Thomas et al v. Buckner et al

Filing 47

MEMORANDUM OPINION AND ORDER GRANTING in part and DENYING in part 43 MOTION to Dismiss; (1) the motion to dismiss is GRANTED as to: (a) the federal claims against Defendants in their individual capacities (Count 1); (b) Count 2; and (c) the st ate law monetary claims against Defendants in their official capacities (Counts 5, 6, and 7); (2) the motion to dismiss is DENIED as to the procedural due process claim against Defendants for prospective relief in their official capacities (Count 1) and the state law claims against Defendants in their individual capacities (Counts 5, 6, and 7); further ORDERING that Counts 3 and 8 are DISMISSED because they are prayers for relief that have been incorrectly enumerated as causes of action and are redundant as they have already been included in the amended complaint's prayer for relief; in sum, Count 1 remains against Defendants in their official capacities for prospective relief and Counts 4, 5, and 6 remain against Defendants in their official capacities for prospective relief and in their individual capacities. Signed by Chief Judge William Keith Watkins on 9/11/12. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KAYLA THOMAS,
HALEY PONDER, and
JOAN RANEY,
Plaintiffs,
v.
NANCY BUCKNER and
KIM MASHEGO,
Defendants.

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CASE NO. 2:11-CV-245-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Before the court are Defendants’ Motion to Dismiss First Amended Complaint
(Doc. # 43), to which Plaintiffs responded (Doc. # 45). After careful consideration
of the arguments of counsel and the relevant law, the court finds that Defendants’
motion is due to be granted in part and denied in part.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, 28 U.S.C.
§ 1343, 28 U.S.C. § 1367, and 28 U.S.C. §§ 2201–02. Personal jurisdiction and
venue are not contested, and there are adequate allegations in support of both.

II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8: “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the 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). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 1950 (citation omitted). “[F]acial plausibility”
exists “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The standard also “calls for enough fact to raise
2

a reasonable expectation that discovery will reveal evidence” of the claim. Twombly,
550 U.S. at 556. While the complaint need not set out “detailed factual allegations,”
it must provide sufficient factual amplification “to raise a right to relief above the
speculative level.” Id. at 555; see also James River Ins. Co. v. Ground Down Eng’g,
Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (Twombly formally retired “the
often-criticized ‘no set of facts’ language previously used to describe the motion to
dismiss standard.”).
III. BACKGROUND
Plaintiffs Kayla Thomas, Haley Ponder, LaShannon Trammell, Lawrence
Trammell, and Joan Raney originally filed suit against Nancy Buckner, the Alabama
Department of Human Resources, Kim Mashego, the Shelby County Department of
Human Resources, Jessica Foster, Renicia Swoopes, and Karol M. Beck. On
September 13, 2011, an order was issued that granted Defendants’ first motion to
dismiss; however, Plaintiffs were permitted to file an amended complaint to “seek
prospective relief against the official capacity defendants to the extent that [they
could] allege a sufficient constitutional injury,” and “allege claims against
[D]efendants in their personal capacities if there [was] a sufficient basis in fact and
law to do so.” (Doc. # 41, at 41.)

3

Plaintiffs, with the exception of LaShannon Trammell and Lawrence Trammell,
timely filed their eight-count amended complaint.1 Furthermore, only Defendants
Nancy Buckner (the Commissioner of the Alabama Department of Human Resources)
and Kim Mashego (the Director of the Shelby County Department of Human
Resources) were named as Defendants. Plaintiffs bring federal constitutional claims
and state law claims against Defendants in their individual and official capacities.
By statute, the Alabama Department of Human Resources (“DHR”) maintains
a statewide central registry for reports of child abuse and neglect. See Ala. Code.
§ 26-14-8. Plaintiffs have all been placed onto the central registry as persons who
have been “indicated” for child abuse/neglect. In April 2010, Ms. Thomas was
informed by letter that the Shelby County DHR had completed an initial assessment
on the suspected child/abuse neglect and determined that it believed the report was
indicated (true) and that the case would be disposed of as indicated. The letter further
stated that Ms. Thomas had the right to an administrative record review. Ms. Thomas
requested a hearing in order to deny and dispute the indicated disposition. Ms.
Thomas received no response to her request. In September 2010, Ms. Thomas
received a letter from Alabama DHR stating that an administrative record review had

