United States District Court, N.D. Alabama, Southern Division
THE ESTATE OF MARQUETTE F. CUMMINGS, JR. and ANGELA GAINES, Plaintiffs,
CARTER DAVENPORT, in his official and individual capacities, Defendant.
MEMORANDUM OPINION 
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
action arises from the death of Marquette F. Cummings, Jr.,
who was an inmate at St. Clair Correctional Facility. (Doc.
29 “Am. Compl.”). Plaintiffs, the Estate of
Marquette F. Cummings, Jr., by and through its Executor,
Victor Revill, (the “Estate”) and Angela Gaines,
Mr. Cummings's mother, (collectively,
“Plaintiffs”) assert various state and federal
claims against Carter Davenport, the former warden of St.
Clair Correctional Facility (“Warden Davenport”),
in his official and individual capacities. (Id.).
Currently pending before the court is Warden Davenport's
Motion to Dismiss the Amended Complaint. (Doc. 32). The
parties have briefed the motion. (Docs. 32 & 34). Upon
consideration, and as discussed below, the court finds the
Estate's § 1983 claim against Warden Davenport based
on deliberate indifference to Cummings's serious medical
needs in violation of the Eighth Amendment survives the
Warden's motion to dismiss, and this claim may proceed.
All of Plaintiffs' remaining claims are due to be
initiated this action on December 15, 2015, asserting various
federal and state claims against the following defendants:
Kim Thomas and Jefferson Dunn, Commissioners for the Alabama
Department of Corrections (“ADOC”); Warden
Davenport; the University of Alabama at Birmingham Hospital
(“UAB Hospital”); Dr. Sherry Melton, a medical
supervisor at UAB Hospital; and various unnamed defendants
associated with the ADOC or UAB Hospital. (Doc. 1). In their
Complaint, Plaintiffs asserted the following claims against
Warden Davenport in his individual and official capacities:
(1) § 1983 claims for deliberate indifference in
violation of the Eighth Amendment; (2) a § 1983 claim
for failure to train and negligent supervision based on the
failure to protect Cummings from harm; and (3) a state law
wrongful death claim. (Doc. 1).
original defendants in this action filed motions to dismiss
Plaintiffs' claims against them. (Docs. 8, 12 & 14).
For his part, Warden Davenport argued that the claims against
him were due to be dismissed under rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure because
Plaintiffs failed to state plausible claims against him and
because the claims were barred by sovereign immunity and
qualified immunity. (Doc. 8).
consideration of the defendants' motion, the court found
that all of Plaintiffs' claims were due to be dismissed,
with the exception of the Estate's § 1983 claim
against Warden Davenport in his individual capacity based on
deliberate indifference to Mr. Cummings's serious medical
needs. (Doc. 28). Accordingly, the court entered an order
granting in part and denying in part the ADOC defendants'
motion to dismiss, and dismissing the following claims
asserted against Warden Davenport: (1) all of the claims
asserted by Ms. Gaines; (2) all of the claims asserted
against the Warden in his official capacity; (3) a §
1983 claim for deliberate indifference in violation of the
Eighth Amendment based on the failure to protect Cummings
from harm; (4) a § 1983 claim for failure to train and
negligent supervision based on the failure to protect
Cummings from harm; and (5) a state law wrongful death claim.
the court entered its order dismissing most of
Plaintiffs' claims, Plaintiffs filed an Amended Complaint
on October 5, 2016, asserting claims against only Warden
Davenport. (Doc. 29). The Amended Complaint includes several
new allegations regarding ADOC policies and Warden
Davenport's knowledge of a threat to Cummings's
safety. (See id., ¶¶ 5-6, 29-30, 36, 38).
In the Amended Complaint, Plaintiffs reassert claims against
the warden that the court previously dismissed with prejudice
pursuant to Rules 12(b)(1) and 12(b)(6). (See
Docs. 28 & 29). Thus, Plaintiffs' Amended Complaint
implicitly seeks partial relief from, or reconsideration of,
the court's Memorandum Opinion and Order granting in part
and denying in part the ADOC Defendants' motion to
dismiss. Therefore, to the extent that Plaintiffs'
Amended Complaint includes new allegations and reasserts
claims against Warden Davenport that were previously
dismissed with prejudice, the court construes the Amended
Complaint as a motion to alter or amend a judgment under Rule
59(e) of the Federal Rules of Civil Procedure and treats the
new allegations as newly-discovered evidence. On that basis,
the court will reconsider the issues raised by Warden
Davenport's motion to dismiss and Plaintiffs'
opposition to the motion.
STANDARD OF REVIEW
8(a)(2) of the Federal Rules of Civil Procedure states that a
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Pleadings that contain
nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 &
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
defendant may move to dismiss a complaint for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). To meet the requirements of Rule
8(a)(2) and survive a motion to dismiss, “a complaint
must allege ‘enough facts to state a claim to relief
that is plausible on its face.'” Adinolfe v.
