Thomas et al v. Buckner et al

Filing 93

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Plf Kayla Thomas's and Plf Joan Raney's remaining 42 USC § 1983 claims are DISMISSED as MOOT; 2) Plf Kayla Thomas's and Plf Joan Raney's remaining state-law claims against Dfts Nancy Buckner and Kim Mashego in their individual capacities are DISMISSED without prejudice pursuant to 28 USC § 1367(c); and 3) This case is DISMISSED. Signed by Chief Judge William Keith Watkins on 1/29/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KAYLA THOMAS, et al.,
Plaintiffs,
v.
NANCY BUCKNER, et al.,
Defendants.

)
)
)
)
) CASE NO. 2:11-CV-245-WKW
) (WO)
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)
)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case concerns Plaintiffs’ allegations that Alabama Department of
Human Resources (“DHR”) officials deprived them of procedural due process in
violation of 42 U.S.C. §1983 and committed several state law torts when DHR
placed them on a registry of “indicated” child abusers without affording them a due
process hearing, and then disclosed their status as registered “indicated” child
abusers to others.
In November 2013, Defendants filed a motion to stay this action to allow
them to provide Plaintiffs due process hearings. (Doc. # 73.) The court granted
the motion and stayed the case. (Doc. # 76.) After the parties reported that the
administrative hearings had been concluded in Plaintiffs’ favor and that the
“indicated” statuses had been changed to “not indicated,” the court entered an

order directing Plaintiffs to show cause “why their official-capacity claims against
Defendants, alleging violations of their procedural due process rights under the
Fourteenth Amendment, should not be dismissed, and why supplemental
jurisdiction should not be declined over Plaintiffs’ state-law claims pursuant 28
U.S.C. § 1367(c).” (Doc. # 87.) Plaintiffs responded to the order to show cause.
(Doc. # 88.) Defendants filed a reply to Plaintiffs’ response to the order. (Doc. #
91.) However, neither side adequately addressed the issues presented in the show
cause order. The parties’ briefs indicate that they are confused about – and do not
agree on – which claims remain pending in this case. Further, the parties spent the
majority of their briefs addressing the merits of a motion for attorney’s fees which
has yet to be filed.
After reviewing the case file in detail and considering the parties’ arguments
and the governing law, the court concludes that Plaintiffs’ remaining § 1983 claims
are due to be dismissed as moot. Pursuant 28 U.S.C. § 1367(c), the court will
decline to exercise supplemental jurisdiction over Plaintiffs’ remaining state-law
claims. Accordingly, this case is due to be dismissed.
II.
A.

PROCEDURAL HISTORY

Plaintiffs’ Remaining Claims
On April 4, 2011, Plaintiffs Kayla Thomas, Haley Ponder, LaShannon

Trammel, Lawrence Trammel, and Joan Raney filed a complaint against Nancy
2

Buckner, in her official capacity as the Commissioner of DHR; Kim Mashego, in
her official capacity as the Director of the Shelby County Department of Human
Resources (“Shelby County DHR”); and several other Defendants.

Plaintiffs

alleged that Defendants had investigated reports of child abuse and neglect,
concluded that the reports were substantiated, and placed Plaintiffs on a DHR
registry of “indicated” perpetrators of child abuse. Plaintiffs averred that their
constitutional and federal statutory due process rights had been violated because
they were not afforded a hearing prior to being placed on the registry and because
the persons investigating the child abuse allegations were not properly trained.
Plaintiffs sought compensatory and punitive damages, as well as injunctive and
declaratory relief. (Doc. # 1-2 at 18-22.)
On September 13, 2011, the court entered a memorandum opinion and order
(Doc. # 41) on Defendants’ motion to dismiss. (Doc. # 21.) The court dismissed
Plaintiffs’ claims, but allowed Plaintiffs an opportunity to amend the complaint.
The court stated: “Plaintiffs may seek prospective relief against the official
capacity defendants to the extent that Plaintiffs can allege a sufficient
constitutional injury. Second, Plaintiffs (in particular, Ms. Raney) may allege
claims against defendants in their personal capacities if there is a sufficient basis in
fact and law to do so.” (Doc. # 41 at 41.)
On September 29, 2011, three of the original plaintiffs (Kayla Thomas,
3

Haley Ponder,1 and Joan Raney) filed an amended complaint against Nancy
Buckner, in her personal capacity and in her official capacity as Commissioner of
DHR, and against Kim Mashego, in her personal capacity and in her official
capacity as Director of Shelby County DHR. (Doc. # 42.) Plaintiffs asserted the
following claims:
 Count 1:

a § 1983 claim for deprivation of procedural due process (Doc.
# 42 at 31-32);

 Count 2:

a § 1983 claim for deprivation of a “right previously recognized
under state law” (Doc. # 42 at 32-33);

 Count 3:

a “claim for injunctive relief pursuant to” § 1983 (Doc. # 42 at
33);

 Count 4:

a “claim for declaratory relief pursuant to” § 1983 (Doc. # 42
at 34);

 Count 5:

a state-law claim for negligence and wantonness (Doc. # 42 at
34);

 Count 6:

a state-law claim for conversion (Doc. # 42 at 35);

 Count 7:

a state-law claim for “suppression of material fact” (Doc. # 42
at 35-36); and

 Count 8:

a state-law claim for injunctive relief (Doc. # 42 at 36).

Plaintiffs sought compensatory and punitive damages, injunctive and
declaratory relief, and an award of attorney’s fees and costs. (Doc. # 42 at 37-38.)

