Opinion

Benton v. Walker County, Alabama

Court: District Court, N.D. Alabama
Filed: Mar 24, 2020
Cited by: 0 cases
Authority: More cited than 16.5%

all justifiable inferences must be drawn in the non- moving party’s favor

How later courts described this case

all justifiable inferences must be drawn in the non- moving party’s favor
a court is not required to resolve disputes in the non- moving party’s favor when that party’s version of the events is supported by insufficient evidence

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

TERRY BENTON, )

)

Plaintiff, )

)

v. ) Case No.: 6:17-cv-00384-JHE

)

WALKER COUNTY, ALABAMA, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER1

Plaintiff Terry Benton brings this action for violation of his civil rights pursuant to 42

U.S.C. § 1983. (Doc. 3-3). After the undersigned ruled on a motion for partial dismissal, the

following claims remain: (1) a § 1983 Failure to Protect Claim against Officer Nicholas Harbin in

his individual capacity; (2) § 1983 Failure to Protect Claim Against Sheriff Underwood in his

individual capacity; (3) § 1983 Failure to Provide Adequate Medical Care Claim against Sheriff

Underwood in his individual capacity; (4) § 1983 Failure to Fund Claim against Walker County;

and (5) a state law claim for negligence, wantonness and/or recklessness against Officer Harbin.

(Doc. 15). Discovery has closed (doc. 47), and the parties have filed multiple motions for

summary judgment (docs. 53, 55, 58, 61). Those motions have been fully briefed and are ripe for

review.

For the reasons explained below, Defendant Sheriff Underwood’s motion for summary

judgment (doc. 53) is GRANTED IN PART AND DENIED IN PART; Defendant Nicholas

Harbin’s motion for summary judgment (doc. 55) is DENIED; Defendant Walker County’s

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge

conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 11).

motion for summary judgment (doc. 58) is GRANTED; and Plaintiff Benton’s motion for

summary judgment (doc. 61) is DENIED.

I. Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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.” Rule 56 “mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving

party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.

The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to

establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks

omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

The Court must construe the evidence and all reasonable inferences arising from it in the

light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,

(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-

moving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient

competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,

283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-

moving party’s favor when that party’s version of the events is supported by insufficient evidence).

However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat

a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)

(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be

enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

The applicable Rule 56 standard is not affected by the filing of cross-motions for summary

judgment. See Gerling Global Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th

Cir. 2001). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary

judgment will not, in themselves, warrant the court in granting summary judgment unless one of

the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.”

United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted).

II. Summary Judgment Facts

Plaintiff Terry Benton (“Benton”) was arrested on July 16, 2015, for failure to register as

a sex offender, booked into the Walker County Jail, and assigned to the “B-Dorm.” (Doc. 64-1 at

50-56). B-Dorm is a general population dorm that houses pretrial and convicted sex offenders.

(Doc. 64-1 at 33 (122:3-8); doc. 62-2 at 23-24 (85:9-86:18); doc. 62-3 at 28 (103:17-105:21)). The

individual cells in B-Dorm do not lock, and inmates can move freely throughout the dorm. (Id.).

Upon arrival, Benton was not assigned a cell, but slept on a mat on the floor in the day room for

two weeks until he was “invited” to share a cell. (Doc. 64-1 at 5 (10:19-13:6)).

A. Conditions at Walker County Jail

Benton testifies that inmates in the jail were known to fashion “homemade” weapons by

chipping away at the concrete walls and that he observed fights in the jail that resulted in serious

injury. (Doc. 64-1 at 7-8, 32 (21:25-22:21, 120:10-19)). Although Sheriff Underwood was aware

that inmates fought routinely, there was no procedure for keeping track of the number of inmate

fights or their severity. (Doc. 62-2 at 17-18 (59:7-63:10)). Sheriff Underwood was unaware of

whether jail staff disciplined inmates for fighting. (Id. at 30 (112:12-113:16)).

Prior to Sheriff Underwood taking office, in 1995,2 Walker County entered into a federal

consent decree, requiring the jail to meet certain minimal operational standards. (Doc. 62-3 at 7,

9 (21:1-5, 26:10-28:14)); see Terrell v. Herring, CV 93-B-2690-J. Finding compliance, the Court

terminated the Consent Order in 2006. See Terrell v. Herring, CV 93-B-2690-J at doc. 83.

Under the Consent Decree, to be minimally staffed, there was supposed to be at least

fourteen officers assigned to each shift to ensure the safe operation of the jail. (Doc. 62-3 at 13-14

(44:2-15, 46:12-48:21)). During the relevant time period, it was the Sheriff’s practice to have five

to seven officers on shift. (Id.). When there were five officers on duty, three officers were locked

in stationary positions – central control, pod control, and booking, leaving only one officer to

attend to the mail dorms and one officer for the female dorms. (Id.).

Sheriff Underwood testified that he has never been able to fully staff the jail and that

inadequate staffing compromises the ability of the officers to respond to problems and effectively

monitor inmates, which could create a dangerous environment where fights are more likely to

occur. (Doc. 62-2 at 16-17 (56:24-59:6)). Sheriff Underwood further testified that he cannot hire

more staff because the Walker County Commission would not approve his requests to do so. (Id.

at 20-21 (73:5-74:17)).

