# Powell v. Dunn

> District Court, N.D. Alabama · March 1, 2022

URL: https://www.frixlaw.com/law-library/cases/9990912

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9990912

## How later opinions describe it (automated extraction)

- explaining that, to establish third party standing, “the litigant must have a close relation to the third party”
- stating that § 6-5-410 is a “statute of creation,” and that “the two-year period is not a statute of limitations but a period after which liability under the statute ceases to exist”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
TRUDY POWELL, AS ]
ADMINISTRATRIX OF ]
THE ESTATE OF HAROLD ]
EUGENE POWELL, ]
]
Plaintiff, ]
]
v. ] 1:20-cv-1764-ACA
]
JEFFERSON DUNN, et al., ]
]
Defendants. ]
MEMORANDUM OPINION AND ORDER
While imprisoned at Limestone Correctional Facility (“LCF”), Harold Powell
began to experience symptoms of cancer. Despite his deteriorating condition and
repeated requests for medical help, LCF provided almost no medical treatment for
six months. By the time LCF transferred Mr. Powell to Crestwood Medical Facility,
his cancer had reached its final stages. Mr. Powell died two months later. (Doc. 18
at 11–12 ¶¶ 50–53).
Plaintiff Trudy Powell is Mr. Powell’s mother and the representative of his
estate. (Id. at 2). In that capacity, she filed this complaint against Defendants
Jefferson Dunn, Grant Culliver, Ruth Naglich, Dewayne Estes, Scarlett Robinson,
Jeff Williams, Steve Watson, M. Haynes, Prem Gulati, Correctional Officer
Sturdivant, and Wexford Health Sources, Inc. (“Wexford”). Ms. Powell makes
claims against these Defendants pursuant to 42 U.S.C. § 1983 asserting violations of

Mr. Powell’s rights under the Eighth and Fourteenth Amendment for failure to
protect, deliberate indifference to a serious medical need, failure to intervene, and
state-created danger. She also asserts state law claims for civil conspiracy and

indemnification.
Ms. Powell never served Defendants Gulati, Haynes, and Sturdivant, and on
August 31, 2021, the court dismissed those defendants from the case. (Doc. 31).
Wexford filed an answer to the amended complaint. (Doc. 28). The remaining

defendants move to dismiss all claims against them. (Doc. 20).
The court GRANTS the motion to dismiss.
First, the court finds that Ms. Powell’s claims in Counts One, Three, Four,

Five, Six, Eight, and Nine are barred by the statute of limitations and therefore
DISMISSES those claims WITHOUT PREJUDICE.
Second, the court declines to exercise supplemental jurisdiction over
Ms. Powell’s state law claims in Counts Eleven and Twelve and therefore

DISMISSES those claims WITHOUT PREJUDICE.
I. BACKGROUND
At this stage, the court must accept as true the factual allegations in the
complaint and construe them in the light most favorable to the plaintiff. Butler v.

Sheriff of Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012).
Mr. Powell entered LCF as an inmate in January 2018. (Doc. 18 at 9 ¶ 34).
Approximately six weeks later, Mr. Powell began to experience minor ailments,

including muscle and body aches and cold/flu-like symptoms. (Id. at 10 ¶ 36). Mr.
Powell initially treated his symptoms with cold and acid reflux medications that were
available to inmates at LCF. (Id. at 2 ¶ 4).
At some point, Mr. Powell alerted unidentified officers about his condition

and submitted medical requests to be seen by LCF’s contracted health services
provider. (Id. at 10 ¶ 37). Around March or April 2018, “it became apparent that
Mr. Powell’s body was weakening, a rash had developed, his ability to walk was

declining, and he was experiencing severe constipation.” (Id. at 2 ¶ 5). Mr. Powell
requested medical attention and was seen by a nurse. (Doc. 18 at 2 ¶ 6). Thereafter,
Mr. Powell continued to request medical care and was seen by Wexford on June 26,
2018.1 (Id. at 10 ¶ 38).

