Jenkins v. Hutton

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

EARNEST JENKINS, )

)

Plaintiff,

)

)

v.

)

7:18-cv-00861-LSC

)

ADVANCED

)

CORRECTIONAL

)

HEALTHCARE, INC.,

)

Defendant. )

)

)

MEMORANDUM OF OPINION

Plaintiff Earnest Jenkins has brought this action against Advanced

Correctional Healthcare, Inc. (“ACH”), asserting both federal and state-law claims

based on medical treatment he received while an inmate in Greene County Jail.

Before the Court are Defendant’s motion for summary judgment (doc. 25) and its

motion to strike an exhibit submitted by Plaintiff (doc. 31). The motions have been

briefed and are ripe for review.1 For the reasons stated below, Defendant’s motion

for summary judgment (doc. 25) is due to be granted in part, and its motion to strike

1 Plaintiff initially failed to file a response to Defendant’s motion for summary judgment

within the time allotted by this Court’s Uniform Initial Order. (Doc. 4.) However, in the interest

of hearing both sides, this Court permitted Plaintiff to file a response out of time. (Doc. 29.)

Plaintiff has since filed a late response (doc. 30), and Defendant in turn has filed a reply (doc. 32).

(doc. 31) is due to be denied as moot.

I. BACKGROUND2

Defendant is a private corporation that has contracted with the Greene

County Jail to provide medical attention and treatment to inmates in the Greene

County Jail custody. (Docs. 30 & 32.) It is responsible for providing for and treating

the serious medical needs of Green County Jail inmates. (Id.)

On June 1, 2016, Plaintiff was booked into the Greene County Jail on a charge

of domestic abuse. (Def’s Ex. A at 9, 19.) Upon entering the facility, he did not go

through any medical history intake process. (Id. at 108.)3 Plaintiff had never served

time in the Greene County Jail before this date, and he is not familiar with the

experiences of other inmates who served time there. (Id. at 21–22.)

Plaintiff has a lengthy medical history beginning in 1989 when he fell from the

back of a pickup truck and struck his head when he was fourteen years old. (Id. at 33–

2 The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed

to be undisputed, their respective responses to those submissions, and the Court’s own

examination of the evidentiary record. These are the “facts” for summary judgment purposes

only. They may not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17

F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence

supporting a party’s position. As such, review is limited to exhibits and specific portions of the

exhibits specifically cited by the parties. See Chavez v. Sec’y, Fla. Dept. of Corr., 647 F.3d 1057, 1061

(11th Cir. 2011) (“[D]istrict court judges are not required to ferret out delectable facts buried in a

massive record . . . .” (internal quotations omitted)).

3 Plaintiff has previously served time in the Birmingham Municipal Jail and Tuscaloosa

County Jail. (Def’s Ex. A at 109–10.) In both facilities, he went through a formal medical history

intake process or received an initial questionnaire that asked him of his serious medical needs. (Id.)

34.) He had surgery for injuries sustained in that accident, and he has suffered

migraine headaches since. (Id. at 34–35.) More recently, Plaintiff has been diagnosed

with hypertension. (Doc. 33 at 1.) Prior to being admitted to the Greene County Jail,

he was taking his prescribed blood pressure medication once per day to treat this

condition. (Def’s Ex. A at 37.)

Upon entering the Greene County Jail, Plaintiff personally informed a guard

of his hypertension and need for his prescribed blood pressure medication. (Id. at

111–12.) The guard responded, “You’ll see the nurse.” (Id. at 112.) Plaintiff also

notified other guards on duty that he needed his medication. (Id. at 113.) Plaintiff did

not see a nurse until the next day, June 2, 2016. (Id. at 114.)

On June 2, 2016, Plaintiff was seen by a nurse employed by Defendant at the

Greene County Jail. (Id. at 75.) He informed the nurse of his hypertension and

prescribed blood pressure medication. (Id.) However, the nurse responded that the

facility did not have that medication. (Id.)

From June 2, 2016, through June 8, 2016, Plaintiff continued to ask each day

for his blood pressure medication. (Id. at 80.) During that time, he saw the nurse

handing out medication to other inmates each day. (Id.)

