed three health care workers on the plaintiff’s request. (Doc. 55).
The motions for summary judgment filed by the remaining two health care workers and one
health care entity are resolved by separate order.
could find for the nonmoving party.” United States v. Four Parcels of Real Property,
941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick
v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
“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.” Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313;
Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ..., the
responsibility then devolves upon the non-movant to show the existence of a genuine
issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving party fails to
make ‘a sufficient showing on an essential element of her case with respect to which she
has the burden of proof,’ the moving party is entitled to summary judgment.” Clark, 929
F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of fact as required by Rule 56(c), the
court may … consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all reasonable
inferences, must be viewed in the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence supporting a
party’s position.2 Accordingly, the Court limits its review to the exhibits, and to the
specific portions of the exhibits, to which the parties have expressly cited. Likewise,
“[t]here is no burden upon the district court to distill every potential argument that could
be made based upon the materials before it on summary judgment,” Resolution Trust
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may
consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,
672 (10th Cir. 1998) (“The district court has discretion to go beyond the referenced portions of
these [summary judgment] materials, but is not required to do so.”).
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly
limits its review to those arguments the parties have expressly advanced.
I. Excessive Force.
The excessive force claim is based on the three episodes noted above. As the
plaintiff acknowledges, (Doc. 113 at 2 n.2), none of the Correctional Officer defendants
participated in the first use of force on the morning of April 11. The plaintiff identifies
defendants Turner, Houston and Robinson as participating in the second use of force on
the afternoon of April 11. (Id. at 8-10, 24). And he identifies defendants Stallworth,
Love and Scott as involved in the third use of force on the morning of April 12. (Id. at
“As a general rule, causes of action in tort do not survive in favor of the personal
representative of the deceased.” Continental National Indemnity Co. v. Fields, 926 So.
2d 1033, 1037 (Ala. 2005). By statute, contract “claims upon which no action has been
filed” survive in favor of a personal representative, but the only tort claims that survive
are “personal claims upon which an action has been filed.” Ala. Code § 6-5-462. Section
6-5-462 “did not change the common-law rule in Alabama that a cause of action in tort
does not survive in favor of the personal representative of the deceased.” Fields, 926 So.
2d at 1037; accord Bassie v. Obstetrics & Gynecology Associates, 828 So. 2d 280, 282
(Ala. 2002) (“In Alabama, a deceased’s unfiled tort claims do not survive the death of the
putative plaintiff.”) (citing Section 6-5-462). The Alabama rule applies to actions
brought under Section 1983. Estate of Gilliam v. City of Prattville, 639 F.3d 1041, 1047,
1049-50 (11th Cir. 2011).
The Correctional Officer defendants do not challenge Gilliam’s proposition that,
“when a constitutional violation actually causes the injured party’s death, a § 1983 claim
can be asserted through the Alabama wrongful death statute ….” 639 F.3d at 1047-48.
They do, however, maintain that their alleged excessive force did not cause Hall’s death
and that the excessive force claims therefore abate under Gilliam. (Doc. 103 at 9).
The plaintiff responds by pointing to the testimony of his expert. (Doc. 113 at 29,
36-37). Dr. Turner testified that, on the morning he died, the plaintiff experienced an
episode of excited delirium,3 which caused his heart to go into arrhythmia and then stop.
(Turner Deposition at 25-26). She opined that the defendants’ struggle with Hall while
he was experiencing excited delirium further stressed his body and contributed to his
death, to the extent she labeled his death a homicide. (Id. at 28-29). The Correctional
Officer defendants in reply offer only the unexplained and plainly incorrect assertion that
the plaintiff has presented no medical evidence of causation. (Doc. 122 at 1-2).
The plaintiff offers no similar evidence concerning the second use of force. And
no wonder since, as the Correctional Officer defendants point out, (Doc. 122 at 2), his
expert testified that she had no way to determine whether the second incident contributed
to the excited delirium Hall experienced the following morning. (Turner Deposition at
33-34). With no evidence that the second use of force caused Hall’s death, the plaintiff’s
excessive force claim is abated as to that incident. Defendants Turner, Houston and
Robinson are thus entitled to summary judgment as to this claim.4
B. Fourteenth Amendment Analysis.
“Claims involving the mistreatment of … pretrial detainees in custody are
governed by the Fourteenth Amendment’s Due Process Clause instead of the Eighth
Amendment’s Cruel and Unusual Punishment Clause, which applies to such claims by
convicted prisoners.” Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005) (internal
quotes omitted). The Fourteenth Amendment thus applies to claims of excessive force by
pretrial detainees such as Hall, id., and the complaint properly invokes the Fourteenth
See generally Mann v. Taser International, Inc., 588 F.3d 1291, 1299 n.4 (11th Cir.
2009) (discussing the causes and symptoms of excited delirium).
The plaintiff’s cryptic insistence that the abatement argument is “of no moment,” (Doc.
113 at 24 n.11), is unsupported by argument or by his two unexplained case citations.
Amendment. (Doc. 1 at 2). Because “[a] claim of excessive force under the Fourteenth
Amendment is analyzed as if it were an excessive-force claim under the Eighth
Amendment,” courts “look to decisional law of excessive-force claims under both the
Fourteenth and Eighth Amendments.” Fennell v. Gilstrap, 559 F.3d 1212, 1216 n.5 (11th
“A jailor’s use of force against a pretrial detainee is excessive under the
Fourteenth Amendment if it shocks the conscience.” Fennell, 559 F.3d at 1217 (internal
quotes omitted). “The use of force does not shock the conscience if it is applied in a
good-faith effort to maintain or restore discipline.” Id. (internal quotes omitted).
“However, if the force is applied maliciously and sadistically to cause harm, then it does
shock the conscience, and is excessive under the Eighth or Fourteenth Amendments.” Id.
(internal quotes omitted).
“We consider the following factors in determining whether the force was applied
maliciously and sadistically to cause harm, and thus violated the Fourteenth Amendment:
a) the need for the application of force; b) the relationship between the need and the
amount of force that was used; c) the extent of the injury inflicted upon the prisoner; d)
the extent of the threat to the safety of staff and inmates; and e) any efforts made to
temper the severity of a forceful response.” Fennell, 559 F.3d at 1217. This listing was
adopted by the Supreme Court in Whitley v. Albers, 475 U.S. 312, 321 (1986). “When
considering these factors, we give a wide range of deference to prison officials acting to
preserve discipline and security, including when considering decisions made at the scene
of a disturbance.” Fennell, 559 F.3d at 1217 (internal quotes omitted). Moreover, “[w]e
examine the facts as reasonably perceived by [the defendant] on the basis of the facts
known to him at the time.” Id.
The evidence surrounding the April 12 application of force, construed most
favorably to the plaintiff, is as follows. Hall was scheduled for a court appearance in the
morning, which required that he be moved to a holding cell (the “THC”) for vehicular
transport to the courthouse. The correctional officers assigned to escort Hall to the THC
found him naked. They got him dressed and placed him in full restraints, meaning
handcuffs, leg irons and a belly chain. Hall became resistant upon learning he was going
to court. As they moved along the hallway towards the THC, he spoke about the devil
being out to get him and behaved erratically. He fidgeted and tussled with the officers,
tried to turn back towards his cell and repeatedly slid down the wall in an effort to sit,
despite their orders to keep moving and their explanations that he was being transported
The trio passed Stallworth’s door. Stallworth noticed the commotion, came into
the hallway and followed. When they reached the THC, Hall fought against entering it.
Stallworth tased Hall’s left buttock to get him to enter the THC, which he did.
