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McCall v. Houston County

United States District Court, M.D. Alabama, Southern Division

July 3, 2014

TRACEY MCCALL, as administratrix of the estate of Jonathan McCall, Plaintiff,
HOUSTON COUNTY, et al., Defendants.


MYRON H. THOMPSON, District Judge.

As administratrix of the estate of decedent Jonathan McCall, plaintiff names the following remaining defendants in her wrongful-death lawsuit: Houston County, Alabama; Houston County Jail Administrator Keith Reed; Corrections Deputy James West; and Licensed Practical Nurse Ashley Kennedy. Plaintiff administratrix asserts that the defendants' conduct caused the death of her brother in violation of the Fourteenth Amendment (as enforced through 42 U.S.C. § 1983) and the State of Alabama's wrongful-death statute, 1975 Ala. Code § 6-5-410. She also alleges violations of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), and 1367 (supplemental jurisdiction).

This cause is before the court on cross-motions for summary judgment. For the reasons that follow, plaintiff administratrix's motion will be denied and the defendants' motion will be granted in part and denied in part.


"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).


This case arises from the death of Jonathan McCall, an inmate at the Houston County Jail, on July 13, 2009. The medical cause of death was cecal volvulus, a twisting of part of the large intestine that can cause obstruction, pain, and, if untreated, ultimately death. See Evans Rpt. (Doc. No. 87-1) at 3-4. Except where noted, the facts in this case are undisputed.

A. Events Preceding July 13

McCall suffered from serious mental illness for years prior to his death. At various times he had been diagnosed with schizophrenia, bipolar disorder, and schizoaffective disorder. See Silberberg Rpt. (Doc. No. 87-1) at 55. After being discharged from the Army because of his mental illness, he cycled between his mother's house, mental hospitals, treatment centers, and the Houston County Jail.

Upon a petition from his sister (plaintiff administratrix in this case), McCall was involuntarily committed in March of 2009. He went to live at a facility operated by SpectraCare, an organization that provides mental-health treatment. On April 28, he called 911 and threatened to harm himself or others. He was arrested for terrorist threats, and transported to the Houston County Jail.

When he arrived at the jail, McCall was screened for medical issues. He reported suicide attempts or ideation, that he was currently taking medication, and that he had recently been hospitalized or treated by a doctor. Despite a jail policy requiring a referral to jail medical staff as soon as possible based on his positive response to the suicide question, McCall was not assessed by medical staff or a psychiatrist on this basis. Indeed, the jail had no psychiatrist at all during McCall's incarceration at the jail in 2009, the former jail psychiatrist having recently quit.

SpectraCare personnel continued to meet regularly with McCall while he was at the jail. A case manager met with him frequently during May and June, and on July 9. A SpectraCare physician wrote McCall additional prescriptions on May 27, apparently without examining McCall. Jail personnel were aware of SpectraCare's continuing contact with McCall. A judge also ordered a psychological evaluation to determine whether McCall was fit to be released. The evaluation was scheduled for July 14, the day after he died.

After his death, staff at the jail reported that McCall often had exhibited strange behaviors. Among those reported were rocking back and forth, pacing, arguing with himself, spending time naked in his cell, urinating on himself, masturbating in his cell, putting toilet paper in his mouth, and licking a glass window. On June 15, Physician's Assistant Jason Smoak, the director of the Houston County Jail's clinic, assessed McCall because of his behavior. Smoak noted no medical issues.

On June 28, officers noticed that McCall was acting more strangely than usual. He was unresponsive and lying on the floor, rocking back and forth, and moaning. He was also lightly hitting his head against the floor. Officers called the medical unit to ask for someone to come check McCall, but no medical personnel came.

Later that day, Nurse Kennedy came to the N-Pod, where McCall was housed, to drop off medications for the inmates; she did not examine McCall. At that time, corrections officers administered medications to inmates in the N-Pod, while nurses administered medications to inmates in the rest of the jail. This arrangement was a time-saving measure. The jail has since revised its policy to require nurses to administer medications in the N-Pod as well.

