Franklin et al v. Hubbard et al

Filing 73

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, it is ORDERED that the motion for summary judgment (Doc. 64 ) is GRANTED, and all claims asserted by Plaintiffs Paula Franklin and Haleigh Lowery against the Chilton County Board of Education are DISMISSED with prejudice. Judgement is ENTERED in favor of the Chilton County Board of Education on all claims asserted by Plaintiffs. This case is not closed. Signed by Honorable Judge Gray M. Borden on 8/29/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PAULA FRANKLIN and HALEIGH
LOWERY,
Plaintiffs,
v.
DAVID HUBBARD and CHILTON
COUNTY BOARD OF EDUCATION,
Defendants.

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CASE NO. 2:16-cv-206-GMB
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiffs Paula Franklin and Haleigh Lowery filed this lawsuit on March 28, 2016,
asserting a number of claims arising out of Defendant David Hubbard’s alleged sexual
abuse of both plaintiffs when they were minors. Pending before the court is the Motion for
Summary Judgment filed by Defendant Chilton County Board of Education (the “Board”).
Doc. 64. The parties have consented to jurisdiction in this court pursuant to 28 U.S.C.
§ 636(c). After careful consideration of the parties’ submissions, the applicable law, and
the record as a whole, it is ORDERED that the Motion for Summary Judgment (Doc. 64)
is GRANTED, and all claims asserted against the Chilton County Board of Education are
DISMISSED with prejudice.
I. JURISDICTION AND VENUE
The court has subject-matter jurisdiction over the claims in this lawsuit pursuant to
28 U.S.C. §§ 1331 and 1367. The defendants do not contest personal jurisdiction or venue,
and the court finds adequate allegations to support both.

II. FACTUAL AND PROCEDURAL BACKGROUND
Lowery attended Chilton County High School in Clanton, Alabama, until her
graduation in May 2013. Doc. 64-2 at 20. She first met Defendant David Hubbard in the
fall of 2011, shortly after she turned 16 years old. Doc. 64-2 at 4. At the time, and at all
other times relevant to this lawsuit, Hubbard was employed as a deputy sheriff by the
Chilton County Sheriff’s Office. Doc. 64-4 at 18. As a deputy sheriff, Hubbard served as
a Community Relations Officer at Chilton County High School as well as several other
schools in Chilton County. Doc. 64-4 at 18. In this role, Hubbard was not directly
employed by the Board.1 Doc. 64-4 at 8 & 18. The Board did employ Hubbard, however,
beginning on July 17, 2013, as a part-time “law enforcement credentialed instructor” at
LeCroy Career Technical Center (“LeCroy”) for the 2013–2014 school year. Doc. 64-4 at
8. He resigned from that position one year later on July 16, 2014. Doc. 64-4 at 8.
Lowery and Hubbard met on Facebook and exchanged cell phone numbers after
about a week of swapping Facebook messages. Doc. 64-2 at 5. Less than one week after
exchanging phone numbers, the conversations between Lowery and Hubbard became
sexual in nature. Doc. 64-2 at 5. Lowery had not previously interacted with Hubbard at
Chilton County High School and does not know how or why he located her on Facebook.
Doc. 64-2 at 6. Less than two weeks after they began messaging, Lowery told Hubbard

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The plaintiffs contend that Hubbard was employed by the Board “at all times relevant to the Complaint,”
citing to the deposition of Willie Mae White. Doc. 67 at 1. White’s testimony establishes only that the
Board employed Hubbard from July 2013 to July 2014. Doc. 64-4 at 8 & 18. The plaintiffs have not
produced evidence that the Board employed Hubbard at any other time.

