Long v. St. Clair County Sheriff's Office et al

Filing 7

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 4/6/2016. (JLC)

FILED
2016 Apr-06 PM 01:44
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MICHAEL LONG,
Plaintiff,
v.
ST. CLAIR COUNTY SHERIFF’S
OFFICE AND SHERIFF TERRY
SURLES, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY,
Defendants.

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) Case No.: 4:16-CV-380-VEH
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MEMORANDUM OPINION
This civil action was originally filed on February 3, 2016, in the Circuit Court of
St. Clair County, Alabama by the plaintiff, Michael Long, against the St. Clair County
Sheriff’s Office and St. Clair County Sheriff Terry Surles in his individual and official
capacities. (Doc. 1-2). The action was removed to this court on March 2, 2016. (Doc. 1).
The complaint sets out the following four counts: “Initial Denial of Due Process
of Law” (Count One); “Continued Denial of Due Process of Law” (Count Two);
“Retaliation” (Count Three); and “Declaratory Relief” (Count Four). All counts arise out
of the plaintiff’s termination from his employment as a St. Clair County deputy sheriff.

The case comes before the court on the defendants’ motion, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, to dismiss this case, or, in the
alternative, pursuant to Rule 12(e), for a more definite statement. (Doc. 4). The motion
was filed on March 4, 2016. The plaintiff has filed no response to the motion.1 For the
reasons stated herein, the motion to dismiss will be GRANTED, and this case will be
DISMISSED with prejudice.
I.

STANDARD
Generally, the Federal Rules of Civil Procedure require only that the complaint

provide “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a). However, to survive a motion to dismiss brought under Rule
12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”).
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.” Ashcroft v . Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556)
(“Iqbal”). That is, the complaint must include enough facts “to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555 (citation and footnote omitted).
Pleadings that contain nothing more than “a formulaic recitation of the elements of a

1

“Appendix III” to this court’s “Uniform Initial Order” provides that “[t]he opponent’s
responsive brief shall be filed no later than fourteen (14) calendar days” after the motion is filed.
(Doc. 2 at 23) (emphasis in original).
2

cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based
merely upon “labels or conclusions” or “naked assertion[s]” without supporting factual
allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most favorable
to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
II.

ALLEGATIONS IN THE COMPLAINT
The complaint alleges that the plaintiff, Michael Long, was employed by the St.

Clair County Sheriff’s Office. It does not specify in what capacity he was employed, but
the defendant agrees that Long was a deputy sheriff. In December of 2015, Long “was
notified of the [d]efendants’ intent to terminate him.” (Doc. 1-2 at 1). The complaint
does not specify by whom the plaintiff was notified, or how. The reason for the plaintiff’s
termination was “an incident in which [the plaintiff] drove his police vehicle into a
flooded roadway and it became incapacitated.” (Doc. 1-2 at 1). The plaintiff “followed
proper procedures to administratively challenge this discipline,” and “ [a] hearing was
held on January 4th, 2016[,] at which [d]efendant Surles was present.” (Doc. 1-2 at 1).

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The complaint continues:
On January 6th 2016, [d]efendants’ upheld the termination of [the plaintiff],
despite no evidence that [the plaintiff] was at fault for the incident that led
to his termination, and despite numerous other officers receiving no
discipline whatsoever for having been involved in similar incidents, in an
arbitrary and capricious deprivation of [the plaintiff’s] rights as a law
enforcement officer and citizen of the State of Alabama.
(Doc. 1-2 at 2).
III.

ANALYSIS
A.

