J.B. v. Wood (Lead Case)BRIEF/MEMORANDUM in Support Motion of Summary JudgmentM.D. Ala.May 29, 2007IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION J.B., a minor child, by and ) through his next friend, ) Addie Ward, on behalf of ) himself and all others ) similarly situated, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:06cv755-MHT ) WALTER WOOD, in his ) individual capacity, ) ) Defendant. ) J.B., a minor child, by and ) through his next friend, ) Addie Ward, on behalf of ) himself and all others ) similarly situated, ) ) Plaintiff, ) ) CIVIL ACTION NO. v. ) 2:06cv908-MHT ) WALTER WOOD, in his ) individual capacity, ) ) Defendant. ) Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 1 of 43 1 BRIEF IN SUPPORT OF SUMMARY JUDGMENT In support of the Defendant J. Walter Wood, Jr.’s motion for summary judgment, the undersigned submits the following brief and evidentiary material: UNDISPUTED FACTS The plaintiff in this case, J.B., is a 17 year old juvenile delinquent. He is currently committed to the custody of the Department of Youth Services and has been committed previously. He was first committed to state custody in May 2005 for burglary in the 1st degree. (Exhibit 1). He went to a program in Mobile called “The Bridge”, and ran away. (Exhibit 2 - J.B. depo. P. 7, lines 4-9). He was subsequently apprehended and sent to DYS Autauga campus and completed the program. Later he was again committed to state custody for possession of drugs in April 2006. (Exhibit 2 - J.B. depo. P. 9, lines 9-7). He is yet again committed to state custody for theft of property and possession of a pistol. (Exhibit 2 - J.B. depo. P. 7, lines 20-22). J.B. also has a pending un- Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 2 of 43 2 adjudicated charge against him for conspiracy to commit robbery and he asserts a 5 Amendment right againstth self incrimination regarding that charge. (Exhibit 2 - J.B. Depo. P. 10, line 6 - p. 11, line 18). J.B.’s current criminal charges for conspiracy to commit robbery, and his previous charges for theft of property, and possession of a pistol all occurred after this lawsuit was filed, yet J.B. sues Mr. Wood individually for damages for waiting in detention pending DYS placement. J. Walter Wood, Jr. is the Executive Director of the Alabama Department of Youth Services (“DYS”). He is sued not in his official capacity, but individually only. The Plaintiffs seek monetary damages from Mr. Wood for allegedly violating J.B.’s Constitutional “right to treatment” for juvenile delinquency while in the custody of DYS. The crux of this claim is that Mr. Wood should be ordered to pay monetary damages because he purportedly deliberately and intentionally caused J.B. to wait in detention without treatment before he was placed in a DYS facility. There is no evidence Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 3 of 43 3 that Mr. Wood deliberately or intentionally caused J.B. to wait in detention with or without treatment. Mr. Wood was appointed by the Alabama Youth Services Board to the position of Executive Director on July 19, 1999. He has worked in juvenile justice and juvenile corrections in programs and administration for over thirty four years. Mr. Wood’s function as Executive Director of the Alabama Department of Youth Services is to carry out the policy and procedure of the Alabama Youth Services Board. He is responsible for the operation of the department within the budget allocation for the Department. As explained in the attached affidavits of J. Walter Wood, Jr.(Exhibit 3) and Screening & Placement Coordinator Patrick Pendergast (Exhibit 4), Mr. Wood does not personally place students in DYS facilities. Placement is a detailed process carried out by DYS’s Screening & Placement Division. There are occasions when particular juveniles have been required to wait in Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 4 of 43 Whether a juvenile is required to wait in detention is a1 matter determined by the committing Court. Some juveniles are allowed by the committing juvenile court to go home and are not required to wait in detention after adjudication pending placement while others are refused permission to return home and must wait in detention. That determination is within the discretion of the committing court. This is true because actual commitments fluctuate2 depending on factors within the 67 counties, whereas the more static number of beds available within the DYS system is established in advance of commitments as discussed below. 4 detention for placement. J.B. was such a case.1 The ability of the Screening & Placement Division to intake juveniles and place them in facilities is determined by the number of beds available compared to the number of commitments. Thus, intake is a matter ultimately controlled by the committing Courts. The2 following paragraphs, taken from the attached affidavits of Wood(Exhibit 3) and Pendergast (Exhibit 4), outline the factors in the equation that must be taken into consideration. First, the number of beds available is a complicated factor. One size does not fit all. There are currently 26 contract placements and 6 DYS operated placement options available for the Screening and Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 5 of 43 The number of available beds is a more complex factor than3 meets the eye. For example two of the contract placements (namely Alabama Youth Homes and Lee County Youth Development Center) operate a number of different programs. Alabama Youth Homes, Inc., operates three different facilities, separate localities in Oneonta, Wetumpka and Westover. In addition, at Oneonta AYH operates separate programs for boys and for girls. Thus, the Oneonta facility for AYH is essentially two separate facilities. These four programs are each distinctly different programs for juveniles with different characteristics–all under one contract placement option. Likewise, Lee County Youth Development Center operates two separate programs: STARS and BEAMS. These are two separate facilities for two separate groups of juveniles. (See Exhibit 4). These facts should give the reader an insight into the complex nature of DYS intake. 