1

Alabama Code § 6-5-20 provides in pertinent part: “An Action must not be commenced

against a county until the claim has been presented to the county commission, disallowed or

reduced by the commission and the reduction refused by the claimant.” Alabama Code §11-47-

23 provides in pertinent part: “All claims against the municipality . . . shall be presented to the

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CARRIE SCOTT and JAMES SCOTT, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 2:10-00186-CG-N

)

J. PAUL JONES HOSPITAL, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

This action is before the undersigned on a motion to dismiss (docs. 14, 15) has

been filed by J. Paul Jones Hospital and J. Paul Jones Hospital Board, defendants herein

(hereinafter “Hospital Defendant”), and plaintiffs’ response (doc. 19). This matter was

referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for

entry of a Report and Recommendation.

Background 

The motion to dismiss is predicated upon plaintiffs’ failure to file a timely notice

of claim with either the Wilcox County Commission or the City of Camden, Alabama, as

required by Ala. Code §§ 6-5-20 and 11-47-23 (1975) because these defendants are

governmental entities which are considered part of Wilcox County and the City of

Camden.1

 In their response to the Hospital Defendants’ motion to dismiss, plaintiffs

Case 2:10-cv-00186-CG-N Document 20 Filed 05/28/10 Page 1 of 4
clerk for payment within two years from the accrual of said claim or shall be barred [and]

[c]laims for damages growing out of torts shall be presented within six months from the accrual

thereof or shall be barred.” See also, Alabama Code § 11-12-8 which provides that “[a]ll claims

against counties must be presented for allowance within 12 months after the time they accrue or

become payable or the same are barred...” 

2

It is undisputed that plaintiffs’ claims arise from Carrie Scott’s treatment at J. Paul Jones

Hospital on February 20, 2008. Plaintiffs commenced this action in the Circuit Court of Wilcox

County on February 19, 2010, without ever having given the requisite notice of claim. 

Consequently, it is also undisputed that plaintiffs claims are time-barred by virtue of the time

restrictions imposed by the non-claim statutes set forth in n. 1, supra.

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concede that these defendants “are the same entity as the Wilcox County Hospital Board”

and do not dispute that their claims are barred by their aforementioned failure to file the

requisite timely notice of claim with either the Wilcox County Commission or the City of

Camden.2

 See Jacks v. Madison County, 741 So.2d 429, 431 (Ala.Civ.App. 1999)(“§

11-12-8 requires that such a claim be presented within 12 months of the accrual of the

claimant's cause of action, and the failure to present such a claim to the county within that

period is a bar to a subsequent civil action on that claim), citing Health Care Auth. v.

Madison County, 601 So.2d 459, 462 (Ala. 1992). See also, Lawrence County v. Decatur

General Hospital, 675 So.2d 393, 396 (Ala. 1996)(The Alabama Supreme Court

“interpreted sections §§ 6-5-20, 11-12-5, 11-12-6, and 11-12-8, which control claims

against counties, to “require presentment of an itemized, verified claim to the county

commission within 12 months of the accrual of the claim...”). There existed, therefore, at

the time this action was filed, no possibility of plaintiffs prevailing against these

defendants. 

For the reasons set forth above, and based on plaintiffs’ lack of opposition to the

Case 2:10-cv-00186-CG-N Document 20 Filed 05/28/10 Page 2 of 4
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motion, it is recommended that the motion to dismiss Defendants J. Paul Jones Hospital

and J. Paul Jones Hospital Board be GRANTED. The action should continue as to the

remaining defendants, Baxter Healthcare Corporation, Sicor, Inc., Teva Parenteral

Medicines, Inc., Teva Pharmaceuticals, USA, Inc.

The instructions which follow the undersigned’s signature contain important

information regarding objections to the report and recommendation of the magistrate

judge.

Done this 28th day of May, 2010.

/s/ Katherine P. Nelson 

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 2:10-cv-00186-CG-N Document 20 Filed 05/28/10 Page 3 of 4
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Effective December 1, 2009, the time for filing written objections was extended to “14

days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P. 72(b)(2).

4

RIGHTS AND RESPONSIBILITIES FOLLOWING

RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within

fourteen days of the date of service of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo determination by the district judge of anything

in the recommendation and will bar an attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1)(c); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988);

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for

challenging the findings and recommendations of the magistrate judge is set out in more detail in

SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in a

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by

filing a “Statement of Objection to Magistrate Judge’s Recommendation” within

[fourteen] days3

 after being served with a copy of the recommendation, unless a

different time is established by order. The statement of objection shall specify

those portions of the recommendation to which objection is made and the basis

for the objection. The objecting party shall submit to the district judge, at the

time of filing the objection, a brief setting forth the party’s arguments that the

magistrate judge’s recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a copy of the original brief

submitted to the magistrate judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief in support of the objection. 

Failure to submit a brief in support of the objection may be deemed an

abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a Court of Appeals; only the

district judge’s order or judgment can be appealed.

2. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. §

1915 and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this

action are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the cost

of the transcript.

Done this 28th day of May, 2010.

/s/ Katherine P. Nelson 

UNITED STATES MAGISTRATE JUDGE

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