KD v. Wooten et al

Filing 52

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/13/15. (SAC )

FILED
2015 Mar-13 AM 10:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

K.D., a minor child, by and through
)
her parents and guardians, J.D. and S.D., )
)
Plaintiff,
)
)
v.
)
)
MICHAEL WAYNE WOOTEN,
)
et al.,
)
)
Defendants.
)

2:12-cv-2734-SGC

MEMORANDUM OPINION
This matter comes before the court on Defendants Birmingham Board of
Education and Aaron Moyana’s Motion for Summary Judgment (doc. 42); the
magistrate judge’s report and recommendation filed on November 12, 2014 (doc.
49); the Plaintiff’s partial objections (doc. 50); and the Defendants’ response to
those objections (doc. 51).
Claims Voluntarily Abandoned by the Plaintiff
In the Plaintiff’s response to the motion for summary judgment (doc. 45),
she voluntarily abandoned her claims against the Board of Education and Moyana
under 42 U.S.C. § 1983; abandoned her state law claims of tort of outrage,

defamation, false imprisonment, and assault and battery against Moyana; and
agreed that the court should dismiss the Board as a party-defendant because it has
sovereign immunity for any remaining state law claims against it. As such, the
magistrate judge recommends that the court dismiss all of those claims voluntarily
abandoned by the Plaintiff and dismiss the Board of Education as a partydefendant. The court ACCEPTS the magistrate judge’s recommendation on these
abandoned claims and ADOPTS her recommendation to dismiss these claims with
prejudice and dismiss the Board of Education as a party-defendant in this action.
Plaintiff’s Negligence and/or Wantonness and/or Recklessness Claim Against
Defendant Moyana
The only remaining claim subject to the motion for summary judgment
before the court is the Plaintiff’s claim against Defendant Moyana in his
individual capacity for negligence and/or wantonness and/or recklessness. The
magistrate judge recommends that the court grant Moyana’s motion for summary
judgment regarding this remaining claim against Moyana and enter judgment in
his favor because he is entitled to State-agent immunity under Alabama law.1
(Doc. 49 at 15).
1

The court agrees with the magistrate judge that Alabama does not recognize a cause of
action against a supervisor for negligent supervision of a subordinate and that a negligent
supervision claim must be against the employer. (See Doc. 49 at 8-10). To the extent that the
Plaintiff’s complaint contains a cognizable cause of action against Moyana in his individual
capacity, the court will address whether Moyana is entitled to State-agent immunity.
2