5 Placement Committee. (Exhibit 4). That number3 fluctuates over time. These options are comprised of a combination of institutional, residential, and community based facilities, some of which are Department of Youth Services facilities, some of which are private vendor facilities, and some of which are quasi-governmental. Two of the contract and quasi- governmental facilities are located within one of the DYS institutional facilities. Second, contracts are procured through a process largely determined by state law. The DYS RFP process cycles over three years. At the beginning of each three year cycle the DYS RFP committee makes its best Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 6 of 43 6 guess as to the number of beds needed and the types of beds needed over the next three years. (See Exhibit 3). Obviously the committee is not omniscient and actual future commitments do not necessarily match perfectly the committee’s predictions. Each of the current placement options provides a number of beds for placement of juveniles with particular characteristics. The Screening & Placement Committee gathers the needs assessments of each committed juvenile and makes placement decisions based on needs. The committee classifies juveniles into definable groups to help simplify the process. They are classified as either (a) SJO (or serious juvenile offender), (b) regular commitment, ( c ) sex offender, (d) community/residential, (e) pure HIT (or high intensity treatment), (f) special needs, or (g) any combination of two or more of the above. (See Exhibit 4). Placement decisions are judgment calls made by the Screening & Placement Committee with the purpose in mind of matching the needs of the particular juvenile to the characteristics of the placement options Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 7 of 43 7 available. Intake occurs when a bed is available. The number of beds within each placement option is usually static, being determined on a three year contract cycle. However commitments within each classification are not static. They fluctuate. Commitments within each classification are a function of adjudications by the juvenile judges in the 67 Alabama counties and are completely beyond the control of the Department (and certainly beyond the control of the Defendant J. Walter Wood, Jr. in his individual capacity). When commitments within a particular classification spike and current commitments exceed anticipated needs within a particular classification, as happens from time to time, temporary reallocation of resources is possible within the limitations of the rules and laws for state contracts and the availability of additional permanent merit system staff. Such reallocation is the sole means of adjusting to the vicissitudes in commitments by the juvenile courts in the 67 counties to DYS custody of particular classifications of Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 8 of 43 8 juveniles. This is true because the process of developing new placement options must be done on a three year cycle and cannot be done quickly and because placement in DYS operated facilities is dependent on the total number of staff available to adequately supervise the youths. Obviously the reallocation of limited governmental resources is a discretionary function that requires judgment at the highest levels. As described above, the Screening & Placement Division has occasionally experienced temporary increases in commitments within particular placement options. Those fluctuations are not predictable. As a result, there are occasions when beds are not available for the placement of juveniles with particular needs while facilities in other categories are under staffed with juveniles. When a spike occurs and the limited flexibility to reallocate resources within the budget of the Department is insufficient to absorb the increased commitments, a temporary wait list develops. For many years, intake has been closely monitored by DYS staff. The RFP process attempts to predict Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 9 of 43 9 needs and when actual commitments exceed anticipated needs, the Executive Director has reallocated DYS resources whenever possible to eliminate or minimize, within applicable categories of placement options, the wait lists when they have occurred. ARGUMENT SUMMARY OF ARGUMENT, Plaintiffs’ Section 1983 deliberate indifference claim fails because there is no material issue of fact whether J. Walter Wood, Jr. acted with deliberate indifference to cause J.B. to be in detention with or without “treatment.” There is not, as the Plaintiff would have the Court believe, a constitutional right to treatment, similar to the right to mental health treatment, for juvenile delinquents. Without a constitutional right, there is no Section 1983 claim. In the alternative, Defendant submits that the Eighth Amendment provides the requisite framework for analysis of this lawsuit, and that Mr. Wood would be immune from suit for damages under the Fourteenth Amendment. The state law claim for negligence against J. Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 10 of 43 10 Walter Wood, Jr., in his individual capacity, also fails to present a material issue of fact because there is no evidence the Mr. Wood personally breached a duty to the Plaintiff or proximately caused the Plaintiff to wait in detention with or without “treatment,” and because Mr. Wood is immune from suit. The wantonness claim fails too because there is no material issue of fact whether Mr. Wood was conscious of his conduct and conscious from his knowledge of existing conditions that injury would likely or probably result from his conduct, and that with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. Moreover, Mr. Wood would be immune from this claim for wantonness. SUMMARY JUDGMENT STANDARD. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Once the party seeking summary judgment has informed the court Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 11 of 43 11 of the basis for its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (discussing how the responsibilities on the movant and the non-movant vary depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or non-movant bears the burden of proof at trial). In making its determination, the court must view all evidence and any factual inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). COUNT 1 (42 USC § 1983). The Defendant is entitled to summary judgment for the claim under Count 1. There is no evidence that Mr. Wood violated a constitutional right. In addition, the evidence shows that the Plaintiff was not required to wait in detention as a result of any action or non-action by J. Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 12 of 43 12 Walter Wood, Jr. The Eighth Amendment Provides the Governing Standard: The complaint purports to state a cause of action under the Fourteenth Amendment. However, as set forth in the following paragraphs, the Eighth Amendment –not the Fourteenth– provides the governing standard for this claim. The first step in analyzing the Plaintiff's § 1983 claim is to identify the specific constitutional provision under which the claim arises. See, Graham v. Connor, 490 U.S. 386, 393-94 (1989). In this case the alleged right arises under the "cruel and unusual punishment" provision of the Eighth Amendment because it pertains to the conditions of Plaintiff's confinement. Specifically, the complaint alleges that the Plaintiff was unjustifiably restrained “with deliberate indifference to [his] rehabilitative and treatment rights”, and/or he was held in detention and not placed in a DYS facility within a reasonable time. (Complaint, paragraph 17). In this regard, the Eighth Amendment "prohibits the Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 13 of 43 13 unnecessary and wanton infliction of pain, or the infliction of pain totally without penological justification." Ort v. White, 813 F.2d 318, 321 (11th Cir. 1987). Graham requires analysis of the Plaintiff's § 1983 claims under the specific provisions of the Eighth Amendment and prohibits analysis under the more general Fourteenth Amendment provisions. See also Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir. 1987) (citing Whitley v.Albers, 475 U.S. 312 (1986)). The law in this Circuit is that the Eighth Amendment analysis does not change due to the fact that J.B. is a juvenile confined in a juvenile correctional facility. E.g., Morales v. Turman, 562 F.2d 993, 999 n. 1 (5th Cir. 1977) (stating "[t]he eighth amendment applies to juvenile detention centers as well as to adult prisons"); D.R. by Robinson v. Phyfer, 906 F.Supp. 637, 644 (M.D.Ala. 1995); Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1195-1197 (11th Cir. 1994); see also, Edwards v. Gilbert, 867 F.2d 1271 (11th Cir. 1989) (applying deliberate indifference standard without Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 14 of 43 14 differentiation between Eighth and Fourteenth Amendment claims in juvenile setting). Systemic Conditions verses Individual Claims. Simply put, the Plaintiffs are impermissibly attempting to place all blame for the juvenile justice system on Mr Wood. The substance of the complaint–that J.B. had to wait in detention for a DYS bed– involves overall, or systemic, conditions within the juvenile justice system. Plaintiffs however allege that Mr. Wood simply deliberately and intentionally caused him (and a class of similar individuals) to be held in detention for an unreasonable length of time without “treatment.” Thus, the Plaintiffs do not allege that J.B. has been subjected to a unique type of punishment or condition to which other inmates have not been subjected. In fact he alleges the opposite–that an entire class of Plaintiffs suffered the exact same type of punishment or condition as he. It is therefore clear that the case alleges general or systemic conditions. Because this case actually focuses on the general or systemic conditions allegedly giving rise to Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 15 of 43 15 classwide constitutional deprivations, it is significantly distinguishable from cases in which prison officials have been found individually liable for constitutional violations. Such cases usually involve prison officials or supervisors who individually inflicted, or stood by while subordinates intentionally inflicted excessive force, denied medical benefits, or otherwise deprived plaintiffs of their constitutional rights in a one on one situation. In addition to the obvious difference in the level of personal culpability in such situations as compared to this case, there is a substantive distinction between the two types of claims. As the following paragraphs describe, that substantive difference reveals that the Plaintiffs have chosen a vehicle for this claim they cannot ride. Because this is a monetary damages lawsuit, the Plaintiffs can only focus on the individual culpability of the defendant J. Walter Wood, Jr. in his individual capacity, and not on the characteristics of the entire system which gives rise to the wait list conditions when they occur. Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 16 of 43 16 In Wilson v. Seiter, 501 U.S. 298, 309, 111 S. Ct. 2321, 115 L. Ed.2d 271 (1991), Justice White, concurring in the judgment, discussed the distinction between cases challenging specific acts or omissions directed at individual prisoners on one hand versus challenges to general conditions of confinement on the other, and observed that "intent simply is not very meaningful when considering a challenge to an institution, such as a prison system." However Justice White noted that prison officials will be able to defeat § 1983 actions, such as this one challenging prison conditions by, for example, showing insufficient funding prevented the official from meeting standards of decency. Justice White’s conclusion was based on his observation that systemic problems are the result of actions or inactions by numerous officials over a long period of time as opposed to acts or omissions directed at specific prisoners. The true essence of the Plaintiff’s allegations in this case is that the actions or inactions by the entire Alabama Juvenile Justice system over time has resulted in alleged Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 17 of 43 As discussed below, the Defendant submits that no4 constitutional deprivation results from a juvenile delinquent being placed by a juvenile judge in detention–with or without “treatment.” 17 classwide constitutional deprivations .4 The solution to the problem of systemic inadequacies is found in the difference between damage claims, brought in an official's individual capacity, and injunctive claims, which name defendants in their official capacities, and are "in all respects other than name, to be treated as a suit against the entity." Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114, (1985). Because significant personal culpability is necessary to sustain individual liability under 42 U.S.C. § 1983, damage claims against a specific individual do not focus on the combined acts or omissions of persons other than the defendant. Only injunctive relief claims may focus on the combined acts or omissions of the state's agents, without searching for a particular bad actor whose individual conduct caused the constitutional deprivation. However, this is an individual liability case and must focus only on Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 18 of 43 18 the individual bad acts of the Defendant J. Walter Wood, Jr., not an injunctive relief case which could focus on the overall combination of activities by agency employees over time. Significantly, in this case there are no claims for injunctive relief. Yet because the problem is systemic and not the result of one man’s actions or non-actions, the Plaintiffs could only hope to prevail if they could have this Court focus on the alleged systemic problem and award monetary damages against J. Walter Wood, Jr. This he cannot do. A high degree of personal culpability is required to impose liability under 42 U.S.C. 1983. See Hill v. Dekalb Reg’l Youth Detention Center., 40 F.3d 1176, 1192 (11 Cir. 1994). The Eleventh Circuit discussedth this issue in Williams v. Bennett, 689 F.2d 1370, 1382, (11th Cir. 1982), stating: it would be unfair to penalize with personal monetary liability an individual Board of Corrections member whose vigorous efforts to hire sufficient prison guards, or to assign available guards so as adequately to staff the dormitories, were overruled Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 19 of 43 19 by the contrary views of a majority of the Board. On the other hand, it would be highly relevant to the establishing of personal liability to introduce evidence that an individual defendant, having jurisdiction over an adequate number of guards and over Williams' dormitory at the time of the stabbing announced: "I'm not going to station a guard in that dorm. Those prisoners deserve what they can do to one another." Such matters remain to be litigated. Similarly, it would be highly unfair to punish with individual liability a DYS employee for the systemic condition about which the Plaintiffs complain without evidence that the employee’s personal conduct actually caused the deprivation. As set forth in the Facts section above, it is clear that J. Walter Wood, Jr. is not personally at fault for the spikes in commitments of juvenile delinquents from the 67 counties to the Alabama Department of Youth Services and the resulting occasional delays in placement. Constitutional Right to Treatment for Juvenile Delinquents. This damages lawsuit against Mr. Wood individually is based on an alleged constitutional right that does not exist. The following paragraphs Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 20 of 43 J.B.’s committing judge noted that he was committed on one5 occasion for drug treatment, however there is no constitutional right to drug rehabilitation. See, e.g., Bulger v. United States Bureau of Prisons, 65 F .3d 48, 50 (5th Cir.1995); Abdul-Akbar v. Department of Corrections, 910 F.Supp. 986, 1002 (D.Del.1995). Drug addiction therapy can fall in the category of necessary medical treatment, but only under limited circumstances not present here. Two theories have been argued by various plaintiffs in an6 attempt to establish a right to treatment for juvenile delinquents. First is the argument is parens patriae. It is argued that the nature and duration of the commitment should bear a relationship to the purposes