J.Y. et al v. Dothan City Board of Education et al (CONSENT)
MEMORANDUM OPINION AND ORDER that defendants' 46 Motion for Partial Summary Judgment is GRANTED as further set out in the opinion and order. Signed by Honorable Judge Susan Russ Walker on 11/8/2013. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
J.Y., a Minor, by his Parents
E.Y. and G.Y., as his next friend;
and E.Y. and G.Y.,
DOTHAN CITY BOARD OF
EDUCATION; TIM WILDER,
SUPERINTENDENT OF DCBOE, in
His Individual Capacity,
CIVIL ACTION NO. 1:12cv347-SRW
MEMORANDUM OPINION and ORDER
This action is presently before the court on defendants’ motion for partial summary
judgment (Doc. # 46). Defendants contend that they are entitled to summary judgment on
claims arising from events that occurred in JY’s fourth grade school year due to plaintiffs’
failure to exhaust administrative remedies. They also seek summary judgment on GY’s
claims of retaliation due to the allegedly preclusive effect of the judgment of the Houston
County Circuit Court on GY’s challenge to the non-renewal of his contract in that court.
Upon consideration of the motion for partial summary judgment, the court concludes that it
is due to be granted.
Summary Judgment Standard
A movant is entitled to summary judgment if it “shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). For summary judgment purposes, an issue of fact is “material” if, under the
substantive law governing the claim, its presence or absence might affect the outcome of the
suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the movant fails to
satisfy its initial burden, the motion for summary judgment will be denied. Kernel Records
Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012), cert. den., 133 S.Ct. 1810 (2013). If
the movant adequately supports its motion, the burden shifts to the opposing party to
establish – “by producing affidavits or other relevant and admissible evidence beyond the
pleadings” – specific facts raising a genuine issue for trial. Josendis v. Wall to Wall
Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham
Corp., 598 F.3d 812, 815 (11th Cir. 2010); Fed. R. Civ. P. 56(c)(1)(A). “All affidavits [and
declarations] must be based on personal knowledge and must set forth facts that would be
admissible under the Federal Rules of Evidence[.]” Josendis, 662 F.3d at 1315; Fed. R. Civ.
P. 56(c)(4). The court views the evidence and all reasonable factual inferences in the light
most favorable to the nonmovant. Miller’s Ale House, Inc. v. Boynton Carolina Ale House,
LLC, 702 F.3d 1312, 1316 (11th Cir. 2012). However, “‘[i]f no reasonable jury could return
a verdict in favor of the nonmoving party, there is no genuine issue of material fact and
summary judgment will be granted.’” Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir.
JY’s Fourth Grade Year
In their amended complaint (Doc. # 38), plaintiffs allege, inter alia, that:
18. Parents of J.Y. requested services for their son who was diagnosed
with ADAD during the 2007-2008 school year and was told by the principal
of his elementary school and the present special education coordinator that
because he was making passing grades, he did not qualify for services, even
under § 504. The Parents were not told that they had any rights as the parents
of a student with disabilities. The Parents believing that if he did not qualify
for § 504 services he certainly would not qualify for Special Education under
IDEA, a more stringent statute for eligibility.
19. After being told that their son did not qualify for services, the
parents retained a private tutor and began working with J.Y. for hours at night
to make sure that he passed.
20. The System intentionally and maliciously discriminated against
J.Y. when they refused to evaluate his eligibility for § 504 and IDEA when
they had reason to suspect that J.Y. may be a child with a disability and in
need of services.
21. The System’s refusal to evaluate constituted a continual
discrimination against J.Y.
* * * * *
68. G.Y. and E.Y. have, for the past 5 years, requested services for
their disabled son, J.Y., from the Dothan City Board of Education, and,
without evaluation or testing, were continuously told that services were not
available for J.Y. or that J.Y. did not qualify for services.
(Doc. # 38, pp. 6-7, 14)(errors in original).