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that she wanted to meet in person. Doc. 64-2 at 6. Hubbard then asked if he could come to
her home, and she agreed. Doc. 64-2 at 6. Hubbard visited Lowery when she was home
sick from school, and they had sexual intercourse. Doc. 64-2 at 7. After this encounter,
Lowery and Hubbard continued to text message each other and met in person several times.
Doc. 64-2 at 7. Lowery later learned that Hubbard was a police officer and worked at her
school as a Community Relations Officer. Doc. 64-2 at 6–7. At some point thereafter,
Lowery saw Hubbard at her school conducting a drug interdiction with other officers. Doc.
64-2 at 7–8. Lowery did not tell anyone about her interactions with Hubbard except for
her friend, Paula Franklin.2 Doc. 64-2 at 8. Lowery told Franklin not as “a cry for help or
bragging,” but because she “wanted to have a friend to talk to about it.” Doc. 64-2 at 9.
Franklin told her mother, Misty Franklin, about Lowery’s relationship with Hubbard. Doc.
64-2 at 9.
In January 2012, on the day Lowery told Franklin about Hubbard, the two girls saw
him at a store. Doc. 64-2 at 9–10. Lowery pointed out Hubbard and said, “That’s who I’ve
been having sex with.” Doc. 64-2 at 10. Later that day, Lowery and Hubbard had sex at
LeCroy. Doc. 64-2 at 10. This encounter was the only occasion other than the drug
interdiction during which she saw Hubbard on a school campus, including at Chilton
County High School. Doc. 64-2 at 11. Lowery and Hubbard also met at his home and at a
park in Chilton County. Doc. 64-2 at 13. Lowery did not tell any school system officials
about her encounters with Hubbard. Doc. 64-2 at 12–13. She estimates that she stopped

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Lowery believes this happened in January 2012, but does not remember how long she had been seeing
Hubbard at that point. Doc. 64-2 at 8 & 16.

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seeing Hubbard sometime in the spring or summer of 2012. Doc. 64-2 at 15. Lowery and
Hubbard had sexual relations approximately five times in total. Doc. 64-2 at 21.
Franklin had her own relationship with Hubbard. She first met him when he
responded to a domestic violence call at her home on December 26, 2011, during which
Franklin’s grandmother was injured. Doc. 64-1 at 9–10. Franklin was 13 years old at the
time and homeschooled. Doc. 64-1 at 15 & 37. Hubbard drove her to the hospital after her
grandmother was transported there in an ambulance. Doc. 64-1 at 10. While in his squad
car, Hubbard gave Franklin his phone number and told her to give it to her mother so that
he could “check on” Franklin, her mother, and her grandmother. Doc. 64-1 at 10. The next
month, January 2012, Hubbard text messaged Franklin explaining that he wanted her to
come to his home to meet his stepdaughter, who did not have many friends. Doc. 64-1 at
14. Franklin agreed and spent the night at Hubbard’s home with his wife, son, stepson,
nephew, and stepdaughter all at the home. Doc. 64-1 at 14–15. Hubbard got permission
for Franklin to stay over from her mother, Misty Franklin, who knew Hubbard from high
school and thought he would be a good influence on her daughter since he was a police
officer. Doc. 64-1 at 14.
Both Franklin and her mother stayed in touch with Hubbard throughout the
following months, and Franklin estimates that she stayed at his home at least six times in
2012. Doc. 64-1 at 15. However, Franklin stopped going in May 2013 because Hubbard
text messaged her that he “loved” her and “wanted to marry” her. Doc. 64-1 at 15–16. He
also told Franklin that he wanted to have a “threesome” with her and his wife. Doc. 64-1
at 21. Franklin told her mother, who spoke to Sheriff Kevin Davis about the text messages.
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Doc. 64-1 at 16–17. Davis had officer Ken Harmon contact Franklin about the text
messages in June or July 2013. Doc. 64-1 at 17. Harmon and another officer told Franklin
that she “would have to become a victim before they could do anything about it” and that
she was “an F-ing liar.” Doc. 64-1 at 17. They believed she was lying because they directed
Franklin to text Hubbard while they were with her and he and his wife replied, separately,
“Who is this?” Doc. 64-1 at 17. She started returning to Hubbard’s home in December
2013 and he apologized, saying that he “didn’t mean any of those things” and “looked at
[Franklin] like [she] was one of his kids too.” Doc. 64-1 at 18. According to Franklin, she
returned because she was “friends with his stepdaughter, Leah, and I didn’t think anything
about it. I was young; I didn’t––I was influenced by adults that I shouldn’t have been
influenced by.” Doc. 64-1 at 28. Misty Franklin allowed her daughter to return to
Hubbard’s home because she believed he was remorseful and had made several
improvements, including volunteering for a church. Doc. 64-3 at 12–13.
After Franklin started returning to Hubbard’s home in December 2013, he began
sending her text messages stating that he wanted to have sex with her. Doc. 64-1 at 29.
These messages were often sent while Franklin was actually in the home. Doc. 64-1 at 29.
Hubbard’s wife also sent messages to Franklin that “[t]hey wanted to have a threesome and
to come to the bedroom.” Doc. 64-1 at 29. Hubbard and his wife also provided Franklin
with alcohol. Doc. 64-1 at 30. On one occasion, while Franklin was intoxicated, Hubbard,
his wife, and Franklin had sex together in the Hubbards’ bedroom. Doc. 64-1 at 30. This
occurred at least two more times. Doc. 64-1 at 30. Hubbard’s wife “pressured” Franklin
into consuming alcohol by stating “here, you need this” and giving her shots of rum. Doc.
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64-1 at 30–31. These encounters began in December 2013 and continued to February
2014.3 Doc. 64-1 at 32 & 34.
In July 2014, another minor to whom the Hubbards had supplied alcohol was in a
serious car accident. Doc. 64-1 at 34–36. A police investigation ensued and officers
learned that the Hubbards had been in contact with Franklin. Doc. 64-1 at 34–36. On July
25, an investigator interviewed Franklin about her involvement with the Hubbards. Doc.
64-1 at 32. Prior to her conversation with the investigator, Franklin had not told anyone
about the sexual abuse. Doc. 64-1 at 36. Once she was approached by the investigator,
Franklin revealed the abuse to her mother, to her boyfriend, and to Lowery. Doc. 64-1 at
36. Franklin was homeschooled for the entire extent of her interactions with Hubbard and
never saw him on school grounds except when she attended eighth grade for roughly two
weeks at Isabella High School. Doc. 64-1 at 37. She did not interact with Hubbard at the
school, but saw him conduct drug safety presentations. Doc. 64-1 at 37.
Misty Franklin confirmed that Lowery first disclosed her relationship with Hubbard
in May 2013, when they were discussing the text messages Hubbard sent to Franklin
explaining that he loved and wanted to marry her. Doc. 64-3 at 13–14. Misty Franklin
contacted the Chilton County Sheriff’s Office. Doc. 64-3 at 14. She also asked a friend for
advice, and the friend told her to contact the Board of Education and speak to the
superintendent. Doc. 64-3 at 14. Misty called the superintendent multiple times but he