for which the juvenile was committed, and since juveniles are committed for “rehabilitation”, the argument goes that confinement should not be without treatment. The second argument is the “quid pro quo” 20 will discuss the constitutional right to treatment for juvenile delinquents. When analyzing treatment issues of juvenile delinquents it is first necessary to distinguish juvenile delinquency treatment case from cases addressing mental health treatment or mental illness treatment. The Plaintiff J.B. is a juvenile delinquent. He was committed to the custody of the Department of Youth Services after adjudication for serious criminal conduct. He is not seriously mentally ill and has no serious medical needs requiring5 immediate treatment. The “treatment” issue in this case is based on the objective of rehabilitation. It6 Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 21 of 43 argument. It is argued that juvenile offenders have fewer constitutional protections than adults during adjudication and should therefore receive treatment. Neither argument has been adopted by the Eleventh Circuit, the Alabama Supreme Court, nor the United States Supreme Court. 21 is important to keep in mind the purposes for which J.B. was committed: he was committed by the juvenile court to be held accountable for his actions, to protect the public, and in an attempt to rehabilitate him and return him to society with the tools to function as a non-delinquent juvenile. While it is true that DYS attempts to rehabilitate delinquent juveniles, there is frequently-–as in this case--a strong penological aspect for juvenile commitments to DYS. This is supported by the fact that the committing judges, including J.B.’s committing judge, have knowledge when juveniles are in detention for more than 25 days but require them to remain in detention pending placement in a DYS facility. Neither the US Supreme Court, the Eleventh Circuit, nor the Alabama Supreme Court has addressed whether a right to treatment exists for juvenile delinquent offenders. Accordingly no such right can be said to Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 22 of 43 If a cause of action existed under the Due7 Process clause of the Fourteenth Amendment, which it does not as discussed above, Mr. Wood would be immune from liability. 22 exist for purposes of holding Mr. Wood personally liable. 7 Eighth Amendment Analysis. As discussed above, the Eleventh Circuit has held that the Eighth Amendment is the applicable standard for claims for conditions of confinement in juvenile facilities. Moreover, J. Walter Wood, Jr. could only be liable for a constitutional violation that “shocks the conscience”. Mere negligence is insufficient to state a cause of action. The evidence is woefully insufficient to create a fact issue whether Mr. Wood deliberately punished J.B. by causing him to remain in detention in violation of a constitutional right to treatment. Deliberate Indifference. As stated above, only actions by prison officials with a culpable state of mind will support an Eighth Amendment claim. The requisite state of mind for a prison official is deliberate indifference to a substantial risk of Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 23 of 43 As discussed above, the constitution does not require8 “treatment” for juvenile delinquency. Accordingly, the Plaintiff’s claim fails to satisfy the “objectively serious” element under the Eighth Amendment. 23 serious harm to an inmate. Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Supreme Court has made clear that the elements of an Eighth Amendment claim include both an “objective” and “subjective” component. See Hudson v. McMillian, 503 U.S. 1, 20, 112 S.Ct. 995 (1992), citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991). In other words, to establish the defendant acted with deliberate indifference, first, the plaintiff must prove an objectively serious need ,8 and second, the plaintiff must prove that the prison official acted with deliberate indifference to that need.” Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.2004). The subjective component requires showing the official acted with a specific “intent to punish.” Salas v. Tillman, 162 Fed. Appx. 918, 921, 2006 WL 122426, 3 (11 Cir. 2006), citing Taylor v. Adams, 221th F.3d 1254, 1258 (11th Cir.2000). Clearly J. Walter Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 24 of 43 24 Wood, Jr. has not acted with an intent to punish. “To establish the second element, deliberate indifference to the serious medical need, the prisoner must prove three facts: (1) subjective knowledge of a risk of serious harm [to the Plaintiff]; (2) disregard of that risk; and (3) conduct that is more than mere negligence.” Brown v. Johnson, 387 F.3d at 1351. The Plaintiffs must show that Mr. Wood reacted to the alleged constitutional deprivation (if it existed) in an “objectively unreasonable manner.” See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1982-83, 128 L.Ed.2d 811 (1994). The Plaintiffs in this case cannot satisfy the deliberate indifference standard. There is no evidence that Mr. Wood was specifically familiar with J.B. so under no circumstances could he have perceived a serious risk of harm to him or have disregarded that risk. Moreover, his actions in relation to the overall systemic conditions about which the Plaintiffs complain can only reasonably be perceived as having been taken in good faith. The deliberate indifference standard is quite Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 25 of 43 25 deferential to the judgments of prison administrators because it subjects prison officials to liability only when they are subjectively aware of the