McCleskey v. The City of Dothan, Alabama et al

Filing 43

MEMORANDUM OPINION AND ORDER directing as follows: 1) The Dfts' 38 Motion to Dismiss Plf's Second Amended Complaint is GRANTED with respect to Plf's allegations that the Dfts violated his substantive due process rights, procedural du e process rights, and retaliated against Plf in violation of his Constitutionally protected rights. Those claims are DISMISSED with prejudice; 2) Plf's state law claims under the Alabama Constitution for violations of procedural due process and substantive due process, found in Counts 1 through 6, are DISMISSED without prejudice. Signed by Hon. Chief Judge Mark E. Fuller on 12/3/2009. (wcl, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION E A R L R. McCLESKEY P L A IN T IF F , v. T H E CITY OF DOTHAN, ALABAMA, e t al., D EFEN D A N TS. ) ) ) ) ) ) ) ) ) ) C A S E NO. 1:08CV-634-MEF (W O ) M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on a Motion to Dismiss Plaintiff's Second Amended C o m p la in t (Doc. # 38), filed by Defendants Billy Mayes ("Mayes"), Mike West ("West"), a n d Kai Davis ("Davis") on June 9, 2009.1 Earl McCleskey ("McCleskey"), a former e m p lo ye e of the City of Dothan, brings this 42 U.S.C. 1983 action against Mayes, West, a n d Davis in their individual and official capacities, alleging violations of his right to p ro c e d u ra l due process, substantive due process, and his right to exercise procedural due p ro c e s s free from retaliatory action. D e f e n d a n ts Mayes, West, and Davis (collectively "Defendants") seek dismissal of the c la im s against them pursuant to Federal Rule of Civil Procedure 12(b)(6). The Defendants This motion is made on behalf of Mayes, West, and Davis individually and in their o f f ic ia l capacity. A claim against a municipal official in his or her official capacity is treated a s a claim against the entity itself. See Abusaid v. Hillsborough County Bd. of County C o m m 'r s , 405 F.3d 1298, 1302 n.3 (11th Cir. 2005). Therefore, the Court construes this m o tio n to dismiss to be asserted on behalf of all Defendants, including the City of Dothan. 1 argue they are entitled to dismissal of the Second Amended Complaint on grounds of res ju d ic a ta and collateral estoppel, as well as failure to state a claim upon which relief may be g ra n te d . FACTS A summary of the allegations of Plaintiff's Second Amended Complaint is as follows: S in c e approximately 1990, McCleskey has been employed as the Wastewater C o lle c tio n Supervisor for the City of Dothan, Alabama. On July 11, 2006, McCleskey s u b m itte d , pursuant to department policy, a travel expense request to his direct supervisor, B illy Mayes ("Mayes"), for a training class McCleskey planned to attend with two of his cow o rk e rs on July 20-21. McCleskey requested $335.60 for the out-of-town trip for all three e m p lo ye e s , an amount that included sums for one night's lodging, two days' meals, and fuel. The travel request was approved, and McCleskey received a check for $335.60 from the City. When McCleskey and his two co-workers were returning to Dothan from the out-ofto w n training class, the three men agreed to stop at a fast-food chicken restaurant for supper b e f o re going home. McCleskey informed his two co-workers that they each had $25 of their e x p e n s e money remaining. At the restaurant, McCleskey and his two co-workers each o rd e re d twelve pieces of chicken, three sides, and six biscuits; the receipt indicated that the to ta l cost for the three meals was $74.49. After the trip, McCleskey turned in the receipt for the chicken dinners to the s e c re ta ria l staff, who completed an expense report. McCleskey's supervisor, Mayes, 2 reviewed the report, found the chicken-dinner expense to be excessive, and refused to pay th e amount. McCleskey believed the expense was legitimate and told Mayes he would, p u rs u a n t to City policies and procedures, file a grievance to resolve the issue. M c C le s k e y filed a written grievance concerning the matter on July 26, 2006. Two d a ys later, McCleskey emailed Mayes asking him to provide McCleskey a copy of the g rie v a n c e so he could forward it to Mike West, the City Manager. On August 1, McCleskey e m a ile d West, and asked him for a chance to discuss the grievance. At some point before A u g u s t 3, 2006, Mayes discussed McCleskey's dispute with West, and, according to Mayes, W e s t told him to proceed with terminating McCleskey. On August 3, 2006, Mayes served McCleskey with a "Notice of Determination H e a rin g and