The precise timeline and details of events that took place thereafter is
relatively unclear. Wexford initially referred Mr. Powell to ADOC’s Mental Health
Services for his complaints of back pain. (Id. at 11 ¶ 43). Mental Health Services

1 Wexford was responsible for, and provided medical and health care to, ADOC inmates
pursuant to a contract with ADOC. (Doc. 18 at 6 ¶ 20).
noted that Mr. Powell’s issue was his back, not his mental health, and recommended
examination by a medical doctor. (Id. at 11 ¶ 44). Mr. Powell was seen by someone

at the prison on August 12, 2018 and at that time, his ability to walk had deteriorated
to the point where a wheelchair was necessary. (Doc. 18 at 2–3, 10 ¶¶ 6, 40). At
the August 12 visit, a nurse informed Mr. Powell that he would see a medical

provider in two days, but that visit never happened. (Id.). Twelve days later, a
doctor ordered an MRI be performed on Mr. Powell. (Id. at 10–11 ¶¶ 41, 42). The
MRI was never provided. (Id. at 11 ¶ 42).
In addition to Mr. Powell’s own complaints while at LCF, Mr. Powell’s family

members and cellmates communicated Mr. Powell’s need for medical care to LCF
officials. (Id. at 10–11, 34 ¶¶ 39, 42, 171). Mr. Powell’s family members also called
LCF seeking information about what, if anything, prison officials were doing about

his illness. (Doc. 18 at 10, 34 ¶¶ 39, 171). On August 3, 2018, Ms. Powell contacted
LCF and was told—despite the fact that no diagnostic testing had been performed—
that her son was fine and “ha[d] no cancer and no hepatitis.” (Id. at 10 ¶¶ 39, 42).
During the period from March or April to August, Mr. Powell suffered

additional symptoms such as bruising, bleeding, fatigue, confusion, infections,
dizziness, and dehydration. (Id. at 13 ¶ 60). After providing little to no treatment to
Mr. Powell, LCF finally transported him to Crestwood Medical Center on September

6, 2018. (Id. at 11 ¶ 46).
At Crestwood, doctors immediately placed Mr. Powell on a ventilator. (Id.).
A week later, he was diagnosed with cancer and started chemotherapy treatment but

by this time, Mr. Powell’s cancer was well into its final stages. (Id. at 11–12 ¶ 50).
Mr. Powell died on November 7, 2018; his cause of death was identified as multiple
myeloma with complications to his cardiovascular, pulmonary, gastrointestinal,

genitourinary, reticuloendothelial, and central nervous systems. (Doc. 18 at 11–12
¶¶ 50, 52, 53).
The moving Defendants each served as prison officials for ADOC at the time
of the events giving rise to this lawsuit. (Id. at 4–8 ¶¶ 16–19, 23–25). Defendant

Dunn was the Commissioner of the Alabama Department of Corrections and was
responsible for “exercising the authority, functions, and duties of the ADOC.” (Id.
at 4 ¶ 16). Defendant Culliver was Associate Commissioner for Operations and

Institutional Security for ADOC the first seven weeks Mr. Powell was within
ADOC’s custody. (Id. at 4–5 ¶ 17). During that time, Culliver was “responsible for
overseeing institutional security, staffing, the Classification Review Board, the
Training Division, and the Transfer Division at each of ADOC’s correctional

facilities.” (Id.). Defendant Naglich was the Associate Commissioner of Health
Services for ADOC and “responsible for the administration of medical and mental
health services to those within [ADOC’s custody].” (Id. at 5 ¶ 18). Defendant Estes

served as LCF’s Warden and was responsible for the “day-to-day operations of the
prison, the safety and security of all prisoners at the facility, and the supervision of
all subordinate[s] . . . within the facility.” (Doc. 18 at 5 ¶ 19). Defendant Robinson

was the Deputy Warden of LCF and Defendant Williams served as the Chaplin. (Id.
at 6–7 ¶¶ 23, 24). Finally, Defendant Watson worked as the Associate
Commissioner of Plans and Programs for ADOC whose job it was to “ensur[e] that

inmates ha[d] the opportunity to practice their recognized religion.” (Id. at 7 ¶ 25).
The amended complaint alleges that Defendants Dunn, Culliver, Naglich, and
Estes failed to protect Mr. Powell from harm as a result of their policy and custom
of understaffing and overcrowding at LCF. (Id. at 23–25 ¶¶ 101–112). Ms. Powell

also alleges that Defendants Dunn, Culliver, Naglich, Williams, and Watson were
deliberately indifferent to Mr. Powell’s medical needs as evidenced by their
knowledge of a “lack of medical care, delays in medical care, [and] failures to

provide adequate medical care” at LCF (id. at 27 ¶ 127), and that Defendants Estes
and Robinson were also deliberately indifferent to Mr. Powell’s medical needs by
failing to “adequately supervise, discipline, implement and/or train LCF medical
staff and/or correctional officers, or take any other reasonable measures to facilitate

their officers providing or obtaining timely medical care to or for prisoners like Mr.
Powell.” (Doc. 18 at 30 ¶143). And, Ms. Powell asserts claims of state-created
danger and failure to intervene against all Defendants. (Id. at 32–33 ¶¶ 154–164

