Swift v. Purcell

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THOMAS SWIFT, }

}

Plaintiff, }

}

v. } Case No.: 2:19-cv-00584-RDP

}

ANTHONY B. PURCELL, et al., }

}

Defendants. }

MEMORANDUM OPINION

This case is before the court on Plaintiff Thomas Swift’s (“Plaintiff”) Motion to Remand

for Lack of Subject Matter Jurisdiction (see Doc. # 9) and Defendants Purcell and Knight’s and

Defendant Steris Corp.’s Motions to Dismiss (see Docs. # 3, 7). Plaintiff’s Motion for Remand has

been fully briefed (see Docs. # 9, 11, 12) and is ripe for decision. Defendants’ Motions to Dismiss,

though not fully briefed, are also ripe for decision, as discussed below. After careful review, and

for the reasons explained below, Plaintiff’s Motion to Remand is due to be denied, Defendants

Purcell and Knight’s Motion to Dismiss is due to be granted, therefore dismissing without

prejudice Plaintiff’s claims, and Defendant Steris Corp.’s Motion to Dismiss is moot, as Plaintiff

is directed to amend his pleadings.

I. Background

Plaintiff brought a wrongful death action in the Circuit Court of Jefferson County, Alabama

on March 14, 2019 against STERIS Corp. (“Steris Corp.”), Anthony B. Purcell (“Purcell”), in his

individual capacity, and Kevin B. Knight (“Knight”), in his individual capacity. (Doc. # 1-3 at 8,

9-10).

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The claims asserted in this case arise from the tragic events that occurred on March 14,

2018. Plaintiff is the widower and personal representative of the estate of Nancy Swift, the

deceased (“Swift”). (Doc. # 1-3 at ¶ 1). At the time of the event, Swift was employed by University

of Alabama-Birmingham (“UAB”) Highlands Hospital as a registered nurse, and she worked on

the second floor of the building. (Id. ¶ 4). Swift worked with her colleague, Tim Isley, who is “an

instrument management supervisor” allegedly employed by Defendant Steris Corp. (Id.). Both

Swift and Isley supervised the operations and daily work of Trevis Devon Coleman, an employee

of Central Sterile Supply. (Id.). Plaintiff alleges that Swift and Isley knew or should have known

that Coleman had violent propensities because “Coleman had shown signs and concerns over his

job performance and a hostile attitude leading up to [the] evening.” (Id. ¶ 5). Defendant Purcell

was the Associate Vice President and Chief of Police at UAB, and his department “maintained and

operated a hospital precinct, which included UAB Highlands Hospital. (Id. ¶ 2). Defendant Knight

was a Sergeant and the Security Manager for UAB Highlands Hospital. (Id. ¶ 3).

On March 14, 2018, Coleman brought a firearm onto the premises of UAB Highlands

Hospital. (Id. ¶ 5). Coleman proceeded to the second floor and placed the firearm in the desk of

Swift. (Id.). At approximately 7:00 p.m. on the evening of March 14, 2018, Coleman retrieved the

firearm from Swift’s desk and shot and killed Swift and seriously injured Isley. (Id. ¶ 6). Coleman

then shot himself. (Id.). Plaintiff contends that all defendants were negligent in allowing Coleman

to enter the building with a firearm. (Id. ¶ 7). Plaintiff also contends that Purcell and Knight, in

their individual capacities, “were acting beyond the scope of their authority and in contravention

of written guidelines, policies, and procedures when they negligently caused or negligently

allowed insufficient, inadequate[,] and dangerous acts and omissions to impair the security at UAB

Highlands Hospital.” (Id. ¶ 8). Specifically, Plaintiff alleges that both Purcell and Knight failed to

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adhere to and assure the performance of guidelines, policies, and procedures that would keep metal

detectors maintained and operated. (Id.). And, with regard to Steris Corp., Plaintiff contends that

it had a “contract or business relationship” with UAB Highlands Hospital regarding instrument

management and sterility, and that it failed to “take notice and action to eliminate or control the

hostility and attitude of Coleman” during the performance of his work. (Id. ¶ 10).