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The record reflects some confusion over whether these events occurred in 2012 or 2013, but Misty
Franklin confirmed in her deposition that the interactions between Franklin and Hubbard lasted from 2012
to 2014. Doc. 64-3 at 8 & 11–12.

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never returned her calls. Doc. 64-3 at 10 & 15. Following the text messages in May 2013,
Misty was not aware of any inappropriate conduct between Hubbard and Franklin until an
investigator visited her home on July 24, 2014. Doc. 64-3 at 17. When Misty called the
superintendent, she asked to speak with him and left a message with the receptionist for
him to call her back, but did not explain the purpose of her call or provide any other
information because she “didn’t want to, you know, let everyone know of what was going
on because this is my child that I’m trying to protect from someone like this.” Doc. 64-3 at
10. She did not attempt to contact anyone else at the Board of Education. Doc. 64-3 at 11.
Willie Mae White, an assistant superintendent and personnel director for the Board
of Education, testified that as a deputy sheriff Hubbard was “the contact person if there
were an issue that would come up maybe where we needed some guidance from the
Sheriff’s Department to assist us in any manner where we might need some guidance from
the Sheriff’s Department or the Police Department.” Doc. 64-4 at 4. According to
Hubbard’s personnel file, the Board hired him on July 17, 2013 to be a part-time instructor
at LeCroy. Doc. 64-4 at 8. This was the only time Hubbard was employed by the Board,
and his employment lasted for one year until the superintendent recommended his
termination. Doc. 64-4 at 8. The Board did not investigate any wrongdoing by Hubbard,
and did not learn about the plaintiffs’ allegations against him until July 2014. Doc. 64-4 at
8–9. The criminal investigation was conducted by the Chilton County Sheriff’s Office.
Doc. 64-4 at 12.
According to White, the Board’s procedure for responding to complaints of
employee misconduct during the time period in question was to “look at the facts given to
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substantiate the accuracy or maybe the meat of what has been reported to the Board.” Doc.
64-4 at 11. If the Board received a telephone tip about inappropriate conduct by an
employee toward a student, it would first contact the school’s principal or assistant
principal and then conduct an investigation. Doc. 64-4 at 11. If a receptionist received the
tip, he or she would contact the superintendent, assistant superintendent, or personnel
director. Doc. 64-4 at 11. The calls were not officially documented. Doc. 64-4 at 11.
According to White, the Board would have contacted the Sheriff’s Office if it received a
tip about an officer who worked at one of its schools who was an employee of the Sheriff’s
Office and not the Board. Doc. 64-4 at 12. The Board also would have requested that the
Sheriff’s Office terminate the officer’s duties at the school. Doc. 64-4 at 12.
II. DISCUSSION
A.

