United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
case is before the Court on three motions to dismiss filed by
various defendants. While incarcerated at the Madison County
Jail, plaintiff Whitney Foster alleges that she did not
receive adequate treatment for many severe health problems.
She eventually was hospitalized and now suffers from
permanent neurological deficits and cortical blindness. In
her amended complaint, Ms. Foster asserts claims of
deliberate indifference to medical needs under 42 U.S.C.
§ 1983, conspiracy to violate civil rights under 42
U.S.C. § 1983, negligent medical practice, negligent
correctional care, wantonness, and civil conspiracy. (Doc.
60, pp. 16, 18-21).
amended complaint, Ms. Foster names as defendants Advanced
Correctional Healthcare, Inc. (“ACH”), the
corporation contracted to provide healthcare to inmates
residing in the Madison County Jail; Dr. Arthur Williams, a
physician at Madison County Jail; specific nurses at the jail
(“the nurses”);Madison County; Blake Dorning, the
Madison County Sheriff; Jerry Morrison as the personal
representative of the estate of Steve Morrison, the Jail
Administrator (“Mr. Morrison”); and specific
correctional officers at the jail (“the correctional
officers”). (Doc. 60, pp. 1-3).
to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
Madison County asks the Court to dismiss the claims of
negligent correctional care, wantonness, and civil conspiracy
asserted against it. (Doc. 62, p. 1). The correctional
officers ask the Court to dismiss the § 1983 and tort
claims asserted against them. (Doc. 84, p. 1). Mr. Morrison
asks the Court to dismiss the § 1983 claims asserted
against the estate of Steve Morrison. (Doc. 86, p. 1). For
the following reasons, the Court grants in part and denies in
part Madison County's motion to dismiss and denies both
the correctional officers' and Mr. Morrison's motions
STANDARD OF REVIEW
12(b)(6) enables a defendant to move to dismiss a complaint
for “failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion
to dismiss tests the sufficiency of a complaint against the
“liberal pleading standards set forth by Rule
8(a)(2).” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Pursuant to Rule 8(a)(2), 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). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.'”
Erickson, 551 U.S. at 93 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, (2007)).
deciding a Rule 12(b)(6) motion to dismiss, a court must view
the allegations in a complaint in the light most favorable to
the non-moving party. Watts v. Fla. Int'l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007). A court must accept
well-pled facts as true. Grossman v. Nationsbank,
N.A., 225 F.3d 1228, 1231 (11th Cir. 2000).
factual allegations in the amended complaint, viewed in the
light most favorable to Ms. Foster, indicate that pursuant to
its contract with Madison County, ACH provides healthcare
services to inmates at the Madison County Jail. (Doc. 60,
¶¶ 15, 17). The contract caps outside medical care
costs at $200, 000 per quarter. (Doc. 60, ¶ 17). The
contract permits ACH to keep as profit the difference between
the $200, 000 cap and actual outside medical care costs
incurred in a quarter when those costs fall below $200, 000.
(Doc. 60, ¶ 17). According to Ms. Foster, this contract
provision incentivized ACH to deny prison inmate referrals to
outside medical care providers as a cost controlling
mechanism, the “result of which [was] unnecessary
inmate suffering.” (Doc. 60, ¶ 17).
Foster alleges that ACH personnel refused to refer inmates
for outside care when necessary, failed to respond to or
evaluate inmates' serious medical needs, and let
inmates' health deteriorate. (See Doc. 60,
¶ 30). She also alleges that Sheriff Dorning and Mr.
Morrison encouraged correctional officers to defer to ACH
personnel for medical decisions even though the officers were
aware that ACH's medical care endangered inmates because
ACH elevated cost control over healthcare. (Doc. 60,
¶¶ 22-23, 25). Ms. Foster asserts that at least six
inmates died due to the failure of ACH and correctional
personnel to provide inmates with basic medical
care. (Doc. 60, ¶¶ 24, 28). Ms. Foster
alleges that no defendant investigated the circumstances of
these deaths, nor did the defendants investigate grievances
regarding medical care. (Doc. 60, ¶¶ 27-28).
Foster was arrested and booked at Madison County Jail on
April 4, 2014. (Doc. 60, ¶ 31). Before her arrest, she
had been taking 80 mg of methadone daily. The methadone was
administered by a methadone clinic. (Doc. 60, ¶ 35).
