Rel: 08/29/2014




Notice: This opinion is subject to formal revision before publication in the advance
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           SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014

                         _________________________

                                  1130324
                         _________________________

Ex parte Harvey Ruffin, Shelton Patterson, Sandra Giles, and
                        Kenneth Jones

                      PETITION FOR WRIT OF MANDAMUS

                       (In re:      Thomas Donahey, Jr.

                                          v.

         Harvey Ruffin, Shelton Patterson, Sandra Giles,
                        and Kenneth Jones)

                  (Montgomery Circuit Court, CV-12-0702)

MAIN, Justice.
1130324

      Lt. Harvey Ruffin, a correctional officer at the Bullock

Correctional      Facility     ("the     facility");    Sgt.   Shelton

Patterson, a correctional officer at the facility; Sandra

Giles, the deputy warden of the facility; and Kenneth Jones,

the     warden   of    the   facility    (hereinafter    referred    to

collectively as "the petitioners"), the defendants in an

action filed by Thomas Donahey, Jr., petition for a writ of

mandamus directing the Montgomery Circuit Court to grant their

motion for a summary judgment on the ground that they are

entitled to immunity.         We grant the petition and issue the

writ.

                  I.   Facts and Procedural History

      On July 25, 2010, Donahey was attacked and injured while

in the custody of the Mental Health Residential Therapeutic

Unit of the facility.        Donahey was stabbed several times with

an ink pen by another inmate, Bruce Smith.                  During the

incident, one of the facility's correctional officers observed

several inmates running from one of the inmate dorms.               The

fleeing    inmates     reported   that   another   inmate   was   being

stabbed.      The correctional officer radioed for immediate

assistance.      Two correctional officers responded to the call


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for assistance, including Lt. Ruffin.    Lt. Ruffin responded

and observed Donahey "sitting on the side of his bed bleeding"

and Smith "standing behind Donahey, with his hands held over

his head, and stating that 'the voices' had told him to attack

Donahey."    Donahey was taken to the facility's health-care

unit for medical treatment and was later released back to his

dormitory.   Smith was handcuffed and taken to the facility's

stabilization/segregation unit and was charged with assaulting

another inmate.

    On July 6, 2012, Donahey, acting pro se, sued Lt. Ruffin,

Warden Jones, Deputy Warden Giles, and Sgt. Patterson, who was

allegedly present while Donahey was being treated in the

health-care unit following the attack.   Donahey alleged that

the petitioners negligently, wantonly, and recklessly failed

to protect him from an attack by another inmate.       In his

complaint, Donahey alleged that the petitioners knew that

Smith had a history of violence and that he had attacked other

inmates and prison guards.    Donahey also alleged that the

petitioners knew that Smith did not like Donahey and that they

should not have housed Donahey and Smith together.    Donahey

also alleged that the failure to protect him from the attack


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constituted    a   violation     of   his   rights    under   the   Eighth

Amendment to the United States Constitution. Donahey demanded

judgment in the amount of $250,000 in compensatory damages and

$250,000 in punitive damages.1

    On August 28, 2013, the petitioners jointly moved for a

summary judgment on the ground that they are immune from

Donahey's lawsuit.       Each petitioner submitted an affidavit in

support of the summary-judgment motion.             Lt. Ruffin testified

that, contrary to Donahey's claims that Smith was known to be

violent, Smith's last disciplinary infraction involving any

form of violence was in 2005.         The petitioners testified that

both Donahey and Smith were housed at the mental-health unit

and both were receiving treatment for mental-health issues.

Warden Jones testified that inmates are routinely housed

together unless there is a compelling reason to segregate

particular     inmates    from    the     general    population.       The

petitioners described the attack as "spontaneous."                    They

testified that the security staff responded immediately to the

attack and that medical aid was promptly rendered to Donahey,

while Smith was placed in the segregation unit and charged


    1
        Donahey did not request injunctive or declaratory relief.
                                      4
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with a disciplinary violation.          Deputy Warden Giles testified

that there was nothing that would have given the correctional-

security staff reason to foresee Smith's attack on Donahey.

Although Sgt. Patterson testified that he did not recall being

present at the time of the incident, he stated that security

personal quickly notify the mental-health staff any time they

witness an inmate in mental distress.

    Donahey filed no response and submitted no evidence in

opposition to the summary-judgment motion.2               Thus the sworn

statements submitted by the petitioners were uncontroverted.

A hearing on the motion was held on November 6, 2013.3                On

November 7, 2013, the trial court entered an order denying the

summary-judgment motion without explanation.          The petitioners

jointly    petitioned   for    a   writ   of   mandamus    ordering   the

Montgomery Circuit Court to enter a summary judgment in their

favor on the basis that they are immune from liability.