One of the corrections officers, Kelly Landreau, attempted to give the pills to McCall, but he was unresponsive. Landreau then found Kennedy at another pod and asked her to check on McCall. Kennedy refused, saying that McCall was crazy and "I can't fix crazy." kennedy Dep. (Doc. No. 90-30) at 127.[1]

Sometime later that evening, Kennedy overheard Landreau and another officer discussing the fact that no medical personnel ever checked on McCall. Kennedy reiterated that there was nothing she could do for McCall. She then spoke to Landreau's supervising sergeant about the matter. The sergeant called Landreau and said that Kennedy had spoken to her about the overheard conversation and that McCall was crazy and "insanity never killed anyone." Landreau Dep. (Doc. No. 90-32) at 47. There is no record that jail medical personnel ever examined McCall from that day until the day he died, nearly two weeks later.

On July 7, the jail pharmacy ran out of Risperidone, an antipsychotic medication that McCall was prescribed daily. McCall complained about not receiving his medication, and officers recorded various problems of the following days: he was not coming out of his cell, complained of inability to sleep, and stated that he believed the Nazis were after him and something was being added to his water. McCall did not receive any Risperidone for seven days, from July 7 until his death. According to plaintiff administratrix's medical expert, this is a very long time for an individual with McCall's mental illness to go without antipsychotic medication. See Silberberg Rpt. (Doc. No. 87-1) at 60. The actual amount of time McCall went without his medication may have been longer, as the record indicates that the medical unit did not keep reliable records of when prisoners took their pills and when they did not.

According to Nurse Kennedy, sometime around July 9 she saw McCall in a visitation room. He smiled and waived at her, and she waived back. She did not observe any signs of physical distress or any indication he needed medical care. Kennedy Aff. (Doc. No. 90-22) at ¶ 35.[2]

On July 11, Physician's Assistant Smoak ordered that another drug, Trazadone, be substituted for the Risperidone. Smoak had no legal authority to make this substitution. See Smoak Dep. (Doc. No. 90-36) at 117. Furthermore, Trazadone is not a proper substitute for Risperidone; rather, it can exacerbate psychosis or instigate a manic phase for a bi-polar patient. See Silberberg Rpt. (Doc. No. 87-1) at 59. It can also exacerbate constipation, and may have contributed to McCall's cecal volvulus. See Smoak Dep. (Doc. No. 90-36) at 49, 115.

The same day, two days before his death, McCall apparently asked to see a nurse, and an officer relayed the request to the medical unit. Bozswana Int. (Doc. No. 90-28) at 174.[3] There is no record that anyone from the medical unit came to see McCall.

B. Events of July 13, 2009

On the day that McCall died, Officer West and Officer Ronnie Dye worked the first shift, from 7:00 a.m. to 3:00 p.m., covering the N-Pod. West encountered McCall first that day, between 7:00 a.m. and 7:15 a.m., while counting prisoners and checking that all cell doors were locked. He saw McCall naked on the floor of his cell, face down, in a liquid that West believed might have been urine. The door to McCall's cell was closed, and so West could not hear any sounds McCall may have been making. Visually, he concluded that McCall did not appear to be in pain and was a healthy color. West moved on and completed his prisoner count. He informed Officer Dye of the situation. There was no record from the previous shift concerning behavior by McCall.

Officers West and Dye next encountered McCall together between 7:45 a.m. and 9:00 a.m., while passing out the prisoners' medications.[4] The officers entered the cell this time. McCall was still on the floor, he was naked and sprawled out on his stomach, and Dye was able to determine by smell that the liquid he was lying in was urine. McCall was shivering and moaning. Officer Dye offered McCall his medication, but McCall was unresponsive. The officers agreed that the medical unit needed to examine McCall. West Aff. (Doc. No. 90-17) at 9.[5]

Dye contacted the sergeant supervising their shift at this point and reported that McCall was unresponsive and lying in his urine. The sergeant responded that McCall would be given a shower later in the day. West was aware of Dye's report to the sergeant and the sergeant's response.[6]

According to Dye, he also called the medical unit around this time and spoke to Nurse Kennedy. Dye Aff. (Doc. No. 86-2) at 2. He states that he told her that McCall was lying in his urine, unresponsive, and moaning. He also states he told her someone from the medical unit needed to come down to examine McCall.[7] Kennedy states that she spoke to Dye about McCall only once that day and that their conversation was non-substantive. Kennedy Aff. (Doc. No. 22) at 10; Kennedy Int. (Doc. No. 90-28) at 115.[8]

Officer West visually checked on McCall periodically during the day and saw him in generally the same position. Officer Dye again entered McCall's cell around noon. Dye was passing out the lunch trays in the N-Pod, and West was not present. At this point, McCall's feet were on the ground and he was leaning much of his weight onto the metal bunk. Dye asked if McCall wanted lunch, and McCall again groaned incoherently. Dye left the food tray and later returned to find McCall had not eaten anything. As West was preparing to take his break, Dye told him that he intended to call Physician's Assistant Smoak because the situation was not good and someone from the medical unit needed to see McCall.

