R. DAVID PROCTOR, District Judge.
This 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.
This case arises out of an incident that took place on April 2, 2005,
In 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 2).
From 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:
In 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).
In Dr. 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).
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).
During 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).
From 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).
Walker, 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:
(Doc. # 46-13 at 1). Department Policy 19-25 also imposes a duty to report on ADMH employees:
(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." (Id.).
From 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.).
Walker 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.
Both 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).
Under Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party has met its burden, Rule 56 requires the non-moving party to go beyond the pleadings and — by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file — designate specific facts showing that there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("Anderson"). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249.
When faced with a "properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the party bearing the burden of proof at trial, she must come forward with at least some evidence to support each element essential to her case at trial. See Anderson, 477 U.S. at 252. "[A] party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248 (citations omitted).
Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. "Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative." Sawyer v. Sw. Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51).
"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "Essentially, the inquiry is `whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477 U.S. at 251-52); see also LaRoche v. Denny's, Inc., 62 F.Supp.2d 1366, 1371 (S.D. Fla. 1999) ("The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.").
After careful review, 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.
Title 42 U.S.C. § 1983 provides a cause of action against persons who, while acting under color of law, deprive another person of any right established by the Constitution. Plaintiff asserts that when Walker (while acting as an employee of ADMH) instructed Plaintiff to hit his roommate with the radio, he deprived Plaintiff of his "right to be free from mental or physical abuse and his right to reasonably safe conditions of confinement" under the due process clause of the Fourteenth Amendment. (Doc. # 47 at 11).
The Supreme Court in Youngberg v. Romeo first considered the substantive due process rights of the civilly committed under the Fourteenth Amendment. The Court established a mental patient's right to reasonably safe conditions of confinement, freedom from unreasonable bodily restraints, and minimally adequate training to ensure safety and freedom from restraint. 57 U.S. 307, 316-20 (1982). When an individual becomes institutionalized, he becomes "wholly dependent on the State." DeShaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 200 (1989). This dependence triggers the State's affirmative duty to protect and provide reasonably safe conditions for the institutionalized. Id. In comparing a State's related duty to hold convicted criminals in safe conditions, Youngberg confirmed that "[p]ersons who have been involuntarily
In the wake of Youngberg, circuit courts have disagreed over the appropriate standard for measuring the substantive due process rights of the civilly committed. Two competing tests have emerged: the professional judgment standard announced in Youngberg and the Eighth Amendment deliberate indifference standard. Plaintiff argues that Walker is liable under both standards. (Doc. # 54 at 2-5). While there may be room for the argument that something other than deliberate indifference applies to Plaintiff's Section 1983 claim, the Eleventh Circuit has stated that the substantive due process rights of the civilly committed are at least as extensive as the Eighth Amendment rights of the criminally institutionalized. See Lavender v. Kearney, 206 F. App'x 860, 863 (11th Cir. 2006). Accordingly, out of an abundance of caution, the court first examines the professional judgment standard and concludes that it does not apply to Walker, a non-professional. The court then applies the deliberate indifference standard to Walker's conduct and, after doing so, finds sufficient Rule 56 evidence for Plaintiff to proceed to trial on his Section 1983 claim.
In a unanimous decision, the Youngberg Court determined that a "decision, if made by a professional [defendant], is presumptively valid." Id. at 323. "[L]iability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Id. The Court defined a professional decision maker as "a person competent, whether by education, training or experience, to make the particular decision at issue." Id. at 323 n. 30. The Court drew a distinction between (1) "persons with degrees in medicine or nursing, or with appropriate training in areas such as psychology, physical therapy, or the care and training of the retarded," who are typically responsible for "[l]ong-term treatment decisions," and (2) "employees without formal training but who are subject to the supervision of qualified persons," and who normally make "day-to-day decisions regarding care." Id.
However, the Court did not discuss what standard applied to non professional defendants.