Steris Corp. timely filed its Notice of Removal on April 18, 2019 and argued that because

Purcell and Knight were fraudulently joined to destroy diversity jurisdiction, the court should not

take those parties into consideration when determining whether diversity jurisdiction exists. (Doc.

# 1). After Plaintiff filed his Motion to Remand, Steris Corp., Purcell, and Knight filed their

responses in opposition. (Docs. # 11, 12).

II. Standard of Review

The court begins its analysis by determining the proper standards of review that apply to

the arguments at issue.

A. Motion to Remand

The court has an obligation to inquire into its own jurisdiction. Univ. S. Ala. V. Am.

Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). “[R]moval jurisdiction is no exception to . . .

[this] obligation.” Id. Under 28 U.S.C. § 1441(a), a defendant may remove an action brought in

state court to a United States district court that has original jurisdiction--either federal question or

diversity jurisdiction. Under 28 U.S.C § 1332(a), a federal district court has diversity jurisdiction

over parties who are completely diverse in citizenship to one another and who exceed the

statutorily prescribed amount in controversy of $75,000, exclusive of interest and costs.

Underwriters at Llyod’s, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010). A

“party commencing suit in federal court [under § 1332] . . . has the burden of establishing, by a

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preponderance of the evidence, facts supporting the existence of federal jurisdiction.”

Underwriters, 613 F.3d at 1085.

In a removal case alleging fraudulent joinder, “the removing party has the [heavy] burden

of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against

the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the

resident defendant into state court.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997); B,

Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. Unit A 1981). “The determination of

whether a resident defendant has been fraudulently joined must be based upon the plaintiff’s

pleadings at the time of removal, supplemented by any affidavits and deposition transcripts

submitted by the parties.”1 Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998).

And, in deciding whether a case should be remanded, the court “must evaluate the factual

allegations in the light most favorable to the plaintiff and must resolve any uncertainties about

state substantive law in favor of the plaintiff.” Miller Brewing Co., 663 F.2d at 549.

“When considering a motion for remand, the court is not to weigh the merits of a plaintiff’s

claim beyond determining whether it is an arguable one under state law;” “[i]f there is even a

possibility that a state court would find that the complaint states a cause of action against any one

of the resident defendants, the federal court must find that joinder was proper and remand the case

to state court.” Miller Brewing Co., 663 F.2d at 549; Coker v. Amoco Oil Co., 709 F.2d 1433,

1440-41 (11th Cir. 1993), superseded by statute on other grounds as stated in Georgetown Manor,

Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir.1993).

1 Both Purcell and Knight submitted affidavits with Steris Corps.’ notice of removal. (Docs. # 1-1, 1-2).

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B. Rule 12(b)(1) Standard

Under Rule 12(b)(1), an attack on subject matter jurisdiction is either facial or factual.

Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Facial attacks “require[ ] the court

merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter

jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.”

Id. at 1259.

Factual attacks, on the other hand, challenge “the existence of subject matter jurisdiction

in fact, irrespective of the pleadings.” Id. at 1529. When the challenge is a factual attack, “no

presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material

facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.”

Id. (quoting Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981)); Ex Parte Safeway, 990 So.

2d at 350 (“[A] court deciding a Rule 12(b)(1) motion asserting a factual challenge ‘must go

beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary

to a ruling upon the motion to dismiss.’” (quotation omitted)).

Here, although Defendant has not been specific, the court determines that Defendant’s

attack is facial because it attacks Plaintiff’s specific claims in the pleading.

C. Rule 12(b)(6) Standard

The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the complaint must include enough facts “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more

than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,

nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked

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assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)

motion to dismiss, courts view the allegations in the complaint in the light most favorable to the

non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he

plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate

“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for

relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should “1) eliminate any allegations in the

complaint that are merely legal conclusions; and 2) where there are well-pleaded factual

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. Appx. 136, 138

(11th Cir. 2011) (unpublished) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290

(11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must

permit the court based on its “judicial experience and common sense . . . to infer more than the

mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded

facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed.