On the night of June 8, 2016, Plaintiff began feeling “real sick, dizzy, [and]

nause[ous]” while in his cell. (Id. at 83.) He used the intercom to inform correctional

officer Athelena Jordan of his ill health. (Id.) Shortly after, correctional officer

Blayton McMullen entered Plaintiff’s cell and checked his blood pressure. (Id.) The

reading showed Plaintiff’s blood pressure as 178 over 100. (Id.) He later vomited

throughout the night and could not sleep. (Id. at 85.) Plaintiff is not aware of whether

the nurse was on duty that night. (Id. at 84.)

On the morning of June 9, 2016, Plaintiff left his cell and found the nurse

passing out medication downstairs. (Id. at 85.) He informed the nurse of his ill health,

and the nurse proceeded to take his blood pressure. (Id.) Again, the examination

revealed that Plaintiff’s blood pressure was high. (Id.) The nurse returned sometime

later and gave Plaintiff medication to treat his nausea and blood pressure. (Id.) The

nurse then told Plaintiff to return to his cell and lie down. (Id.)4 Plaintiff returned to

his cell as instructed to lie down. (Id. at 86.)5 He continued to vomit during that time.

(Id.) At around noon, Plaintiff grew thirsty and left his cell to obtain water

4 Plaintiff attempts to dispute that the nurse told him to return to his cell and lie down.

Instead, Plaintiff claims that he returned to his cell because he was feeling ill and weak. (Doc. 30

at 4–5.) However, Plaintiff’s deposition testimony makes clear that the nurse did instruct him to

return to his cell following administration of the medication. (Def’s Ex. A at 85.) (“And he came

back and that’s when he gave me a pill for nausea and a pill for blood pressure medicine and told

me to go back and lay down.” (emphasis added)). Because this testimony is not inconsistent with

Plaintiff’s returning to his cell because he felt ill, it is undisputed that the nurse also instructed

Plaintiff to return to his cell and lie down.

5 Generally, inmates at the Greene County Jail are required to leave their cells during the

day. (Def’s Ex. A at 88.) However, due to Plaintiff’s illness, the guards left his cell open and

allowed him to return there during the day. (Id.)

downstairs. (Id.) As he drank water in the facility day use area, he “just blanked out”

and fell onto his back. (Id.)

Plaintiff regained consciousness shortly after his fall. (Doc. 33 at 3.) He heard

other inmates screaming “Man down, man passed out, get help.” (Id.) He remained

on his back in a semi-conscious state for at least thirty minutes. (Id.) Finally,

paramedics arrived and placed him in an ambulance to be transported to the Greene

County Hospital Emergency Room. (Id.) En route, Plaintiff overheard the

paramedics stating that his current blood pressure was 200/100. (Id.)

While Jenkins was still in the Greene County Hospital Emergency Room,

Lieutenant Roper of the Greene County Sheriff’s Department brought him papers

to sign to be released on a signature bond. (Def’s Ex. A at 24–25.) After signing the

signature bond papers, he checked himself out of the hospital and left with his

mother. (Id. at 26–27.)

On June 10, 2016, the day after he fell, Plaintiff awoke with severe pain

radiating from his neck down to his feet. (Doc. 33 at 3.) He also began to suffer

muscle spasms that made it difficult to sleep and chronic and persistent pain in his

neck and back. (Id. at 3–4.)

On June 27, 2016, he visited Dr. Cole Crutcher, his primary care physician,

who examined him and ordered an MRI. (Id. at 3.) Dr. Crutcher prescribed narcotics

for Plaintiff’s pain and referred him to pain management specialists to treat injuries

sustained in the June 9 fall. (Id.) On July 8, 2016, Plaintiff received another MRI at

St. Vincent’s Hospital East in Trussville, Alabama. (Id.) On July 10, 2016, according

to Plaintiff, Dr. Crutcher informed Plaintiff that the MRI indicated degenerative disc

disease, several herniated discs, spinal cord injuries, and muscle, tendon, nerve and

ligament damage all as injuries resulting from the fall on June 9. (Id. at 4.)6 Dr.

Crutcher referred him to a neurologist for a definitive diagnosis and treatment. (Id.)

