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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15228
________________________
D.C. Docket No. 2:12-cv-00392-WHA-SRW
SHERRIE JOHNSON,
as administratrix of the Estate of Alquwon Johnson deceased,
Plaintiff - Appellee,
versus
RYAN CONNER,
SONYA MAYO,
GEORGE PARHAM, Captain,
Defendants - Appellants,
BARBOUR COUNTY, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(June 13, 2014)
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Before CARNES, Chief Judge, WILSON, Circuit Judge, and HUCK, ∗ District
Judge.
HUCK, District Judge:
We are called upon to determine whether a recently amended Alabama
statute granting sovereign immunity to jailers, which is silent on retroactivity,
applies retroactively or only prospectively. Ala. Code § 14-6-1. 1 For the reasons
discussed below, we find that the traditional presumption against retroactivity
applies here. Therefore, the new grant of immunity does not shield the jailers,
Appellants in this case, from liability for their alleged pre-amendment acts.
Because we do not apply the statute retroactively, we do not reach the issue of
whether the jailers would have been within the statute’s grant of immunity.
I. FACTS
This case arises from an inmate’s suicide. Appellee, Sherrie Johnson,
alleges that her son, Alquwon Johnson, an inmate at Barbour County Jail, suffered
from a documented history of mental illness, and had been prescribed psychoactive
medication to treat depression. She alleges that Appellants, Ryan Conner, Sonya
Mayo, and George Parham, who were corrections personnel at the jail, were
∗
Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
1
Federal courts have twice certified questions about amended § 14-6-1’s
applicability to the Alabama Supreme Court, and the Alabama Supreme Court has twice declined
to rule. Johnson v. Conner, No. 1121178 (Ala. Oct. 31, 2013); Sawyer v. Collins, 129 So. 3d
1004, 1004 (Ala. 2013).
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responsible for administering Mr. Johnson’s medication daily, and failed to do so.
She also alleges that Mr. Johnson previously attempted to commit suicide with a
bed sheet while incarcerated, and Appellants failed to take appropriate precautions
with Mr. Johnson following that suicide attempt. Mr. Johnson committed suicide
by hanging himself with a bed sheet on June 4, 2011. Ms. Johnson, as her son’s
personal representative, brought suit on August 8, 2011 under 42 U.S.C. § 1983
and state law. Appellants filed a motion to dismiss, claiming, inter alia, state law
immunity under the recently amended Alabama Code § 14-6-1, which came into
effect on June 14, 2011—ten days after Mr. Johnson’s suicide, but before Ms.
Johnson filed suit.
The district court denied Appellants’ Motion to Dismiss, finding amended
§ 14-6-1 inapplicable. The case reaches us on interlocutory appeal. For the
reasons set forth below, we AFFIRM.
II. ANALYSIS
The State of Alabama is immune from suit, and that sovereign immunity
extends to Alabama sheriffs and their deputies “when [they are] executing their
law enforcement duties.” McMillan v. Monroe Cnty., Ala., 520 U.S. 781, 793
(1997); Ala. Const. Art. I, § 14; Ex parte Haralson, 853 So. 2d 928, 932 (Ala.
2003). Until recently, however, immunity did not extend to jailers, such as the
Appellants here. Addressing jailer immunity for the first time, the Alabama
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Supreme Court held that sovereign immunity did not extend to jailers. Ex parte
Shelley, 53 So. 3d 887, 896 (Ala. 2009). In response, the Legislature enacted the
Jailer Liability Protection Act, which came into effect on June 14, 2011. The Act
provides:
The sheriff has the legal custody and charge of the jail in
his or her county and all prisoners committed thereto,
except in cases otherwise provided by law. The sheriff
may employ persons to carry out his or her duty to
operate the jail and supervise the inmates housed therein
for whose acts he or she is civilly responsible. Persons so
employed by the sheriff shall be acting for and under the
direction and supervision of the sheriff and shall be
entitled to the same immunities and legal protections
granted to the sheriff under the general laws and the
Constitution of Alabama of 1901, as long as such persons
are acting within the line and scope of their duties and are
acting in compliance with the law.
Ala. Code § 14-6-1. Appellants argue that they are immune from suit under
amended § 14-6-1 because they claim they were “acting within the line and scope
of their duties and . . . in compliance with the law.” § 14-6-1. Because the
amended § 14-6-1 became effective after the acts of which Ms. Johnson complains,
Appellants can only claim immunity if the amendment applies retroactively, or if
we determine that we must apply the statute in effect when suit was filed rather
than when the injury occurred. We hold that amended § 14-6-1 does not apply
retroactively, and that we must apply the statute in effect when the injury occurred.
Therefore, we need not and do not address whether Appellants were “acting within
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the line and scope of their duties and . . . in compliance with the law.” Each issue
is addressed in turn.