1

On October 2, 2013, the court dismissed Plaintiff Haley Ponder’s claims without
prejudice for failure to prosecute. (Doc. # 71.) Only Kayla Thomas and Joan Raney remain as
Plaintiffs.
4

On October 7, 2011, the Defendants moved to dismiss the amended
complaint (Doc. # 43). On September 11, 2012, the court entered a memorandum
opinion and order (Doc. # 47) granting in part and denying in part Defendants’
motion to dismiss. The court ruled as follows on Plaintiffs’ claims:
 Count 1:

dismissed in part with respect to all claims for monetary relief2
against Defendants in their individual capacities on grounds of
qualified immunity (Doc. # 47 at 21-24);

 Count 2:

dismissed entirely for failure to state a claim upon which relief
can be granted (Doc. # 47 at 20-21, 24);

 Count 3:

dismissed entirely as redundant and not a cause of action (Doc.
# 47 at 24);

 Count 4:

the court did not address Count 4 (Doc. # 47);

 Counts 5, 6, and 7 (the state-law claims): dismissed in part on grounds of
sovereign immunity with respect to all money damages claims
against Defendants in their official capacities (Doc. # 47 at 2324); and
 Count 8:

dismissed entirely as redundant and not a cause of action (Doc.
# 47 at 24.)

The court concluded: “In sum, Count 1 remains against Defendants in their
official capacities for prospective relief and Counts 4, 5, and 6 remain against

2

As to Count 1 of the amended complaint, it does not appear that Plaintiffs attempted to
state a claim for injunctive relief against Defendants in their individual capacities. See Ingalls v.
U.S. Space & Rocket Ctr., No. 2:14-CV-699-WKW, 2015 WL 4528687, at *8 (M.D. Ala. July
27, 2015) (noting that district courts in this Circuit have found that “individual-capacity suits
under § 1983 for equitable relief are not sustainable” (citation and internal quotation marks
omitted)). In any event, as explained in Part III.A. of this memorandum opinion, all § 1983
claims for injunctive and declaratory relief in the amended complaint are now moot.
5

Defendants in their official capacities for prospective relief and in their individual
capacities.” (Doc. # 47 at 25.) This summary statement was not consistent with
the court’s findings within the memorandum opinion and order. On September 12,
2013, Defendants moved for clarification of the court’s September 11, 2012 Order,
or alternatively, to dismiss certain claims in the complaint. (Doc. # 69.)
On October 15, 2013, the court entered an order (Doc. # 72) granting the
motion for clarification (Doc. # 69) as follows: (1) dismissing Count 4 of the
amended complaint; (2) dismissing the state-law claims (Counts 5, 6, and 7)
against Defendants in their official capacities on the basis of Eleventh Amendment
immunity; and (3) dismissing the state-law claims (Counts 5, 6, and 7) for
injunctive relief against Defendants in their individual capacities as “meaningless.”
(Doc. # 72.)
The court concluded its October 15, 2013 order with the following
statement: “Accordingly, Count 1 remains against Defendants in their official
capacities for prospective relief.”3 (Doc. # 72 at 2.) Based on this statement,

3

The amended complaint does not clearly state that Plaintiffs seek money damages
against Defendants in their official capacities in conjunction with Count 1. In Count 1 of the
original complaint, Plaintiffs asserted a procedural due process claim and sought monetary relief
against Defendants in their official capacities. In granting the motion to dismiss Count 1 of the
original complaint, the court ruled that the individual defendants in their official capacities are
protected by Eleventh Amendment immunity and are not “persons” for purposes of § 1983
monetary relief. (Doc. # 41 at 15-16.) The court allowed Plaintiffs an opportunity file an
amended due process claim to “pursue prospective (i.e., injunctive and declaratory) relief under §
1983 (within the confines discussed elsewhere in this opinion) – to the extent that there is a
viable § 1983 claim – against the individual Defendants in their official capacities.” (Doc. # 41
6

Defendants take the position that there are no state-law claims remaining in the
case. Defendants are incorrect. The court has not dismissed the state-law claims
for money damages claims against Defendants in their individual capacities.
The following claims of Plaintiffs Kayla Thomas and Joan Raney are the
only claims in the amended complaint that have not been dismissed:
 Count 1: a § 1983 procedural due process claim for injunctive and
declaratory relief against Nancy Buckner and Kim Mashego in their
official capacities, and
 Counts 5, 6, and 7 (state-law claims for negligence and wantonness,
conversion, and “suppression of material fact”) for monetary relief
against Nancy Buckner and Kim Mashego in their individual
capacities.
B.

Other Relevant Procedural History
On October 10, 2012, the court entered a scheduling order. (Doc. # 53.)

Twice, on the parties’ joint motions, the deadlines in the scheduling order were
extended. Ultimately, the discovery deadline was set for November 27, 2013; the
dispositive motion deadline was set for January 10, 2014; the pretrial conference
was set for April 10, 2014; and trial was set for the term beginning May 5, 2014.
(Doc. # 64.)

at 15, 41.) If Plaintiffs had attempted to state another due process claim for monetary damages
against Defendants in their official capacities, it would have been subject to dismissal for the
same reasons that the claim was dismissed from the original complaint. There is no reason to
conclude that Plaintiffs intended to engage in such futility in violation of a court order.
Moreover, all parties appear to be operating under the assumption that no official-capacity §
1983 claims for monetary relief are pending. Accordingly, the court concludes that, in Count 1
of the amended complaint, Plaintiffs did not attempt to state a claim for monetary relief against
Defendants in their official capacities.
7

On November 19, 2013, Defendants moved for a stay of the remaining
deadlines in the scheduling order and for a stay of Nancy Buckner’s deposition
pending the resolution of the administrative hearings that DHR had voluntarily
agreed to provide Plaintiffs. (Doc. # 73.) In their motion to continue, Defendants
specifically disclaimed any liability on Plaintiffs’ claims. (Doc. # 73 at ¶ 1.)
Plaintiffs opposed the motion, objecting both to a stay of the deposition and to a
stay of the case. (Doc. # 74.)
On November 21, 2013, the Magistrate Judge granted the motion to stay the
deposition of Nancy Buckner. (Doc. # 75.) On November 22, 2013, the court
granted the motion to stay the case pending resolution of the administrative
hearing. (Doc. # 76.)
On August 26, 2014, the parties filed a joint status report informing the court
that an administrative law judge (“ALJ”) had entered final decisions in Plaintiffs’
favor and that DHR had changed the “indicated” dispositions to “not indicated.”
(Doc. # 86.)
On September 2, 2014, the court ordered Plaintiffs to “show cause . . . why
their official-capacity claims against Defendants, alleging violations of their
procedural due process rights under the Fourteenth Amendment, should not be
dismissed, and why supplemental jurisdiction should not be declined over
Plaintiffs’ state-law claims pursuant 28 U.S.C. § 1367(c).” (Doc. # 87.) Both
8

parties have filed briefs with respect to the show cause order, and the issues raised
in the show cause order are ready to be addressed. (Doc. # 88; Doc. # 91.)
III. DISCUSSION
A.