According to Plaintiff, he then “did in fact meet with Dr. Crutcher and receive a

diagnosis.” (Id.)7 However, the record does not clearly indicate what definitive

diagnosis he received.8

6 This information arises in the record through Plaintiff’s revised affidavit. (Doc. 33 at 4.) In

its motion to strike, Defendant argues that Dr. Crutcher’s statement regarding the MRI results

constitutes inadmissible hearsay. (Doc. 31.) To be sure, Dr. Crutcher’s statement is hearsay. See

Fed. R. Evid. 801(c) (defining “hearsay” as a statement that “(1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the

matter asserted in the statement”). However, a court may properly consider a hearsay statement on

summary judgment “if the statement could be reduced to admissible evidence” by “hav[ing] the

hearsay declarant testify directly to the matter at trial.” Jones v. UPS Ground Freight, 683 F.3d

1283, 1293–94 (11th Cir. 2012). Defendant does not argue that Dr. Crutcher would be unable to

testify about the MRI results at trial. Therefore, the Court may properly consider Dr. Crutcher’s

hearsay statement on summary judgment.

7 It is unclear from Plaintiff’s affidavit whether he met with a separate neurologist or whether

Dr. Crutcher himself conducted another test and reached a “definitive diagnosis.” (See doc. 33 at

4.)

8 Plaintiff’s revised affidavit simply notes that he “did in fact meet with Dr. Crutcher and

receive a diagnosis.” (Doc. 33 at 4.) Thereafter, the affidavit asserts—without reference to Dr.

Crutcher or any other medical professional—that Plaintiff has suffered certain symptoms “all of

which were a proximate result of the incident occurring on or about June 9, 2016 while in the

custody and care of Greene County Jail.” (Id.) However, the affidavit never clearly asserts what

In August 2018, Plaintiff pled guilty to a domestic violence charge and began

serving another period of incarceration in the Greene County Jail. (Id. at 69.) On

October 8, 2018, he broke his foot when he slipped and fell on some water. (Id.) He

was then taken to the Greene County Hospital Emergency Room, where, according

to Plaintiff, x-rays revealed that he had fractured his foot and had problems with his

lower back. (Id. at 71.) He received treatment for these injuries at the Greene County

Jail and has raised no complaints concerning this medical treatment. (Id.)

Plaintiff is currently serving the remainder of his eighteen-month sentence for

domestic violence in the Bibb County Correctional Facility, which is a state prison.

(Id. at 68–69.) He takes Tylenol daily for his foot pain and back pain which resulted

from his fall on October 8, 2018. (Id. at 73.) His foot remains broken at the time of

this action. (Id. at 72.) He continues to suffer muscle spasms, chronic and persistent

pain in his neck and back, and migraine headaches. (Doc. 33 at 3–4.)

II. STANDARD

Summary judgment is appropriate “if the movant shows that there is no

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

matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a

whole could lead a rational trier of fact to find for the nonmoving party.” Hickson

“definitive diagnosis” Dr. Crutcher or any other medical professional provided.

Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine

dispute as to a material fact exists “if the nonmoving party has produced evidence

such that a reasonable factfinder could return a verdict in its favor.” Greenberg v.

BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.

Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge

should not weigh the evidence, but should determine whether there are any genuine

issues of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986).

In considering a motion for summary judgment, trial courts must give

deference to the non-moving party by “view[ing] the materials presented and all

factual inferences in the light most favorable to the nonmoving party.” Animal Legal

Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015) (citing

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

assertions alone are not enough to withstand a motion for summary judgment.”

Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory

allegations and “mere scintilla of evidence in support of the nonmoving party will

not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841 F.3d

1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, Fla., 358

F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the

moving party has the burden of either negating an essential element of the

nonmoving party’s case or showing that there is no evidence to prove a fact necessary

to the nonmoving party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d

1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when granting

motions for summary judgment, “[s]ummary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather as an integral part of the

Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

III. DISCUSSION

A. DEFENDANT’S MOTION TO STRIKE

Defendant has moved to strike—in whole or in part—Plaintiff’s affidavit

submitted in opposition to summary judgment. (Doc. 31.) As initially submitted,

Plaintiff’s affidavit (Pl’s Ex. A) is neither signed nor dated and thus fails to comply

with 28 U.S.C. § 1746, which provides a template whereby an unsworn declaration

under penalty of perjury may be used to support an asserted fact. Barring such an

exception, an unsworn statement does not meet the requirements of Federal Rule

56(e) and “cannot be considered by a district court in ruling on a summary judgment

motion.” Carr v. Tatngelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003). However,

Plaintiff has since filed a corrected affidavit that includes both a signature and a date

in compliance with 28 U.S.C. § 1746. (Doc. 33.) Accordingly, Defendant’s motion

to strike (doc. 31) the earlier affidavit is due to be denied as moot.9

B. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiff brings both federal and state claims arising from the provision of

medical care in the Greene County Jail. He first brings a claim under 42 U.S.C.