Possible Disciplinary Action." That document informed McCleskey that he was c h a rg e d with violations of City rules and policies; McCleskey disputes the accuracy of the v a rio u s charges. On August 7, 2006, Mayes held a "Determination Hearing" with M c C le s k e y. At the hearing, Mayes confronted McCleskey about the chicken-dinner incident a n d repeatedly referred to the grievance McCleskey filed regarding the incident. On August 1 0 , 2006, Mayes terminated McCleskey's employment. After the termination, Mayes re tu rn e d McCleskey's grievance with a notation that the offense forming the basis of M c C le s k e y's termination was not an offense for which a grievance can be filed. McCleskey a l le g e s that this dispute, according to the Personnel Rules and Regulations, is in fact a g rie v a b le matter. 3 McCleskey later appealed his termination to the Dothan Personnel Board, which c o n d u c te d a hearing on McCleskey's appeal on October 26, 2006. McCleskey alleges that th e proceedings before the Personnel board were biased and lacked procedural fairness b e c a u s e portions of the Personnel Board's deliberations were not held in an open setting and o n e statement by one member was indicative of bias against McCleskey. On January 8, 2 0 0 7 , the Personnel Board affirmed McCleskey's termination. McCleskey then appealed, p u rs u a n t to the Civil Service Act, the Personnel Board's decision to the Circuit Court of H o u s to n County Alabama. The circuit court entered a judgment that reversed the Personnel B o a rd 's decision, and ordered McCleskey reinstated. The City of Dothan appealed the d e c is io n of the circuit court to the Alabama Court of Civil Appeals. At the time McCleskey f ile d the Second Amended Complaint in this case, the appeal was pending. Since then, the D e f e n d a n ts in this case have provided this Court with an unofficial Westlaw citation to a d e c is io n by the Alabama Court of Civil Appeals. That decision apparently reverses the c i r c u i t court, and affirms the Personnel Board's decision to terminate McCleskey's e m p l o ym e n t . In his Second Amended Complaint, McCleskey brings the following claims: (1) D e f e n d a n ts violated his procedural due process rights, as guaranteed by the Fourteenth A m e n d m e n t to the United States Constitution;2 (2) Defendants violated his substantive due McCleskey alleges this claim in counts 1, 2, and 3 of the Second Amended C o m p la in t, with each count corresponding to one of the three individual defendants (Doc. # 37, 92-133). 4 2 process rights, as guaranteed by the Fourteenth Amendment to the United States C o n s titu tio n ;3 (3) Defendants violated McCleskey's right to seek procedural due process w ith o u t retaliation or reprisal, in violation of the Fourteenth Amendment to the United States C o n s titu tio n .4 McCleskey also states that he is entitled to relief for all three of these claims u n d e r the Alabama Constitution. T h e Defendants have moved to dismiss the Second Amended Complaint pursuant to F e d e ra l Rule of Civil Procedure 12(b)(6). First, the Defendants argue that all of M c C le s k e y's claims are barred by res judicata or collateral estoppel. Second, the Defendants a rg u e that, even if McCleskey's claims are not barred by prior adjudication, McCleskey has f a ile d to state a claim upon which relief may be granted. For the reasons discussed below, D e f e n d a n ts ' motion to dismiss the complaint is due to be GRANTED. LEGAL STANDARD A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Prior to the S u p re m e Court's recent decision in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007), a m o tio n to dismiss could only be granted if a plaintiff could prove "no set of facts . . . which w o u ld entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also McCleskey alleges this claim in counts 4, 5, and 6 of the Second Amended C o m p la in t, with each count corresponding to one of the three individual defendants (Doc. # 37, 134-196). As with the substantive due process claim, McCleskey alleges this claim in counts 4 , 5, and 6 of the Second Amended Complaint, with each count corresponding to one of the th re e individual defendants (Doc. # 37, 134-196). 