In 2014, following reports that inmates had escaped, by going to the post-office across the

street to pick up contraband and returning without detection, the Jail Administrator Trent

2 Although the parties provide 1993 as the year the consent decree was adopted, court

records indicate the consent order was adopted on March 16, 1995. See Terrell v. Herring, CV

93-B-2690-J at docs. 50 & 83.

McCluskey gave an interview to a news reporter and stated that the jail was ill-equipped with

inferior door locks; the perimeter fence was held together with clothes hangers and had requested

thirty-three additional security cameras and more lighting. (Doc. 62-3 at 11-12 (35:17-38:21)).

McCluskey informed Sheriff Underwood and the County Commission that the video surveillance

system was “very inadequate” and needed to be upgraded with at least thirty-three additional

cameras to ensure the safety of inmates and the correctional officers. (Id. at 22-24 (80:1-86:1)).

McCluskey also testified that if an inmate assault occurred in one of these thirty-three blind spots,

the guards would not learn about it until afterwards. (Id.).

On August 5, 2015, Sheriff Underwood sent the County Commission a letter explaining

the jail was in need of repair and requesting an additional $735,000.00 to make repairs and

improvements to the jail, based on a recommendation from an outside consulting company. (Doc.

62-2 at 7 (19:19-20:1); doc. 63-6 at 2-20). Sheriff Underwood did not receive a response from

the County Commission, who, instead, cut his budget four out of five consecutive years by four to

five percent each year. (Doc. 62-2 at 15 (51:6-52:10)).

The capacity at Walker County Jail is 278 inmates. (Doc. 62-2 at 16 (54:15-55:8)). On

August 17, 2015, the jail was near capacity with 273 inmates. (Doc. 63-3 at 2).

B. Harbin’s Employment

Former Sheriff Tirey hired Nicholas Harbin as a correctional officer in 2006. (Doc. 63-1

at 5 (11:7-19)). Prior to working at Walker County Jail, Harbin had no experience as a correctional

officer and received two weeks training at Jail School in Selma, Alabama. (Id.). Harbin does not

establish policy or procedure for the jail. (Id. at 6 (16:19-24)). Sheriff Underwood was the chief

policy maker for the jail; he was responsible for making sure the jail had written policies and

procedures, that the jail staff was trained, and that the policies and procedures were being followed

and enforced. (Doc. 62-2 at 8-9 (23:9-26:2)).

C. The August 17, 2015 Lunch Tray Incident and Punishment

On August 17, 2015, Harbin was working the day shift as a “rover.” (Doc. 63-1 at 11-12

(37:22-38:25)). Harbin’s duties that day included feeding the inmates. (Id.). Harbin began feeding

inmates lunch at 10:28 AM. (Doc. 63-1 at 31). Harbin obtained a head count, and Benton got in

line to receive his tray of food. (Doc. 64-1 at 8 (23:4-24:13)). Benton placed his food tray under

the table, got back in the food line, and got a second tray of food from the jail trustee helping

Harbin. (Id.). Although the practice is one food tray per inmate, there is no official rule as to how

many food trays an inmate can have. (Doc. 63-2 at 18 (66:15-67:19)). And, it was common for

inmates to try to trick the guards into receiving an extra tray. (Id. at 12 (41:3-13)). In fact, Harbin

had been counseled by his supervisor regarding the proper procedure for dispensing food trays.

(Id. at 11 (39:39:11-40:16)). In the past, when he had run out of food trays, presumably because

an inmate had taken more than one, Harbin had not wanted to give the remaining inmates any food.

(Id.). He was counseled that any inmate taking more than one tray was his (Harbin’s) fault, and

he had to feed all the inmates. (Id.).

On August 17, 2015, when Harbin realized an extra tray had been handed out, he entered

the dorm, shut the door, and demanded to know who took it. (Doc. 64-1 at 8 (24:17-25:5)). When

no one answered, Harbin radioed the officer in central command (i.e., the “cube officer”) and

instructed him to turn off B-Dorm’s phones, kiosk, and to allow no store or visitation privileges,

and then he left the dorm. (Id. at 9 (26:16-27:2)). Harbin testified that he knew by punishing the

entire dorm, it would make the other inmates angry and ferret-out the person who caused the

privileges to be revoked. (Doc. 63-1 at 14 (48:9-50:1)). Harbin also stated that he believed group

punishment was an effective tool for controlling inmate behavior because the inmates have their

own way of taking care of the inmate who caused their privileges to be revoked. (Id.). McCluskey

testified that it was Sheriff Underwood’s routine practice to allow group punishment by revoking

privileges for an entire dorm without due process. (Doc. 62-3 at 41-43 (157:11-163:11)). Sheriff

Underwood was also aware that use of such group punishment without due process could create

dangerous conditions for the individual who caused the loss of privileges because inmates have

their own system of justice. (Doc. 62-2 at 25 (91:2-93:5)).

