Early v. Gardendale, City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOHN EARLY, }

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Plaintiff, }

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v. } Case No.: 2:20-cv-1368-RDP

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CITY OF GARDENDALE, et al., }

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Defendants. }

MEMORANDUM OPINION

This case is before the court on a Motion for Summary Judgment filed by Defendant City

of Gardendale and Defendants Waldrop, Sharpe, and Grigsby. (Doc. # 23). The Motion (Doc. #

23) has been fully briefed and is ripe for review. (Docs. # 23, 24, 28, 29). After careful

consideration, the court concludes that Defendants’ Motion (Doc. # 23) is due to be granted.

I. Background1

This action stems from the alleged lack of medical care that Plaintiff received while

incarcerated at the Gardendale City Jail. Plaintiff has alleged that Defendant City of Gardendale

(“the City”) and Defendants Lisa Waldrop, Steve Sharpe, and Vicki Grigsby -- all of whom are

employed by the City as public safety dispatchers2 (collectively the “Dispatchers”) -- violated his

Eighth and Fourteenth Amendment rights by acting with deliberate indifference to his health and

safety. (Docs. # 1; # 22-3 at 3; # 22-4 at 3; # 22-5 at 3). Plaintiff has also asserted a state-law claim

1 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. All

reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. & Networks Corp.

v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary judgment purposes only.

They may not be the actual facts that could be established through live testimony at trial. See Cox v. Adm’r U.S. Steel

& Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

2 As public safety dispatchers, the Dispatchers were responsible for answering calls, contacting the fire

department or ambulance service when needed, checking the jail every half hour, and feeding inmates. (Doc. # 22-3

at 4).

of negligence against the City based on the allegedly negligent conduct of the Dispatchers. (Doc.

# 1 at 12-13).

Plaintiff John Early was arrested on or about October 1, 2019 for failure to pay traffic

citations and sentenced to 40 days at the Gardendale City Jail. (Docs. # 1 at 7; # 22-2 at 10, 18; #

22-7 at 1). On or about October 10, 2019, Plaintiff noticed that his foot was swollen, draining

yellow puss, and that his toes had turned purple. (Doc. # 1 at 7). Plaintiff also noticed that his chest

was bleeding and draining.3 (Id. at 7-8; Doc. # 22-3 at 12). When Plaintiff attempted to show

Defendant Waldrop the condition of his foot and chest, Defendant Waldrop stated that she did not

want to look for fear of upsetting her breakfast. (Id. at 9). Defendant Waldrop told Plaintiff that

his foot condition “was probably just athlete’s foot” and that the issue with his chest likely resulted

from him scratching a scab. (Id. at 8). Plaintiff himself identified the issue as athlete’s foot and

stated that his chest had started bleeding when he “squeez[ed] on it some.” (Doc. # 22-2 at 15-16).

Defendant Waldrop moved Plaintiff to a cell for medical observation4 and requested that

the fire department observe his condition.5 (Docs. # 1 at 8; # 22-3 at 12). Upon arrival, the

paramedics found Plaintiff

sitting on the side of bed at the city jail. [He] was alert and oriented and was

bleeding from his chest. [He] stated hat he had a tumor on his chest and he had been

scratching it to make it bleed. [His] wound was covered with a sterile bandage, [and

he was] left in police custody.

3 Plaintiff uses “chest” and “shoulder” interchangeably to identify the same wound. (Doc. # 22-2 at 17). For

consistency purposes, the court refers to his “chest.”

4 The Jail contains two cells that are “basically like isolation medical cells.” (Doc. # 22-3 at 8). These cells

were used to house people who were intoxicated or charged with a felony. (Id.). Occasionally, when an inmate

encountered a medical problem (particularly a communicable disease), that inmate would be moved to one of the cells.

(Id.). Staff would monitor that inmate away from the “commotion” of general population and provide some treatment,

such as ibuprofen or Tums for those experiencing withdrawal symptoms. (Id. at 9-10).

5 Each Defendant Dispatcher testified that standard Jail protocol directed staff members to contact the fire

department if an inmate requested medical help. (Doc. # 22-5 at 9; # 22-3 at 15; # 22-4 at 8). The fire department was

responsible for checking an inmate’s vitals and determining whether the inmate needed to visit the Emergency Room.

(Doc. # 22-5 at 9).

