United States District Court, N.D. Alabama, Western Division
WAYNE WARREN, by and through his Mother, next friend and legal guardian, Polly Robinson, Plaintiff,
ALABAMA DEPARTMENT OF MENTAL HEALTH, et al., Defendants.
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant Estate of Perry
Walker's (“the Estate”) Motion for Summary
Judgment (Doc. # 39) and Defendant Alabama Department of
Mental Health's (“ADMH”) Motion for Summary
Judgment (Doc. # 41). The Motions are fully briefed (Docs. #
46-47, 50-51, 54-55, 57) and are ripe for review. After
careful review of the parties' submissions and having
conducted oral argument on the Estate's Motion, and for
the reasons explained below, the court concludes that
ADMH's Motion for Summary Judgment is due to be granted,
while the Estate's Motion is due to be granted in part
and denied in part.
Factual Background 
case arises out of an incident that took place on April 2,
2005,  when a Mental Health Worker employed by
ADMH instructed Plaintiff to hit his roommate on the head
with a radio in order to quell a disturbance. The court
begins by giving a brief overview of Plaintiff's
behavioral history at William D. Partlow Development Center
(“Partlow”). It then discusses the history of
R.G.,  Plaintiff's roommate, and the
relationship between R.G. and Plaintiff. Finally, the court
outlines Perry Walker's employment record at Partlow and
his role in the events forming the basis of this action.
Plaintiff's Behavioral History at Partlow
August 2003, Wayne Warren (“Plaintiff”) was
admitted to Partlow, a facility maintained by ADMH. (Doc. #
46 at 2). He had a documented history of aggression and a
diagnosis of Atypical Psychosis, Schizoaffective Disorder,
and mild to moderate mental retardation. (Id.).
Although his IQ is in the mid-50's (Doc. # 46-4 at 5),
his social worker at Partlow noted that he is “verbal
and comprehends what is said to him.” (Doc. # 46-2 at
March 2004 to April 2005, Plaintiff's psychiatrist, Dr.
Baltz, reported that Plaintiff displayed intermittent
aggressive tendencies towards the staff as well as other
patients, and at various times the following was documented:
• “[C]ontinues to virtually run amuck here. He has
been threatening to beat up the staff, fighting with the
patients and he tore up his room. He attacked his roommate
the first night at about four o'clock in the morning.
Kicked holes in the walls over in administration
building.” (Doc. # 46-2 at 7).
• “Seems calmer to the staff. He doesn't
appear anxious, but does complain about being nervous and he
occasionally will say that he wants to go to the hospital.
Has no major outbursts.” (Id. at 8).
• “[O]verall hasn't been as disruptive and
assaultive. He will still hit some of the patients from time
to time.” (Id. at 9).
• “[A]pparently has been having some sexual type
behavior with his roommate. Today, he was noted to be kind of
rowdy out in the hall and had to be seen pretty quickly.
I'm told that he destroys his roommate's property and
other people's property. Fights with the patients in his
cottage.” (Id. at 10).
• “[C]ontinues to be fairly disruptive and
aggressive. He will attack other patients. He doesn't
fight with the staff. He gets into his roommates belongings
and destroys them. The last two weeks he has been making
sexual allegations about his roommate who in return makes
them about him.” (Id. at 11).
• “[S]eems to be doing much better. His rates of
physical aggression dropped from 38 in June to 5 in August
and his rates of disruptive behavior dropped from 103 in June
to 25 in August.” (Id. at 12).
• “[H]as settled down quite nicely. He has had
zero incidents of severe physical aggression and disruptive
behavior. I am told though that he will get loud, slam doors,
curse and occasionally slap, but this seems to be at a low
rate.” (Id. at 13).
• “[H]as had seven episodes of physical aggression
in December and six in January. Over the Christmas holidays,
he got mad at home and staff had to go pick him up.”
(Id. at 14).
• “[C]ontinues to rock along with episodes of
disruptive and aggressive behavior. He is very impatient. He
runs out of the apartment from time to time. Breaks and
throws things when he is upset.” (Id. at 16).
order to combat these tendencies, Plaintiff was prescribed
Depakote ER for behavioral control, Aripiprazole for
aggression, and Inderal LA for his “aggressive
explosive outbursts.” (Id. at 7-16).
Baltz's March 17, 2005 report, he expressed his doubts
about Plaintiff's ability to make “medical,
surgical, financial, or placement decisions.”
(Id. at 15). Consistent with this finding, he
executed an affidavit in support of the appointment of a
guardian for Plaintiff. (Docs. # 46-4 at 4; 46-5). On April
12, 2005, Plaintiff's mother, Polly Robinson, was
appointed his guardian. (Id. at 6-7).
Plaintiff's Roommate at Partlow, R.G.
was admitted to Partlow on October 5, 2004 with a prior
diagnosis of Cerebral Palsy and mild to moderate mental
retardation. (Docs. # 46-3 at 2-3; 46-6 at 1-3). R.G. has
never been able to walk and is confined to a wheelchair.
