Key v. Morgan County Sheriff's Office et al

Filing 22

MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 4/12/12. (ASL)

FILED
2012 Apr-12 PM 04:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DOUGLAS MARTIN KEY
Plaintiff,
vs.
MORGAN COUNTY SHERIFF’S
OFFICE, MORGAN COUNTY,
ALABAMA, and SHERIFF ANA
FRANKLIN,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO. 5:12-CV-0314-NE

MEMORANDUM OPINION
Pending before the court are defendant Morgan County, Alabama’s motion to
dismiss (doc. 7), a memorandum in support thereof (doc. 8), plaintiff’s opposition to
said motion (doc. 17), and defendant’s reply (doc 19); defendant Sheriff Ana
Franklin’s motion to dismiss (doc. 9), a memorandum in support thereof (doc. 10),
plaintiff’s opposition to said motion (doc. 16), and defendant’s reply (doc. 20); and
defendant “Morgan County Sheriff’s Office” motion to dismiss (doc. 12), a brief in
support thereof (doc. 13), and plaintiff’s response thereto (doc. 16). Having
considered the parties’ arguments and the foregoing pleadings, the court finds as
follows:

1

Factual Background
Plaintiff alleges the following facts in his complaint. Plaintiff began working
for Morgan County in the Sheriff’s Office in March 2001. Compl. (doc. 1) at ¶ 14. He
worked there as a deputy until April 2004, when he was placed on the Drug Task
Force. See id. at ¶ 23. In February 2009 he was promoted to the rank of Sergeant, and
in June 2009, he was given a raise of $1 per hour and classified as a Sergeant in
Narcotics. See id. at ¶ 24-25. His title and rank at the time of the events alleged in his
complaint was “Sergeant Drug Task Force – Field Commander.” Id. ¶ 26.
Under the Morgan County Alabama Personnel Policy Manual (the “County
Manual”), employees, after serving successfully for six months, attain a type of
permanent employment such that they may not be terminated or seriously disciplined
except for good cause in accordance with certain due process procedures involving
notice, a hearing, and an opportunity to appeal to a personnel review board
established by a provision of the Manual. See id. at ¶ 17. On or about September 29,
2008, the Morgan County Sheriff’s Office issued its own Manual of Rules and
Regulations (the “Sheriff’s Office Manual”), which establishes that all “employees
shall hold office during good behavior and proper performance of duty . . . but may
be removed for cause by a supervisor with the concurrence of the Sheriff, in
accordance with the provisions of these Rules and Regulations.” Id. at ¶¶ 18, 20. The
2

Sheriff’s Office Manual further provides that “an employee may be dismissed from
Sheriff’s Office employment, after notice and hearing.” Id. at ¶ 20. With respect to
demotions, the Sheriff’s Office Manual provides “an employee may be demoted for
(1) inability to perform the higher level job; (2) failure to comply with employment
conditions such as licensure or certification; or (3) physical limitations.” Id. at ¶ 21.
Finally, the Sheriff’s Office Manual requires that “in the event of conflict of benefits
between the [Sheriff’s Office Manual’s] standard operating procedures . . . and the
[County Manual], the expression of benefits that is more favorable to the employee
shall prevail.” Id. at ¶ 19.
On January 12, 2011, Sheriff Greg Bartlett promoted plaintiff from the rank of
Sergeant to the rank of Lieutenant serving as field commander of the Morgan County
Drug Task Force. See id. at ¶ 27. His pay was raised from $17.26 per hour to $19.03
per hour. See id. at ¶ 28. On January 18, 2011, Ana Franklin took office as Sheriff of
Morgan County. See id. at ¶ 30. On January 19, 2011, Captain J. R. Law informed
plaintiff that Sheriff Franklin had demoted his rank from Lieutenant to Sergeant and
reduced his hourly rate of pay. See id. at ¶ 31.When plaintiff asked why he was being
demoted, Captain Law replied that plaintiff had been “f***ed.” Id. at ¶ 34. Plaintiff
was given no further explanation or documentation detailing the reasoning behind the
demotion. See id. at ¶ 35.
3

