D. S. v. County of Montgomery, State of AL

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 3, 2008
No. 07-15671 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00396-CV-T-N
D.S.,
by and through his mother and next friend, Tamella
Gail Stinson,
Plaintiff-Appellee,
TAMELLA GAIL STINSON,
Plaintiff,
versus
COUNTY OF MONTGOMERY, STATE OF ALABAMA,
DARRYL ANDREWS,
MILTON WEBB,
CHARLIE TERRELL,
Defendants-Appellants,
BRUCE HOWELL, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(July 3, 2008)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
This case arises from the alleged rape of D.S., who at the time was eleven
years old and a detainee at the Montgomery County Youth Facility (“MCYF”), by
a fellow juvenile detainee. D.S., through his mother and then a guardian ad litem,
brought suit against Montgomery County, Alabama (the “County”), which operates
MCYF, and detention officers Milton Webb, Charlie Terrell, and Darryl Andrews.
D.S. asserted claims under 42 U.S.C. § 1983 and various state law tort theories.
Webb, Terrell, Andrews, and the County brought this interlocutory appeal
from the district court’s order denying in part their motion for summary judgment
based on qualified immunity and Alabama state-agent immunity. After review, we
affirm in part and reverse in part.1
1
“We review de novo the district court’s disposition of a summary judgment motion
based on qualified immunity, resolving all issues of material fact in favor of Plaintiffs and then
answering the legal question of whether Defendants are entitled to qualified immunity under that
version of the facts.” West v. Tillman, 496 F.3d 1321, 1326 (11th Cir. 2007). We review de
novo the district court’s rulings on state-agent immunity. See Tinker v. Beasley, 429 F.3d 1324,
1329 (11th Cir. 2005); Taylor v. Adams, 221 F.3d 1254, 1257 (11th Cir. 2000). “Even though
the ‘facts,’ as accepted at the summary judgment stage of the proceedings, may not be the
2
I. BACKGROUND
A. MCYF Juvenile Detention Facility
MCYF is a juvenile detention facility for young people aged seven to
seventeen. Defendants Webb, Terrell, and Andrews are juvenile detention officers
at MCYF. Detainees at MCYF are assigned to one of various wings of the facility
based on their sex and age, although physical size and gang affiliation may also
affect placement.
On April 14, 2002, D.S. was admitted to MCYF on charges of property theft
and domestic violence. Because he was an eleven year old male, D.S. was
assigned to B-wing, which generally houses boys under the age of fifteen. MCYF
Detention Supervisor Barbara Cabble met with D.S. during the intake process.
Because D.S. was charged with hitting his mother, Cabble directed the MCYF staff
members to “keep a close eye” on D.S. Cabble issued this directive because she
was concerned that D.S. might hurt another detainee.
Detainees at MCYF are assigned to single-person cells that are locked down
at night. During the day, detainees engage in various activities, such as attending
classes, going to court, having visitation, going to the doctor, or eating in the
‘actual’ facts of the case, our analysis for purposes of summary judgment must begin with a
description of the facts in the light most favorable to the plaintiff.” Davis v. Williams, 451 F.3d
759, 763 (11th Cir. 2006) (quotation marks and citations omitted).
3
cafeteria. Each wing has two dayrooms, thirty feet square, where detainees may
watch television, play cards or board games, or read. Between the two dayrooms
on B-wing is a control room with glass windows, from which officers monitor the
detainees in the two dayrooms.
Officers monitor detainees by observing them through the windows in the
control room, listening through the windows, and listening to audio amplification
devices in the control room. Officers also periodically enter the dayrooms to
monitor detainees there. MCYF’s security manual provides that “[n]o detainee is
to be left unsupervised,” and that if an officer does leave a detainee unsupervised,
such action “will be considered reasonable grounds for termination of
employment.”
B. Events of April 18, 2002
MCYF has three detention wings, and its maximum detainee capacity is
fifty-two juveniles. On April 18, 2002, there were twenty-nine detainees at
MCYF.
Four to six detainees were in B-wing, including D.S. and C.P., the fifteen
year old male who raped D.S. C.P. was detained on charges of first-degree
robbery. In April 2002, C.P. was 5 feet 6 inches tall and weighed 150 pounds,
while D.S. was 5 feet 4 inches tall and weighed 220 pounds.
