United States District Court, S.D. Alabama, Southern Division
AGNES GLENN, in her capacity as the personal representative of the Estate of Roderick Darius Rayshon Bolton, deceased, Plaintiff,
WALTER MYERS, et al., Defendants.
JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant M.H.M.’s
Renewed Motion for Summary Judgment (“Motion”)
(Doc. 111), Plaintiff’s Response (Doc. 129),
M.H.M.’s Reply (Doc. 132), Plaintiff’s
“Brief on the Element of Duty” (Doc. 140), and
M.H.M.’s Reply thereto (Doc. 141). The Motion is ripe
for resolution. After careful consideration, the Court
concludes that the Motion is due to be
Agnes Glenn is the Personal Representative of Roderick
Bolton, her deceased son. Defendant M.H.M. Correctional
Services, Inc. is a privately held, wholly-owned subsidiary
of M.H.M. Services, Inc. (Doc. 34). M.H.M. provided certain
mental health services to inmates at Holman Correctional
Facility (“Holman”), according to the terms of a
contract (“Contract”) between M.H.M. and the
Alabama Department of Corrections (“ADOC”).
commenced this action after her son committed suicide while
incarcerated at Holman. As more fully set out in this
Court’s order dated June 7, 2018, (Doc. 103), Roderick
Bolton (“Bolton”) was a practicing Muslim
involved in several incidents at Holman that resulted in him
being placed in segregation for insubordination or failure to
follow direct orders. The incident that immediately preceded
Bolton’s suicide involved his disobedience of an order
to shave his beard. Bolton maintained his religious beliefs
required him to keep a beard. (Doc. 103 at 2, 3). Bolton was
placed in a segregation unit at approximately 9:00 a.m. on
September 11, 2015. Plaintiff alleges that following his
placement in segregation, Bolton informed various ADOC
correctional officers and Shelia Brown (“Brown”),
a psychological associate employed by ADOC, that he was
having suicidal thoughts. Bolton was, nevertheless, maintained in
the segregation unit and was not placed on suicide watch. He
was last seen alive in his segregation cell around 6:00 p.m.
on September 11, 2015. On September 12, 2015, Bolton was
found hanging in his cell at 3:40 a.m. and pronounced dead at
approximately 4:25 a.m.
contracted with ADOC to provide comprehensive mental
healthcare treatment to inmates at several ADOC facilities in
2013. (Doc. 112-3). The Contract incorporated ADOC
Administrative Regulations. These Regulations required ADOC
to classify inmates. The Contract did not reassign that
responsibility to M.H.M. In the Contract, M.H.M. and ADOC
differentiated between different categories of inmates that
required mental health services under ADOC regulations.
(See ADOC Reg. No. § 613). These regulations
classify inmates’ mental health care needs on a sliding
scale from “MH-0” to “MH-6.” The
lowest level of classification is “MH-0.” That
classification applies to inmates that have “no
identified need for mental health assistance.”
(Id.). The Contract provided that inmates classified
from “MH-1 to MH-6” were on M.H.M.’s
“mental health caseload, ” and M.H.M. had to
provide them with certain mental health services. However,
inmates classified as “MH-0” were not on
M.H.M.’s “mental health caseload” and
M.H.M. did not have to provide those inmates with services.
(Doc. 111 at 6). Bolton was classified as “MH-0.”
The ADOC Administrative Regulations required ADOC to triage
“MH-0” inmates who experienced a mental health
crisis. An “MH-0” classified inmate could be
placed on M.H.M.’s caseload only if ADOC referred the
inmate to M.H.M. under the regulations.
Fourth Amended Complaint (“FAC”) is the operative
complaint. (Doc. 75). The FAC initially included federal and
state law claims, but the federal claims have been dismissed.
(See Doc. 143). Plaintiff’s two remaining
claims against M.H.M. are state law claims, which Plaintiff
describes as an “Alabama Claim for Negligent Medical
Malpractice” (Id. at Count 3) and an
“Alabama Law Claim for Wantonness” (Id.
at Count 5). The FAC asserts that the “Alabama Claim
for Negligent Medical Malpractice” is made
“pursuant to the Alabama common law tort of negligence
as modified by the Alabama Medical Liability Acts, Ala. Code
§§ 6-5-480, et seq.” (Doc. 75, paragraphs 99
and 99.1). Plaintiff’s allegations of duty in the FAC
state that “MHM, its supervisors, and its employees . .