On January 20, 2011, plaintiff met with Sheriff Franklin, who informed
plaintiff that she had conducted discussions with his employees prior to her taking
office and that the consensus had been that plaintiff was under too much stress for the
position of field commander. See id. at ¶ 37. Though Section 3-35-15 of the Sheriff’s
Office Manual sets four steps of progressive discipline, no progressive discipline was
applied prior to the demotion of plaintiff, nor was he given an option for medical
assessment or treatment for stress prior to his demotion. See id. at ¶¶ 38–40.
The Sheriff’s Office Manual stipulates under the disciplinary action section that
the Sheriff is to communicate with the Human Resources clerk for any proposed
disciplinary action, a requirement that Sheriff Franklin did not comply with prior to
demoting plaintiff. See id. at ¶ 41. Plaintiff was also never issued a Notice of Intent
concerning the demotion, as required by the Standard Operating Procedure (“SOP”)
established by the Sheriff’s Office Manual, nor was plaintiff provided with a written
statement detailing the reasons for his demotion. See id. at ¶¶ 35, 42.
On January 26, 2011, plaintiff requested a hearing before the Morgan County
Personnel Review Board with respect to the demotion. See id. at ¶ 46. He then met
again with Sheriff Franklin on January 31, 2011, and requested, for a second time,
that Sheriff Franklin reduce to writing her reason for demoting plaintiff. See id. at ¶¶
47, 50. She responded that plaintiff would not get anything in writing because he had
4

sent a request for a hearing to the County Commission. See id. at ¶ 50. She then
threatened plaintiff with a forced resignation, else he risked being fired. See id. at ¶
51. That same day, Sheriff Franklin signed a “Personnel Action Request” (“PAR”)
on which she wrote “Mr. Key has resigned with out [sic] adequate notice.” See id. at
¶ 52. Plaintiff had not resigned. See id. at ¶ 53.
After select events surrounding plaintiff’s demotion were recounted publicly
in the Decatur Daily (see id. at ¶¶ 56–66), on February 11, 2011, plaintiff was served
a termination letter at his residence by a deputy from the Sheriff’s Office (see id. at
¶¶ 69–70). That same day, Sheriff Franklin sent out a retroactive memorandum to all
employees within the Sheriff’s Office stating that the SOP under which they had all
been operating was no longer in effect, retroactive to January 18, 2011, the day she
took office. See id. at ¶ 71. Also on that day, Morgan County stopped paying plaintiff.
See id. at ¶ 73. On February 14, 2011, plaintiff’s attorney requested an appeal of his
termination to the Morgan County Personnel Review Board. See id. at ¶ 74. On
March 9, 2011, Morgan County issued plaintiff’s final paycheck, indicating he had
no remaining leave; plaintiff thus lost over 500 hours of sick time. See id. at ¶ 79.
On March 10, 2011, the Morgan County Personnel Board convened to review
plaintiff’s demotion and termination; the proceedings of the meeting were not
officially recorded. See id. at ¶80. It ultimately declined to take a position whether it
5

has the authority or jurisdiction to address the issues of plaintiff’s termination and
demotion, instead concluding that any opinion would be advisory in nature. See id. at
¶ 84. On March 24, 2011, the Board affirmed plaintiff’s demotion and termination.
See id. at ¶ 85.
Plaintiff’s attorney contacted the Morgan County Commission on multiple
occasions in order to request a review of the Personnel Board’s decision. See id. at
¶¶ 86–90. The Commission never responded. See id. at ¶ 91.
Standard of Review
When an issue is before the court on a motion to dismiss, the court must accept
the allegations of the complaint as true and construe them ‘in the light most favorable
to the plaintiff.’” Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir. 2004) (citing
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003)). See also Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56
(2007) (in turn citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n. 1 (2002);
Neitzke v. Williams, 490 U.S. 319, 327 (1989); Scheuer v. Rhodes, 416 U.S. 232, 236
(1974))). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 555 U.S. 662, 667(2009) (quoting Twombly, 550 U.S. at 570). See
also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (stating that
6