In Kyle K v. Chapman, the Eleventh Circuit defined nonprofessional decision makers as "direct care workers whose primary responsibility [was] carrying out the directions of the officials who determine patient care." 208 F.3d 940, 944 (11th Cir. 2000) (holding that nonprofessional defendants were entitled to qualified immunity on Section 1983 claim because plaintiffs had cited no case were "non-professionals. . .were held to have violated the rights alleged"). Walker's job as a Mental Health Worker at Partlow bears a strong similarity to the direct care workers in Kyle K and the residential service aids in Shaw. 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). Nothing in the Rule 56 record indicates that any of Walker's duties involved the type of discretion associated with the exercise professional judgment. Thus, the professional judgment standard does not apply to Walker because he was not a "professional" or a "decision maker." Instead, as demonstrated by the Third and Sixth Circuits, Walker's status as a nonprofessional subjects him to the deliberate indifference standard.
The Eleventh Circuit has not articulated any standard less than deliberate indifference for Section 1983 claims brought by the civilly committed. See Lavender, 206 F. App'x at 863 (civil commitment resident at a state-run facility was attacked by a fellow resident and brought a Section 1983 claim against facility officials, arguing they had violated his Youngberg due process rights because they were actually aware of a substantial risk to his safety). Lavender determined that "the due process rights of the involuntarily civilly committed are at least as extensive as the Eighth Amendment `rights of the criminally institutionalized.'" Id. (quoting Dolihite v. Maughon, 74 F.3d 1027, 1041 (11th Cir.1996)) (emphasis added). Indeed, the relationship between these groups of rights is so intertwined that "relevant case law in the Eighth Amendment context also serves to set forth the contours of the due process rights of the civilly committed." Dolihite v. Maughon, 74 F.3d 1027, 1041 (11th Cir.1996). "Accordingly, for an involuntarily civilly-committed plaintiff to establish a Section 1983 claim for violation of his due process rights, he must show that state officials were deliberately indifferent to a substantial risk to his safety." Lavender, 206 Fed. Appx. at 863 (quoting Purcell v. Toombs County, GA, 400 F.3d 1313, 1319 (11th Cir.2005)). Consistent with this precedent, the court applies the deliberate indifferent standard to Walker's conduct.
To establish deliberate indifference, Plaintiff must show that Walker "`(1) was objectively aware of a risk of serious harm; (2) recklessly disregarded the risk of harm; and (3) [that] this conduct was more than merely negligent.'" Id. (quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999)). More specifically, Plaintiff must show that Walker disregarded "a risk of harm of which he [was] actually aware." Id. (quoting Ray v. Foltz, 370 F.3d 1079, 1083 (11th Cir. 2004)).
Plaintiff asserts that "there is no requirement that Walker's conduct `shock[] the conscience." (Doc. # 47 at 25-27). But, the Eleventh Circuit has confirmed that "conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience shocking in a constitutional sense." Waddell v. Hendry Cty. Sheriff's Office, 329 F.3d 1300, 1305 (11th Cir. 2003) (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115 (1992)). While "the measure of what is conscience-shocking is no calibrated yard-stick," it is "only the most egregious official conduct [that] can be said to be arbitrary in the constitutional sense." Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 845, 847 (1998)).
Although it is a close call, the court finds sufficient Rule 56 evidence to support Plaintiff's claim that Walker was deliberately indifferent to a substantial risk to his safety. Plaintiff primarily argues that "[b]eing the instrumentality of that injury was foreseeably psychologically traumatic to [him], and also placed [him] at substantial risk of injury from a patient who outweighed him significantly, was 10 years younger, and had a documented history of physical aggression." (Doc. # 47 at 13). In addition to the risks of physical and psychological injury, Plaintiff asserts that Walker's conduct also (1) presented Plaintiff with a risk of disease through increased contact with his roommate's feces
First, as the Mental Health Worker assigned to R.G., Walker would have been objectively aware of a serious risk of harm to Plaintiff's safety due to R.G.'s documented record of physical aggression. Whether a "substantial risk of serious harm" exists is an objective standard. Purcell v. Toombs County, GA, 400 F.3d 1313, 1323 (11h Cir. 2005) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994) (stating that alleged deprivation must be "objectively, sufficiently serious")). To be sure, one of R.G.'s target behaviors was physical aggression. (Doc. # 46-3 at 3). 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). Walker also would have observed that R.G. "outweighed [Plaintiff] significantly" and was ten years younger. (Doc. # 47 at 13; 46-3 at 2-3). Compounded with the fact that Plaintiff was also receiving treatment for his disruptive and aggressive outbursts, there is sufficient Rule 56 evidence for a jury to determine that Walker was objectively aware of a substantial risk of harm to Plaintiff's safety when he incited a potential conflict between two patients with histories of physical aggression.