(Doc. # 22-9 at 4). The paramedics noted no other abnormalities. (Id. at 3-4). Plaintiff, on the other

hand, testified that his foot had a “massive infection” and that the paramedics cleaned his foot and

provided him with gauze. (Doc. # 22-2 at 14). Plaintiff further testified that he was denied “medical

help” even after the paramedics stated in the presence of Defendant Waldrop that he “needed

medical attention” and a hospital was “a mile down from the jail.” 6 (Id.). After the paramedics

left, Defendant Waldrop allegedly told Plaintiff that if he “were to do any more complaining or

give them any more hard time,” then she would “see that [he] got extra days in that jail . . . .” (Doc.

# 22-2 at 15).7

After the paramedics left Plaintiff demanded – but claims he was denied -- medical

treatment on two occasions.8 (Doc. # 22-2 at 17). He contends that other inmates told the “jailers”

that he needed medical help, although it is unclear what specific needs they referenced. (Id.). At

some point while Plaintiff was in the medical observation cell, two “jailers” provided Plaintiff with

ointment and Band-Aids (allegedly from their personal funds as the Jail did not provide those

items). (Doc. # 22-2 at 17-18).

Plaintiff’s forty day sentence was cut short on the evening of November 1, 2019 when the

Tarrant Police Department arrested him on an outstanding warrant. (Doc. # 22-10 at 1-3). During

6 Defendants argue that the paramedics’ alleged statement that Plaintiff needed medical treatment is

inadmissible hearsay because Plaintiff cannot recall their names to make them available at trial. (Doc. # 29 at 2).

However, it is possible that the statement is admissible for a non-truth purpose: to show the effect on the listener (that

is, Defendant Waldrop was aware of Plaintiff’s need for medical attention and unlawfully disregarded that need). See

United States v. Rivera, 780 F.3d 1084, 1092 (11th Cir. 2015) (explaining that statements “offered only to show their

effect on the listener” are not hearsay because the statements are offered not for the truth of the matter asserted but to

“provide[] a context to assess [listener]’s response.”). Thus, the paramedics’ statements qualify as Rule 56 evidence.

7 Although Defendant Waldrop denies this allegation (Doc. # 22-3 at 17), the court must construe this Rule

56 evidence in the light most favorable to Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 261, 106 S. Ct.

2505, 2516 (1986).

8 While some of the facts surrounding this allegation are unclear, the record shows that Plaintiff asked

Defendant Sharpe for help on at least one occasion, who stated that Defendant Grigsby was the correct person to ask.

(Doc. # 22-2 at 18).

the Police Department’s intake process, the Department noted “staph” in the cell next to the

question, “Is the skin in good condition and free of vermin?” (Id. at 5). The notation “No” appears

next to the 29 other health-related questions. (Id.). The following day, Plaintiff was released on a

medical bond. (Id.).

On November 4, 2019, Plaintiff presented to the emergency room at St. Vincent’s Hospital

and reported that he had “staph to left lower leg and thumb on left hand.” (Doc. # 22-6 at 6). The

physician who observed Plaintiff’s foot stated that his condition looked like athlete’s foot. (Doc.

# 22-2 at 20). Indeed, Plaintiff was diagnosed that same day with tinea pedis (also known as

athlete’s foot), along with bacterial cellulitis and poison oak. (Doc. # 22-6 at 2, 9). Plaintiff’s

discharge papers instructed him to “[k]eep the area between the toes clean and dry,” apply a topical

cream, take medication, and follow up in two days. (Doc. # 22-6 at 4). Notably, there are no records

from St. Vincent’s indicating that Plaintiff had a staph infection or was otherwise experiencing

issues related to his chest.

On November 5, 2019, Plaintiff presented to the emergency room at the University of

Alabama at Birmingham Hospital (“UAB Hospital”) with thumb pain and swelling, as well as skin

lesions on his foot, leg, and forearm. (Doc. 22-8 at 1). Wound cultures from his thumb revealed

the existence of MRSA, although there is no indication of what caused this injury other than

Plaintiff’s report that he spent time in the woods and got stuck by thorns. (Id. at 1, 4). Following

biopsies of the lesion on his chest (which the physician noted “had been present for a number of

years”), Plaintiff was diagnosed with basal cell carcinoma. (Id. at 4). Surgical oncology performed

a wide local excision and gave Plaintiff instructions on wound care. (Id.).