risk to the inmate, and they fail to take reasonable measures to abate the risk. Farmer, 511 U.S. at 847, 114 S.Ct. 1970. J.B. can submit no evidence that Mr. Wood acted with deliberate indifference to the substantial risk of serious harm to J.B. “[D]eliberate indifference describes a state of mind more blameworthy than negligence”. Farmer v. Brennan, 511 U.S. at 835, 114 S.Ct. 1970. Vicarious Liability. A § 1983 claim cannot be based on vicarious liability. Brown v. Smith, 813 F.2d 1187 (11 Cir. 1987), citing Gilmere v. City ofth Atlanta, 774 F.2d 1495, 1504 (11th Cir.1985) (en banc), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). There are no facts on which to place sole blame for the alleged constitutional violation (if it existed) on Mr. Wood. Accordingly, he is entitled to summary judgment. Because the Eighth Amendment provides the proper Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 26 of 43 26 framework for analysis of this claim, summary judgment is due to be granted. However, for the sake of thoroughness, the following paragraphs will analyze this claim as though it could be considered under the Fourteenth Amendment. Substantive Due Process vs. Procedural Due Process. The Complaint states that the action is premised on two distinct and separate legal theories. The first is an alleged due process violation for “unreasonable delay in placement.” The second is violation of a state statute regarding placement within seven days of notice of commitment. (Complaint, unnumbered paragraph on page 1). The two theories will be dispensed with below. Assuming for the sake of argument the claim could be analyzed under the Fourteenth Amendment and not under the Eighth as discussed above, what specifically is the claim: substantive or procedural due process? The distinction between substantive and procedural due process is sometimes overlooked, yet analysis is made easier by identification of whether the claim involves Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 27 of 43 27 substantive or procedural due process. The complaint in this case could only allege substantive due process–not procedural– because there are no allegations of unique individual punishment or conditions. See Ronald D. Rotunda, Treatise on Constitutional Law-Substance and Procedure, § 14.6, p. 5 (3 ed. 2002 pocket pt.) (stating “generallyrd speaking when an inmate claims he has been subjected to a special type of punishment, or unfavorable conditions to which other inmates have not been subjected, he raises procedural due process...” “When the prisoner claims the general conditions in the prison fall below constitutionally accepted standards..., he raises substantive due process.”) Now, recognizing the claim must be analyzed as a substantive due process claim, the state statutory violation claim can be quickly dealt with because violations of state statutes do not give rise to substantive due process violations. Under substantive due process, substantive rights created only by state law are not subject to protection because substantive Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 28 of 43 28 due process rights are created only by the Constitution. See Vineyard v. Wilson,311 F.3d 1340 1356 (11th Cir. 2002) (citing McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir.1994) (en banc)). The claim based on violation of a state statute simply fails to state a cause of action on which relief could be granted. The second theory–substantive due process violation for unreasonable delay in placement without treatment–does not raise a clearly established constitutional right. There is no case law, no federal statute, and no constitutional provision which clearly establishes the alleged constitutional right. Simply put, there is no constitutional right to “treatment” for a juvenile delinquent committed to state custody for criminal adjudications. This issue was more fully discussed above under the heading Constitutional Right To Treatment for Juvenile Delinquency. The undersigned anticipates that counsel for Plaintiffs will argue that a constitutional right was established, and notice was provided for purposes of immunity analysis, as a result of previous litigation Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 29 of 43 29 by counsel for Plaintiffs against the Defendant and his predecessor. Those cases are referred to as the A.W. v. Dupree and S.S. v. Wood cases. However the undersigned submits that argument has no merit because both the A.W. v. Dupree Consent Decree, and the S.S. v. Wood Settlement Agreement acknowledged that no violation of the constitution or any federal or state statute was admitted. In other words, the settlement agreements were to provide more than the constitution required. Moreover, a constitutional right is established such that a governmental defendant can be on notice only by cases in which the Supreme Court, the Eleventh Circuit, or the pertinent state supreme court has said that specific conduct’ is unconstitutional in specific circumstances. In Vineyard v. Wilson, the Eleventh Circuit stated that “we look for cases in which the Supreme Court or [the Eleventh Circuit], or the pertinent state supreme court has said that ‘Y Conduct’ is unconstitutional in ‘Z Circumstances.’” Vinyard v. Wilson, 311 F.3d 1340, 1351-1352 (11th Cir. 2002), Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 30 of 43 30 (citing Marsh v. Butler County, 268 F.3d 1014, 1032-33 n. 10 (11th Cir.2001) (en banc). The Defendant submits that nether the settlement in A.W. v. Dupree, nor the settlement in S.S. v. Wood, clearly established the law. The cases were settled and no appeal to the Eleventh Circuit was filed. The fact that counsel