                     II.      Standard of Review

    Although the denial of a motion for a summary judgment is

generally not appealable, this Court has held that the denial

    2
     Nor did Donahey file an affidavit pursuant to Rule 56(f),
Ala. R. Civ. P., seeking time to conduct additional discovery.
    3
        No transcript of the hearing is in the record.
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1130324

of a motion for a summary judgment grounded on a claim of

immunity is reviewable by a petition for a writ of mandamus.

Ex parte Kennedy, 992 So. 2d 1276, 1280 (Ala. 2008).               In such

case, we apply the following standard of review:

            "'"While the general rule is that the denial of
       a motion for summary judgment is not reviewable, ...
       the denial of a motion for summary judgment grounded
       on a claim of immunity is reviewable by petition for
       writ of mandamus." Ex parte Rizik, 791 So. 2d 911,
       912 (Ala. 2000).       A writ of mandamus is an
       extraordinary remedy available only when there is:
       "(a) a clear legal right to the order sought; (2) an
       imperative duty upon the respondent to perform,
       accompanied by a refusal to do so; (3) the lack of
       another adequate remedy; and (4) the properly
       invoked jurisdiction of the court." Ex parte BOC
       Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001).'"

Kennedy, 992 So. 2d at 1280 (quoting Ex parte Nall, 879 So. 2d

541, 543 (Ala. 2003)).

                              III.   Analysis

       The petitioners invoke a pantheon of immunity defenses.

With    regard   to    Donahey's     claims     that     the   petitioners

"negligently, wantonly, and recklessly" failed to protect

Donahey from harm, the petitioners contend that they are

entitled to State-agent immunity.          As to Donahey's 42 U.S.C.

§ 1983 claim, based on the alleged violation of his Eighth

Amendment    rights,    the    petitioners      assert    that   they   are


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1130324

entitled to qualified immunity.                  Finally, the petitioners

argue that, to the extent they are sued in their official

capacities, they are entitled to sovereign immunity.                            We

discuss each argument in turn.

                           A.     State-law claims

    The petitioners contend that they are entitled to the

protection of State-agent immunity with regard to Donahey's

claims    that   the     petitioners          "negligently,     wantonly,      and

recklessly"      failed     to     protect       him    from    attack.        The

petitioners are all employees of the Alabama Department of

Corrections      ("the     DOC").        We    have    previously     held    that

"employees of the DOC are entitled to State-agent immunity

when in conducting the activities made the basis of the action

they were exercising 'judgment in the administration' of the

DOC."    Carpenter v. Tillman, 948 So. 2d 536, 538 (Ala. 2006).

    The restatement of State-agent immunity as set out in Ex

parte    Cranman,    792    So.     2d 392      (Ala. 2000),        governs    the

determination       of   whether     a    State       agent    is   entitled    to




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immunity.4   This Court, in Cranman, stated the test for

State-agent immunity 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, 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



    4
     The test set out in Cranman, a plurality opinion, was
subsequently adopted by a majority of the Court in Ex parte
Butts, 775 So. 2d 173 (Ala. 2000).
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1130324

         "(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.

         "Notwithstanding anything to the contrary in the
    foregoing statement of the rule, a State agent shall
    not be immune from civil liability in his or her
    personal capacity

         "(1) when the Constitution or laws of the United
    States, or the Constitution of this State, or laws,
    rules, or regulations of this State enacted or
    promulgated for the purpose of regulating the
    activities   of   a   governmental   agency   require
    otherwise; or

         "(2) when the State agent acts 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.   This Court has also stated:

         "'This Court has established a "burden-shifting"
    process when a party raises the defense of
    State-agent immunity.' Ex parte Estate of Reynolds,
    946 So. 2d 450, 452 (Ala. 2006). A State agent
    asserting State-agent immunity 'bears the burden of
    demonstrating that the plaintiff's claims arise from
    a function that would entitle the State agent to
    immunity.' 946 So. 2d at 452. Should the State agent
    make such a showing, the burden then shifts to the
    plaintiff to show that one of the two categories of
    exceptions to State-agent immunity recognized in
    Cranman is applicable. The exception being argued
    here is that 'the State agent acted willfully,
    maliciously, fraudulently, in bad faith, or beyond
    his or her authority.' 946 So. 2d at 452. One of
    the ways in which a plaintiff can show that a State
    agent acted beyond his or her authority is by
    proffering evidence that the State agent failed '"to

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    discharge duties pursuant to detailed rules or
    regulations, such as those stated on a checklist."'
    Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala.
    2003) (quoting Ex parte Butts, 775 So. 2d [173,] 178
    [(Ala. 2000)])."