§ 1983, alleging that Defendant’s failure to provide adequate medical care violated

his constitutional rights. He also asserts claims under Alabama law for (1)

Negligence; (2) Negligent and/or wanton hiring, training and/or supervision; and

(3) Medical negligence pursuant to the Alabama Medical Liability Act (“AMLA”),

Ala. Code (1975) § 6-5-480, et seq. In fact, Plaintiff’s state-law claims for negligence

and negligent/wanton hiring both relate to the provision of healthcare and are

therefore each considered a part of his AMLA claim. See Mock v. Allen, 783 So. 2d

828, 832 (Ala. 2000) (“The AMLA applies ‘[i]n any action for injury or damages or

wrongful death, whether in contract or in tort, against a health care provider for

breach of the standard of care.’” (quoting Ala. Code (1975) § 6-5-548(a))), abrogated

in part by Ex parte Vanderwall, 201 So. 3d 525, 538 (Ala. 2015) (clarifying that the

AMLA applies where the harm complained of “occurred because of the provision of

medical services”).

9 To the extent that Defendant’s motion (doc. 31) also seeks to strike portions of Plaintiff’s

affidavit as relying on inadmissible hearsay, the motion would still be due to be denied. As

explained above, Dr. Crutcher’s hearsay statements could be reduced to admissible form at trial

and therefore may properly be considered on summary judgment. See Jones, 683 F.3d at 1293–94.

1. § 1983 CLAIM FOR INADEQUATE MEDICAL TREATMENT

Before turning to the merits of Plaintiff’s § 1983 claim, the Court must first

determine whether it is time-barred. The proper statute of limitations for a § 1983

claim is the “forum state’s general or residual statute of limitations for personal

injury actions.” Lufkin v. McCallum, 956 F.2d 1104, 1105 (11th Cir. 1992) (citing

Owens v. Okure, 488 U.S. 235 (1989)). The cause of action does not accrue until

plaintiffs know or should know “(1) that they have suffered the injury that forms the

basis of their complaint and (2) who has inflicted the injury.” Chappell v. Rich, 340

F.3d 1279, 1283 (11th Cir. 2003). The record indicates that Plaintiff alerted the nurse

of his hypertension and prescribed medication on June 2, 2016. Plaintiff did not file

the instant action until June 4, 2018, more than two years after he alleges the nurse

ignored his requests. (Doc. 1) Therefore, Defendant argues that Plaintiff’s § 1983

claim should be dismissed as time-barred. “However, the allegation of a failure to

provide needed and requested medical attention constitutes a continuing tort, which

does not accrue until the date medical attention is provided.” Lavellee v. Listi, 611

F.2d 1129, 1132 (5th Cir. 1980).10 Because Plaintiff did not receive requested medical

attention until June 9, 2016, his § 1983 is not time-barred.

10 In Bonner v. City of Pritchard, 661 F.2d 1206 (11th Cir. Cir. 1981), the Eleventh Circuit

adopted as binding precedent all of the decision of the former Fifth Circuit handed down prior to

the close of business on September 30, 1981. Id. at 1209.

Turning to the merits of Plaintiff’s § 1983 claim, Plaintiff has asserted that

Defendant was deliberately indifferent to his serious medical needs in violation of

the Eighth Amendment. Because Plaintiff had not been convicted of a crime, and was

instead a pretrial detainee at the time of his injury, the Fourteenth Amendment’s

Due Process Clause governs his claim. See Goebert v. Lee Cty, 510 F.3d 1312, 1326

(11th Cir. 2007). “However, the standards under the Fourteenth Amendment are

identical to those under the Eighth.” Id.