Plaintiffs’ Remaining § 1983 Due Process Claims for Declaratory and
Injunctive Relief Against Defendants in Their Official Capacities Are
Moot.
Plaintiffs’ amended complaint included a request for an injunction requiring

Defendants to implement procedures for providing due process hearings, to
properly train DHR personnel in the investigation and disposition of reports of
child abuse, to provide Plaintiffs due process hearings, and to expunge Plaintiffs’
names from the registry until the conclusion of the due process hearings. (Doc. #
42 at 37-38.) However, Plaintiffs concede that, since the filing of their amended
complaint, DHR provided administrative hearings in which they successfully
challenged the “indicated” disposition, and the “indicated” dispositions have been
removed. (Doc. # 86; Doc. # 88 at 9.) Plaintiffs admit that they “succeeded on
their [§ 1983] claims by winning the Administrative Hearings” (Doc. # 88 at 8);
that “the victory at the hearings . . . removed the legal impediment constituting a
tangible loss of employment opportunities” (Doc. # 88 at 9); and that, “[b]ecause
Plaintiffs won, the ALJ entered enforceable judgments preventing Defendants and
DHR from maintaining the indicated dispositions and disclosing the indicated
dispositions and the information contained in the reports.” (Doc. # 88 at 9).
9

Ordinarily, “‘a defendant’s voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the legality of the
practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283,
289 (1982)). “Otherwise, a party could moot a challenge to a practice simply by
changing the practice during the course of the lawsuit, and then reinstate the
practice as soon as the litigation was brought to a close.” Jews for Jesus, Inc. v.
Hillsborough Cty. Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998). Therefore,
the standard for determining whether defendant’s voluntary conduct has mooted a
case is a “stringent” one. Id. A case becomes moot only if subsequent events
make it “‘absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.’” Laidlaw, 528 U.S. at 189 (quoting United
States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)). “The
‘heavy burden of persua[ding]’ the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party asserting mootness.”
Id. (quoting Concentrated Phosphate, 393 U.S. at 203).
In this case, it is undisputed that the challenged conduct cannot reasonably
be expected to recur as to these Plaintiffs.4 Although there is no evidence that

4

Some of the prospective injunctive relief requested in Plaintiffs’ amended complaint,
such as requiring DHR to cease its current procedures and to implement new procedures, could
benefit unnamed persons who might in the future be placed on the registry as “indicated” child

10

DHR has changed its policies, there is no reason, short of purely imaginative
speculation, to suspect that Plaintiffs will again be the subject of child abuse
investigations in which DHR’s policies could again deprive them of due process.
Therefore, Plaintiffs no longer have a concrete interest in injunctive or declaratory
relief. See Laidlaw, 528 U.S. at 192 (noting that courts are not “license[d] to retain
jurisdiction over cases in which one or both of the parties plainly lack a continuing
interest, as when the parties have settled or a plaintiff pursuing a nonsurviving
claim has died”); DeFunis v. Odegaard, 416 U.S. 312, 319-20 (1974) (per curiam)
(holding that, despite the fact that a law school’s challenged admissions policy had

abusers without a due process hearing. There is no evidence that Defendants have changed (or
intend to change) DHR’s general policies or procedures as to anyone but these Plaintiffs. In fact,
Defendants represented to the court that, by providing due process hearings to Plaintiffs, they did
not admit liability or concede any defenses, and they merely sought to secure a “just, speedy, and
inexpensive” resolution of this particular case. (Doc. # 73 at ¶ 1.) Thus, it is not “absolutely
clear” that Defendants will never again place someone on the registry of indicated child abusers
without affording a due process hearing. See Nat’l Ass’n of Boards of Pharmacy v. Bd. of
Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1310 (11th Cir. 2011) (noting that finding of a
likelihood of recurrence includes consideration of “whether the change in government policy or
conduct appears to be the result of substantial deliberation, or is simply an attempt to manipulate
jurisdiction” and “whether the government has consistently applied a new policy or adhered to a
new course of conduct.” (citations and internal quotation marks omitted)); Sheely v. MRI
Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007) (noting that a finding of likely
recurrence includes consideration of “(1) whether the challenged conduct was isolated or
unintentional, as opposed to a continuing and deliberate practice; (2) whether the defendant’s
cessation of the offending conduct was motivated by a genuine change of heart or timed to
[avoid] suit; and (3) whether, in ceasing the conduct, the defendant has acknowledged
liability.”). However, in ruling on the motion to dismiss the original complaint, the court
concluded that Plaintiffs could not assert § 1983 claims on behalf of other unnamed individuals.
(Doc. # 41 at 12-13). Moreover, Plaintiffs do not assert that the interest of unnamed individuals
in averting hypothetical future due process violations prevents a finding of mootness. In any
event, as the Supreme Court has noted in a case concerning standing rather than mootness, “[t]he
Art. III judicial power exists only to redress or otherwise to protect against injury to the
complaining party, even though the court’s judgment may benefit others collaterally.” Warth v.
Seldin, 422 U.S. 490, 499 (1975).
11

not changed, a non-class-action challenge to the constitutionality of that policy was
mooted when the plaintiff, who had been admitted pursuant to a preliminary
injunction, neared graduation and would be allowed to finish his final term);
Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (holding that a
non-class-action challenge to a state constitutional amendment declaring English
the official State language became moot when the plaintiff, a state employee who
sought to use her bilingual skills, took a job in the private sector where her speech
was no longer governed by the challenged amendment); see also Camreta v.
Greene, 131 S. Ct. 2020, 2026 (2011) (holding that an appeal as to the
constitutionality of a child protective service worker’s warrantless interview of a
child “ha[d] become moot because the child ha[d] grown up and moved across the
country, and so w[ould] never again be subject to the Oregon in-school
interviewing practices whose constitutionality [was] at issue”). Cf. City of Erie v.
Pap’s A.M., 529 U.S. 277, 288 (2000) (declining to apply the voluntary cessation
exception to the mootness doctrine on grounds that the plaintiff still had a personal,
concrete stake in the outcome of an appeal).
Plaintiffs argue that the interim relief they received does not remedy past
injuries such as loss of employment opportunities and loss of reputation. (Doc. #
88 at 6-8.) However, Plaintiffs’ § 1983 claims for monetary damages have already
been dismissed, and Plaintiffs do not explain how claims for prospective relief
12