Ex parte Kennedy, 992 So. 2d at 1282–83.

    There appears to be no dispute that the petitioners are

State agents who, at the time of the incident, were performing

a function -– managing the confinement of and/or guarding

prisoners with mental illness -– that entitles them to State-

agent immunity.      See Howard v. City of Atmore, 887 So. 2d 201,

206 (Ala. 2003)("Categories (3) and (4) of [the Cranman]

restatement    are   clearly    broad     enough   to   contemplate   the

confinement of prisoners, which is the conduct in controversy

here.").      Accordingly, the burden shifted to Donahey to

establish the applicability of one of the Cranman exceptions.

He failed to do so.

    The record before us indicates that Donahey filed no

response in opposition to the petitioners' motion for a

summary    judgment,    nor    has   Donahey   offered    any   evidence

indicating that one of the exceptions in Cranman to State-

agent immunity is applicable. Therefore, Donahey did not meet

his burden of establishing that the petitioners were not


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1130324

entitled to State-agent immunity with regard to the State-law

claims asserted against them in their individual capacities.

Accordingly,    the   respondents are       entitled   to   State-agent

immunity as to the claims that they "negligently, wantonly,

and recklessly" failed to protect Donahey from an attack by

Smith.

                      B.   Civil-rights claims

    Next the petitioners assert that Donahey's claim that the

petitioners    violated      his   civil   rights   under   the   Eighth

Amendment, a claim made pursuant to 42 U.S.C. § 1983, is

barred by the doctrine of qualified immunity. The doctrine of

qualified immunity generally shields government officials who

are performing discretionary functions from liability for

civil     damages   unless     their     conduct    violates   "clearly

established statutory or constitutional rights."               Ex parte

Madison County Bd. of Education, 1 So. 3d 980, 990 (Ala.

2008). The United States Supreme Court has recently described

the doctrine as follows:

         "'The doctrine of qualified immunity protects
    government officials "from liability for civil
    damages insofar as their conduct does not violate
    clearly established statutory or constitutional
    rights of which a reasonable person would have
    known."' Pearson v. Callahan, 555 U.S. 223, 231

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1130324

    (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
    818 (1982)). Qualified immunity 'gives government
    officials breathing room to make reasonable but
    mistaken judgments,' and 'protects "all but the
    plainly incompetent or those who knowingly violate
    the law."' Ashcroft v. al-Kidd, 563 U.S. __, __ [131
    S.Ct. 2074, 2085] (2011)(quoting Malley v. Briggs,
    475 U.S. 335, 341 (1986)). '[W]hether an official
    protected by qualified immunity may be held
    personally liable for an allegedly unlawful official
    action generally turns on the "objective legal
    reasonableness" of the action, assessed in light of
    the legal rules that were "clearly established" at
    the time it was taken.' Anderson v. Creighton, 483
    U.S. 635, 639 (1987)(citation omitted)."

Messerschmidt v. Millender, 565 U.S. ___, ___, 132 S.Ct. 1235,

1244-45 (2012).

    This Court has recognized a two-part test to determine

whether   a public official is entitled to qualified immunity

in a § 1983 action:

    "In deciding whether a public official ... is
    entitled to qualified immunity in a § 1983 action,
    this Court employs the following two-step analysis:

               "'"'1) The defendant public official
          must first prove that "he was acting within
          the scope of his discretionary authority
          when the allegedly wrongful acts occurred."

               "'"'2) Once the defendant public
          official satisfies his burden of moving
          forward with the evidence, the burden
          shifts to the plaintiff to show lack of
          good faith on the defendant's part. This
          burden is met by proof demonstrating that
          the defendant public official's actions

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          "violated      clearly              established
          constitutional law."'"'"

Ex parte Sawyer, 876 So. 2d 433, 439 (Ala. 2003)(quoting Couch

v. City of Sheffield, 708 So. 2d 144, 155 (Ala. 1998), quoting

in turn Roden v. Wright, 646 So. 2d 605, 610 (Ala. 1994)).

The second prong is satisfied if the plaintiff proves that

"'(1) the defendant violated a constitutional right, and (2)

this right was clearly established at the time of the alleged

violation.'" Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158

(11th   Cir.   2010)    (quoting   Holloman      ex    rel.   Holloman    v.

Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)).