Twombly, 550 U.S. at 570.

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III. Analysis

A. Motion to Remand

In its notice of removal and opposition response to Plaintiff’s Motion to Remand, Steris

Corp. argues that Plaintiff fraudulently joined Purcell and Knight to defeat complete diversity and

keep this case in state court.2 (Doc. # 1 at ¶ 9). In particular, Steris Corp. contends that Plaintiff

cannot establish a claim against Purcell and Knight because (1) they had no duty to protect Swift

from the violent acts of James Coleman (see Doc. # 11 at 1); (2) their claims are barred by

sovereign, state-agency, and/or co-employee immunity; and/or (3) Plaintiff’s claim is barred due

to Swift’s contributory negligence.3 (Doc. # 11 at 1-2). The court addresses each argument, in turn,

and concludes that Purcell and Knight have been fraudulently joined. Therefore, Plaintiff’s Motion

to Remand is due to be denied.

1. Plaintiff Has Not Sufficiently Alleged a Duty Owed to Swift

“Negligence is generally defined as the failure to discharge or perform a legal duty owed

to another party. . . . [N]egligence means the failure to exercise reasonable or ordinary care.” Hicks

v. Vulcan Eng’g Co., 749 So. 2d 417, 424 (Ala. 1999) (internal quotation marks omitted). To

succeed on a claim of negligence, a plaintiff must establish that (1) the defendant owed the plaintiff

2 In this case, determining whether subject-matter jurisdiction exists comes down to whether the parties are completely

diverse. The amount in controversy is not in dispute. In light of the unique features of Alabama law, the amount-in-

controversy requirement in wrongful death actions is generally always satisfied. Roe v. Michelin N. Am., Inc., 637 F.

Supp. 2d 995, 998-1000 (M.D. Ala. 2009) (“Alabama is the only State that allows only discretionary punitive damages

in wrongful-death cases. . . .” The court noted that if the jurisdictional amount is readily deducible and clear from the

facts alleged in the plaintiff’s complaint, then the court will assume the amount-in-controversy element is met).

3 Here, Steris Corp. alleges that because Swift and Isley were supervisors over Coleman, and because there had been

“personal disputes and hostility on the part of Coleman” that Swift and Isley allegedly knew about, they were both

contributorily negligent. (Doc. # 11 at 15). However, Defendants fail to assert how Swift and Isley were contributorily

negligent. In any event, in light of the court’s analysis of other issues raised in this case, the court need not discuss the

merits of Steris Corp.’s assertion of contributory negligence.

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a duty of care, (2) the defendant breached that duty, (3) there is causation (both actual and

proximate) between the alleged act and the injury, and (4) the plaintiff suffered an injury. “[T]he

existence of a duty is a question of law to be determined by the trial judge.” New Addition Club,

Inc. v. Vaughn, 903 So. 2d 68, 73 (Ala. 2004). In Alabama, “[i]t is the general rule . . . that absent

special relationships or circumstances, a person has no duty to protect another from criminal acts

of a third person.” Id. (quoting Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala.

1986)). It is well known that:

Alabama law requires a plaintiff to show three elements to establish a duty that

would be the basis for a cause of action such as the one presented in this case. . . .

First, the particular criminal conduct must have been foreseeable. Second, the

defendant must have possessed “specialized knowledge” of the criminal activity.

Third, the criminal conduct must have been a probability.

Id. (quoting Carroll v. Shoney’s, Inc., 775 So. 2d 753, 756 (Ala. 2000)).