could possibly redress their past injuries. Plaintiffs themselves do not contend that
injunctive or declaratory relief is required to alleviate the prospective injuries that
were the subject of their § 1983 claims. The favorably resolved due process
hearings and the removal of Plaintiffs’ names from the registry have already
completely and irrevocably eradicated the prospective effects of the alleged
constitutional violations. See Harrell v. Fla. Bar, 608 F.3d 1241, 1265 (11th Cir.
2010) (holding that a case will be found moot on the basis of the defendant’s
voluntary cessation of challenged conduct only if “(1) ‘it can be said with
assurance that there is no reasonable expectation . . . that the alleged violation will
recur, and (2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation.’” (quoting Los Angeles Cty. v. Davis, 440 U.S.
625, 631 (1979));  Jews for Jesus, 162 F.3d at 629 (“A case is moot when events
subsequent to the commencement of a lawsuit create a situation in which the court
can no longer give the plaintiff meaningful relief.”).
Accordingly, Plaintiffs’ remaining claims for injunctive and declaratory
relief are due to be dismissed as moot.
B.

Plaintiffs’ Intent to File a Motion for Attorney’s Fees Does Not Preclude
Dismissal of the § 1983 Claims as Moot.
Plaintiffs argue that their § 1983 claims are not moot because, in their

amended complaint, they included a request for attorney’s fees and costs that has
not yet been adjudicated. (Doc. # 88 at 10.) Plaintiffs do not cite any legal
13

authority for this argument. Defendants do not address this argument.
Costs and attorney’s fees are not an element of Plaintiffs’ damages or part of
the substantive merits of the § 1983 claim.5 Rather, attorney’s fees in a civil rights
case are considered an element of costs due the prevailing party, which is not
always the plaintiff in every case. In fact, it is common (and the preferred) practice
to enter final judgment on § 1983 claims before deciding a 42 U.S.C. § 1988
motion for attorney’s fees. See Fed. R. of Civ. P. 58(e) (“Ordinarily, the entry of
judgment may not be delayed, nor the time for appeal extended, in order to tax
costs or award fees.”); Gordon v. Heimann, 715 F.2d 531, 535 (11th Cir. 1983)

5

See 42 U.S.C. § 1988 (“In any action or proceeding to enforce a provision of section[] .
. . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney’s fee as part of the costs.”); Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 200 (1988) (“As a general matter, at least, we think it
indisputable that a claim for attorney’s fees is not part of the merits of the action to which the
fees pertain. Such an award does not remedy the injury giving rise to the action, and indeed is
often available to the party defending against the action.”); White v. N.H. Dep’t of Emp’t Sec.,
455 U.S. 445, 451-52 (1982) (“[A] request for attorney’s fees under § 1988 raises legal issues
collateral to the main cause of action . . . . Section 1988 provides for awards of attorney’s fees
only to a ‘prevailing party.’ Regardless of when attorney’s fees are requested, the court’s
decision of entitlement to fees will therefore require an inquiry separate from the decision on the
merits – an inquiry that cannot even commence until one party has ‘prevailed.’ Nor can
attorney’s fees fairly be characterized as an element of ‘relief’ indistinguishable from other
elements. Unlike other judicial relief, the attorney’s fees allowed under § 1988 are not
compensation for the injury giving rise to an action. Their award is uniquely separable from the
cause of action to be proved at trial.”); Adeduntan v. Hosp. Auth. of Clarke Cty., 249 F. App’x
151, 154 (11th Cir. 2007) (recognizing that, when a party seeks an award of attorney’s fees based
on a prevailing party statute, rather than pursuant to a contract, the request for attorney’s fees is
collateral to the merits of the action); Fluor Constructors, Inc. v. Reich, 111 F.3d 94, 96 (11th
Cir. 1997) (“[B]oth the imposition and the amount of attorney’s fees are always collateral to the
merits of an action.”).

14

(“Because under the statute attorneys’ fees can only be awarded to prevailing
parties, attorneys’ fees under section 1988 will usually be sought only after
litigation.”).
Moreover, although Plaintiffs did include a request for an award of
attorney’s fees in their amended complaint (Doc. # 42 at 38 ¶ J), Plaintiffs have not
filed a motion for attorney’s fees pursuant to 42 U.S.C. § 1988. “A claim for
attorney’s fees and related nontaxable expenses must be made by motion unless the
substantive law requires those fees to be proved at trial as an element of damages.”
Fed. R. Civ. P. 54(d)(2)(A); see also Fed. R. Civ. P. 54 advisory committee’s note
(stating that section 54(d)(2), which was added to Rule 54 in 1993, “establishes a
procedure for presenting claims for attorneys’ fees, whether or not denominated as
‘costs’”).
Therefore, the court will not delay dismissal of the § 1983 claims in
anticipation of a motion for attorney’s fees that has not been filed. Fed. R. Civ. P.
54(d)(2)(A). Cf. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990) (“Where
on the face of the record it appears that the only concrete interest in the controversy
has terminated, reasonable caution is needed to be sure that mooted litigation is not
pressed forward, and unnecessary judicial pronouncements on even constitutional
issues obtained, solely in order to” allow a plaintiff to “obtain reimbursement of
sunk costs” in the form of a § 1988 attorney’s fees award).
15

C.