JY was in the fourth grade during the 2007-2008 school year. (GY depo., p. 72). The
Ys did not file a due process complaint during that school year. (Id., p. 110). In a motion
for partial summary judgment filed on June 3, 2013, defendants argue that they are, therefore,
entitled to summary judgment as to any claims relating to JY’s fourth grade year. (Doc.
# 46). Plaintiffs respond that, although they are unaware of any such claims in their
complaint, any claims in their complaint arising from actions taken in 2007-2008 that are
subject to the IDEA’s exhaustion requirement “were inadvertent and are due to be
dismissed.” (Doc. # 58, p. 2). Accordingly, to the extent that plaintiffs allege claims subject
to the IDEA’s exhaustion requirement which arise from events that occurred during JY’s
fourth grade year (2007-08), defendants’ motion for partial summary judgment is due to be
GY’s Retaliation Claims
GY worked for the Dothan County Board of Education as a principal, pursuant to a
three-year contract. In March 2012, defendant Wilder recommended to the Board that it
decline to renew GY’s principal contract upon its expiration. The Board approved Wilder’s
recommendation. (Defendants’ Exhibit 19, pp. 391-94). Thereafter, GY exercised his right
under the Teacher Accountability Act to “request a nonjury, expedited evidentiary hearing”
in the Circuit Court of Houston County on the sole issue of whether Wilder’s
The parties argue about the admissibility of evidence from JY’s fourth grade year as to
other claims that are not the subject of defendants’ motion for partial summary judgment. The court
need not reach the admissibility issue, as the evidence is not relevant to the court’s disposition of
the present motion. Plaintiffs concede that “[a]ll claims as they apply to J.Y. are subject to the
exhaustion requirements of the IDEA” and that “[a]ll claims for G.Y. and E.Y. related to the FAPE
issues and discrimination due to the failure to provide FAPE are subject to the IDEA exhaustion.”
(Doc. # 75, ¶ 1; see also id. at ¶ 7). Plaintiff GY has also clarified that he “does not assert any
claims in Counts II thru V of the Amended Complaint that are not subject to the IDEA’s exhaustion
requirement AND are based on events that occurred during J.Y.’s fourth grade year.” (Doc. # 77,
recommendation or the Board’s approval of that recommendation was “based upon personal
or political reasons of the chief executive officer ... or the employing board[.]” Ala. Code,
§ 16-24B-3(e)(2); see Doc. # 29-1. On May 16, 2012, after conducting the evidentiary
hearing, retired Circuit Judge Denny L. Holloway, “Acting as Mediator,” entered a final
order finding against GY and in favor of defendants, concluding that GY had “failed to meet
his burden as required by the statute to show by a preponderance of the evidence that
Superintendent Wilder had personal reasons for his recommendation subsequently approved
by the Dothan City Board to non-renew the expired contract of Plaintiff[.]” (Doc. # 29-1;
id. at p. 6).2 Judge Holloway’s decision was appealed to the Alabama Court of Civil Appeals
which, by judgment entered on September 4, 2012, dismissed the appeal on the appellant’s
motion. (Doc. # 29-1, p. 7).3
In the amended complaint before this court, GY alleges that Wilder and the Board
decided not to renew his contract in retaliation for his protected activity in advocating on his
The statute provides that “[i]f the circuit court determines that it is not able to complete
the expedited evidentiary hearing within the 45-day period, the court shall refer the parties to a
mediator to conduct the expedited evidentiary hearing,” that “[t]he written decision of the mediator
shall be binding on the parties[,]” and that such mediator’s decision is appealable to the Alabama
Court of Civil Appeals. Ala. Code, § 16-24B-3(e)(3), (g); see also Doc. # 29-1, Final Order, pp.
1-2 (“‘After consulting with the parties and by agreement of the parties, Circuit Judge Denny
Holloway (retired) is designated to hear the above case pursuant to Code of Alabama 16-24B3.’”)(quoting Circuit Judge Mendheim’s referral order; italics in original).