4
D.S. began having problems with C.P. shortly after being admitted to
MCYF. During the four-day span from April 14-18, 2002, C.P. had thrown shoes
at D.S. on several occasions, and had punched D.S. in the back. D.S. testified that
a staff member had witnessed one of the shoe-throwing incidents and D.S. had
reported the punching incident. D.S. did not remember which staff member saw
C.P. throw the shoe at him or which one took his report on the punching, although
D.S. recalled that they were regular staff members assigned to B-wing.
D.S. testified that some time before April 18, 2002, B-wing staff “were
informed that [C.P.] was threatening to have sex with a fourteen . . . year old white
boy in B-Wing” and that in response MCYF staff told C.P. “that he better stop
threatening to have sex with the white boys.” However, D.S. did not remember:
(1) the fourteen year old’s name, (2) which staff member or members received the
information about C.P.’s alleged threats, or (3) the name of the staff member who
told C.P. that he should stop the threats.
In the late morning on April 18, 2002, D.S. and C.P. were alone in one of the
B-wing dayrooms. This dayroom had a single bathroom which was next to the
control room. The wall between the bathroom and the control room had a small
plexiglass window that was approximately eight inches by sixteen inches. The
detainees frequently cover the window with toilet paper so that the officers cannot
5
observe them while they are in the bathroom, and the window was so obscured on
April 18, 2002. MCYF has a written policy that only one detainee is permitted in
the bathroom at a time.
On the morning of April 18, 2002, the B-wing duty log shows that
defendants Webb, Terrell, and Andrews were the officers on duty in MCYF’s B-
wing. D.S. and C.P. were alone in the dayroom playing cards during this late-
morning period.2 D.S. also testified that two officers were in the control room.
D.S. identified the two officers as Webb, a defendant here, and Vincent Calhoun, a
MCYF detention officer who is not a defendant in this case.
However, the parties agree that Calhoun was not working at MCYF on April
18, 2002, and that defendants Webb, Terrell, and Andrews were on duty. The two
officers were next to the window on the far side of the control room (the one which
faced the other dayroom). According to D.S., the officers were “reading
newspapers and watching TV,” and this was consistent with the officers’ normal
practice, which was to be less attentive when only a few detainees were present in
a wing.
After playing cards with C.P. for about one hour, D.S. went to the bathroom.
According to D.S., about a minute later, C.P. entered the bathroom with “his
2
The other B-wing detainees were in the other dayroom.
6
private out” and grabbed D.S. Despite D.S.’s attempts to fight him off, C.P. raped
D.S. During the attack, D.S. twice called for help from the staff “as loud as I
could.” The first time D.S. said, “Staff, that man is messing with me”; the second
time, he called out, “Staff.” However, no one came. After about five minutes, C.P.
stopped and let D.S. go.
D.S. left the bathroom and started to go knock on the window to the control
room. C.P. grabbed D.S., threw him in the corner, and told D.S. not to tell the
MCYF staff what had happened or C.P. would beat him. D.S. sat down at a table
in the dayroom. D.S. looked into the control room and saw the same two officers
he had seen earlier. One of the officers was still reading a newspaper, and the
other appeared to be doing something on a computer. Neither looked up from what
they were doing. After a few minutes, the two officers in the control room came
and escorted D.S. and C.P. to lunch. MCYF’s B-wing duty log reflects that this
occurred at 11:40 a.m.
The parties agree that D.S. subsequently informed MCYF staff that he had
been raped by C.P.3 Officers Joseph White and Marion Waver, who was the
MCYF Detention Supervisor, took D.S. to receive medical treatment. D.S. then
3
The parties disagree as to which staff members D.S. told about the rape and the time at
which he did so, specifically, whether it occurred during the 7 a.m. to 3 p.m. day shift or around
6 p.m. during the 3 p.m. to 11 p.m. evening shift. Because this appeal does not involve D.S.’s
failure-to-provide-prompt-medical-care claim, we need not review that evidence.
7
went to the police station and told an officer there what had happened to him.
D.S. was examined at a rape crisis center on the evening of April 18, 2002
and by a doctor the next day. The doctor testified that his examination revealed a
“significant” rectal tear and evidence indicating that D.S. had been sodomized on
April 18, 2002.