1

For purposes of this opinion, from this point on, “Plaintiffs” refers to the Plaintiffs
named in the amended complaint: Kayla Thomas, Haley Ponder, and Joan Raney.
4

been completed and that it was determined that there was “enough credible evidence
to support a dispositional finding of indicated, i.e. true.” (Am. Compl. 14.)
Ms. Ponder was also informed by letter that the Shelby County DHR had
investigated a report of child abuse/neglect and determined the report to be indicated.
Ms. Ponder requested a hearing to dispute the allegations. In February 2010, Ms.
Ponder was informed by Alabama DHR that an administrative record review had been
completed and it was determined that there was “enough credible evidence to support
a dispositional finding of indicated, i.e. true.” (Am. Compl. 17.) Neither the letter
received by Ms. Thomas nor the one received by Ms. Ponder stated that she was
entitled to a hearing. Ms. Thomas and Ms. Ponder also did not receive any response
to their requests for a hearing, other than the letters regarding the completion of an
administrative record review.
Both Ms. Thomas and Ms. Ponder intend to be active in their children’s lives
and “to volunteer and participate in those childcare/daycare/kindergarten/public or
private school institutions that [their children] will attend both now and in the future.”
(Am. Compl. 15, 19.) Additionally, both Ms. Thomas and Ms. Ponder seek to further
their education. Ms. Thomas wishes to further her education in nursing and to seek
employment as a nurse’s aid, nurse, or other area of the medical profession. Ms.
Ponder wishes to seek employment as a Certified Nursing Assistant or Nurse’s Aid.
5

Both Plaintiffs fear that their prospects to volunteer and further their education and
employment will be burdened or prohibited by having indicated dispositions on the
central registry.
Unlike Ms. Thomas and Ms. Ponder, Ms. Raney never received a letter from
DHR informing her of child abuse/neglect allegations against her. Instead, Ms.
Raney discovered them through happenstance when she volunteered as a preschool
Sunday School teacher for her church. The church required volunteers to undergo a
background check, which included a check of the central registry. The church
contacted DHR and received information pursuant to the background check. The
Children’s Minister of the church informed Ms. Raney that the information the church
received from DHR “reported information that [Ms. Raney] ‘needed to check into.’”
(Am. Compl. 20.)
Ms. Raney contacted the Shelby County DHR twice. On her second contact,
Ms. Raney spoke with Defendant Kim Mashego. Ms. Mashego informed Ms. Raney
that there was an indicated disposition of child abuse/neglect and that Ms. Raney was
listed on the central registry. Ms. Mashego would not share or provide any other
information to Ms. Raney about the report. Ms. Raney asked Ms. Mashego how she
could remove her name and information from the central registry, and in response,

6

Ms. Mashego told Ms. Raney, “There is nothing you can do.” (Am. Compl. 21.) Ms.
Raney contacted Alabama DHR, but no one returned her call.
As a result of learning about the indicated disposition, Ms. Raney has stopped
volunteering at her church, fearing that another background check will again reveal
information about the indicated disposition of child abuse/neglect. Furthermore, Ms.
Raney wishes to volunteer at a free health clinic located in Shelby County but fears
that her volunteer application will require a background check of the central registry.
Ms. Mashego serves on the board of directors for the free health clinic, which furthers
Ms. Raney’s fear that her application will be denied.
IV. DISCUSSION
A.