The St. Clair County Sheriff’s Office Is Not Capable of Being Sued

The Eleventh Circuit court of Appeals has noted:
Sheriff's departments and police departments are not usually considered
legal entities subject to suit, see, e.g., Martinez v. Winner, 771 F.2d 424,
444 (10th Cir.1985) (Denver Police Department not suable entity),
vacated, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 333 (1986)
(remanding for consideration of mootness), vacated as moot, 800 F.2d
230 (1986) (no controversy because plaintiff withdrew from case); Post
v. City of Fort Lauderdale, 750 F.Supp. 1131 (S.D.Fla.1990); Shelby v.
City of Atlanta, 578 F.Supp. 1368, 1370 (N.D.Ga.1984); Ragusa v.
Streator Police Department, 530 F.Supp. 814, 815 (N.D.Ill.1981), but
“capacity to sue or be sued shall be determined by the law of the state in
which the district court is held.” Fed.R.Civ.P. 17(b);4 see also Shaw v.
California Dep't of Alcoholic Bev erage Control, 788 F.2d 600, 605 (9th
Cir.1986) (relying on California law to hold that San Jose Police
Department may be sued in federal courts). Under Alabama law, a county
sheriff's department lacks the capacity to be sued. White v. Birch, 582
So.2d 1085, 1087 (Ala.1991).
Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir. 1992); see also, Faulkner v.
Monroe Cty. Sheriff's Dep't, 523 F. App'x 696, 700-01 (11th Cir. 2013) (citing Dean

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and holding that sheriff’s department in Florida lacked capacity to be sued); Ex parte
Haralson, 853 So. 2d 928, 931 (Ala. 2003) (“It is clear under Alabama law that the
sheriff's department is not a legal entity subject to suit.”). All claims against the St. Clair
County Sheriff’s Department will be dismissed. The court will examine the claims in the
complaint with regard to the individual and official capacity claims against Sheriff Surles,
the only remaining defendant after the dismissal of the sheriff’s department.
B.

Counts One and Two
1.

The Due Process Claims

Counts One and Two are based, at least in part, on a violation of the due process
clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The
court treats these counts as alleging an action under of 42 U.S.C. § 1983, asserting a
violation of rights secured by these amendments.
a.

The Fifth Amendment Claim Is Not Cognizable

Because the sheriff is an official of the state, not the federal government, the Fifth
Amendment is inapplicable, and all section 1983 claims based upon that amendment are
due to be dismissed. See, Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1041 (11th
Cir. 1989) (“The fifth amendment to the United States Constitution restrains the federal
government, and the fourteenth amendment, section 1, restrains the states, from
depriving any person of life, liberty, or property without due process of law.”); Love v.

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Davis, 14 F. Supp. 2d 1273, 1278 n. 1 (N.D. Ala. 1998) (“[A]s neither the United States
nor any of its agents is a defendant in this action, any and all . . . claims brought pursuant
to the Fifth Amendment are due to be dismissed.”).
b.

The Fourteenth Amendment Claim Is Not Cognizable

The Supreme Court has held:
The Fourteenth Amendment's procedural protection of property is
a safeguard of the security of interests that a person has already acquired
in specific benefits. These interests—property interests—may take many
forms.
***
To have a property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement
to it. It is a purpose of the ancient institution of property to protect those
claims upon which people rely in their daily lives, reliance that must not be
arbitrarily undermined. It is a purpose of the constitutional right to a
hearing to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution.
Rather they are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as state
law—rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.
Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701,
2708-09, 33 L. Ed. 2d 548 (1972). The Eleventh Circuit has noted:
To establish a Fourteenth Amendment claim for deprivation of
property without due process, the plaintiff must demonstrate that (1) he had
a constitutionally protected property interest and (2) the government
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deprived him of that “ ‘interest for an improper motive and by means that
were pretextual, arbitrary and capricious....' ” Spence v. Zimmerman, 873
F.2d 256, 258 (11th Cir.1989) (quoting Hearn v. City of Gainesville, 688
F.2d 1328, 1332 (11th Cir.1982)). State law defines the parameters of a
plaintiff's property interest for section 1983 purposes. Marine One, Inc.
v. Manatee County, 877 F.2d 892, 894 (11th Cir.1989) (citations
omitted). “Whether state law has created a property interest is a legal
question for the court to decide.” Id.
Mackenzie v. City of Rockledge, 920 F.2d 1554, 1558-59 (11th Cir. 1991); see also,
Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1262 (11th Cir. 2003)
(“Property interests, of course, are not created by the Constitution. Rather they are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law.”).
As noted, the plaintiff has not responded to the motion, and so has failed to cite
any support under Alabama law for the proposition that he had a property interest in
continued employment as a deputy sheriff.2 Further, the Alabama Supreme Court has