Once incarcerated, Ms. Foster alleges that she “began
to show visible signs of being weak and suffering from
methadone withdrawal.” (Doc. 60, ¶ 38). The
visible symptoms grew more severe each day, although the
defendants “did nothing to help her.” (Doc. 60,
Foster experienced elevated blood pressure on numerous
occasions. (Doc. 60, ¶¶ 39, 41). On April 6, 2014,
nurses placed her on vistaril and dicyclomine, as was
“protocol for withdrawal patients.” (Doc. 60,
¶ 40). Nurses did not write down multiple blood pressure
readings “in the 200s.” (Doc. 60, ¶ 42.1).
Nurses and correctional officers accused Ms. Foster of faking
when she slurred her speech, bit her tongue, and exhibited
limited control of her body. (Doc. 60, ¶ 47). Ms. Foster
was seen in the clinic on April 18, 2014, given ibuprofen,
and put on three day blood pressure watch. (Doc. 60, ¶
April 21, 2014, Ms. Foster began having strokes and seizures,
during which she was harassed and ridiculed by officers and
nurses. (Doc. 60, ¶¶ 50-51). She was found shaking
and sweating, with a blood pressure of 180/110, slightly
lethargic, and slurring her words. (Doc. 60, ¶¶
53-54). She was given clonidine, apparently for methadone
withdrawal. (Doc. 60, ¶ 54). The next day, Ms. Foster
called her mom and told her with slurred speech that she was
going to die. (Doc. 60, ¶ 57). Ms. Foster was left to
lie on the ground, and a nurse picked her up and dropped her,
saying “get the fu** up.” (Doc. 60, ¶ 58).
Some officers and nurses put Ms. Foster in the shower because
she urinated on herself. (Doc. 60, ¶ 58).
April 22, 2014, correctional officers saw Ms. Foster shaking
and sweating. Ms. Foster alleges that the officers knew she
was having strokes. (Doc. 60, ¶ 59.1). Ms. Foster
asserts that the officers knew she had to be sent to the
hospital, but no defendant would send her to the hospital.
(Doc. 60, ¶ 59.1). The officers harassed and ridiculed
her throughout the day. (Doc. 60, ¶ 59.1). That night,
officers found Ms. Foster twitching in her bunk, complaining
of hurting all over and tensing muscles. (Doc. 60, ¶
morning of April 23, 2014, a nurse could not pull Ms. Foster
out from under a bed. (Doc. 60, ¶ 61). Dr. Williams
ordered that Ms. Foster be sent to the Huntsville Hospital
emergency room due to signs of a stroke. (Doc. 60, ¶
62). When Ms. Foster arrived at the hospital, her blood
pressure was 154/131, she had a heart rate of 115, she looked
like she had been beaten, she was blind, and she was
partially paralyzed. (Doc. 60, ¶ 64).
Foster remained hospitalized for three weeks and was
diagnosed with Posterior Reversible Encephalopathy Syndrome;
Ms. Foster contends her condition is no longer reversible.
(Doc. 60, ¶ 65). Ms. Foster has some use of her arms and
legs, but the repeated strokes and seizures caused permanent
neurological deficits and cortical blindness. (Doc. 60,
Madison County's Partial Motion to Dismiss State Law Tort
County asks the Court to dismiss the state law tort claims
(civil conspiracy, negligent correctional care, and
wantonness) that Ms. Foster asserts against it. (Doc. 62, p. 1).
Madison County argues that Ms. Foster failed to comply with
Alabama law requiring proper pre-suit notice before bringing
an actionable claim against a county.
Civil conspiracy claim against Madison County
County raises a procedural challenge to Ms. Foster's
conspiracy claim. Under Alabama law, before a plaintiff may
sue a county, the plaintiff must present a notice of claim to
the county within 12 months after accrual of the claim. Ala.
Code § 11-12-8 (1975). This notice must be
“itemized.” Ala. Code § 11-12-5. The
plaintiff cannot file suit until the county denies the claim
or the claim is denied by operation of law after 90 days.
Ala. Code § 6-5-20. Ms. Foster presented Madison County
her notice of claim within 12 months of accrual of the claim.