UAB records related to Plaintiff’s foot are minimal. Initially, Plaintiff complained of a rash

that he believed was consistent with a staph infection. (Doc. # 22-8 at 11). A physical examination

revealed that he had unroofed blisters and lesions on his second toe, which would be “covered” by

the antibiotics already prescribed for the infection of his thumb. (Id. at 9, 17). By the date of

discharge on November 11, 2019, the only note made with respect to his foot was that his third toe

had “some superficial crusting.” (Id. at 14). There are no records indicating that Plaintiff was

diagnosed with a staph infection or sepsis while at UAB.9 In fact, medical records revealed that

sepsis was expressly ruled out as a possible diagnosis. (Doc. # 22-8 at 10).

On August 22, 2020, Plaintiff filed suit in state court against the City and the Dispatchers.

(Doc. # 1 at 6-17). Defendants timely removed the action to this court. (Doc. # 1). In his complaint,

Plaintiff has asserted two claims against the City: (1) deliberate indifference to his serious medical

needs pursuant to 42 U.S.C. § 1983, in violation of his Eighth and Fourteenth Amendment rights

and (2) negligence. (Doc. # 1 at 11-13). Plaintiff has also asserted a single claim of deliberate

indifference pursuant to 42 U.S.C. § 1983 against each of the Dispatchers. (Id. at 13-16).

Defendants have moved for summary judgment on all claims asserted against them. (Doc. # 23).

II. Standard of Review

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The party asking for summary judgment always bears the initial responsibility of informing

9 Plaintiff testified that he was told that a staph infection had gotten into his bloodstream and caused sepsis –

all of which he believes originated from issues with his foot. (Docs. # 22-2 at 23; # 28 at 12). However, his statements

do not qualify as Rule 56 evidence for two reasons. First, no medical record supports these assertions. As noted above,

no physician at either UAB or St. Vincent’s diagnosed Plaintiff with sepsis or staph nor opined as to what role (if any)

issues with his foot played in his other ailments. Second, Plaintiff’s opinion that issues with his foot caused him to

develop sepsis is based on scientific, technical, or other specialized knowledge that is reserved for the opinion of those

designated as experts under Fed. R. Evid. 702. Nor is his opinion rationally based on his perception; no reasonable

juror could conclude that Plaintiff’s diagnosed case of athlete’s foot caused him to develop sepsis, particularly when

there is no medical record supporting such a leap.

the court of the basis for its motion and identifying those portions of the pleadings or filings which

it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving

party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings and

-- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file --

designate specific facts showing that there is a genuine issue for trial. Id. at 324.

The substantive law will identify which facts are material and which are irrelevant. See

Anderson, 477 U.S. at 248 (1986). All reasonable doubts about the facts and all justifiable

inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. For Bibb Cty.,

495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.

1993). A dispute is genuine, “if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted. See id. at 249.

When faced with a “properly supported motion for summary judgment, [the non-moving

party] must come forward with specific factual evidence, presenting more than mere allegations.”

Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson, teaches, under

Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the

party bearing the burden of proof at trial, she must come forward with at least some evidence to

support each element essential to her case at trial. See Anderson, 477 U.S. at 252. “[A] party

opposing a properly supported motion for summary judgment ‘may not rest upon the mere

allegations or denials of [her] pleading, but . . . must set forth specific facts showing that there is a

genuine issue for trial.’” Id. at 248 (citations omitted).

Summary judgment is mandated “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., 477 U.S. at 322. “Summary judgment may be

granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”

Sawyer v. Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson,

477 U.S. at 250-51).

“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence

and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is so one-sided that one party must

prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477 U.S. at 251-

52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999) (“The law is

clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for

summary judgment.”).

The Eleventh Circuit has interpreted Celotex to require that, as to issues on which the

nonmovant would bear the burden of proof at trial, a

moving party is not required to support its motion with affidavits or other similar

material negating the opponent’s claim in order to discharge this initial

responsibility. Instead, the moving party simply may show [ ]—that is, point[ ] out

to the district court—that there is an absence of evidence to support the non-moving

party’s case. Alternatively, the moving party may support its motion for summary

judgment with affirmative evidence demonstrating that the non-moving party will

be unable to prove its case at trial.

Fitzpatrick, 2 F.3d at 1115 (quoting U.S. v. Four Parcels of Real Property, 941 F.2d 1428, 1437

(11th Cir. 1991)). And, where the moving party has met this initial burden by showing that there

is an absence of evidence supporting the nonmoving party’s case, the nonmoving party must

respond in one of two ways. First, he or she may show that the record in fact

contains supporting evidence, sufficient to withstand a directed verdict motion,

which was “overlooked or ignored” by the moving party, who has thus failed to

meet the initial burden of showing an absence of evidence. Second, he or she may

come forward with additional evidence sufficient to withstand a directed verdict

motion at trial based on the alleged evidentiary deficiency.