5 4 3 Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Wright v. Newsome, 795 F.2d 964, 967 (1 1 th Cir. 1986). Now, in order to survive a motion to dismiss for failure to state a claim, th e plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 127 S. Ct. at 1974.5 While the factual allegations of a complaint need not be detailed, a plaintiff must nevertheless "provide the `grounds' of his `entitlement to relief' and a formulaic recitation of the elements of a cause of action will not do." Id. at 1965. The p la in tif f 's "[f]actual allegations must be enough to raise a right to relief above a speculative le v e l on the assumption that the allegations in the complaint are true." Id. It is not sufficient th a t the pleadings merely "le[ave] open the possibility that the plaintiff might later establish s o m e set of undisclosed facts to support recovery." Id. at 1968 (internal quotation and a lt e ra tio n omitted). In considering a defendant's motion to dismiss, a district court will accept as true all well-pleaded factual allegations and view them in a light most favorable to the plaintiff. See Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Accord, Nelson v. Campbell, 541 U.S. 637, 640 (2004) (where a court is considering dismissal of a complaint at the pleading stage, it must assume the allegations of the complaint are true). T h e federal claims in this action are brought against defendants pursuant to 42 U.S.C. In McCleskey's "Response to Defendants' Motion to Dismiss Second Amended C o m p la in t" (Doc # 41, p. 3-5), McCleskey cites the wrong legal standard against which a R u le 12(b)(6) motion to dismiss must be judged. McCleskey cites as controlling the "no set o f facts" standard established in Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Because that is no longer the proper Rule 12(b)(6) standard, the court will address this motion using the s ta n d a rd established in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007). 6 5 1983. Section 1983 provides a remedy when a person, acting under color of state law, d e p riv e s a plaintiff of a right, privilege, or immunity secured by the Constitution, laws, or tre a tie s of the United States. See, e.g., 42 U.S.C. 1983;6 Graham v. Connor, 490 U.S. 386, 3 9 3 -9 4 (1989) (" 1983 is not itself a source of substantive rights, but merely provides a m e th o d for vindicating federal rights elsewhere conferred") (internal quotes omitted); C u m m in g s v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). To state a claim p u rs u a n t to 1983, a plaintiff must point to a violation of a specific federal right. See, e.g., W h itin g v. Traylor, 85 F.3d 581, 583 (11th Cir. 1996). D IS C U SS IO N A . Res Judicata and Collateral Estoppel The Defendants have moved to dismiss Plaintiff's Second Amended Complaint under th e doctrines of res judicata and collateral estoppel. In support of their motion to dismiss, th e Defendants allege that the Alabama Court of Civil Appeals issued a decision on N o v e m b e r 7, 2008 that precludes any consideration of the issues in this case. The D e f e n d a n ts have provided an unofficial Westlaw citation of the prior adjudication, but 6 Section 1983 provides in relevant part: E v e ry person who, under color of any statute, ordinance, regulation, c u s to m , or usage, of any State or Territory or the District of Columbia, s u b je c ts , or causes to be subjected, any citizen of the United States or o th e r person within the jurisdiction thereof to the deprivation of any rig h ts , privileges, or immunities secured by the Constitution and laws, s h a ll be liable to the party injured in an action at law, suit in equity, or o th e r proper proceeding for redress. 7 otherwise have not attached any court records. In response, McCleskey contends that the is su e of whether the claims raised in the complaint are barred by res judicata and collateral e s to p p e l cannot be determined because the Defendants have failed to attach any authenticated c o u rt records of the prior adjudication. The court agrees with McCleskey that, at this stage in the litigation, a defense based o n res judicata or collateral estoppel is without merit. In Concordia v. Bendekovic, 693 F.2d 1 0 7 3 , 1075-76 (11th Cir. 1982), the Eleventh Circuit explained the difference between a Rule 1 2 (b ) dismissal motion and a Rule 56 motion for summary judgment based on res judicata.7 In Concordia, the plaintiff brought a civil rights action in federal court alleging that one of th e defendants, a police officer, beat the plaintiff, unnecessarily causing injury. Id. at 1074. The defendants filed a Rule 12(b)(6) motion to dismiss, claiming that the doctrine of c o lla te ra l estoppel barred plaintiff's suit. Id. In support of the motion, the defendants argued th a t the plaintiff, in a previous state court action, had filed a counterclaim against the d e f