         Case: 15-14181   Date Filed: 06/02/2016   Page: 1 of 10


                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-14181
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:14-cv-00407-VEH



RONNIE GUY YOUNG,

                                             Plaintiff - Appellee,

versus

KIMBERLY MYHRER,
RONALD HIGGINS,
TIMOTHY LAATSCH,
SHANNA YOUNG,
MATTHEW JOINER,
DAVID MITCHELL,
SHANE MILLS,

                                             Defendants - Appellants.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                            (June 2, 2016)
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Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      In March of 2012, Ronnie Guy Young was injured during a fight with

another inmate at the Shelby County Jail in Alabama. Seeking money damages for

his injuries, Mr. Young sued several corrections officers from the Shelby County

Sheriff’s Office in their individual capacities for violations of federal and state law.

He brought claims under 42 U.S.C. §§ 1983 and 1985, alleging violations of the

Fifth, Eighth, and Fourteenth Amendments. He also brought state law claims of

negligence, wantonness, and intentional infliction of emotional distress.          The

district court granted summary judgment in favor of the defendants on Mr.

Young’s federal claims. But it denied summary judgment on Mr. Young’s state

law claims because in its view the defendants were not entitled to a state sovereign

immunity defense under Article I, § 14 of the Alabama Constitution.

      Relying on the Alabama Supreme Court’s decision in Ex parte Shelley, 53

So. 3d 887 (Ala. 2009), the district court concluded that the corrections officers

were not entitled to a state sovereign immunity defense because only sheriffs or

deputy sheriffs—and not jailers—receive immunity under the Alabama

Constitution. In this interlocutory appeal, the defendants contend that the district

court erred because it failed to consider the impact of the Jailer Liability Protection

Act, No. 2011-685, which was passed by the Alabama Legislature in response to


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Ex parte Shelley to expand the scope of Alabama’s sovereign immunity protection.

After careful review of the record and briefs, we reverse and remand to the district

court with directions.

                                          I

      “District court denials of state sovereign immunity under Alabama law are

immediately appealable to this Court.” LeFrere v. Quezada, 582 F.3d 1260, 1263

(11th Cir. 2009). Sovereign immunity is a question of law that we review de novo.

See Tinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996) (per curiam).

                                          II

      Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

      Under Article I, § 14 of the Alabama Constitution, the State of Alabama is

immune from suit, and that sovereign immunity extends to Alabama sheriffs

“when they are executing their law enforcement duties.” McMillian v. Monroe

Cnty., Ala., 520 U.S. 781, 793 (1997). In Hereford v. Jefferson County, 586 So.2d

209 (Ala. 1991), the Alabama Supreme Court held that deputy sheriffs are immune

from suit to the same extent as sheriffs because “the deputy sheriff is the alter ego

of the sheriff.” Id. at 210. But in Ex parte Shelley, 53 So. 3d 887 (Ala. 2009), the

Alabama Supreme Court refused to extend the scope of state sovereign immunity

further. There, the Alabama Supreme Court explained that the jailers working for


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a sheriff’s office “cannot properly be viewed in legal contemplation as an

extension of the sheriff or as one officer with the sheriff.” Id. at 898 (internal

quotation marks omitted).     Under the Alabama Constitution, therefore, jailers

(unlike sheriffs and deputy sheriffs) are not entitled to immunity from suits against

them in their individual capacities for money damages. See id.

      In June of 2011, shortly after the Ex parte Shelley decision was issued, the

Alabama Legislature enacted the Jailer Liability Protection Act, No. 2011-685,

which amended Ala. Code §§ 14–6–1 & 36–22–3 to provide immunity for jail

personnel. As amended, § 14–6–1 now provides:

             The sheriff has the legal custody and charge of the jail in
             his or her county and all prisoners committed thereto,
             except in cases otherwise provided by law. The sheriff
             may employ persons to carry out his or her duty to
             operate the jail and supervise the inmates housed therein
             for whose acts he or she is civilly responsible. Persons
             so employed the sheriff shall be acting for and under the
             direction and supervision of the sheriff and shall be
             entitled to the same immunities and legal protections
             granted to the sheriff under the general laws and the
             Constitution of Alabama of 1901, as long as such persons
             are acting within the line and scope of their duties and are
             acting in compliance with the law.