B-Dorm inmates discovered that the phones and kiosk had been turned off and began to

threaten Benton that they would beat and kill him for having lost their privileges. (Doc. 64-1 at 9,

25 (27:3-28:2, 95:5-25)). Afraid for his safety, Benton push the emergency call button and the

cube officer opened the locks to let Benton out of the dorm. (Id.). As Benton exited the dorm,

Harbin approached him in the corridor and saw the other inmates in the dorm beating on the glass,

slamming their cell doors, and yelling “get that bitch out of here; we’re going to beat that bitch’s

ass.” (Id. (28:4-29:18,95:5-15)). Benton asked Harbin to take him into protective custody. (Id.).

Appearing to know the answer, Harbin asked Benton what he did to “piss off” the other inmates,

and Benton admitted to taking the extra food tray. (Id. at 9-10, 25 (29:19-30:3, 95:17-21)). Benton

told Harbin the other inmates wanted to kill him because Harbin had taken away their privileges.

(Id.). Harbin told Benton that it would not have been such a big deal if he had spoken up sooner,

and they would not be having a problem right now. (Doc. 63-1 at 18 (65:9-21)).

Harbin moved Benton to protective custody in M-Dorm for his safety. (Doc. 64-1 at 10

(30:5-20)). A supervisor told Harbin that he would have to complete paperwork for Benton to

remain in protective custody. (Doc. 63-1. at 15 (50:2-51:12)). Rather than complete a report,

Harbin decided to return Benton to B-Dorm. (Id.). About an hour after having been placed in

protective custody, Harbin returned to Benton’s cell and told Benton to get his stuff because he

was taking him back to B-Dorm. (Doc. 64-1 at 10 (31:12-32:16); doc. 63-1 at 19 (66:4-12)).

Benton told Harbin he couldn’t go back to B-Dorm because he was in danger of being attacked.

(Doc. 64-1 at 10 (31:12-32:16)). Harbin responded that “[Benton] tried the wrong damn officer

on the wrong fucking day” and that he was “not one of these rookies that just started working here.

. . . It don’t feel good now does it.” (Doc. 64-1 at 10 (32:17-33:3); doc. 63-1 at 19 (13:67:21)).

D. The August 17, 2015 Assault and Response

Within five minutes of having been returned to B-Dorm, Benton was attacked by five other

inmates, beaten, and struck in the face with a chunk of concrete wall. (Doc. 64-1 at 11, 32 (34:1-

35:21, 120:2-121:2), doc. 63-1 at 31). According to Benton, upon returning to B-Dorm, another

inmate named William Scruggs asked who he told on to get back in there. (Doc. 64-1 at 11 (34:1-

25)). Benton told Scruggs he didn’t tell on anyone, and Scruggs told him that he didn’t want

Benton in B-Dorm anyway. (Id.). According to Benton, Scruggs and other inmates started

swinging at him and kicking him. (Id. (34:21-35:14)).

Harbin called a “code blue” (inmates fighting) over the radio and took the injured Benton

to booking for medical observation. (Doc. 63-1 at 17, 31 (60:19-61:5)). Benton received injuries

to the nose and mouth and was “bleeding pretty bad.” (Doc. 64-1 at 11 (36:1-37:6). Officers took

Benton to a shower to wash off, clothing and all, then back to the booking room where he laid on

the concrete floor. (Id.). Officers gave Benton two tampons (to stop the bleeding in his nose).

(Id.). With pain in his ribs, nose, and tooth, and with his eyes swollen shut, Benton spent the night

in the booking room. (Id. (37:8-25).

A representative of the jail medical staff, jail nurse Roger Childers, saw Benton the next

morning. (Doc. 64-1 at 11 (37:8-25)). Childers told Benton he couldn’t do much for a broken

nose and offered Advil. (Id.). Equipment was brought to the jail to perform x-rays on Benton’s

face, and the radiologist determined there were no broken bones. (Id. at 12 (38:6-13, 22)).

E. Walker County Jail Medical Care

Childers is a registered nurse and principal owner of Preemptive Forensic Health Solutions,

LLC (“PFHS”), the entity that contracts with Walker County Commission to triage inmates’ health

care needs and provide basic medical services. (Doc. 63-4 at 7; doc. 63-5 at 2-7). PFHS controlled

the triage process and thus could restrict inmates’ access to medical care and reduce the associated

cost to the County Commission. (Doc. 63-4 at 7). Walker County Commission did not appoint a

health care authority to create health care policy and procedures for the jail. (Doc. 63-4 at 7).

Sheriff Underwood delegated decisions pertaining to appropriate health care for inmates to nurse

Childers, who determined whether a nurse practitioner or medical doctor needed to be brought in,

who would be hired and paid by Childers’ company on a case by case basis. (Doc. 62-3 at 19

(68:5-69:8); doc. 62-2 at 16 (55:20-56:7); doc. 63-4 at 7).

The jail did not keep medical records, and there was no physician oversight of the medical

care provided to inmates at the Walker County Jail. (Doc. 63-4 at 7-8). There was no medical

authority other than PHFS to supervise, inspect, and verify that appropriate care was being

provided. (Id.).