Defendants argue that GY appealed the decision. (Doc. # 46, p. 18). While this is likely,
it is not a fact in evidence. Defendants further argue that “[t]he Court of Civil Appeals dismissed the
appeal because it was filed untimely.” Id. However, no reason for dismissal is indicated in the
appellate court’s certificate of judgment except that it was “on motion of appellant.” (Doc. # 29-1,
disabled son’s behalf, in violation of GY’s rights under the Rehabilitation Act, the Americans
with Disabilities Act, the IDEA, and the U.S. Constitution. (Amended Complaint, Doc.
# 38).4 Defendants contend that GY’s retaliation claims are barred by res judicata as a result
of the May 2012 judgment rendered against GY in the state circuit court. (Doc. # 46, pp. 1822).5 In response, GY maintains that the “merits of the present case have never been decided
by a court of competent jurisdiction” because the sole issue before the state circuit court was
“whether the ‘[s]uperintendent’s recommendation to non-renew the contract was
impermissibly based on personal or political reasons or the recommendation was approved
based on political or personal reasons of the employing board.’” (Doc. # 58, p. 3)(quoting
Doc. # 29-1, Final Order in Houston County Circuit Court Case No. CV-12-121.00).
Plaintiff contends that, “[a]lthough the state court was presented with evidence of retaliation
he could not and did not decide the issue of retaliation. He determined only that the Board
nor the Superintendent acted personally or politically.” (Doc. # 58, p. 5)(emphasis in
Defendants observe that “[t]he complaint as last amended does not appear to allege any
cause of action by or as to EY.” (Doc. # 46, p. 6; see also id., at n. 3). In their response to the
motion, plaintiffs do not contend otherwise. (Doc. # 58). Careful review of the amended complaint
reveals that, although EY alleges that she engaged in protected activity, she does not allege that
defendants retaliated against her for her protected activity by failing to renew GY’s contract or in
any other manner. Thus, the only retaliation claims before the court are those asserted by GY. While
the court has made this determination based on the allegations of the amended complaint, its review
of plaintiffs’ brief in support of their motion for partial summary judgment reaffirms that conclusion.
(See Doc. # 42, Plaintiffs’ brief in support of plaintiffs’ motion for partial summary judgment, at pp.
53-59, 63-65)(making clear that the retaliation claims before the court are lodged by GY only, on
the basis of GY’s protected activity).
Defendants raised the affirmative defense of preclusion by amendment to their answer.
(Doc. # 20; see also Doc. # 39).
In determining the preclusive effect of a state court judgment, this court applies “the
rendering state’s law of preclusion.” Community State Bank v. Strong, 651 F.3d 1241, 1263
(11th Cir. 2011), cert. denied, 133 S.Ct. 101 (2012); see also Green v. Jefferson County
Commission, 563 F.3d 1243, 1252 (11th Cir.), cert. denied, 558 U.S. 874 (2009)(same).6
The res judicata doctrine encompasses both claim preclusion and issue preclusion (also
known as collateral estoppel). Whisman v. Alabama Power Co., 512 So.2d 78, 81 (1987); see
also Lee L. Saad Constr. Co., Inc. v. DPF Architects, P.C., 851 So.2d 507, 516 (Ala.
2002)(“‘The doctrine of res judicata, while actually embodying two basic concepts, usually
refers to what commentators label “claim preclusion,” while collateral estoppel ... refers to
“issue preclusion,” which is a subset of the broader res judicata doctrine.’”)(citation
omitted). Under Alabama law, collateral estoppel bars re-litigation of an issue that is
identical to one that was actually litigated in a previous action between the same parties, if
the resolution of the issue was necessary to the prior judgment. Brown v. One Beacon Ins.