As to the second and third elements of the deliberate indifference test, a jury could reasonably conclude that Walker recklessly disregarded the objective, substantial risk to Plaintiff's physical safety because he set the attack in motion by giving Plaintiff the instruction to strike his roommate (and a jury could conclude that this was to avoid getting involved with R.G. himself). "Deliberate indifference is shown by establishing that the defendant had actual knowledge or awareness of an obvious risk to the plaintiff and failed to take steps to abate that risk." Felder v. Ala. Dep't of Corr., 2016 WL 3763232, at *5 (M.D. Ala. June 9, 2016). Here, the Rule 56 evidence indicates that not only did Walker fail to take steps to abate the substantial risk to Plaintiff of which he was actually aware, but he intentionally created that risk. Under the proper standard, a mere showing of negligence will not establish liability under Section 1983. Lavender, 206 Fed. Appx. at 863. Walker's instruction to Plaintiff to hit R.G. suggests a level of intentionality far surpassing negligence.
Moreover, a jury could reasonably find Walker's conduct to be conscience shocking in a constitutional sense. Waddell, 329 F.3d at 1305. Again, what is considered "conscience shocking" is "no calibrated yard-stick." Id. But, "[t]he conscience-shocking threshold is more quickly reached in cases where the victim is particularly vulnerable to abuse and is otherwise defenseless." M.S. ex rel. Soltys v. Seminole Cty. Sch. Bd., 636 F.Supp.2d 1317, 1323 (M.D. Fla. 2009) (considering a teacher's allegedly abusive conduct against children with preexisting mental and emotional disabilities). Walker instructed one mentally retarded individual to strike another with a radio, presumably to avoid getting involved in the disturbance himself. As a result, the Rule 56 record at least creates a genuine issue of material fact about whether Walker's conduct was conscience shocking.
The court fully recognizes that the primary risk of physical harm in this situation was to Plaintiff's roommate. After all, his roommate was the victim of the assault inflicted by Plaintiff. And, it is important to note that Plaintiff suffered no physical harm following Walker's instruction. (Doc. # 46-1 at 12). In fact, the only physical effect Plaintiff alleges is "[his] heart was pounding when [he] hit [his roommate]." (Id.). Apart from that claim, Plaintiff offers only an explanation of the physical harm that could have befallen him had his roommate decided to retaliate: "Assault in the head with a blunt instrument is substantially certain to cause serious injury, including brain damage, a fractured skull, or even death." (Doc. # 47 at 12-13). Other circuits have suggested that the assertion of a hypothetical risk of injury, without evidence that the risk actually materialized, is insufficient to justify liability under Section 1983. See Saunders v. Tourville, 97 Fed. Appx. 648, 649 (7th Cir. 2004) ("an inmate who suffers only a risk of physical harm has no compensable claim under the Eighth Amendment"). Nevertheless, the court is mindful that the deliberate indifference standard only calls for a substantial risk. Thus, it is at least possible for a jury to find that Walker was deliberately indifferent to a substantial risk to Plaintiff's physical safety.
For the reasons explained above, the Estate's motion for summary judgment is due to be denied with respect to Plaintiff's Section 1983 claim in Count One of the Complaint. As noted above, the Eleventh Circuit has stated in Lavender that the substantive due process rights of the civilly committed are at least as extensive as the Eighth Amendment rights of the criminally institutionalized. 206 F. App'x at 863. Although the Eleventh Circuit has not yet defined a lower standard for the civilly institutionalized, it may in the future. But here, the court need not venture a guess as to whether our Circuit will do so (or, for that matter, what the new standard would be). That is because the court finds that there is sufficient Rule 56 evidence for Plaintiff to avoid the swing of the Estate's summary judgment axe. The court will discuss this claim further with the parties during pretrial proceedings.