The New Addition Club decision is informative. There, the plaintiffs, as co-administrators

of the estate of the decedent, filed a wrongful death action against the defendant, New Addition

Club, Inc. 903 So. 2d 68, 69 (Ala. 2004). The decedent visited a nightclub with her daughter and

her friend. While at the nightclub, an argument erupted between two other patrons, who eventually

left the nightclub and went outside to the parking lot. Id. Both patrons began to fight, and the

decedent’s friend tried to step in. Unfortunately, one of the patrons retrieved a gun and shot the

decedent. Id. The estate of the decedent brought suit against the nightclub and one of its owners,

individually, alleging, inter alia, general negligence. Id. The court held that the plaintiff’s failed

to prove “(1) that it was foreseeable that [the defendant] would shoot and kill [the plaintiff

decedent], (2) that the Club had specialized knowledge that a killing of this type could occur, and

(3) that the killing was a probability.” Id. at 75. Indeed, the court also held that “the particular

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criminal activity, not just any criminal activity, must be foreseeable.”4 Id. at 76 (internal quotation

marks omitted). While “[t]he Club was aware that some type of criminal activity—an assault and

battery—had previously occurred, . . . nothing suggest[ed] that the Club knew, or had reason to

know, that [the defendant] would kill [the plaintiff decedent].” Id.

Here, Plaintiff must show there is a possibility this claim can be established against the

nondiverse defendants. That is, he is required to plausibly allege that (1) it was foreseeable

Coleman would shoot and kill Swift, (2) Purcell and Knight had specialized knowledge that this

killing could occur, and (3) Coleman killing Swift was a probability. Id. Pursuant to the pleading

standards set out in Twombly and Iqbal, the court concludes that Plaintiff’s allegations about

Purcell and Knight’s knowledge of Coleman’s alleged violent propensity and hostile attitude lack

the requisite factual support for surviving a Rule 12(b)(6) motion. The court also concludes that

because Plaintiff cannot maintain a negligence claim against Purcell and Knight, they have been

fraudulently joined and cannot remain in this lawsuit.

First, Purcell and Knight did not owe Swift a duty. Wright v. City of Ozark, 715 F.2d 1513,

1516 (11th Cir. 1983) (“[A]lthough police officers owe a general duty of care to the public at large,

they owe no duty to any particular member of the public, absent a special relationship.”). Here,

there are no factual allegations suggesting that it was foreseeable for Purcell and Knight to

anticipate Coleman shooting and killing Swift. While Plaintiff argues that Coleman had prior

disciplinary actions taken against him and had shown hostility towards Swift (see Doc. # 3 at 9),

there is not a plausible allegation that Purcell and Knight (1) knew that Coleman possessed a gun

4 In New Addition Club, the Alabama Supreme Court detailed the types of crimes that had previously occurred at the

nightclub, such as patrons fighting, at least one shooting, and multiple violent incidents involving the specific

defendant who killed the plaintiff decedent. However, this was not enough to establish foreseeability for the particular

violent act at issue. New Addition Club, 903 So. 2d at 75.

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or would engage in violence against Swift; (2) had any type of specialized knowledge that Coleman

could kill Swift; or (3) knew that Coleman killing Swift was a probability. (See id.). Neither Officer

had received any information “regarding any specific threats directed at [] Swift . . . by []

Coleman.” (Docs. # 1-1 at ¶ 3; 1-2 at ¶ 3). Additionally, neither Officer was “personally aware of

any disputes [] Coleman had with [] Swift.” (Docs. #1-1 at ¶ 2; 1-2 at ¶ 5). And most importantly

(to their defense), neither Officer had “personal knowledge whatsoever of [] Coleman, [] Swift, or

[] Isley before the shooting at UAB Highlands Hospital on March 14, 2018.” (Docs. #1-1 at ¶ 6;

1-2 at ¶ 6); Biggerstaff v. Constable, 2012 WL 2923993, at *6 (N.D. Ala. July 12, 2012) (“[E]ven

if a duty existed, it is unreasonable to expect [the defendant] to intervene when a duty only arises

if circumstances were such that intervention was possible.” (internal quotation marks omitted)).

Therefore, the court concludes that Purcell and Knight did not owe a duty to Swift on the evening

in question.