Ala. Code § 14–6–1. In turn, § 36–22–3 describes the duties of a sheriff. In

subsection (b), it now provides:

             Any of the duties of the sheriff set out in subsection (a)
             or as otherwise provided by law may be carried out by
             deputies, reserve deputies, and persons employed as
             authorized in Section 14–6–1 as determined appropriate
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            by the sheriff in accordance with state law. Persons
            undertaking such duties for and under the direction and
            supervision of the sheriff shall be entitled to the same
            immunities and legal protections granted to the sheriff
            under the general laws of the Constitution of Alabama of
            1901, as long as he or she is acting within the line and
            scope of his or her duties and is acting in compliance
            with the law.

Ala Code. § 36–22–3(b).

      These statutes, as amended, both state that individuals employed by the

sheriff and acting under his direction and supervision (including those operating

the jail) “shall be entitled to the same immunities and legal protections granted to

the sheriff.” According to the individual defendants (who are all Shelby County

Sheriff’s Office employees), the district court’s reliance on Ex parte Shelley was

misplaced because the subsequently-enacted Jailer Liability Protection Act cloaks

them with the same immunity afforded to Alabama sheriffs under the Alabama

Constitution. Mr. Young responds that these statutes give jailers only qualified

immunity, and not the absolute immunity given to sheriffs and deputy sheriffs

under the Alabama Constitution.

      We agree that the district court should have addressed the impact of the 2011

Act. But on this record, we are unable to say whether the defendants are entitled to

absolute immunity.

      The first requirement for immunity under the Jailer Protection Liability

Act—that the jailers were acting within the line and scope of their duties—is the
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same requirement for a sheriff to receive immunity under the Alabama

Constitution. See Ex parte Purvis, 689 So.2d 794, 795 (Ala. 1996). But, as noted

by a federal district court in Sawyer v. Collins, No. 2:12-0020-KD, 2012 WL

6052000 (S.D. Ala. Dec. 5, 2012), “there does not appear to be any requirement

under Alabama law that requires a sheriff to act ‘in compliance with the law’ in

order to receive immunity.” Id. at *1.

      Following our practice of interpreting words in statutes in a manner that

gives them meaning, we think the phrase “acting in compliance with the law”

imposes some additional requirement for immunity beyond the mere showing that

jailers were acting within the scope of their employment. The problem is that we

are not sure what the phrase means. Does the word “law” include both criminal

and civil laws? Does it encompass the internal regulations propounded by the

sheriff to govern the jailers’ behavior and the exercise of their discretion?

      In Sawyer, the district court for the Southern District of Alabama certified

the following question to the Alabama Supreme Court:

             Alabama Code § 14–6–1 provides that persons, such as
             jail employees, who act or undertake duties at the
             direction and supervision of the sheriff are immune from
             state law claims to the same extent as the Sheriff “as long
             as he or she is acting within the line and scope of his or
             her duties and is acting in compliance with the law.”
             How should this court interpret “acting in compliance
             with the law” in order to not render the grant of immunity
             meaningless or the phrase superfluous? Specifically,


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              what is the “law” encompassed by the requirement that a
              jail employee act in compliance with the law?

Id. at *2. The Alabama Supreme Court declined to answer the certified question,

leaving the meaning of the phrase “acting in compliance with the law” unclear.

See Sawyer v. Collins, 129 So. 3d 1004 (Ala. 2013). 1

       In Johnson v. Conner, 720 F.3d 1311 (11th Cir. 2013), we also certified a

question to the Alabama Supreme Court, asking “whether Alabama Code Section

14–6–1’s requirement that jailers act ‘in compliance with the law’ in order to

receive immunity is intended to encompass only violations of the criminal code or

all violations of Alabama law.”           Id. at 1316.      The Alabama Supreme Court

declined to answer this question too, and we have found no cases where Alabama

courts have interpreted the statute or shed light on the phrase’s meaning.