C. Court Proceedings
D.S., through his mother and later a court-appointed guardian ad litem,
brought this lawsuit against the County and officers Webb, Terrell, and Andrews.4
D.S. alleged that the defendants are liable under § 1983 for violating his Fourteenth
Amendment due process rights through their deliberate indifference to detention
conditions that posed a substantial risk of serious harm to him. D.S. also alleged
that the defendants are liable under Alabama law for negligence, recklessness, and
wantonness.
Defendants moved for summary judgment, asserting qualified immunity as
to the federal § 1983 claim and Alabama state-agent immunity as to the state
claims. The district court granted summary judgment to the County as to D.S.’s
4
D.S. originally sued MCYF Juvenile Court Administrator Bruce Howell and Detention
Director Jack Hunter, but later consented to Howell and Hunter being dismissed with prejudice.
D.S. also originally sued Mason, but the district court granted Mason summary judgment as to
all D.S.’s claims. D.S. did not cross-appeal the district court’s grant of summary judgment to
Mason and, therefore, we do not address any of the claims against Mason.
8
federal claim, but denied summary judgment to Webb, Terrell, and Andrews
(collectively, the “Officers”), and also permitted D.S.’s state law claims against the
County to proceed. The Officers and the County filed this interlocutory appeal.
They argue that the district court erred in denying them qualified immunity and
Alabama state-agent immunity.
II. QUALIFIED IMMUNITY
The defense of qualified immunity “offers complete protection for
government officials sued in their individual capacities if their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.
2002) (quotation marks and citation omitted). A government official claiming
qualified immunity must first establish that he was acting within his discretionary
authority. Cottone v. Jenne, 326 F.3d 1352, 1357-58 (11th Cir. 2003). If so, the
plaintiff bears the burden of showing that qualified immunity is inappropriate. Id.
at 1358. A two-part test ensues: First, the court must determine “whether the
plaintiff’s allegations, if true, establish a constitutional violation.” Vinyard, 311
F.3d at 1346 (quotation marks and citations omitted). Second, if under the
plaintiff’s version of the facts a constitutional violation did occur, “the next . . .
step is to ask whether the right was clearly established.” Id. (quotation marks and
9
citation omitted).
There is no dispute in this case that the Officers were acting within their
discretionary authority. Hence, we turn to whether D.S. has alleged a violation of
his constitutional rights.
D.S. alleges that the Officers’ conduct violated D.S.’s Fourteenth
Amendment right to be protected from the violence of fellow detainees. This
Court has held that “[a] prison official’s deliberate indifference to a known,
substantial risk of serious harm to an inmate violates the Fourteenth Amendment.”
Cottone, 326 F.3d at 1358 (quotation marks, citation, and brackets omitted).5 To
prove such a violation, a plaintiff must show that (1) an objectively substantial risk
of serious harm existed, (2) the defendant official was subjectively aware of that
risk, (3) the official responded to the risk in an objectively unreasonable way, and
(4) the official’s disregard of the risk caused the plaintiff injury. Id. (citing Farmer
v. Brennan, 511 U.S. 825, 834, 844-45, 114 S. Ct. 1970, 1977, 1982-83 (1994);
Marsh v. Butler County, 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc)).
With regard to the defendant official’s subjective awareness of the risk, “the
5
Because D.S. was in a juvenile detention facility on criminal charges rather than
following a criminal conviction, the deliberate indifference standard arises from the Fourteenth
Amendment’s Due Process Clause instead of the Eighth Amendment’s Cruel and Unusual
Punishment Clause. See Ingraham v. Wright, 430 U.S. 651, 671 n.40, 97 S. Ct. 1401, 1412 n.40
(1977). However, “the standard for providing basic human needs to those incarcerated or in
detention is the same under both the Eighth and Fourteenth Amendments.” Marsh v. Butler
County, 268 F.3d 1014, 1024 n.5 (11th Cir. 2001) (en banc).
10
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”
Purcell ex rel. Estate of Morgan v. Toombs County, 400 F.3d 1313, 1320 (11th
Cir. 2005) (quoting Farmer, 511 U.S. at 837, 114 S. Ct. at 1979). Moreover, the
deliberate indifference standard is not to be confused with a negligence standard,
as this Court has explained:
The plaintiff must prove that the official had subjective knowledge of
a risk of serious harm and disregarded that risk by conduct that
constituted more than mere negligence. Deliberate indifference
requires that the defendant deliberately disregard a strong likelihood
rather than a mere possibility that the . . . harm will occur.