28 U.S.C. § 1367(c) Gives this Court Discretion to Decline to Exercise
Supplemental Jurisdiction After Dismissing Plaintiffs’ § 1983 Claims.
Plaintiffs’ state-law claims remain on the basis of the court’s supplemental

jurisdiction pursuant to 28 U.S.C. § 1367(a). 28 U.S.C. § 1367(c) allows for
dismissal of supplemental state-law claims under specified circumstances.
Defendants argue that § 1367(c) is irrelevant because all supplemental state-law
claims have already been dismissed. (Doc # 91 at 3.) Defendants are incorrect.
As explained in Section I.A. of this memorandum, Counts 5, 6, and 7 of the
amended complaint (state-law claims for negligence and wantonness, conversion,
and “suppression of material fact”) remain pending to the extent that Plaintiffs seek
monetary relief from Nancy Buckner and Kim Mashego in their individual
capacities.
28 U.S.C. § 1367(c)(3) provides that “[t]he district court[] may decline to
exercise supplemental jurisdiction over a claim . . . if . . . the district court has
dismissed all claims over which it has original jurisdiction.” Plaintiffs argue that §
1367(c)(3) would be inapplicable “if this Court were to allow plaintiff [sic] to
proceed on its claim for attorney’s fees” because “then the federal claims would
remain pending before this Court (at least with respect to the claim for attorney’s
fees) and the retention of supplemental jurisdiction over the state-law claims would
be appropriate.”

(Doc. # 88 at 12.)

As explained in Part III.B. of this

memorandum opinion, Plaintiffs have not filed a motion for attorney’s fees.
16

Plaintiffs have not supplied, and the court has not found, any legal support for the
proposition that, after all underlying federal-law claims have been dismissed, the
possibility of a motion for attorney’s fees pursuant to § 1988 provides an
independent basis of original jurisdiction that can, in turn, render § 1367(c)(3)
inapplicable.
Moreover, 42 U.S.C. § 1988(b) provides for an award of attorney’s fees to
“the prevailing party . . . as part of the costs.” Thus, as with other proceedings to
award costs, § 1988’s provision for an award of attorney’s fees is a matter of the
court’s ancillary enforcement jurisdiction, which is a distinctly separate basis for
jurisdiction that allows a court to consider awarding attorney’s fees even when the
court has no original jurisdiction over the substantive claims in the case. See
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990) (noting that district
courts have jurisdiction to award costs as a “collateral issue” even after an
underlying action is dismissed for lack of jurisdiction because a proceeding for an
award of costs is an “independent proceeding supplemental to the original
proceeding”); Missouri v. Jenkins, 491 U.S. 274, 279 (1989) (holding that, because
an award of attorney’s fees pursuant to § 1988 is “ancillary” to a claim for
injunctive relief, the Eleventh Amendment does not bar the award or preclude a
district court from settling a dispute over the proper way to calculate the fees);
White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 451-52 (1982) (holding that a
17

motion for attorney’s fees pursuant to § 1988 is collateral to the case on the
merits).
Put another way, as explained in Part III.B., a motion for attorney’s fees is
not a separate federal “claim” in a plaintiff’s complaint; in fact, in some cases,
such a motion will be filed by a party who has no federal claim. Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 200 (1988).

Thus, once the court

dismisses Plaintiffs’ § 1983 claims as moot, the court will have dismissed “all
claims over which it has original jurisdiction,” and the court “may decline to
exercise supplemental jurisdiction” over the remaining state-law claims. 28 U.S.C.
§ 1367(c)(3). Cf. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 480 (1990) (holding
that, when the underlying federal claim has become moot, a party’s interest in
recouping attorney’s fees pursuant to §1988 “is . . . insufficient to create an Article
III case or controversy where none exists on the merits of the underlying claim”).
Alternatively, even if it could be found that federal-law claims remain on the
mere basis of a possibility that a § 1988 motion for attorney’s fees will be filed, the
court may dismiss supplemental claims pursuant to 28 U.S.C. § 1367(c)(2) when
the state-law claims substantially predominate over the federal claims. See Palmer
v. Hosp. Auth. of Randolph Cty., 22 F.3d 1559, 1569 (11th Cir. 1994) (holding that
the district court has jurisdiction to dismiss supplemental state-law claims when
any one of the factors listed in § 1367(c) is present). “‘A federal court will find
18

substantial predominance when it appears that a state claim constitutes the real
body of a case, to which the federal claim is only an appendage.’” Parker v. Scrap
Metal Processors, Inc., 468 F.3d 733, 744 (11th Cir. 2006) (quoting McNerny v.
Neb. Public Power Dist., 309 F. Supp. 2d 1109, 1117-18 (D. Neb. 2004)). Once
the remaining federal-law claims have been dismissed and a motion for attorney’s
fees is all that is left of the federal case, the motion for attorney’s fees (if one is
filed) will be a mere collateral appendage, and the state-law claims will comprise
the overwhelming “body of the case.” See Cooter, 496 U.S. at 395 (holding that
motions for costs or attorney’s fees are independent, collateral proceedings
supplemental to the original proceedings and are not part of the decision on the
merits of the case).
Accordingly, pursuant to 28 U.S.C. § 1367(c)(2) and § 1367(c)(3),
regardless of Plaintiffs’ intent to seek attorney’s fees pursuant to § 1988, the court
has discretion to dismiss the remaining state-law claims.
D.

The Court Will Decline to Exercise Supplemental Jurisdiction After
Dismissing Plaintiffs’ § 1983 Claims.
Dismissal of state-law claims pursuant to 28 U.S.C. § 1367(c)(2) and (c)(3)

is not mandatory, but is within a trial court’s sound discretion. Palmer, 22 F.3d at
1568. However, the court’s discretion to dismiss the supplemental state-law claims
pursuant to § 1367(c)(2) or (c)(3) is to be guided by judicial considerations
enumerated in United Mine Workers v. Gibbs, 383 U.S. 715 (1966), such as
19

judicial economy, comity, convenience, and fairness to the parties. Id. at 1569
(holding that factors outlined in Gibbs which had not been codified in § 1367(c)
remained relevant to the trial court’s discretion to dismiss supplemental state-law
claims). 
Further, in Gibbs, the Supreme Court stated that, “if the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the
state claims should be dismissed as well.” 383 U.S. at 726. This statement does
not create a mandatory, inflexible rule, but the statement does “recognize[] that in
the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine –
judicial economy, convenience, fairness, and comity – will point toward declining
to exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon
University v. Cohill, 484 U.S. 343, 350 n.7 (1988); see also  Raney v. Allstate Ins.
Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (“We have encouraged district courts to
dismiss any remaining state claims when, as here, the federal claims have been
dismissed prior to trial.”).
1.