Inside the THC, Hall continued to struggle. Within seconds he was on the floor of
the THC, where he can be seen on video5 rolling, crawling or squirming manically for an
extended period. At one point, the door to the THC opened and Hall began to exit on the
ground, feet first, before being pulled back inside. After several minutes, Hall had moved
to a portion of the THC that the video does not capture, but the ongoing commotion is
observable from the motions of officers still in the video’s sight and from the assortment
of persons passing by the THC and pausing to watch through the window. Hall
continued to wriggle and squirm on the floor throughout his time in the THC. He
repeatedly broke free of the multiple officers attempting to restrain him by holding him
and repeatedly crashed his head into the metal brackets supporting the room’s metal
While he struggled, Hall continued to talk and mumble wildly. Stallworth, who
was on the floor trying to restrain Hall by holding him about the torso, tried to reassure
Hall that going to court was likely to lead to his release from jail. But Hall insisted he did
not want to go to court, then said something about wanting to die and mentioning the
word “killing.” In response, Stallworth instructed an officer to summon medical
assistance. Dr. Smith, the staff psychiatrist, then arrived approximately 7:46 into the
video, observed through the window but did not enter the THC. For reasons that are not
A mounted video camera captured the action just outside the THC and, because the
THC has a window and its door was sometimes open, some of the action inside.
explained, an additional four minutes passed before medical staff administered
medication, which quickly quieted Hall. About two minutes later, a gurney arrived to
transport the now dying Hall.
Stallworth admits tasing Hall three times, but the plaintiff notes a report showing
her taser was activated five times during the sequence, including twice before she and
Hall entered the THC. Love, who entered the THC about two minutes after Hall, admits
tasing Hall one time, but the same report shows his taser was activated 13 times.6 Scott
admits hitting Hall with a baton one time, and the plaintiff offers no evidence that he
inflicted any different or additional force.
1. Need for the application of force.
“Prison guards may use force when necessary to restore order and need not wait
until disturbances reach dangerous proportions before responding.” Danley v. Allen, 540
F.3d 1298, 1307 (11th Cir. 2008) (internal quotes omitted). In Danley, “the need for the
use of force [was] established by the undisputed evidence that [the inmate] created a
disturbance.” Id. (internal quotes omitted); accord Cockrell v. Sparks, 510 F.3d 1307,
1311 (11th Cir. 2007). All of the evidence here reflects that Hall created and maintained a
disturbance by straining to break free of his escorting officers, by fighting against
entering the THC, and by continuing to struggle throughout his time in the THC. His
conduct was not merely disruptive but threatening, initially to the officers and ultimately
to himself. These circumstances presented an unquestionable need for the application of
force to restore order.
The plaintiff points to evidence of a standard protocol on the use of force, pursuant
to which force should not be used until “soft touch,” reason and verbal commands have
The tasing outside the THC occurs at approximately 0:20 on the video and at 8:14:01 on
Stallworth’s taser record. Love’s taser record shows his first activation at 8:14:17. Since he did
not arrive in the THC until approximately two minutes after Stallworth, his first activation must
have occurred at about 8:16:17 as measured by Stallworth’s taser record. Stallworth’s last
activation occurred at 8:18:19, or about 4:38 into the video. Love’s last activation occurred at
8:22:57 as measured by Stallworth’s taser record, or about 9:16 into the video.
all been tried and failed. (Doc. 113 at 28). The plaintiff identifies no failure in this
regard, and he does not explain how any such failure could have mattered, given that
Hall’s conduct was “motivated by irrationality,” not rational reflection. (Id. at 27). There
is not the slightest reason to believe that more polite requests for cooperation might have
rendered Hall compliant, obviating resort to force. At any rate, regardless of any such
policy, from a constitutional perspective “prison guards do not have the luxury or
obligation to convince every inmate that their orders are reasonable and well-thought
out.” Danley, 540 F.3d at 1307.
The plaintiff’s only other argument is that, given Hall’s irrationality, the use of
force against him was futile and thus unnecessary. (Doc. 113 at 27-28). The plaintiff
cites the testimony of other correctional officers that, based on their experience, mentally
disturbed persons do not respond to tasers, and he cites testimony from Stallworth and
Love indicating they realized Hall was mentally disturbed. But the plaintiff offers no
evidence that Stallworth or Love realized, from training or experience, that their tasers
thus had no chance of making Hall compliant.7 Because the test for excessive force
against pretrial detainees is subjective, it is the mental state of the individual officers that
matters, based on the facts known to those officers at the time. Fennell, 559 F.3d at
1217. Without evidence the defendants knew their use of force was pointless, the
plaintiff’s argument must fail.
Love testified that he did not know what effect the taser would have on Hall. (Love
Deposition at 34). The plaintiff claims that Stallworth admitted knowing that the use of force on
mentally disturbed inmates was ineffectual, (Doc. 113 at 27-28), but none of his deposition cites
support that proposition. The plaintiff notes that the jail had put on a training session 15 months
earlier entitled “Mental Illness Signs & Symptoms,” (Doc. 113, Exhibit Q), but he offers no
evidence that Stallworth or Love attended or that the session went beyond its title and advised
attendees that the use of force against mentally disturbed persons is futile.
The plaintiff also ignores the uncontroverted evidence that at least the initial application
of force was perfectly effective, as it prompted Hall to end his resistance to entering the THC.
2. Relationship between the need for force and the amount of force applied.
The plaintiff emphasizes that Hall was “tased” but does not acknowledge that Hall
experienced only the milder of the two forces a taser is capable of delivering. There is a
“stark contrast between the prong mode (which overrides the central nervous system and
disrupts muscle control) and the much less serious dry [or drive] stun mode (which
results merely in pain, a burning sensation).” Hoyt v. Cooks, 672 F.3d 972, 976 n.5 (11th
Cir. 2012). It is uncontroverted that only the drive stun mode was employed against Hall.
(Doc. 103, Attachment ¶¶ 134-41; Doc. 113, Attachment, ¶¶ 134-41).
The plaintiff also assumes that Hall was tased by Stallworth and Love a total of 18
times, on the grounds that their tasers were activated that many times. But “an
‘activation’ of the Taser does not mean that the Taser actually touched or stunned” Hall.
Hoyt, 672 F.3d at 976. In order to deliver pain, the taser must be “pressed against a
person’s body [when] the trigger is pulled.” Id. at 975 n.4. The plaintiff identifies no
evidence that each activation resulted in a drive-stun of Hall.
But suppose Hall was in fact tased, in drive-stun mode, 18 times over a nineminute period. Was that disproportionate to the need for force created by Hall’s conduct?
Was it so disproportionate as to suggest a sadistic and malicious intent to harm him?
In Mann v. Taser International, Inc., 588 F.3d 1291 (11th Cir. 2009), the plaintiff’s
decedent was arrested on minor charges in the midst of an excited delirium episode,
screaming about demons and devils that had stolen her treasure. The arresting officers
were informed that the arrestee had mental problems, was off her medication and needed
help. While handcuffed, the arrestee shouted accusations that the officers were trying to
plant evidence on her, and she slammed her head against the patrol car trunk. Once
inside the patrol car, and despite wearing leg shackles, the arrestee continued to kick
uncontrollably, shattering a window and bending the door frame, and she also slammed
her head against the vehicle door. The officers thereupon tased her three times
(apparently in prong mode), to little effect, and she died of cardiac arrest within an hour.