F. Additional Medical Care

On August 21, 2015, Benton requested to see a doctor about his continued complaints

regarding his injured nose and ribs hurting. (Doc. 64-1 at 12 (39:4-19)). Thus, four days after the

assault, Benton was taken to Walker Baptist Hospital and examined by Thomas Deitz, a nurse

practitioner, who noted Benton was in moderate pain and diagnosed a facial injury that consisted

of abrasions to his face, bruising, and a torn nasal septum. (Doc. 63-7 at 10-12 (30:1-41:23), 13-

14 (45:19-47:24)). The overlaying layers of tissue of Benton’s nasal septum were compromised

and the cartilage was disrupted. (Id.). Benton was prescribed Afrin for his nosebleeds, Naprosyn

Sodium for his pain, and Bactroban and Bactrim (antibiotics) for his open wounds. (Id. at 44).

The Bactrim was prescribed as a preventative measure because Benton was at an increased risk of

infection, such as MRSA,3 since he was in prison. (Id. at 13 (43:13-24)). He was directed to

follow-up with an ear, nose, and throat specialist within three days. (Id. at 14 (47:9-16); doc. 63-

7 at 39).

When Benton returned to the jail, his hospital records and prescriptions were given to

officers, who gave them to Childers. (Doc. 64-1 at 33-34 (125:19-127:2); doc. 62-3 at 21 (74:17-

75:3)). Walker County Jail’s policy was for Childers’ and his staff to fill and dispense prescription

medication to inmates. (Doc. 62-2 at 31 (116:25-117:14); doc. 62-3 at 18, 21-22 (63:3-13, 74:19-

78:8)). The Sheriff was responsible for ensuring Childers and his staff complied with these policies

pertaining to the provision of medical care and prescription medication; yet, there was no policy

or practice in place to ensure inmates received medication prescribed by their physicians. (Id.).

When inmates complained about not receiving medical care, which they did regularly, Sheriff

Underwood would forward their complaints to Childers. (Doc. 62-2 at 32-33 (120:21-122:10);

62-3 at 17 (59:23-61:23)). When Benton did not receive his prescribed medication or his follow-

up visit with an ENT, on September 2, 2015, Benton filed a medical request with jail staff. (Doc.

62-2 at 32-34 (121:21-126:12), 54-56). As his wounds continued to ooze, his face became swollen

and his nose continued to bleed, there is no indication Benton received anything other than

Naprosyn for his pain. (Id.; doc. 64-1 at 13 (44:22-46:7)).

On September 15, 2015, Benton was released from the Walker County Jail on his own

recognizance and transferred to the Fayette County Jail. (Doc. 53-1 at 13 (45:12-21)). At no time

3 MRSA is methicillin-resistant Staphylococcus aureus, an antibiotic-resistant bacterium.

during his confinement at Walker County Jail in July, August, and September 2015, did Benton

communicate with Sheriff Underwood. (Id. at 19-20 (68:3-7, 69:20-25, 70:1-5)).

On September 22, 2015, Walker County paid Pegasus Emergency Group of Troy,

Alabama, $ 1,729.00, for the care provided to Benton. (Doc. 59-1 at ¶ 7 & p.9). Any direct

payment to Walker Baptist Hospital or the x-ray provider, MobileXUSA, would have been

regularly billed to Walker County with services provided to other inmates included on one invoice.

(Id. at ¶ 8).

After being seen by the Fayette County Jail physician Dr. Magourik on October 9, 2015,

on October 10, 2015, the Fayette County Sheriff’s Office took Benton to the emergency room at

DCH-Fayette, complaining of facial swelling for the previous three days. He was diagnosed with

cellulitis and prescribed Bactoban, Bactrim, and Ibuprofen; Benton also received a Ketrolac shot

to treat the infection that had developed in his face. (Doc. 63-9 at 2-15). On October 12, 2015,

Benton’s condition appeared worse. He was again seen by Dr. Magouirk, who referred him to

DCH, where he was admitted for antibiotic treatment. (Doc. 64-1 at 14 (46:9-47:24)). Benton

remained in the hospital for three days, where he was treated for facial cellulitis and an abscess to

the left side of his face and lips, which grew MRSA (Methicilli-resistant Staphylococcus aureus).

(Doc. 63-9 at 20-47, 49). He was prescribed IV antibiotics, oral antibiotics, and morphine, then

discharged on October 15, 2015, when his symptoms resolved. (Id.).

Because Benton had filed criminal assault charges against the inmates who attacked him,

on November 17, 2015, Benton was transported to the Walker County Jail. (Doc. 76-1 at 20

(70:18-72:9)). At some point between November 21, 2015, Benton filed a grievance with Sheriff

Underwood concerning the August 17, 2015 attack and lack of medical care he received

afterwards. (Doc. 56-3 at 39-40 (144:11-147:3)). On December 23, 2015, Sheriff Underwood

notified Harbin that he intended to suspend Harbin for five days without pay for four incidents,

including the one included in Benton’s grievance. (Doc. 62-2 at 27 (98:13-22)). Harbin did not

dispute he committed the wrongs, agreed to the suspension, and admitted he had an “explosive

temper.” (Doc. 62-3 at 39-40 (148:6-150:21), 80-83).

