King v. Correctional Medical Services, Inc., 2030903.

919 So.2d 1186

Nicole KING, administrator of the estate of Christopher King, deceased v. CORRECTIONAL MEDICAL SERVICES, INC., et al.

No. 2030903.

Court of Civil Appeals of Alabama.

April 15, 2005.

Rehearing Denied July 15, 2005.

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Johnny B. Davis, Ozark, for appellant.

Philip G. Piggott of Starnes & Atchison, LLP, Birmingham, for appellee Correctional Medical Services, Inc.

CRAWLEY, Presiding Judge.

On October 20, 2000, Christopher King, an inmate incarcerated at Kilby Correctional Facility, died at Baptist East Hospital as a result of an infection of the brain. King had been transferred to the hospital on October 19, 2000, after becoming nonresponsive in the Kilby infirmary. In October 2002, King's sister, Nicole King, sued the Alabama Department of Corrections ("ADOC"); Mike Haley, who at that time was the commissioner of ADOC, in his individual capacity; and Correctional Medical Services, Inc. ("CMS"), the medical provider that administered ADOC's inmate health program; she also named several fictitiously named parties in her complaint. Ms. King alleged that under both state law and 42 U.S.C. § 1983 the defendants had negligently treated King, resulting in his death; that they had been deliberately indifferent to King's serious medical needs, thereby violating his constitutional right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution; and that the policies of the various institutions that King had been incarcerated in between May 2000 and October 2000 exhibited deliberate indifference to the constitutional rights of inmates, such as King, to be free from cruel and unusual punishment. The complaint sought compensatory and punitive damages and attorney fees; it sought no declaratory or injunctive relief.

CMS moved for a summary judgment, arguing that the CMS physicians who treated King, Dr. Benjamin Glover and Dr. Jean Darbouze, had at all times acted consistently with the applicable standard of care and, therefore, that they could not be liable for medical malpractice under the Alabama Medical Liability Act, Ala.Code 1975, § 6-5-480 et seq. CMS attached the affidavits of both Dr. Glover and Dr. Darbouze and King's medical records in support of the motion. CMS did not specifically raise any issue regarding Ms. King's deliberate-indifference claim under § 1983. ADOC and Haley (referred to collectively at times as "the correctional defendants") moved for a summary judgment as well, in which they argued that they were entitled to sovereign immunity pursuant to Art. I, § 14, Ala. Const.1901;¹ that Haley was entitled to State-agent immunity as originally described in Ex parte Cranman, 792 So.2d 392 (Ala.2000), and adopted by a majority of our supreme court in Ex parte Butts, 775 So.2d 173 (Ala.2000);² that the complaint failed "to state a claim upon which a 42 U.S.C. § 1983 action can be maintained"; and that Ms. King could not establish that Haley had been deliberately indifferent to King's serious medical needs.

In opposition to CMS's summary-judgment motion, Ms. King filed a response that included excerpts of the deposition testimony of her medical expert, Dr. Robert B. Greifinger, in which he opined that both Dr. Glover's and Dr. Darbouze's evaluation and treatment of King fell below the applicable standard of care. Ms. King also argued that she had stated a deliberate-indifference claim against CMS and that CMS's summary-judgment motion failed to shift to her the burden of producing substantial evidence concerning that claim. CMS then filed a motion challenging whether Dr. Greifinger was a "similarly situated health care provider" as required by Ala.Code 1975, § 6-5-548(b). The trial court held a transcribed hearing at which the majority of the arguments centered on whether Dr. Greifinger qualified as a "similarly situated health care provider."

The trial court entered a full summary judgment in favor of all defendants, specifically concluding that Dr. Greifinger was not qualified as a "similarly situated health care provider" under § 6-5-548(b) and that ADOC and Haley were entitled to § 14 immunity and State-agent immunity, respectively. Ms. King appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6). On appeal, Ms. King argues that the trial court incorrectly concluded that the correctional defendants were entitled to immunity and that Dr. Greifinger was not a "similarly situated health care provider." We affirm.

The Claims Against the Correctional Defendants

Ms. King argues that the correctional defendants are not entitled to immunity under § 1983 for their actions. As noted above, in their summary-judgment motion the correctional defendants argued that Ms. King's complaint was barred by § 14 immunity and by State-agent immunity, that the complaint failed "to state a claim upon which a 42 U.S.C. § 1983 action can be maintained," and that Ms. King could not establish that Haley had been deliberately indifferent to King's medical needs. Ms. King does not argue on appeal that the correctional defendants were not entitled to immunity on any state-law claims raised in her complaint; accordingly, the summary judgment in favor of the correctional defendants on Ms. King's state-law claims on the basis of immunity is affirmed. Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003) (stating that issues not raised and argued in brief are waived).

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d).

Ms. King argues that the trial court's summary-judgment order, which relies solely on § 14 immunity and State-agent immunity, fails to consider federal law governing immunity under § 1983. We agree; the trial court failed to appreciate that § 14 immunity and State-agent immunity have no applicability to federal-law claims. However, the summary judgment in favor of the correctional defendants on Ms. King's § 1983 claims is still proper. First of all, "[t]he State of Alabama, its agencies, and its officials acting in their official capacities are not considered `persons' for purposes of an action for damages under 42 U.S.C. § 1983."³ State Dep't of Pub. Safety v. Sexton, 748 So.2d 200, 216 (Ala.Civ.App. 1998) (citing Hafer v. Melo, 502 U.S. 21, 27, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). Thus, the summary judgment in favor of ADOC on Ms. King's § 1983 claim is affirmed.

Secondly, with regard to Haley, the correctional defendants argued in their summary-judgment motion that Ms. King could not establish that Haley had been deliberately indifferent to King's medical needs. Haley's affidavit states that he made no decisions regarding the proper medical treatment for inmates and that he did not "intercede, overrule, or influence any decisions made by medical personnel regarding medical treatment for inmates." In addition, as the correctional defendants point out, King was never denied medical care. King's medical records establish that King was seen in, and in fact was often admitted to, the infirmaries of the various institutions at which he was incarcerated. The gravamen of Ms. King's complaint is that King was negligently diagnosed and treated.

"[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain,'" and is a violation of the Eighth Amendment right to be free from cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Deliberate indifference can be manifested by prison personnel intentionally denying or delaying access to medical care, by prison personnel interfering with prescribed treatment, or by prison doctors responding indifferently to a prisoner's medical needs. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285. However,

"an inadvertent failure to provide adequate medical care cannot be said to constitute `an unnecessary and wanton infliction of pain' or to be `repugnant to the conscience of mankind.' Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."

Id. at 105-06, 97 S.Ct. 285.

As the correctional defendants point out in their summary-judgment motion, the Supreme Court in Estelle considered that the inmate plaintiff had been seen by medical personnel numerous times and that he had received treatment. Id. at 107, 97 S.Ct. 285. The Court, after considering the inmate's claim that other testing or treatment that had been warranted by his condition was not performed or prescribed, determined that the possibility that other tests or treatment might have been advisable in a certain situation was "[a]t most... medical malpractice." Id. The court stated that "[a] medical...