A. Amended § 14-6-1 Cannot Be Applied Retroactively
Under Alabama law, “Retrospective application of an act is disfavored
unless 1) the act expressly states that it is to be applied retrospectively; 2) the
Legislature clearly intended the act to have retrospective application; or 3) the act
is of a remedial [as opposed to substantive] nature.” Ex parte East Ala. Health
Care Auth., 814 So. 2d 260, 262 (Ala. 2001); Baker v. Baxley, 348 So. 2d 468, 471
(Ala. 1977).2 Section 14-6-1 is silent on retroactivity, and Appellants do not argue
that the statute is remedial in nature—indeed, it affects the substantive rights of the
parties to sue or be sued. Kruse v. Corizon, No. 12-0212-WS-B, 2013 WL
3366040, at *17 (S.D. Ala. July 5, 2013) (“[I]t is difficult to imagine how a statute
creating new immunity from suit could possibly be viewed as remedial and not
substantive. . . . A statute creating a new immunity creates a new vested right in the
jailers and simultaneously destroys the plaintiff’s vested right in his cause of action
against the jailers. This is precisely the sort of legal change that cannot apply
2
In Landgraf v. USI Film Products, the Supreme Court pronounced a similar test
for statutes that are not expressly retroactive: “the court must determine whether the new statute
would have retroactive effect, i.e., whether it would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new duties with respect to
transactions already completed. If the statute would operate retroactively, our traditional
presumption teaches that it does not govern absent clear congressional intent favoring such a
result.” 511 U.S. 244, 280 (1994).
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retroactively without express or obvious legislative approval.”). Appellants argue,
instead, that we should infer legislative intent to apply the statute retroactively for
two reasons. First, they argue that amended § 14-6-1 is a jurisdiction-stripping
statute, and that by use of the word “shall” (jail personnel “shall be entitled to the
same immunities and protections granted to the Sheriff . . . ”), the Legislature
evidenced its intent for the amendment to apply immediately, including to
previously existing causes of action. Second, Appellants argue that the
Legislature’s amendment of § 14-6-1 in reaction to the Ex Parte Shelley decision,
which held that sovereign immunity did not extend to jailers, demonstrates that the
Legislature disagreed with Shelley, and thus intended, “immediately, upon
enactment, [to] strip courts of subject-matter jurisdiction over tort claims against
sheriffs’ jail personnel.” We find that neither of these observations evidences
legislative intent for amended § 14-6-1 to apply retroactively.
The fact that amended § 14-6-1 may be considered a jurisdiction-stripping
statute does not displace the presumption against retroactivity. There does not
appear to be an Alabama decision, one way or the other, concerning whether
jurisdiction-stripping statutes should be treated differently than other statutes.
However, United States Supreme Court decisions are quite informative on this
point, clearly indicating that statutes that affect substantive, vested rights—even
when framed in jurisdictional terms—are still presumed to apply only
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prospectively. In Landgraf v. USI Film Products, the Court said, “a new
jurisdictional rule usually ‘takes away no vested right, but simply changes the
tribunal that is to hear the case.’ Present law normally governs in such situations
because jurisdictional statutes ‘speak to the power of the court rather than to the
rights or obligations of the parties.’” 511 U.S. 244, 274 (1994). The Court later
expanded on this rule, explaining,
Statutes merely addressing which court shall have
jurisdiction to entertain a particular cause of action can
fairly be said merely to regulate the secondary conduct of
litigation and not the underlying primary conduct of the
parties. Such statutes affect only where a suit may be
brought, not whether it may be brought at all.
Hughes Aircraft Co. v. U.S. ex rel Schumer, 520 U.S. 939, 951 (1997) (emphasis in
original). The Court went on to note that a statute that “does not merely allocate
jurisdiction among forums,” but “creates jurisdiction where none previously
existed . . . speaks not just to the power of a particular court but to the substantive
rights of the parties as well. Such a statute, even though phrased in ‘jurisdictional’
terms, is as much subject to our presumption against retroactivity as any other.”
Id. (emphasis in original). Here, we consider a statute that does not allocate
jurisdiction among forums—it removes the right to bring suit against jailers in any
forum. Thus, amended § 14-6-1 speaks to the substantive rights of the parties, and,
if we applied the federal framework laid out in Landgraf and Hughes Aircraft, it
would be presumed to apply only prospectively. This is consistent with Alabama
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law, under which the presumption against retroactivity applies to substantive
statutes—“those that create, enlarge, diminish, or destroy vested rights . . . [and]
define[] and regulate[] the rights, duties, and powers of the parties. Ala. Ins. Guar.