United Tech. Corp., 786 F.3d 1161, 1169 (11th Cir. 2014)
(quoting Twombly, 550 U.S. at 555 & 570).
“Specific facts are not necessary; the statement needs
only ‘give the defendant fair notice of the claim . . .
and the grounds upon which it rests.'” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (quoting
Twombly, 550 U.S. at 555). When deciding a motion to
dismiss, the court must assume the truth of the factual
allegations in the complaint and give the plaintiff the
benefit of all reasonable factual inferences. See, e.g.,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Hazewood v. Found. Fin. Grp., LLC, 551 F.3d 1223,
1224 (11th Cir. 2008). Legal conclusions couched as factual
allegations are not entitled to the same assumption of
veracity. Iqbal, 556 U.S. at 678.
12(b)(1) of the Federal Rules of Civil Procedure provides for
the dismissal of an action when the court finds that it does
not have subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1).
“Rule 12(b)(1) motions to dismiss for lack of subject
matter jurisdiction can be asserted on either facial or
factual grounds.” Carmichael v. Kellogg, Brown
& Root Services, Inc., 572 F.3d 1271, 1279 (11th
Cir. 2009) (citing Morrison v. Amway Corp., 323 F.3d
920, 925 n.5 (11th Cir. 2003). Facial challenges to subject
matter jurisdiction, such as the challenges presented in this
action, are based solely on the allegations in the complaint.
Id. “When considering such challenges, the
court must, as with a Rule 12(b)(6) motion, take the
complaint's allegations as true.” Id.
the decision to alter or amend a judgment pursuant to Rule
59(e) is within the sound discretion of the district court.
See Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.
2007) (citing Drago v. Jenne, 453 F.3d 1301, 1305
(11th Cir. 2006). “While, as a rule, parties are not
entitled to two bites at the apple, there are occasions in
which reconsideration should be entertained.”
Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir.
1990) (quotation and internal quotation marks omitted).
“The only grounds for granting a rule 59 motion are
newly-discovered evidence or manifest errors of law or
fact.” Arthur, 500 F.3d at 1343 (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999) (alteration in
F. Cummings, Jr. was an inmate at St. Clair Correctional
Facility in Springville, Alabama (“St. Clair”).
(Am. Compl. ¶ 3). During the weekend of January 3-5,
2014, Cummings witnessed “a physical altercation”
between Timothy Gayle and another inmate at St. Clair.
(Id. ¶ 4). “Following that altercation,
Cummings and Gayle were involved in an incident that required
that both inmates [to] be separated by St. Clair Correctional
allege that pursuant to ADOC Administrative Regulation 300
(“AR-300”) and ADOC Administrative Regulation 302
(“AR-302”), officers completed a report about the
first altercation involving Gayle and a report about the
altercation between Cummings and Gayle. (Id. ¶
5). According to Plaintiffs, both reports were given to
Warden Davenport immediately after the altercations.
(Id.). Plaintiffs also allege that after the
altercations and “administratively required reporting,
” Gayle and Cummings were not put into protective
custody, put in separate dorms, or otherwise separated from
one another. (Id. ¶ 6).
the weekend incident or altercation, Gayle stabbed Cummings
in the eye with a shank at approximately 7:40 a.m. on Monday,
January 6, 2014, causing Cummings to bleed profusely.
(Id. ¶ 7; Doc. 29-1 at 1). Other inmates helped
Cummings to the infirmary at St. Clair, and he was quickly
airlifted to UAB Hospital for treatment. (Id.).
After Angela Gaines learned her son had been stabbed and
where he was taken for treatment, she went to UAB Hospital to
be with Cummings sometime during the afternoon of January 6.
(See Id. ¶¶ 9-13).
Sherry Melton, a medical supervisor at UAB Hospital, changed
Cummings's code status to Do Not Resuscitate
(“DNR”) at about 9:17 p.m. on January 6, 2014
without authorization from Gaines or any other family member
and without notifying Gaines and Cummings's family of the
decision. (Id. ¶ 17; Doc. 1 ¶ 3(h)).
Plaintiffs allege that Dr. Melton relied upon statements from
Warden Davenport to change Cummings's code status to DNR
even though Gaines and several other family members were at
the hospital. (Am. Compl. ¶¶ 18 & 20).
Plaintiffs further allege that “Warden Davenport
authorized UAB medical personnel to stop giving Cummings
medication and to disconnect the life support machine.”
(Id. ¶ 21).
allege that contrary to Gaines's wishes, and
“[b]ased on [the] directive from Warden Davenport,
Cummings was taken off of life support . . . .”
(Id. ¶ 24). Cummings passed away at 7:05 p.m.
on January 7, 2014, just hours after UAB medical personnel
removed his life support. (Id. ¶¶ 24-25).