(Doc. # 46-3 at 2). According to his individual support plan
documented on November 20, 2007, he had an IQ of 40 and his
target behaviors were “physical aggression” and
“throwing feces.” (Id. at 3;
Id.). As to his history of physical aggression, R.G.
would sometimes “hit other employees, ”
“grab the hair of some of the workers at Partlow,
” “[throw] things at the employees at Partlow,
” and “[grab] or hit the other people who lived
there.” (Doc. # 46-9 at 21-22). In fact, the employees
at Partlow were required to “[a]lways position
[themselves] between [R.G.] and other clients.” (Doc. #
46-10 at 1).
April 2005, R.G. lived at Partlow in Apartment 10B with
Plaintiff. (Docs. # 41-3 at 14; 46-1 at 4). In comparing the
physical makeup of these two clients during that month,
Plaintiff was 34 years old, six feet tall, and weighed 195
pounds. (Doc. # 46-2 at 3). R.G., on the other hand, was 24
years old and weighed between 246 and 271 pounds. (Doc. #
46-3 at 2-3). The Rule 56 record shows that Plaintiff did not
like his roommate. (Id. at 17; Id. at 5).
Perry Walker's Employment Record and His Role on April 2,
November 5, 2001 to April 7, 2005, Perry Walker was employed
by ADMH as a Mental Health Worker I at Partlow. (Doc. # 39-2
at 1). His duties included assuring client safety,
interacting and intervening with clients, performing light
housekeeping, escorting clients, recording/reporting
information in a timely manner, performing personal care
activities and minor treatments, and monitoring and reporting
client physical, behavioral, and personal issues. (Doc. #
46-15 at 1, 8).
and other ADMH employees, were also trained (both upon
employment and annually) on the Department Policies. (Doc. #
46-12 at 5). Department Policy 19-10 provides:
Any form of client abuse, neglect, exploitation or
mistreatment will not be tolerated. The DMH will immediately
investigate and provide for appropriate legal and
administrative actions based upon such investigation in any
(Doc. # 46-13 at 1). Department Policy 19-25 also imposes a
duty to report on ADMH employees:
In accordance with state law, the Department of Mental Health
and Mental Retardation (DMH/MR) shall report to the
Department of Human Resources (DHR) cases of abuse, neglect,
or exploitation involving persons receiving services in state
operated DMH/MR residential facilities (with the exception of
psychiatric nursing home(s)) when there is reasonable cause
to suspect that abuse, neglect, or exploitation has occurred.
(Doc. # 46-14 at 1). Abuse is defined as “the willful
infliction of physical pain, injury, or mental anguish or the
willful deprivation of services necessary to maintain mental
and physical health.” (Id.). Neglect is
“the failure to provide basic needs such as food,
clothing, medical treatment, and shelter.”
(Id.). Finally, exploitation is defined as “an
unjust or improper use of another person or another
person's resources for one's own profit or advantage
or for the profit or advantage of another person.”
2001 to 2003, Walker's performance record reflected
adequate “meets standards” scores. (Doc. # 46-15
at 1-6). However, on February 5, 2004, Walker allegedly
physically abused a client at Partlow. (Id. at 15).
The client suffered “a quarter-sized hematoma to the
forehead and an abrasion to the right fourth finger.”
(Id.). Following an investigation and a
pre-disciplinary conference held February 24, 2004, the
Facility Director suspended Walker for three weeks for
violating Department Policy 19-10, “Reporting and
Investigating Abuse, Neglect, Mistreatment, and
Exploitation.” (Id. at 14) (referenced above).
The suspension was effective for the period of March 6, 2004
to March 29, 2004. (Id.).
worked with Plaintiff's roommate frequently; indeed, R.G.
saw him every day. (Doc. # 46-9 at 23). On April 2, 2005,
Walker was the Mental Health Worker assigned to R.G. (Doc. #
1 at ¶ 18). The incident arose because R.G. was upset
and did not want his diaper changed, so he began throwing
feces at Walker and Plaintiff. (Docs. # 46-1 at 8; 39-1 at
8). Only these three individuals were in the room at the
time. (Id.). In response, Walker instructed
Plaintiff to hit his roommate on the head with a radio, and
Plaintiff did so. (Id. at 5; Id. at 5).
Plaintiff claims that Walker said, “Wayne, hit [R.G.]
in the head.” (Id. at 7; Id. at 7).
“Then he told [Plaintiff] to do it again.”
(Id.). Plaintiff testified that he hit his roommate
because of Walker's instruction, but also because he was
upset R.G. was throwing feces at him. (Id. at 8, 12;
Id. at 8, 12). Plaintiff claims that when he hit his
roommate, “[his] heart was pounding” in his
chest. (Doc. # 46-1 at 12; 39-1 at 12). His mother testified
that he still gets “upset” and sometimes cries
talking about the incident. (Doc. # 46-16 at 4-5). She
further testified that Walker offered Plaintiff a Coke to hit
R.G., and Plaintiff “always wanted Cokes.”
(Id. at 4, 12).
Plaintiff and R.G. testified that they reported the incident
to other Mental Health Workers at Partlow. (Docs. # 46-1 at
7-8; 46-11 at 26). On April 4, 2005, ADMH placed Walker on
mandatory leave while it conducted an investigation. (Docs. #
46-15 at 13; 39-2 at 2). ADMH did not discipline or terminate
Walker because he resigned on April 7, 2005. (Id. at
12; 39-3). Later that same year, Walker passed away. (Doc. #
1 at ¶ 9).