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Hardrick v. City of Bridgeport

United States District Court, N.D. Alabama, Northeastern Division

May 25, 2018

ROVENA HARDRICK, as Administratrix of the estate of Bert Eugene Winston, Jr., deceased, Plaintiff,
v.
CITY OF BRIDGEPORT, ALABAMA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

         This case grew from the death of Bert Eugene Winston, Jr., a 48-year-old, intellectually-challenged, African-American man who could not swim, and who drowned in the municipal swimming pool of the City of Bridgeport, Alabama.[1] The action was filed by Winston's sister, Rovena Hardrick, who sues in a representative capacity, as Administratrix of the estate of her deceased brother. This opinion addresses the various defendants' motions for summary judgment.[2] Other pending motions are not addressed.[3]

         I. PROCEDURAL HISTORY

         Plaintiff commenced this action in the Circuit Court of Jackson County, Alabama. Her complaint contained a single count, seeking damages from the City of Bridgeport for the death of her brother under Alabama Code § 6-5-410 (1975), the State's wrongful death statute.[4] The state judge denied the City's motion to dismiss;[5]and, following more than a year of discovery, plaintiff filed a “First Amended Complaint” seeking damages under the same state statute from not only the City of Bridgeport, but also Mayor David Hughes, City Councilman Barry Hughes, [6] and the municipal pool's head lifeguard, Brittany Mason.[7]

         Significantly, the amended complaint also contained two claims asserted under 42 U.S.C. § 1983. Count Eight alleged that defendants deprived Bert Eugene Winston, Jr., of his Fourteenth Amendment substantive due process right to life “by affirmatively subjecting [him] to an increased danger/risk of harm that was created by Defendants, and subsequently failing to protect him from that harm, resulting in his death.”[8] Count Nine alleged that defendants deprived plaintiff's brother of his Fourteenth Amendment right to equal protection of the laws because of his race.[9]Defendants jointly filed a timely notice removing the case to this court pursuant to 28 U.S.C. §§ 1441 and 1446, based upon federal question jurisdiction of the foregoing claims under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”).[10]

         The consolidated brief filed by plaintiff in opposition to defendants' respective motions for summary judgment admitted that there was “insufficient evidence to support a claim of racial discrimination against Defendant Brittany Mason.”[11] During oral argument on the motions for summary judgment, plaintiff's counsel expanded that admission and conceded that there was not sufficient evidence to support an equal protection claim against any defendant. Accordingly, the claims alleged in Count Nine were withdrawn. The discussion in the remainder of this opinion addresses only the claims asserted in Count Eight. The relevant portions read as follows:

65. Defendant City of Bridgeport; Councilman Hughes, in his individual capacity; Mayor Hughes, in his individual capacity; and Lifeguard Mason, in her individual capacity, collectively or separately, acting under the color of state law, violated 42 U.S.C. § 1983 by depriving Decedent of his Fourteenth Amendment due process right to life by affirmatively subjecting Decedent to an increased danger/risk of harm that was created by Defendants, and subsequently failing to protect him from that harm, resulting in his death.
66. As set out more fully above, Defendant City of Bridgeport, Councilman Hughes, Mayor Hughes, and Lifeguard Mason created or enhanced a danger by, but not limited to, (1) failing to properly maintain, repair, treat and/or inspect the Pool, including its pumping and filtration systems; (2) allowing use of the Pool in an unsafe condition; (3) failing to warn Decedent of the dangers and hazards present at the Pool; (4) failing to take adequate safety measures to prevent the death of Decedent; (5) failing to adequately hire, train, supervise, certify and/or manage the safety procedures and personnel working at and/or in charge of the Pool; and (6) failing to provide safe premises for the use of Decedent and others.
67. The increased danger/risk of harm to Decedent was known by Defendants, and Defendants acted recklessly and/or with deliberate indifference in endangering the Decedent as set out above.
68. The harm suffered by Decedent was foreseeable, and Defendants failed to protect him from that harm.
69. As a proximate consequence of Defendants' reckless and/or conscious indifference, Decedent was deprived of his life.

Doc. no. 1-1 (State Court Pleadings), at ECF 159-61 (First Amended Complaint), ¶¶ 65-69.