Plaintiff’s Objections Regarding the Remaining Claim Against Moyana
On November 25, 2014, the Plaintiff filed her “Partial Objection to
Magistrate Judge’s Report and Recommendation of November 12, 2014,”
restricting her objection “to the recommendation that Moyana be granted a
summary judgment as to the claim[] of negligence, wantonness or recklessness and
to the magistrate’s conclusions that Moyana enjoys State-agent immunity as to this
claim. . . .” (Doc. 50 at 2). Specifically, the Plaintiff contends that the magistrate
judge “accepted Moyana’s ‘factual’ presentation while ignoring or discounting
K.D.’s proffered evidence” and that she “summarily dismissed the existence of any
conflict in the evidence.” In her objections, the Plaintiff lists the facts that she
contends the magistrate judge “ignored.” (Doc. 50 at 6-7). The Plaintiff claims
that the magistrate judge “made credibility determinations and weighed the
evidence and did so in Moyana’s favor even though he is the movant.” (Doc. 50 at
11).
In her objections, the Plaintiff also claims that the magistrate judge erred by
relying on the analysis of the Alabama Supreme Court in D.A.C. v. Thrasher, 655
So. 2d 959 (Ala. 1995), which she contends is factually distinguishable from the
present case. (Doc. 50 at 11-14). Moreover, the Plaintiff also claims that the
magistrate judge’s report and recommendation is “devoid of any mention of” the
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Alabama Supreme Court’s decision in N.C. v. Caldwell, 77 So. 3d 561 (Ala.
2011), which the plaintiff heavily relied upon in her response to the motion for
summary judgment and claims supports her argument that Moyana is not entitled
to State-agent immunity in this case. (Doc. 50 at 19).
Defendants’ Response to Plaintiff’s Partial Objections
On December 4, 2014, the Defendants Birmingham Board of Education and
Aaron Moyana filed a response to the Plaintiff’s objection. (Doc. 51). Although
the court did not give the Board or Moyana specific permission to file such a
response, Fed. R. Civ. P 72(b)(2) allows a party 14 days to respond to a party’s
objections; the Defendants’ response was timely; the Plaintiffs did not object to
the filing; and the response is helpful to the court in making its decisions in this
case. As such, the court, in this instance, will consider the arguments contained in
the Defendants’ response to the Plaintiff’s objections.
De Novo Review of Magistrate Judge’s Report and Recommendation
The court has carefully reviewed and considered de novo all materials in the
court file relevant to the case, including the parties’ briefs and evidentiary material
submitted in support of them; the magistrate judge’s report and recommendation;
the Plaintiff objections; and the Defendants’ response to the Plaintiff’s objections.
The court ADOPTS the magistrate judge’s REPORT with the following additional
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factual discussion and ACCEPTS her recommendation that the court grant
Defendant Moyana’s motion for summary judgment and enter judgment in his
favor on the negligence and/or wantonness and/or recklessness claim against him
in his individual capacity because he is entitled to State-agent immunity under
Alabama law.
As to the Plaintiff’s objection regarding the magistrate’s findings of fact, the
court finds that, to the extent that the magistrate judge failed to specifically
include or discuss in her report the specific facts listed by the Plaintiff in her
objections (doc. 50 at 6-7), the court SUSTAINS the objection. In making its de
novo review in this case, the court specifically considered the entire record,
including those specific facts listed in the objections. The court OVERRULES the
Plaintiff’s objections in all other respects as set out more fully below.
Do Plaintiff’s Claims Arise From a Function That Would Entitle Moyana to
Immunity?
The court agrees with the magistrate judge that Moyana was acting within
his discretionary authority in his supervision of Wooten and in his decision to act
or not act in response to information received about Wooten. To “claim Stateagent immunity, [Moyana] bears the [initial] burden of demonstrating that the
plaintiff’s claims arise from a function that would entitled the State agent to