G. Walker County Commission

The fiscal year of the Walker County Commission runs from October 1 through September

30 of the immediately following year, meaning the 2014-2015 fiscal year ran from October 1, 2014

through September 30, 2015. (Doc. 59-1 at ¶ 3). Benton’s assault occurred on August 17, 2015,

during the 2014-2015 Walker County fiscal year. During fiscal year 2014-2015, Walker County

paid Preemptive Forensic Health Solutions (“PFHS”) for onsite medical care and treatment of

inmates at the Walker County Jail, and for those services, Walker County paid PFHS $ 15,120.00

per month. (Id. at ¶ 5). For fiscal year 2014-2015, Walker County paid a total of $ 544,513.73,

for inmate health care and medications. (Id. at ¶ 5). This total includes not only payments for

PFHS, but also for any care provided to an inmate that the inmate did not have funds or resources

to pay for, which specifically includes care and treatment at emergency rooms, hospitals, and

physician’s offices, having prescription medications filled, and having x-rays performed, whether

at the jail or at an offsite facility or office. (Id.). Such medical examinations, care, or treatment,

or any medication or x-ray did not require any preapproval by Walker County (or its Commission).

(Id. at ¶ 9). Except for payments scheduled by contract, Walker County was billed after the service

or medication was provided. (Id.).

The Sheriff, jail administrator, and jail staff coordinated with the onsite medical provider

for any offsite treatment that was needed for an inmate. (Doc. 56-3 at 48 (180:3-21)). Similarly,

any follow-up or further medical care or treatment at an offsite location was coordinated with and

handled by jail staff. (Id. at 48-49 (180:22-181:13)).

III. Analysis

A. Defendant Walker County

Benton asserts one claim against Walker County, alleging that the County failed to

adequately fund inmate medical care at the Walker County Jail. The Supreme Court has

recognized that inmates must rely on prison authorities to treat their medical needs. Harris v.

Thigpen, 941 F.2d 1495, 1504 (11th Cir. 1991) (quoting Estelle v. Gamble, 429 U.S. 97, 103

(1976)). Thus, federal and state governments are constitutionally required to provide minimally

adequate medical care to those whom are incarcerated. Id. Lack of funds cannot justify an

unconstitutional lack of competent medical care and treatment. Ancata v. Prison Health Servs.,

Inc., 769 F.2d 700, 705 (11th Cir. 1985).

However, Alabama counties have only the powers delegated to them by the legislature.

Shaw v. Coosa Cnty. Comm., 330 F. Supp. 2d 1285, 1288 (M.D. Ala. 2004) (citing Turquitt v.

Jefferson Cnty., Ala., 137 F.3d 1285, 1289 (11th Cir. 1998)). Alabama counties have no role in

operating, administering, or overseeing jails. Pettus v. Hill, Case No. CV 05-B-2496-NE, 2008

WL 11425363, at *7-8 (N.D. Ala. Mar. 31, 2008) (citing ALA. CODE § 11-14-10). Rather, in

Alabama, the sheriff “has legal custody and charge of the jail in his county and all prisoners

committed thereto. . . . “ ALA. CODE § 14-6-1 (1975). Sheriffs have full responsibility for daily

management of the jails, including inmate supervision, and they are not subject to county oversight

in their performance of this responsibility. Turquitt, 137 F.3d at 1289. The Alabama Department

of Corrections, a state agency, oversees the county jails and has the authority to regulate and

inspect them to aid in securing just, humane, and economic management. Id.

Alabama counties do possess some duties with respect to county jails; however, none of

these duties “relates to the daily operation of the jails or to the supervision of inmates.” Turquitt,

137 F.3d at 1289. “The duties of the counties with respect to the jails are limited to funding the

operation of the jail and providing facilities to house the jail.” Id. Specifically, Alabama Code §

14-6-19 provides, in pertinent part, that “[t]he sheriff of a county shall provide to prisoners at the

expense of the county, all of the following . . . [n]ecessary medicine and medical attention to those

prisoners who are sick or injured, when they are unable to provide them for themselves.”

(emphasis added). Thus, Alabama law places a duty on the county to fund the medical care

described in the statute. See Shaw v. Coosa Cnty. Commission, 330 F. Supp. 2d 1285, 1288-89

(N.D. Ala. 2004).

Benton’s sole claim against Walker County is a § 1983 claim for failure to fund, alleging

that Walker County “caused or contributed” to the medical customs and policies at Walker County

Jail “by not providing adequate funds for medical treatment for the prisoners in its custody and in

other ways, by encouraging a culture where saving money was encouraged over the protections of

inmates’ constitutional rights.” (Doc. 3-3 at 22, ¶ 85). Benton has not shown that Walker County

(nor its County Commission) failed to adequately fund inmate medical care and treatment in Fiscal

Year 2014-2015, specifically for August 2015. The undisputed evidence demonstrates Walker

County paid for onsite medical care by PFHS, paid for inmates’ x-rays, paid for inmates’ offsite

medical care and treatment at the hospital and physicians’ offices, and paid for prescription

medications – totaling $ 544,513.74 that year. (Doc. 59-1 at ¶ 5).