Dye called the medical unit and spoke to Nurse Kennedy.[9] He asked to speak with Smoak. Dye told Smoak that McCall was naked, had been lying in his urine, and now was leaning across his bunk. Dye expressed concern because McCall was on psychiatric medication. Smoak asked Kennedy to confirm that McCall had been taking his medications and was scheduled to meet with a psychiatrist the following day, which she did. According to Smoak, nothing Dye told him indicated that McCall was having a medical, rather than psychiatric, problem.

Although the supervising sergeant initially had told Dye and West that McCall would be given a shower later that day, the sergeant later determined that the jail was too busy that day and McCall would instead be showered and his cell cleaned the following day. The officers noted in a log book that McCall was lying naked in his cell and would be showered on the following day.

Other officers took over for the second shift at 3:00 p.m. Dye informed them of McCall's behavior, that he had alerted the medical unit, and that McCall would be cleaned the following day. At 4:36, one of the second-shift officers contacted the medical unit and entered McCall's cell because some of the other inmates had said he did not look right. McCall was unresponsive and not breathing. Nurse Kennedy arrived, entered the cell, checked for a pulse, and started CPR. This was the first medical attention McCall received that day. Paramedics were called and took McCall to the hospital. Efforts to revive him ceased later that evening.

Cecal volvulus, the intestinal twisting from which McCall died, is an extremely painful condition. It takes hours or days to develop, and most cases are treated because that extended time period is so painful. Thus, death due to this condition is very uncommon among healthy young people. See Evans Report (Doc. No. 87-1) at 90. In the opinion of plaintiff administratrix's medical expert, had McCall been sent to the hospital at the time of the previous call or calls to the medical unit that day, he would have been appropriately treated and most likely would have made a full recovery. Id.


Plaintiff administratrix asserts the following claims: (1) a claim under the Fourteenth Amendment (as enforced through 42 U.S.C. § 1983) against Officer West, Nurse Kennedy, Administrator Reed, and Houston County; (2) claims under the Americans with Disabilities Act and § 504 of the Rehabilitation Act against Houston County; and (3) a claim under Alabama's wrongful-death statute against West, Kennedy, and Reed.

Plaintiff administratrix seeks partial summary judgment as to the liability of West and Kennedy under the Fourteenth Amendment. She does not seek summary judgment against the other defendants or as to the other counts. The defendants seek summary judgment on all claims. They argue that (1) none of the defendants violated McCall's Fourteenth Amendment rights, and in any event the individual defendants are entitled to qualified immunity; (2) there is no basis for relief under the ADA or Rehabilitation Act; and (3) the individual defendants are entitled to immunity from the state-law claim under 1975 Ala. Code § 14-6-1 and Alabama state-agent immunity.

A. Fourteenth Amendment

The Eighth Amendment prohibits "cruel and unusual punishments, " U.S. Const. Amend. VIII, including deliberate indifference to the medical needs of inmates. Estelle v. Gamble , 429 U.S. 97, 104 (1976). While the Eighth Amendment does not technically apply prior to conviction, the Fourteenth Amendment applies an "identical" deliberate-indifference standard for the treatment of pretrial detainees such as McCall. Goebert v. Lee Cnty. , 510 F.3d 1312, 1326 (11th Cir. 2007). To establish deliberate indifference, a plaintiff must show (1) "that [he] had a serious medical need"; (2) "that the prison official acted with deliberate indifference to [his] serious medical need"; and (3) that there is causation. Id . The first prong is objective, in the sense that it looks to the inmate's actual medical condition; the second is subjective, in the sense that it looks to the official's state of mind.

There appears to be no dispute that McCall has established the first, objective prong. "A medical need that is serious enough to satisfy the objective component is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Id . (internal quotations omitted). "In the alternative, a serious medical need is determined by whether a delay in treating the need worsens the condition." Mann v. Taser ...

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