         II. FACTS

         Bert Eugene Winston, Jr. (“Winston”), drowned on Saturday, July 12, 2014, while attending a picnic and pool party sponsored by the First Missionary Baptist Church at the City of Bridgeport's municipal swimming pool.[12] That facility had been closed during the previous week due to the condition of the water.[13] Barry Hughes, the City Councilman charged with supervision of parks and recreational facilities, had recommended to Mayor David Hughes that the pool be closed because the water “was dirty” and contained “a lot of algae.”[14] Councilman Hughes assigned the duty of treating the pool's water and returning it to an acceptable level of clarity and quality to the head lifeguard, Brittany Mason.[15]

         Even though Mason had no formal training in pool maintenance, she was charged with the responsibility of checking and recording the chemical levels of the pool's water on a daily basis. Another City employee, Lindon Doyle (“Dodie”) Coffman, was responsible for adding chemicals to the pool water during evenings, [16]and, maintaining the pool's pump and filtration system.[17] During the week prior to the church function, Mason deposited a chemical named “Drop Out” in the water for the purpose of breaking up the algae, [18] and vacuumed the organisms when they settled to the bottom.[19] Even so, there is no record indicating whether she, or anyone else, measured chemical levels during the period that the pool was closed for cleaning the water.[20]

         On the date scheduled for the church's picnic and pool party, Mason asked Councilman Barry Hughes to bring her a spare key to the lock on the pool gate because she had lost her own.[21] When Hughes arrived around 11:00 a.m., Mason asked him whether the pool should be reopened, because the water clarity remained so murky that “you could barely see the lines in the shallow end.”[22] Mason believed the water condition to be “unsafe, ”[23] because “[y]ou couldn't even stick your hand in [the water] and see it.”[24] Councilman Hughes apparently entertained independent concerns about the water, because he telephoned Mayor David Hughes to discuss the advisability of reopening the pool.[25] The Mayor told Councilman Hughes to use his own judgment because he (the Mayor) could not see the condition of the water.[26]Councilman Hughes ultimately decided to reopen the pool for not only the persons attending the First Missionary Baptist Church picnic, but the public generally.[27]

         Winston arrived at the church shortly after 8:00 a.m. on Saturday morning, July 12, 2014, to assist Patricia Brocks in loading supplies for the picnic into the church van.[28] He rode with Ms. Brocks to the park and assisted in preparing for the picnic.[29]After Councilman Barry Hughes and head lifeguard Brittany Mason unlocked the gate of the fence surrounding the pool, some church members, including Winston, entered.[30]

         The attention of church member Jennifer Thomas was drawn to Winston while he frolicked with some of the children near the rope that marked the end of the shallow part of the pool and the beginning of the deep water: “he was hollering at the kids” and saying “I bet you can't catch me. And he was inching back from them.”[31]Ms. Thomas described her perception of the condition of the water at that time as “green. It was almost green. It was really dark and cloudy.”[32] She stated that it was possible to see the bottom in the most shallow, three-foot-deep part of the pool, but the clarity of the water in the deep end “was horrible. There was no way that you could see anything off of the twelve-foot.”[33]

         While playing with the children near the rope marking the edge of the deep water, Winston walked backwards and “slipped” under;[34] “he didn't come back up.”[35]

         A ten-year-old girl identified in this record only as “C.B.” ran to a lifeguard and said, “He is drowning, ” but the lifeguard just looked at her and said “stop lying.”[36]

         Jennifer Thomas did not see Winston go under the water, but she had “seen him inching back toward [the rope marking the change in depth], and I turned around, looked back, and I didn't see him any more.”[37] She did not immediately appreciate that Winston was in any danger, because she did not know that he could not swim.[38]However, when in “just a few minutes” she was told by a child that Winston had gone under the water and “didn't come back up, ”[39] Thomas asked a female lifeguard with blond hair (subsequently identified as Amanda Nicole Duke) to loan her goggles for the purpose of looking for Winston on the bottom of the pool, but Duke refused:[40] “she said they weren't allowed to do that. . . . They weren't allowed to let me go in, period, [and] they would look.”[41]

         Amanda Duke then walked into the lifeguard shack and asked two male lifeguards, James P. (“J.P.”) Cooper and Trey Bundy, to search for Winston because she “couldn't see in the water” and feared that she would not find him if she searched alone.[42] Duke said that Cooper and Bundy searched the pool for “[c]lose to an hour maybe.”[43] Head lifeguard Brittany Mason testified that Bundy and Cooper used goggles to search the pool's bottom for a similar length of time:

Q. Were they swimming at the top of the water surface level? Did they actually -
A. They went down.
Q. They went down?
A. Yes.
Q. So they both were in the deep end of the pool?
A. Both deep end and shallow end.
Q. Swimming under the water?
A. Yes.
Q. Fully submerged under the water?
A. They went under the water and then come [sic] up. They'd go from side to side.
Q. And how long did they search for Mr. Winston?
A. Probably closer to an hour.