Id. (internal citations omitted).

III. Analysis

Defendants primarily argue that Plaintiff’s § 1983 claims fail as a matter of law because he

cannot establish a violation of his constitutional rights. (Doc. # 23 at 1). Regardless, Defendants

argue that they are also entitled to immunity. (Id.). The court addresses each of these arguments in

turn.

A. Plaintiff’s Deliberate Indifference Claims Against the Dispatchers (42 U.S.C.

§ 1983)

Plaintiff argues that the Dispatchers violated his Eighth and Fourteenth Amendment

rights10 by acting with deliberate indifference to his foot and chest conditions – conditions that he

contends qualified as serious medical needs. (Docs. # 1 at 13-16; # 28 at 14).

The relevant constitutional provision in this case is the Eighth Amendment rather than the

Fourteenth Amendment. Eighth Amendment scrutiny applies to confinement that occurs

subsequent to and as a consequence of a person’s lawful conviction of a crime, while the

Fourteenth Amendment applies to pretrial detainees. Hamm v. DeKalb Cnty., 774 F.2d 1567, 1572

(11th Cir. 1985); Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir. 2007). Because Plaintiff

had been found guilty of failing to pay traffic citations at the time he was allegedly denied medical

care, the court applies Eighth Amendment jurisprudence. (Docs. # 22-2 at 10; # 22-7). Regardless,

the court notes that the Eleventh Circuit has stated that the standard for providing basic human

needs to those incarcerated or in detention is the same under both the Eighth and Fourteenth

Amendments. See Hamm, 774 F.2d at 1573-74.

10

Section 1983 provides that “[e]very person who, under color of any statute . . . subjects, or

causes to be subjected, any citizen of the United States . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to the party . . . .”

42 U.S.C. § 1983. The Eighth Amendment prohibits the “inflict[ion]” of “cruel and unusual

punishments.” U.S. Const. amend VIII. As particularly relevant here, the U.S. Supreme Court has

held that prison officials violate the bar on cruel and unusual punishments when they display

“deliberate indifference to serious medical needs of prisoners.” Keohane v. Fla. Dep’t of Corr.

Sec’y, 952 F.3d 1257, 1265 (11th Cir. 2020) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct.

285, 50 L.Ed.2d 251 (1976)). “Medical treatment violates the Eighth Amendment only when it is

‘so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable

to fundamental fairness.’” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (quoting

Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986)). To be actionable under § 1983, the

conduct of prison officials must run counter to evolving standards of decency or involve the

unnecessary and wanton infliction of pain. Bass v. Sullivan, 550 F.2d 229, 230 (5th Cir. 1977).

To show that a prison official acted with deliberate indifference to serious medical needs,

a plaintiff must satisfy both an objective and a subjective inquiry. Farrow v. West, 320 F.3d 1235,

1243 (11th Cir. 2003) (citing Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000)). First, with

respect to the objective component, a plaintiff must show (1) he had an objectively serious medical

need that, if left unattended, posed a substantial risk of serious harm, and (2) that the response by

the prison official to that need was poor enough to constitute “an unnecessary and wanton infliction

of pain, and not merely accidental inadequacy, negligence in diagnosis or treatment, or even

medical malpractice actionable under state law.” Taylor, 221 F.3d at 1258 (internal citations

omitted) (quoting Estelle, 429 U.S. at 105-06, 97 S.Ct. at 291-92). Second, to satisfy the subjective

prong, a plaintiff must prove that the prison officials “acted with deliberate indifference to [his

serious medical] need.” Harper v. Lawrence Cty., 592 F.3d 1227, 1234 (11th Cir. 2010) (quotation

omitted). “To establish deliberate indifference,” a plaintiff must demonstrate that the prison

officials “(1) had subjective knowledge of a risk of serious harm; (2) disregarded that risk; and (3)

acted with more than gross negligence.” Harper, 592 at 1234 (quotation omitted); Farmer v.

Brennan, 511 U.S. 825, 829, 114 S. Ct. 1970, 1974 (1994). A plaintiff bears the burden to establish

both the objective and subjective prongs. Goebert v. Lee Cnty., 510 F.3d 1312, 1326 (11th Cir.

2007).

