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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2007-2008

1070252

Ex parte Mike Hale, sheriff of Jefferson County
PETITION FOR WRIT OF MANDAMUS
(In re: Emma Jean Jenkins, as the personal representative
and administratrix of the estate of Belinda Denise Hodge,
deceased
v.
Mike Hale, individually and in his official capacity as


sheriff of Jefferson County, Alabama, et al.)
(Jefferson Circuit Court, CV-06-7109)

SEE, Justice.

Emma Jean Jenkins, in her capacity as personal
representative and administratrix of the estate of Belinda
Denise Hodge, filed this action against numerous defendants,
including Jefferson County Sheriff Mike Hale, whom she sued
individually and in his official capacity.  During the course
of the litigation, Jenkins dismissed the claims against
Sheriff Hale in his official capacity. Sheriff Hale then
moved the trial court to dismiss Jenkins's remaining claims
against him on the basis that he is immune from liability.
The Jefferson Circuit Court denied Sheriff Hale's motion, and
Sheriff Hale now petitions this Court for the writ of mandamus
directing the trial court to dismiss the claims asserted

against him.  We grant the petition in part and deny it in  
part.  
Facts and Procedural History  

"Because we are reviewing a trial court's ruling on a
motion to dismiss, we treat the allegations in [Jenkins]'s
complaint as true." Ex parte Davis, 930 So. 2d 497, 498 (Ala.
2005) (citing Creola Land Dev., Inc. v. Bentbrooke Housing,
L.L.C., 828 So. 2d 285, 288 (Ala. 2002)). Jenkins alleges
that Sheriff Hale violated Hodge's constitutional rights

following her arrest and detention at the Jefferson County
jail and that those violations caused Hodge's death.  Hodge
was arrested on August 11, 2004, and was detained in the
Jefferson County jail.  Four days later, Hodge was taken to
Cooper Green Hospital because of pain associated with surgery
on Hodge's back performed several months before her arrest.
Hodge was transferred from Cooper Green to the University of
Alabama at Birmingham Hospital ("UAB Hospital"), where she was
diagnosed with an infection related to her back surgery.
Hodge underwent additional back surgery at UAB Hospital and
eventually returned to the Jefferson County jail on September
1, 2004. Jenkins alleges that Hodge made a written request
for medical care on November 28, 2004, because her lower
abdomen was swollen and she was not having bowel movements.1
Hodge was admitted to Cooper Green on December 13, 2004; she
died the next day. Jenkins alleges that when Hodge arrived at
Cooper Green in December 2004, Hodge "had been constipated for
three weeks, had not voided in three days and had suffered
from fever and chills for four to five days."  Jenkins's brief

1The materials before this Court do not indicate to whom
such a request is made, only that Hodge made her request for
"immediate medical care" to "Sheriff Hale and other
defendants."

at 12. The complaint asserts that an autopsy revealed sepsis

as the cause of Hodge's death.

Jenkins filed this action in her capacity as personal

representative and administratrix of Hodge's estate, asserting

two claims against Sheriff Hale in his individual capacity.

Jenkins's first count against Hale is brought under 42 U.S.C.

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