Deliberate indifference to a pretrial inmate’s serious medical needs violates the

Fourteenth Amendment’s Due Process Clause. See id. To prove that her medical

treatment violated the Constitution, a pretrial detainee must show (1) that she “had

a serious medical need,” (2) that a “prison official acted with deliberate indifference

to her serious medical need,” and (3) that her “injury was caused by the defendant’s

wrongful conduct.” Id.

A serious medical need is “one that has been diagnosed by a physician as

mandating treatment or one that is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Hill v. Dekalb Reg’l Youth Detention

Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994) (quoting Laaman v. Helgemoe, 437 F. Supp.

269, 311 (D.N.H. 1977)), overruled on other grounds by Hope v. Pelzer, 536 U.S. 730,

739 (2002). The parties do not dispute that Plaintiff’s hypertension qualifies as a

serious medical need.

The dispute lies in whether Defendant behaved with deliberate indifference

towards Plaintiff’s hypertension and need for his daily blood pressure medication.

To show such deliberate indifference, Plaintiff must prove “(1) subjective

knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is

more than [gross] negligence.” Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir.

2005) (quoting Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004)), abrogated on

other grounds by Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). “Mere medical

malpractice . . . does not constitute deliberate indifference.” Waldrop v. Evans, 871

F.2d 1030, 1033 (11th Cir. 1989). However, the delay of medical treatment for an

inmate may, if significantly prolonged, rise to the level of deliberate indifference. See

McElligott v. Foley, 182 F.3d 1248, 1258 n.6 (11th Cir. 1999) (holding that a genuine

dispute existed as to deliberate indifference where an inmate showed that he “had to

wait a week or more in order to receive medical attention” for his significant pain on

several occasions).

Moreover, Defendant’s role in providing medical treatment to pretrial

detainees necessitates that Plaintiff also prove that Defendant’s policy or custom

caused his injury. A municipality may not be held liable under § 1983 on a respondeat

superior theory. Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691

(1978). For a municipality to be held liable under § 1983, a plaintiff must demonstrate

that his injury resulted from a “policy or custom” of the municipality. Id. at 694.

Although Defendant is a private entity, the Eleventh Circuit has held that the

requirement of showing a policy or custom applies in “suits against private entities

performing functions traditionally within the exclusive prerogative of the state, such

as the provision of medical care to inmates.” Buckner v. Toro, 116 F.3d 450, 453 (11th

Cir. 1997). Thus, Plaintiff must demonstrate that a “persistent and wide-spread

practice” by Defendant caused his injury. Goebert v. Lee Cty, 510 F.3d 1312, 1332

(11th Cir. 2007) (quoting Depew v. City of St. Mary’s, Ga., 787 F.2d 1496, 1499 (11th

Cir. 1986)). “A single incident of a constitutional violation is insufficient to prove a

policy or custom even when the incident involves several employees of the

[defendant].” Craig v. Floyd Cty, Ga., 643 F.3d 1306, 1311 (11th Cir. 2011).

Plaintiff has not shown that a policy or custom of Defendant caused his injuries.

He asserts that “as policy, practice, or custom, ACH and Greene County Jail failed

to properly screen [him] and other inmates for illnesses, health issues or serious

medical needs upon admitting new inmates to the jail.” (Doc. 30 at 17–18.) However,

he has not presented evidence that this policy or practice has been employed by

Defendant for any other inmates upon entry into the facility. He admits that he is not

familiar with any other inmates at the Greene County Jail or whether any of them

entered the facility without going through a medical screening process. Instead, his

sole evidence of a failure to screen incoming inmates is that he personally did not go

through such a process when first admitted to the Greene County Jail on June 1,

2016. Even assuming the failure to conduct medical screening for incoming inmates

amounts to a constitutional violation, Plaintiff’s reliance on a single incident

involving only himself is insufficient to prove a policy or custom of unconstitutional

activity by Defendant. See Craig, 643 F.3d at 1312 (holding that evidence of an

evaluation of a single detainee by a single nurse was insufficient to prove that a prison

had a policy or custom of relying on hospital clearance forms in treating prisoners).11

Accordingly, summary judgment is due to be granted to Defendant as to this claim.