e n d a n t police officer and city alleging that the officer was liable for assault and battery. Id. The defendants attached to their motion to dismiss an exhibit consisting of an answer and c o u n te rc la im by the plaintiff in the prior state court action, which alleged that the defendant o f f ic e r assaulted the plaintiff. Id. The defendants also included a true copy of the final Res judicata is actually not a defense under Rule 12(b); it is an affirmative defense th a t should be raised under Rule 8(c). Nevertheless, the Eleventh Circuit has allowed res ju d ic a ta defenses to be asserted in the form of a Rule 12(b)(6) motion "where the defense's e x is te n c e can be judged on the face of the complaint." Concordia v. Bendekovic, 693 F.2d 1 0 7 3 , 1075 (11th Cir. 1982). 8 7 judgment granting damages to the police officer and denying the plaintiff relief on his c o u n te rc la im . Id. The district court dismissed the action on the basis of collateral estoppel. The Eleventh Circuit reversed because the defendants, with their motion to dismiss, did not e s ta b lis h that any issue actually had been litigated or that there had been a final judgment on th e merits in the state proceeding. The court explained that additional evidence, such as a c o p y of the state trial court's records, was necessary in order to apply the doctrine of res ju d ic a ta in the context of either a motion to dismiss under Rule 12(b)(6) or a motion for s u m m a ry judgment pursuant to Rule 56. Id. at 1076. The Eleventh Circuit specifically s ta te d : Additional evidence, preferably a copy of the state trial court's re c o rd s , is required in order to apply the doctrine of res judicata in the context of either a Rule 12(b)(6) motion to dismiss or a R u le 56 motion for summary judgment. As a general rule, a c o u rt in one case will not take judicial notice of its own records in another and distinct case even between the same parties, u n le s s the prior proceedings are introduced into evidence. Id . The Eleventh Circuit further explained that a defendant may raise a res judicata defense b y a Rule 12(b) motion "where the defense's existence can be judged on the face of the c o m p la in t." Id. at 1075 (internal citations omitted). At the summary judgment stage, a party m a y raise the res judicata defense by introducing sufficient information into the record to a llo w the judge to determine the validity of the defense. Jones v. Gann, 703 F.2d 513, 515 (1 1 th Cir. 1983) (citing Concordio, 693 F.2d at 1075). The Defendants in this case have submitted no state court records in support of their 9 res judicata and collateral estoppel argument. In addition, it cannot be said from the face of th e Second Amended Complaint that the defense of res judicata can be applied to bar the M c C le s k e y's claims. Thus, Defendants' motion to dismiss Plaintiff's Second Amended C o m p la in t based on the defenses of res judicata and collateral estoppel is due to be DENIED. B . Procedural Due Process Claims M c C le s k e y alleges the Defendants' actions deprived him of property without due p ro c e s s and violated his right to procedural due process under the Fourteenth Amendment to th e United States Constitution. McCleskey acknowledges, in his Second Amended C o m p la in t, that he received a variety of procedural protections in connection with the te rm in a t i o n of his employment. In particular, McCleskey concedes that he received a pret e r m in a tio n notice of the charges forming the basis of his dismissal; a pre-termination o p p o rtu n ity to discuss the charges with Defendant Mayes at the "Determination Hearing"; and a post-termination opportunity to be heard when he appealed his case to the Personnel Board, to the Circuit Court of Houston County, and finally to the Alabama Court of Civil Appeals. Nonetheless, McCleskey alleges his procedural due process rights were violated because M a ye s was a biased decisionmaker who contravened personnel rules in a variety of ways, in c l u d i n g not processing McCleskey's grievance, submitting false claims, and unfairly a p p lyin g the personnel rules. McCleskey further contends that his procedural due process rig h ts were violated because Mayes failed to give McCleskey any meaningful predeterm in a tio n proceeding with proper safeguards and an opportunity to be heard, to present 10 evidence, to be represented by counsel, and to question witnesses. Finally, McCleskey claims th a t Mayes conspired with West and Davis to violate McCleskey's right to procedural due p ro c e ss. The