Second, the court deduces that there was no special relationship between Purcell and

Knight and Swift that would create a duty. “[A] defendant has a duty to protect a plaintiff on the

basis of [a] special relationship ‘when the defendant knew or had reason to know of a probability

of conduct by third persons that would endanger the plaintiff.’” Willet v. United States, 24 F. Supp.

3d 1167, 1174 (M.D. Ala. 2014). Similarly, under the same test, the court concludes that there

were no special circumstances imposing a duty on Purcell and Knight to protect Swift. See Emery

v. Talladega Coll., 688 F. App’x 727, 731 (11th Cir. 2017).

Again, in their affidavits, Purcell and Knight state they had no knowledge whatsoever of

Coleman or Swift before the shooting. (Docs. # 1-1 at ¶ 3-6; 1-2 at ¶ 3-6). The circumstances

surrounding Swift’s death are insufficient to create a special relationship between Swift (on the

one hand) and Purcell and Knight (on the other). “[A] special tort duty . . . arise[s] when law

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enforcement officers become directly involved in circumstances which place people within a ‘zone

of risk’ (1) by creating or permitting dangers to exist, (2) by taking persons into police custody,

(3) detaining them, or (4) otherwise subjecting them to danger.” Rivera v. Cohen, 2009 WL

3157648, at *4 (M.D. Fla. Sept. 28, 2009). Purcell and Knight simply did not engage in any such

activity.

Consequently, there is no possibility that Plaintiff can establish a negligence claim against

the nondiverse Defendants, Purcell and Knight.

2. Sovereign Immunity

Defendants also argue that Plaintiff’s claim cannot succeed against Purcell and Knight

because they are both entitled to sovereign immunity. (Doc. # 11 at 8). Under Article 1, § 14 of

the Alabama Constitution, “the State and its agencies have absolute immunity from suit in any

court. This immunity extends to the state’s institutions of higher learning.” Ala. St. Univ. v. Danley,

212 So. 3d 112, 122 (Ala. 2016) (citations omitted). State officers and employees, sued

individually, receive absolute immunity from suit “when the action is, in effect, one against the

state.” Danley, 212 So. 3d at 122; Ex Parte Davis, 930 So. 2d 497, 502 n.5 (Ala. 2005) (“The

prohibition of Section 14 cannot be circumvented by suing the official or agent individually.”

(quoting Milton v. Espey, 356 So. 2d 1202, 1202 (Ala. 1978))).

Whether immunity serves as a defense to an action against a state officer or

employee sued in his individual capacity depends upon the degree to which the

action involves a State interest. “Our cases adhere to the view that the State has an

interest such as will prohibit suit against the State official or employee where the

action is, in effect, against the State.” When determining whether a State interest in

an action against a state official or employee in his or her individual capacity is

sufficient to trigger the immunity granted by § 14 [of the Alabama Constitution],

our cases distinguish between the standards applied to those state agents or

employees whose positions exist by virtue of legislative pronouncement and those

who serve as the constitutional officers of this State. . . . [T]his court has

consistently held that a claim for monetary damages made against a constitutional

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officer in the officer’s individual capacity is barred by State immunity whenever

the acts that are the basis of the alleged liability were performed within the course

and scope of the officer’s employment.

LeFrere v. Baldwin Cty. Comm’n, 2008 WL 11428251, at *5-6 (S.D. Ala. Sept. 30, 2008).

There are currently six exceptions under Alabama law to the general rule that “actions for

damages against State agents in their official or representative capacities are considered actions to

recover money from the State and are barred by State immunity under § 14” of the Alabama

Constitution. Ex parte Aull, 149 So. 3d 582, 589 (Ala. 2014). Specifically relevant here, “[t]he

sixth ‘exception,’ as currently formulated, . . . allows ‘actions for damages [to be] brought against

State officials . . . individually where it was alleged that they had acted fraudulently, in bad faith,

beyond their authority[,] or in a mistaken interpretation of law.” Ex parte Aull, 149 So. 3d at 589

(emphasis added) (citation omitted).