Gish v. Thomas, 516 F.3d 952, 954 (11th Cir. 2008) (quotation marks, citations,
and brackets omitted) (emphasis added).
The district court held that D.S. had set forth a sufficient constitutional
violation. The district court apparently acknowledged that the Officers may have
been unable to predict that C.P. would try to rape D.S, but nevertheless held that
the Officers were deliberately indifferent to D.S.’s welfare because they “grossly
and inexcusably failed to meet” their responsibility to supervise and protect D.S.
while he was in their custody. The district court reasoned that the Officers had
failed in their supervisory and protective duty by (1) failing to prevent C.P. from
following D.S. into the bathroom, (2) not removing the toilet paper that obscured
11
their view through the eight by sixteen inch window between the bathroom and the
control room; (3) failing to respond to D.S.’s cries for help, and (4) reading the
newspaper or working on a computer instead of observing the detainees.
On appeal the Officers argue that, in so holding, the district court improperly
applied a negligence (or gross negligence) standard instead of the more stringent
subjective-awareness standard required to establish deliberate indifference. We
agree. Although the evidence taken in the light most favorable to D.S. may
perhaps indicate that the Officers were negligent, or even grossly negligent, it does
not satisfy the deliberate indifference standard.
There is simply insufficient evidence to create a factual issue as to whether
the Officers were subjectively aware of, and were deliberately indifferent to, a
substantial risk of serious harm to D.S. As of April 2002, detainee-on-detainee
violence was “very rare” at MCYF, and the facility’s Detention Director and
Juvenile Court Administrator each testified that before April 18, 2002, no detainee
had complained of being sexually assaulted while at MCYF. Moreover, C.P. had
no history of sexual assault. Although D.S. testified that “staff assigned to
supervise B-Wing” were aware that C.P. had thrown shoes at D.S. and punched
him in the back, and that C.P. had threatened to have sex with another unidentified
detainee, D.S. did not recall the names of the staff members who had this
12
information, and therefore has not countered the three defendant Officers’ denials
that they knew of these events. Furthermore, D.S. also has not countered the
Officers’ testimony that D.S. never told them that he feared he might be harmed, or
sexually assaulted, by another detainee.
D.S. did testify that he yelled for help from the staff when C.P. entered the
bathroom, and again during the rape, and that the Officers did not respond. The
Officers denied hearing any calls for help, but acknowledged that had they
occurred, they would have heard them. Thus, in the light most favorable to D.S.,
the evidence reveals that D.S. did call for help, and the Officers did hear the calls.
However, D.S. testified that he only yelled, “Staff, that man is messing with me,”
and then, a moment later, “Staff.” Given that: (1) the Officers did not know about
the prior shoe-throwing and punch by C.P. against D.S., or that D.S. feared C.P.;
(2) detainee-on-detainee violence at MCYF was a rarity; and (3) the Officers could
not see what was going on in the bathroom (they denied seeing anything, and even
D.S. testified that the window was covered with toilet paper), D.S.’s mere general
calls for staff assistance and assertion that C.P. was “messing with” him were not
enough to inform the Officers that D.S. faced a substantial risk of serious harm.6
6
D.S. contends, and the district court held, that the Officers’ failure to remove the toilet
paper so that they could see into the bathroom supports a finding of deliberate indifference. But
while admittedly that course of action would have been prudent under the circumstances, it does
not establish the element of subjective knowledge on the Officers’ part of a substantial risk of
13
Thus, the Officers’ failure to render assistance to D.S., while perhaps negligent,
does not rise to the level of deliberate indifference. There is no evidence of any
prior sexual assaults at MCYF, much less evidence of one occurring in the
bathroom.
Consequently, even under D.S.’s version of the events, D.S. has not
demonstrated a constitutional violation. The Officers are entitled to qualified
immunity as to D.S.’s § 1983 claims against them.
III. STATE-AGENT IMMUNITY
In addition to his § 1983 claim, D.S. asserts claims of negligence,
recklessness, and wantonness under Alabama law. Whereas D.S.’s § 1983 claim
was premised only on the defendants’ alleged failure to protect him from a
substantial risk of serious harm, his state law claims rely on three theories of
wrongful conduct: (1) the defendants’ failure to protect D.S. from harm; (2) their
decision to place D.S. in MCYF’s general detention population; and (3) their
failure to provide D.S. with prompt medical care following the rape.