Supreme Court established the doctrine applicable to procedural due process issues i n Parratt v. Taylor, 451 U.S. 527 (1981), and later extended that doctrine in Hudson v. P a lm e r , 468 U.S. 517 (1984). "Under the rules gleaned from these two cases, an unauthorized in te n tio n a l or negligent deprivation of property by a state employee does not constitute a v io la tio n of the procedure requirements of the Due Process Clause of the Fourteenth A m e n d m e n t if the state provides a meaningful post-deprivation remedy for the loss." Hill v. M a n n in g , 236 F. Supp. 2d 1292, 1298 (M.D. Ala. 2002) (Albritton, J.) (citing Tinney v. S h o r e s , 77 F.3d 378, 381-82 (11th Cir. 1996)). In applying Parratt and Hudson, a distinction is drawn between cases in which a state p ro c e s s itself is challenged, and cases in which the procedures as applied are challenged. See B e ll v. City of Demopolis, 86 F.3d 191, 192 (11th Cir. 1996) (distinguishing between a c h a lle n g e to the state procedure itself and a challenge to the state procedure as applied). The d is tin c tio n is significant because when a state actor takes unauthorized action, the procedural d u e process violation does not become complete until the state refuses to provide due process. McKinney v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994). The rationale for this distinction re s ts with the fact that once a state has established procedures for the termination of public e m p lo ye e s , the state cannot predict whether or not, in a given situation, those procedures will 11 be followed or ignored. See Tinney, 77 F.3d at 382 n.1. Therefore, when a State official takes in te n tio n a l unauthorized action that was not preventable beforehand by the State, no p ro c e d u ra l due process violation occurs unless the state fails to provide the opportunity to re d re ss the situation after the fact. Id. T h is case falls within the parameters of Parratt and Hudson. Even if McCleskey is c o rre c t in his assertion that Mayes was a biased decisionmaker who failed to follow the proper grievance procedure, and West and Davis conspired to disregard grievance procedures a n d to improperly apply the personnel rules, McCleskey has not suffered a violation of his p ro c e d u ra l due process rights unless and until the state of Alabama refuses to make available a means to remedy the deprivation. See McKinney, 20 F.3d at 1563. McCleskey does not a lle g e that his post-termination remedies have been inadequate.8 Accordingly, McCleskey h a s failed to state a claim for the violation of his procedural due process rights, and thus the D e f e n d a n ts ' Rule 12(b)(6) motion to dismiss is due to be GRANTED. The court recognizes that McCleskey does allege the proceeding before the P e rs o n n e l Board was "sorely lacking in procedural due process and fairness" because " p o rtio n s " of the deliberations were not held in an open setting and "one member fo the B o a rd made a statement from which one could infer bias. . . against [McCleskey]." (Doc. # 3 7 , p. 13). Even so, these allegations still fail to state a procedural due process violation b e c a u s e nothing in the Second Amended Complaint suggests the subsequent proceedings b e f o re the circuit court and the Alabama Court of Civil Appeals were Constitutionally d e f ic ie n t. See McKinney, 20 F.3d at 1563 ("As any bias on the part of the Board was not s a n c tio n e d by the state and was the product of the intentional acts of the [defendants], under P a rr a tt, only the state's refusal to provide a means to correct any error resulting from the bias w o u ld engender a procedural due process violation."). 12 8 C. Substantive Due Process Claims M c C le s k e y alleges that the Defendants terminated his employment in violation of his s u b s ta n tiv e due process rights, as guaranteed by the Fourteenth Amendment to the United S ta te s Constitution. In response, the Defendants argue that the protection of substantive due p ro c e s s does not apply in the employment law context, in which rights are created by state la w rather than by the Constitution. The court agrees with the Defendants that the s u b s ta n tiv e component of the Due Process Clause of the Fourteenth Amendment of the U n ite d States Constitution provides no relief to McCleskey. See McKinney v. Pate, 20 F.3d 1 5 5 0 , 1560 (11th Cir. 1994) (holding that "[b]ecause employment rights are state-created r i g h ts and are not `fundamental' rights created by the Constitution, they do not enjoy s u b s ta n tiv e due process