(failure to intervene against Dunn, Culliver, Naglich, Williams, and Watson); id. at
33–35 ¶¶ 165–176 (failure to intervene against Estes and Robinson); id. at 37–38 ¶¶
189–196 (state-created danger against Dunn, Culliver, Naglich, Williams, and

Watson); id. at 38–39 ¶¶ 197–204 (state-created danger against Estes and
Robinson)). Finally, Ms. Powell asserts a state law claim for civil conspiracy against
Dunn, Culliver, Naglich, Williams, and Watson. (Doc. 18 at 40–41 ¶¶ 213–216).

II. DISCUSSION
Defendants Dunn, Culliver, Naglich, Estes, Robinson, Williams, and Watson
move to dismiss Ms. Powell’s amended complaint, contending, among other things,
that the statute of limitations bars Ms. Powell’s federal claims. (Doc. 20 at 16–17).

Defendants also argue for the first time in their reply that Ms. Powell lacks standing
to bring claims seeking injunctive relief. (Doc. 27 at 3–4). “[T]he court has an
independent obligation to assure that standing exists, regardless of whether it is

challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488
(2009). Therefore, the court will begin its analysis with whether Ms. Powell has
standing to assert her claims seeking injunctive relief before turning to the issue of
whether her claims are time-barred.

1. Standing
“[T]hose who seek to invoke the jurisdiction of the federal courts must satisfy
the threshold requirement imposed by Article III of the Constitution by alleging an

actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
“[A] plaintiff must demonstrate standing separately for each form of relief sought.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (quotation marks

omitted). “[T]o demonstrate that a case or controversy exists to meet the Article III
standing requirement when a plaintiff is seeking injunctive or declaratory relief, a
plaintiff must allege facts from which it appears there is a substantial likelihood they

will suffer injury in the future.” Malowney v. Fed. Collection Deposit Grp., 193
F.3d 1342, 1346 (11th Cir. 1999).
Ms. Powell lacks standing to seek an injunction from prohibiting the
defendants from “engaging in further violations of the Eighth Amendment.” (Id. at

42 ¶ 225). Because Mr. Powell died, Ms. Powell cannot establish that Mr. Powell
faces a substantial likelihood of having his Eighth Amendment rights violated by the
defendants in the future. See Lyons, 461 U.S. at 105–06. Further, Ms. Powell lacks

prudential third party standing to bring her claims on behalf of other prisoners in
ADOC facilities. Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1042
(11th Cir. 2008) (explaining that, to establish third party standing, “the litigant must
have a close relation to the third party”).

Accordingly, the court DISMISSES Ms. Powell’s claims for injunctive relief
for lack of standing WITHOUT PREJUDICE.
2. Statute of Limitations
Ms. Powell brings each of her seven claims against Dunn, Culliver, Naglich,
Estes, Robinson, Williams, and Watson in both their official and individual

capacities. (Doc. 18 at 4–8 ¶¶ 16–19, 23–25). The Defendants contend that Ms.
Powell’s federal claims are barred by the applicable statute of limitations and
therefore due to be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

(Doc. 20 at 16–17). “A Rule 12(b)(6) motion to dismiss for failure to state a claim
is an appropriate method for raising a statute of limitations defense.” Mann v. Adams
Realty Co., Inc., 556 F.2d 288, 293 (5th Cir. 1977).2 But dismissal on statute of
limitations grounds is appropriate only when it is “apparent from the face of the

complaint that the claim is time-barred.” La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
Applying that standard here, the amended complaint is due to be dismissed.