. had a duty to follow the standard of reasonable care,
skill, and diligence in their care and treatment of [Bolton]
that is used by similarly situated health care providers in
the same general line of practice.” (Id. at
paragraph 100.1). The FAC also alleges that M.H.M.
“undertook a duty . . . to act with reasonable care in
hiring, training, supervising, and retaining medical
professionals, whether as employees or contractors, who are
reasonably competent to provide health care to
inmates.” (Id. at paragraph
does not allege in the FAC that M.H.M. owed any duty based on
the Contract. The FAC contains no allegations whatsoever
regarding the Contract. The word “contract” is
found nowhere in the FAC. Plaintiff attempted to introduce
allegations regarding the Contract, for the first time, in a
proposed Fifth Amended Complaint but Plaintiff’s motion
for leave to file was denied. (see Docs. 118 and
argues it is entitled to summary judgment because Plaintiff
cannot demonstrate a genuine issue of fact on the element of
duty. It is undisputed, according to M.H.M., that no M.H.M.
employee saw Bolton and that he was not on M.H.M.’s
caseload. M.H.M argues, therefore, that it did not have a
patient-provider relationship with Bolton, which is necessary
to establish a duty for Plaintiff’s claims.
Plaintiff’s initial reply brief, she argues that the
Contract “supplies the duty.” (Doc. 129 at 31).
The Contract created a duty, according to Plaintiff, by its
requirement that M.H.M “provide comprehensive mental
health treatment to state inmates in accordance with all
applicable laws.” (Doc. 129 at 13). Plaintiff contends
that the contractual requirement of “comprehensive
mental health treatment” includes a suicide prevention
program, and that M.H.M failed to provide such a program.
(Id. at 14). In its Reply Brief, M.H.M responds that
Plaintiff’s argument constitutes a new contract theory
“found nowhere in her operative complaint, ” and
that the Court should not consider it. (Doc. 132). M.H.M
further argues this new theory is actually “contrary to
the express language” of the Contract. (Id.).
M.H.M.’s Reply Brief, Plaintiff filed a “Brief on
the Element of Duty” in which she argues that
M.H.M.’s duty “arises via statute by virtue of
legislative mandate – irrespective of any contract or
contract interpretation.” (Doc. 140 at 2). Plaintiff
then argues how the statute alters the substance of the
common law duty, rather than demonstrate how the statue (or
the common law) imposes a duty on M.H.M., given the
undisputed facts. For example, Plaintiff cites Section
6-5-484(a) of the Alabama Medical Liability Acts, which
states that a healthcare provider’s “duty to the
patient shall be to exercise such reasonable care” as
other similarly situated providers. (Id. at 4). She
also notes that Ala. Code § 6-5-548 mandates that the
plaintiff produce a "similarly situated health care
provider" expert to establish what the standard of care
is. Plaintiff argues that expert testimony is vital to define
the standard of care and determine whether it has been
breached. (Id. at 2 – 5).
arguments here largely presuppose the existence of a
duty. “Liability for a breach of the standard of care
depends, first, on the existence of a duty to the patient,
which, in turn, depends on the existence of a
physician-patient relationship creating the duty.”
Wilson v. Teng, 786 So.2d 485, 498
-99 (Ala. 2000). As for a patient-provider relationship,
Plaintiff argues this too is controlled by experts.
(Id. at 3, citing Wilson,
filed a Reply to Plaintiff’s “Brief on the
Element of Duty, ” pointing to Plaintiff’s
oscillating positions on the duty she alleges that M.H.M.
bore to Bolton. (Doc. 141). M.H.M. then underscores its
argument that summary judgment is due to be granted, given
the undisputed facts that no M.H.M. employee ever saw Bolton,
that Bolton was not on its caseload, and that the Contract
placed the duty to triage mental health issues solely on
judgment should be granted only if “there is no genuine
issue as to any material fact and the movant is entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). “If the party moving for summary judgment
fails to discharge the initial burden, then the motion must
be denied and the court need not consider what, if any,
showing the non-movant has made. [citation omitted] If,
however, the movant carries the initial summary judgment
burden . . ., the responsibility then devolves upon the
non-movant to show the existence of a genuine issue of
material fact.” Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).
“If the nonmoving party fails to make ‘a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof, ’ the
moving party is entitled to summary judgment.”
Clark, 929 F.2d at 608 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted).
deciding a motion for summary judgment, “[t]he
evidence, and all reasonable inferences, must be viewed in
the light most favorable to the nonmovant . . .”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003). However, “[i]f a
party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact
as required by Rule ...