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Ex parte Terry

Supreme Court of Alabama

May 5, 2017

Ex parte Yolanda Terry
v.
Cherri Forrester et al. In re: Homer Lee Washington, as personal representative of the Estate of Mildred P. Collins

         Macon Circuit Court, CV-12-900074

          PETITION FOR WRIT OF MANDAMUS

          BOLIN, JUSTICE.

         Yolanda Terry, a social worker employed by the Macon County Department of Human Resources ("DHR"), petitions this Court for a writ of mandamus directing the Macon Circuit Court to vacate its order denying her motion for a summary judgment based on State-agent immunity and to enter a summary judgment in her favor based on that defense. We grant the petition.

         Facts

         Mildred P. Collins, who was 85 years old at the time of her death on October 9, 2011, lived with her daughter Cherri Forrester, who was her legal guardian; Collins had suffered from Alzheimer's disease since approximately 2005.[1] On September 30, 2011, Ronald Person, Collins's grandson, contacted DHR and reported that Forrester had been physically abusing Collins. On Thursday, October 6, 2011, DHR assigned the case to Terry. At approximately 10:00 a.m. on that same day, Terry attempted to make an unannounced investigative visit to Forrester's home. According to Terry's case-file memo, Forrester came to the door in her pajamas; she seemed agitated by Terry's visit; and she requested that Terry return the following day, explaining that neither she nor Collins was dressed and that they had not eaten breakfast. The case-file memo further indicates that Terry "did not feel threatened or influenced by Ms. Forrester's demeanor to come back the next day." Following the attempted unannounced visit, Terry returned to her office, at which time she contacted Person concerning the allegations of abuse. Terry indicated in her case-file memo the following concerning her conversation with Person:

"On 10/06/2011, [Terry] returned to the office and made a phone call to Mr. Person being that he was the reporter. Mr. Person began explaining the history behind the allegations in his report to the agency. Mr. Person revealed to [Terry] that he had some pictures of his grandmother with bruises to her face. When asked, Mr. Person could not recall the specific time and day that the pictures were taken. Based on the conversation, it seemed that the pictures had been taken 2 weeks prior, as Mr. Person referenced the time frame when he, his daughter, and mother had just moved out of the home with Ms. Forrester and his grandmother in Montgomery at the request of Ms. Forrester. Mr. Person agreed to email some pictures to [Terry]. After several attempts, Mr. Person was not successful in his attempt to send the pictures of his grandmother with bruises to her face due [to] the formatting in his cell phone. Mr. Person stated that he was driving and that the pictures were in his cell phone. He stated that he would send them that night when he was able to send them from a computer instead of his cell phone. [Terry] was unable to view the pictures on 10/06/2011 as [Terry] had left for day. During the conversation, [Terry] also received information regarding [Collins] being tied with pantyhose and threatened with a gun. Mr. Person also reported that he hid a tape recorder at the home one night. Mr. Person stated that the next day when he retrieved the tape recorder and played it back he could hear the sounds of someone being hit. [Terry] did not hear the tape recording."

         Person testified in his deposition that he also had informed Terry that Forrester had mental-health issues and suggested that she take law enforcement with her on her next visit to Forrester's home.

         On Friday, October 7, 2011, Terry returned to Forrester's home for an investigative visit, which, according to Terry, lasted approximately one hour; Terry was accompanied by Catherine Stakely, a DHR social worker. The materials before us indicate the following concerning the October 7, 2011, visit: When Terry and Stakely arrived at Forrester's home, Collins was neatly dressed and well groomed; Collins appeared to show no signs of physical abuse but had a mark on her forearm that appeared to be a birthmark or some type of "skin-on-skin" contact mark; Terry did not interview Collins alone because Collins was not oriented to person, place, or time; Stakely discussed with Forrester receiving home-health services for Collins to provide Forrester some relief as a caregiver; Forrester denied the allegations of abuse; Forrester expressed her frustration with family members because they were always telephoning DHR; Terry observed no aggression on Forrester's part toward Collins during the visit; Forrester indicated that she had been in the military and that she was receiving services through the Department of Veterans Affairs; and Forrester signed a "Department of Human Resources HIPPA Privacy Authorization" permitting DHR to contact the Department of Veterans Affairs. Following the October 7, 2011, investigative visit, Terry met with her supervisor, TaRhonda Wiggins, to discuss the visit. As a result of her meeting with Wiggins, Terry agreed that, when she returned to work the following week, she would continue her investigation by conducting a follow-up visit with Forrester and Collins, conducting additional interviews with collaterals who reportedly had witnessed Forrester's maltreatment of Collins, and contacting the Department of Veterans Affairs concerning Forrester. Terry testified in her deposition that, based on her observations of both Forrester and Collins on October 7, 2011, she determined that Collins was not in imminent danger, and there was no indication that legal intervention was needed at that time to have Collins immediately removed from Forrester's home. Collins died two days later on Sunday, October 9, 2011. The evidence before us is conflicting concerning the cause of Collins's death; however, the death certificate indicates "blunt force abdominal injuries with hematoma."

         On June 22, 2012, Homer Lee Washington, the personal representative of Collins's estate, sued Terry, in her individual capacity, among others, seeking monetary damages. The gist of Washington's complaint is that Terry violated DHR policy and procedures by failing to properly investigate the report of the alleged abuse of Collins by Forrester and, more specifically, by allowing Collins to remain in Forrester's custody.

         On June 24, 2016, following extensive discovery, Terry moved for a summary judgment, asserting State-agent immunity as a defense. Washington filed an opposition to the summary-judgment motion on July 8, 2016. Following a hearing, the circuit court, on September 29, 2016, entered an order denying Terry's summary-judgment motion. This petition followed.

         Standard of Review

         A writ of mandamus is an extraordinary remedy available only when the petitioner can demonstrate: "'(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.'" Ex parte Nall, 879 So.2d 541, 543 (Ala. 2003) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001)).

"'While the general rule is that the denial of a motion for summary judgment is not reviewable, the exception is that the denial of a motion grounded on a claim of immunity is reviewable by petition for writ of mandamus. Ex parte Purvis, 689 So.2d 794 (Ala. 1996)....
"'Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala. 1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala. 1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala. 1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala. 1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala. 1998).
"'An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala. 1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala. 1992), Rowe v. Isbell, 599 So.2d 35 (Ala. 1992).'"

Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala. 2000)).

         Discussion

         Although of relatively recent origin as precedent, this Court has had occasion in numerous matters to apply the test restated in Ex parte Cranman, 792 So.2d 392 (Ala. 2000), for determining when a State agent sued in his or her individual capacity is entitled to State-agent immunity:

"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;
"(c) negotiating contracts;
"(d) hiring, firing, transferring, assigning, or supervising personnel; or
"(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 ...

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