(Doc. 63, p. 22). The claim was denied by operation of law
after 90 days. (Doc, 70, p. 19). Madison County argues that
the notice is not properly itemized because it omits a theory
of liability asserted in the amended complaint.
itemization requirement in § 11-12-5 provides a county
“with notice of claims against the county and an
opportunity to audit and investigate the claims.”
Elmore Cnty. Comm'n v. Ragona, 540 So.2d 720,
723 (Ala. 1989). The “items” should include
“a factual background, a description of the event or
transaction giving rise to the claim, the alleged basis for
the county's liability for damages resulting from the
event or transaction, the nature of the damages, and the
compensation demanded.” Id. Minor deficiencies
in a notice of claim are not fatal if they do not
“prevent the [county] from having adequate notice of
the claims against it and an opportunity to audit and
investigate the claims.” Helms v. Barbour
Cnty., 914 So.2d 825, 830 (Ala. 2005) (internal
quotation marks omitted) (notice was properly itemized for
asserting substantially similar, but not identical, theories
of liability as the complaint); see Ragona, 540
So.2d at 723 (notice signed by an attorney without personal
knowledge complied with the § 11-12-5 “personal
County argues first that Ms. Foster's notice is
inadequate because it does not mention the conspiracy claim
that Ms. Foster asserts in the amended complaint. Ms. Foster
contends that she sufficiently placed Madison County on
notice of her conspiracy claim because her conspiracy claim
“derive[s] directly from the underlying wrongs.”
(Doc. 70, p. 22). The Alabama Court of Civil Appeals rejected
a similar argument in Jacks v. Madison Cnty., 741
So.2d 429 (Ala. Civ. App. 1999). In Jacks, the
plaintiff's complaint contained counts of breach of
contract, fraudulent misrepresentation, trespass, and
nuisance against a county that built a water storage tank and
road on the plaintiff's property, but the plaintiff's
pre-suit notice only identified a breach of contract claim.
Although the trespass and nuisance claims arose from the same
events as the breach of contract, the Court of Civil Appeals
found that the “[plaintiff's] failure to present
her nuisance and trespass claims to the county barred her
assertion of those theories in her complaint.”
Id. at 434. Similarly, in this case, Ms.
Foster's notice mentions negligence and wantonness
consistent with the claims in her amended complaint, but the
notice does not mention conspiracy. Accordingly, the notice
fails to meet the § 11-12-5 itemization requirement for
lack of an “alleged basis for the county's
liability.” Ragona, 540 So.2d at 723.
Therefore, the Court grants Madison County's motion to
dismiss the civil conspiracy claim.
Negligence and wantonness claims against Madison
County's challenge to Ms. Foster's negligence and
wantonness claims also concerns her pre-suit notice. Madison
County argues that Ms. Foster cannot state claims for
negligence and wantonness because Ms. Foster's notice
“does not address, in any way, Madison County's
duty to fund the jail.” (Doc. 63, p. 12). The parties
agree that the County's only duty with respect to the
jail is to fund the operation of the jail, but disagree on
the consequences of omitting that specific factual allegation
from the notice. The Court finds that the omission does not
prevent Ms. Foster from stating claims of negligence and
Ms. Foster's notice did not accurately identify the duty
Madison County breached, it did identify bases of liability.
Section 11-12-5 and the Supreme Court of Alabama require only
the latter. In Helms, the plaintiffs' pre-suit
notice identified a trespass claim with the language,
“During the scraping process the [defendant's]
grader went outside of the established right-of-way and came
upon the property of the claimants. This caused the long leaf
pines to be destroyed.” 914 So.2d at 830. The notice
identified an improper taking claim with the language,
“[T]his further caused the right-of-way to be expanded
without the consent of the property owners and without
compensation to the property owners.” Id. The
Supreme Court of Alabama found that “the bases for the
County's liability as stated in [the plaintiffs'
pre-suit notice] are substantially the same as those stated
in their complaint.” Id.
Ms. Foster states substantially the same bases of liability
in her notice and in her amended complaint. In her notice,
she claims she is entitled to damages because:
Madison County Jail, and its agents and/or employees had a
statutory duty under Alabama law to attend to the medical
needs of inmates in the Madison County Jail. Those agents
and/or employees were negligent, wanton, and/or breached the
standard of care in meeting Foster's medical needs,
specifically including for headache, confusion, slurred
speech, high blood pressure, TIA and stroke.