Ass’n v. Mercy Med. Ass’n, 120 So. 3d 1063, 1068 (Ala. 2013); Ex Parte Bonner,
676 So. 2d 925, 926 (Ala. 1995).
Nor does the legislature’s use of the word “shall” in amended § 14-6-1
impact the retroactivity analysis. The word “shall” simply means “has a duty to”
or “is required to . . . this is the mandatory sense that drafters typically intend and
that courts typically uphold.” Black’s Law Dictionary 1407 (Eighth Ed. 2004). It
has nothing to do with retroactivity.
That the Legislature amended § 14-6-1 in response to Shelley likewise does
not evidence any intent for the amendment to apply retroactively. Certainly, the
amendment evidences the Legislature’s displeasure with Shelley. But retroactive
application of the amendment would take away Appellee’s substantive, vested
right to sue in violation of Alabama’s Constitution. Alabama’s Constitution
provides “that every person, for an injury done to him . . . shall have a remedy by
due process of law.” Ala. Const. § 13.
That means that when a duty has been breached
producing a legal claim for damages, such claimant
cannot be denied the benefit of his claim for the absence
of a remedy. But this provision does not undertake to
preserve existing duties against legislative change made
before the breach occurs. . . . Undoubtedly the right to the
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remedy must remain and cannot be curtailed after the
injury has occurred and right of action vested, regardless
of the source of the duty which was breached, provided it
remained in existence when the breach occurred.
Pickett v. Matthews, 192 So. 261, 263-264 (Ala. 1939) (citing 16 Corpus Juris
Secundum, Constitutional Law, p. 1499, § 710). In other words, a litigant has “a
vested interest in a particular cause of action” once the injury occurs. Reed v.
Brunson, 527 So. 2d 102, 114 (Ala. 1988). Section 13 of Alabama’s Constitution
protects litigants from legislative change made after the breach of duty occurs. Id.;
Baugher v. Beaver Constr. Co., 791 So. 2d 932, 934 (Ala. 2000); Kruszewski v.
Liberty Mut. Ins. Co., 653 So. 2d 935, 937 (Ala. 1995). We will not read amended
§ 14-6-1 to deprive Appellee of her vested, substantive right absent a showing of
clear, obvious legislative intent. See Baker, 348 So. 2d at 471. Nothing Appellants
have presented comes close. 3
3
The Alabama Supreme Court has only once addressed the applicability of § 14-6-
1 since its amendment. Ex Parte Burnell, 90 So. 3d 708 (Ala. 2012). The court held, based on
Alabama case law, that a deputy sheriff was entitled to immunity because he was acting as the
sheriff’s alter ego, and that the deputy sheriff’s dual role as the warden for the county jail did not
deprive him of that immunity. Id. at 715. In a footnote, the court noted the 2011 amendments to
§ 14-6-1, but stated, without explanation, that the 2011 amendments were not applicable. Id. at
714 n.2. The district court in this case, and the court in Kruse v. Byrne, No. CA 11-00513-KD-
C, 2012 WL 5469801 (S.D. Ala. Oct. 19, 2012), both read that footnote to mean that “the
recently-enacted immunity amendments do not apply to conduct which occurred before their
effective date.” Johnson v. Conner, No. 2:12-cv-392-WHA, 2012 WL 3962012, at *6 (M.D.
Ala. Sept. 10, 2012); Kruse v. Byrne, 2012 WL 5469801, at *12.
While we agree with the outcomes in those two cases, we also believe the district court in
this case and the Kruse v. Byrne court ascribe too much to the dicta in Burnell’s footnote. While
the Alabama Supreme Court could have meant that amended § 14-6-1 only applies prospectively,
it seems equally likely that the court meant it did not apply because the actor in Burnell was a
(cont’d on next page)
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B. The Law at the Time of the Injury Applies
Alternatively, Appellants argue that “the operative date should be the date of
filing [of suit] rather than the date of the incident giving rise to Plaintiff’s claims.”
Without citing any law on point, Appellants attempt to create a distinction between
“immunity from suit” and “immunity from liability,” arguing, “Clearly, without the
existence of a lawsuit based upon Alabama tort law, a need for such an immunity
simply does not exist.” We find no Alabama law suggesting that such a distinction
would have any effect on which law applies. Therefore, as stated above, we apply
the law at the time of Appellee’s injury, and hold that Appellants cannot claim
immunity under the amended § 14-6-1.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of
Appellants’ motion to dismiss with instructions that the district court proceed in a
manner consistent with this opinion.
AFFIRMED.
deputy sheriff—not merely a jailer. Therefore, we do not rest our retroactivity determination
today on the dicta in Burnell, but rather on the substantive, vested nature of the right at issue in
this case and the absence of any indication that the Legislature intended amended § 14-6-1 to
apply retroactively.
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