With respect to D.S.’s state law claims, the Officers and the County argue
that they are entitled to summary judgment on the basis of Alabama state-agent
serious harm, especially given that no prior sexual assaults had occurred at MCYF.
14
immunity.7 We first discuss the types of immunity available under Alabama law
and then apply that law to the facts of this case.
A. Alabama Law
The doctrine of state-agent immunity “protects state employees, as agents of
the State, in the exercise of their judgment in executing their work
responsibilities.” Ex parte Hayles, 852 So. 2d 117, 122 (Ala. 2002). This doctrine,
which derives from provisions of the Alabama Constitution, had formerly turned
on whether the defendant was engaged in a discretionary function. See, e.g.,
DeStafney v. Univ. of Ala., 413 So. 2d 391, 392-95 (Ala. 1982). However, the
Alabama Supreme Court reformulated the state-agent immunity rule in Ex parte
Cranman, 792 So. 2d 392, 405 (Ala. 2000).8 Cranman held that state agents are
entitled to immunity for conduct that falls into one or more of five enumerated
categories, as follows:
A State agent shall be immune from civil liability in his or her
personal capacity when the conduct made the basis of the claim
against the agent is based upon the agent’s
(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a
department or agency of government, including, but not limited to,
7
Because D.S.’s claims against the County rest solely upon a respondeat superior theory,
the County argues correctly that if the Officers are entitled to state-agent immunity, it will
likewise be immune. See City of Crossville v. Haynes, 925 So. 2d 944, 954 (Ala. 2005).
8
Although Cranman was a plurality decision, the Alabama Supreme Court adopted the
Cranman immunity test in Ex parte Butts, 775 So. 2d 173, 177-78 (Ala. 2000).
15
examples such as:
(a) making administrative adjudications;
(b) allocating resources;
(c) negotiating contracts;
(d) hiring, firing, transferring, assigning, or supervising
personnel; or
(3) discharging duties imposed on a department or agency by statute,
rule, or regulation, insofar as the statute, rule, or regulation prescribes
the manner for performing the duties and the State agent performs the
duties in that manner; or
(4) exercising judgment in the enforcement of the criminal laws of the
State, including but not limited to, law-enforcement officers’ arresting
or attempting to arrest persons[, or serving as peace officers under
circumstances entitling such officers to immunity pursuant to § 6-5-
338(a), Ala. Code]; or
(5) exercising judgment in the discharge of duties imposed by statute,
rule, or regulation in releasing prisoners, counseling or releasing
persons of unsound mind, or educating students.
Cranman, 792 So. 2d at 405, modified by Hollis v. City of Brighton, 950 So. 2d
300, 309 (Ala. 2006). Categories three and four are at issue here.
Cranman’s above category four, as modified by Hollis, incorporates
Alabama Code § 6-5-338(a), which specifically governs the immunity afforded
Alabama peace officers. See Hollis, 950 So. 2d at 307-09. Section 6-5-338(a), “by
its terms, extends state-agent immunity to peace officers performing discretionary
functions.” Id. at 308 (quotation marks, citation, and emphasis omitted). The
statute states:
Every peace officer, except constables, who is employed or appointed
pursuant to the Constitution or statutes of this state . . . and whose
duties prescribed by law, or by the lawful terms of their employment
16
or appointment, include the enforcement of, or the investigation and
reporting of violations of, the criminal laws of this state, and who is
empowered by the laws of this state to execute warrants, to arrest and
to take into custody persons who violate, or who are lawfully charged
by warrant, indictment, or other lawful process, with violations of, the
criminal laws of this state, shall at all times be deemed to be officers
of this state, and as such shall have immunity from tort liability
arising out of his or her conduct in performance of any discretionary
function within the line and scope of his or her law enforcement
duties.
Ala. Code § 6-5-338(a). “Although § 6-5-338(a) speaks in terms of immunity for
discretionary functions,” the Alabama Supreme Court has made clear that peace
officer immunity pursuant to § 6-5-338(a) is a species of state-agent immunity and
thus is analyzed “under the principles set forth in Cranman.” Ex parte Kennedy,
___ So. 2d. ___, 2008 WL 1838311, at *5 (Ala. Apr. 25, 2008) (quotation marks
and citations omitted).