Doc. no. 39-1 (Brittany Mason Deposition), at 33-34 (emphasis and ellipses supplied).

         At some point during the search, “a few” persons identified by Amanda Duke as Bert Winston's “family members, ” allegedly told her that “they thought he might have left. And then some family members [who] had left to see if he was at home, actually had come back and told us that he was at home. And that's when we decided to close the pool down [and cease searching for Winston].”[44]

         A handwritten statement given to the Jackson County Sheriff by lifeguard Trey Bundy stated that:

A little girl was saying that an old man went under the water and never came back up. We looked for the man before everything got out of hand. We didn't find him so I dove in and tried to find him. I went under and came up three times before I got out of the water. When I came back and told everyone that I did not see anything we told J.P. [Cooper] to look one more time just to be safe. J.P. said he didn't see anything. After we looked everyone started to say he had went home so we had left it at that.

Id. at 32 (alteration and emphasis supplied).

         Another handwritten statement given to the Sheriff by lifeguard J.P. Cooper recorded that:

I had just got off the stand for break and swam for about 5 minutes and then got out and went to play basketball at the courts. After about 15-20 minutes I heard a lot of commotion and Amanda [Duke] yelling “everyone out now” and so I started walking to the pool and people walking from the pool were saying a man went under and never came up. So I walked into the office and Amanda said “we have a situation” and I said I know and I asked if they wanted me to go check, and they said yes [be]cause I'm a good swimmer, so I grabbed my goggles and swam to the rope, I started at the rope and did laps back and forth, starting at the rope, I made laps until I came up at the ladder (about half way) and Brittany [Mason] said “He's ok he is at home. We found him.” So I got out at the ladder and walked into the office and they said everything is ok, so we closed and I went to the park and shot b-ball and nothing seemed wrong and everyone said he was ok.

Id. at 30-31 (alterations and emphasis supplied).

         The defendants' account of the duration and depth of the lifeguards' search was disputed by church member Jennifer Thomas. She said that the lifeguards “put their little goggles to their face[s] and just put their head[s] in the water - barely in the water - [and they] said nobody was down there. And then they evacuated everybody.”[45] C.B., the child who initially sounded the alarm about Winston slipping under the water, provided a similar account. She said that one of the male lifeguards “just got some goggles, and, like, got in the twelve-foot [end of the pool], and like sticked [sic] his head like halfway down in the water. . . . [f]or like five seconds.”[46]

         Some support for plaintiff's assertion that the search was abbreviated is provided in a statement given to the Jackson County Sheriff by female lifeguard Melissa Estep, who wrote:

I was on the stand in the shallow end when a woman asked where the man was so I started looking around for him and he wasn't in site [sic]. So at that time a little girl started saying he went down by the rope into the deep end so I blew the whistle and got everyone out of the pool. At that time Amanda [Duke] was looking for him and got Trey [Bundy] to get the goggles and he went down and looked several times. He seen nothing or no one [sic] so just to be safe we got J.P. [Cooper] to swim down and search also. After about 5 min[utes] he stopped and all the people doing the party sayed [sic] that the man was at home. So we stopped looking and [Councilman] Barry [Hughes] told us to close the pool because it was so cloudy, it was a safety hazard and very dangerous. We stayed for about an hour after the incident to close and get everyone out. We all thought the man was safe at home.

Doc. no. 39-1 (Plaintiff's Ex. 7 to Brittany Mason Deposition), at ECF 32, 30 (alterations and emphasis supplied).[47]

         As previously noted, defendants contend that, at some point after a search for Winston began, they were told that he had been located at his residence.[48] By that time, Councilman Barry Hughes had returned to the pool to assess the situation, and he and head lifeguard Brittany Mason jointly decided to call off the search and close the pool.[49] No one summoned the police or emergency services.[50]

         Winston's sister, plaintiff Rovena Hardrick, last talked with her brother the morning of his death, before he departed for the First Missionary Baptist Church. She told him that she would not drive to the picnic until later in the day, after her husband returned from work.[51] When plaintiff and her husband arrived at the park, the pool gate already had been closed and locked by Councilman Hughes and head lifeguard Mason.[52] Several children ran up to plaintiff's automobile and said that Winston had gone “under the water, ” but they overheard some of the lifeguards say that he had “gone home.”[53] Plaintiff believed that to be out of character for her brother, because he had committed to help with the picnic.[54] Even so, she drove to Winston's residence, but he was not there.[55] She looked for him at the homes of friends, and asked acquaintances whether they had seen him walking around the neighborhood, but no one had seen him all day.[56] When plaintiff could not find her brother, she drove to the police station and asked whether any of the officers had seen him. Again, no one had.[57] Only then did plaintiff return to the park and tell church members that Winston was not at home, and that no one had seen him.[58]