In Counts Two and Eight of his Complaint, Plaintiff asserts violations of Section 504 of the Rehabilitation Act and Title II of the ADA under the theories of discrimination and harassment. (Doc. # 1 at ¶¶ 34-49, 71-74). Because the two statutes have overlapping standards of proof, the two are often analyzed together. Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability. . .shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance." See 29 U.S.C. § 794(a). Similarly, Title II of the ADA mandates that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.
To establish discrimination under either statute, a plaintiff must show "(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability." Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007).
Here, there is no dispute that Warren is "disabled" as defined by both statutes, that ADMH is the recipient of federal funds as required by the Rehabilitation Act, or that ADMH is considered a "public accommodation" under the ADA. (Docs. # 46 at 15; 41 at 8). Rather, ADMH argues that Plaintiff has not presented substantial evidence indicating that he has suffered any denial of equal treatment, exclusion from programs, or other form of discrimination on the basis of his disability. (Docs. # 41 at 9, 14; 50 at 9). The court agrees and finds that ADMH is entitled to summary judgment on Counts Two and Eight.
Plaintiff argues that "ADMH deprived [Plaintiff] of the benefit of his treatment for physical aggression" by exposing him to Walker, a mental health worker with a known history of patient assault, despite the Facility Director's knowledge of Walker's history. (Doc. # 46 at 29). An element of Plaintiff's burden is showing that ADMH intended to discriminate against Plaintiff on the basis of his disability. In accessing a Section 504 claim under the Rehabilitation Act, Plaintiff asserts that deliberate indifference is the appropriate standard for defining intentional discrimination. (Id. at 22) (citing Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 347-48 (11th Cir. 2012).
Within the context of the Rehabilitation Act, the Eleventh Circuit has identified deliberate indifference where "the defendant knew that harm to a federally protected right was substantially likely and . . . failed to act on that likelihood." Leise, 701 F.3d at 344. Deliberate indifference requires something more than gross negligence; it requires that the "indifference be a deliberate choice." Id.
According to Liese, Title IX case law examining discriminatory intent under the deliberate indifference standard is instructive. Id. (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)). In determining organizational liability, the court looked to Gebser, which requires "the deliberate indifference of `an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [organization's] behalf [and who] has actual knowledge of discrimination in the [organization's] programs and fails to adequately respond." Id. at 349 (quoting Gebser, 524 U.S. at 290) (emphasis in original). The court further defined an "official" as "someone who enjoys substantial authority within an organization's chain of command so that, when dealing with the complainant, the official had complete discretion at a `key decision point' in the administrative process." Id. at 350 (quoting Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1256-57 (11th Cir.2010)). The "key decision point" language ensures that review by a higher authority is "not part of the entity's ordinary decision-making process." Id.
Defendant incorrectly argues that Plaintiff has failed to identify an "`official' who is vested with `substantial supervisory authority within an organization's chain of command.'" (Doc. # 50 at 8). To the contrary, Plaintiff points to Facility Director Levi Harris who issued Walker his letter notifying him of his three-week suspension following the allegation of patient abuse levied against him in February 2004. (Docs. # 46 at 24; 46-15 at 14). The Facility Director of Partlow is surely an individual "who enjoys substantial authority" within ADMH's "chain of command" with respect to Partlow. See Liese, 701 F.3d at 350. Harris also likely had "complete discretion at a `key decision point'" in the disciplinary process. Id. In the suspension letter issued to Walker, Harris states, "After carefully considering all information presented during your pre-disciplinary conference. . .as well as considering information provided during a follow-up conference with you it is my decision to suspend you for three weeks in lieu of dismissal based on your violation of DMH/MR Policy # 19-10." (Doc. # 46-15 at 14). Harris had already conducted two preliminary forms of review before making the decision to suspend Walker, suggesting that this was the key decision point in the administrative process. Indeed, review from a higher authority was not contemplated because a final determination by the Facility Director is the highest form of review. Thus, Plaintiff has identified an official vested with substantial supervisory authority.