2

At paragraph 11, the complaint actually states:

By recognizing the right of a public employee to challenge an employer’s decision to
subject him to termination, the Ala. [sic] recognizes a property interest that is
covered by the Fifth and Fourteenth Amendments to the U.S. Constitution.
Cleveland Board of Education v. Loudermill et. [a]l[,] 470 U.S. 532, 538 (1984).
(Doc. 1-2 at 3, ¶11) (underlining in original). Similarly, at paragraph 28, the complaint states:
By recognizing the right of a public employee to challenge his/ her [sic] employer’s
decision to subject him/ her [sic] to termination, Ala. Code [sic] recognizes a
property interest that is covered by the Fifth and Fourteenth Amendments to the
U.S. Constitution. Cleveland Board of Education v. Loudermill et. [a]l[,] 470 U.S.
532, 538 (1984).
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noted:
Alabama recognizes an employer's right to terminate an at-will employee
for any reason. Tyson Foods, Inc. v. McCollum, 881 So.2d 976 (Ala.2003).
Employment at-will is not a property interest that requires due process
upon termination of the employment. Williams v. Walker, 526 So.2d 576
(Ala.1988); Boyett v. Troy State Univ. at Montgomery, 971 F.Supp. 1403
(M.D.Ala.1997).
Ex parte Moulton, 116 So. 3d 1119, 1134 (Ala. 2013). To the extent that they are based
on a violation of the due process clause of the Fourteenth Amendment, the section 1983
claims in Counts One and Two will be dismissed.
c.

There Was An Adequate State Remedy

Further, even if the plaintiff could show that he had a property interest in continued
employment, his only “due process” allegation is that he was “provided no meaningful
opportunity to collect or present evidence on his behalf, call or cross examine witnesses,
or rebut any of the inaccurate information allegedly used in the determination by
[d]efendants to terminate his employment.” (Doc. 1-2 at 2). This is a procedural due
process claim.3 The Eleventh Circuit has stated:

(Doc. 1-2 at 7, ¶28) (underlining in original). These paragraphs do not explain which portion of “the
Ala.” or “Ala. Code” creates a property interest in the plaintiff’s continued employment. Further
the Cleveland case cited by the plaintiff does not discuss whether Alabama law creates such a
right.
3

“[T]he alleged wrongful discharge of an employee by a state actor does not give rise to a
substantive due process claim but instead implicates only procedural due process.” Bell v. City of
Demopolis, Ala., 86 F.3d 191, 192 (11th Cir. 1996).