Official Capacity Procedural Due Process Claim (Count 1)
In Count 1 of the amended complaint, Plaintiffs allege that Defendants violated

their procedural due process rights by creating “a custom, policy or practice that
results in the systematic denial of a request for a hearing” to challenge an indicated
disposition. (Am. Compl. 31.) As explained in the previous opinion, “a § 1983 claim
alleging a denial of procedural due process requires proof of three elements: (1) a
deprivation of a constitutionally-protected liberty or property interest; (2) state action;
and (3) constitutionally-inadequate process.” Am. Fed’n of Labor & Cong. of Indus.
Orgs. v. Miami, 637 F.3d 1178, 1186 (11th Cir. 2011) (quoting Arrington v. Helms,
7

438 F.3d 1336, 1347 (11th Cir. 2006)). Because it is clear that the alleged violation
involves state action, only prongs 1 and 2 will be addressed.
1.

Deprivation of a Protected Liberty Interest

Plaintiffs once again allege that they have been deprived of a protected liberty
interest under the stigma-plus test of Paul v. Davis, 424 U.S. 693 (1976). To
establish a protected liberty interest under the stigma-plus test, Plaintiffs “must be not
only stigmatized but also stigmatized in connection with a denial [or alteration] of a
[substantive] right or status previously recognized under state law.” Behrens v.
Regier, 422 F.3d 1255, 1260 (11th Cir. 2005) (quoting Smith v. Siegelman, 322 F.3d
1290, 1296 (11th Cir. 2003)); see also Humphries v. Cnty. of Los Angeles, 554 F.3d
1170, 1188 (9th Cir. 2009) (stating that “Paul provides that stigma-plus applies when
a right or status is ‘altered or extinguished’”) (quoting Paul, 424 U.S. at 711
(employing the verb “to alter” or the noun “alteration” five times in one page)).
Plaintiffs allege that they have been stigmatized by being listed with an indicated
disposition on the central registry and that their rights under state law have been
altered due to the statutory consequences that follow from being listed on the central
registry.

8

a.

Stigma

There is no doubt that being labeled a child abuser satisfies the stigma prong,
and Defendants do not contest this. See, e.g., Humphries, 554 F.3d at 1186 (“[T]o be
accused of child abuse may be our generations’ contribution to defamation per se, a
kind of moral leprosy.”);2 Behrens, 422 F.3d at 1260 (“There is no doubt that the
[Florida Department of Children and Families] stigmatized Behrens when it ‘verified’
the child abuse allegations against him.”). However, Defendants say that because
Plaintiffs have not alleged that there was public disclosure of the indicated
dispositions, Plaintiffs cannot make out a claim under the stigma-plus test. First,
Defendants argue that there is no public disclosure because the central registry is not
available to the public and the records are confidential.3 See Ala. Code § 26-14-8.
Defendants further argue that the possibility that information may be released is not
enough to satisfy the publication requirement.

2

In 2010, the Supreme Court reversed the district court’s ruling regarding municipal
liability. See Los Angeles Cnty., Calif. v. Humphries, 131 S. Ct. 447 (2010). That reversal,
however, did not alter the district court’s analysis of the stigma-plus test discussed in this
opinion.
3

While the records on the central registry are to be kept confidential, exceptions are
created for certain classes of person. For example, records may be disclosed to, among others,
“employers, prospective employers, or others” in cases of an indicated disposition. Ala. Code §
26-14-8(d).
9