Further, in determining whether state-agent immunity applies at the
summary judgment stage, Alabama courts employ a burden-shifting analysis. Ex
parte Ala. Dep’t of Mental Health & Mental Retardation, 937 So. 2d 1018, 1023
(Ala. 2006). First, “the party seeking to assert the defense must present evidence
indicating that the claims asserted against him or her arise from the performance of
a discretionary act” that falls within one of the categories specified by Cranman.
Id. at 1024. If he does so, “then the burden shifts to the plaintiff to show that the
defendant acted in a manner that precludes the application of State-agent
17
immunity.” Id. For example, the plaintiff may show that the defendant acted
“willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law.” Cranman, 792 So. 2d at 405. We now
turn to D.S.’s claims.
B. D.S.’s Claims
The district court granted summary judgment to the Officers and the County
on D.S.’s placement-in-general-population claim and failure-to-provide-prompt-
medical-care claim. However, it denied summary judgment on the failure-to-
protect claim, concluding that the Officers and the County had not met their burden
of establishing that the failure-to-protect claim arose from the Officers’
performance of one of the categories of discretionary duties enunciated in
Cranman. Thus, we examine the Officers’ state-agent immunity as to D.S.’s
failure-to-protect claim.
In denying immunity, the district court relied upon Alabama Department of
Mental Health, in which the Alabama Supreme Court had held that two employees
of a state mental health facility were not entitled to state-agent immunity from
claims premised on their alleged failure to intervene in a fellow employee’s beating
of a resident. 937 So. 2d at 1020, 1028-29. The Alabama Supreme Court in
Alabama Department of Mental Health rejected the defendants’ claim of immunity
18
because it rested upon conclusory statements of discretion that lacked evidentiary
support, citation to a specific applicable rule or regulation governing the
defendants’ conduct, or an explanation of the kind of discretion involved in their
decision not to intervene. Id. at 1028-29. Here, the district court likewise held that
the Officers offered only conclusory statements as to why they failed to supervise
or protect D.S. and provided no explanation of how their actions fell within the
performance of a discretionary function. Thus, it denied state-agent immunity on
the failure-to-protect claim under state law.
The Appellants argue that this holding was erroneous, and that they qualify
for state-agent immunity because they were: (1) discharging duties imposed by
regulation (Cranman immunity category three); and (2) exercising judgment as
peace officers pursuant to Alabama Code § 6-5-338(a) (Cranman category four).
We disagree.
First, the Officers cannot demonstrate that their conduct comes within
category three of Cranman, which extends immunity to state agents9 who are
“discharging duties imposed . . . by statute, rule, or regulation, insofar as the
statute, rule, or regulation prescribes the manner for performing the duties and the
9
Although the Officers were employed by the County instead of the State, the Alabama
Supreme Court has expressly held that state-agent immunity extends to municipal employees.
City of Birmingham v. Brown, 969 So. 2d. 910, 916 (Ala. 2007).
19
State agent performs the duties in that manner.” Cranman, 792 So. 2d at 405. The
Officers argue that Alabama Department of Mental Health, relied upon by the
district court, is distinguishable because they, unlike the defendants in that case,
cited specific rules and regulations that governed their juvenile detention duties.
The Officers point out that MCYF has mandated that they follow certain rules and
policies embodied in American Correctional Association juvenile detention facility
standards and set forth in the MCYF security manual and detainee handbook.
Specifically, the defendant Officers emphasize these particular rules, contained in
at least one of those sources: (1) the requirement that they maintain a 1:8 officer to
juvenile detainee ratio at all times; (2) the maximum detention capacity
requirement at MCYF; (3) the rule providing that detainees are to be assigned into
wings based on sex, age, size, and gang affiliation; and (4) the MCYF policy that
detainees be supervised and that no detainee be left unsupervised.
The first three rules the Officers cite are not relevant to D.S.’s failure-to-
protect claim. Although it may be true that the Officers would be immune from
suit based on their discharge of duties imposed by those rules, this is not such a
lawsuit. D.S. does not allege that the Officers’ implementation of the 1:8 ratio,
maximum detention capacity, or detainee assignment rules resulted in the rape.10
10
It is possible that D.S.’s placement-in-general-population claim may have implicated
the detainee assignment rule. However, the district court granted summary judgment to
20
Rather, D.S.’s claim is that the Officers neglected their duty to supervise him
and C.P. and therefore failed to prevent C.P. from raping him. Thus, the fourth
rule the Officers cite is relevant. As to that rule, MCYF’s security manual sets
forth the facility policy regarding supervision and expressly provides, “No detainee
is to be left unsupervised. Leaving a detainee unsupervised will be considered
reasonable grounds for termination of employment.”
