             Case: 12-15228    Date Filed: 06/13/2014   Page: 1 of 10


                                                                        [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-15228
                          ________________________

                  D.C. Docket No. 2:12-cv-00392-WHA-SRW



SHERRIE JOHNSON,
as administratrix of the Estate of Alquwon Johnson deceased,

                                                               Plaintiff - Appellee,

                                      versus

RYAN CONNER,
SONYA MAYO,
GEORGE PARHAM, Captain,

                                                         Defendants - Appellants,

BARBOUR COUNTY, et al.,

                                                                        Defendants.

                          ________________________

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

                                 (June 13, 2014)
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Before CARNES, Chief Judge, WILSON, Circuit Judge, and HUCK, ∗ District
Judge.
HUCK, District Judge:

       We are called upon to determine whether a recently amended Alabama

statute granting sovereign immunity to jailers, which is silent on retroactivity,

applies retroactively or only prospectively. Ala. Code § 14-6-1. 1 For the reasons

discussed below, we find that the traditional presumption against retroactivity

applies here. Therefore, the new grant of immunity does not shield the jailers,

Appellants in this case, from liability for their alleged pre-amendment acts.

Because we do not apply the statute retroactively, we do not reach the issue of

whether the jailers would have been within the statute’s grant of immunity.

I.     FACTS

       This case arises from an inmate’s suicide. Appellee, Sherrie Johnson,

alleges that her son, Alquwon Johnson, an inmate at Barbour County Jail, suffered

from a documented history of mental illness, and had been prescribed psychoactive

medication to treat depression. She alleges that Appellants, Ryan Conner, Sonya

Mayo, and George Parham, who were corrections personnel at the jail, were


       ∗
          Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
       1
                Federal courts have twice certified questions about amended § 14-6-1’s
applicability to the Alabama Supreme Court, and the Alabama Supreme Court has twice declined
to rule. Johnson v. Conner, No. 1121178 (Ala. Oct. 31, 2013); Sawyer v. Collins, 129 So. 3d
1004, 1004 (Ala. 2013).

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responsible for administering Mr. Johnson’s medication daily, and failed to do so.

She also alleges that Mr. Johnson previously attempted to commit suicide with a

bed sheet while incarcerated, and Appellants failed to take appropriate precautions

with Mr. Johnson following that suicide attempt. Mr. Johnson committed suicide

by hanging himself with a bed sheet on June 4, 2011. Ms. Johnson, as her son’s

personal representative, brought suit on August 8, 2011 under 42 U.S.C. § 1983

and state law. Appellants filed a motion to dismiss, claiming, inter alia, state law

immunity under the recently amended Alabama Code § 14-6-1, which came into

effect on June 14, 2011—ten days after Mr. Johnson’s suicide, but before Ms.

Johnson filed suit.

      The district court denied Appellants’ Motion to Dismiss, finding amended

§ 14-6-1 inapplicable. The case reaches us on interlocutory appeal. For the

reasons set forth below, we AFFIRM.

II.   ANALYSIS

      The State of Alabama is immune from suit, and that sovereign immunity

extends to Alabama sheriffs and their deputies “when [they are] executing their

law enforcement duties.” McMillan v. Monroe Cnty., Ala., 520 U.S. 781, 793

(1997); Ala. Const. Art. I, § 14; Ex parte Haralson, 853 So. 2d 928, 932 (Ala.

2003). Until recently, however, immunity did not extend to jailers, such as the

Appellants here. Addressing jailer immunity for the first time, the Alabama

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Supreme Court held that sovereign immunity did not extend to jailers. Ex parte

Shelley, 53 So. 3d 887, 896 (Ala. 2009). In response, the Legislature enacted the

Jailer Liability Protection Act, which came into effect on June 14, 2011. The Act

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 by 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. Appellants argue that they are immune from suit under

amended § 14-6-1 because they claim they were “acting within the line and scope

of their duties and . . . in compliance with the law.” § 14-6-1. Because the

amended § 14-6-1 became effective after the acts of which Ms. Johnson complains,

Appellants can only claim immunity if the amendment applies retroactively, or if

we determine that we must apply the statute in effect when suit was filed rather

than when the injury occurred. We hold that amended § 14-6-1 does not apply

retroactively, and that we must apply the statute in effect when the injury occurred.

Therefore, we need not and do not address whether Appellants were “acting within

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the line and scope of their duties and . . . in compliance with the law.” Each issue

is addressed in turn.