Each Plaintiff alleges, however, that the indicated dispositions were in fact
disclosed to third parties. Both Ms. Thomas and Ms. Ponder allege that the indicated
dispositions were introduced by DHR during their child custody proceedings. (Am.
Compl. 28.) The facts alleged by Ms. Raney create an inference that the indicated
disposition was disclosed to her church’s children’s minister. Upon receipt of
information from DHR pursuant to performing a volunteer background check, the
children’s minister informed Ms. Raney that the church had received information
from DHR that she “needed to check into.” (Am. Compl. 20.) Ms. Raney did so and
discovered that there was an indicated disposition listed on the central registry. These
facts support the proposition that DHR did disclose to the church that Ms. Raney had
an indicated disposition on the central registry.
The types of disclosures in this case are similar to that in Behrens, where the
Eleventh Circuit found the plaintiff was stigmatized. In that case, the Florida
Department of Children and Families verified child abuse investigations against the
plaintiff and maintained a record of it on its central abuse registry. Similar to
Alabama, the reports are generally kept confidential; however, by statute, the reports
may be disclosed to certain entities, including adoption agencies. The plaintiff
contested that there was any child abuse. The plaintiff further alleged that he was
unable to adopt because the verified child abuse report was disclosed to an adoption
10

agency. While the Eleventh Circuit did not specifically address the publication
requirement (or even if there is one), the plaintiff in Behrens alleged facts that
supported an inference of a publication. He alleged that the verified child abuse
report was disclosed to adoption agencies, who by law must check the central abuse
registry when considering potential adoptive parents. Accordingly, to the extent that
the test contains a publication requirement, it is met by the allegations in the amended
complaint. The stigma requirement of the stigma-plus test has been met.
b.

Plus

Stigma alone will not rise to the level of a constitutional deprivation of a
protected liberty interest that warrants due process protections. Plaintiffs must also
show that “a right or status previously recognized by state law was distinctly altered
or extinguished” in connection with the stigma. Paul, 424 U.S. at 711.
Defendants contend that Plaintiffs have not suffered a deprivation because
Plaintiffs have not alleged that they have been discharged, demoted, or rejected from
a job due to information in the registry, that they have lost custody of their children,
or that they have lost any state-provided licenses. Defendants argue that instead
Plaintiffs have merely alleged speculative fears or concerns that may arise from being
listed on the central registry.

11

It is true that Plaintiffs’ amended complaint is devoid of any allegations of loss
of employment, child custody, or licenses. However, the stigma-plus test does not
require a loss or extinguishment of a right or status. Plaintiffs may also satisfy the
plus requirement by showing that a right or status previously recognized by state law
was distinctly altered. See Humphries, 554 F.3d at 1188 (“[W]e need not find that
an agency will necessarily deny the [plaintiffs] a license to satisfy the ‘plus’ test. . .
. Rather, Paul provides that stigma -plus applies when a right or status is ‘altered or
extinguished.’” (quoting Paul, 424 U.S. at 711) (emphasis added in Humphries)). As
Defendants aptly note, a liberty interest under the United States Constitution has been
defined as follows:
[Liberty] denotes not merely freedom from bodily restraint, but also the
right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children, to worship God according to the dictates of
his own conscience, and generally to enjoy those privileges long
recognized as essential to the orderly pursuit of happiness by free men.
Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Contrary to Defendants’ assertions,
Plaintiffs have alleged distinct alterations of the rights listed in Meyers, not simply
fears and concerns that their rights may be lost.
First, the stigma associated with being labeled as a child abuser affects
Plaintiffs’ rights to establish a home and bring up children. The right to family
integrity is a well-established liberty interest, worthy of the constitutional protection
12

of procedural due process. See Stanley v. Illinois, 405 U.S. 645 (1972) (holding that
under the Due Process Clause of the Fourteenth Amendment, unwed father was
entitled to hearing on his fitness as parent before his children could be taken from him
in dependency proceedings instituted by the State of Illinois after the death of the
children’s natural mother); see also Prince v. Massachusetts, 321 U.S. 158, 166 (
1944) (“It is cardinal with us that the custody, care and nurture of the child reside first
in the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder. . . . And it is in recognition of this
that [prior] decisions have respected the private realm of family life which the state
cannot enter.”); Meyer, 262 U.S. at 390. The Eighth Circuit in Bohn v. County of
Dakota, 772 F.2d 1433 (8th Cir. 1985), found that the right to family integrity was
affected by the plaintiff being labeled as a child abuser. See also 772 F.2d at 1436
n.4 (finding an additional protectable reputation interest because “[t]he stigma [the
plaintiff] suffers as a reported child abuser undoubtedly has eroded the family’s
solidarity internally and impaired the family’s ability to function in the community”).
Similarly, Plaintiffs’ rights to family integrity have been distinctly altered by
their inclusion on the central registry as child abusers. Ms. Thomas and Ms. Ponder
allege that they intend to be active in their children’s lives and will “volunteer and
participate in those childcare/daycare/kindergarten/public or private school
13