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immunity.” N.C., 77 So. 2d at 566. The court does not accept the Plaintiff’s
argument in her objections that “Moyana had no discretion to ignore what he
learned and to do nothing,” such that he would not be entitled to State-agent
immunity. (See Doc. 50 at 15). Deciding what to do to with information he
received about Wooten goes to the very nature of discretionary authority in a
supervisory context. See Gowens v. Tys. S. ex rel Davis, 948 So. 2d 513, 531 (Ala.
2006) (holding that the supervisor’s position required her to “‘assess,’ ‘determine,’
‘examine,’ ‘concur,’ and ‘devise’ and ‘develop plans[,]’” and that those “activities
all involve[d] judgment and discretion”) (citations omitted).
The court agrees with the magistrate judge that Moyana was acting within
his discretionary and supervisory authority in assessing and determining whether
to investigate Wooten or take any corrective action against him, and, thus, Stateagent immunity applies in this case.
Did Moyana Act Willfully, Maliciously, in Bad Faith, or Beyond His Authority?
Because the court finds that Moyana met his burden of showing that he
acted within his discretionary function as Wooten’s supervisor in deciding what, if
any, action to take against Wooten, the burden shifts to the Plaintiff to show that
Moyana’s actions fall under an exception to that immunity. See Caldwell, 77 So.
3d at 566. The heart of this case hinges on whether a genuine issue of material
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fact exists regarding the Plaintiff’s argument that State-agent immunity fails to
shield Moyana because he acted “willfully, maliciously, fraudulently, in bad faith,
beyond his or her authority, or under a mistaken interpretation of the law.” See
Cranman v. Maxwell, 792 So. 2d 392, 405 (Ala. 2000). In this case, the court
finds that the magistrate judge correctly found that the Plaintiff failed to make this
showing.
The Plaintiff contends that disputes of material fact exist as to whether
“Moyana was aware (a) that Wooten kept photographic equipment at the Dupuy
facility, (b) that Wooten disabled security devices at the Dupuy facility, (c) that
Wooten put a lock on a closet to which he had the key, and (d) that Wooten was
observed with minor females at the Dupuy facility when he was off-duty and had
no ‘Board-work-related’ reason for being in the facility.” (Doc. 45 at 4-5). The
Plaintiff argues that these facts create a genuine issue of material fact as to
whether Moyana acted willfully, maliciously, in bad faith, or beyond the scope of
his authority by failing to take any corrective action as Wooten’s immediate
supervisor, and as to whether Moyana’s complete inaction proximately caused
Wooten to sexually exploit the minor Plaintiff at the Dupuy facility.
Even considering the Plaintiff’s facts that were not explicitly stated in the
magistrate judge’s report and recommendation, giving all reasonable inferences to
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those facts, and accepting the Plaintiff’s “spin” on those facts, the court finds that
such facts, at best, give rise to an inference that Moyana’s actions may have been
negligent, but not willful, malicious, in bad faith, or beyond his authority. “The
immunity afforded State agents who exercise their judgment in the . . . supervision
of personnel is not abrogated for negligent and wanton behavior; instead,
immunity is 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. 2003). As such, Moyana is
entitled to State-agent immunity under Alabama law.
None of the evidence listed by the Plaintiff in her objections or cited in her
response to the summary judgment support a finding that Moyana acted willfully,
maliciously, in bad faith, or beyond the scope of his authority. Based on the
deposition testimony of Billy Walker, the court could infer that Moyana knew that
Wooten had photography or artist equipment at the Dupuy building and that
Walker complained to Moyana that Wooten was “sitting there painting while
[Walker] was out patrolling.” (Doc. 46-3 at 29).
However, the facts cited by the Plaintiff in her objections that Roderick
Blair looked in the closet and saw photography equipment and that John Baker
stated “common knowledge” existed within the security department “that Wooten
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did photography at the Dupuy facility” (doc. 50 at 6-7) do not support any
inference that Moyana himself knew about Wooten using Dupuy as a photography
studio. Moreover, Baker testified in his deposition that he never discussed with
Moyana “about [] Wooten’s photography and painting at Dupuy.” (Doc. 46-2 at
29).
Even if the court inferred that Moyana knew that Wooten had photography
equipment at the Dupuy facility, did nothing to have Wooten remove the
equipment, and failed to discipline Wooten for having the equipment at the Dupuy
facility without permission, those inferences fail to establish that Moyana acted
willfully, maliciously, in bad faith, or beyond his authority.
The court also finds no support for the Plaintiff’s contention that Moyana
knew that Wooten actually disabled the security devices at the Dupuy facility.
Catherine Terry testified at her deposition that she told Moyana that the cameras
“would not work when Michael Wooten was in the [Dupuy] building.” (Doc. 44-9
at 26). Terry also stated that Moyana, in response, said “okay” and asked her if
she told Byron Smith, the person who worked on the cameras, about the problems.
(Id. at 25-26). Terry told Moyana that she “told Smitty and that’s as far as it
would go.” (Id. at 26).

