Strickland v. University of Alabama at Birmingham et al

Filing 22

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 12/1/14. (SAC )

FILED
2014 Dec-01 PM 04:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BLAKE STRICKLAND,
Plaintiff,
v.
BOARD OF TRUSTEES OF THE
UNIVERSITY OF ALABAMA, et
al.,
Defendants.

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CIVIL ACTION NO.
2:14-CV-1389-WMA

MEMORANDUM OPINION
This court, pursuant to its plenary power over interlocutory
orders, see Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315
(11th Cir. 2000), hereby substitutes the following opinion and
accompanying order for its prior order (Doc. 17), now finally
deciding the

motion to dismiss (Doc. 9) filed by defendants

University of Alabama at Birmingham (“UAB”), Board of Trustees of
the University of Alabama (“the Board”), Anthony Purcell, and
Marvin Atmore. For the reasons that follow, defendants’ motion will
be granted in part and denied in part.
BACKGROUND1
Plaintiff Blake Strickland, a white male, has served as a law
enforcement officer with the UAB Police Department since July 2007.
(Doc. 1 at 4, ¶ 14). Since Strickland began employment with UAB, he

1

Because of the standard of review for motions brought under Fed. R.
Civ. P. 12(b)(6), all facts alleged by Strickland are accepted as true.

1

has sought promotion many times. He was granted a promotion at
least twice (Doc. 1 at 5, ¶¶ 15, 16), but the defendants denied his
application at least eight times (Doc. 1 at 6, ¶ 19).
Eventually Strickland began to notice a pattern in these
repeated rejections. According to Strickland, each time he was
denied

a

promotion,

the

defendants

selected

instead

a

“less

qualified, less experienced” African American for the position.
(Doc. 1 at 6, ¶ 19). He provides an example. In March 2013,
Strickland applied for the Captain position, but Chief Purcell, an
African American male, instead promoted an African American female
who “had never supervised anyone in her career.” (Doc. 1 at 7, ¶
21). To accomplish this, Chief Purcell unilaterally reclassified
her from her position of “officer” to “sergeant” without her being
formally interviewed and promoted, in violation of the department’s
internal policies. (Doc. 1 at 7, ¶ 21).
The UAB Police Department consists of 66% African American
officers, 29% white officers, and (presumably) 5% officers of other
races. (Doc. 1 at 6, ¶ 18). The command staff is made up of Chief
Purcell, an African American, Deputy Chief Atmore, an African
American, five Captains, all African Americans, and one Lieutenant,
an African American. (Doc. 1 at 5-6, ¶ 18). When a position becomes
available, applicants are interviewed by a panel. (Doc. 1 at 5, ¶
17). The panel consists of Chief Purcell and three individuals of
his choosing, who are not associated with the police department;

2

Chief Purcell selects new panel members for each interview session.
(Doc. 1 at 5, ¶ 17). Chief Purcell retains final decision-making
authority on all promotions. (Doc. 1 at 5, ¶ 17).
After

growing

tired

of

being

repeatedly

passed

over,

Strickland filed a Charge of Discrimination with the EEOC on April
24, 2013. (Doc. 1 at 8, ¶ 25). Five days later, after Strickland
informed the department of the EEOC charge, an African American
captain, under orders from Deputy Chief Atmore, issued Strickland
a written reprimand for “failing to cancel a vehicle pursuit”
approximately

a

month

earlier.

(Doc.

1

at

9,

¶¶

27-28).

Strickland’s reprimand was the only reprimand regarding a vehicle
pursuit issued in at least six years.

(Doc. 1 at 10, ¶ 32). When

the reprimand was issued, Strickland claimed that the reprimand was
in retaliation to his EEOC charge and that he would appeal the
reprimand to UAB Human Resources; the Captain “sincerely encouraged
[him] to do so.” (Doc. 1 at 9, ¶ 28).
To

prepare

requested

a

for

the

recording

of

appeal
the

of

radio

his

reprimand,

communication

Strickland
during

the

pursuit. Chief Purcell and/or Deputy Chief Atmore denied his
request. (Doc. 1 at 10-11, ¶ 32). During the hearing, Strickland
was not allowed to confront evidence or testimony presented against
him or listen to the radio communication. His appeal was denied.
(Doc. 1 at 11-12, ¶ 35).
Subsequent to his EEOC charge, Strickland was placed on the

3

night shift indefinitely, despite the fact that another officer had
specifically requested that shift. (Doc. 1 at 10, ¶ 30). He was
also denied permission to teach various courses to other UAB police
officers, even though he had taught them in the past and failure to
conduct the classes would result in decreased resources for the
department. (Doc. 1 at 10, 12, ¶¶ 31, 36). For at least one of the
courses, he was the only certified instructor in the department.
(Doc. 1 at 10, ¶ 31). He was also prevented from applying for at
least one promotion due to the above-described reprimand. (Doc. 1
at 11, ¶ 33).
DISCUSSION
Strickland commenced this action on July 18, 2014, alleging
(1) harassment and hostile work environment under 42 U.S.C. §§
1981, 1983;