protection."). McCleskey has failed to state a claim for the violation o f his substantive due process rights, and thus the Defendants' Rule 12(b)(6) motion to d is m is s is due to be GRANTED. D. "Retaliatory" Procedural Due Process Claims In Counts 4, 5, and 6 of the Second Amended Complaint, McCleskey alleges what the c o u rt understands to be a retaliatory procedural due process claim. That is, McCleskey a lle g e s that he attempted to exercise his procedural due process rights, which included the f ilin g of a formal grievance concerning the disputed payment at the chicken restaurant, and, in retaliation of his exercise of those rights, the Defendants terminated his employment. In s u p p o rt, McCleskey argues that a public employee's procedural due process rights "would 13 be meaningless if he could be deprived of that very property interest when he exercised or s o u g h t to exercise his right to due process." (Doc. # 41, p. 11). M c C le s k e y's argument that his retaliation claim is brought under the procedural c o m p o n e n t of the Due Process Clause is unavailing. The procedural component of the Due P ro c e s s Clause guarantees notice and a fair hearing. See, e.g., McKinney v. Pate, 20 F.3d 1 5 5 0 , 1561 (11th Cir. 1994) ( "[T]he Constitution requires that the state provide fair p ro c e d u re s and an impartial decisionmaker before infringing on a person's interest in life, lib e rty, or property."). McCleskey has not demonstrated that he has any procedural due p ro c e s s right to be free from retaliation. The Court has not found, nor have the parties cited, a n y case law establishing a cause of action for retaliation based on the procedural component o f the Due Process Clause. See Butler v. Ala. Dept. of Trans., 512 F. Supp. 2d 1209, 1221 (2 0 0 7 ) (rejecting argument that retaliation claims can be brought under the procedural c o m p o n e n t of the Due Process Clause), overruled on other grounds, 536 F.3d 1209 (11th Cir. 2 0 0 8 ). Accordingly, McCleskey has failed to state a retaliatory procedural due process c la im , and thus the Defendants' Rule 12(b)(6) motion to dismiss is due to be GRANTED. E. State Law Claims M c C le s k e y brings six Counts against the Defendants under the Alabama C o n s titu tio n .9 The Defendants have moved to dismiss all of McCleskey's claims, including The state law claims are stated in every count of the Second Amended Complaint. In essence, every claim brought under the United States Constitution is also brought under th e Alabama Constitution. 14 9 the state law claims, although the Defendants do not specifically address why the state law c la im s should be dismissed. Although the court has supplemental jurisdiction over the remaining state law claims p u rs u a n t to 28 U.S.C. 1367(a), the court may decline to exercise its jurisdiction if all the f e d e ra l claims are dismissed. 28 U.S.C. 1367(c)(3). Further, the Eleventh Circuit has n o te d that where federal claims are dismissed prior to trial, United Mine Worker's v. Gibbs, 3 8 3 U.S. 715 (1966), "strongly encourages or even requires" the dismissal of state claims. Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999) (citing L.A. Draper & Son v. W h e e la b r a to r -F r y e , Inc., 735 F.2d 414, 428 (11th Cir. 1985). Because the court has d e te rm in e d that all the federal claims are due to be dismissed, the court declines to exercise ju ris d ic tio n over the remaining state law claims, and McCleskey's claims for violations of h is procedural and substantive due process rights under the Alabama Constitution, found in C o u n ts 1 through 6 of the Second Amended Complaint, are due to be DISMISSED W IT H O U T PREJUDICE. CONCLUSION F o r the reasons discussed, it is hereby ORDERED as follows: 1 . The Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (Doc. # 38) is GRANTED with respect to Plaintiff's allegations that the Defendants violated his s u b s ta n tiv e due process rights, procedural due process rights, and retaliated against Plaintiff in violation of his Constitutionally protected rights. Those claims are DISMISSED with 15 prejudice. 2 . Plaintiff's state law claims under the Alabama Constitution for violations of p ro c e d u ra l due process and substantive due process, found in Counts 1 through 6, are D IS M IS S E D without prejudice. Final Judgment will be entered in accordance with this Memorandum Opinion and O rd e r. DONE this the 3 rd day of December, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 16

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