Defendants direct the court to inapplicable federal preclusion law. See Doc. # 46, p. 19
(citing Draper v. Atlanta Independent School System, 377 Fed. Appx. 937 (11th Cir. 2010), which
affirmed the district court’s dismissal of plaintiff’s lawsuit due to the preclusive effect of his
previous federal action); Doc. # 65 at pp. 9-10 (same). GY relies on a former Fifth Circuit case
applying federal preclusion law in a TILA case to determine the effect of a Mississippi judgment.
(Doc. # 58, pp. 4-5)(citing White v. World Finance of Meridian, 653 F.2d 147 (5th Cir. Aug. 7,
1981)). However, other cases – including Migra v. Warren City School District Board of Education,
465 U.S. 75 (1984), Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), and Eleventh
Circuit decisions rendered in the intervening three decades – make clear that this court must resolve
the preclusion issue before it by resort to Alabama law. GY does not contend that the proceedings
in the Houston County circuit court did not comport with the minimum procedural requirements of
the due process clause of the Fourteenth Amendment. (See Doc. # 58, Doc. # 29).
Co., Inc., 317 Fed. Appx. 915, 917 (11th Cir.), cert. denied, 558 U.S. 822 (2009)(citing
Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala. 1978)). “The
doctrine of collateral estoppel, or issue preclusion, does not require identity of the causes of
action involved.” Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 726 (Ala. 1990).
Accordingly, the court must decide based on its review of the excerpts of the state
court record filed in this action whether GY is precluded from relitigating the factual issue
of whether Wilder recommended, or the Board decided, not to renew GY’s contract because
of GY’s conduct in advocating for the rights of his disabled son by prosecuting the due
process hearing. As set forth above, GY contends that preclusion is not appropriate because
the issue of retaliation now before this court is not the same as the issue of personal or
political motivation considered by the state court. However, GY’s description of the “issue”
in the state court action is unduly limiting. The Alabama Supreme Court has observed, in the
context of collateral estoppel, that an “issue” is a “‘single, certain and material point arising
out of the allegations and contentions of the parties’” and that “[a]ny contention that is
necessarily inconsistent with a prior adjudication of a material and litigated issue ... is
subsumed in that issue and precluded by the prior judgment’s collateral estoppel effect.”
Christian Television Corp. of Alabama v. RCH Broadcasting, Inc., 554 So.2d 989 (Ala.
1989)(quoting Moore’s Federal Practice, § 0.443 at 760-61 (2d ed. 1978)). Thus, the
court looks to the Teacher Accountability Act, Judge Holloway’s final order, and the
“allegations and contentions of the parties” to determine the “single, certain, and material
point” litigated and decided in the Houston County circuit court action.
The issue decided by Judge Holloway – as set forth in his decision – was “whether the
contract principal [GY] has shown by a preponderance of the evidence in this case that the
Superintendent’s recommendation to non-renew was impermissibly based upon a personal
or political reason or that the recommendation was approved by the Board based upon
personal or political reasons of the employing Board, Dothan City Board of Education.”
(Doc. # 29-1, p. 4). Section 16-24B-3(e)(2)(a) of the Alabama Code provides that a contract
principal “may request a nonjury, expedited evidentiary hearing to demonstrate that the chief
executive officer’s or supervisor’s recommendation to nonrenew the contract was
impermissibly based upon a personal or political reason, or the recommendation was
approved based upon personal or political reasons of the chief executive officer, supervisor,
or the employing board, which shall be the sole issues at any such hearing.” At the expedited
hearing in the Houston County circuit court, GY contended that Wilder recommended and
the Board decided not to renew GY’s contract in a “three-prong [act of] retaliation” related
to JY’s due process hearing – i.e., retaliation for suing the Board, for winning the case, and
for presenting the Board with a large attorney fee bill. (Doc. # 53-5, GY’s opening statement
to Judge Holloway). Plaintiff disagreed with defendants’ contention that retaliation was “not
an issue[,]” arguing that retaliation is “a personal reason.” (Id., p. 2). Bobbie Crook, the
attorney who represented plaintiffs at the due process hearing, was the first witness GY
called to the stand in the two-day evidentiary hearing before Judge Holloway. (Doc. # 53-4).