Id. at 1299-1301. The Eleventh Circuit ruled that the repeated tasings represented a
reasonable use of force under the Fourth Amendment because the arrestee’s conduct “was
violent, aggressive and prolonged” and because she “was clearly a danger to herself and
others.” Id. at 1306.
Because it was decided under the Fourth Amendment, where the test is one of
objective reasonableness rather than subjective intent to harm, Mann is not controlling
here, but it strongly supports the proposition that the tasing of Hall was not so
disproportionate to the need for force as to suggest the defendants acted sadistically and
maliciously. Like Hall, the arrestee in Mann threatened serious harm to herself by
slamming her head into hard objects. As with Hall, her physical exertions also could
have harmed law enforcement officers.8 Like Hall, she was restrained with handcuffs
and leg restraints. Like Hall, she acted mentally disturbed, and like Stallworth and Love,
the arresting officers recognized it. And like Hall, the arrestee in Mann was experiencing
excited delirium. Yet despite her restraints and confinement in a secure vehicle, and
despite her mental issues, the Eleventh Circuit found it reasonable to tase her in prong
mode and to keep doing so when the initial effort had no effect. The plaintiff does not
acknowledge Mann or attempt to explain why it is not devastating to his case.
Instead, the plaintiff argues the second Whitley factor weighs in his favor because:
(a) Hall was in physical restraints; (b) for most of the episode, he was lying on the floor;
and (c) he was doing nothing more than trying to crawl away from Stallworth. (Doc. 113
at 29). “When jailers continue to use substantial force against a prisoner who has clearly
stopped resisting – whether because he has decided to become compliant, he has been
subdued, or he is otherwise incapacitated – that use of force is excessive.” Danley, 540
F.3d at 1309. Hall, however, did not at any time during the episode become compliant.
That he was in physical restraints limited how he could resist, but it did not stop him from
resisting, as the factual summary recited above makes clear. His time on the floor was
not spent resting but violently wrenching away from the multiple officers trying
Before being placed in the squad car, the arrestee had flailed about in an effort to hit,
kick and head butt the officers. 588 F.3d at 1300.
unsuccessfully to restrain him. And Hall was not merely seeking solitude but was, as the
plaintiff puts it, “banging his head” on the metal benches. (Doc. 113 at 30).
The plaintiff insists that, regardless of how proportionate the use of force may
have appeared initially, at some point Stallworth and Love must have realized the tasers
were not quieting Hall, at which point further tasings were disproportionate. (Doc. 113 at
29). But Hall, it must be remembered, was repeatedly “banging his head” against
unyielding metal, (id. at 30), moving so violently that multiple officers could not keep
him from doing so. Faced with an ongoing risk that Hall would inflict brain injury or
even death on himself, and unable to immobilize him with their body strength alone, the
defendants’ continued use of tasers in the low, drive-stun mode remained proportionate to
the threat throughout the episode. The plaintiff’s bizarre suggestion that Stallworth and
Love should have let Hall keep striking his head rather than add to his discomfort the
drive-stun mode’s mild force, (id. at 29), is as unsupported as it is insupportable.9
Other than the tasers, the plaintiff identifies only a single application of force:
Scott’s striking Hall one time with a retractable baton. It is uncontroverted that Scott did
so only because Hall had grabbed Love by the arm and refused to release him. (Doc.
103, Attachment 1, ¶ 123; Doc. 113, Attachment 1, ¶ 123). The plaintiff makes no
argument that this application of force was disproportionate to the need.
3. Extent of the injury inflicted.
In his ten-word argument in support of this factor, the plaintiff identifies Hall’s
injuries as multiple taser burns and bruises, followed by death. (Doc. 113 at 29).10 He
does not pause to identify his evidence of burns and bruises, but the Court assumes he
relies on the autopsy report, which documents about 30 abrasions, over a dozen
There is no evidence that Stallworth delayed in summoning medical assistance. As
discussed infra note 15, she requested such help within five minutes after entering the THC.
The plaintiff does not claim any injury from being struck by Scott’s baton, presumably
because his own witness could find no evidence of blunt-force injury. (Sheffield Deposition at
contusions, and 14 “areas” or “clusters” of them. (Doc. 113, Exhibit W at 2-3). The
Court assumes that the plaintiff uses the term “burns” to refer to abrasions and the term
“bruises” to refer to contusions.
Neither the autopsy report nor any submitted deposition testimony pointed out to
the Court ties any particular abrasion or contusion to the April 12 incident. Indeed, the
plaintiff’s own witness cannot say how many of these insults predated Hall’s arrest.
(Sheffield Deposition at 34-35). And at least some of them plainly were inflicted by Hall
himself in the course of his violent flinging of his body against immovable objects, both
on April 12 and earlier.11
Nor has the plaintiff offered evidence of the sort of injury that a taser deployed in
drive-stun mode may inflict. A review of published cases indicates that burn marks are
predictable, but not bruises.12 Against the plaintiff’s evidentiary vacuum, the most injury
that can be attributed to the April 12 incident – and this is generous – is 18 abrasions, one
for each taser activation.
The plaintiff calls them burns, but his medical expert calls them abrasions. Some
abrasions can penetrate beyond the epidermis, but the autopsy report does not indicate
that any did so in Hall’s case; the plaintiff’s witness calls them merely “superficial
trauma.” (Sheffield Deposition at 28). Most of the abrasions were ¼-inch in dimension,
and only four (which have not been linked to the April 12 incident) exceeded one inch.
(Doc. 113, Exhibit W at 2-3). These injuries are no more serious than those in Danley,
which found the use of pepper spray not to support the third Whitley factor. “Pepper
spray is designed to disable a suspect without causing permanent physical injury. ... Any
injuries or discomfort Danley suffered as a necessary result of a dose of pepper spray
were neither substantial nor long lasting.” 540 F.3d at 1308 (internal quotes omitted).
Death, in contrast, is the ultimate injury. The problem for the plaintiff is that he
has not the tiniest sliver of evidence that Stallworth, Love or Scott intended to kill Hall or
Stallworth, for example, observed marks and bruises on Hall immediately prior to the
April 12 incident. (Stallworth Deposition at 71).
E.g., Marquez v. City of Phoenix, 693 F.3d 1167, 1171 (11th Cir. 2012).
had the slightest idea that their modest application of force would or even could work
such a devastating result. While the extent of injury is to be considered under Whitley,
“the core judicial inquiry … [is] not whether a certain quantum of injury was sustained
but rather whether force was applied … maliciously and sadistically to cause harm.”
Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 1175, 1178 (2010) (internal quotes omitted).
Degree of injury is relevant only to the extent it reflects on the mental state of the
defendant to restore discipline or to cause harm. When, as here, the injury received is
wholly disproportionate to what the defendants could reasonably expect, it does not aid
the plaintiff’s cause. Cockrell, 510 F.3d at 1311 (“There is no way that Deputy King
could have foreseen that a simple push would result in as much injury as Cockrell
unfortunately suffered. That the severity of the injury could not have been reasonably
anticipated makes it less likely that King acted maliciously and sadistically for the very
purpose of causing harm.”) (internal quotes omitted); Fennell, 559 F.3d at 1219 (“As
extensive as Fennell’s injuries are, we have held [in Cockrell] that this may be
outweighed by the officer’s inability to reasonably anticipate the severity of the injury.”).
The plaintiff has proffered no evidence that Stallworth, Love or Scott knew or should
have known: that Hall was experiencing excited delirium; that this condition could
trigger arrhythmia and cardiac arrest; that Hall had an enlarged heart and coronary
blockages that raised the chances of such a result, (Turner Deposition at 26); or that his
excited delirium (and thus his chances of dying) would or could be exacerbated by their
applications of force.
