Franklin et al v. Hubbard et al
MEMORANDUM OPINION AND ORDER: it is ORDERED that Defendant John Shearon's Motion to Dismiss or in the Alternative Motion for Summary Judgment and Defendant Chilton County's Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. [ 27]) is GRANTED. The claims against Defendant Chilton County are dismissed with prejudice, and the court enters summary judgment in favor of Defendant John Shearon and against Plaintiffs on all claims stated against him. Signed by Honorable Judge Gray M. Borden on 10/13/2016. (kh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
PAULA FRANKLIN and HALEIGH
DAVID HUBBARD, et al.,
CASE NO.: 2:16-cv-206-GMB
MEMORANDUM OPINION AND ORDER
Before the court is Defendant John Shearon’s Motion to Dismiss or in the
Alternative Motion for Summary Judgment and Defendant Chilton County’s Motion to
Dismiss Plaintiffs’ Second Amended Complaint. Doc. 27. For the reasons stated herein,
the court finds that the motion is due to be GRANTED.
I. STATEMEMNT OF FACTS
On March 28, 2016, Plaintiffs Paula Franklin and Haleigh Lowery (collectively,
“Plaintiffs”) filed this action against Defendants Chilton County (the “County”), Chilton
County Board of Education (the “County BOE”), David Hubbard, and Sheriff John
Shearon (“Sheriff Shearon”) (collectively, “Defendants”). Doc. 1. This case arises out of
Hubbard’s alleged illicit sexual relationships with Franklin and Lowery, both of whom
were minors at the time of the events giving rise to this lawsuit. Doc. 20. Hubbard was a
Deputy Sheriff for the Chilton County Sheriff’s Department and later a substitute teacher
and School Resource Officer for the County BOE. Doc. 20. Franklin alleges that she
engaged in a sexual relationship with Hubbard after he was called to her home on a
domestic disturbance complaint and that he provided her with alcohol on multiple
occasions. Doc. 20 at 3. Lowery alleges that Hubbard used his positions as School
Resource Officer and substitute teacher to make “sexual overtures” and “advances”
towards her at school and that he sent her text messages outside of school hours. Doc. 4.
Lowery claims that, for approximately one year, Hubbard would also provide her with
alcohol and the two would engage in sexual acts. Doc. 20 at 4.
Plaintiffs’ second amended complaint alleges that Sheriff Shearon, the County, and
the County BOE had knowledge of Hubbard’s conduct and “did nothing to stop or prevent
Defendant Hubbard from continuing these relationships while in their employment.” Doc.
20 at 5. Plaintiffs assert claims under Alabama law for outrage and negligence, as well as
a Fourth Amendment claim under 42 U.S.C. § 1983, against all Defendants. Doc. 20.
Plaintiffs further allege state-law claims for sexual assault and contributing to the
delinquency of minors against Hubbard. Doc. 20.
On June 27, 2016, Sheriff Shearon and the County jointly moved to dismiss or,
alternatively, for summary judgment on Plaintiffs’ second amended complaint. Docs. 27
& 28. Sheriff Shearon seeks dismissal of the claims against him because he was not the
Sheriff of Chilton County at the time of the alleged events. Doc. 28. The County seeks
dismissal of the claims against it because Hubbard was not employed by the County and
because the County does not control the Chilton County Sheriff’s Department or the
County BOE. Doc. 28.
The court construes Sheriff Shearon’s motion as one for summary judgment, rather
than dismissal under Federal Rule of Civil Procedure 12(b)(6), because Sheriff Shearon
submitted, and the court considered, matters outside of the pleadings (specifically, an
affidavit). 1 Accordingly, the court will consider Sheriff Shearon’s motion under the
summary-judgment standard of review.
Summary judgment is appropriate “if the movant 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). The moving party “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine [dispute] of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
In responding to a properly supported motion for summary judgment, the
non-moving party “must do more than simply show that there is some metaphysical doubt
as to the material fact.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). If the evidence is “merely colorable, or is not significantly probative,
Once the court considers matters outside pleadings, a Rule 12(b)(6) motion to dismiss is converted into a
motion to summary judgment pursuant to Federal Rule of Civil Procedure 56. Garcia v. Copenhaver, Bell
& Assocs., 104 F.3d 1256, 1266 n.11 (11th Cir. 1997).
summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986) (internal citations omitted). “However, disagreement between the parties
is not significant unless the disagreement presents a genuine [dispute] of material fact.”