It appears Benton takes issue with the medical care he received from the onsite provider,

but there is no evidence that any medical evaluation, treatment, care, or prescription medication

was “restricted” or not provided due to lack of funding from Walker County. Decisions regarding

Benton’s medical care were made by jail staff, and Walker County did not have to approve any

such medical care or medications. Furthermore, while Walker County made scheduled payments

to PFHS, Walker County could have been billed for additional medical services and medication

after they were provided. There is no evidence to support Benton’s claim against Walker County

for failure to fund. Walker County’s motion for summary judgment (doc. 58) will be GRANTED,

and the single failure to fund claim against Walker County will be DISMISSED.4

B. Defendant Officer Harbin

Benton assertions a § 1983 claim for failure to protect against Office Harbin, as well as

state law claims for negligence, wantonness, and/or recklessness. (See doc. 15).

1. Failure to Protect

Failure to protect claims are analyzed under the Eighth Amendment deliberate indifference

standard. Farmer v. Brennan, 511 U.S. 825, 823-33 (1994). Technically, claims brought by a

pretrial detainee, “are considered under the Due Process Clause of the Fourteenth Amendment,

which prohibits the imposition of punishment on those who have not yet been convicted of a crime,

whereas the Eighth Amendment’s prohibition against cruel and unusual punishment governs

claims of convicted inmates. . . .” Smith v. Terry, 2:13-cv-216-WHA, 2016 WL 4942066, at *2

(M.D. Ala. Aug. 15, 2016) (citations and internal quotations omitted). “As to these claims, the

Eleventh Circuit has long held that the applicable standard is the same, so decisional law involving

prison inmates applies equally to cases involving arrestees or pretrial detainees.” Id. The standard

for deliberate indifference requires the plaintiff to produce sufficient evidence that (1) the

defendant knew of and disregarded “an excessive risk to inmate health or safety;” (2) the defendant

was “aware of facts from which the inference could be drawn that a substantial risk of serious harm

4 Accordingly, Benton’s motion for summary judgment (doc. 61) is due to be DENIED

as to this claim against Walker County.

exist[ed];” and (3) the defendant must also draw that inference.” Farmer, 511 U.S. at 837. The

condition must be “extreme” such that there is a “strong likelihood of injury, rather than a mere

possibility, before an official’s failure to act can constitute deliberate indifference.” Estate of

Owens v. GEO Group, Inc., 660 Fed. Appx. 763, 767 (11th Cir. 2016). “[T]he deliberate

indifference standard—and the subjective awareness required by it—is far more onerous than

normal tort-based standards of conduct sounding in negligence: ‘Merely negligent failure to

protect an inmate from attack does not justify liability under [§] 1983.’” Goodman v. Kimbrough,

718 F.3d 1325, 1332 (11th Cir. 2013) (quoting Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir.

1990)).

In support of his motion for summary judgment, Harbin argues Benton cannot prove his

failure to protect claim because Harbin was not aware of a substantial risk of serious harm existed.

(Doc. 56 at 9-15). First, Harbin argues the assault occurred not because of the loss of privileges,

but because Benton was an informant, which he didn’t know anything about. (Doc. 56 at 10).

Next, Harbin argues that, although Benton was at a substantial risk of serious harm when privileges

were revoked, that risk was abated when privileges were restored, and he could not have

anticipated Benton was still at risk. (Id. at 13).

Sufficient evidence has been presented to create a genuine issue as to whether Officer

Harbin was subjectively aware Benton was at a serious risk of substantial harm when he returned

him to B-Dorm after revoking all of B-Dorm’s privileges. The question of “[w]hether a prison

official had the requisite knowledge of a substantial risk is a question of fact,” and such knowledge

may be inferred based on the obviousness of the risk.” Farmer, 511 U.S. at 842, 844-45; Bugge

v. Roberts, 430 Fed. Appx. 753, 758 (11th Cir. 2011). After Harbin instructed the cube officer to

turn off the phones, B-Dorm inmates discovered that the phones and kiosk had been turned off and

begun to threaten Benton that they would beat and kill him for having lost their privileges. (Doc.

64-1 at 9, 25 (27:3-28:2, 95:5-25)). This was not some unsurprising turn of events. Harbin testified

that he knew by punishing the entire dorm, it would make the other inmates angry and ferret-out

the person who caused the privileges to be revoked. (Doc. 63-1 at 14 (48:9-50:1)). Harbin also

stated that he believed group punishment was an effective tool for controlling inmate behavior

because the inmates have their own way of taking care of the inmate who caused their privileges

to be revoked. (Id.).

Although Harbin moved Benton into protective custody for about an hour, the evidence

demonstrates that a supervisor told Harbin that he would have to complete paperwork for Benton

to remain in protective custody. (Doc. 63-1. at 15 (50:2-51:12)). Rather than complete a report,

Harbin decided to return Benton to B-Dorm. (Id.). Benton told Harbin he couldn’t go back to B-

Dorm because he was in danger of being attacked. (Doc. 64-1 at 10 (31:12-32:16)). Harbin

responded that “[Benton] tried the wrong damn officer on the wrong fucking day” and that he was

“not one of these rookies that just started working here. . . . It don’t feel good now does it.” (Doc.

64-1 at 10 (32:17-33:3); doc. 63-1 at 19 (13:67:21)). This evidence supports Benton’s claim that

Harbin remained aware of the specific, continued threat against his safety and returned Benton to

B-Dorm where the other inmates were waiting to enact their revenge.