4. Extent of the threat.
The plaintiff points to evidence that Hall posed no risk of escape and, at some
point, ceased to be a threat to the officers. (Doc. 113 at 29-30). The relevant threats,
however, include threats to inmates. Hall was an inmate, and force can be employed to
prevent an inmate from harming himself. E.g., Nasseri v. City of Athens, 373 Fed. Appx.
15, 19 (11th Cir. 2010) (Fourteenth Amendment violation occurred where the plaintiff
“was not posing a threat to himself”); cf. Vinyard v. Wilson, 311 F.3d 1340, 1347-48 (11th
Cir. 2002) (in the Fourth Amendment arrest context, in which the court is to consider the
“threat to the safety of the officers or others,” the relevant threat includes the arrestee’s
“threat to … herself”) (internal quotes omitted); Mann, 588 F.3d at 1306 (same). Hall’s
wild thrashings, during which he repeatedly struck his head against hard metal, posed a
continuing threat to himself, and the danger of permanent brain injury or even death
plainly outweighed the minor injury to be expected from the use of tasers in the drivestun mode.
Nor is the existence of a physical threat an absolute prerequisite to the permissible
use of force. In Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990), for example, the
plaintiff was in his cell demanding to go to the gym when the defendants ordered him out
of his cell and applied force. Id. at 1530-31. The Court ruled that the plaintiff had
“created a disturbance,” which permitted the use of force, id. at 1533, even though the
locked-up plaintiff posed a threat to no one. See also Fennell, 559 F.3d at 1218
5. Efforts to temper the severity of the response.
“This factor allows the court to take into account efforts by the police to mitigate
the effects of the force that was applied.” Fennell, 559 F.3d at 1220. For example, “[t]he
immediate offer of medical assistance demonstrates an effort to temper the severity of the
response.” Ledlow v. Givens, 500 Fed. Appx. 910, 913 (11th Cir. 2012). As noted,
Stallworth summoned medical assistance even while still dealing with Hall’s violent
Apparently unaware of the focus of this factor, the plaintiff argues that Stallworth
and Love did not temper their response because they did not stop tasing Hall soon
enough. (Doc. 113 at 30). This is not the factor under which to consider such things but,
in any event, the argument fails just as it did under the first two Whitley factors.
It is worth noting that Stallworth and Love did in fact temper their response in the
way the plaintiff intends. In the first place, they employed tasers only in the “much less
serious” drive-stun mode,13 not in the prong mode. In the second place, they did not
discharge their tasers continuously; in the approximately nine minutes between the first
and last discharge, Stallworth’s and Love’s tasers activated a total of 1:18, with no
activation longer than seven seconds and only two longer than five seconds. (Doc. 113,
Exhibit B).14 In the third place, they did not rely exclusively on their tasers but, as the
video reflects, spent most of the period trying unsuccessfully to restrain Hall by holding
his legs and torso. (Stallworth Deposition at 81, 106). In the fourth place, Stallworth
summoned medical assistance early in the episode, and only the delay in receiving such
assistance required a continuation of the application of force.15
“In the absence of evidence that [the defendant] acted maliciously and
sadistically, [his] use of force does not shock the conscience, and thus did not violate the
Fourteenth Amendment.” Fennell, 559 F.3d at 1220. The same is so in this case.
Because there is no genuine issue of material fact as to whether Stallworth, Love and
Scott applied force maliciously and sadistically, they are entitled to summary judgment as
to this claim.
Hoyt, 672 F.3d at 976 n.5.
Since, as noted in Part I.B.2, activation is not synonymous with a strike, the total time
during which pain was actually administered is probably shorter.
Stallworth directed Corporal Packer to summon medical assistance. (Stallworth
Deposition at 81). Packer is seen leaving the THC at 5:49 on the video, or barely five minutes
after Hall entered the THC. Packer summoned Nurse Walton, who came to the THC, observed
the situation, and then went to advise Dr. Smith. (Doc. 113, Exhibit A at 24, 26). Dr. Smith
arrived 7:46 into the video, and medication was administered approximately four minutes later.
At least seven of the 18 activations of which the plaintiff complains occurred during the six
minutes between Stallworth’s request for help and its provision.
II. Deliberate Indifference.
Although all of the Correctional Officer defendants are named in Count Two, the
plaintiff has limited the claim to one against Turner, the shift commander from 7:00
Sunday evening to 7:00 Monday morning. (Doc. 113 at 32-34). Accordingly, the other
five defendants are entitled to summary judgment as to this claim.
In his principal brief, Turner expressly limits his abatement argument to the
plaintiff’s claims for excessive force and assault and battery.16 In his reply brief, he
argues for the first time that the deliberate indifference claim also abates. (Doc. 122 at
3). “District courts, including this one, ordinarily do not consider arguments raised for
the first time on reply.” Gross-Jones v. Mercy Medical, 874 F. Supp. 2d 1319, 1330 n.8
(S.D. Ala. 2012) (citing cases and explaining the underlying rationale). Turner offers no
reason the Court should depart from this well-established rule, and the Court declines to
“To prevail on a deliberate indifference to serious medical need claim, Plaintiffs
must show: (1) a serious medical need; (2) the defendants’ deliberate indifference to that
need; and (3) causation between that indifference and the plaintiff’s injury.” Mann, 588
F.3d at 1306-07. Turner argues that the plaintiff cannot satisfy any of these elements.
A. Serious Medical Need.
“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.” Mann, 588 F.3d at 1307 (internal quotes
omitted). “In the alternative, a serious medical need is determined by whether a delay in
treating the need worsens the condition.” Id. “In either case, the medical need must be
one that, if left unattended, poses a substantial risk of serious harm.” Id. (internal quotes
(Doc. 103 at 7 (discussion under the heading, “a. Excessive Force Claims Abate”); id.
at 7-8 (“[T]he court must first determine whether any of the claims for excessive force survive
Hall’s death.”); id. at 9 (“Therefore, all claims brought pursuant to 42 U.S.C. § 1983 for
excessive force, as well as all state law claims for assault and battery should be dismissed.”)).
omitted). “[I]n this circuit, it is established that psychiatric needs can constitute serious
medical needs . …” Steele v. Shah, 87 F.3d 1266, 1269 (11th Cir. 1996).
Turner argues that Hall’s mental condition did not constitute a serious medical
need because no physician had diagnosed it and a lay person would not easily have
recognized the need for medical attention. (Doc. 103 at 15). Clearly there was no
existing physician’s diagnosis, but how difficult would it have been to recognize that Hall
needed psychiatric help? All Turner argues is that being naked, talking to God, and
assaulting correctional officers would not raise an eyebrow in a jail setting, (id.), but this
is not everything that Hall did. There is evidence that various correctional officers also
witnessed Hall: crying on his hands and knees; hallucinating; staring vacantly; growling;
thinking he was God; ranting about angels and demons; refusing to dress because his
uniform smelled of smoke and would prevent the angels from reaching him; saying that
God forbade him to dress because Jesus Christ was speaking to him; announcing that he
was going to see Jesus in a few minutes; hitting his head on a wall; and brushing off
multiple tasings with no apparent effect. (Doc. 115 at 9-11). At least nine correctional
officers recognized that Hall was mentally disturbed, delusional, psychotic and/or crazy.
Turner cannot prevail on his argument without addressing this mountain of
evidence, yet he ignores it. He ignores as well the alternate measure of a serious medical
need, i.e., the effect of delay on the condition. Turner’s superficial treatment is
inadequate to demonstrate his right to summary judgment on this ground.