“[a] complaint may be dismissed if the facts as pled do not state a claim for relief that
is plausible on its face”).
Legal Analysis
I. Morgan County Sheriff’s Department
In response to defendant Morgan County Sheriff’s Department’s motion to
dismiss (doc. 12), plaintiff has filed a brief which does not oppose the dismissal (doc.
16). As the plaintiff recognizes, the Alabama Supreme Court has stated that “[i]t is
clear under Alabama law that [a] sheriff’s department is not a legal entity subject to
suit,” Ex Parte Haralson, 853 So. 2d 928, 931 (Ala. 2003), such that “a cause of
action may not be maintained.” White v. Birchfield, 582 So. 2d 1085, 1087 (Ala.
1991). The Eleventh Circuit Court of Appeals concurs, finding that “a county
sheriff’s department lacks the capacity to be sued.” Dean v. Barber, 951 F.2d 1210,
1215 (11th Cir. 1992) (citing White, 582 So. 2d at 1087).
The court therefore finds that the motion to dismiss of defendant “Morgan
County Sheriff’s Department” is due to be granted. However, the defendant’s request
for attorney’s fees and costs is denied.
II. Morgan County, Alabama
Plaintiff brings suit against Morgan County, Alabama, for sex discrimination,
age discrimination, retaliation, and violation of 42 U.S.C. § 1983.
7

It is well settled that under Alabama law, sheriffs and their employees are state
employees. Article V, § 112 of the Alabama Constitution of 1901 states that “[t]he
executive department shall consist of a governor, lieutenant governor,
attorney-general, state auditor, secretary of state, state treasurer, superintendent of
education, commissioner of agriculture and industries, and a sheriff for each county.”
However, plaintiff contends that he is an “employee” of Morgan County, and relies
upon the opinion by the Supreme Court in Walters v. Metro. Educ. Enterprises, Inc.,
519 U.S. 202 (1997) for the proposition that the “payroll method” established by the
Court in that case is to be used to determine when an employer “has” an employee.
See id. at 207, 211. In Walters, the Court was concerned with the applicable standard
for determining

when

an

employer

met

Title VII’s fifteen-employee

threshold––specifically “whether an employer ‘has’ an employee on any working day
on which the employer maintains an employment relationship with the employee, or
only on working days on which the employee is actually receiving compensation from
the employer.” Id. at 204. The Court concluded that “the payroll method represents
the fair reading of the statutory language, which sets as the criterion the number of
employees that the employer ‘has’ for each working day. . . . In common parlance, an
employer ‘has’ an employee if he maintains an employment relationship with that
individual.” Id. at 207.
8

In Lyes v. City of Riviera Beach, Fla., 166 F.3d 1332, 1345 (11th Cir. 1999), the
Eleventh Circuit held:
when assessing whether multiple governmental entities are
a single “employer” under Title VII, we begin with the
presumption that governmental subdivisions denominated
as separate and distinct under state law should not be
aggregated for purposes of Title VII. That presumption
may be rebutted by evidence establishing that a
governmental entity was structured with the purpose of
evading the reach of federal employment discrimination
law. Absent an evasive purpose, the presumption against
aggregating separate public entities will control the
inquiry, unless it is clearly outweighed by factors
manifestly indicating that the public entities are so closely
interrelated with respect to control of the fundamental
aspects of the employment relationship that they should be
counted together under Title VII.
Id. at 1345. In that case, “two or more state or local governmental entities will be
treated as a single ‘employer’ under Title VII where one entity . . . shares control over
the fundamental aspects of the employment relationships of another entity, to such a
substantial extent that it clearly outweighs the presumption that the entities are
distinct.” Id. The Court also listed several factors that will outweigh the presumption
that governmental subdivisions denominated as separate and distinct will not be
aggregated for purposes of Title VII, including: interrelation of operations;
centralized control of labor operations; the authority to hire, transfer, promote,
discipline or discharge; the authority to establish work schedules or direct work
9

assignments; and the obligation to pay or the duty to train the employee. See id.
(emphasis added).
Plaintiff alleges that Morgan County is his “employer” because it “issued
paychecks to the Plaintiff, administered policies which applied to this employment,
and took a role in reviewing his termination.” Pl. Resp. to Morgan County’s Mot. to
Dismiss, (doc. 17), at 1. Accepting these and plaintiff’s other allegations of
employment discrimination as true, and in light of relevant precedent discussed
supra, plaintiff has, as to Morgan County, “‘state[d] a claim to relief that is plausible
on its face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570).
Accordingly, defendant Morgan County’s motion to dismiss is denied, with leave to
re-file after the close of discovery.
III. Ana Franklin, Sheriff of Morgan County, Alabama
Plaintiff brings suit against defendant Ana Franklin both in her official
capacity, alleging sex discrimination, age discrimination, and retaliation in violation
of Title VII, and in her individual capacity, alleging violation of 42 U.S.C. § 1983.
A. Employment Discrimination and Retaliation Claims
i. Pleading Standard under Twombly and Iqbal
Defendant Ana Franklin contends that plaintiff fails to plead his employment
discrimination claims asserted in Counts I–III with the specificity required by Bell
10