The Running of the Statute of Limitations on the State-law Claims
Does Not Support Departure From the Usual Rule.

Plaintiffs argue that considerations of fairness support departure from the
usual rule of dismissing state-law claims when the federal-law claims are
dismissed before trial. Specifically, Plaintiffs contend that dismissal of their state20

law claims would be unfair because the statute of limitations would bar them from
pursuing those claims in a new action in state court. (Doc. # 88 at 12.) However,
Plaintiffs will not be barred from filing a new suit in state court so long as they do
so within a period of thirty days after dismissal. 28 U.S.C. § 1367(d) (“The period
of limitations for any claim [over which the court has supplemental jurisdiction] . .
. shall be tolled while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.”); Jinks v. Richland
Cty., S.C., 538 U.S. 456, 459 (2003) (“To prevent the limitations period on such
supplemental claims from expiring while the plaintiff was fruitlessly pursuing
them in federal court, § 1367(d) provides a tolling rule that must be applied by
state courts.”).
2.

Considerations of Judicial Economy and Preventing Duplication
of Effort Do Not Support Departure from the Usual Rule.

A federal court should retain jurisdiction when the court has already
committed substantial judicial resources to the state-law claims “‘so that sending
the case to another court will cause a substantial duplication of effort.’” Parker v.
Scrap Metal Processors, Inc., 468 F.3d 733, 746 (11th Cir. 2006) (quoting Graf v.
Elgin, Joliet & Eastern Ry. Co., 790 F.2d 1341, 1347–48 (7th Cir. 1986), overruled
on other grounds by Hughes v. United Air Lines, Inc., 634 F.3d 391, 393-95 (7th
Cir. 2011)). Plaintiffs contend that, because of the length of time that they have
been litigating and the current procedural posture of the case, this is not “the usual
21

case” where considerations of judicial economy weigh in favor of declining
jurisdiction over the state-law claims. Specifically, Plaintiffs argue that, if the
state-law claims are dismissed and then refiled in state court, resources would be
substantially duplicated because “the state court would, no doubt, have to address
the same Motion to Dismiss; and, the parties would then have to duplicate the
discovery that has already been concluded.” (Doc. # 88 at 13 (sic).)
ii.

There is No Basis for Plaintiffs’ Contention that Dismissal
Will Require Substantial Duplication of Discovery Efforts.

Plaintiffs note that, with the exception of the deposition of Nancy Buckner,
discovery is complete.6

However, Plaintiffs have not identified any specific

discovery that will need to be duplicated if the case is dismissed and refiled in state
court, and they have not cited any legal authority to support their contention that
discovery will have to be duplicated. In the absence of supporting facts or legal
authority from Plaintiffs, the court notes that, in general, Alabama rules of
evidence and procedure would not necessarily require that discovery taken in this
court be duplicated in a state court proceeding on Plaintiffs’ remaining state-law

6

On November 19, 2013, eight days before the expiration of the discovery deadline,
Defendants moved to stay the deposition of Nancy Buckner pending the resolution of the
administrative hearings. (Doc. # 73.) In that motion, Defendants stated that they objected to the
deposition of Nancy Buckner because she was an executive official with no personal knowledge
of the factual basis of Plaintiffs’ claims. (Doc. # 73 at ¶¶ 2-3.) Plaintiffs moved to compel
Nancy Buckner’s deposition, arguing in part that she did have personal knowledge of Plaintiffs’
federal- and state-law claims. (Doc. # 74 at ¶ 6). The Magistrate Judge granted the motion to
stay the deposition and denied the motion to compel pending resolution of Defendants’ motion to
stay the entire case, but he did not enter a ruling on whether Defendants were legally entitled to
take Nancy Buckner’s deposition. (Doc. # 75.)
22

claims.7 Thus, it appears that, once the case is refiled in state court, the case would
likely require very little additional discovery and could be ready for trial relatively
quickly after the pleadings close.
Accordingly, the fact that discovery is almost complete does not implicate
concerns of “judicial economy, convenience, fairness, and comity” that would
mitigate against the “usual rule” of dismissing state-law claims when the federal
claims are dismissed before trial. Cohill, 484 U.S. at 350 n.7; see also Jacoboni v.
KPMG LLP, 314 F. Supp. 2d 1172, 1180-81 (M.D. Fla. 2004) (“It is true that this
matter has been pending in this court for nearly two years and the undersigned
judge is already familiar with the case. However, only state claims remain, and
considerations of practicality and comity counsel that a state judge is best equipped
to adjudicate those claims.”).
ii.

Motion Practice in State Court Will Not Require Substantial
Duplication of Effort.

Plaintiffs argue that, if the state-law claims are refiled in state court, the state
court “would, no doubt, have to address the same Motion to Dismiss” as this court
has addressed. (Doc. # 88 at 13.) Although the court has ruled on motions to
dismiss, the court has not invested any judicial resources in considering the

7

See, e.g., Ala. R. Civ. P. 32(a)(4) (“[W]hen an action has been brought in any court . . .
of the United States . . . and another action involving the same subject matter is afterward
brought between the same parties or their representatives or successors in interest, all depositions
lawfully taken and duly filed in the former action may be used in the latter as if originally taken
therefor.”).
23

