United States District Court, N.D. Alabama, Jasper Division
MEMORANDUM OPINION AND ORDER 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
March 10, 2017, Defendants Walker County, Alabama; Officer
Nicholas Harbin; and Sheriff James E. Underwood removed this
action from the Circuit Court of Walker County. (Doc. 1).
Shortly thereafter, the defendants moved to dismiss some of
Plaintiff Terry Benton's claims. (Doc. 4). Benton has
submitted a response in which he consents to the dismissal of
several claims. (Doc. 14). Accordingly, for the reasons and
to the extent described below, the defendant's partial
motion to dismiss, (doc. 4), is GRANTED.
action is based on allegations that Benton was attacked and
beaten by five inmates while incarcerated in the Walker
County Jail. (Doc. 3-3). Benton's amended complaint
contains seven causes of action. (See doc. 3-3).
Defendants move to dismiss the following claims and requests:
(1) Benton's request for declaratory relief; (2)
Benton's § 1983 claims against Officer Harbin and
Sheriff Underwood in their official capacities; (3)
Benton's eighth cause of action against Sheriff Underwood
for state law negligent hiring, training and supervision; and
Benton's second cause of action for failure to protect
against Sheriff Underwood. (Doc. 4).
Request for Declaratory Relief
1 and 24 of the amended complaint, Benton makes a request for
declaratory relief. (Doc. 3-3 at 1, 24). Specifically, Benton
requests the court make a finding “declaring the acts
of the defendants violates the plaintiff's constitutional
rights, directing the defendants to draft and implement
constitutional policies and training regarding provision of
medical care and treatment to inmates; and enjoining the
defendants from committing or participating in such acts in
the future.” (Id.). In response to the
defendant's motion to dismiss Benton's request for
declaratory relief, Benton consents to dismissal of his
request for “prospective injunctive and declaratory
relief[, ]” explaining “this issue is moot”
as he is no longer incarcerated at the Walker County Jail.
(Doc. 14 at 2).
Section 1983 Claims Against Officer Harbin and Sheriff
Underwood in Their Official Capacities
seek dismissal of Benton's claims under 42 U.S.C. §
1983 against Officer Harbin and Sheriff Underwood in their
official capacities (as opposed to individual capacities)
because state officials sued in their official capacities do
not meet the definition of “person” that can be
made subject to liability under § 1983. (Doc. 4 at 4)
(citing Will v. Mich. Dept. of State
Police, 491 U.S. 58, 71 (1989)). Recognizing this,
Benton consents to dismissal of his § 1983 claims
against Officer Harbin and Sheriff Underwood in their
official capacities. (Doc. 14 at 2).
Eighth Cause of Action - Negligent Hiring, Training, and
Supervision Against Sheriff Underwood
eighth cause of action asserts a state tort claim against
Sheriff Underwood for failing to adequately hire, train, and
supervise the daily activities of the Walker County Jail.
(Doc. 3-3). Plaintiff consents to the dismissal of this claim
on the ground Sheriff Underwood is entitled to State Immunity
under Article I, § 14 of the Alabama Constitution. (Doc.
14 at 3).
Failure to Protect Claim Against Sheriff Underwood
second cause of action, failure to protect, and his fourth
cause of action, deliberate indifference - failure to
protect, are both asserted against Sheriff Underwood. (Doc.
3-3). Defendants seek to dismiss the second cause of action,
arguing it is duplicative. (Doc. 4 at 4-5). Benton consents
to dismissal of the fourth cause of action (as opposed to the
second cause of action), stating that the fourth cause of
action appears to contain a typographical error. (Doc. 14 at