2. Qualified Immunity

The doctrine of qualified immunity protects government officers when they are sued in

their individual capacities from liability for civil damages so long as their conduct “does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). An officer will be entitled to qualified immunity if his actions were

objectively reasonable, that is if an objectively reasonable officer in the same situation could have

believed that his actions were lawful based on the law clearly established at the time. Id. (citing

Anderson v. Creighton, 483 U.S. 635, 638-41 (1987)). “The purpose of this immunity is to allow

government officials to carry out their discretionary duties without the fear of personal liability or

harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly

violating the federal law.” Id. (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)

(internal quotation marks and citations omitted).

There is no dispute that Officer Harbin, a public official, was acting within the scope of his

discretionary authority at the time he allegedly violated Benton’s constitutional rights. The parties

disagree as to whether Harbin’s actions “violated clearly established law.” Qualified immunity

will not apply if Harbin’s conduct violated such clearly established law, meaning “a reasonable

public officer would not have believed his actions to be lawful in light of law that was clearly

established at the time of the purposed violation. Anderson v. Creighton, 438 U.S. 635, 641 (1987);

Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996).

Relevant case law establishes that, beyond restraining prison officials from inflicting

“cruel and unusual punishment,” the Constitution imposes duties on these officials, who must “take

reasonable measures to guarantee the safety of the inmates.” Bowen v. Warden, Baldwin State

Prison, 826 F.2d 1312, 1319-20 (11th Cir. 2016) (quoting Farmer, 511 U.S. 825, 832). The

Supreme Court has made clear that “prison officials have a duty . . . to protect prisoners from

violence at the hands of other prisoners.” Id. at 833. Here, the evidence shows that, although

Harbin briefly removed Benton from B-Dorm to protective custody, he subsequently returned him

to B-Dorm instead of filling out paperwork to transfer him to protective custody. (Doc. 63-1. at

15 (50:2-51:12)). Harbin’s argument that any risk or threat had abated is belied by the record. To

the contrary, Harbin’s testimony shows that he returned Benton to B-Dorm knowing the inmates

would handle the problem their own way. Harbin is not entitled to qualified immunity on Benton’s

failure to protect claim because Benton’s rights were clearly established at the time of the violation.

3. Immunity as to State Law Claims Against Harbin

Harbin contends he is shielded from liability as to Benton’s state law claims under several

different theories, including sovereign immunity pursuant to Article I, § 14 of the Alabama

Constitution; the Alabama Jailer’s Act as codified in Alabama Code §§ 36-22-3(b) and 14-6-1; as

well as State Agent and Discretionary Function Immunity. (Doc. 56 at 21-26).

a. Sovereign Immunity

The Alabama Constitution provides for sovereign immunity in Article I, § 14, which states

“the State of Alabama shall never be made a defendant in any court of law or equity.” Sovereign

immunity extends to Alabama sheriffs “when they are executing their law enforcement duties.”

McMillian v. Monroe Cnty, Ala., 520 U.S. 781, 793 (1997). Deputy sheriffs are also immune to

suit to the same extent as a sheriff because “the deputy sheriff is the alter ego of the sheriff.”

Hereford v. Jefferson Cnty., 586 So. 2d 209, 210 (Ala. 1991). However, jailers working for a

sheriff’s office “cannot properly be viewed in legal contemplation as an extension of the sheriff or

as one officer with the sheriff.” Ex parte Shelley, 53 So. 3d 887, 898 (Ala. 2009). Thus, the

Alabama Constitution does not provide immunity from suits against jailers such as Officer Harbin

in their individual capacities for money damages. See id.; see also Young v. Myhrer, 243 F. Supp.

3d 1243, 1252-53 (N.D. Ala. 2017). Officer Harbin is not entitled to the sovereign immunity

provided in Article I, § 14 of the Alabama Constitution.

b. The Alabama Jailer Liability Protection Act

In June 2011, the Alabama Legislature enacted the Jailer Liability Protection Act, which

amended Alabama Code §§ 14-6-1 and 36-22-3 to provide immunity for jail personnel. See Young,

243 F. Supp. 3d at 1253. Alabama Code § 14-6-1 now reads as follows:

The sheriff has the legal custody and charge of the jail in his or her county and all

prisoners committed thereto, except in cases otherwise provided by law. The sheriff

may employ persons to carry out his or her duty to operate the jail and supervise

the inmates housed therein for whose acts he or she is civilly responsible. Persons

so employed by the sheriff shall be acting for and under the direction and

supervision of the sheriff and shall be entitled to the same immunities and legal

protections granted to the sheriff under the general laws and the Constitution of

Alabama of 1901, as long as such persons are acting within the line and scope of

their duties and are acting in compliance with the law.

ALA. CODE § 14-6-1. (emphasis added). The related statutory counterpart provides as follows:

Any of the duties of the sheriff set out in subsection (a) or as otherwise provided

by law may be carried out by deputies, reserve deputies, and persons employed as

authorized in Section 14–6–1 as determined appropriate by the sheriff in

accordance with state law. Persons undertaking such duties for and under the

direction and supervision of the sheriff shall be entitled to the same immunities and

legal protections granted to the sheriff under the general laws and the Constitution

of Alabama of 1901, as long as he or she is acting within the line and scope of his

or her duties and is acting in compliance with the law.