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Even if these facts led to an inference that Moyana should have investigated
whether Wooten may have tampered in some way with the security devices, Terry
assured Moyana that she had alerted Byron Smith, who was “the guy who worked
on the cameras” that something was wrong with the cameras. (See Doc. 44-9 at
23-26). Nothing in these facts suggest that Moyana actually knew what Wooten
was doing with the cameras or that Moyana acted willfully, maliciously, in bad
faith, or beyond the scope of his authority regarding his decision not to investigate
the matter and to rely on Byron Smith to address the camera issues.
Regarding the locked ammunition closet door, Wooten testified that
Moyana initially was upset that Wooten put a lock on the ammunition closet to
which only Wooten had a key and that Moyana could not access the closet.
However, Wooten also testified that, after explaining to Moyana that he put the
lock on the closet to “save everybody . . . ,” Moyana “thought it was a good idea.”
Wooten also assured Moyana that, if he needed to get in the closet, Wooten would
get him the key. (Doc. 44-3 at 47-48). Nothing in these facts give rise to an
inference that Moyana knew that Wooten had anything inappropriate in the closet.
Moyana’s failure to get the key and look in the closet and investigate the situation
may have been negligent, but does not support this his action or inaction was

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wilful, malicious, in bad faith, or beyond his authority to remove the protection of
State-agent immunity.
The Plaintiff contends that a genuine issue of material fact exists as to
whether Moyana knew that Wooten was at the Dupuy facility after hours with
minor females. The court disagrees. The facts cited by the Plaintiff in her
objections that Reddrick Blair and Glenda Gregory saw Wooten, wearing shorts,
with children on the Dupuy facility (doc. 50 at 7) do not equate to Moyana having
knowledge that Wooten had minor children at that facility after hours.
Billy Walker testified that he heard Catherine Terry voice concerns in the
office at the Davis Center, with “Moyana in the room,” about Wooten having
children at the Dupuy facility. (Doc. 46-3 at 22-26). Just because Moyana was “in
the room” does not mean that he heard Terry’s concerns; that he was standing
within earshot of Terry when she made the statements; or that Terry directed her
concerns to Moyana. For all the court knows, Moyana was “in the room” but
engaged in conversations with others and did not even hear Terry’s comments.
Even if the court inferred that Moyana knew that Wooten brought minors to
the Dupuy facility, this knowledge would not equate to Moyana knowing that
Wooten was doing anything inappropriate with those minors. As a matter of fact,
Terry, in her deposition, testified that she never saw Wooten on the security
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cameras with a child at any building, and that, although she told Moyana that
Wooten was “creepy,” she had no belief at the time she made that statement that
“Wooten might be carrying on some type of inappropriate activity with children.”
(Doc. 44-9 at 35, 37-39).
The court concurs with the magistrate judge’s finding that “there is no
admissible evidence” that Moyana knew that Wooten had minors at the Dupuy
facility after hours. (See Doc. 49 at 7-8). Walker’s testimony as to what he heard
Terry say at the office, with Moyana in the room, about her concerns that Wooten
had minors at the facility would be hearsay and inadmissible evidence at trial,
even if probative that Moyana heard the statement. Also, Glenda Gregory’s
testimony that Josephine Hollins told her that she “would” tell Moyana about
Wooten having minor children at the Dupuy facility would be inadmissible
hearsay at trial. (See Doc. 44-7 at 24). Moreover, no evidence exists in the record
that Ms. Hollins ever actually told Moyana about Gregory’s concerns.
However, Terry’s statements that she never saw Wooten with children at the
Dupuy facility and never suspected him of doing anything inappropriate with
children would be admissible evidence at trial. Also, Terry, Gregory and Blair,
who did have at least some knowledge about Wooten bringing minors to the
Dupuy facility, gave admissible testimony that they never suspected Wooten of
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any type of criminal activity at the Dupuy facility. (See Doc. 44-7 at 18, 27; Doc.
44-9 at 35-39; Doc. 46-1 at 17, 20). As such, these facts support that his failure to
investigate or take any action against Wooten was not wilful, malicious, in bad
faith, or beyond his authority.
The only other evidence referenced by the Plaintiff in her objections
regarding Moyana’s alleged knowledge of Wooten having children at the Dupuy
facility involves conflicting statements made by Wooten himself. In his plea
agreement in his criminal case, Wooten acknowledged that he “believed his
supervisor and co-workers knew he used the office to photograph children and
said it had been going on for two to three years.” (Doc. 44-3 at 53) (emphasis
added). However, Wooten testified in his deposition in this case that he had lied
about Moyana or his co-workers having knowledge that he was photographing
children at the Dupuy facility. (Id. at 63). Because Wooten gave two conflicting
statements concerning whether Moyana knew that he was photographing children
at the Dupuy facility, the court discredits both statements and draws no inference
from either statement. Moreover, because Wooten admitted in his deposition
testimony that he lied in his plea agreement about Moyana knowing that Wooten
was photographing children at the Dupuy facility, the court cannot rely on his
statement in his plea agreement that he “believed” Moyana had such knowledge.
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No other evidence exists in the record from which this court could infer that
Moyana knew that Wooten was photographing minors at the Dupuy facility. The
court finds nothing in the record to show that Moyana’s actions or inactions
regarding his supervision of Wooten were wilful, malicious, in bad faith, or
beyond his authority.
The Plaintiff’s arguments regarding the magistrate judge’s misapplication of
the law seem to center around whether Moyana acted beyond the scope of his
authority by failing to take any type of corrective measure against Wooten, and
whether Moyana’s failure proximately caused Wooten to harm the Plaintiff. “A
State agent acts beyond authority and is therefore not immune when he or she
‘fail[s] to discharge duties pursuant to detailed rules or regulations, such as those
stated on a checklist.’” Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003)
(citations omitted). However, in the present case, the Plaintiff has not shown that
Moyana acted beyond his authority.
In her objections, the Plaintiff claims that the magistrate judge failed to even
discuss N.C. v. Caldwell, 77 So. 2d 3d 561(Ala. 2011), a case that purportedly
supports her position that Moyana is not immune because he exceeded his
authority. The court finds N.C. distinguishable and that the magistrate’s failure to