Here, the record evidence is sufficient to show that the basal cell carcinoma identified on

Plaintiff’s chest is a serious medical need. See Stanfield v. Darbouze, No. 2:14CV907-CSC, 2017

WL 2637399, at *7 (M.D. Ala. June 19, 2017) (“Undoubtedly, skin cancer is a serious medical

need.”). A physician subsequently diagnosed Plaintiff with the condition and performed an

excision of the area. (Doc. 22-8 at 4). Although death from basal cell skin cancer is uncommon, it

is nevertheless a serious condition. However, the same cannot be said with respect to Plaintiff’s

case of athlete’s foot. Although a physician diagnosed Plaintiff with athlete’s foot, there is no

indication that his case posed a risk of serious harm to his health. Plaintiff’s treatment plan simply

directed him to apply a topical cream, keep the areas between his toes “clean and dry,” take

medications, and follow up with a clinic. (Doc. # 22-6 at 2, 8-9). Further weighing against the

“serious” nature of Plaintiff’s athlete’s foot is evidence that he was discharged from the emergency

room in one day and, when Plaintiff presented to another emergency room days later, the physician

noted only unroofed blisters and lesions on his second toe. (Id. at 9, 17). While the court does not

doubt that experiencing a “[s]welled up and oozing” foot is uncomfortable (Doc. # 22-2 at 16),

Plaintiff has not shown that his condition rises to the level of a serious medical need. See e.g.,

Thornton v. Hercule, No. 4:11-CV-401-RS-CAS, 2013 WL 3991920, at *5 (N.D. Fla. Aug. 2,

2013) (dismissing Plaintiff’s Eighth Amendment claim where evidence showed only that his

athlete’s foot was a “minor inconvenience[] and cause[d] minimal problems”); Williams-Bey v.

Carpenter, No. CIV.A. 14-0490-CG-C, 2015 WL 4602871, at *6 (S.D. Ala. July 29, 2015)

(dismissing an Eighth Amendment claim where Plaintiff’s foot condition was “hardly severe,” and

“never threatened harm to Plaintiff’s health). So, the record evidence indicates Plaintiff had one

serious medical need – a basal cell cancer on his chest.

Regardless, to be successful on his § 1983 claims, Plaintiff must also demonstrate that the

Dispatchers were “deliberately indifferent” to his serious medical needs (here, only to the

condition identified on his chest). This he has failed to do. At the time of incarceration, there had

been some drainage and bleeding coming from a scratch on his chest. (Doc. # 22-3 at 12).

Defendant Waldrop transferred Plaintiff to a cell for medical observation and contacted

paramedics, who simply covered the wound with a sterile bandage. (Doc. # 22-9 at 4). There is no

evidence in the record that the paramedics expressed concern about the presence of cancer or other

serious medical concern. (Id.). Moreover, neither the Tarrant Police Department nor even the St.

Vincent’s Emergency Room physicians expressed concern over the condition of Plaintiff’s chest.

(Docs. # 22-6; # 22-10). It was not until later that the basal cell diagnosis was made at UAB. (Doc.

22-8 at 4). Even construing Plaintiff’s allegation that the paramedics’ suggestion (in the presence

of Defendant Waldrop) that he needed further medical attention in his favor, Plaintiff has offered

insufficient evidence to show that Defendant Waldrop (and other Dispatchers) was subjectively

aware of a risk that the scratch on his chest was basal cell cancer (or, for that matter, indicative of

a staph infection or sepsis). Farmer, 511 U.S. at 829, 114 S. Ct. at 1974 (1994).

While Defendant Waldrop could have heeded the advice of the paramedics (although it is

unclear from the record on what basis the paramedics suggested further medical treatment), the

court concludes that her exercise of professional judgment was not “so grossly incompetent,

inadequate, or excessive as to shock the conscience or to be intolerable to the fundamental

fairness.” Harris, 941 F.2d at 1505. The Constitution does not require that the medical care

provided to prisoners be “perfect, the best obtainable, or even very good.” Harris, 941 F.2d at

1510 (quotation omitted). Additionally, Plaintiff has failed to present any evidence indicating that

the Dispatchers knew that the manner in which they provided treatment created a substantial risk

to his health and that with this knowledge consciously disregarded such risk. Harper, 592 at 1234;

see Farmer, 511 U.S. at 837, 114 S.Ct. at 1979 (noting that for Eighth Amendment liability to

attach, the defendant must “know[] of and disregard[] an excessive risk to inmate health or safety;

the [defendant] must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists and he must also draw the inference.”). Plaintiff has failed

to meet his burden of making the requisite showing of subjective knowledge. It follows, therefore,

that Plaintiff has failed to meet his burden showing that the course of treatment undertaken by the

Dispatchers, particularly Defendant Waldrop, violated his Eighth Amendment rights. Goebert, 510

F.3d at 1326.