Plaintiff's claim nevertheless fails because he has presented no facts indicating that ADMH's choice to allow Walker to return to work was solely because of Plaintiff's disability. Even if ADMH's choice to retain Walker's employment despite his history of patient abuse did ultimately impact Plaintiff's treatment for his aggression (and, to be clear, Plaintiff has not presented substantial evidence that it did), Plaintiff cannot show that ADMH did so on the basis of Plaintiff's disability. Discrimination under Section 504 of the Rehabilitation Act requires some intent on the part of the Defendant. While it is true that termination is the recommended disciplinary action under Policy # 19-10 (Doc. # 46-13 at 2), it is not sufficient to allege (as Plaintiff has here) that ADMH's actions were ill-advised or were against the Department's policies. Rather, Plaintiff must show that ADMH acted with the mindset of depriving Plaintiff the benefit of his treatment plan. See Liese, 701 F.3d at 344 (explaining that the indifference must be a "deliberate choice"). Because no reasonable jury could conclude that ADMH intentionally deprived Plaintiff of the benefit of his treatment for physical aggression by allowing Walker to return to work, ADMH is entitled to summary judgment.
Furthermore, to the extent that Plaintiff may be asserting that ADMH failed to prevent the incident in this case, that argument is also without merit. Again, Plaintiff must show that ADMH was deliberately indifferent, meaning that it "knew that harm to a federally protected right was substantially likely and. . .failed to act on that likelihood." Leise, 701 F.3d at 344. There is simply no Rule 56 facts showing that ADMH failed to act. After Walker's prior misconduct, ADMH suspended him for three weeks. (Doc. # 46-15 at 14). But even more critically, "it cannot be said that [ADMH was] deliberately indifferent because [it] did not make a deliberate choice not to take any action." L.L. ex rel. Linda L. v. Tuscaloosa City Bd. of Educ., 2013 WL 169612, at *7 (N.D. Ala. Jan. 15, 2013). ADMH is due to be granted summary judgment on this claim.
In his Complaint, Plaintiff alleges that he was "subjected to unlawful harassment by Walker, an employee of ADMH." (Doc. # 1 at ¶ 71). He does not, however, argue in support of this claim in his Response to ADMH's Motion for Summary Judgment. Plaintiff cannot simply rely on his Complaint to create a jury question. See Anderson, 477 U.S. at 252. Rather, he must come forward with some factual evidence indicating that ADMH performed some intentional action constituting harassment solely because of Plaintiff's disability. No reasonable jury could find in favor of Plaintiff on his harassment claim. Consequently, ADMH is due to be granted summary judgment on this claim.
Plaintiff next asserts various state law claims against the Estate, including the tort of outrage, assault, negligence, and wantonness. (Doc. # 1). Additionally, Plaintiff alleges three other claims disguising different theories of negligence as independent causes of action: Noncompliance with Ministerial Duties (Count Three); Combining and Concurring (Count Four); and Violations of Nondiscretionary Rules (Count Five). (Id.). The Estate seeks summary judgment on each of these causes of action because they do not state actionable claims under Alabama law. (Doc. # 39 at 9-11). The court agrees and concludes summary judgment in favor of the Estate on Counts Three, Four, and Five is proper.
In Count Three for "Noncompliance with Ministerial Duties," Plaintiff alleges that Walker "negligently and/or wantonly failed to follow [the] policies and procedures [of the Department]" and "failed to use due care in carrying out his responsibilities." (Doc. # 1 at ¶ 51). As a result, Walker's conduct allegedly "constituted violations of ministerial rather than discretionary duties." (Id.). But, the Estate correctly argues that "Noncompliance with Ministerial Duties" is not a "cognizable claim under Alabama law." (Doc. # 39 at 10; Doc. # 39-4 at 41). In support of its argument, the Estate cites Harris v. Gurley, which noted that "there is no authority to support the proposition that Alabama recognizes an affirmative cause of action for noncompliance with ministerial duties and checklists." 2010 WL 11613800, at *19 (N.D. Ala. March 25, 2010). Thus, the Estate is entitled to summary judgment on the claim in Count Three.
Similarly, the claim asserted in Count Four for "Combining and Concurring" fails to state a claim recognized under Alabama law. Plaintiff alleges that the actions of all Defendants "combined and concurred to cause [him] harm." (Doc. # 1 at ¶ 58). While the court acknowledges "combining and concurring" as a theory of negligence liability commonly given in a jury instruction, it finds no authority supporting its viability as an independent cause of action. Accordingly, the court finds the Estate is entitled to summary judgment on Count Four.
