Ex parte Harvey Ruffin, Shelton Patterson, Sandra Giles and Kenneth Jones.

Rel: 08/29/2014

Notice: This opinion is subject to formal revision before publication in the advance

sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,

Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)

229-0649), of any typographical or other errors, in order that corrections may be made

before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

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Ex parte Harvey Ruffin, Shelton Patterson, Sandra Giles, and

Kenneth Jones

PETITION FOR WRIT OF MANDAMUS

(In re: Thomas Donahey, Jr.

v.

Harvey Ruffin, Shelton Patterson, Sandra Giles,

and Kenneth Jones)

(Montgomery Circuit Court, CV-12-0702)

MAIN, Justice.

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Lt. Harvey Ruffin, a correctional officer at the Bullock

Correctional Facility ("the facility"); Sgt. Shelton

Patterson, a correctional officer at the facility; Sandra

Giles, the deputy warden of the facility; and Kenneth Jones,

the warden of the facility (hereinafter referred to

collectively as "the petitioners"), the defendants in an

action filed by Thomas Donahey, Jr., petition for a writ of

mandamus directing the Montgomery Circuit Court to grant their

motion for a summary judgment on the ground that they are

entitled to immunity. We grant the petition and issue the

writ.

I. Facts and Procedural History

On July 25, 2010, Donahey was attacked and injured while

in the custody of the Mental Health Residential Therapeutic

Unit of the facility. Donahey was stabbed several times with

an ink pen by another inmate, Bruce Smith. During the

incident, one of the facility's correctional officers observed

several inmates running from one of the inmate dorms. The

fleeing inmates reported that another inmate was being

stabbed. The correctional officer radioed for immediate

assistance. Two correctional officers responded to the call

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for assistance, including Lt. Ruffin. Lt. Ruffin responded

and observed Donahey "sitting on the side of his bed bleeding"

and Smith "standing behind Donahey, with his hands held over

his head, and stating that 'the voices' had told him to attack

Donahey." Donahey was taken to the facility's health-care

unit for medical treatment and was later released back to his

dormitory. Smith was handcuffed and taken to the facility's

stabilization/segregation unit and was charged with assaulting

another inmate.

On July 6, 2012, Donahey, acting pro se, sued Lt. Ruffin,

Warden Jones, Deputy Warden Giles, and Sgt. Patterson, who was

allegedly present while Donahey was being treated in the

health-care unit following the attack. Donahey alleged that

the petitioners negligently, wantonly, and recklessly failed

to protect him from an attack by another inmate. In his

complaint, Donahey alleged that the petitioners knew that

Smith had a history of violence and that he had attacked other

inmates and prison guards. Donahey also alleged that the

petitioners knew that Smith did not like Donahey and that they

should not have housed Donahey and Smith together. Donahey

also alleged that the failure to protect him from the attack

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constituted a violation of his rights under the Eighth

Amendment to the United States Constitution. Donahey demanded

judgment in the amount of $250,000 in compensatory damages and

$250,000 in punitive damages.1

On August 28, 2013, the petitioners jointly moved for a

summary judgment on the ground that they are immune from

Donahey's lawsuit. Each petitioner submitted an affidavit in

support of the summary-judgment motion. Lt. Ruffin testified

that, contrary to Donahey's claims that Smith was known to be

violent, Smith's last disciplinary infraction involving any

form of violence was in 2005. The petitioners testified that

both Donahey and Smith were housed at the mental-health unit

and both were receiving treatment for mental-health issues.

Warden Jones testified that inmates are routinely housed

together unless there is a compelling reason to segregate

particular inmates from the general population. The

petitioners described the attack as "spontaneous." They

testified that the security staff responded immediately to the

attack and that medical aid was promptly rendered to Donahey,

while Smith was placed in the segregation unit and charged

1

Donahey did not request injunctive or declaratory relief.

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with a disciplinary violation. Deputy Warden Giles testified

that there was nothing that would have given the correctional-

security staff reason to foresee Smith's attack on Donahey.

Although Sgt. Patterson testified that he did not recall being

present at the time of the incident, he stated that security

personal quickly notify the mental-health staff any time they

witness an inmate in mental distress.

Donahey filed no response and submitted no evidence in

opposition to the summary-judgment motion.2 Thus the sworn

statements submitted by the petitioners were uncontroverted.

A hearing on the motion was held on November 6, 2013.3 On

November 7, 2013, the trial court entered an order denying the

summary-judgment motion without explanation. The petitioners

jointly petitioned for a writ of mandamus ordering the

Montgomery Circuit Court to enter a summary judgment in their

favor on the basis that they are immune from liability.