B. The Dispatchers’ Immunity Defense

Even assuming, arguendo, that Plaintiff has presented evidence sufficient to establish that

the Dispatchers violated his Eighth Amendment rights (which he has not), Plaintiff’s § 1983 claims

fail as a matter of law because the Dispatchers are entitled to qualified immunity. Qualified

immunity “shields government officials from civil damages liability unless the official violated a

statutory or constitutional right that was clearly established at the time of the challenged conduct.”

Reichle v. Howards, 568 U.S. 658, 664 (2012). It “shields an officer from suit when [he or she]

makes a decision that, even if constitutionally deficient, reasonably misapprehends the law

governing the circumstances [he or she] confronted.” Brosseau v. Haugen, 543 U.S. 194, 198

(2004).

The court assesses a defendant’s entitlement to qualified immunity by engaging in a three-

step analysis. See Skop v. City of Atlanta, 485 F.3d 1130, 1136-37 (11th Cir. 2007). The initial

burden is on the official claiming qualified immunity to establish that he was acting within his

discretionary authority. Skop, 485 F.3d at 1136-37. Upon that initial showing, the burden shifts to

the plaintiff to show that the “defendant’s conduct violated a statutory or constitutional right.” Id.

(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Finally, “the plaintiff must show that the

violation was ‘clearly established.’” Id. at 1137; Snider v. Jefferson State Cmty. Coll., 344 F.3d

1325, 1328 (11th Cir. 2003) (“When case law is needed to ‘clearly establish’ the law applicable to

the pertinent circumstances, we look to decisions of the U.S. Supreme Court, the United States

Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state.”) (citing

Marsh v. Butler County, Ala., 268 F.3d 1014, 1032-33 n.10 (11th Cir. 2001) (en banc)).

Here, the Dispatchers have met their initial burden by offering evidence that they acted

within their discretionary authority as public safety dispatchers at all times when they interacted

with Plaintiff. Plaintiff, however, has not presented any argument with respect to the Dispatcher’s

assertion of qualified immunity and, thus, has failed to meet his burden showing that the

Dispatchers’ conduct violated a “clearly established” statutory or constitutional right. Skop, 485

F.3d at 1137. Nor does the evidence suggest that he could have met this burden; the court finds no

precedent clearly establishing that jail officials violate the Eighth Amendment rights of an inmate

who presents with what appears to be a case of athlete’s foot and a chest wound by providing what

medical supplies they had available and then contacting paramedics. Accordingly, the Dispatchers

are entitled to qualified immunity from Plaintiff’s § 1983 claims.

C. Plaintiff’s Claims Against the City

Plaintiff alleges that the City violated his Eighth Amendment rights by operating under a

policy, practice, and/or custom of isolating inmates with medical issues and by failing to staff the

Jail with medical professionals. (Doc. # 1 at 11-12). Plaintiff also alleges that the City is liable for

negligence based on the negligence of the Dispatchers. (Id. at 12-13). The court addresses each

claim in turn.

i. Deliberate Indifference Claim Against the City (42 U.S.C. § 1983)

Even if Plaintiff has shown that his Eighth Amendment rights were violated (which, again,

he has not), in order to prevail on his § 1983 claim against the City, he must show that his rights

were violated due to an unconstitutional policy or custom. Plaintiff has failed to make any such

showing.

“The Supreme Court has placed strict limitations on municipal liability under section

1983.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). To hold a municipality liable,

Plaintiff “must show: (1) that his constitutional rights were violated; (2) that the municipality had

a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that

the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.

2004) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). “To show an unconstitutional

policy or custom, [P]laintiff must identify the policy or custom, connect the policy or custom with

the government entity itself, and show that the particular injury was incurred because of the

execution of that policy.” Id. (citing Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984)

(en banc)).

“Proof of a single incident of unconstitutional activity is not sufficient to impose liability”

against a municipality. City of Okla. City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436

(1985) (plurality opinion). “It is ‘generally necessary to show a persistent and wide-spread

practice.’” McDowell, 392 F.3d at 1290 (quoting Wayne v. Jarvis, 197 F.3d 1098 (11th Cir. 1999)).