evidence, merits, or substantive state law underlying Plaintiffs’ tort claims. With
respect to the state-law claims, the court’s substantive rulings on motions to
dismiss have involved the following: (1) declining to consider the question of
state-agent immunity at the motion-to-dismiss stage (Doc. # 47 at 23-24); (2)
ruling that all claims against DHR and Shelby County DHR were due to be
dismissed for lack of subject matter jurisdiction on the basis of sovereign immunity
afforded by the Eleventh Amendment and the Alabama Constitution (Doc. # 41 at
14, 40); (3) on grounds of sovereign immunity afforded by the Alabama
Constitution, partially dismissing all state-law claims with respect to claims for
money damages against Defendants in their official capacities (Doc. # 47 at 23);
(4) dismissing a separate “count” for injunctive relief because it was not a cause of
action and was due to be dismissed as duplicative of Plaintiffs’ request for relief
(Doc. # 47 at 24); (5) dismissing the state-law claims against Defendants in their
official capacities on the basis of Eleventh Amendment immunity (Doc. # 72); and
(6) dismissing state-law claims for injunctive relief against Defendants in their
individual capacities as “meaningless” under Alabama law (Doc. # 72).
Plaintiffs have not identified which, if any, of these issues will require
substantial duplication of resources in state court. The substantive issue of state
agent immunity has yet to be litigated no matter where the case is tried, but no
duplication of resources will be necessary in the process because the issue has not
24

been substantially litigated in this court. (Doc. # 47 at 23-24.) To the extent that
the court partially dismissed state-law claims on Eleventh Amendment grounds,
those rulings will not be relitigated in state court because the Eleventh Amendment
is not the source of the State of Alabama’s immunity from state-law tort actions in
its own courts.8 Ala. State Docks Terminal Ry. v. Lyles, 797 So. 2d 432, 436 (Ala.
2001). To the extent that the parties anticipate relitigating the applicability of
sovereign immunity afforded by Alabama law, there is no reason to expect that a
state court cannot efficiently dispose of that straightforward issue without the
necessity of additional discovery, extensive litigation, or substantial duplication of
resources. Further, only Plaintiffs’ own decision to reassert futile claims could
cause any delay as a result of revisiting this court’s earlier rulings that a count for
injunctive relief was due to be dismissed as redundant (Doc. # 47 at 24) or that
claims for injunctive relief against state officials acting in their personal capacities
are “meaningless” under Alabama law (Doc. # 72).
Moreover, as Plaintiffs note (Doc. # 88 at 13), the parties have already
thoroughly briefed the legal issues implicated in the motions to dismiss; thus, if the
parties do choose to reassert claims or defenses (including sovereign immunity)
that this court has already addressed, there is no reason to expect that any party
will need to expend substantial additional resources to reproduce their arguments.

8

Defendants do not argue that they would be prejudiced by the unavailability of Eleventh
Amendment defenses to tort claims in state court.
25

See Parker, 468 F.3d at 746 (holding that a federal court should retain jurisdiction
when substantial judicial resources have already been devoted to the state-law
claims “so that sending the case to another court will cause a substantial
duplication of effort.” (emphasis added; internal quotation marks and citation
omitted)).
iii.

Considerations of Judicial Economy, Comity, Convenience,
and Fairness to the Parties Weigh in Favor of Dismissal.

The remaining state-law claims are steeped in questions of state law, state
agency procedures, and the interaction between Alabama tort law and Alabama’s
compelling state interests in family relations and protecting children from harm.
Retaining jurisdiction over the state-law claims would require this court to
needlessly decide issues of state law and state policy that, as a matter of comity,
judicial economy, and the promotion of justice between the parties, are best
decided by a state court. Gibbs, 383 U.S. at 726 (holding that a court should
decline to exercise supplemental jurisdiction to avoid “[n]eedless decisions of state
law . . . both as a matter of comity and to promote justice between the parties, by
procuring for them a surer-footed reading of applicable law”); see also Rose v.
Rose, 481 U.S. 619, 625 (1987) (“We have consistently recognized that ‘[t]he
whole subject of the domestic relations of husband and wife, parent and child,
belongs to the laws of the States and not to the laws of the United States.’”
(quoting In re Burrus, 136 U.S. 586, 593–594, 10 S.Ct. 850, 852–853, 34 L.Ed.
26

500 (1890)).
Accordingly, in light of judicial economy, convenience, comity, and fairness
to the litigants, the court will dismiss the state-law claims pursuant to § 1367(c)(2)
and (3). Gibbs, 383 U.S. at 726 (“[Supplemental] jurisdiction is a doctrine of
discretion, not of plaintiff’s right. Its justification lies in considerations of judicial
economy, convenience and fairness to litigants; if these are not present a federal
court should hesitate to exercise jurisdiction over state claims, even though bound
to apply state law to them.” (footnote omitted)).
IV.

ATTORNEY’S FEES

42 U.S.C. § 1988 provides that, “[i]n any action or proceeding to enforce a
provision of section[] . . . 1983 . . . of this title, . . . the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.”
Plaintiffs argue that they are the prevailing parties because they prevailed at the
administrative due process hearings. Defendants argue that Plaintiffs are not the
prevailing parties because Defendants voluntarily provided due process hearings
without being ordered to do so by the court, without an agreed9 settlement, and

9

The letters from DHR notifying Plaintiffs that their cases had been set for administrative
hearings did not give them a choice in the matter. (Doc # 73-1 at 2, 5 (“If [Plaintiffs] cannot
attend this . . . investigative hearing, please notify [the ALJ] immediately. [Plaintiffs] may
contact [the ALJ] by mail or by telephone. If [Plaintiffs] fail[] to attend this hearing without good
cause after receiving proper notice, and good cause does not exist for adjournment or
postponement, the hearing request may be dismissed, or [the ALJ] may proceed with the hearing
and make a decision in [Plaintiffs’] absence. Good cause for failure to appear includes, but is not
27

without entry of a consent decree.
Central to the parties’ arguments is Buckhannon Bd. & Care Home, Inc.v. W.
Va. Dep’t of Human Res., 532 U.S. 598 (2001), in which the United States
Supreme Court stated:
Numerous federal statutes allow courts to award attorney’s fees and
costs to the “prevailing party.” The question presented here is whether
this term includes a party that has failed to secure a judgment on the
merits or a court-ordered consent decree, but has nonetheless achieved
the desired result because the lawsuit brought about a voluntary
change in the defendant’s conduct. We hold that it does not.
532 U.S. at 600.
Under Buckhannon,10 to be considered a “prevailing party,” the party must
achieve “a court-ordered ‘chang[e] [in] the legal relationship between [the
plaintiff] and the defendant.’” Id. at 604 (quoting Tex. State Teachers Assn. v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)) (alteration in original). The
material alteration in the legal relationship of the parties must be “court-ordered”
or have a “judicial imprimatur;” there must be “a judicially sanctioned change in
the legal relationship of the parties.” 532 U.S. at 603-05. Thus, a judgment on the
merits would suffice, as would a “settlement enforced through a consent decree.”
Id. at 604. A consent decree will suffice because, “although a consent decree does

limited to, a death in the family, serious personal injury, and sudden and unexpected
emergencies.”).
10