         Winston's friend, Arlene Robison, suggested that plaintiff should look for him around “US Stove, ” speculating that he might have become disoriented if he set off from the pool on foot.[59] Plaintiff and Ms. Robison drove around, continuing to look for Winston, but with no success.[60]

         While plaintiff and Ms. Robison continued to search for Winston, a man named Gregory Walker, who was visiting from out of town, on leave from the Army, joined members of his family at the church function around 3:30 p.m. By that time, the pool had been closed and locked by Councilman Hughes and head lifeguard Mason, but the picnic continued.[61] Walker's sister, Tanesha, told him that some of the children said that Winston still was in the pool.[62] She asked Walker to go into the pool and look for Winston.[63] Walker jumped over the fence surrounding the pool and began to search the deep end.[64] Jennifer Thomas pointed Walker to the area that Winston last had been seen by the children.[65] Walker dove down and searched that area. Within ten to fifteen minutes, he located Winston's body and brought it to the surface.[66] Walker's brother-in-law, Antonio Brock, assisted him in removing Winston's body from the pool.[67] Walker and his sister, who is a nurse, attempted chest compressions in an effort to resuscitate Winston, [68] but it was far too late for such exertions. Winston's lifeless body remained on the pool deck for forty-five to ninety minutes before the Jackson County Coroner arrived around 6:00 p.m.[69]

         The Coroner's Report of Death states that Winston was last seen at approximately 1:30 p.m., and that he was found dead three hours later, at about 4:45 p.m.[70] He was formally pronounced dead at 6:10 p.m., [71] and his body transported to the morgue.[72]

         III. DISCUSSION

         The claims asserted against the City and individual defendants in Count Eight of plaintiff's amended complaint are based upon 42 U.S.C. § 1983, a statute that authorizes civil suits against state, county, or municipal governmental entities or officials to recover damages for conduct under color of state law that allegedly deprived the plaintiff of rights, privileges, or immunities secured by the United States Constitution or federal law.[73] The substantive due process claims asserted by plaintiff under that statute have two elements: plaintiff's decedent died as a result of defendants' violation of a constitutional right; and, the constitutional right was “clearly established.”

Before a person, county, or municipality can be held liable under section 1983, a plaintiff must establish that she suffered a constitutional deprivation. E.g., Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir. 1986). Further, to impose individual liability on public officers, the plaintiff must prove that the defendants violated not only a constitutional right, but a “clearly established” constitutional right; otherwise the defendants are protected by qualified immunity. E.g., Lassiter v. Alabama A & M Univ., 28 F.3d 1146 (11th Cir. 1994) (en banc).

Hamilton by and through Hamilton v. Cannon, 80 F.3d 1525, 1528 (11th Cir. 1996).

         The second element overlaps with the individual defendants' claim that they are entitled to qualified immunity: a defense that provides complete protection for state, county, or municipal governmental officials whose conduct violates “no clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).[74]

         As for the City, it cannot be held liable on a theory of respondeat superior: the principle that an employer must answer for the wrongful acts of an employee. See Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, plaintiff must show that any constitutional deprivation resulted from an official custom or policy. Bradberry v. Pinellas County, 789 F.2d 1513, 1515 (11th Cir. 1986); Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir. 1985).

         Plaintiff's claims against the individual defendants will be examined first.

         A. The First Element: a constitutional deprivation

         The Due Process Clause of the Fourteenth Amendment, which is the constitutional basis for the claims alleged in Count Eight, provides that “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”[75] That language requires a state, county, or municipality to follow fair and clearly defined procedures, such as notice and an opportunity to be heard, before depriving “any person of life, liberty, or property.” See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542 (1985) (“An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and [an] opportunity for [a] hearing appropriate to the nature of the case.”) (citation and internal quotation marks omitted, alterations supplied).[76]

         However, plaintiff does not assert a deprivation of Bert Winston's procedural due process rights. Instead, she relies upon the so-called “substantive component” of the Due Process Clause, which protects an individual's life, liberty, or property from “‘certain government actions regardless of the fairness of the procedures used to implement them.'” Collins v. ...


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