Purcell is (and, at the time of the event, was), the Associate Vice President and Chief of

Police at UAB. (Doc. # 1 at ¶ 2). Knight is (and, at the time of the event, was), UAB’s Sergeant

and Security Manager at UAB Highlands Hospital. (Id.). Both defendants may properly be

considered “an arm of the state;” therefore, subject to any relevant exception, they are generally

entitled to sovereign immunity. Danley, 212 So. 3d at 122.

Here, none of the exceptions apply. Plaintiff has not alleged that Purcell and Knight acted

fraudulently, in bad faith, or under a mistaken interpretation of law. Rather, Plaintiff contends that

Purcell and Knight were “acting beyond the scope of their authority and in contravention of written

guidelines, policies[,] and procedures.” (Doc. 1-3 at ¶ 8). Thus, the court focuses its analysis on

whether Purcell and Knight were in fact acting beyond the scope of their authority on the night in

question.

Plaintiff claims that Purcell and Knight failed to “adhere to and assure the performance of

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guidelines, policies[,] and procedures that would keep such detectors maintained and operated at

an appropriate level to detect and prevent the entry of firearms, . . . and such failure resulted from

wither human error or mechanical malfunctions for detection or both.” (Id.). Plaintiff also claims

that Purcell and Knight “were negligent in the failure to properly train, instruct[,] and/or supervise

others at [the metal detector] screening locations.” (Id. ¶ 9).

However, as Plaintiff concedes in the Complaint, “the metal detectors installed . . . were

working at the time pertinent to this incident.” (Id. ¶ 8). Plaintiff has not put forth any factual

assertion as to what the policies and procedures were that were violated, how Purcell and Knight

failed to properly follow any particular policy or procedure, or how Purcell and Knight negligently

allowed any policy or procedure to be violated. Relatedly, Plaintiff has failed to adequately plead

who Purcell and Knight failed to properly train and/or supervise, what guidelines and instructions

Purcell and Knight were required to follow in giving such instruction, or even whether Purcell and

Knight had the responsibility to instruct, train, or supervise other UAB Highlands Hospital

employees in the operation of the metal detectors. Plaintiff’s conclusory allegations do not steer

around the assertion of sovereign immunity by Purcell and Knight. That is, Plaintiff’s claims

simply do not fall within the sixth exception to the application of sovereign immunity under the

Alabama Constitution because his complaint fails to sufficiently allege that Purcell and Knight

were acting beyond the scope of their authority. Plaintiff’s complaint is barred by the doctrine of

sovereign immunity.

3. State-Agent Immunity

Under Alabama law, state-agent immunity “protects state employees, as agents of the State,

in the exercise of their judgment in executing their work responsibilities.” Brown v. City of

Huntsville, Ala., 608 F.3d 724, 740 (11th Cir. 2010). Additionally, under Alabama Code § 6-5-

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338(a) (1994), “[e]very peace officer . . . shall have immunity from tort liability arising out of his

or her conduct in performance of any discretionary function within the line and scope of his or her

law enforcement duties.” Alabama law employs a burden-shifting framework with state-agent

immunity that every court must apply:

A defendant initially bears the burden of demonstrating that he was acting in a

function that would entitle the agent to immunity. If the state agent makes such a

showing, the burden then shifts to the plaintiff to show that the State agent acted

willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority.”

Brown, 608 F.3d at 741. “A [s]tate agent acts beyond authority and is therefore not immune when

he or she ‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those stated

on a checklist.’” Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006) (quoting Giambrone

v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)).

Here, Purcell and Knight were acting in a capacity that would entitle them to assert state-

agent immunity. Both Purcell and Knight are UAB police officers who were employed at UAB

Highlands Hospital. (Docs. # 1-1, 1-2). Purcell is responsible for “management of the personnel

working at screening locations. . . . [He also] work[s] with UAB administration to use the resources

allocated to these security measures, including metal detectors.” (Doc. # 1-1 at ¶ 10). Knight is

“tasked with overseeing and managing the officers involved in implementing UAB’s security

screening guidelines, policies, and procedures . . . on a daily basis, including those assigned to

work at screening locations.” (Doc. # 1-2 at ¶ 8). Therefore, Purcell and Knight have satisfied their

initial burden.