Buckhannon is generally applicable to all fee-shifting statutes that use the term
“prevailing party.” Morillo-Cedron v. Dist. Dir. for the U.S. Citizenship & Immigration Servs.,
452 F.3d 1254, 1255 (11th Cir. 2006).
28

not always include an admission of liability by the defendant,” it is nonetheless a
court order that alters the legal relationship between the plaintiff and the defendant.
Id. On the other hand, “[a] defendant’s voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks
the necessary judicial imprimatur on the change.” Id. at 605.
At the close of discovery, “without admitting liability[] or conceding any
defenses in reference to this action,”11 Defendants voluntarily chose to provide
Plaintiffs with due process hearings. (Doc. # 73 at ¶ 1.) Further, Defendants
sought a stay of the action in this court because they “believe[d] that resolving
[the] hearing[s] w[ould] ultimately resolve the underlying due process claim that
remain[ed] in this action without further discovery, litigation, or Court
involvement.” (Doc. 73 at ¶ 1.) Defendants “contend[ed] that the requested [stay]
complies with the Federal Rules of Civil Procedure ‘to secure the just, speedy, and
inexpensive determination of the underlying action,’ without undue continued
litigation.” (Doc. 73 at ¶ 1.)

11

In seeking the stay, Defendants represented to this court that they did not admit liability
or concede defenses in this case. (Doc. 73 at ¶ 1.) However, as Plaintiffs pointed out in
opposition to Defendants’ motion to stay (Doc. # 74 at 6), the letters notifying them of the
scheduled hearings specifically stated that, “[p]ursuant to Ala. Code 1975 § 26-14-7.1,
[Plaintiffs] ha[d] the right to a hearing to contest the Department’s findings of indicated child
abuse/neglect.” (Doc. 73-1 at 2, 5.) The letters notifying Plaintiffs that they “ha[d] a right to a
hearing” were on DHR letterhead, which included the DHR seal and the words “Nancy T.
Buckner, Commissioner.” The letters originated from DHR’s Administrative Hearings Office
and were signed by a DHR ALJ. DHR sent copies of the letter to Defendant Mashego. (Doc.
73-1.)
29

Plaintiffs objected to the motion to stay on grounds that the due process
hearings would not provide the injunctive relief they sought to require DHR to
change its policies, and on grounds that the due process hearings would not affect
Plaintiffs’ remaining state-law claims. (Doc. # 74.) At the time the court granted
the motion to stay, the court did not expressly state its reason for granting the
motion over Plaintiffs’ objection. However, it can be inferred from the record –
and the court now expressly states – that the stay was granted for the sole reasons
stated in Defendants’ motion: because “resolving [the due process hearings]
w[ould] ultimately resolve the underlying due process claim that remain[ed] in this
action without further discovery, litigation, or [c]ourt involvement,” and because
“the requested [stay] complie[d] with the Federal Rules of Civil Procedure ‘to
secure the just, speedy, and inexpensive determination of the underlying action,’
without undue continued litigation.” (Doc. # 73 at ¶ 1.)
Defendants could have chosen to hold due process hearings with or without
a stay of this case. However, the order granting the stay was not merely an
inevitable act of judicial acquiescence to Defendants’ unilateral decision to resolve
the case without further litigation in this court. The court could have declined to
grant the stay and required the parties to proceed to a judicial resolution. At the
time Defendants moved for the stay, there was a realistic possibility that, if this
action had proceeded alongside the administrative process, Plaintiffs’ claims could
30

have been resolved on dispositive motions or by a trial before the administrative
process could be completed. The date originally set for the administrative hearings
(January 29, 2014) fell after the discovery and dispositive motion deadlines
(November 27, 2013 and January 10, 2014, respectively). (Doc. # 64; Doc. # 73.)
After the court stayed the case, both administrative hearings were postponed until
March 13, 2014 (Doc. # 78), then to May 13, 2014 (Doc. # 81). Plaintiff Kayla
Thomas’s administrative hearing was held on May 13, 2014, and the ALJ issued a
final decision in her case on June 5, 2014. (Doc. # 86 at ¶ 1; Doc. # 88-1 at 15.)
Plaintiff Joan Raney’s administrative hearing was continued to August 4, 2014
(Doc. # 83), and the ALJ issued final decision in her case on August 18, 2014.
(Doc. # 86 at ¶ 2, Doc. # 88-1 at 24.) Without the stay, the parties would have
proceeded to trial on May 5, 2014. (Doc. # 64; Doc. # 80.)
Thus, in granting the stay, the court alone determined that, as Defendants
requested, the case would be resolved without further litigation or judicial
involvement. However, Plaintiffs do not argue at this time that the order granting
the stay over their objection constitutes a “judicial imprimatur” on Defendants’
proposed resolution of the due process claims. This and any other issues related to
the motion for attorney’s fees need not be decided at this time because no motion
for attorney’s fees has been filed, and the court will not give the parties an advisory
opinion on the matter. The merits of any motion for attorney’s fees will be decided
31

if and when such a motion is filed.
V. CONCLUSION
Accordingly, it is ORDERED as follows:
1.

Plaintiff Kayla Thomas’s and Plaintiff Joan Raney’s remaining 42

U.S.C. § 1983 claims are DISMISSED as MOOT;
2.

Plaintiff Kayla Thomas’s and Plaintiff Joan Raney’s remaining state-

law claims against Defendants Nancy Buckner and Kim Mashego in their
individual capacities are DISMISSED without prejudice pursuant to 28 U.S.C. §
1367(c); and
3.

This case is DISMISSED.

A separate final judgment will be entered.
DONE this 29th day of January, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

32