VIRGINIA EMERSON HOPKINS, District Judge.
This civil action was originally filed on February 3, 2016, in the Circuit Court of St. Clair County, Alabama by the plaintiff, Michael Long, against the St. Clair County Sheriff's Office and St. Clair County Sheriff Terry Surles in his individual and official capacities. (Doc. 1-2). The action was removed to this court on March 2, 2016. (Doc. 1).
The complaint sets out the following four counts: "Initial Denial of Due Process of Law" (Count One); "Continued Denial of Due Process of Law" (Count Two); "Retaliation" (Count Three); and "Declaratory Relief" (Count Four). All counts arise out of the plaintiff's termination from his employment as a St. Clair County deputy sheriff.
The case comes before the court on the defendants' motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss this case, or, in the alternative, pursuant to Rule 12(e), for a more definite statement. (Doc. 4). The motion was filed on March 4, 2016. The plaintiff has filed no response to the motion.
Generally, the Federal Rules of Civil Procedure require only that the complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). However, to survive a motion to dismiss brought under Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ("Twombly").
A claim has facial plausibility "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556) ("Iqbal"). That is, the complaint must include enough facts "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation and footnote omitted). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon "labels or conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, "it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563 (citation omitted). Further, when ruling on a motion to dismiss, a court must "take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff." Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
The complaint alleges that the plaintiff, Michael Long, was employed by the St. Clair County Sheriff's Office. It does not specify in what capacity he was employed, but the defendant agrees that Long was a deputy sheriff. In December of 2015, Long "was notified of the [d]efendants' intent to terminate him." (Doc. 1-2 at 1). The complaint does not specify by whom the plaintiff was notified, or how. The reason for the plaintiff's termination was "an incident in which [the plaintiff] drove his police vehicle into a flooded roadway and it became incapacitated." (Doc. 1-2 at 1). The plaintiff "followed proper procedures to administratively challenge this discipline," and "[a] hearing was held on January 4th, 2016[,] at which [d]efendant Surles was present." (Doc. 1-2 at 1). The complaint continues:
(Doc. 1-2 at 2).
The Eleventh Circuit court of Appeals has noted:
Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); see also, Faulkner v. Monroe Cty. Sheriff's Dep't, 523 F. App'x 696, 700-01 (11th Cir. 2013) (citing Dean and holding that sheriff's department in Florida lacked capacity to be sued); Ex parte Haralson, 853 So.2d 928, 931 (Ala. 2003) ("It is clear under Alabama law that the sheriff's department is not a legal entity subject to suit."). All claims against the St. Clair County Sheriff's Department will be dismissed. The court will examine the claims in the complaint with regard to the individual and official capacity claims against Sheriff Surles, the only remaining defendant after the dismissal of the sheriff's department.
Counts One and Two are based, at least in part, on a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The court treats these counts as alleging an action under of 42 U.S.C. § 1983, asserting a violation of rights secured by these amendments.
Because the sheriff is an official of the state, not the federal government, the Fifth Amendment is inapplicable, and all section 1983 claims based upon that amendment are due to be dismissed. See, Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1041 (11th Cir. 1989) ("The fifth amendment to the United States Constitution restrains the federal government, and the fourteenth amendment, section 1, restrains the states, from depriving any person of life, liberty, or property without due process of law."); Love v. Davis, 14 F.Supp.2d 1273, 1278 n. 1 (N.D. Ala. 1998) ("[A]s neither the United States nor any of its agents is a defendant in this action, any and all . . . claims brought pursuant to the Fifth Amendment are due to be dismissed.").
The Supreme Court has held:
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2708-09, 33 L. Ed. 2d 548 (1972). The Eleventh Circuit has noted:
Mackenzie v. City of Rockledge, 920 F.2d 1554, 1558-59 (11th Cir. 1991); see also, Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003) ("Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.").
As noted, the plaintiff has not responded to the motion, and so has failed to cite any support under Alabama law for the proposition that he had a property interest in continued employment as a deputy sheriff.
Ex parte Moulton, 116 So.3d 1119, 1134 (Ala. 2013). To the extent that they are based on a violation of the due process clause of the Fourteenth Amendment, the section 1983 claims in Counts One and Two will be dismissed.