II. Standard of Review

Although the denial of a motion for a summary judgment is

generally not appealable, this Court has held that the denial

2

Nor did Donahey file an affidavit pursuant to Rule 56(f),

Ala. R. Civ. P., seeking time to conduct additional discovery.

3

No transcript of the hearing is in the record.

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of a motion for a summary judgment grounded on a claim of

immunity is reviewable by a petition for a writ of mandamus.

Ex parte Kennedy, 992 So. 2d 1276, 1280 (Ala. 2008). In such

case, we apply the following standard of review:

"'"While the general rule is that the denial of

a motion for summary judgment is not reviewable, ...

the denial of a motion for summary judgment grounded

on a claim of immunity is reviewable by petition for

writ of mandamus." Ex parte Rizik, 791 So. 2d 911,

912 (Ala. 2000). A writ of mandamus is an

extraordinary remedy available only when there is:

"(a) a clear legal right to the order sought; (2) an

imperative duty upon the respondent to perform,

accompanied by a refusal to do so; (3) the lack of

another adequate remedy; and (4) the properly

invoked jurisdiction of the court." Ex parte BOC

Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001).'"

Kennedy, 992 So. 2d at 1280 (quoting Ex parte Nall, 879 So. 2d

541, 543 (Ala. 2003)).

III. Analysis

The petitioners invoke a pantheon of immunity defenses.

With regard to Donahey's claims that the petitioners

"negligently, wantonly, and recklessly" failed to protect

Donahey from harm, the petitioners contend that they are

entitled to State-agent immunity. As to Donahey's 42 U.S.C.

§ 1983 claim, based on the alleged violation of his Eighth

Amendment rights, the petitioners assert that they are

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entitled to qualified immunity. Finally, the petitioners

argue that, to the extent they are sued in their official

capacities, they are entitled to sovereign immunity. We

discuss each argument in turn.

A. State-law claims

The petitioners contend that they are entitled to the

protection of State-agent immunity with regard to Donahey's

claims that the petitioners "negligently, wantonly, and

recklessly" failed to protect him from attack. The

petitioners are all employees of the Alabama Department of

Corrections ("the DOC"). We have previously held that

"employees of the DOC are entitled to State-agent immunity

when in conducting the activities made the basis of the action

they were exercising 'judgment in the administration' of the

DOC." Carpenter v. Tillman, 948 So. 2d 536, 538 (Ala. 2006).

The restatement of State-agent immunity as set out in Ex

parte Cranman, 792 So. 2d 392 (Ala. 2000), governs the

determination of whether a State agent is entitled to

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immunity.4 This Court, in Cranman, stated the test for

State-agent immunity as follows:

"A State agent shall be immune from civil

liability in his or her personal capacity when the

conduct made the basis of the claim against the

agent is based upon the agent's

"(1) formulating plans, policies, or designs; or

"(2) exercising his or her judgment in the

administration of a department or agency of

government, including, but not limited to, examples

such as:

"(a) making administrative

adjudications;

"(b) allocating resources;

"(c) negotiating contracts;

"(d) hiring, firing, transferring,

assigning, or supervising personnel; or

"(3) discharging duties imposed on a department

or agency by statute, rule, or regulation, insofar

as the statute, rule, or regulation prescribes the

manner for performing the duties and the State agent

performs the duties in that manner; or

"(4) exercising judgment in the enforcement of

the criminal laws of the State, including, but not

limited to, law-enforcement officers' arresting or

attempting to arrest persons; or

4

The test set out in Cranman, a plurality opinion, was

subsequently adopted by a majority of the Court in Ex parte

Butts, 775 So. 2d 173 (Ala. 2000).

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"(5) exercising judgment in the discharge of

duties imposed by statute, rule, or regulation in

releasing prisoners, counseling or releasing persons

of unsound mind, or educating students.

"Notwithstanding anything to the contrary in the

foregoing statement of the rule, a State agent shall

not be immune from civil liability in his or her

personal capacity

"(1) when the Constitution or laws of the United

States, or the Constitution of this State, or laws,

rules, or regulations of this State enacted or

promulgated for the purpose of regulating the

activities of a governmental agency require

otherwise; or

"(2) when the State agent acts willfully,

maliciously, fraudulently, in bad faith, beyond his

or her authority, or under a mistaken interpretation

of the law."