Crook testified about the ten-day due process hearing, the hearing officer’s decision, and the
letter she had sent to defendants’ attorney claiming attorney fees in the amount of $104,
688.25 and an additional amount for expenses the Board owed to the parents, for a total
demand of $111,483.25. (Doc. # 59-13). GY testified about the due process hearing and his
reasons for pursuing it despite concerns expressed by others of possible retaliation; he also
testified about Wilder’s comments in a principals’ meeting that Wilder did not want negative
statements about the schools “out in the community and the ballpark and people” and that,
if the principals heard of any such statements, they should report it to him. (Doc. # 46-4).
GY further testified that he did not know that Wilder was displeased with his handling of
discipline at the school (id.) – the reason for non-renewal indicated in Wilder’s
recommendation to the board (see Doc. # 29-1, Judge Holloway’s order, at pp. 2-3) – until
late March of 2012, when GY met with Wilder about GY’s performance evaluation. (Doc.
In his decision, Judge Holloway described plaintiff’s litigation of the issue as follows:
Plaintiff [GY] has made no effort to establish or prove “political
reasons” as reasons for his non-renewal. All evidence was directed at
“personal reasons” for non-renewal and centered primarily at Superintendent
[GY] contended at the hearing that Superintendent Wilder’s
recommendation to non-renew his contract was based on personal reasons;
specifically, a personal bias against him because he and his wife made negative
statements about the Dothan City schools when they filed a special education
due process complaint against the school system on behalf of their son. [GY]
sought to establish that Superintendent Wilder or the Board had a personal
motivation, a personal bias against him, because of the negative statements he
and his wife made during the due process hearing. [GY] sought to establish
also that Superintendent Wilder’s stated reasons were false and therefore, by
inference, that the reason for the recommendation and the vote approving the
recommendation was personal bias or animosity.
(Doc. # 19-1, p. 4). In reaching his conclusion that GY had failed to establish that defendants
were motivated by personal or political reasons, Judge Holloway cited evidence that neither
Wilder nor any of the Board members testified or were present at the due process hearing or
“participated in the hearing process.” (Id., p. 5). While Judge Holloway framed his
conclusion in terms of GY’s failure to establish “personal” or “political” reasons – the issue
specified by the Teacher Accountability Act – nothing in his decision suggests that he
decided that animus toward GY arising from GY’s activity in advocating for his son by
prosecuting a special education due process complaint against the Board does not constitute
a “personal” reason within the meaning of § 16-24B-3(e)(2)(a).7 Rather, read as a whole,
Judge Holloway’s final order conveys his conclusion that GY failed to prove that Wilder’s
recommendation or the Board’s decision were a result of retaliatory animus toward GY, the
sole “personal” reason identified by GY at the hearing as the prohibited basis for the non-
In the context of a predecessor tenure statute that – like the statute governing GY’s claim
in the circuit court – prohibited cancellation of a contract for personal or political reasons, the
Alabama Supreme Court observed that “the word ‘personal’ ... denotes a personal bias, prejudice,
or antipathy” on the part of a Board member toward the teacher. Marshall County Board of
Education v. State Tenure Commission, 280 So.2d 130, 134 (Ala. 1973). Judge Holloway noted this
definition in his decision. (Doc. # 29-1 at p. 5). In an earlier case also decided under a predecessor
statute, the Alabama Supreme Court characterized as “personal reasons” a superintendent’s alleged
“personal dislike for [the teacher] due to her activity in the union” and, because the teacher was
prevented at the hearing from presenting evidence of this motivation, reversed the decision below