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937 (2009).
Federal Rule Civil Procedure 8(a) requires that a complaint contain “a short
plain statement of the claim showing that the pleader is entitled to relief.” The
Supreme Court held in Iqbal that “[t]o survive a motion to dismiss,” a complaint must
“‘state a claim to relief that is plausible on its face’” that “asks for more than a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (quoting
Twombly, 550 U.S. at 570). Having reviewed the pleadings filed to date, the court is
satisfied that plaintiff’s complaint complies with the requirements of Twombly and
Iqbal in accordance with FRCP 8.
The court thus finds that defendant Franklin’s motion to dismiss should be
denied with respect to Counts I–III insofar as her motion argues that plaintiff’s
complaint has failed to meet the pleading standards established by Twombly and
Iqbal.
ii. ADEA and AADEA Claims
Defendant Franklin next argues that the ADEA and AADEA claims asserted
in Counts II and III should be dismissed because state officers such as Sheriff
Franklin are immune from suits for money damages under the Eleventh Amendment
and Article I § 14 of the Alabama Constitution of 1901, respectively. Plaintiff
11

concedes that Defendant Franklin is immune from monetary damages under both the
ADEA and the AADEA. However, as plaintiff observes, the Supreme Court has held
that “standards applicable to the States . . . can be enforced by . . . private individuals
in actions for injunctive relief under Ex parte Young, 209 U.S. 123 [] (1908).” Board
of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n.9 (2001); see also
State Police for Automatic Retirement Ass’n v. DiFava, 317 F.3d 6, 12 (1st Cir. 2003)
(“Kimel involved a private action for monetary damages. Neither Kimel, nor Eleventh
Amendment jurisprudence, prevents individuals . . . from obtaining injunctive relief
against a state based upon the ADEA pursuant to Ex parte Young . . . .”).
In accordance with established precedent and by agreement of the parties,
Counts II and III of plaintiff’s complaint, pertaining to alleged violation of the ADEA
and AADEA, are dismissed insofar as they pray for monetary damages. Injunctive
relief remains available on both Counts.1

1

Defendant Franklin also moved to dismiss “the Title VII and ADEA claims asserted in
Counts I and II against Sheriff Franklin in her individual capacity because Title VII and the
ADEA do not permit suits against individuals but only ‘employers’ and Sheriff Franklin in her
individual capacity is not an ‘employer.’” Def.’s Motion (doc. 9) at ¶ 2. The court need not
address this aspect of this motion, however, because, as plaintiff observes, “[Sheriff Franklin] is
not sued in her individual capacity with respect to Counts I, II and III of the Plaintiff’s Complaint
which focus on employment discrimination and retaliation claims.” Pl. Resp. (doc. 16) at 1 n.2.
Plaintiff continues, “Sheriff Franklin is sued in her individual capacity pursuant to 42 U.S.C. §
1983 for purposes of Count IV.” Id. (emphasis added). The court will address plaintiff’s § 1983
claim against defendant Franklin in her individual capacity in the context of defendant Franklin’s
motion to dismiss infra.
12