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discuss it does not provide a ground for this court to reject the magistrate judge’s
report and recommendation.
The Plaintiff herself acknowledges that “the particular facts in N.C. are
somewhat different from the factorial scenario.” (Doc. 50 at 16). In N.C., a
female student, N.C., sued Caldwell, her physical education teacher, in his
individual capacity for personal injuries stemming from her rape by A.H., a
student that Caldwell allegedly appointed as his aid during his 5th period class,
even though A.H. was suppose to leave school each day at 11:45 a.m. and was not
enrolled in the 5th period class. N.C., 77 So. 2d at 562-563. N.C. provided
evidence that other students, prior to A.H.’s rape of N.C., claimed that A.H. had
sexually harassed them and reported the harassment to Caldwell, who failed to
report or act on those claims. Id. at 569.
The Alabama Supreme Court in N.C. held that genuine issues of material
fact existed as to whether Caldwell was immune because he allegedly exceeded
his authority (1) when he appointed A.H. as a student aid for his 5th period class
when A.H. was not suppose to be on school grounds; and (2) when he “ignored
and failed to report previous claims by other female students of sexual harassment
by A.H.” Id. at 566, 569. The Court in N.C. pointed to two specific rules or
regulations that limited Caldwell’s exercise of his judgment in supervising and
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educating his students: a faculty handbook that prohibited a student from attending
a class for which he was not registered; and the school’s Code of Conduct that
required a teacher to report incidents of sexual harassment and made it a violation
for a teacher to “tolerate sexual harassment.” Id. The Court in N.C. reasoned that,
if Caldwell appointed A.H. as an aid and failed to report the prior incidents of
sexual harassment by A.H., he may have acted beyond the scope of his authority as
a teacher. Id.
In the present case, the Plaintiff argues that genuine issues of material fact
exist whether Moyana acted beyond the scope of his authority by ignoring
information about Wooten having photographic equipment at Dupuy; failing to
limit Wooten’s access to the facility while he was off-duty; and failing to ensure
that security measures were operable at all times. (Doc. 45 at 4-5). The Plaintiff
argues that “Moyana knew that Board polices (a) mandated that security measures
were to be operable at all times and (b) prohibited Board employees from
conducting personal business or other activities on Board property without prior
approval.” (Id. at 5). However, unlike the evidence in N.C., no evidence supports
the Plaintiff’s contention that Moyana acted beyond his authority regarding either
Board policy.