Cranman, 792 So. 2d at 405. This Court has also stated:

"'This Court has established a "burden-shifting"

process when a party raises the defense of

State-agent immunity.' Ex parte Estate of Reynolds,

946 So. 2d 450, 452 (Ala. 2006). 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.' 946 So. 2d at 452. Should the State agent

make such a showing, the burden then shifts to the

plaintiff to show that one of the two categories of

exceptions to State-agent immunity recognized in

Cranman is applicable. The exception being argued

here is that 'the State agent acted willfully,

maliciously, fraudulently, in bad faith, or beyond

his or her authority.' 946 So. 2d at 452. One of

the ways in which a plaintiff can show that a State

agent acted beyond his or her authority is by

proffering evidence that the State agent failed '"to

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discharge duties pursuant to detailed rules or

regulations, such as those stated on a checklist."'

Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala.

2003) (quoting Ex parte Butts, 775 So. 2d [173,] 178

[(Ala. 2000)])."

Ex parte Kennedy, 992 So. 2d at 1282–83.

There appears to be no dispute that the petitioners are

State agents who, at the time of the incident, were performing

a function -– managing the confinement of and/or guarding

prisoners with mental illness -– that entitles them to State-

agent immunity. See Howard v. City of Atmore, 887 So. 2d 201,

206 (Ala. 2003)("Categories (3) and (4) of [the Cranman]

restatement are clearly broad enough to contemplate the

confinement of prisoners, which is the conduct in controversy

here."). Accordingly, the burden shifted to Donahey to

establish the applicability of one of the Cranman exceptions.

He failed to do so.

The record before us indicates that Donahey filed no

response in opposition to the petitioners' motion for a

summary judgment, nor has Donahey offered any evidence

indicating that one of the exceptions in Cranman to State-

agent immunity is applicable. Therefore, Donahey did not meet

his burden of establishing that the petitioners were not

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entitled to State-agent immunity with regard to the State-law

claims asserted against them in their individual capacities.

Accordingly, the respondents are entitled to State-agent

immunity as to the claims that they "negligently, wantonly,

and recklessly" failed to protect Donahey from an attack by

Smith.

B. Civil-rights claims

Next the petitioners assert that Donahey's claim that the

petitioners violated his civil rights under the Eighth

Amendment, a claim made pursuant to 42 U.S.C. § 1983, is

barred by the doctrine of qualified immunity. The doctrine of

qualified immunity generally shields government officials who

are performing discretionary functions from liability for

civil damages unless their conduct violates "clearly

established statutory or constitutional rights." Ex parte

Madison County Bd. of Education, 1 So. 3d 980, 990 (Ala.

2008). The United States Supreme Court has recently described

the doctrine as follows:

"'The doctrine of qualified immunity protects

government officials "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."' Pearson v. Callahan, 555 U.S. 223, 231

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(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)). Qualified immunity 'gives government

officials breathing room to make reasonable but

mistaken judgments,' and 'protects "all but the

plainly incompetent or those who knowingly violate

the law."' Ashcroft v. al-Kidd, 563 U.S. __, __ [131

S.Ct. 2074, 2085] (2011)(quoting Malley v. Briggs,

475 U.S. 335, 341 (1986)). '[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.' Anderson v. Creighton, 483

U.S. 635, 639 (1987)(citation omitted)."

Messerschmidt v. Millender, 565 U.S. ___, ___, 132 S.Ct. 1235,

1244-45 (2012).

This Court has recognized a two-part test to determine

whether a public official is entitled to qualified immunity

in a § 1983 action:

"In deciding whether a public official ... is

entitled to qualified immunity in a § 1983 action,

this Court employs the following two-step analysis:

"'"'1) The defendant public official

must first prove that "he was acting within

the scope of his discretionary authority

when the allegedly wrongful acts occurred."

"'"'2) Once the defendant public

official satisfies his burden of moving

forward with the evidence, the burden

shifts to the plaintiff to show lack of

good faith on the defendant's part. This

burden is met by proof demonstrating that

the defendant public official's actions

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"violated clearly established

constitutional law."'"'"

Ex parte Sawyer, 876 So. 2d 433, 439 (Ala. 2003)(quoting Couch

v. City of Sheffield, 708 So. 2d 144, 155 (Ala. 1998), quoting

in turn Roden v. Wright, 646 So. 2d 605, 610 (Ala. 1994)).

The second prong is satisfied if the plaintiff proves that

"'(1) the defendant violated a constitutional right, and (2)

this right was clearly established at the time of the alleged

violation.'" Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158

(11th Cir. 2010) (quoting Holloman ex rel. Holloman v.

Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)).

In the present case, there appears to be no dispute that

the petitioners were acting within the scope of their

discretionary authority at the time of the incident. The

United States Court of Appeals for the Eleventh Circuit has

defined the term "discretionary authority" to include "all

actions of a governmental official that (1) 'were undertaken

pursuant to the performance of his duties,' and (2) were

'within the scope of his authority.'" Jordan v. Doe, 38 F.3d

1559, 1566 (11th Cir. 1994)(quoting Rich v. Dollar, 841 F.2d

1558, 1564 (11th Cir. 1988)). From all the evidence before

us, the petitioners were each working within the line and

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scope of their various positions at the facility at the time

of the allegedly wrongful acts complained of by Donahey, who

has submitted no evidence to the contrary. Accordingly, the

burden shifted to Donahey to show that the petitioners'

actions violated clearly established constitutional law.

Donahey contends that his injuries resulted from the

petitioners' alleged "deliberate indifference" to his safety.

"'A prison official's "deliberate indifference"

to a substantial risk of serious harm to an inmate

violates the Eighth Amendment.' Farmer v. Brennan,

511 U.S. 825, 828, 114 S.Ct. 1970, 128 L. Ed. 2d 811

(1994); see Helling v. McKinney, 509 U.S. 25, 1135

S.Ct. 2475, 125 L. Ed. 2d 22 (1993). '"[P]rison

officials have a duty ... to protect prisoners from

violence at the hands of other prisoners."' Farmer,

511 U.S. at 833, 114 S.Ct at 1976 (quotations and

citations omitted). 'It is not, however, every

injury suffered by one inmate at the hands of

another that translates into a constitutional liable

for prison officials responsible for the victim's

safety.' Id. at 834, 114 S.Ct at 1977."

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003).

In order to defeat the petitioners' properly supported

motion for a summary judgment on Donahey's Eighth Amendment

"deliberate indifference" § 1983 claim, Donahey was required

to produce substantial evidence of "'(1) a substantial risk of

serious harm; (2) the defendants' deliberate indifference to

that risk; and (3) causation.'" Carter, 352 F.3d at 1349

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(quoting Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th

Cir. 1995)). Donahey, however, has submitted no evidence

indicating that the petitioners were "subjectively aware" of

the "substantial risk of serious harm" created by trusting him

with Smith. See Farmer v. Brennan, 511 U.S. 825, 829-38

(1994) (defining the term "deliberate indifference" to require

a showing that the officer was "subjectively aware of the

risk"). To the contrary, the uncontroverted evidence in the

record suggests that the attack on Donahey was "spontaneous"

and unexpected. Lt. Ruffin testified that Smith, the inmate

who attacked Donahey, had received no disciplinary action for

any act of violence since 2005; Deputy Warden Giles testified

that "[t]here was nothing that would give the correctional

security staff reason to expect an attack." Accordingly,

Donahey did not provide sufficient evidence showing that his

injuries were caused by the petitioners' "deliberate

indifference"; thus, Donahey failed to meet his burden of

establishing that the petitioners violated clearly established

constitutional law.

C. Claims against the petitioners in their

official capacities

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Finally, we note that Donahey did not designate whether

the petitioners were being sued in their individual or

official capacities. Although the above analysis assumes that

the petitioners were sued in their individual capacities, the

petitioners argue, and we agree, that, to the extent Donahey

asserts claims against them in their official capacities, they

are also immune from suit. To the extent that Donahey's

action, which seeks only monetary damages, is against the

petitioners in their official capacities, his State-law claims

are barred by the doctrine of sovereign immunity. See Ala.

Const. 1901, § 14; Haley v. Barbour Cnty., 885 So. 2d 785, 788

(Ala. 2004); and Lyons v. River Road Constr., Inc., 858 So. 2d

257, 261 (Ala. 2003). Likewise, Donahey is not permitted to

assert a § 1983 claim for money damages against the

petitioners in their official capacities. See Will v.

Michigan Dep't of State Police, 491 U.S. 58 (1989) (holding

that a state official sued in his or her official capacity for

damages is not a "person" who may be sued under § 1983).

IV. Conclusion

Based on the uncontroverted evidence, the petitioners are

entitled to immunity from all the claims asserted against them

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by Donahey. Accordingly, the petitioners have shown a clear

legal right to the relief sought, and the trial court is

directed to enter a summary judgment in their favor.

PETITION GRANTED; WRIT ISSUED.

Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw,

Wise, and Bryan, JJ., concur.

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