B. Deliberate Indifference.
In order to satisfy this element, a plaintiff “must show: (1) subjective knowledge
of a risk of serious harm; (2) disregard of that risk; and (3) conduct that is more than mere
negligence.” Mann, 588 F.3d at 1307 (internal quotes omitted).
1. Subjective knowledge.
To satisfy the first prong of the second element, the degree of risk must be
“substantial.” E.g., Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). In order
to have subjective knowledge, the defendant “must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Rodriguez v. Secretary for Department of Corrections, 508 F.3d
611, 617 (11th Cir. 2007) (internal quotes omitted). “[I]mputed or collective knowledge
cannot serve as the basis for a claim of deliberate indifference. Each individual
Defendant must be judged separately and on the basis of what that person knows.”
Harper v. Lawrence County, 592 F.2d 1227, 1234 (11th Cir. 2010) (internal quotes
Turner does not deny that he was aware of facts from which the inference could be
drawn that Hall faced a substantial risk of serious harm. In a single, unexplained halfsentence, he posits that he had no “subjective knowledge of such serious medical need.”
(Doc. 103 at 16). Assuming without deciding that Turner, despite not saying so, should
be credited with asserting he lacked subjective knowledge of a substantial risk of serious
harm to Hall, his failure to support the argument in any fashion requires its rejection.
A defendant’s subjective awareness of a substantial risk of serious harm is
“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.” Goebert v. Lee County, 510 F.3d 1312,
1327 (11th Cir. 2007) (internal quotes omitted). The plaintiff has presented evidence that
Turner knew on Sunday: that Hall had assaulted a correctional officer the previous night;
that he had been combative, uncooperative and hyper during that episode; that he was
acting crazy in his cell on Sunday afternoon, moving around waving his hands and saying
he could not put on a prison uniform because it smelled of smoke and the angels could
not get to him; that it took five officers to get Hall dressed and moved to another cell; that
Hall refused to wear handcuffs and became combative in the process; that, when the
officers took him to the floor, he kicked, screamed, and tried to swing his fist at the
officers; that he was tased (drive-stun mode) several times with no effect; and that, after
the move, he again stripped naked and began hitting his head against the wall while
talking about God. (Doc. 113, Exhibit C; id., Exhibit A at 16; Harris Deposition at 2122; Byrd Deposition at 36-38-39, 42, 58-59; Turner Deposition at 74-75). The danger
that Hall, with his chronic violence and erratic behavior, would suffer serious harm from
banging his head against the wall of his cell (conduct that Turner witnessed) would seem
obvious. See Thomas v. Bryant, 614 F.3d 1288, 1300-01, 1309, 1316 (11th Cir. 2010)
(inmate suffered “serious head injuries” requiring emergency room treatment from
banging his head on his steel bunk and cell door, which conduct constituted “selfinjurious behavior” reflecting that he was “at risk for … self-injury”). Without
addressing this evidence and its implications, which Turner fails to do, he cannot receive
summary judgment on this ground.
2. Disregard of the risk.
One “disregards that risk [of serious harm] by failing to take reasonable measures
to abate it.” Chandler v. Crosby, 379 F.3d 1278, 1296 (11th Cir. 2004) (internal quotes
omitted); accord Harper, 592 F.3d at 1235. The plaintiff’s theory is that Turner was
aware of Hall’s odd behavior but failed to notify either the mental health staff or
Stallworth (who relieved him on the morning of April 12). (Doc. 113 at 32-34). That is,
the plaintiff alleges that Turner failed to take the reasonable measure of reporting to these
persons what he knew about Hall.
Turner argues he did not disregard a risk of serious harm to Hall, because Hall was
seen by health care providers five times while incarcerated and was scheduled to see a
psychiatrist on Monday. (Doc. 103 at 16). This would appear to be a non sequitur, since
the conduct of others is not the conduct of Turner. Perhaps he means to say that doing
nothing was a reasonable measure to abate the danger to Hall because Hall was already
being cared for. Even with this favorable construction of his argument, Turner has not
shown that he was aware of all these visits.
First, Turner has identified no evidence that he was aware Hall had been seen by
two nurses (once after his Saturday night altercation and another after his Sunday
afternoon altercation). Nor has he shown his awareness that Hall was scheduled to see
Dr. Smith on Monday. He certainly could not have been aware on Sunday that a nurse
would be summoned to the THC on Monday morning after Stallworth requested
That leaves Turner to rely on Marcia Joiner, a social worker/counselor/therapist
who was the only mental health staff on duty that Sunday. There is uncontroverted
evidence that Turner knew Joiner had interviewed Hall on Sunday morning, determined
he was not suicidal, and ordered that he be moved from the suicide wing to the
administrative segregation wing. (Turner Deposition at 67-68). Turner says he was also
aware that Joiner saw Hall again on Sunday afternoon, after the move and while Hall was
hitting his head on the wall and talking about God. (Doc. 113, Exhibit A at 16). But
Joiner denies having met with Turner after Sunday morning. (Joiner I Deposition at 4748). On motion for summary judgment, the Court must credit the version most favorable
to the plaintiff, which means for present purposes that Turner could not have been aware
of a non-existent second visit by Joiner.
It was probably reasonable for Turner not to tell Joiner what he knew of Hall’s
conduct Saturday night, since he knew that Joiner had interviewed Hall on Sunday
morning. But, given Turner’s subjective awareness that Hall presented a substantial risk
of serious harm to himself, it is doubtful that his awareness of Joiner’s Sunday morning
interview of Hall would have rendered it reasonable not to inform her of Hall’s
subsequent conduct on Sunday afternoon, which included all of the following: acting
crazy; refusing to dress because it would interfere with the angels getting to him; fighting
five correctional officers at once; being repeatedly tased with no effect; stripping again
after the move; and beating his head against the wall while talking about God. This is the
very conduct that created the serious risk of substantial harm, and Turner has not even
argued, much less shown, that Joiner would be aware of this conduct even if not informed
by the correctional staff. Without addressing the matter, which Turner does not do, he
cannot obtain summary judgment on this ground.
Turner’s only argument as to this portion of the second element is that his
awareness that Joiner had seen Hall on Sunday afternoon when he was hitting his head on
the wall negates any culpable mental state. (Doc. 122 at 3-4). As discussed above,
however, there is evidence that Joiner did not see Hall on Sunday afternoon. Thus
collapses the predicate of Turner’s argument, such that he cannot obtain summary
judgment on this ground.17
Turner offers only his one-sentence ipse dixit that “[t]here is no evidence that any
action or omission on [his] part … caused Hall’s death.” (Doc. 103 at 16). Under
Celotex, Turner cannot shift the burden to the plaintiff simply by denying he can prove
his claim; instead, Turner must point to evidence either negating his causal connection to
Hall’s death or reflecting the plaintiff’s inability to establish such causation.18 Turner’s
one-liner accomplishes neither and thus cannot sustain his argument.
Turner insists he had the “right to rely on medical professionals for clinical
determinations.” Howell v. Evans, 922 F.2d 712, 723 (11th Cir.) (emphasis omitted), vacated,
931 F.2d 711 (11th Cir. 1991), reinstated, 12 F.3d 190, 190 n.* (11th Cir. 1994); see also
Williams v. Limestone County, 198 Fed. Appx. 893, 897 (11th Cir. 2006) (“Finally, supervisory
officials are entitled to rely on medical judgments made by medical professionals responsible for
prisoner care.”). But he has not shown that he had a right to leave Joiner ignorant of the
symptoms on which she would base any clinical determination.