(2) discrimination and retaliation under Title VII of

the Civil Rights Act of 1964; (3) discrimination under 42 U.S.C. §§
1981, 1983; (4) retaliation under 42 U.S.C. §§ 1981, 1983; (5) the
Alabama tort of outrage; (6) failure to train, supervise, and
discipline under 42 U.S.C. § 1983; and (7) conspiracy under 42
U.S.C. § 1985. The defendants moved to dismiss on various grounds.
Each will be discussed below.
A. UAB as a Defendant
UAB has moved to be dismissed from the action in its entirety,
and Strickland does not object to this motion. The capacity of a
public university to be sued is governed by state law. Fed. R. Civ.

4

P. 17(b)(3). Alabama law grants the Board of Trustees “all the
rights, powers, and franchises” of UAB, “with all the corresponding
duties, liabilities and responsibilities.” Ala. Code § 16-47-2
(1975). Because of this delegation, UAB itself is not a suable
entity. The proper party to be named is the Board of Trustees. See
Jeongah Kim v. Ala. Agric. & Mech. Univ., No. 5:12–cv–2190–TMP,
2013 WL 1834619, *2 (N.D. Ala. Apr. 29, 2013).
B. §§ 1983, 1985 Claims
The Board argues that it is not subject to suit under 42
U.S.C. §§ 1983 or 1985. As stated above, the Board is a state
agency. Cox v. Bd. of Trustees of Univ. of Ala., 49 So. 814, 817
(Ala. 1909). A state or state agency is not subject to suit under
§ 1983 because it is not a “person” within the meaning of the
statute. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64
(1989). Separately, but relatedly, the Eleventh Amendment protects
state

agencies

from

suit.

Id.

at

66.

“Absent

a

legitimate

abrogation of immunity by Congress or a waiver of immunity by the
state being sued, the Eleventh Amendment is an absolute bar to suit
by an individual against a state or its agencies in federal court.”
Gamble v. Fla. Dep’t of Health and Rehabilitative Services, 779
F.2d

1509,

1511

(11th

Cir.

1986).

Because

Congress

has

not

overridden the immunity for § 1983 actions, Will, 491 U.S. at 66,
and the State of Alabama has not waived it, Carr v. City of
Florence, Ala., 916 F.2d 1521, 1525 (11th Cir. 1990), the Board is
5

entirely immune from Strickland’s § 1983 claims. The same applies
to his § 1985 claim, because Congress has not abrogated the
immunity, Fincher v. Fla. Dep’t of Labor and

Emp’t Sec., 798 F.2d

1371, 1372 (11th Cir. 1986), and Alabama has not waived it, Wright
v. Butts, 953 F. Supp. 1352, 1358 (M.D. Ala. 1996). Therefore,
Counts I, III, IV, VI, and VII are due to be dismissed as against
the Board.
Chief Purcell and Deputy Chief Atmore also seek dismissal of
the §§ 1983 and 1985 claims brought against them in their official,
but not their individual,2 capacities. A suit against a state
official in his official capacity “is no different from a suit
against the State itself,” so officials acting in their official
capacities are not “persons” under § 1983. Will, 491 U.S. at 71.
State officials sued in their official capacities also enjoy the
same immunity under the Eleventh Amendment as the state itself,
since “the state is considered the real party in interest because
an award of damages would be paid by the state.” Carr, 916 F.2d at
1524. An exception to this immunity exists, however, when the
plaintiff

seeks

“prospective

injunctive

relief

against

state

officials acting in violation of federal law,” Frew ex rel. Frew v.
Hawkins, 540 U.S. 431, 437 (2004), because such suits are against
“persons” under § 1983, Will, 491 U.S. at 71 n.10, and the suit “is

2

Liability in the officers’ individual capacities may be subject to the
yet-unraised defense of qualified immunity.

6

not treated as an action against the state” for Eleventh Amendment
purposes,

Cross

v.

Ala.

Dep’t

of

Mental

Health

&

Mental

Retardation, 49 F.3d 1490, 1503 (11th Cir. 1995). Consequently,
Counts I, III, IV, VI, and VII will be dismissed against Chief
Purcell and Deputy Chief Atmore in their official capacities to the
extent that Strickland seeks damages, but not to the extent that
Strickland seeks prospective injunctive relief (as contained in his
prayer for relief).
C. Title VII
Chief Purcell and Deputy Chief Atmore argue for dismissal of
the Title VII claim brought against them. “Individual capacity
suits under Title VII are . . . inappropriate. The relief granted
under Title VII is against the employer, not individual employees
whose actions would constitute a violation of the Act.” Busby v.
City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Title VII
actions may

be

brought

against

employees,

but

only

in

their

official capacities, since such a suit essentially brings a claim
against the employer. Cross, 49 F.3d at 1504. When the employer is
already named in a Title VII suit, however, “the claims against the
employer’s agents are redundant and unnecessary and thus due to be
dropped.”