Gamble v. Pinnoak Resources, LLC, 511 F. Supp. 2d 1111, 1122 (N.D. Ala. 2007) (internal
quotation marks omitted). A factual dispute is genuine when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
Finally, when a district court considers a motion for summary judgment, all
evidence and inferences must be viewed in the light most favorable to the non-moving
party. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). “The
court must avoid weighing conflicting evidence or making credibility determinations.
Instead, ‘[t]he evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.’” Gamble, 511 F. Supp. 2d at 1122 (quoting Steward v. Booker
T. Washington Ins. Co., 232 F.3d 844, 848 (11th Cir. 2000)). “Where a reasonable fact
finder may draw more than one inference from the facts, then the court should refuse to
grant summary judgment.” Id. (internal quotation marks and citation omitted).
Sheriff Shearon argues that Plaintiffs’ claims against him should be dismissed
because he was not the Sheriff of Chilton County at the time of the events giving rise to
the complaint. Doc. 28 at 9–10. Sheriff Shearon submitted an affidavit stating that his term
as Sheriff of Chilton County began on January 20, 2015, and that he was not the Sheriff of
Chilton County “[a]t the time made the subject of the Plaintiffs’ Complaint.” Doc. 28-1.
Plaintiffs do not oppose Sheriff Shearon’s motion or otherwise dispute his testimony. Doc.
32. Accordingly, the court finds that Sheriff Shearon’s motion for summary judgment is
due to be granted.
The County is seeking dismissal of Plaintiffs’ claims against it under Federal Rule
of Civil Procedure 12(b)(6). A complaint should be dismissed if the facts as pleaded do
not state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009) (explaining that “only a complaint that states a plausible claim for relief
survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561, 570 (2007)
(retiring the prior “unless it appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim” standard). In Twombly, the Supreme Court emphasized that a
complaint “requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). Factual allegations in a complaint need not be detailed
but “must be enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (internal citations omitted). In reviewing a motion to dismiss,
the court must also accept well-pleaded facts as true but is not required to accept a
plaintiff’s legal conclusions. See Iqbal, 556 U.S. at 664.
Indeed, in evaluating the
sufficiency of a complaint, the court must indulge reasonable inferences in the plaintiff’s
favor but is “not required to draw plaintiff’s inference.” Aldana v. Del Monte Fresh
Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005).
Plaintiffs’ second amended complaint brings claims against Chilton County under
a theory of respondeat superior liability. The County maintains that it is not subject to
respondeat superior liability as a matter of law because deputy sheriffs like Hubbard are
not County employees. Doc. 28 at 7. Plaintiffs “do not oppose Chilton County’s motion
to dismiss [Plaintiffs’] claims alleging that Chilton County is responsible for the actions of
either the Chilton County Sheriff or deputy Sheriff, or the Chilton County Board of
Education.” Doc. 32 at 2. Thus, Plaintiffs’ claims against the County are due to be
dismissed to the extent they rely on respondeat superior as a theory of liability.
Plaintiffs assert that they have an independent claim of negligence against the
Plaintiffs do, however, oppose dismissal of the claim that Chilton County
owed a duty to Plaintiffs because Chilton County knew, or should have
known, that deputy David Hubbard was committing inappropriate acts with
minors, and failed or refused to take any action despite having that
knowledge, thereby breaching that duty.
Doc. 32 at 2. Thus, the sole basis for this claim is that the County knew or should have
known about Hubbard’s conduct and failed to take any action to stop it. See Doc. 20. This
claim is due to be dismissed because Plaintiffs have not pleaded a prima facie case for
negligence against Chilton County.
To establish negligence under Alabama law, a plaintiff must prove, first and
foremost, “a duty to a foreseeable plaintiff.” Martin v. Arnold, 643 So. 2d 564, 567 (Ala.