2. CLAIM BROUGHT PURSUANT TO ALABAMA LAW

Having disposed of all pending federal-law claims, the Court now turns to

Plaintiff’s remaining AMLA claim.12 Heretofore, the Court has exercised

supplemental jurisdiction over this claim based on the Court’s original jurisdiction

11 Plaintiff has not expressly argued that the nurse’s failure to provide him with blood

pressure medication upon request amounted to a policy or custom of Defendant. However, even if

the Court reads Plaintiff’s briefing to include such an argument, Plaintiff has not provided evidence

that Defendant had a policy or custom of ignoring inmates’ requests for required medication. First,

Plaintiff relies solely upon his own experience with a single nurse employed by Defendant. See

Craig, 643 F.3d at 1312. Second, Plaintiff’s deposition affirmatively shows that the nurse in

question provided medication to other inmates during Plaintiff’s initial incarceration at Greene

County Jail.

12 As noted above, Plaintiff’s other state-law claims for negligence and negligent/wanton

hiring are, under Alabama law, a part of his AMLA claim.

over Plaintiff’s § 1983 claim. 28 U.S.C. § 1367(a). Where the district court “has

dismissed claims over which it has original jurisdiction,” the court may decline to

exercise supplemental jurisdiction over any remaining claims. 28 U.S.C. § 1367(c).

The Eleventh Circuit has “encouraged district courts to dismiss any remaining state

claims when, as here, the federal claims have been dismissed prior to trial.” Raney v.

Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004).

In granting Defendant’s motion for summary judgment in part, the Court

dismisses all pending federal-law claims. As a result, there are no remaining claims

over which the Court may exercise original jurisdiction. The Court now declines to

exercise supplemental jurisdiction over Plaintiff’s remaining AMLA claim, pursuant

to 28 U.S.C. § 1367(c)(3). Accordingly, the Court will dismiss that claim without

prejudice.

Even if the Court did not now decline to exercise jurisdiction over Plaintiff’s

remaining AMLA claim, that claim would likely still be due to be dismissed.13 The

Alabama Supreme Court has held that “[i]n a medical-malpractice action, the

13 Although the AMLA claim is due to be dismissed on other grounds, the Court rejects

Defendant’s argument that it is time-barred. The AMLA requires that a claim must be “must be

commenced within two years after the act, omission, or failure giving rise to the claim.” Ala. Code

(1975) § 6-5-482. However, “[w]hen the wrongful act or omission and the resulting injury do not

occur simultaneously,” the cause of action accrues at the time of the injury. Mobile Infirmary v.

Delchamps, 642 So. 2d 954, 958 (Ala. 1994). Here, although the nurse failed to provide Plaintiff’s

medication beginning on June 2, 2016, Plaintiff’s claimed injury occurred on June 9, 2016. He

filed this action on June 4, 2018, less than two years following his claimed injury. Therefore, his

AMLA claim, like his § 1983 claim, is not time-barred.

plaintiff ordinarily is required to present expert testimony as to the relevant standard

of care.” Cobb v. Fisher, 20 So. 3d 1253, 1257 (Ala. 2009) (quoting Martin v. Dyas,

896 So. 2d 436, 441 (Ala. 2004)). Similarly, a plaintiff in a medical malpractice action

ordinarily must present expert testimony to establish a causal connection between a

breach of the standard of care and the plaintiff’s injury. DCH Healthcare Authority v.

Duckworth, 883 So. 2d 1214, 1217–18 (Ala. 2003). Plaintiff has presented no expert

testimony regarding either the standard of care or whether Defendant’s alleged

breach caused Plaintiff’s injury.14 Therefore, unless an exception applies that would

obviate the need for expert testimony, Plaintiff’s AMLA claim would be due to be

dismissed with prejudice.