       Although we know that immunity is granted only to jailers who act in

compliance with the law (putting aside for a moment the ambiguous scope of the


       1
           Dissenting from the Alabama Supreme Court’s decision to decline to answer the
certified question, Justice Shaw (joined by Justice Bolin) stated:

              It seems axiomatic that both criminal statutes and civil statutes, as
              well as constitutional precepts, are “the law” for purposes of § 14–
              6–1. It is apparent that the district court seeks to know whether, as
              Sawyer suggests, policies and procedures for handling sick inmates
              propounded by the sheriff are, for the purposes of § 14–6–1, the
              “law” that must be followed by jailers acting for and under the
              direction and supervision of the sheriff. The answer to that query
              has not been decided by an Alabama court, and it is clearly an
              issue an Alabama court should be the first to decide.

Sawyer, 129 So. 3d at 1006.
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phrase), another wrinkle is that we do not know who bears the burden, under the

Jailer Protection Liability Act, of proving or disproving the jailers’ compliance

with the law. Does the burden lie with Mr. Young to demonstrate the negative

(that the defendants were not acting in compliance with the law) or must the

defendants demonstrate the affirmative (that they were)? According to Mr. Young,

the statutes in question place the burden on the defendants to show that they were

acting in compliance with the law, and defendants failed to make that affirmative

showing. See Kruse v. Corizon, Inc., No. 12-0212-WS-B, 2013 WL 3366040, *18

(S.D. Ala. July 5, 2013) (explaining that defendants, who were corrections officers,

failed to show they were “acting in compliance with the law,” as the Jailer Liability

Protection Act demands, and they failed to articulate a burden-shifting argument

and thus left the burden on themselves).

      On appeal, the defendants contend that the situation here should be

analogized to the burden-shifting approach used by Alabama courts when a party

raises the defense of state-agent immunity, see, e.g., Ex parte Estate of Reynolds,

946 So.2d 450, 452 (Ala. 2006), or the burden-shifting analysis federal courts use

in the qualified immunity context, see, e.g., Case v. Eslinger, 555 F.3d 1317, 1325

(11th Cir. 2009). Their burden, they say, is limited to establishing that they were

performing a function that would entitle them to immunity, and then the burden

shifts to the plaintiff to prove that they were not acting in compliance with the law.


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But they did not make any burden-shifting arguments to the district court, and we

decline to address them for the first time on appeal.

      To recap, although the defendants raised the Jailer Liability Protection Act

in their motion for summary judgment, the district court addressed only the

immunity afforded to sheriffs in the Alabama Constitution, and failed to consider

the broader immunity granted by the Alabama legislature in §§ 14–6–1 & 36–22–

3(b). This was error. Because the defendants’ entitlement to sovereign immunity

under the Jailer Protection Liability Act was not discussed by the district court, we

think it best to allow the district court to address it in the first instance on remand.

Cf. Hart v. Hodges, 587 F.3d 1288, 1300 (11th Cir. 2009) (remanding issue of

qualified immunity to the district court for determination); Strength v. Hubert, 854

F.2d 421, 426 (11th Cir. 1988) (same).

                                          III

      Because the Alabama Legislature extended the scope of state sovereign

immunity by passing the Jailer Liability Protection Act in 2011, the district court

erred in relying only on the Alabama Supreme Court’s prior decision in Ex parte

Shelley to define the limits of sovereign immunity protection under Alabama law.

On remand, the district court should decide whether the individual defendants are

entitled to summary judgment on state sovereign immunity grounds under Ala.

Code §§ 14–6–1 & 36–22–3(b).           It should specifically consider whether the


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defendants acted in compliance with the law as the amended statutes require, and

in so doing will have to address who has the burden on that issue. 2

      The denial of summary judgment to the individual defendants is reversed,

and the case is remanded for further proceedings consistent with this opinion.


      REVERSED AND REMANDED.




      2
          We express no view on these matters.
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