Federal Claims
Boards of education cannot be held liable for constitutional violations based on a

theory of respondeat superior liability. See Doe v. Sch. Bd. of Broward Cnty., 604 F.3d
1248, 1263 (11th Cir. 2010). Rather, to establish § 1983 liability, a plaintiff must identify
a governmental policy or custom that is the “moving force” behind the violation. Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690–94 (1978). 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.” Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir.
2003).

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Under either avenue, a plaintiff (1) must show that the local governmental
entity . . . has authority and responsibility over the governmental function in
issue and (2) must identify those officials who speak with final policymaking
authority for that local governmental entity concerning the act alleged to have
caused the particular constitutional violation in issue.
Id.
Here, the plaintiffs’ § 1983 claim against the Board is based on the superintendent’s
failure to return Misty Franklin’s phone calls in May 2013, which is alleged to have resulted
from a policy or custom “that when the Board would receive a call alleging inappropriate
teacher/student relations that the Board had no official documentation or [ledger] of those
phone calls.” Doc. 67 at 4. Following this theory to its logical conclusion, the plaintiffs
argue that if the superintendent returned Misty’s phone calls he would have learned about
the allegations of Hubbard’s sexual relationship with Lowery and inappropriate text
messages with Franklin, and the Board then would have intervened, preventing Hubbard
and his wife from sexually abusing Franklin from December 2013 to February 2014. That
this intervention did not occur is regrettable, but the plaintiffs’ claim is legally deficient.
Even assuming the evidence viewed in the light most favorable to the nonmovant
supports the existence of an unofficial custom of deficient documentation of misconduct
calls, that custom has no bearing on the plaintiff’s claims for the simple reason that Misty
Franklin, by her own admission, never told any Board employee why she was calling the
superintendent. As a result, there is no evidence in the record on which the court could
find that the purported policy or custom caused the constitutional violation at issue,
particularly where the plaintiffs have not shown that the Board had any other reason to be
aware of Hubbard’s conduct. Under these circumstances, the Board’s policy for handling
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misconduct allegations does not come into play. Absent any evidence of a policy or custom
of the Board that contributed to a constitutional violation, summary judgment is due to be
granted in the Board’s favor on the plaintiffs’ § 1983 claim.
B.

State-Law Claims
The plaintiff’s state-law claims against the Board must fail because the Board is

immune under the Alabama Constitution against these claims. Article I, Section 14 of the
Alabama Constitution provides “[t]hat the State of Alabama shall not be made a defendant
in any court of law or equity.” Article I, § 14, Ala. Const. “County boards of education, as
local agencies of the State, enjoy this immunity.” Louviere v. Mobile Cnty. Bd. of Educ.,
670 So. 2d 873, 877 (Ala. 1995). In their summary-judgment response, the plaintiffs failed
to present any argument against the Board’s claim of immunity, abandoning these claims.
Even if they have not been abandoned, summary judgment is due to be granted on the
plaintiffs’ state-law claims against the Board.
V. CONCLUSION
For the foregoing reasons, it is ORDERED that the motion for summary judgment
(Doc. 64) is GRANTED, and all claims asserted by Plaintiffs Paula Franklin and Haleigh
Lowery against the Chilton County Board of Education are DISMISSED with prejudice.
Judgement is ENTERED in favor of the Chilton County Board of Education on all claims
asserted by Plaintiffs. This case is not closed.
DONE this 29th day of August, 2018.

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