Alabama courts have carved out a handful of exceptions to the AMLA’s

requirement of expert testimony to prove an applicable standard of care in a medical

malpractice action. The most pertinent exception in this case is that expert testimony

is not necessary to prove the standard of care “where want of skill or lack of care is

so apparent . . . as to be understood by a layman, and requires only common

14 Plaintiff’s revised affidavit references Dr. Crutcher’s hearsay statements regarding the

results of Plaintiff’s MRI. (Doc. 33 at 4.) The Court’s research does not answer whether a medical

expert’s hearsay statement could satisfy the AMLA’s expert requirements at the summary

judgment stage. Regardless, Dr. Crutcher’s hearsay statements regarding the MRI results do not

reveal his professional opinion as to whether Defendant breached the standard of care or whether

such a breach proximately caused Plaintiff’s injuries. Indeed, Plaintiff’s revised affidavit

references Dr. Crutcher reaching a “definitive diagnosis” of Plaintiff’s injuries, but it does not

elaborate on what conclusion Dr. Crutcher reached. (Id.)

knowledge and experience to understand it.” Ex parte HealthSouth Corp., 851 So. 2d

33, 42 (Ala. 2002) (quoting Tuscaloosa Orthopedic Appliance Co., Inc. v. Wyatt, 460

So. 2d 156, 161 (Ala. 1984)); see also Morgan v. Publix Super Mkts., Inc., 138 So. 3d

982, 989 (Ala. 2013) (holding that a pharmacy’s filling of a plaintiff’s prescription

with the wrong medication involved so apparent a lack of skill or care as to obviate

the need for expert testimony).15 The record indicates that a nurse employed by

Defendant failed to provide Plaintiff his daily blood pressure medication even after

being notified of his medical need. The record further indicates that, after a week

had passed and Plaintiff’s symptoms had worsened, the nurse provided him with

blood pressure medication and instructed him to go lie down in his cell. Although

the failure to provide a daily medication for up to a week may present a breach simple

enough to be understood by a layperson, the nurse’s subsequent actions create

ambiguity. Without expert testimony, a layperson may not reliably determine

whether the nurse satisfied the applicable standard of care when he finally provided

blood pressure medication and advised Plaintiff to go lie down in his cell. Therefore,

the AMLA likely requires Plaintiff to produce expert testimony regarding the

15 Alabama courts also recognize an exception “when a plaintiff either relies on ‘a recognized

standard or authoritative medical text or treatise,’ or is himself a qualified medical expert.”

HealthSouth Corp., 851 So. 2d at 42 (quoting Anderson v. Ala. Reference Labs., 778 So. 2d 806,

811 (Ala. 2000)). Plaintiff has presented no evidence whatsoever indicating that this exception

applies.

applicable standard of care in this case. Because he has not done so, this claim would

likely be due to be dismissed with prejudice. This inquiry, however, is best decided

by an Alabama state court.

Plaintiff’s failure to produce expert testimony relating to medical causation is

similarly fatal to his AMLA claim. “Unless ‘the cause and effect relationship

between the breach of the standard of care and the subsequent complication or injury

is so readily understood that a layperson can reliably determine the issue of

causation,’ causation in a medical-malpractice case must be established through

expert testimony.” Duckworth, 883 So. 2d at 1217 (quoting Cain v. Howorth, 877 So.

2d 566, 576 (Ala. 2003)). The record includes numerous facts that would prevent a

layperson from reliably determining the issue of causation in this case. As noted

above, before Plaintiff fell on June 9, 2016, the nurse administered his medication

and instructed him to lie down in his cell. Expert testimony is required to make clear

to a layperson to what extent Plaintiff’s decision to leave his cell contributed to his

fall on that day. Moreover, Plaintiff’s childhood injury and subsequent fall in October

2018 further complicate the question of which of Plaintiff’s injuries, if any, are

attributable to his fall on June 9, 2016. As a result, Plaintiff’s failure to provide expert

testimony regarding medical causation could warrant dismissal of his AMLA claim.

As with the inquiry regarding the standard of care, however, this inquiry is best

decided by an Alabama state court.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion to strike (doc. 31) is due to be

denied as moot, and its motion for summary judgment (doc. 25) is due to be granted

in part. The § 1983 claim is due to be dismissed with prejudice, while the state-law

causes of action are due to be dismissed without prejudice so that they may be, if

appropriate, considered by a state court. In the event that Plaintiff seeks to refile this

action in a state court, the Court directs the parties to 28 U.S.C. § 1367(d), which

clarifies the period of limitations that will apply to Plaintiff’s remaining state-law

claims. An order consistent with this opinion will be entered contemporaneously

herewith.

DONE and ORDERED on February 13, 2020.

Cf .

L. Scott Coogfer

United States Dist¥ict Judge

199455

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