Under D.S.’s version of the facts, the Officers totally failed to supervise D.S.
and C.P., and thus violated this rule. The Officers simply do not explain how they
were adhering to the continuous supervision rule under D.S.’s version of the facts.
Under D.S.’s version, instead of looking into the B-wing dayroom or its bathroom
or even paying attention to D.S.’s cries for help, the Officers were either reading
the newspaper or were on the computer and were not supervising the B-wing
detainees at all. Thus, at the summary judgment stage, the Officers here cannot
establish immunity based on their assertion that they performed their duties in
accordance with the pertinent rule.11 Accordingly, the Officers have not
defendants on that claim, and that holding is not before us on appeal.
11
Cranman category three also requires that the pertinent rule or regulation “prescribe[]
the manner for performing the duties” at issue. Cranman, 792 So. 2d at 405. The rule the
Officers cite arguably does not prescribe any specific manner for supervising juvenile detainees
other than simply requiring that it be done continuously. However, we need not decide the issue
of whether the rule prescribes “the manner” of performing the supervision duty because D.S.’s
claim is that the Officers were not supervising himself and C.P. at all and thus were not
following the continuous supervision duty prescribed by the rule in any event.
21
demonstrated that they satisfy category three of the type of conduct for which
Cranman extended state-agent immunity.
Alternatively, the Officers argue that they satisfy Cranman category four,
which extends immunity to peace officers performing discretionary functions
within the scope of their duties, as provided by Alabama Code § 6-5-338(a). See
Hollis, 950 So. 2d at 309.
Under the facts viewed in the light most favorable to D.S., the Officers
cannot demonstrate that they were performing a discretionary function within the
scope of their duties under Alabama law. While state-agent immunity provides
that a peace officer may be immune for performing discretionary duties, where a
rule expressly mandates that certain actions be taken–such as leaving no juvenile
detainee unsupervised–the officer’s discretion is removed. “Alabama law has
defined ‘discretionary acts’ as ‘those acts as to which there is no hard and fast rule
as to course of conduct that one must or must not take’ and those requiring
‘exercise in judgment and choice and involving what is just and proper under the
circumstances.’” Norris v. City of Montgomery, 821 So. 2d 149, 153 (Ala. 2001)
(quotation marks, citation, emphasis, and brackets omitted); see also Howard v.
City of Atmore, 887 So. 2d 201, 208 (Ala. 2003) (“[A] State agent acts beyond
authority and is therefore not immune when he or she fails to discharge duties
22
pursuant to detailed rules or regulations, such as those stated on a checklist.”)
(quotation marks, citations, and emphasis omitted).
The parties agree that MCYF policy required the Officers to supervise the
juvenile detainees at all times. And D.S. testified that the Officers failed to even
look at, much less supervise, him and C.P. at all during the relevant time in the
dayroom and bathroom. Under the summary-judgment-stage facts, the Officers
had no discretion to leave a detainee unsupervised, but did exactly that.12
Therefore, the Officers are not entitled to state-agent immunity based on the
performance of discretionary peace officer functions.13 Because the Officers are
not immune from D.S.’s state law failure-to-protect claims, the County likewise
lacks immunity.
IV. CONCLUSION
For the reasons set forth above, we reverse the district court’s order insofar
as it denies Appellants Andrews, Webb, and Terrell qualified immunity from suit
12
We note that this is not a case in which the alleged failure to supervise a particular
detainee could arguably be considered discretionary because of other concurrent duties imposed
upon the Officers that conflicted with the duty to supervise (for example, where an officer must
divert his attention from one detainee to render medical aid to another, or where for some reason
it is impossible or impracticable to watch all detainees simultaneously). Here, the Officers
maintain that they could, and did, supervise all detainees adequately, but D.S.’s version of events
is simply otherwise.
13
Because of this holding, we need not reach the issue, raised by D.S., of whether the
juvenile detention officer defendants qualify as “peace officers” under Alabama Code § 6-5-
338(a).
23
on D.S.’s § 1983 claim, but affirm the district court’s denial of Alabama state-
agent immunity. We remand to the district court for further proceedings in
accordance with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
24