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In McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir.1994)(en banc), we
said that “only when the state refuses to provide a process sufficient to
remedy the procedural deprivation does a constitutional violation
actionable under section 1983 arise.” It is the state’s failure to provide
adequate procedures to remedy the otherwise procedurally flawed
deprivation of a protected interest that gives rise to a federal procedural
due process claim. See id.; see also Bass v. Perrin, 170 F.3d 1312, 1319
(11th Cir.1999); Harris v. Board of Educ., 105 F.3d 591, 596 (11th
Cir.1997). This rule (that a section 1983 claim is not stated unless
inadequate state procedures exist to remedy an alleged procedural
deprivation) recognizes that the state must have the opportunity to “remedy
the procedural failings of its subdivisions and agencies in the appropriate
fora—agencies, review boards, and state courts” before being subjected to
a claim alleging a procedural due process violation. See McKinney, 20 F.3d
at 1560; see also Horton v. Board of County Comm'rs, 202 F.3d 1297,
1300 (11th Cir.2000).
Assuming a plaintiff has shown a deprivation of some right protected
by the due process clause, we—when determining if a plaintiff has stated
a valid procedural due process claim—look to whether the available state
procedures were adequate to correct the alleged procedural deficiencies.
See McKinney, 20 F.3d at 1563; see also Bell v. City of Demopolis,
Alabama, 86 F.3d 191, 192 (11th Cir.1996); Narey v. Dean, 32 F.3d
1521, 1527–28 (11th Cir.1994). If adequate state remedies were available
but the plaintiff failed to take advantage of them, the plaintiff cannot rely
on that failure to claim that the state deprived him of procedural due
process. See McKinney, 20 F.3d at 1565 (“The fact that [McKinney] failed
to avail himself of the full procedures provided by state law ... does not
constitute a sign of their inadequacy.”); Bell, 86 F.3d at 192; Narey, 32
F.3d at 1528.
Cotton v. Jackson, 216 F.3d 1328, 1330-31 (11th Cir. 2000).
As the Eleventh Circuit has noted:
Alabama courts . . . review employment termination proceedings
both to determine whether they are supported by substantial evidence and
to see that the proceedings comport with procedural due process.
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Bell, 86 F.3d at 192. The court in Bell determined that this procedure, which was also
available to the plaintiff in the instant case, was an adequate state remedy. Id. at 193. The
plaintiff cannot maintain a section 1983 claim based on a violation of procedural due
process simply because he failed to take advantage of this remedy. 4 For this reason as
well, the due process claims will be dismissed.
2.

The Section 1981, Title VII, and First Amendment Claims

Count Two also alleges liability based upon 42 U.S.C. § 1981, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the First Amendment
of the United States Constitution. (Doc. 1-2 at 5). A claim under 42 U.S.C. § 1981
applies only to claims of racial discrimination. No facts appear in the complaint which
support such a claim.
Title VII prohibits discrimination based on an individual’s race, color, religion,
sex, or national origin.” 42 U.S.C.A. § 2000e-2. Title VII also prohibits retaliation against
an individual because that individual “has opposed any practice made an unlawful
employment practice by [Title VII], or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under [Title

4

Count Two attempts to allege a “continued denial of due process.” (Doc. 1-2 at 4). The
basis for this count is simply that the plaintiff has not been hired back into his position. The court
sees the plaintiff’s termination as a discrete act. There is no continuing violation of the plaintiff’s
due process rights as a result of his failure to be rehired. The plaintiff has provided no authority to
the contrary.
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VII].” 42 U.S.C.A. § 2000e-3. No facts appear in the complaint supporting either type of
Title VII claim. Further, there is no allegation in the complaint that the plaintiff has
complied with the administrative prerequisites to filing such a claim. See Gregory v.
Georgia Dep't of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (“Prior to filing
a Title VII action . . . a plaintiff first must file a charge of discrimination with the
EEOC.”); Anderson v. Embarq/Sprint, 379 F. App'x 924, 926 (11th Cir. 2010) (“Before
filing suit under Title VII . . . a plaintiff must exhaust the available administrative
remedies by filing a charge with the EEOC.”).
The First Amendment claim fails because the plaintiff has alleged no facts showing
that any action was taken against him because of his speech or other expression.
C.

Sheriff Surles Is Entitled to Qualified Immunity as to the Individual
Capacity Claims against Him

Even if the constitutional claims in Counts One and Two survive, Sheriff Surles,
in his individual capacity, is entitled to qualified immunity as to these claims.