The burden, therefore, shifts to Plaintiff. In the face of that burden, Plaintiff has failed to

carry his burden, Plaintiff fails to adequately identify how Purcell and Knight acted “willfully,

maliciously, fraudulently, in bad faith, or beyond his or her authority.” Brown, 608 F.3d at 741.

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While Plaintiff alleges that Purcell and Knight acted beyond the scope of their authority, he has

not put forth any plausible allegation indicating that Purcell and Knight acted in such a manner or

violated any guidelines, policies, and/or procedures. In fact, Purcell asserts:

There are no detailed rules or regulations, such as a checklist, governing the

oversight and administration of the security measures in place at UAB Highlands

Hospital. Rather [he], in consultation and collaboration with other UAB leaders,

use[s] [his] best judgment on how to allocate limited resources to purchase

equipment and to employ, train, and oversee the people tasked with the daily

implementation of these efforts.

(Doc. # 1-1 at ¶ 11). Purcell is the quintessential state official who employs complete discretionary

decisionmaking in his daily operations. Similarly, Knight states that there are also no rules or

regulations governing his operations, but rather he, “in consultation with other UABPD leaders,

use[s] [his] best judgment to employ, train, and oversee the people tasked with the daily

implementation of these efforts.” (Doc. # 1-2 at ¶ 9). Purcell and Knight are entitled to state-agent

immunity because they are both state officials exercising “their judgment in executing their work

responsibilities.” Brown, 608 F.3d at 740. Plaintiff has simply failed to plausibly allege how

Purcell and Knight were acting willfully, maliciously, fraudulently, in bad faith, or beyond their

authority. Therefore, Purcell and Knight are entitled to claim state-agent immunity.

4. Co-Employee Immunity

Purcell and Knight argue that UAB, though not subject to Alabama’s Worker’s

Compensation Act, has “a self-funded[,] on-the-job injury program for its employees and any

disputes arising out of that program can be brought by the employee to the Alabama Board of

Adjustment.” (Doc. # 12 at 17). They further contend that the Alabama Legislature “incorporated

the worker’s compensation rules of liability, including co-employee immunity,” into that particular

compensation process. (Id.). With respect to co-employee liability, Alabama Code § 25-5-53

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(1975) -- known as the Alabama Worker’s Compensation Act -- states:

The rights and remedies granted in this chapter to an employee shall exclude all

other rights and remedies of the employee, his or her personal representative,

parent, dependent, or next of kin, at common law, by statute, or otherwise on

account of injury, loss of services, or death. Except as provided in this chapter, no

employer shall be held civilly liable for personal injury to or death of the

employer’s employee, for purposes of this chapter, whose injury or death is due to

an accident or to an occupational disease while engaged in the service or business

of the employer, the cause of which accident or occupational disease originates in

the employment. In addition, immunity from civil liability for all causes of action

except those based upon willful conduct shall also extend to the . . . employee of the

same employer, or his or her personal representative.

Powell v. U.S. Fidelity & Guar. Co., 646 So.2d 637, 638 (Ala. 1994). Essentially, the Alabama

Worker’s Compensation Act requires “[a]n employee [to] forfeit[] all other rights against his

employer, whether common law or statutory, for the rights granted under the Act.” Slagle v.

Reynolds Metals Co., 344 So. 2d 1216, 1218 (Ala. 1977). Alabama Code § 25-5-31 (2006) adopts

this same rule, as Purcell and Knight contend:

When personal injury or death is caused to an employee by an accident arising out

of and in the course of his employment, of which injury the actual or lawfully

imputed negligence of the employer is the natural and proximate cause, he, or in

case of death, his personal representative, for the exclusive benefit of the surviving

spouse and next of kin, shall receive compensation by way of damages therefor

from the employer; provided, that the injury or death was not caused by the willful

misconduct of the employee or was not due to misconduct on his part, as defined

in Section 25-5-51.