Plaintiff's claim in Count Five for "Violations of Nondiscretionary Rules" suffers the same fate. Plaintiff states that "Walker violated ADMH rules and regulations when he abused, exploited, and mistreated [Plaintiff]. He also violated rules and regulations by failing to report his abuse." (Id. at ¶ 63). Again, the court is unable to find any law confirming that "Violations of Nondiscretionary Rules" is a recognized cause of action in the state of Alabama; therefore, the Estate is entitled to summary judgment.
Furthermore, two statements in Plaintiff's opposition brief appear to impliedly concede that the theories asserted in Counts Three, Four, and Five are encompassed in his claims for "assault, negligence, wantonness, and outrageous conduct." (Doc. # 47 at 8). (1) "[T]he motion for summary judgment analysis is much more direct: did Walker's conduct, as alleged and supported in the attached record, amount to assault, negligence, wantonness, and outrage under state law." (Id. at 28). (2) "A fair reading of the Complaint gave Walker full notice that he was being sued for violating 42 U.S. § 1983, negligence, wantonness, assault and outrage." (Id. at 29). Plaintiff simply has not presented any Rule 56 evidence indicating that Noncompliance with Ministerial Duties, Combining and Concurring, or Violations of Nondiscretionary Rules are independent causes of action under Alabama law or that they were intended to function as stand alone claims in his Complaint. Because Counts Three, Four, and Five of Plaintiff's Complaint do not state actionable claims against Walker, the Estate is entitled to summary judgment on these claims.
In Count Six, Plaintiff alleges that Walker's conduct in instructing him to hit his roommate was "so atrocious as to be outside the bounds of common decency in a civilized society."
The Estate first contends that Plaintiff has presented no evidence that Walker acted "intentionally or recklessly" in that he "intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his conduct." (Doc. # 39 at 12) (citing Harris v. McDavid, 553 So.2d 567, 569-70 (Ala. 1989). Second, the Estate argues that Plaintiff has failed to allege "emotional distress of such a magnitude that no reasonable person could be expected to endure it." (Doc. # 39 at 12). Finally, it insists that Walker's conduct is not sufficiently outrageous to establish a tort of outrage claim. (Id. at 13). The court agrees and grants summary judgment in favor of the Estate.
As to the first element, Plaintiff has provided the court with no Rule 56 evidence indicating that Walker intentionally or recklessly acted with the purpose of inflicting emotional harm on Plaintiff. Instead, Plaintiff points to a list of Department policies that Walker supposedly violated as well as Partlow's alleged history of staff-brutality. (Doc. # 47 at 31). But these have no bearing on whether Walker possessed the intent to cause severe emotional distress. Even if Walker knew his actions were in violation of Department policies, it does not necessarily follow that he knew (and intended) those violations would cause Plaintiff to suffer severe emotional distress. Moreover, Plaintiff has not suggested that any pattern of staff-brutality that may have existed at Partlow prior to the events giving rise to this case influenced Walker's intent with respect to Plaintiff. Thus, Plaintiff has not demonstrated that Walker acted recklessly or with the intent to inflict severe emotional distress upon him.
Second, Walker's conduct, though ridiculous (and possibly deliberately indifferent), was not "extreme and outrageous" as defined by Alabama law on the tort of outrage. The tort of outrage is a highly focused cause of action, meaning that it "does not recognize recovery for `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'" Little v. Robinson, 72 So.3d 1168, 1172 (Ala. 2011) (quoting American Road Service Co. v. Inmon, 394 So.2d 361, 364-65 (Ala. 1980)). Typically, Alabama courts have limited its application to three contexts: "(1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So.2d 901 (Ala.1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133 (Ala.1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So.2d 322 (Ala.1989)." Little, 72 So. 3d at 1172. However, the Supreme Court of Alabama has recently explained that the tort of outrage applies "against a family physician who, when asked by a teenage boy's mother to counsel the boy concerning his stress over his parents' divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy's drug addiction." Id. at 1173 (citing O'Rear v. B.H., 69 So.3d 106 (Ala. 2011)). The court reads O'Rear as a logical extension of cases like Busby, involving egregious sexual harassment executed with the purpose of inflicting severe emotional harm. Viewing the Rule 56 record within these narrowly defined categories, Walker's conduct simply does not approach the high threshold for liability contemplated by the tort.