upholding cancellation of the teacher’s contract. State ex rel. Steele v. Board of Education of
Fairfield, 40 So.2d 689 (Ala. 1949), overruled on other grounds, Ex parte Jackson, 625 So.2d 425
renewal. Thus, the factual issue GY seeks to litigate here – whether the non-renewal of his
contract was motivated by his advocacy on behalf of his disabled son8 – is the same issue that
he litigated before Judge Holloway. Judge Holloway’s decision that plaintiff failed to show
that the non-renewal was based on personal or political reasons necessarily rested on his
conclusion that GY did not establish that either Wilder’s recommendation or the Board’s
decision were motivated by GY’s conduct in advocating for his son through the due process
hearing. Because GY and the defendants actually litigated this issue before the state court,
and resolution of the issue was necessary to the state court judgment, GY is barred – as a
matter of issue preclusion – from re-litigating it here.9 To demonstrate an entitlement to
See Amended Complaint, Doc. # 38, at ¶¶ 27, 34, 59, 61, 71-76 (initiation and prosecution
of the due process hearing, the hearing officer’s order ruling in plaintiffs’ favor, and presentation
of the bill in the amount of $111,483.25 alleged as the basis for alleged retaliation by Wilder and
the Board in non-renewing GY’s contract).
GY does not dispute that he and the defendants were parties to the Houston County Circuit
Court action. (See Doc. # 58). He concedes that the Houston County Circuit Court had jurisdiction
to render a decision on GY’s statutory claim that the non-renewal of his contract was based on
personal or political reasons. (Id.). Judge Holloway – serving as the designated “mediator” in the
circuit court action – decided the merits of the § 16-24B-3(2)(a) claim on May 16, 2012. (Doc. # 291). The appeal of that judgment was dismissed by the Alabama Court of Civil Appeals on September
4, 2012 (Doc. # 53-6), well after the time to appeal from Judge Holloway’s decision had run;
therefore, “the dismissal of the appeal was effectively with prejudice[,]” making Judge Holloway’s
decision a final judgment on the merits. Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914,
920 (Ala. 2007); id. (stating, in analyzing the preclusive effect of a final administrative decision, that
“[b]ecause the hearing officer has statutory jurisdiction to render binding decisions on
unemployment-compensation-benefit claims, the decision that McDonald was entitled to
unemployment benefits was rendered by a court of competent jurisdiction”); Ala. Code § 16-24B-5
(allowing 14 days to appeal from the final written decision of the circuit court or mediator and
providing that “[t]he final written decision of a judge or mediator which is not appealed, or is
affirmed on appeal, shall have the force and effect of a final judgment”); Ala. Code, § 16-24B3(g)(decision of circuit court or mediator “shall be final and exclusively appealable to the Alabama
Court of Civil Appeals”).
relief on his federal retaliation claims before this court, GY would have to prove that Wilder
or the Board discriminated against him by declining to renew his contract because he
opposed disability discrimination. 42 U.S.C. § 12203(a); 29 U.S.C. §§ 791(g), 793(d),
794(d); see Hesling v. Seidenberger, 286 Fed. Appx. 773, 774 n. 2 (3rd Cir. 2008)(affirming
summary judgment on parent’s IDEA retaliation claim – assuming standing and no
procedural defects – for failure to show “a causal connection between the exercise of that
protected activity and the alleged adverse action”).10 Due to the state court’s judgment and
The amended complaint fails to state valid § 1983 claims pursuant to the U.S. Constitution
arising from the allegedly retaliatory recommendation and non-renewal of GY’s contract. The
constitutional rights alleged as the basis for plaintiffs’ § 1983 claim are due process (both procedural
and substantive) and equal protection. (Doc. # 38, Count V). To the extent that GY’s equal
protection claim rests on retaliatory non-renewal of his contract, he states no cognizable claim.
Rollins v. Alabama Community College System, 814 F.Supp.2d 1250, 1298 n. 26 (M.D. Ala.