The

Supreme Court has stated:
The doctrine of qualified immunity protects government officials
“from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982).
Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009).
The Eleventh Circuit notes:
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A government official asserting a qualified immunity defense bears
the initial burden of showing “he was acting within his discretionary
authority.” Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.2007).
After the official makes this showing, the burden shifts to the plaintiff to
show that “(1) the defendant violated a constitutional right, and (2) this
right was clearly established at the time of the alleged violation.”
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th
Cir.2004). Binding decisions of the Supreme Court may clearly establish
a right. See McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.2007). The
clearly-established requirement “ensures that officers will not be liable for
damages unless they had “fair warning” that their conduct violated the law.”
Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153
L.Ed.2d 666 (2002)).
Alvarez v. U.S. Immigration & Customs Enf't, No. 14-14611, 2016 WL 1161445, at
*28 (11th Cir. Mar. 24, 2016).
As noted by the defendants, Sheriff Surles was acting within the scope of his
authority when he made the employment decision at issue in this case. Because the
plaintiff has failed to respond to the motion, he has not carried his burden to show that
the defendant violated a constitutional right, and that said right was clearly established
at the time of the alleged violation. Accordingly, even if the plaintiff had made out a
cognizable claim under section 1983, any claim for money damages against the sheriff
in his individual capacity would still be due to be dismissed.
D.

Sheriff Surles Is Entitle d to Eleventh Amendment Immunity as to the
Official Capacity Claims for Money Damages against Him

It has been stated:
As it relates to the management of his employees, a county sheriff
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in Alabama acts as an arm of the state, and the claims asserted against [him]
in his official capacity are deemed to be against the entity he represents,
i.e., the State of Alabama, rather than against him individually. See Welch
v . Laney, 57 F.3d 1004, 1008–09 (11th Cir.1995). The Eleventh
Amendment prohibits a federal court from exercising jurisdiction over a
lawsuit against a state, unless that state either consents to be sued or waives
its immunity from such suit. Free v. Granger, 887 F.2d 1552, 1557 (11th
Cir.1989) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 98–100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)); see also Manders v.
Lee, 338 F.3d 1304, 1308–09 (11th Cir.2003) (en banc). As a result, to the
extent that [an Alabama Sheriff] is sued in his official capacity for an award
of damages or backpay, he is immune from liability under § 1983 and state
law, so this court lacks jurisdiction to hear such claims. See Welch, supra;
Tani v. Shelby County, Ala., 511 Fed.Appx. 854, 857 (11th Cir.2013);
United Carolina Bank v. Board of Regents of Stephen F. Austin State
Univ., 665 F.2d 553, 561 (5th Cir.1982).
Heard v. Hannah, 51 F. Supp. 3d 1129, 1137 (N.D. Ala. 2014) (Ott, M.J.); see also,
Carr v. City of Florence, Ala., 916 F.2d 1521, 1527 (11th Cir. 1990) (Alabama Sheriff
is entitled to eleventh amendment immunity from suits for money damages in his official
capacity). No claim for money damages can arise from the sheriff’s

alleged

constitutional violations committed in his official capacity.5

5

As noted by the Eleventh Circuit:

[A] section 1983 lawsuit seeking prospective injunctive relief against
[defendants] in their official capacities is not treated as an action against the state,
and the Eleventh Amendment does not insulate official capacity defendants from
actions seeking prospective injunctive relief. [A] request for reinstatement is not
barred by the Eleventh Amendment.
Cross v. State of Ala., State Dep't of Mental Health & Mental Retardation, 49 F.3d 1490, 1503
(11th Cir. 1995). The plaintiff in the instant case requests reinstatement. (Doc. 1-2 at 4, 5). To
that extent, his claims would not be barred by Eleventh Amendment immunity. Regardless, in light
of the court’s finding that all of the claims are without merit as pled, the point is moot.
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E.

Count Three – Retaliation

The retaliation claim is based in a violation of Title VII. For the reasons noted
above, there is no factual or legal basis for a Title VII claim.
F.

Count Four – Declaratory Relief

The plaintiff seeks a declaration “that he possesses a legally enforceable right to
property that was deprived him by the [defendant] without Due Process of Law.” (Doc.
1-2 at 7). For the reasons stated previously, this count too will be dismissed.
IV.

CONCLUSION
For the reasons stated herein, the motion to dismiss will be granted and this case

dismissed with prejudice. A final order will be entered.
DONE and ORDERED this 6th day of April, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

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