“A single incident would not be so pervasive as to be a custom,” Craig v. Floyd Cnty., Ga., 643

F.3d 1306, 1310 (11th Cir. 2011) (internal citation omitted), because a custom must be such “a

longstanding and widespread practice [that it] is deemed authorized by the policymaking officials

because they must have known about it but failed to stop it.” Brown v. City of Fort Lauderdale,

923 F.2d 1474, 1481 (11th Cir.1991).

Plaintiff points to two allegedly unconstitutional policies and/or customs: (1) the City’s

custom of not having medical staff at the jail, and (2) the City’s policy of placing inmates with

medical needs in what he characterizes as “solitary confinement.” (Doc. # 1 at 11-12; # 28 at 17-

20). However, Plaintiff’s argument relies entirely on his own experience, which is at most “[p]roof

of a single incident of unconstitutional activity,” and insufficient to impose liability against the

City. See City of Okla. City, 471 U.S. at 823-24, 105 S.Ct. at 2436. See, e.g., McDowell, 392 F.3d

at 1290 (“Simply put, this isolated incident [of delaying medical treatment due to understaffing],

however unfortunate, does not demonstrate evidence of the County’s “persistent” or “widespread”

policy . . .”). Noticeably absent from Plaintiff’s argument is any evidence of “a series of

constitutional violations” that would allow the court (or a reasonable juror) to infer deliberate

indifference by the City to the medical needs of inmates. Craig, 643 F.3d at 1312.

Moreover, the evidence is insufficient to show that the alleged policies and/or customs

constitute a “deliberate indifference to serious medical needs of prisoners.” Keohane, 952 F.3d at

1265; McDowell, 392 F.3d at 1289. Plaintiff has alleged that the City’s “policy of placing inmates

with medical needs in solitary confinement without medical attention or ‘observation’ is by

definition, deliberate indifference . . .” (Doc. # 1 at 12). However, the Rule 56 evidence does not

support Plaintiff’s implied contention that “solitary confinement” and receipt of “treatment” were

mutually exclusive in this case. Not only did Plaintiff actually receive treatment (in the form of

medical supplies such as Band-Aids), but he was also seen and treated by paramedics. Protocol

that allows jail staff to observe a patient with medical needs away from the “commotion” of general

population and requires staff to contact paramedics -- even if staff doubt the credibility of the

medical needs -- indicates the opposite of deliberate indifference to an inmate’s medical needs.

Accordingly, Plaintiff’s § 1983 claim against the City fails as a matter of law.

ii. Negligence Claim

Plaintiff has also asserted a state-law negligence claim against the City based the alleged

negligence of Defendant Dispatchers.11 (Doc. # 1 at 12-13). Specifically, Plaintiff has alleged that

the Dispatchers negligently breached their duty to “provide Plaintiff with medical care for his

serious medical needs.” (Doc. # 1 at 13). Defendant argues that it is entitled to immunity based on

the state-agent immunity that protects the Dispatchers. (Doc. # 24 at 18).

Under Alabama law, municipal liability is limited “to injuries ‘suffered through the neglect,

carelessness, or unskillfulness of some agent.’” Walker v. City of Huntsville, 62 So. 3d 474, 501

(Ala. 2010) (quoting Ala. Code § 11-47-190 (1975)). “Municipal liability under Section 11-47-

190 is based on the doctrine of respondeat superior.” Ott v. City of Mobile, 169 F. Supp. 2d 1301,

1314 (S.D. Ala. 2001). “Thus, for the [municipality] to be liable under that doctrine, the employee

must first be liable for a tort.” Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1057 (S.D. Ala.

11 Oddly, while Plaintiff has not asserted a separate count of negligence against Defendant Dispatchers,

Plaintiff appears to argue that summary judgment is not proper as to his state law claim against the Dispatchers. (Doc.

# 28 at 20). But, there is a substantial question about whether Plaintiff can now argue against the dismissal of a claim

that was never asserted.

2007) (quotation omitted). If the employee is not liable for any tort, then the municipality is

absolved. Id. See, e.g., Ex parte Dixon, 55 So. 3d 1171, 1179 (Ala. 2010) (holding that defendant-

city was immune where a municipal peace officer whom it employed was immune) (internal

citations omitted); Shaw v. City of Selma, 2017 WL 1025677, at *19 (S.D. Ala. Mar. 15, 2017)

(holding that where a police officer was entitled to peace-officer immunity, the city defendant was

“likewise immune”).

Defendants argue that state-agency immunity shields the Dispatchers against negligence-

based claims because they are protected by the second Cranman immunity category, which

broadly protects a State agent when the agent is “exercising . . . judgment in the administration of

a department or agency.” (Doc. # 24 at 19). See Ex parte Cranman, 792 So. 2d 392, 405 (Ala.