Further, even if the plaintiff could show that he had a property interest in continued employment, his only "due process" allegation is that he was "provided no meaningful opportunity to collect or present evidence on his behalf, call or cross examine witnesses, or rebut any of the inaccurate information allegedly used in the determination by [d]efendants to terminate his employment." (Doc. 1-2 at 2). This is a
Cotton v. Jackson, 216 F.3d 1328, 1330-31 (11th Cir. 2000).
As the Eleventh Circuit has noted:
Bell, 86 F.3d at 192. The court in Bell determined that this procedure, which was also available to the plaintiff in the instant case, was an adequate state remedy. Id. at 193. The plaintiff cannot maintain a section 1983 claim based on a violation of procedural due process simply because he failed to take advantage of this remedy.
Count Two also alleges liability based upon 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the First Amendment of the United States Constitution. (Doc. 1-2 at 5). A claim under 42 U.S.C. § 1981 applies only to claims of racial discrimination. No facts appear in the complaint which support such a claim.
Title VII prohibits discrimination based on an individual's race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2. Title VII also prohibits retaliation against an individual because that individual "has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C.A. § 2000e-3. No facts appear in the complaint supporting either type of Title VII claim. Further, there is no allegation in the complaint that the plaintiff has complied with the administrative prerequisites to filing such a claim. See Gregory v. Georgia Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) ("Prior to filing a Title VII action . . . a plaintiff first must file a charge of discrimination with the EEOC."); Anderson v. Embarq/Sprint, 379 F. App'x 924, 926 (11th Cir. 2010) ("Before filing suit under Title VII . . . a plaintiff must exhaust the available administrative remedies by filing a charge with the EEOC.").
The First Amendment claim fails because the plaintiff has alleged no facts showing that any action was taken against him because of his speech or other expression.
Even if the constitutional claims in Counts One and Two survive, Sheriff Surles, in his individual capacity, is entitled to qualified immunity as to these claims. The Supreme Court has stated:
Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L. Ed. 2d 565 (2009). The Eleventh Circuit notes:
Alvarez v. U.S. Immigration & Customs Enf't, No. 14-14611, 2016 WL 1161445, at *28 (11th Cir. Mar. 24, 2016).
As noted by the defendants, Sheriff Surles was acting within the scope of his authority when he made the employment decision at issue in this case. Because the plaintiff has failed to respond to the motion, he has not carried his burden to show that the defendant violated a constitutional right, and that said right was clearly established at the time of the alleged violation. Accordingly, even if the plaintiff had made out a cognizable claim under section 1983, any claim for money damages against the sheriff in his individual capacity would still be due to be dismissed.
It has been stated:
Heard v. Hannah, 51 F.Supp.3d 1129, 1137 (N.D. Ala. 2014) (Ott, M.J.); see also, Carr v. City of Florence, Ala., 916 F.2d 1521, 1527 (11th Cir. 1990) (Alabama Sheriff is entitled to eleventh amendment immunity from suits for money damages in his official capacity). No claim for money damages can arise from the sheriff's alleged constitutional violations committed in his official capacity.
The retaliation claim is based in a violation of Title VII. For the reasons noted above, there is no factual or legal basis for a Title VII claim.
The plaintiff seeks a declaration "that he possesses a legally enforceable right to property that was deprived him by the [defendant] without Due Process of Law." (Doc. 1-2 at 7). For the reasons stated previously, this count too will be dismissed.
For the reasons stated herein, the motion to dismiss will be granted and this case dismissed with prejudice. A final order will be entered.
(Doc. 1-2 at 3, ¶11) (underlining in original). Similarly, at paragraph 28, the
(Doc. 1-2 at 7, ¶28) (underlining in original). These paragraphs do not explain which portion of "the Ala." or "Ala. Code" creates a property interest in the plaintiff's continued employment. Further the Cleveland case cited by the plaintiff
Cross v. State of Ala., State Dep't of Mental Health & Mental Retardation, 49 F.3d 1490, 1503 (11th Cir. 1995). The plaintiff in the instant case requests reinstatement. (Doc. 1-2 at 4, 5). To that extent, his claims would not be barred by Eleventh Amendment immunity. Regardless, in light of the court's finding that all of the claims are without merit as pled, the point is moot.
