IN 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 unCase 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 against th

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 a 1

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 fluctuate 2

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. The 2

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 than 3

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 number

3

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 quasigovernmental 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 no 4

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 discussed th

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 one 5

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 an 6

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 requiring

5

immediate treatment. The “treatment” issue in this

case is based on the objective of rehabilitation. It

6

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 Due 7

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 require 8

“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, 221 th

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 of

th

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

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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

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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 “generally rd

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

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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

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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),

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(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.

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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

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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. 

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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.

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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,

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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:

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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

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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).

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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

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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

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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

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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

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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. Walter Wood, Jr.

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