Greenwell

v.

Univ.

of

Ala.

Bd.

of

Trustees,

No.

7:11–CV–2313–RDP, 2012 WL 3637768, *6 (N.D. Ala. Aug. 22, 2012).
Because Strickland has also sued the Board under Title VII, the
Title VII claim will be dismissed as against Chief Purcell and
7

Deputy

Chief

Atmore

in

both

their

official

and

individual

capacities.
D. Tort of Outrage
The Board and the officers (in their official capacities) seek
dismissal of Strickland’s outrage claim (based upon Alabama law) on
Eleventh

Amendment

grounds.

Because

of

the

states’

Eleventh

Amendment immunity, “a federal court may not entertain a cause of
action against a state [or state agencies or officials] for alleged
violations of state law, even if that state claim is pendent to a
federal claim which the district court could adjudicate.” DeKalb
Cnty. Sch. Dist. v. Schrenko, 109 F.3d 680, 688 (11th Cir. 1997).
Notably, the exception allowing for prospective injunctive relief
against a state official in his official capacity is inapplicable
to state-law claims. See Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 106 (1984). Consequently, Count V is due to be
dismissed entirely against the Board and against the officers in
their official capacities.
Chief Purcell and Deputy Chief Atmore, in their individual
capacities, also argue for dismissal of the outrage claim under
Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the
court must “‘accep[t] the allegations in the complaint as true and
constru[e] them in the light most favorable to the plaintiff.’”
M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1156 (11th Cir.
2006) (quoting Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
8

2003)). A complaint must, however, “state a claim to relief that is
plausible on its face” to survive such a motion. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The Supreme Court has identified
two working principles for district courts to apply in ruling on
motions to dismiss. “First, the tenet that a court must accept as
true

all

of

the

allegations

contained

in

a

complaint

is

inapplicable to legal conclusions. Threadbare recitals of the
elements of

a

cause

of

action,

supported

by

mere

conclusory

statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. at 679. “A claim has
facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id.
“In order to recover [for the tort of outrage], a plaintiff
must demonstrate that the defendant’s conduct (1) was intentional
or

reckless;

(2)

was

extreme

and

outrageous;

and

(3)

caused

emotional distress so severe that no reasonable person could be
expected to endure it.” Little v. Robinson, 72 So. 3d 1168, 1172
(Ala. 2011) (quoting Potts v. Hayes, 771 So. 2d 462, 465 (Ala.
2000)) (internal quotations omitted). The officers challenge the
9

sufficiency of Strickland’s allegations, pointing to the limited
nature of the second element. Under Alabama law, “[t]he tort of
outrage is an extremely limited cause of action. It is so limited
that this Court has recognized it in regard to only three kinds of
conduct: (1) wrongful conduct in the family-burial context; (2)
barbaric methods employed to coerce an insurance settlement; and
(3)

egregious

sexual

harassment.”

Potts,

771

So.

2d

at

465

(internal citations omitted). The officers argue that because
Strickland does not allege any of these three circumstances, his
claim fails as a matter of law.
Strickland correctly points out, however, that according to
the Alabama Supreme Court, the tort is not confined to these
circumstances. The court, addressing this exact argument, stated,
“That is not to say, however, that the tort of outrage is viable in
only the three circumstances noted in Potts.” Little, 72 So. 3d at
1172-73.

What

is

important,

as

in

every

claim,

is

whether

Strickland’s allegations satisfy the requirements of the cause of
action, so the court does not find Strickland’s claim insufficient
as a matter of law simply because his specific allegations have not
previously been found sufficient.
E. § 1983 Failure to Train, Supervise, and Discipline
Finally, defendants contend that Count VI of Strickland’s
complaint, entitled “Section 1983 Failure to Train, Supervise, and
Discipline,” fails to state a claim. “§ 1983 provides every person

10

with the right to sue those acting under color of state law for
violations of federal constitutional and statutory provisions.”
Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282,
1299 (11th Cir. 2007). “A § 1983 plaintiff must allege a specific
federal right violated by the defendant.” Doe v. Sch. Bd. of
Broward Cnty., Fla., 604 F.3d 1248, 1265 (11th Cir. 2010). Apart
from the heading of the claim, however, Strickland mentions no
constitutional
Strickland

law

or

essentially

other

federal

asserts

the

law

whatsoever;

elements

of

a

instead,
state-law

negligent supervision claim against the Board. Because no federal
rights are

identified

or

readily

apparent,

Count

VI

will

be

dismissed in its entirety.
CONCLUSION
For the reasons stated above, defendants’ motion to dismiss
will be granted in part and denied in part. A separate order will
be entered.
DONE this 1st day of December, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

11