As a proximate consequence of said negligent or wanton
conduct of the aforesaid parties, Whitney Elizabeth Foster,
was caused to suffer encephalopathy due to PRESS syndrome,
cortical blindness, and other physical injuries.
(Doc. 63, p. 22). In count four and count five of her amended
complaint, Ms. Foster brings claims for negligent and wanton
care at the hands of agents and/or employees of Madison
County Jail, consistent with the claims in her notice. (Doc.
60, pp. 3-20). Madison County did not have to
“‘presume' certain claims may be brought
against it.” (Doc. 91, p. 6). Rather, Ms. Foster told
Madison County precisely which claims she might bring.
County argues that the notice is invalid because Madison
County is not obligated to attend to the medical needs of
inmates, yet the notice states, “Madison County Jail .
. . had a statutory duty under Alabama law to attend to the
medical needs of inmates . . . .” (Doc. 91, pp. 3-4).
Section 11-12-5 does not require that the complainant state
the particular duty a county breached. Rather, it requires
the complainant allege a basis of liability. Arguably
misstating the County's duty when the basis of liability
is otherwise properly alleged still satisfies the purpose of
§ 11-12-5 by giving the County “notice of claims
against [it] and an opportunity to audit and investigate the
claims.” Ragona, 540 So.2d at 723. The notice
informed the County of the particular tort claims, the
general setting and events giving rise to the claims, and the
source of the alleged negligence and wantonness, namely
“agents and/or employees” of the County. (Doc.
63, p. 22). Even if misstating the duty is a deficiency, it
is minor, and the County “[can] not complain that
relatively minor deficiencies in claims prevent [it] from
acquiring knowledge of actions pending against [it].”
Id. (citing Diemert v. City of Mobile, 474
So.2d 663, 666 (Ala. 1985)).
support of its argument that Ms. Foster's notice is
deficient, Madison County relies on three cases. The first is
Ford v. Jefferson County, 774 So.2d 600 (Ala. Civ.
App. 2000). (Doc. 63, pp. 12-13, Doc. 91, pp. 6-7). The facts
of Ford are irrelevant to this case. In
Ford, the plaintiffs filed no pre-suit notice at
all, and unsuccessfully argued that filing a complaint in
court satisfies the pre-suit notice obligation.
Ford, 774 So.2d at 605. Ford is not a case
evaluating the sufficiency of an itemization in an otherwise
compliant notice and thus is not persuasive in the context of
Madison County relies on Jacks to argue that Ms.
Foster's notice requires the County to presume potential
claims may be brought against it. (Doc. 91, p. 6). Also,
Madison County argues that Ms. Foster's notice lacks an
alleged claim like the deficient notice in Jacks.
(Doc. 63, p. 12). However, in Jacks, the pre-suit
notice did not identify the trespass or nuisance claims
alleged in the complaint. Jacks, 741 So.2d at 434.
The issue in Jacks is the complete omission of
claims, not the proper itemization of claims. Ms. Foster did
not completely omit the theories of negligence and
wantonness, so Madison County's reliance on
Jacks is misplaced.
Madison County heavily relies on Kelly v. Owens, et
al., 2006 WL 3421257 (M.D. Ala. Nov. 28, 2006). In
Kelly, the plaintiff claimed that he received
inadequate medical treatment while incarcerated at the Coosa
County Jail. The only relevant portion of the plaintiff's
pre-suit notice stated, “Coosa County had undertaken
and hired medical personnel, including the services of a
physician, to provide medical services to inmates at Coosa
County Jail.” Kelly, 2006 WL 3421257 at *7. In
the related section of the complaint, the plaintiff alleged
that Coosa County breached the “duty [to provide
necessary medicines and medical attention to sick and injured
inmates] by inadequate funding in a manner which injured [the
plaintiff] . . . . [T]he funding for medical care for
prisoners was inadequate such that plaintiff did not receive
adequate medical care.” Id. The district court
concluded that the notice “cannot be construed as
sufficient to notify the Commission of a negligent failure to
fund claim.” Id. (citations omitted). The
pre-suit notice did not ...