See Ala. Code § 41-9-68 (1975) (“The rules of Chapter 5 of Title 25 as to liability are to be followed

in claims for the injury or death of convicts, in claims for employment related injury or death of

any employee of a city or county board of education, college or university, and in claims for injury

or death of any employee of the State of Alabama arising out of employment with the state where

the said employee is not covered by an employee injury compensation program.”).

Because Plaintiff has not alleged any willful conduct on the part of Purcell and Knight,

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Plaintiff is prohibited from bringing a claim of co-employee liability. (Doc. # 12 at 17).

5. Purcell and Knight Were Fraudulently Joined

For the reasons stated above, the court finds that Plaintiff fraudulently joined Purcell and

Knight, because there is no possibility of Plaintiff establishing a claim against either officer in their

individual capacities.

B. Defendants Purcell and Knight’s Motion to Dismiss

Defendants Purcell and Knight filed their Motion to Dismiss on April 18, 2019. (Doc. # 3).

As discussed above, sovereign immunity, state-agent immunity, and co-employee immunity bar

all of Plaintiff’s claims against Purcell and Knight. Therefore, Plaintiff’s claims against both

Defendants are due to be dismissed without prejudice.5

C. Defendant Steris Corp.’s Motion to Dismiss

Defendant Steris Corp. filed its Motion to Dismiss on April 24, 2019. (Doc. # 7). Under

Federal Rules of Civil Procedure 15(a)(1) (2005), “[a] party may amend its pleading once as a

matter of course . . . before being served with a responsive pleading.” Here, no defendant has

served a responsive pleading to Plaintiff’s Complaint. Therefore, Plaintiff has a right to amend his

Complaint. However, had Defendants submitted a responsive pleading, this court would allow

Plaintiff to amend his Complaint to provide him an opportunity to better articulate his claim(s)

against Steris Corp. Jemison v. Wise, 386 F. App’x 961, 964 (11th Cir. 2010) (“[A] district court’s

5 The court dismisses Plaintiff’s complaint without prejudice as to Purcell and Knight. A suit against the State or a

state official who may validly claim immunity under Article 1, § 14 of the Alabama Constitution must be dismissed

for want of jurisdiction. See Ex parte Ala. Dep’t of Transp., 978 So. 2d 17, 21 (Ala. 2007); Larkins v. Dep’t of Mental

Health & Mental Retardation, 806 So. 2d 358, 364 (Ala. 2001) (“[A]n action contrary to the State’s immunity is an

action over which the courts of this State lack subject-matter jurisdiction.”). When a court dismisses a case for lack of

subject-matter jurisdiction, the dismissal is without prejudice. See Stalley ex rel United States v. Orlando Reg’l

Healthcare Sys., Inc., 524 F.3d 1229,1232 (11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction is not

a judgment on the merits and is entered without prejudice.” (citing Crotwell v. Hockman-Lewis Ltd., 734 F.2d 767,

769 (11th Cir. 1984))).

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discretion to dismiss a complaint without leave to amend is severely restricted by Fed. R. Civ. P.

15(a).”). To be sure, “[w]here a more carefully drafted complaint might state a claim, a plaintiff

must be given at least one chance to amend the complaint before the district court dismisses the

action with prejudice.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).

Due to the deficiencies in Plaintiff's Complaint as to the particular claims against Steris

Corp., the court DIRECTS Plaintiff to file an amended complaint that clearly sets forth the claims

against Steris Corp.

IV. Conclusion

For the reasons stated above, the court concludes that Plaintiff's Motion to Remand is due

to be denied. The court also concludes that Defendants Purcell and Knight’s Motion to Dismiss is

due to be granted (dismissing Plaintiff's complaint against Purcell and Knight without prejudice),

and Defendant Steris Corp’s Motion to Dismiss is moot, and the court DIRECTS Plaintiff to file

an amended complaint clearly setting forth the claims against Steris Corp.

DONE and ORDERED this November 7, 2019.

UNITED STATES DISTRICT JUDGE

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