for the Plaintiffs has claimed a right exists does not establish the right for purposes of constitutional analysis. The Plaintiffs must point to case law before the Eleventh Circuit, the Supreme Court, or the Alabama Supreme Court adjudicating the particular conduct Wood is alleged to have committed under circumstances materially similar to those a defendant faced in a different case. No such case exists. Qualified Immunity. An official is entitled to immunity if he is performing discretionary functions and his actions do not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Lancaster v. Monroe, 116 F.3d 1419, 1424 (11th Cir. 1997) citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 31 of 43 31 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects government officials sued in their individual capacities in almost every situation. Only the "plainly incompetent or those who knowingly violate the law" are subjected to liability. Chesser v. Sparks, 248 F.3d 1117, 1122 (11th Cir. 2001) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092 , 1096, 89 L. Ed. 2d 271 (1986)). "The purpose of this immunity is to allow the government officials to carry out their discretionary duties without fear of personal liability or harassing litigation," Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). A two-step analysis is required to determine whether a public official is entitled to the defense of qualified immunity: 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, and 2) once the defendant public official satisfies his burden of moving forward with the evidence, the burden shifts to the plaintiffs to show lack of good faith on the defendant's part. This Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 32 of 43 32 burden is met by proof demonstrating that the defendant public official's actions violated clearly established constitutional law. Ziegler v. Jackson, 716 F.2d 847 , 849 (11th Cir. 1983). In most cases in this circuit, rights are "clearly established" by decisions of the United States Supreme Court, the Eleventh Circuit, or the highest court of the state in which the case arose (the Alabama Supreme Court). Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003) (citing Hamilton v. Cannon, 80 F.3d 1525, 1532 n.7 (11th Cir.1996)). There is no evidence that Wood committed an individual wrongful act that caused the alleged constitutional violation. The facts reveal Mr. Wood’s role in the system involves the discretionary function of hiring, firing, transferring, assigning, or supervising personnel, including making decisions with regard to allocation of state resources. (See Exhibit 3 and Exhibit 4). The burden is thus on the Plaintiffs to show lack of good faith on the part of Mr. Wood. This they cannot do. Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 33 of 43 33 COUNT II–NEGLIGENCE. To establish negligence, a plaintiff must prove that the defendant breached a duty owed by the defendant to the plaintiff and that the breach proximately caused the plaintiff injury or damage. E.g. Prince v. Wal-Mart Stores, Inc., 804 So.2d 1102, 1104 (Ala.Civ.App.2001); Lowe's Home Ctrs., Inc. v. Laxson, 655 So.2d 943, 945-46 (Ala.1994). The Plaintiffs cannot submit a material question of fact whether Mr. Wood breach a duty to J.B. that proximately caused damages. The facts make clear that the Plaintiff’s commitments were for criminal misconduct, his placement in detention was by the committing court, and any delay in placement was not a result of any act or omission by Mr. Wood. State Agent Immunity. Moreover, assuming the existence of a material issue of fact regarding a breach of duty and/or proximate cause and/or damages, Mr. Wood is an employee of the State of Alabama and was acting, insofar as the allegations of the complaint are concerned, within his discretionary authority. Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 34 of 43 34 In Ex parte Cranman, 792 So.2d 392 (Ala. 2000), the Alabama Supreme Court adopted the Restatement (Second) of Tort’s formula for determining whether a state actor has immunity from tort liability. The issue presented in Cranman was whether state employed physicians enjoy immunity from tort actions arising from performance of their duties. The Supreme Court summarized the historical development of State agent immunity and, in the context of suits against governmental officials in their individual capacity, analyzed the delicate balance between the provisions of Art. I, § 14, Ala. Const. of 1901, which says that the state of Alabama shall never be made a defendant in any court of law or equity, and Art. I, § 13, Ala. Const. of 1901, which guarantees a remedy by due process of law for every injury to person or property. The Court recognized that recent cases have illuminated the distinction between conduct on one hand involved in administrative planning or decision-making and conduct on the other to carry out orders with little choice as to when, where, how, or under what circumstances to act. See Cranman, Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 35 of 43 35 at 10. Based on that framework, the Court went on to restate the rule governing State agent immunity: 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; ©) 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 (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, at 11-12. Cranman goes on to state: Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 36 of 43 36 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, at 12). The pivotal issue determinative of whether an employee is entitled to immunity under this test is whether the employee was performing a function that requires the exercise of judgment, see City