      In the present case, there appears to be no dispute that

the   petitioners      were   acting    within   the    scope   of   their

discretionary authority at the time of the incident.                     The

United States Court of Appeals for the Eleventh Circuit has

defined the term "discretionary authority" to include "all

actions of a governmental official that (1) 'were undertaken

pursuant to the performance of his duties,' and (2) were

'within the scope of his authority.'"            Jordan v. Doe, 38 F.3d

1559, 1566 (11th Cir. 1994)(quoting Rich v. Dollar, 841 F.2d

1558, 1564 (11th Cir. 1988)).           From all the evidence before

us, the petitioners were each working within the line and

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scope of their various positions at the facility at the time

of the allegedly wrongful acts complained of by Donahey, who

has submitted no evidence to the contrary.   Accordingly, the

burden shifted to Donahey to show that the petitioners'

actions violated clearly established constitutional law.

    Donahey contends that his injuries resulted from the

petitioners' alleged "deliberate indifference" to his safety.

         "'A prison official's "deliberate indifference"
    to a substantial risk of serious harm to an inmate
    violates the Eighth Amendment.' Farmer v. Brennan,
    511 U.S. 825, 828, 114 S.Ct. 1970, 128 L. Ed. 2d 811
    (1994); see Helling v. McKinney, 509 U.S. 25, 1135
    S.Ct. 2475, 125 L. Ed. 2d 22 (1993).      '"[P]rison
    officials have a duty ... to protect prisoners from
    violence at the hands of other prisoners."' Farmer,
    511 U.S. at 833, 114 S.Ct at 1976 (quotations and
    citations omitted).    'It is not, however, every
    injury suffered by one inmate at the hands of
    another that translates into a constitutional liable
    for prison officials responsible for the victim's
    safety.' Id. at 834, 114 S.Ct at 1977."

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003).

    In order to defeat the petitioners' properly supported

motion for a summary judgment on Donahey's Eighth Amendment

"deliberate indifference" § 1983 claim, Donahey was required

to produce substantial evidence of "'(1) a substantial risk of

serious harm; (2) the defendants' deliberate indifference to

that risk; and (3) causation.'" Carter, 352 F.3d at 1349

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1130324

(quoting Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1582 (11th

Cir. 1995)).       Donahey, however, has submitted no evidence

indicating that the petitioners were "subjectively aware" of

the "substantial risk of serious harm" created by trusting him

with Smith.      See Farmer v. Brennan, 511 U.S. 825, 829-38

(1994) (defining the term "deliberate indifference" to require

a showing that the officer was "subjectively aware of the

risk"). To the contrary, the uncontroverted evidence in the

record suggests that the attack on Donahey was "spontaneous"

and unexpected.     Lt. Ruffin testified that Smith, the inmate

who attacked Donahey, had received no disciplinary action for

any act of violence since 2005; Deputy Warden Giles testified

that "[t]here was nothing that would give the correctional

security staff reason to expect an attack."            Accordingly,

Donahey did not provide sufficient evidence showing that his

injuries    were    caused   by   the   petitioners'   "deliberate

indifference"; thus, Donahey failed to meet his burden of

establishing that the petitioners violated clearly established

constitutional law.

           C.   Claims against the petitioners in their
                        official capacities




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      Finally, we note that Donahey did not designate whether

the   petitioners       were   being       sued   in   their     individual     or

official capacities. Although the above analysis assumes that

the petitioners were sued in their individual capacities, the

petitioners argue, and we agree, that, to the extent Donahey

asserts claims against them in their official capacities, they

are also immune from suit.                 To the extent that Donahey's

action, which seeks only monetary damages, is against the

petitioners in their official capacities, his State-law claims

are barred by the doctrine of sovereign immunity.                       See Ala.

Const. 1901, § 14; Haley v. Barbour Cnty., 885 So. 2d 785, 788

(Ala. 2004); and Lyons v. River Road Constr., Inc., 858 So. 2d

257, 261 (Ala. 2003).          Likewise, Donahey is not permitted to

assert    a   §    1983   claim      for    money      damages    against      the

petitioners       in   their   official      capacities.          See   Will   v.

Michigan Dep't of State Police, 491 U.S. 58 (1989) (holding

that a state official sued in his or her official capacity for

damages is not a "person" who may be sued under § 1983).

                               IV.   Conclusion

      Based on the uncontroverted evidence, the petitioners are

entitled to immunity from all the claims asserted against them


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by Donahey.   Accordingly, the petitioners have shown a clear

legal right to the relief sought, and the trial court is

directed to enter a summary judgment in their favor.

    PETITION GRANTED; WRIT ISSUED.

    Moore, C.J., and Stuart, Bolin, Parker, Murdock, Shaw,

Wise, and Bryan, JJ., concur.




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