ALA. CODE § 36-22-3(b). (emphasis added).

Whether Harbin is entitled to such protection from liability depends on if he was “acting

within the line and scope of his . . . duties” and whether he was “acting in compliance with the

law.” See id. While there does not appear to be direct guidance from the Alabama Supreme Court

or the Eleventh Circuit on the meaning of this language, several district courts have addressed this

issue, and the courts agree that the language must mean more than just a restatement of the jailer

act’s first prong. See Young, 243 F. Supp. 3d at 1255. Otherwise, the phrase would be superfluous.

Specifically, “acting within the line and scope of one’s duty is not enough to guarantee immunity,

as immunity is also conditioned on ‘acting in compliance with the law.’” Hobbs v. Powell, 138 F.

Supp. 3d 1328, 1337 (N.D. Ala. 2015).

Harbin cannot satisfy the second prong of the Alabama Jailer Liability Protection Act, that

he was “acting in compliance with the law.” There is sufficient evidence to create a genuine issue

of material fact as to Benton’s failure to protect claim (as explained above) as well as his state law

claims.

c. State Agent Immunity

Harbin also argues he is entitled to state agent immunity as outlined in Ex parte Cranman.

792 So. 2d 392, 405 (Ala. 2000). (Doc. 56 at 23-26). In Cranman, the Alabama Supreme Court

restated the rule governing 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;

(d) hiring, firing, transferring, assigning, or supervising personnel;

(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

(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.

792 So. 2d at 405. When a party raises the state agent immunity defense, there is a burden-

shifting process that must take place. Ex parte Estate of Reynold, 946 So. 2d 450, 452 (Ala. 2006)

(citing Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)). To claim state agent

immunity, a State agent must bear the burden of demonstrating that the plaintiff’s claim arising

from a function that would entitle the State agent to immunity. Id. (citing Giambrone, 874 So. 2d

at 1052). 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 authority.

Id. (citing Giambrone, 874 So. 2d at 1052). “A State 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.’” Id. (quoting Giambrone, 874 So.2d at 1052).

Harbin contends he is entitled to State agent immunity because he was exercising his

judgment in the administration of the jail when Benton was injured. (Doc. 79 at 12). Harbin has

carried his burden to show that Benton’s claim arose from a function that would entitle him to

State agent immunity. Harbin was exercising his judgment in the administration of the jail when

he decided to institute group punishment and then remove and return Benton. See Ex parte Dixon,

55 So. 3d 1171, 1179-80 (Ala. 2010). Thus, the burden shifts to Benton to prevent State agent

immunity from shielding Harbin from liability. As outline above, there is evidence that Harbin

acted either “willfully, maliciously, fraudulently, or in bad faith,” when he returned Benton to B-

Dorm. There is evidence that shows Harbin knew group punishment would make the inmates turn

on each other. The evidence further shows that, although Harbin removed Benton from what was

becoming a violent situation, Harbin returned Benton to B-Dorm when confronted with having to

fill out paperwork. Furthermore, Harbin knew that the threat to Benton’s safety remained, as

Benton told Harbin he couldn’t go back to B-Dorm because he was in danger of being attacked,

(doc. 64-1 at 10 (31:12-32:16)), and Harbin responded that “[Benton] tried the wrong damn officer

on the wrong fucking day” and that he was “not one of these rookies that just started working here.

. . . It don’t feel good now does it.” (Doc. 64-1 at 10 (32:17-33:3); doc. 63-1 at 19 (13:67:21)).

There is sufficient evidence to show Harbin acted willfully and maliciously to prevent State agent

immunity from protecting him from liability.

For these reasons, Harbin’s motion for summary judgment (doc. 55) is DENIED. The

failure to protect and state law claims against Harbin will go forward.5

C. Defendant Sheriff Underwood

There are two remaining claims against Sheriff Underwood in his individual capacity: a

claim for failure to protect and a claim for failure to provide adequate medical care. (See doc. 15).

1. Failure to Protect6

Failure to protect claims are analyzed under the Eighth Amendment deliberate indifference

standard. Farmer v. Brennan, 511 U.S. 825, 823-33 (1994). Technically, claims brought by a

pretrial detainee, “are considered under the Due Process Clause of the Fourteenth Amendment,

which prohibits the imposition of punishment on those who have not yet been convicted of a crime,

whereas the Eighth Amendment’s prohibition against cruel and unusual punishment governs

claims of convicted inmates. . . .” Smith v. Terry, 2:13-cv-216-WHA, 2016 WL 4942066, at *2

(M.D. Ala. Aug. 15, 2016) (citations and internal quotations omitted). “As to these claims, the

5 Benton’s motion for summary judgment (doc. 61) is also DENIED as to the claims

asserted against Harbin. While there is evidence to support Benton’s claims against Harbin, there

are genuine issues of material fact that should be resolved at trial.

6 To clarify, there is separate claim for violation of Benton’s due process rights based on

the imposition of group punishment. (See doc. 15). Instead, Benton asserts a claim for failure to

protect for which the imposition of group punishment is part of the facts.