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Foster v. Advanced Correctional Healthcare, Inc.

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

September 21, 2018




         This 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).

         In her 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”);[1]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”).[2] (Doc. 60, pp. 1-3).

         Pursuant 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 to dismiss.


         Rule 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)).

         In 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).


         The 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).[3]

         Ms. 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.[4] (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).

         Ms. 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, ¶ 38).

         Ms. 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, ¶ 48).

         On 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).

         On 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, ¶ 59).

         On the 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).

         Ms. 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, ¶ 65).


         A. Madison County's Partial Motion to Dismiss State Law Tort Claims

         Madison County asks the Court to dismiss the state law tort claims (civil conspiracy, negligent correctional care, and wantonness) that Ms. Foster asserts against it.[5] (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.

         1. Civil conspiracy claim against Madison County

         Madison 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.

         The 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 knowledge” requirement).

         Madison 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.

         2. Negligence and wantonness claims against Madison County

         The 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 wantonness.

         While 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.

         Similarly, 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.

         Madison 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)).

         In 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 this case.

         Second, 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.

         Finally, 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 ...

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