16

Regarding the Board policy to maintain operable security measures, the
magistrate judge correctly noted that “[e]ach time the employee, Catherine Terry,
reported that a motion detector at Dupuy had failed, Dr. Moyana confirmed that
she had reported it to the Board employee who maintained the security systems.”
(Doc. 49 at 11-12) (citing Def. Ex. 9, Terry Depo, at 22, 25-26). Also, regarding
Moyana’s knowledge of Wooten having photography equipment at the Dupuy
facility, nothing in the record supports that Moyana knew that Wooten was
conducting a personal photography business at the Dupuy facility. As discussed
infra, the court can infer only that Moyana knew Wooten had photography and
artist equipment stored at the facility and that Walker complained to Moyana
about Wooten painting at the facility. The Plaintiff points to no specific Board
policy that would remove Moyana’s discretion to decide what action to take or not
take based on Moyana’s knowledge of these facts.
The Plaintiff also claims in her objections that the magistrate judge
misapplied the Alabama Supreme Court case of D.A.C. v. Thrasher, 655 So. 2d
959 (Ala. 1995), because this case “does not present the scenario” in D.A.C.
Although this case is not directly on point factually, it is instructive as to the
Plaintiff’s claims that Moyana’s failure to take action against Wooten proximately
caused her to be sexually exploited.
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In D.A.C., the plaintiff claimed that one of her teacher’s sexually molested
her and sued her school principal because he “negligently or wantonly failed to
disclose to the superintendent of the school system the names of two female
students who had complained that the teacher had made improper sexual
advances” several years before D.A.C. was molested. D.A.C., 655 So. 2d at 960.
D.A.C. argued that, had the principal reported the previous complaints of sexual
advances by that teacher, she would not have been molested by that teacher
because the school system would have terminated his employment years before his
molestation of D.A.C. Id.
The Alabama Supreme Court in D.A.C. upheld summary judgment in the
principal’s favor, stating that “[p]roximate cause was a necessary element of
D.A.C.’s claims. . . . To allow a jury to simply guess as to how the board of
education would have found and ruled . . . would violate our well-established rule
against allowing juries to base their verdicts on pure conjecture or speculation.”
Id. at 962.
Likewise, in the present case, the Plaintiff’s argument that Moyana’s failure
to investigate and discipline Wooten proximately caused her to be sexually
exploited is clothed in pure speculation and conjecture. Even if Moyana
disciplined Wooten for having photography equipment at the Dupuy facility and
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being at the facility while off-duty, the court would be speculating by concluding
as to what type of discipline Moyana would implement, if any at all. Moreover, the
court agrees with the magistrate judge that “even had Dr. Moyana advised the
Board of the things allegedly within his knowledge concerning Wooten’s
activities, there is no evidence the Board would have done anything to curtail
Wooten’s activities or disciplined him, beyond mere speculation.” (Doc. 49 at 12)
(citing D.A.C. v. Thrasher, 655 So. 2d 959, 962 (Ala. 1995)). Making such a giant
leap in proximate causation is improper, and the court will not engage in such
speculation.
Conclusion
Because the Plaintiff failed to show that a genuine issue of material fact
exists as to whether Moyana acted wilfully, maliciously, in bad faith, or beyond
his authority regarding his supervision of Wooten, the court finds that Moyana is
entitled to State-agent immunity on the remaining negligence and/or wantonness
and/or recklessness claim. Therefore, this court finds that summary judgment is
due to be granted in favor of Moyana and against the Plaintiff as a matter of law
on this claim.
The court will enter a separate Order in conformity with this Memorandum
Opinion.
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DONE and ORDERED this 13th day of March, 2015.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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