For actions brought pursuant to 42 U.S.C. § 1983, state law provides the applicable
statute of limitations and determines when the limitations period is tolled. Dukes v.
Smitherman, 32 F.3d 535, 537 (11th Cir. 1994). Under Alabama law, claims brought
pursuant to 42 U.S.C. § 1983 are subject to a two-year statute of limitations. Lufkin

v. McCallum, 956 F.2d 1104, 1106 (11th Cir. 1992); Ala. Code § 6-2-38(1). Federal
law governs when a § 1983 action accrues, thus triggering the beginning of the

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed
down before October 1, 1981.
limitations period. Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
Under § 1983, actions do not accrue until the plaintiff knows or has reason to know

that he has been injured. Id.
Ms. Powell filed her initial complaint on November 6, 2020. She maintains
that she had until November 7, 2020 to bring her claims based on the false

assumption that her claims did not accrue until November 7, 2018, the day that Mr.
Powell died. (Doc. 22 at 22). In support of her theory, Ms. Powell contends that
she brought this lawsuit pursuant to Alabama Code § 6-5-410, the Alabama
Wrongful Death statute. (Id.). Claims brought pursuant to § 6-5-410 must be

commenced within two years from the date of death. Ala. Code § 6-5-410(d); see
also Wood v. Wayman, 47 So. 3d 1212, 1217–18 (Ala. 2010) (stating that § 6-5-410
is a “statute of creation,” and that “the two-year period is not a statute of limitations

but a period after which liability under the statute ceases to exist”).
This argument does not save Ms. Powell’s claims. First, Ms. Powell did not
assert her claims through Alabama’s wrongful death statute, which is an independent
state law cause of action. See Ala. Code § 6-5-410. In fact, Ms. Powell did not

assert a claim for wrongful death at all. Instead, Ms. Powell’s complaint brings
federal constitutional claims pursuant to § 1983. Federal law governs when those
claims accrue. Mullinax, 817 F.2d at 716.
Although it is unclear exactly when Mr. Powell first received medical
attention, it is apparent from the face of the complaint that Mr. Powell was diagnosed

with cancer “well into [its] final stages” and began chemotherapy on September 14,
2018. (Doc. 18 at 11 ¶ 49, 50). Thus, any claim relating to inadequate medical
treatment necessarily accrued at the very latest on that date, by which point Mr.

Powell knew or should have known that he suffered an injury that forms the basis of
Ms. Powell’s complaint and he could identify who inflicted that injury.
Accordingly, Ms. Powell had until September 14, 2018, at the very latest, to bring
her claim alleging deliberate indifference to a serious medical need.

Similarly, Ms. Powell’s claims against Defendants Dunn, Culliver, Naglich,
Estes, Robinson, Williams, and Watson for failure to protect, failure to intervene,
and state-created danger relate to the medical treatment that Mr. Powell received

while at LCF. (See doc. 18 at 23–25, 32–35, 37–39 ¶¶ 101–112, 154–176, 189–204).
While it is unclear on what exact date those claims accrued, they could not have
accrued later than the date on which Mr. Powell left LCF, which was September 6,
2018. (Doc. 18 at 11 ¶ 46). Accordingly, Ms. Powell had until September 6, 2018,

at the latest, to file her claims alleging failure to protect, failure to intervene, and
state-created danger on behalf of Mr. Powell.
Because Ms. Powell’s claims are untimely, the court DISMISSES her claims

in Counts One, Three, Four, Five, Six, Eight, and Nine WITHOUT PREJUDICE.
3. State Claims
In addition to her federal law claims, Ms. Powell asserts two state law claims:

a claim for civil conspiracy against Defendants Dunn, Culliver, Naglich, Williams,
and Watson; and a claim for indemnification against the State of Alabama. (Doc.
18 at 40-41 4§| 213-19). A district court may decline to exercise supplemental
jurisdiction over state law claims if “the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
The court has dismissed all claims against Defendants Dunn, Culliver,
Naglich, Estes, Robinson, Williams, and Watson over which it has original
jurisdiction. Therefore, the court declines to exercise supplemental jurisdiction over
Ms. Powell’s state law claims. Accordingly, the court DISMISSES Counts Eleven
and Twelve WITHOUT PREJUDICE.
Hr. CONCLUSION
For the reasons given above, the court GRANTS Defendants’ motion to
dismiss Ms. Powell’s amended complaint.
DONE and ORDERED this March 1, 2022.
Lo
UNITED STATES DISTRICT JUDGE

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9990912. Public record. Not legal advice.