See Clark, 929 F.2d at 608 (“Even after Celotex it is never enough simply to state that
the non-moving party cannot meet its burden at trial.”); cf. Hamilton v. Southland Christian
School, Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (on appeal, “[a] passing reference to an issue
in a brief is not enough, and the failure to make arguments and cite authorities in support of an
issue waives it”).
D. Qualified Immunity.
“[G]overnment 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Turner invokes this qualified
immunity. (Doc. 103 at 16-18).
“[T]he burden is first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority.” Harbert International, Inc. v. James, 157 F.3d 1271, 1281 (11th
Cir. 1998). The burden then shifts to the plaintiff to show that the defendant’s conduct
“violated a clearly established statutory or constitutional right.” Grayden v. Rhodes, 345
F.3d 1225, 1231 (11th Cir. 2003).
“[T]he burden is first on the defendant to establish that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority. ... If, and only if, the defendant does that will the burden shift to
the plaintiff to establish that the defendant violated clearly established law.” Harbert
International, 157 F.3d at 1281 (emphasis added). The reason is that an official acting
outside the scope of his discretionary authority “ceases to act as a government official
and instead acts on his own behalf,” so that “the policies underlying the doctrine of
qualified immunity no longer support its application.” Id.
For purposes of federal qualified immunity analysis, a defendant acts within his
discretionary authority when “his actions were undertaken pursuant to the performance of
his duties and within the scope of his authority.” Rich v. Dollar, 841 F.2d 1558, 1564
(11th Cir. 1988) (internal quotes omitted). For this inquiry, “[w]e 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).
The first prong of this test requires that the defendant “have been performing a
function that, but for the alleged unconstitutional infirmity, would have fallen within his
legitimate job description.” Holloman, 370 F.3d at 1266 (emphasis omitted). “The
inquiry is not whether it was within the defendant’s authority to commit the allegedly
illegal act,” but “whether the act complained of, if done for a proper purpose, would be
within, or reasonably related to, the outer perimeter of an official’s discretionary duties.”
Harbert International, 157 F.3d at 1282 (internal quotes omitted).19
As for the second prong, “[e]ach government employee is given only a certain
‘arsenal’ of powers with which to accomplish her goals.” Holloman, 370 F.3d at 1267.
“Pursuing a job-related goal through means that fall outside the range of discretion that
comes with an employee’s job is not protected by qualified immunity.” Id.
“[A] government official can prove he acted within the scope of his discretionary
authority by showing objective circumstances which would compel the conclusion that
his actions were undertaken pursuant to the performance of his duties and within the
scope of his authority.” Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011) (internal
quotes omitted). The Court must “interpre[t] the evidence in the light most favorable to
the plaintiff.” Townsend v. Jefferson County, 601 F.3d 1152, 1158 (11th Cir. 2010). The
quantum and quality of evidence necessary to meet the defendant’s burden “vary in
proportion to the degree of discretion inherent in the defendant’s office,” Harbert
International, 157 F.3d at 1282 (internal quotes omitted), but ordinarily “there must be a
showing by competent summary judgment materials of objective circumstances that
would compel th[e] conclusion” that the defendant acted within his discretionary
authority. Id. (internal quotes omitted). Certainly “[a] bald assertion that the acts were
taken pursuant to the performance of duties and within the scope of duties will not
suffice” to meet the defendant’s burden of proof. Id. (internal quotes omitted).
Turner’s challenged conduct is his failure to notify Joiner or Stallworth about
Hall’s conduct. That is an omission rather than an act, but Turner meets his burden by
For example, the issue is not whether a marshal has the authority to deliver a prisoner
into unconstitutional conditions but whether he has the authority to transport and deliver
prisoners. Harbert International, 157 F.3d at 1282 (describing Jordan v. Doe, 38 F.3d 1559,
1566 (11th Cir. 1994)).
showing that the omission “occurred while he was engaged in a discretionary duty.”
Goebert, 510 F.3d at 1329.
Turner says he was carrying out his duties as a jailer and therefore acting within
his discretionary authority. (Doc. 103 at 17). The plaintiff himself insists – with
appropriate evidentiary support – that Turner’s employer placed on him a duty to report
aberrant inmate behavior both to mental health staff and to the officer relieving him.
(Doc. 113 at 32, 33). Turner’s omission of that duty thus fell within his discretionary
authority for purposes of the qualified immunity analysis. See, e.g., Gullett v. Waugh,
2012 WL 6929166 at *2, *6 (S.D. Ala. 2012) (where the defendants had some
employment responsibility to provide safe jail conditions, their failures to act to
safeguard the plaintiff’s safety were within the scope of their discretionary authority);
Jackson v. Kile, 2007 WL 2570776 at *1, *5 (S.D. Ga. 2007) (where it was the sheriff’s
decision whether to grant or deny the plaintiff’s request for additional medical care, his
failure to approve such care was an omission within his discretionary authority).20
Because Turner has carried his threshold burden, the burden shifts to the plaintiff
to show that Turner’s conduct “violated a clearly established statutory or constitutional
right.” Grayden, 345 F.3d at 1231. The inquiry may be broken down into two parts: (1)
whether the facts alleged, if true, would establish a violation of Hall’s rights; and (2)
whether those rights were clearly established at the time of the alleged deprivation. Id.
Assuming without deciding that the discussion in Parts II.A-C satisfy the first prong, the
plaintiff has not satisfied the second.
To be clearly established, “pre-existing law must dictate, that is truly compel (not
just suggest or allow or raise a question about), the conclusion for every like situated
reasonable government agent that what the defendant is doing violates federal law in the
Because “discretionary authority,” for the peculiar purposes of qualified immunity,
extends to “purely ministerial activities,” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
1265 (11th Cir. 2004), it does not matter that Turner may have possessed no discretion not to
report Hall’s conduct. Accord McCoy v. Webster, 47 F.3d 404, 407 (11th Cir. 1995) (“In Jordan
v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994), we interpreted the term ‘discretionary authority’ to
include actions that do not necessarily involve an element of choice.”).
circumstances.” Lassiter v. Alabama A&M University, 28 F.3d 1146, 1150 (11th Cir.
1994) (en banc). “The relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
The law is clearly established if any of three situations exists. “First, the words of
the pertinent federal statute or constitutional provision in some cases will be specific
enough to establish clearly the law applicable to particular conduct and circumstances to
overcome qualified immunity, even in the total absence of case law.” Vinyard, 311 F.3d
at 1350 (emphasis omitted). “Second, ... some broad statements of principle in case law
are not tied to particularized facts and can clearly establish law applicable in the future to
different sets of detailed facts.” Id. at 1351. “Third, [when] the Supreme Court or we, or
the pertinent state supreme court has said that ‘Y Conduct’ is unconstitutional in ‘Z
Circumstances,’” then if “the circumstances facing a government official are not fairly
distinguishable, that is, are materially similar [to those involved in the opinion], the
precedent can clearly establish the applicable law.” Id. at 1351-52.
The plaintiff does not assert that Turner violated clearly established law under
these tests or any other. Because the burden is on the plaintiff, his silence is necessarily
fatal, and Turner is entitled to qualified immunity.
“Because qualified immunity is only a defense to personal liability for monetary
awards resulting from government officials performing discretionary functions, qualified
immunity may not be effectively asserted as a defense to a claim for declaratory or
injunctive relief.” Ratliff v. DeKalb County, 62 F.3d 338, 340 n.4 (11th Cir. 1995). The
complaint, however, seeks only monetary relief. (Doc. 1 at 28-29). Qualified immunity
thus provides Turner a complete defense.