2011)(citing Watkins v. Bowden, 105 F.3d 1344 (11th Cir. 1997)); Long v. Russell County
Commission, 2010 WL 5391603, * 14 (M.D. Ala. Dec. 27, 2010)(“‘A pure or generic retaliation
claim ... simply does not implicate the Equal Protection Clause.’”)(quoting Watkins, 105 F.3d at
1355); Wilborn v. Southern Union State Community College, 720 F.Supp.2d 1274, 1308 (M.D. Ala.
2010)(“The court also notes that retaliatory action is not prohibited by the Equal Protection
Clause.”)(citing Watkins, 105 F.3d at 1354 and Ratliff v. DeKalb County, 62 F.3d 338, 341 (11th
Cir. 1995)). GY’s allegations of retaliatory non-renewal also fail to state a substantive due process
claim. McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994), cert. denied, 513 U.S. 1110
(1995)(“Because employment rights are state-created rights and are not ‘fundamental’ rights created
by the Constitution, they do not enjoy substantive due process protection.”). GY has not alleged that
the state provided no adequate remedy for the allegedly retaliatory recommendation and nonrenewal of GY’s contract and, thus, the amended complaint fails to state a procedural due process
claim arising from the non-renewal. Id. at 1562 (“[P]rocedural due process violations do not become
complete ‘unless and until the state refuses to provide due process.’”)(citation omitted); cf.
Miccosukee Tribe of Indians of Florida v. U.S., 716 F.3d 535 (11th Cir. 2013)(affirming dismissal,
stating, “Count II contains no allegation of the process the Tribe claims was due, much less that it
was inadequate.”); Tinney v. Shores, 77 F.3d 378, 382 (11th Cir. 1996)(“[T]he Tinneys have failed
to state a valid procedural due process claim because they have not alleged that Alabama law
provided them with an inadequate post-deprivation remedy.”). Plaintiff argues in a brief in support
of his own motion for partial summary judgment (but not in response to the present motion) that
Wilder and the Board discriminated against him “for exercising his right to Free Speech, under the
1st Amendment of the United States Constitution.” (Doc. # 42, p. 67). However, no such claim is
Alabama’s issue preclusion law, GY may not do so. Thus, defendants are entitled to
summary judgment on GY’s claims, set forth in Counts II through V of the amended
complaint, that defendants retaliated against him by recommending and deciding not to
renew his contract.
For the foregoing reasons, it is ORDERED that defendants’ motion for partial
summary judgment (Doc. # 46) is GRANTED.
DONE, this 8th day of November, 2013.
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
alleged in the amended complaint (see Doc. # 38); plaintiff may not amend his complaint by way
of argument in a brief on summary judgment. Tie Qian v. Secretary, Dept. of Veterans Affairs, 432
Fed. Appx. 808, 809-10 (11th Cir. 2011)(citing Gilmour v. Gates, McDonald and Co., 382 F.3d
1312, 1314 (11th Cir. 2004)). Even if GY had pursued a § 1983 retaliation claim under the First
Amendment and could demonstrate that his expression on behalf of his son was on a matter of
public concern, such a claim also requires proof that Wilder and/or the Board acted because of GY’s
protected expression. See Leslie v. Hancock County Board of Education, 720 F.3d 1338, 1346 (11th
Cir. 2013)(describing First Amendment retaliation claim in the public employment context). Within
his § 1983 claim (Count V) only, GY alleges that his employment was terminated “in retaliation of
him advocating for the rights of his son and other disabled students in violation of the IDEA, § 504
and the ADA.” (Doc. # 38, ¶ 80)(emphasis added). However, the amended complaint does not
allege any acts of advocacy by GY on behalf of any student other than his son. (See Doc. # 38; id.
at ¶¶ 6, 22, 26, 27, 69-71). Thus, the amended complaint states no claim of retaliation resting on
GY’s advocacy on behalf of other students.
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