       A.      Amended § 14-6-1 Cannot Be Applied Retroactively

       Under Alabama law, “Retrospective application of an act is disfavored

unless 1) the act expressly states that it is to be applied retrospectively; 2) the

Legislature clearly intended the act to have retrospective application; or 3) the act

is of a remedial [as opposed to substantive] nature.” Ex parte East Ala. Health

Care Auth., 814 So. 2d 260, 262 (Ala. 2001); Baker v. Baxley, 348 So. 2d 468, 471

(Ala. 1977).2 Section 14-6-1 is silent on retroactivity, and Appellants do not argue

that the statute is remedial in nature—indeed, it affects the substantive rights of the

parties to sue or be sued. Kruse v. Corizon, No. 12-0212-WS-B, 2013 WL

3366040, at *17 (S.D. Ala. July 5, 2013) (“[I]t is difficult to imagine how a statute

creating new immunity from suit could possibly be viewed as remedial and not

substantive. . . . A statute creating a new immunity creates a new vested right in the

jailers and simultaneously destroys the plaintiff’s vested right in his cause of action

against the jailers. This is precisely the sort of legal change that cannot apply


       2
                In Landgraf v. USI Film Products, the Supreme Court pronounced a similar test
for statutes that are not expressly retroactive: “the court must determine whether the new statute
would have retroactive effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new duties with respect to
transactions already completed. If the statute would operate retroactively, our traditional
presumption teaches that it does not govern absent clear congressional intent favoring such a
result.” 511 U.S. 244, 280 (1994).

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retroactively without express or obvious legislative approval.”). Appellants argue,

instead, that we should infer legislative intent to apply the statute retroactively for

two reasons. First, they argue that amended § 14-6-1 is a jurisdiction-stripping

statute, and that by use of the word “shall” (jail personnel “shall be entitled to the

same immunities and protections granted to the Sheriff . . . ”), the Legislature

evidenced its intent for the amendment to apply immediately, including to

previously existing causes of action. Second, Appellants argue that the

Legislature’s amendment of § 14-6-1 in reaction to the Ex Parte Shelley decision,

which held that sovereign immunity did not extend to jailers, demonstrates that the

Legislature disagreed with Shelley, and thus intended, “immediately, upon

enactment, [to] strip courts of subject-matter jurisdiction over tort claims against

sheriffs’ jail personnel.” We find that neither of these observations evidences

legislative intent for amended § 14-6-1 to apply retroactively.

      The fact that amended § 14-6-1 may be considered a jurisdiction-stripping

statute does not displace the presumption against retroactivity. There does not

appear to be an Alabama decision, one way or the other, concerning whether

jurisdiction-stripping statutes should be treated differently than other statutes.

However, United States Supreme Court decisions are quite informative on this

point, clearly indicating that statutes that affect substantive, vested rights—even

when framed in jurisdictional terms—are still presumed to apply only

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prospectively. In Landgraf v. USI Film Products, the Court said, “a new

jurisdictional rule usually ‘takes away no vested right, but simply changes the

tribunal that is to hear the case.’ Present law normally governs in such situations

because jurisdictional statutes ‘speak to the power of the court rather than to the

rights or obligations of the parties.’” 511 U.S. 244, 274 (1994). The Court later

expanded on this rule, explaining,

             Statutes merely addressing which court shall have
             jurisdiction to entertain a particular cause of action can
             fairly be said merely to regulate the secondary conduct of
             litigation and not the underlying primary conduct of the
             parties. Such statutes affect only where a suit may be
             brought, not whether it may be brought at all.

Hughes Aircraft Co. v. U.S. ex rel Schumer, 520 U.S. 939, 951 (1997) (emphasis in

original). The Court went on to note that a statute that “does not merely allocate

jurisdiction among forums,” but “creates jurisdiction where none previously

existed . . . speaks not just to the power of a particular court but to the substantive

rights of the parties as well. Such a statute, even though phrased in ‘jurisdictional’

terms, is as much subject to our presumption against retroactivity as any other.”

Id. (emphasis in original). Here, we consider a statute that does not allocate

jurisdiction among forums—it removes the right to bring suit against jailers in any

forum. Thus, amended § 14-6-1 speaks to the substantive rights of the parties, and,

if we applied the federal framework laid out in Landgraf and Hughes Aircraft, it

would be presumed to apply only prospectively. This is consistent with Alabama
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law, under which the presumption against retroactivity applies to substantive

statutes—“those that create, enlarge, diminish, or destroy vested rights . . . [and]

define[] and regulate[] the rights, duties, and powers of the parties. Ala. Ins. Guar.