1994). Plaintiffs have not alleged any facts upon which the court could conclude that the
County owed them a duty when it did not employ Hubbard and had no control over either
the Chilton County Sheriff’s Department or the County BOE. See Doc. 20. Because
Plaintiffs have alleged no facts that plausibly support the existence of a duty, they have
failed to establish a plausible claim for negligence against the County, and that claim is
due to be dismissed.
Although Chilton County’s motion moves for dismissal of all claims against it, the
County does not specifically address Plaintiffs’ claim of outrage or their Fourth
Amendment claim in its motion.2 Still, the court will address these claims, as Plaintiffs
maintain these claims against the County.
Outrage, an intentional tort, “is essentially equivalent to what many states refer to
as ‘intentional infliction of emotional distress.’” K.M. v. Ala. Dept. of Youth Services, 360
F. Supp. 2d 1253, 1259 (M.D. Ala. 2005). To state a claim for outrage in Alabama:
(1) the defendant must have intended to inflict emotional distress, or should
have known that his or her acts would result in emotional distress, (2) the act
must be extreme and outrageous, (3) the act must have caused plaintiff’s
distress, and (4) plaintiff’s emotional distress must have been so severe that
no reasonable person could be expected to endure it.
Id. The Alabama Supreme Court has explained that “recovery is appropriate for only
‘conduct so outrageous in character and so extreme in degree as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized
The County’s motion argues solely that it cannot be held vicariously liable for Hubbard’s acts because it did not
employ Hubbard and has no control over the Count BOE or Sheriff’s Department. See Doc. 28. Similarly, while
Plaintiffs address their independent negligence claim against the County, they do not discuss any of their remaining
claims against the County in their reply. See Doc. 32.
society.’” Palmer v. Infosys Tech. Ltd. Inc., 888 F. Supp. 2d 1248, 1254 (M.D. Ala. 2012)
(quoting American Rd. Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980)). Thus, in
Alabama, “outrage is an extremely limited cause of action.” Potts v. Hayes, 771 So. 2d
462, 465 (Ala. 2000). In fact, the Alabama Supreme Court has recognized the tort of
outrage in only three types of cases: “(1) wrongful conduct in the family-burial context; (2)
barbaric methods employed to coerce an insurance settlement; and (3) egregious sexual
harassment.” Little v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011) (internal citations
Accepting the factual allegations in the second amended complaint as true and in
the light most favorable to the Plaintiffs, Plaintiffs have not established an outrage claim
against the County. Plaintiffs have not alleged any act or omission by the County that
would qualify as outrage under Alabama law. This claim is therefore due to be dismissed.
Plaintiffs also have not stated a viable Fourth Amendment claim against the County
under 42 U.S.C. § 1983. “A county is ‘liable under section 1983 only for acts for which
the county is actually responsible.’” Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329
(11th Cir. 2003) (quoting Marsh v. Butler Cnty., 268 F.3d 1014, 1027 (11th Cir. 2001)).
To establish § 1983 liability, a plaintiff must identify a governmental policy or custom that
directly caused the injury at issue. Grech, 335 F.3d at 1329. A plaintiff can demonstrate a
policy or custom in two ways: by identifying either “(1) an officially promulgated county
policy or (2) an unofficial custom or practice of the county shown through the repeated acts
of a final policymaker for the county.” Id. (internal citations omitted). Plaintiffs have done
neither here. Plaintiffs have not identified a County custom or policy that directly caused
Hubbard’s alleged conduct, nor have they demonstrated that the County had any authority
over the governmental function at issue––namely the operation of the sheriff’s department
and supervision of its deputies. Thus, Plaintiffs have no plausible § 1983 claim against the
Based on the foregoing, it is ORDERED that Defendant John Shearon’s Motion to
Dismiss or in the Alternative Motion for Summary Judgment and Defendant Chilton
County’s Motion to Dismiss Plaintiffs’ Second Amended Complaint (Doc. 27) is
GRANTED. The claims against Defendant Chilton County are dismissed with prejudice,
and the court enters summary judgment in favor of Defendant John Shearon and against
Plaintiffs on all claims stated against him.
DONE this 13th day of October, 2016.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE
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