institutions that [their] child[ren] will attend both now and in the future.” (Am.
Compl. 15, 19.) Their rights to family integrity are distinctly altered because it is
more difficult for them to participate in their children’s lives. In today’s society, it
is common practice for schools and organizations catering to children to require
background checks (even if not statutorily required). Having indicated dispositions
(true) on the central registry makes it highly unlikely that Ms. Thomas and Ms.
Ponder will be permitted to volunteer and participate to the fullest measure
contemplated by this country’s notions of liberty and family integrity.
Ms. Thomas and Ms. Ponder should not be forced to wait until they are rejected
as participants in their children’s activities before they can bring a procedural due
process claim. Anticipatory waiting compounds the harm, as they are denied their
protected parental rights and the indicated disposition of child abuse/neglect is spread
into the community. See, e.g., Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994)
(holding that the plaintiff’s claim was ripe even though she had not yet suffered a
deprivation of employment or other loss as a result of being listed on the Central
Register because “[h]er presence on the Central Register . . . [was] a direct threat not
only to her reputation but to her employment prospects” and it was “likely that the
employer [would] choose not to hire her due to her status”).

14

Second, Plaintiffs’ abilities to engage in any of the common occupations of life
have been distinctly altered. Ms. Thomas alleges that she “has a desire to pursue
further education in the nursing field, and to seek employment as a nurse’s aid, nurse
or in other areas of the medical profession.” (Am. Compl. 15.) Ms. Ponder “intends
to pursue further education and desires to work as a Certified Nursing Assistant or
Nurse’s Aid.”

(Am. Compl. 19.)

Having an indicated disposition of child

abuse/neglect on the central registry places a tangible burden on their abilities to seek
employment in their chosen field.

By statute, DHR may disclose indicated

dispositions to employers, potential employers, and others.
In Valmonte, the Second Circuit found there was a protected liberty interest
because New York’s laws created a “statutory impediment to employment.” 18 F.3d
at 1002. The plaintiff alleged that she would apply for a position within the child care
field but for her presence on the central register. Id. at 999. New York’s statutory
scheme required child care providers to consult the central register. If they chose to
hire an individual on the list, by law, the providers were required to explain the
reasons for hiring the individual in writing. Id. at 1001. The Second Circuit found
that this placed “a tangible burden on [the plaintiff’s] employment prospects.” Id.
While Alabama’s statutory scheme does not require employers to explain their
reasoning for hiring a person listed with an indicated disposition on the central
15

registry, the listing still creates a tangible burden on Plaintiffs’ employment prospects
because an employer would be less likely to hire them for a position in the medical
field. Indeed, having Plaintiffs on staff arguably could present a legal liability. See
Dupuy v. Samuels, 397 F.3d 493, 503 (7th Cir. 2005) (holding that a protected interest
was at stake because “child care workers effectively are barred from future
employment in the child care field once an indicated finding of child abuse or neglect
against them is disclosed to, and used by, licensing agencies and present or
prospective employers”).
Furthermore, a listing of an indicated disposition places a tangible burden on
Ms. Raney’s ability to volunteer. In Humphries, the Ninth Circuit concluded that the
plaintiffs satisfied the “plus requirement” because they “expressed a desire to work
or volunteer at the Florence Crittenton Center in Los Angeles, a community center
offering child care and a variety of other services.” 554 F.3d at 1183. The court
concluded that the listing on California’s central registry “directly affected . . . their
eligibility to work or volunteer at a local community center.” Id. at 1188. Likewise,
Ms. Raney’s indicated listing on the central listing places a tangible burden on her
ability to volunteer with local organizations. The facts alleged by Plaintiffs indicate
that Ms. Raney’s church checks the central registry as part of a background check on
volunteers. Ms. Raney wishes to engage in volunteer activities at her church that
16