III. State Claims.
The circumstances supporting these claims extend no further than those advanced
in favor of the federal claims. Thus, to the extent Counts Four and Five are based on the
use of force on April 11 by Turner, Houston and Robinson, they are abated for reasons
addressed in Part I.A. This leaves for consideration only the April 12 use of force by
Stallworth, Love and Scott (which is asserted both as negligence and as assault and
battery) and Turner’s failure to notify others of Hall’s behavior (which is asserted as
negligence). (Doc. 1 at 17-18).
The defendants’ only substantive argument is the one-sentence assertion that
“there has been no evidence presented that any of the Corrections Officers’ action[s]
caused the death of Mr. Hall.” (Doc. 103 at 20). As discussed in Part I.A, the plaintiff
does in fact have evidence that the April 12 use of force contributed to Hall’s death. And
as discussed in Part II.C, Turner’s ipse dixit fails to satisfy his initial burden on motion
for summary judgment.
The defendants’ only other arguments concern immunity, of two types: sheriff
immunity and state-agent immunity. (Doc. 103 at 18-20). The Court considers these in
A. Sheriff Immunity.
The defendants argue they are immune pursuant to Sections 14-6-1 and 36-22-3 of
the Alabama Code. (Doc. 103 at 18-19). Amendments to these provisions provide that
jailers partake of their employing sheriff’s immunity “as long as [they are] acting within
the line and scope of [their] duties and [are] acting in compliance with the law.” The
amendments were passed in 2011 – before suit was filed but after the defendants’ conduct
occurred. The threshold question is thus whether the amendments apply in this case. A
second question is whether the defendants “act[ed] in compliance with the law.”
As best the Court can determine, the Alabama courts have not resolved the
retroactivity issue posed by the 2011 amendments. The plaintiff cites Ex parte Burnell,
90 So. 3d 708 (Ala. 2012), but the Court does not find it dispositive. In Burnell, the
Supreme Court dropped a footnote stating that “[t]he 2011 amendments are not
applicable in this case,” id. at 714 n.2, but the statement is unexplained, ambiguous21 and
dicta.22 The Court is aware that two sister Courts have construed Burnell “‘to mean that
the recently-enacted immunity amendments do not apply to conduct which occurred
before their effective date,’”23 but the Court believes that further investigation is required.
“Retrospective application of an act is disfavored unless 1) the act expressly states
that it is to be applied retrospectively; 2) the Legislature clearly intended the act to have
retrospective application; or 3) the act is of a remedial nature.” Ex parte East Alabama
Health Care Authority, 814 So. 2d 260, 262 (Ala. 2001). The Correctional Officer
defendants concede the first two circumstances do not exist, but they argue the 2011
amendments are remedial in nature. (Doc. 103 at 18-19).
Remedial statutes are “those which do not create, enlarge, diminish, or destroy
vested rights.” East Alabama, 814 So. 2d at 262; accord Street v. City of Anniston, 381
So. 2d 26, 29 (Ala. 1980) (“‘Remedial statutes’ … do not create new rights or take away
vested ones ….”). “Remedial statutes are exemplified by those that impair no contract or
vested right, … but preserve and enforce the right and heal defects in existing laws
prescribing remedies.” Ex parte Bonner, 676 So. 2d 925, 926 (Ala. 1995) (internal
quotes omitted). Remedial statutes are those that affect procedural rights or, more
precisely, only procedural rights. Alabama Insurance Guaranty Association v. Mercy
Medical Association, ___ So. 3d ___, 2013 WL 563412 at *4 (Ala. 2013); East Alabama,
814 So. 2d at 862 (remedial statutes “addres[s] procedure only”) (internal quotes
omitted). On the flip side, substantive statutes “are those that create, enlarge, diminish,
Since suit in Burnell was brought before the amendments were passed, see 90 So. 3d at
709, the Court may have considered the amendments inapplicable on that basis rather than
because the underlying conduct preceded the amendments.
The Court ruled that the defendant possessed constitutional immunity, 90 So. 3d at
710, 715, rendering any discussion of statutory immunity unnecessary to the decision. E.g., Ex
parte Patton, 77 So. 3d 591, 596 (Ala. 2011) (language not essential to the holding is dicta).
Kruse v. Byrne, 2012 WL 5469801 at *11 (S.D. Ala.), report and recommendation
adopted, 2012 WL 5470604 (S.D. Ala. 2012) (quoting Johnson v. Conner, 2012 WL 3962012 at
*6 (M.D. Ala. 2012)).
or destroy vested rights” and are not retroactive unless the legislature so provides. Mercy
Medical, 2013 WL 563412 at *4.
Using these definitions, it is difficult to imagine how a statute creating a new
immunity from suit could possibly be viewed as remedial and not substantive. Perhaps
this is most easily seen by considering the opposite scenario. Suppose jailers possessed
statutory immunity in 2010 but, in 2011, the Alabama Legislature abolished that
immunity. Would the Correctional Officer defendants agree that the legislature had
effectively stripped them of their immunity after they engaged in the conduct for which
they were then immune? They would certainly insist that, in 2010, they possessed a
vested right in immunity for their 2010 conduct and that a later statute destroying that
vested right could not be remedial so as to apply retroactively. And they would be
But what is sauce for the goose is sauce for the gander. A statute creating a new
immunity creates a new vested right in jailers and simultaneously destroys the plaintiff’s
vested right in his cause of action against the jailers. This is precisely the sort of legal
change that cannot apply retroactively without express or obvious legislative approval.25
The Alabama Supreme Court hinted at this result in Slagle v. Parker, 370 So. 2d
947 (Ala. 1979). There, the plaintiffs complained that the legislature had created an
immunity in favor of co-employees sued for wrongful death. The Court ruled that, since
the plaintiffs’ causes of action arose after the legislature acted, they had no “vested right”
in the previous regime that could implicate due process concerns. Id. at 949-50. The
See Myers v. Philip Morris Companies, Inc., 50 P.3d 751, 758 (Cal. 2002) (repeal of
statutory immunity could not apply retroactively absent express legislative intent); Moshe v.
Anchor Organization, 557 N.E.2d 451, 460 (Ill. App. 1990) (statutory elimination of immunity
created new rights and obligations, was thus substantive, and therefore could not be applied
retroactively without express or obvious legislative intent).
Cf. Rupp v. Bryant, 417 So. 2d 658, 660-61, 665-66 (Fla. 1982) (the plaintiff had a
vested right to sue a defendant unprotected by immunity, which right could not be taken away by
retroactive legislation granting immunity; given due process concerns, even express legislative
intent for retroactive application was insufficient).
implication, at least, is that they would have had a vested right to sue the co-employees
free of immunity concerns had their decedents died before the immunity was created.
This is consistent with the interpretation of the constitutional guarantee that “every
person, for any injury done him, … shall have a remedy by due process of law ….” Ala.
Const. art. I, § 13. The decisions construing Section 13 have followed a “vested rights”
approach, under which plaintiffs obtain a vested right in a cause of action when that cause
of action accrues. E.g., Baugher v. Beaver Construction Co., 791 So. 2d 932, 934 (Ala.
2000). There is no reason to believe that the term “vested rights” carries a different
meaning for purposes of retroactivity than it does for purposes of Section 13. The
plaintiff’s cause of action unquestionably accrued in April 2010, when the challenged
conduct occurred and Hall died.