Ass’n v. Mercy Med. Ass’n, 120 So. 3d 1063, 1068 (Ala. 2013); Ex Parte Bonner,

676 So. 2d 925, 926 (Ala. 1995).

      Nor does the legislature’s use of the word “shall” in amended § 14-6-1

impact the retroactivity analysis. The word “shall” simply means “has a duty to”

or “is required to . . . this is the mandatory sense that drafters typically intend and

that courts typically uphold.” Black’s Law Dictionary 1407 (Eighth Ed. 2004). It

has nothing to do with retroactivity.

      That the Legislature amended § 14-6-1 in response to Shelley likewise does

not evidence any intent for the amendment to apply retroactively. Certainly, the

amendment evidences the Legislature’s displeasure with Shelley. But retroactive

application of the amendment would take away Appellee’s substantive, vested

right to sue in violation of Alabama’s Constitution. Alabama’s Constitution

provides “that every person, for an injury done to him . . . shall have a remedy by

due process of law.” Ala. Const. § 13.

             That means that when a duty has been breached
             producing a legal claim for damages, such claimant
             cannot be denied the benefit of his claim for the absence
             of a remedy. But this provision does not undertake to
             preserve existing duties against legislative change made
             before the breach occurs. . . . Undoubtedly the right to the
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               remedy must remain and cannot be curtailed after the
               injury has occurred and right of action vested, regardless
               of the source of the duty which was breached, provided it
               remained in existence when the breach occurred.

Pickett v. Matthews, 192 So. 261, 263-264 (Ala. 1939) (citing 16 Corpus Juris

Secundum, Constitutional Law, p. 1499, § 710). In other words, a litigant has “a

vested interest in a particular cause of action” once the injury occurs. Reed v.

Brunson, 527 So. 2d 102, 114 (Ala. 1988). Section 13 of Alabama’s Constitution

protects litigants from legislative change made after the breach of duty occurs. Id.;

Baugher v. Beaver Constr. Co., 791 So. 2d 932, 934 (Ala. 2000); Kruszewski v.

Liberty Mut. Ins. Co., 653 So. 2d 935, 937 (Ala. 1995). We will not read amended

§ 14-6-1 to deprive Appellee of her vested, substantive right absent a showing of

clear, obvious legislative intent. See Baker, 348 So. 2d at 471. Nothing Appellants

have presented comes close. 3

       3
                 The Alabama Supreme Court has only once addressed the applicability of § 14-6-
1 since its amendment. Ex Parte Burnell, 90 So. 3d 708 (Ala. 2012). The court held, based on
Alabama case law, that a deputy sheriff was entitled to immunity because he was acting as the
sheriff’s alter ego, and that the deputy sheriff’s dual role as the warden for the county jail did not
deprive him of that immunity. Id. at 715. In a footnote, the court noted the 2011 amendments to
§ 14-6-1, but stated, without explanation, that the 2011 amendments were not applicable. Id. at
714 n.2. The district court in this case, and the court in Kruse v. Byrne, No. CA 11-00513-KD-
C, 2012 WL 5469801 (S.D. Ala. Oct. 19, 2012), both read that footnote to mean that “the
recently-enacted immunity amendments do not apply to conduct which occurred before their
effective date.” Johnson v. Conner, No. 2:12-cv-392-WHA, 2012 WL 3962012, at *6 (M.D.
Ala. Sept. 10, 2012); Kruse v. Byrne, 2012 WL 5469801, at *12.

        While we agree with the outcomes in those two cases, we also believe the district court in
this case and the Kruse v. Byrne court ascribe too much to the dicta in Burnell’s footnote. While
the Alabama Supreme Court could have meant that amended § 14-6-1 only applies prospectively,
it seems equally likely that the court meant it did not apply because the actor in Burnell was a
(cont’d on next page)
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       B.      The Law at the Time of the Injury Applies

       Alternatively, Appellants argue that “the operative date should be the date of

filing [of suit] rather than the date of the incident giving rise to Plaintiff’s claims.”

Without citing any law on point, Appellants attempt to create a distinction between

“immunity from suit” and “immunity from liability,” arguing, “Clearly, without the

existence of a lawsuit based upon Alabama tort law, a need for such an immunity

simply does not exist.” We find no Alabama law suggesting that such a distinction

would have any effect on which law applies. Therefore, as stated above, we apply

the law at the time of Appellee’s injury, and hold that Appellants cannot claim

immunity under the amended § 14-6-1.

III.   CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of

Appellants’ motion to dismiss with instructions that the district court proceed in a

manner consistent with this opinion.

       AFFIRMED.




deputy sheriff—not merely a jailer. Therefore, we do not rest our retroactivity determination
today on the dicta in Burnell, but rather on the substantive, vested nature of the right at issue in
this case and the absence of any indication that the Legislature intended amended § 14-6-1 to
apply retroactively.


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