involve children; however, her ability to volunteer is now altered because it is
unlikely that her church would want to allow someone with an indicated disposition
on the central registry to have contact with their congregation’s youth. Furthermore,
Ms. Raney’s fear that her volunteer application to help at the free medical clinic will
be denied is not unwarranted. Ms. Mashego is on the board of directors of the free
clinic, and Ms. Raney has alleged that she and Ms. Mashego have spoken on the
phone regarding Ms. Raney’s indicated disposition. It was during this conversation
that Ms. Mashego informed Ms. Raney that there was nothing she could do to remove
her name from the central registry.
Defendants point to Smith as controlling precedent regarding allegations of loss
or alteration of a liberty interest; however, that case is distinguishable. In Smith, the
plaintiff was a minor who had been listed on Alabama’s central registry with an
indicated disposition of child sexual abuse. The plaintiff alleged that “he ha[d] a
liberty interest in not being designated by the defendants . . . as having perpetrated
a sexual abuse or offense on a child.” Smith, 322 F.3d at 1296. In determining that
the plaintiff had not alleged a protected liberty interest, the court noted that the
plaintiff’s complaint did “not at any point allege that [the plaintiff] was denied any
right or status other than his not being branded a child sexual abuser” and that he did
“not contend that he was discharged, demoted, or rejected from a job due to the
17

information on the Registry.” Id. at 1297. The Eleventh Circuit “agree[d] that [the
plaintiff’s] employment and custody rights in the future could be affected adversely
due to the information on the Registry,” but that the claim was premature at the time.
Id.
Plaintiffs do not simply claim that they have a liberty interest in not being
labeled as child abusers. Unlike the plaintiff in Smith, who was a minor, Plaintiffs are
adults and more importantly, parents. They are not merely asserting that one day they
might have children or might try to get a job where an indicated disposition could
affect their rights. Plaintiffs are presently engaging in parenting and working.
Similarly, Behrens is not controlling because the plaintiff in that case alleged
that he was deprived of his right to adopt a child. Because adoption is not a right
under Florida law, the Eleventh Circuit found that the plaintiff had not presented a
constitutional deprivation of liberty. Behrens at 1261.
2.

Adequacy of Procedural Safeguards (Prong 3)

Plaintiffs allege that the procedures in place are constitutionally inadequate
because Plaintiffs have no way to seek removal of their names and information from
the central registry. Plaintiffs allege that a pre-deprivation hearing should be
required. Defendants argue that Plaintiffs cannot show that there are constitutionally
inadequate state procedures and further argue that Plaintiffs have failed to take
18

advantage of the state procedures already in place. Failing to take advantage of
procedures provided for by state law “does not constitute a sign of their inadequacy.”
McKinney v. Pate, 20 F.3d 1550, 1565 (11th Cir. 1994). Defendants cite Phillips v.
Thomas, 555 So. 2d 81 (Ala. 1989), for potential adequate state measures that
Plaintiffs could have used. That is, Plaintiffs could have filed a suit in state court to
compel the performance of a legal duty, to enjoin the enforcement of an
unconstitutional law, or to compel the performance of a ministerial act. They also
could have brought a suit under the Declaratory Judgment Act. See Phillips, 550 So.
2d at 83.
Defendants’ argument that Plaintiffs failed to take advantage of adequate state
procedures is unpersuasive. The remedies listed in Phillips were included in the
Alabama Supreme Court’s discussion of circumstances when sovereign immunity is
not available to state officials. Defendants’ argument that Plaintiffs could have filed
suit in state court ignores the heart of Plaintiffs’ claims.