2000). Plaintiff does not respond to Defendant’s argument but, instead, argues that the Dispatchers

are not entitled to immunity under Ala. Code § 6-5-338, which shields municipal jailers without

the authority of a police officer from liability. Both of Plaintiff’s arguments miss the analytical

mark.

The Dispatchers are considered “peace officers” under Alabama law. See Swan v. City of

Hueytown, 920 So. 2d 1075, 1079-80 (Ala. 2005) (citing Ala. Code § 6-5-338) (assuming, for

purposes of appeal, “that the police dispatcher in this case is a “peace officer” where Plaintiff

presented no evidence to the contrary); Howard v. City of Atmore, 887 So. 2d 201, 203 (Ala. 2003)

(finding that a law-enforcement officer who was serving as a jailer/dispatcher, even though the

officer was guarding the city jail like a regular police officer, was a “peace officer”). By enacting

§ 6-5-338, the Alabama Legislature intended to afford municipal peace officers the immunity

enjoyed by their state counterparts. Ex parte Dixon, 55 So. 3d at 1176; Sheth v. Webster, 145 F.3d

1231, 1237 (11th Cir. 1998). By its very terms, the statute extends state-agent immunity to peace

officers performing discretionary functions within the line and scope of their duties. Ex parte

Dixon, 55 So. 3d at 1176; Moore v. Crocker, 852 So. 2d 89, 90 (Ala. 2002).

Alabama Code § 6-5-338 provides that:

[e]very peace officer . . . shall at all times be deemed to be [an] officer [] of this

state, and as such shall have immunity from tort liability arising out of his or her

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

his or her law enforcement duties.

Discretionary functions have been deemed to be “those acts as to which there is no hard

and fast rule as to the course of conduct that one must or must not take, and those acts requiring

exercise in judgment and choice and involving what is just and proper under the circumstances.”

Moore v. Adams, 754 So. 2d 630, 632 (Ala. 1999) (citing Wright v. Wynn, 682 So. 2d 1, 2 (Ala.

1996), and L.S.B. v. Howard, 659 So. 2d 43 (Ala. 1995)).

The test set out in Ex parte Cranman12 defines Alabama’s doctrine of state-agent

immunity. The same test in Cranman for deciding state-agent immunity questions “governs

whether law enforcement officers are entitled to statutory, discretionary-function immunity under

§ 6-5-338(a).” Brown v. City of Huntsville, Ala., 608 F.3d 724, 741 (11th Cir. 2010). Under

Cranman,

[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 ….

(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 serving as peace officers under circumstances entitling such

officers to immunity pursuant to § 6-5-338(a).

12 Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), is a plurality opinion which was later adopted by a majority

of the Supreme Court of Alabama in Ex parte Butts. 775 So. 2d 173 (Ala. 2000). See also Fleming v. Dowdell, 434 F.

Supp. 2d 1138, 1162 (M.D. Ala. 2005) aff’d, 182 F. App’x 946 (11th Cir. 2006). Despite its plurality nature, due to

its later adoption by the Alabama Supreme Court, see Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006), courts

have analyzed claims like this under Cranman. See Ex parte City of Warrior, No. 1200759, 2022 WL 2286244, at *5,

8 (Ala. June 24, 2022) (finding that defendants were entitled to peace officer immunity under Cranman); Brown., 608

F.3d at 741 (applying the Cranman analysis).

Hollis, 950 So. 2d at 309 (modifying category (4) of Ex parte Cranman) (emphasis added).

Plaintiff's allegation that the Dispatchers negligently failed to “provide medical care for

his serious medical needs” (Doc. # 1 at 13) is based on actions (or inactions) that occurred while

they were acting in their discretionary functions as dispatchers. (Doc. # 22-3 at 4) (discussing the

Dispatchers’ job responsibilities). While peace officers are not immune from liability when the

“conduct is so egregious so as to amount to willful or malicious conduct or conduct engaged in

bad faith,” see Hawkins v. City of Greenville, 101 F. Supp. 2d 1356, 1362 (M.D. Ala. 2000), there

is no evidence that such conduct occurred here. At best, Plaintiff's claim sounds in negligence,

just as he himself has characterized it. (Doc. # 1 at 13). Because the Dispatchers are entitled to

state-agent immunity from state law negligence claims, the City is likewise immune.

IV. Conclusion

For the reasons stated above, Defendants’ Motion for Summary Judgment (Doc. # 23) is

due to be granted.

A separate order in accordance with this Memorandum Opinion will be entered.

DONE and ORDERED this July 13, 2022.

UNITED STATES DISTRICT JUDGE

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