of Bayou La Batre v. Robinson, 785 So.2d 1128, 2000 WL 1801279 (Ala. 2000), in the formulation of governmental policy, see Horton v. Briley, 792 So.2d 432, 2001 WL 29327 (Ala.Civ.App. 2001). Such actions are akin to "administrative planning or decision-making" discussed in Cranman as clearly protected by State agent immunity. There can be no serious argument whether Mr. Wood was exercising administrative planning and decision making with regard to the allegations in the Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 37 of 43 37 complaint. It is axiomatic that the Director's responsibility is administrative planning and decision making in connection with formulation of policy, hiring, firing, transferring, assigning or supervising personnel, exercising judgment in connection with releasing prisoners, counseling or releasing persons of unsound mind, or educating students, and his actions are thus specifically listed in Cranman as actions for which State agent immunity extends. COUNT III–WANTONNESS. Likewise, the claim for wantonness fails to raise a material issue of fact. “Wantonness is not merely a higher degree of culpability than negligence. Negligence and wantonness, plainly and simply, are qualitatively different tort concepts of actionable culpability. Implicit in wanton, willful, or reckless misconduct is an acting, with knowledge of danger, or with consciousness, that the doing or not doing of some act will likely result in injury.... Ex parte Anderson, 682 So.2d 467, 470 (Ala. 1996). Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 38 of 43 38 Thus, it appears that wantonness is a similar concept to “deliberate indifference.” There is no material question of a material fact sufficient to establish that Mr. Wood is guilty of wantonness. Moreover, if a claim of wantonness were asserted under the facts of this case, Wood would be entitled to immunity. “[W]anton misconduct, an aggravated form of negligence, does not rise to the level of willfulness and maliciousness necessary to put the State agent beyond the immunity recognized in Cranman.” Ex parte Randall, --- So.2d ----, 2007 WL 1229208, (Ala. 2007), citing Giambrone v. Douglas, 874 So.2d 1046, 1057 (Ala.2003) (holding that State-agent immunity “is not abrogated for negligent and wanton behavior; instead, immunity is withheld only upon a showing that the State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her authority”) PRISON LITIGATION REFORM ACT. The Prisoner Litigation Reform Act (“PLRA”) states: [n]o Federal civil action may be brought by a prisoner confined in jail, prison, or other Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 39 of 43 39 correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury. 42 U.S.C. § 1997e(e). J.B. sustained no physical injury. He was in custody at the time this lawsuit was filed and is in custody again. The claim should be dismissed pursuant to the provisions of the PLRA. CONCLUSION Summary judgement is due to be granted to the Defendant, J. Walter Wood, Jr., in his individual capacity, as to all counts in the complaints. The 1983 claim must be analyzed under the Eighth Amendment. It fails to state a constitutional violation. The facts of this case cannot be construed to create a question whether Mr. Wood acted deliberately and in callous disregard to punish J.B. by causing him to be held in detention without treatment pending DYS placement. However, for the sake of argument, if the 1983 claim is analyzed under the Fourteenth Amendment, and if the Court is of the opinion that a constitutional violation has been alleged, the Defendant is entitled to immunity Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 40 of 43 40 because his actions were taken in good faith and there are no facts from which an inference of bad faith could be drawn. The negligence claim fails because there is no question of fact whether Mr. Wood individually either (1) had a duty to the Plaintiff, (2) breached that duty, (3) proximately caused (4) damages to the Plaintiff J.B. However, assuming for the sake of argument that a fact question exists as to negligence, Mr. Wood is entitled to state-agent immunity. Finally, the wantonness claim fails because the facts do not raise a triable question whether Mr. Wood acted with wanton, willful, or reckless misconduct. The facts cannot reasonably be construed, in any light whatsoever, to present a fact question whether Mr. Wood acted in bad faith. Alternatively, assuming a fact question could be said to exist, Mr. Wood is entitled to immunity for the wantonness claim. Finally, the complaints are due to be dismissed under the provisions of the Prison Litigation Reform Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 41 of 43 41 Act. Respectfully submitted TROY KING ATTORNEY GENERAL s/ T. Dudley Perry, Jr. T. Dudley Perry, Jr. Bar Number: 3985-R67T Deputy Attorney General Post Office Box 66 Mt. Meigs, AL 36057 Telephone: (334) 215-3803 Fax: (334) 215-3872 E-Mail: dudley.perry@dys.alabama.gov CERTIFICATE OF SERVICE I hearby certify that on the 29th day of May, 2007, I electronically filed the foregoing BRIEF IN SUPPORT OF SUMMARY JUDGMENT, with the Clerk of the Court Using the CM/ECF system which will send notification of such filing to the following: Michael J. Crow, Esq. BEASLEY, ALLEN, CROW METHVIN, PORTIS & MILES, P.C. Post Office Box 4160 Montgomery, AL 36103-4160 Case 2:06-cv-00755-MHT-CSC Document 30 Filed 05/29/2007 Page 42 of 43 42 Robert D. Drummond, Jr., Esq. ATTORNEY AT LAW 6767 Taylor Circle Montgomery, AL 36117 s/T. Dudley Perry, Jr. T. Dudley Perry, Jr. Bar Number: 3985-R67T Deputy Attorney General Attorney For Defendant J. 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