Under Alabama

Administrative Code 660-5-34.07(1), all persons with indicated dispositions “must
be given an opportunity to disagree with [DHR’s] findings through either a CA/N
hearing or an administrative record review.” Plaintiffs allege that Defendants,
pursuant to their statutory authority, established a custom or policy in which only
administrative record reviews are given and all CA/N hearings are denied.
19

Administrative record reviews are conducted by a DHR staff-member who is
not involved in the case. The reviewer has the authority to overturn the dispositional
finding, and the reviewer’s “decision is final.” Administrative Code 660-5-34.07(7).
The reviewer looks to the initial assessment to determine if it “contains sufficient
documentation based on a preponderance of credible evidence to support the
‘indicated’ disposition of child abuse/neglect.” Administrative Code 660-5-34.07(3).
Thus, upon this decision being made final, Plaintiffs have had no other procedure by
which to remove their names from the central registry. The procedures listed by
Defendants do not provide Plaintiffs with a way to seek removal of their names from
the central registry. Furthermore, Plaintiffs did take advantage of the procedures
available to them. Ms. Ponder and Ms. Thomas asked for a hearing, but were only
given an administrative record review, and received no response regarding their
request for a hearing. Ms. Raney was told by Ms. Mashego that there was nothing
she could do to get her name off the central registry. These allegations are sufficient
to show that the procedures are constitutionally inadequate, and, thus, Defendants’
motion to dismiss is due to be denied on this claim.
B.

Entitlement Theory of Procedural Due Process (Count 2)
Plaintiffs title Count 2 of the amended complaint as “Second Cause of Action

(Claims Pursuant to 42 U.S.C. [§] 1983).” It is unclear what claim Plaintiffs attempt
20

to plead; however, it appears Plaintiffs are alleging a second procedural due process
claim based on a “right to a hearing which was previously recognized by State law.”4
(Am. Compl. 33.) Plaintiffs again appear to advance an entitlement theory of
procedural due process based on a state-provided right to a hearing. This theory was
rejected in the prior opinion. (See Doc. # 41, at 32–41.) Plaintiffs have not remedied
any of the defects in this theory as mentioned in the prior opinion, and accordingly,
this claim is due to be dismissed.5
C.

Qualified Immunity on Individual Capacity Claims for Damages
Defendants assert qualified immunity for Plaintiffs’ personal capacity claims

for damages. In order to overcome qualified immunity, Plaintiffs must demonstrate
“‘that: (1) [Defendants] violated a constitutional right, and (2) this right was clearly
established at the time of the alleged violation.’” Townsend v. Jefferson Cnty., 601

4

In alleging this cause of action, Plaintiffs use the language of the stigma-plus test for
procedural due process claims and assert that they are “without a constitutionally adequate and
sufficient process by which they can challenge the ‘indicated disposition’ and/or continued listing
on the Central Registry.” (Am. Compl. 33.) These allegations lead the court to find that
Plaintiffs attempt to allege a second procedural due process claim.
5

It seems that Plaintiffs are trying to recast a state suit for compelling performance of a
state official into a federal constitutional claim. As the Alabama Supreme Court stated in
Phillips, a “state official is not immune from a suit to compel the performance of a legal duty.”
555 So. 2d at 83. Plaintiffs’ arguments that they are legally entitled to a hearing by DHR and that
Defendants are denying Plaintiffs a hearing would be the type of allowable suit contemplated in
Phillips. Plaintiffs could seek a writ from an Alabama state court (assuming it was properly
pled) requesting that Defendants be forced to comply with Alabama law and provide them with a
hearing.
21