Another significant failing in Plaintiff's tort of outrage claim is that he did not suffer "emotional distress so severe that no reasonable person could be expected to endure it." Plaintiff has only established that "[his] heart was pounding when [he] hit him." (Doc. # 46-1 at 12; 39-1 at 12). In terms of lasting effects, Plaintiff to this day gets "upset" and sometimes cries talking about the incident (Id.) He still tells his mother, "I feel sorry that I hit [R.G.]." (Doc. # 46-16 at 5, 28). At most, Plaintiff has expressed guilt about the event. Because Plaintiff cannot show a genuine issue of material fact regarding his tort of outrage claim, the Estate is entitled to summary judgment.
Plaintiff alleges that "Walker physically assaulted [him], mistreated him and exploited him by instructing him to assault another mental health patient." (Doc. # 1 at ¶ 69). In support of this allegation, Plaintiff presents the court with an Alabama criminal statute stating that "[a] person is legally accountable for the behavior of another involving a criminal offense if the person `procures, induces or causes' the other person to commit the offense or `aids or abets' the other person in committing the offense." (Doc. # 47 at 32; Ala. Code. § 13A-2-23 (1975)). This is a civil case. Because no criminal charges are at issue, this statute is irrelevant.
The proper definition of assault in a civil case is "an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented." Western Union Tel. Co. v. Hill, 150 So. 709 (Ala. Ct. App. 1933). Words cannot constitute an assault, unless those words are paired with some show of force leading the victim to believe the threat will be carried out. Brassfield v. Jack McLendon Furniture, Inc., 953 F.Supp. 1438, 1459 (M.D. Ala. 1996) (citing Ex parte Hammett, 66 So.2d 600, 601 (1953)).
Here, Plaintiff has not produced facts indicating a genuine dispute as to whether Plaintiff was assaulted. The facts clearly indicate that Walker gave Plaintiff a verbal instruction to hit his roommate on the head with a radio—nothing more.
Finally, Plaintiff alleges that Walker "acted negligently and/or wantonly in [his] care of [Plaintiff] while he was a patient at Partlow. [Walker] had a duty to protect [Plaintiff] from harm and failed in this duty."
Wantonness "requires conduct undertaken with knowledge of the existing conditions and with consciousness that injury will likely or probably result." Griffin v. Modular Transp. Co., 2014 WL 896627, at *2 (N.D. Ala. Mar. 6, 2014). However, it is not a heightened level of negligence. See McCutchen v. Valley Home, Inc., 100 F.Supp.3d 1235, 1239 (N.D. Ala. 2015). Rather, it is "an entirely different tort concept." Id. Negligence, on the other hand, is "usually characterized as an inattention, thoughtlessness, or heedlessness, a lack of due care; whereas wantonness is characterized as an act which cannot exist without a purpose or a design." Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So.2d 142, 145 (Ala.1987).
Here, the Rule 56 evidence supports the inference that Walker acted wantonly in his care of Plaintiff because his conduct rose above mere negligence. Similar to the court's analysis of Plaintiff's Section 1983 claim above, Walker's instruction to Plaintiff to hit his roommate involved an awareness of both patients' documented histories of physical aggression. He acted with knowledge of their existing conditions and instructed Plaintiff to hit R.G., despite the objective risk of injury to one or both patients. His conduct involved a higher level of consciousness than simple "inattention" or thoughtlessness." Id. Moreover, "[w]antonness is a question of fact for the jury, unless there is a total lack of evidence from which the jury could reasonably infer wantonness." Id. Because a jury could reasonably find that Walker acted wantonly in his care of Plaintiff, the Estate's motion for summary judgment is due to be denied in part with respect to Plaintiff's wantonness claim.
For the reasons explained above, Defendant ADMH is due to be granted summary judgment on all of Plaintiff's claims. The Estate's motion for summary judgment is due to be granted in part and denied in part. All of Plaintiff's claims against the Estate, except for his Section 1983 claim in Count One and his Alabama Wantonness claim in Count Nine, are due to be dismissed. An Order consistent with this Memorandum Opinion will be entered.