Statutes altering the limitations period are considered remedial, such that an
amendment shortening the relevant period applies to causes of action that accrued before
the amendment. Foster v. Hacienda Nirvana, Inc., 32 So. 3d 1256, 1259-60 (Ala. 2009);
accord Street, 381 So. 2d at 29. But the legislature cannot thereby cut off a plaintiff’s
existing right to sue; instead, it must provide a reasonable time for existing causes of
action to be brought. Id. The reason, though unstated, presumably is that the plaintiff has
a vested right to sue on state claims once his cause of action accrues, which right cannot
be destroyed by retroactive legislation. Similarly, the plaintiff in 2010 had a vested right
to sue the Correctional Officer defendants on state claims, which right would be
destroyed by retroactive immunity.
The Correctional Officer defendants do not apply the key legal principles or come
to grips with their implications. Instead, they simply cite an unpublished Wisconsin case
for the proposition that “[a] statute enacted to lessen liability is remedial in nature.”
(Doc. 103 at 19). The case does not stand for exactly that proposition, it was not
addressing the test for retroactivity in any event, and it is neither a product of, nor
endorsed by, the Alabama courts. It is, in a word, irrelevant.
The Court’s task is to predict how the state’s highest court would answer the
retroactivity issue and to apply that predicted response. E.g., Molinos Valles del Cibao,
C. por A. v. Lama, 633 F.3d 1330, 1348 (11th Cir. 2011). For the reasons expressed
above, the Court predicts that the Alabama Supreme Court would not apply the 2011
amendments retroactively to conduct predating the amendments.
2. Action in Compliance with the Law.
Even had the Correctional Officer defendants shown that the 2011 amendments
apply retroactively to their conduct, they have not attempted to show they were “acting in
compliance with the law,” as that immunity demands.26 Their failure might be excusable
if the burden lay with the plaintiff to demonstrate the negative rather than with the
defendants to demonstrate the affirmative, but the defendants have not articulated even
that burden-shifting argument and have thus left the burden on themselves. Their silence
is necessarily inadequate to meet that burden.
Because the 2011 amendments do not apply retroactively, and because the
Correctional Officer defendants have not shown the statute to be satisfied in any event,
they are not entitled to immunity under those amendments.
B. State-Agent Immunity.
The Correctional Officer defendants argue they are entitled to state-agent
immunity under Ex parte Cranman, 792 So. 2d 392 (Ala. 2000). (Doc. 103 at 19-20).
“A State agent asserting State-agent immunity bears the burden of demonstrating
that the plaintiff’s claims arise from a function that would entitle the State agent to
immunity.” Ex parte City of Montgomery, 99 So. 3d 282, 293 (Ala. 2012) (internal
quotes omitted). “Should the State agent make such a showing, the burden then shifts to
The Alabama Supreme Court has declined to answer a certified question seeking
guidance on how to interpret this phrase, leaving its import unclear. Sawyer v. Collins, ___ So.
3d ___, 2013 WL 2278608 (Ala. 2013).
the plaintiff to show that one of the two categories of exceptions to State-agent immunity
… is applicable.” Id. (internal quotes omitted).
1. State agent.
The threshold question is whether the Correctional Officer defendants are state
agents. The Cranman test applies to “State employees sued in their individual
capacities.” Ex parte Butts, 775 So. 2d 173, 177 (Ala. 2000); accord Ex parte Fielding,
86 So. 3d 354, 359 n.2 (Ala. 2011). So, if a defendant is a state employee, he or she is
also a state agent for purposes of state-agent immunity.
A sheriff is a state officer. Ala. Const. art. V, § 112; Parker v. Amerson, 519 So.
2d 442, 443, 446 (Ala. 1987). “Since the sheriff is a state officer by virtue of [Section
112], deputy sheriffs are likewise considered state employees.” Etowah County
Commission v. Grant, 10 So. 3d 1009, 1012 (Ala. Civ. App. 2007). Other persons hired
by the sheriff are also considered state agents for purposes of immunity. See Wilson v.
Manning, 880 So. 2d 1101, 1108-09 (Ala. 2003) (applying Cranman to a defendant
working for a sheriff’s department as the jail’s director of nursing). The sheriff appoints
a jailer and other jail personnel,27 and “it is well established that … jailers … are
employees of the sheriff ….” Anderson v. Lee County, 2010 WL 550995 at *2 (M.D.
Ala. 2010). The Correctional Officer defendants all were employed by the sheriff’s
department. (Stallworth Deposition at 6; Love Deposition at 5; Scott Deposition at 7;
Turner Deposition at 6). The Court thus concludes that the Correctional Officer
defendants were all state employees and therefore state agents. The plaintiff does not
2. Function supporting immunity.
The fourth category of function giving rise to state-agent immunity is “exercising
judgment in the enforcement of the criminal laws of the State.” Cranman, 792 So. 2d at
Ala. Code §§ 14-6-1, -105.
405. “Whether those performing [the duties of a correction officer] bear the title of jail
guard, warden or correction officer, overseeing the custody and punishment of law
violators is as much a part of law enforcement as undertaking the detection and
apprehension of such violators.” Howard v. City of Atmore, 887 So. 2d 201, 204 (Ala.
2003) (internal quotes omitted). “Thus, the [fourth] Cranman categor[y] include[s] the
guarding of a city jail by a regular municipal police officer.” Id. at 206. The
Correctional Officer defendants cite no case applying Howard to a jail operated by a
sheriff rather than a city, but the plaintiff suggests, and the Court finds, no reason to
believe the rule is any more stringent in that situation.28 From the discussion in Parts I
and II, it is clear that the Correctional Officer defendants were exercising judgment in the
performance of their law-enforcement duties of guarding inmates. The plaintiff does not
argue otherwise. The defendants have thus met their burden of showing their entitlement
to state-agent immunity.
3. Exceptions to immunity.
The Cranman Court identified several exceptions to state-agent immunity. 792
So. 2d at 405. Of these, the plaintiff lists malice, willfulness and bad faith. (Doc. 113 at
36). As this Court has previously noted, “[f]or purposes of the immunity issue, ‘willful,’
‘malicious’ and ‘bad faith’ all require evidence that the defendant acted with the intent to
injure or with ill will towards the plaintiff.” Lawrence v. City of Fairhope, 2010 WL
1658786 at *13 (S.D. Ala. 2010). As discussed in Part I.B, the plaintiff has no evidence
Howard’s requirement that the defendant be a “regular municipal police officer” is a
function of Section 6-5-338(a), which extends state-agent immunity only to a narrow range of
city employees. Under that provision, “a municipal jailer who lacks the authority of a police
officer cannot claim immunity under concepts applicable to the immunity of a State agent ….”
Walker v. City of Huntsville, 62 So. 3d 474, 501 (Ala. 2010). The limitations of Section 6-5338(a) affect only city employees, not state employees such as the Correctional Officer
defendants. It is therefore irrelevant that Stallworth has never been a sworn officer. (Stallworth
Deposition at 9).
that Stallworth, Love or Scott acted maliciously with an intent to cause harm, and he
advances no discernible argument as to Turner.29
The state claims against Houston and Robinson are abated, as are the claims
against Turner arising from the April 11 application of force. The defendants have stateagent immunity from the remaining state claims.
For the reasons set forth above, the Correctional Officer defendants’ motion for
summary judgment is granted. Judgment shall be entered accordingly by separate order.
DONE and ORDERED this 5th day of July, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The plaintiff notes that state agents may lose immunity if they act beyond their
authority, (Doc. 113 at 36), but he neither alleges that the Correctional Officer defendants so
acted nor offers any basis for such an allegation.
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