F.3d 1152, 1158 (11th Cir. 2010) (internal quotation marks omitted). Courts may
“exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first.” Id. (quoting Pearson v. Callahan, 555
U.S. 223, 236 (2009)).
As discussed above, Plaintiffs have properly alleged that Defendants violated
their constitutional rights to procedural due process. Plaintiffs, however, cannot
demonstrate the clearly established prong, and thus, Defendants are entitled to
qualified immunity. Plaintiffs argue that Bohn, Dupuy, Humphries, and Valmonte
clearly establish their constitutional rights, but do not point to any case law from the
Eleventh Circuit. Plaintiffs’ reliance on law from outside this circuit is not enough
to show that the right was clearly established. See Hansen v. Soldenwagner, 19 F.3d
573, 578 n.6 (11th Cir. 1994) (“[T]he case law of one other circuit cannot settle the
law in this circuit to the point of it being ‘clearly established.’”); Courson v.
McMillian, 939 F.2d 1479, 1497 n.32 (11th Cir. 1991) (looking to precedent from the
U.S. Supreme Court and the Eleventh Circuit, and noting that precedent from the
highest state court in which the case originates also may clearly establish a right).

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Thus, Plaintiffs’ federal claims against Defendants in their individual capacities are
due to be dismissed.6
D.

State Law Claims (Counts 5, 6, and 7)
In their amended complaint, Plaintiffs, for the first time, bring state law claims

against Defendants. Defendants assert multiple forms of immunity under state law.
First, Defendants claim that they are entitled to sovereign immunity on Plaintiffs’
state law claims against them in their official capacities for damages. “A complaint
seeking money damages against a State employee in his or her official capacity is
considered a complaint against the State, and such a complaint is barred by Art. I,
§ 14, Alabama Constitution of 1901.” Ex Parte Butts, 775 So. 2d 173, 177 (Ala.
2000). Thus, the state law claims against Defendants in their official capacities for
damages are due to be dismissed.
Second, Defendants assert that they are entitled to state-agent immunity under
Ex parte Cranman, 732 So. 2d 392 (Ala. 2000), on Plaintiffs’ state law claims against
them in their individual capacities. State-agent immunity may be withheld “upon a
showing that the State agent acted willfully, maliciously, fraudulently, in bad faith,
or beyond his or her authority.” Giambrone v. Douglas, 874 So.2d 1046, 1057 (Ala.
6

Because Defendants’ motion to dismiss is due to be granted on Plaintiffs’ personal
capacity claims against them, there is no need to address the parties’ arguments regarding
supervisory liability under § 1983, as those arguments pertain to individual capacity claims for
damages.
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2003). This showing would require the court to examine evidence. Because the court
cannot venture outside the four corners of the complaint, Defendants’ motion to
dismiss the individual-capacity, state-law claims based on state-agent immunity is due
to be denied at the motion to dismiss stage.
V. CONCLUSION
Accordingly, it is ORDERED that Defendants’ Motion to Dismiss First
Amended Complaint (Doc. # 43) is GRANTED in part and DENIED in part.
(1)

The motion to dismiss is GRANTED as to: (a) the federal claims against

Defendants in their individual capacities (Count 1); (b) Count 2; and (c) the state law
monetary claims against Defendants in their official capacities (Counts 5, 6, and 7);
(2) The motion to dismiss is DENIED as to the procedural due process claim
against Defendants for prospective relief in their official capacities (Count 1) and the
state law claims against Defendants in their individual capacities (Counts 5, 6, and 7).
It is further ORDERED that Counts 3 and 8 are DISMISSED because they are
prayers for relief that have been incorrectly enumerated as causes of action and are
redundant as they have already been included in the amended complaint’s prayer for
relief.

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In sum, Count 1 remains against Defendants in their official capacities for
prospective relief and Counts 4, 5, and 6 remain against Defendants in their official
capacities for prospective relief and in their individual capacities.
DONE this 11th day of September, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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