B. Due Process Claim under 42 U.S.C. § 1983
Defendant Franklin finally moves the court to dismiss Count IV of plaintiff’s
complaint, the due process claim. To survive a 12(b)(6) motion to dismiss with
respect to a § 1983 claim, plaintiff must allege in his complaint facts demonstrating
that Sheriff Franklin’s act or omission, performed under color of state law, deprived
him of a right, privilege, or immunity protected by the Constitution or the laws of the
United States. See Nicholson v. Jackson County Comm’n, 816 F.2d 591, 597-98 (11th
Cir. 1987); Little v. City of Miami, 805 F.2d 962, 965 (11th Cir. 1986).
Plaintiff contends, and defendant Franklin does not dispute, that his complaint
sets forth the aforementioned elements of a § 1983 claim in ¶¶ 17, 19, 20, and 110-15
(see Pl. Resp. (doc. 16) at 9). However, Franklin provides four arguments supporting
her contention that plaintiff’s § 1983 claim should be dismissed: (i) “The defendant
in her official capacity as Sheriff is not a ‘person’ within the meaning of that term as
it is used in 42 U.S.C. § 1983”; (ii) “The plaintiff had no property interest in his job
as deputy sheriff”; (iii) “The Sheriff is entitled to qualified immunity as to said
claim”; and (iv) “The plaintiff has not shown an absence or inadequacy of postdeprivation remedies available to him under state law.” Def. Mot. (doc. 9) at ¶ 5.
These arguments shall be addressed in turn.
With respect to defendant Franklin’s first argument, it is true that the Supreme
13

Court has held that “neither a State nor its officials acting in their official capacities
are ‘persons’ under § 1983.” Will v. Mich. Dept. of State Police, 491 U.S. 58, 71
(1989). However, plaintiff has not sued Sheriff Franklin in her official capacity, but
in her individual capacity; see Pl. Resp. (doc. 16) at 1 n.2.
Defendant Franklin’s second argument is that plaintiff had no property interest
in his job as deputy sheriff. “Property interests are not created by the [United States]
Constitution but are ‘defined by existing rules or understandings that stem from an
independent source such as state law’ and arise only where the plaintiff demonstrates
a ‘legitimate claim of entitlement.’” Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir.
1989) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). “A public
employee enjoys a property interest in his employment only if he has an expectation
of continued employment created by legislation, contract, or policy.” Lassiter v.
Covington, 861 F.2d 680, 682 (11th Cir. 1988) (citing Roth, 408 U.S. 564 at 577–78).
There must be a state statute or ordinance that creates a public employment contract,
or there must be some clear practice or mutual understanding that an employee can
be terminated or transferred only for “cause.” See Arnett v. Kennedy, 416 U.S. 134,
165 (1974). If the employee holds his position only at the “will” of the employer,
there is no property interest in continued employment. See Bishop v. Wood, 426 U.S.
341, 348 (1976).
14

In Terry v. Cook, 866 F.2d 373 (11th Cir. 1989), the Eleventh Circuit held that
“[t]he closeness and cooperation required between sheriffs and their deputies
necessitates the sheriffs’ absolute authority over their appointment and/or retention.”
Id. at 377. Defendant Franklin points to this language, as well as to several Opinions
by the Attorney General of Alabama, as establishing the proposition that a sheriff’s
absolute authority over the employment of deputies provides no protected property
interest in employment as deputy sheriff. See Def. Br. in Support of Mot. to Dismiss
(doc. 10), at 15-19. Plaintiff, however, cites Nicholson v. Gant, 816 F.2d 591, 597
(11th Cir. 1987) and Marshall v. City of Cape Coral, Fla., 797 F.2d 1555, 1559 (11th
Cir. 1986), for the proposition that a property interest can be created by an agency
handbook of personnel policies or rules, and to Green v. City of Hamilton Housing
Authority, 937 F.2d 1561 (11th Cir. 1991), for the proposition that language in an
employee handbook can constitute an offer for “permanent employment” creating a
property interest giving rise to a procedural due process claim. He asserts that the
explicit adoption of the Morgan County Alabama Personnel Policy Manual by Sheriff
Franklin’s predecessor for his deputies conferred such property interest upon those
deputies. See Pl. Resp. to Mot. to Dismiss (doc. 16), at 8-17.
Accepting plaintiff’s allegations as true, plaintiff has stated a claim to relief
that is plausible on its face, sufficient to survive a motion to dismiss on the ground
15

that he had no property interest in his job as deputy sheriff. This conclusion also
implicates defendant’s fourth allegation, viz., that plaintiff has failed to show an
absence or inadequacy of post-deprivation remedies under state law. Taking
plaintiff’s allegations that he had a property interest in employment as a deputy
sheriff as true, it is an open question whether the administrative proceedings available
under the Morgan County Personnel Policy Manual were “adequate remedies”
available to plaintiff under state law.
If plaintiff did have a clearly established property right, however, Defendant
Franklin could still be entitled to qualified immunity as to said claim––her third
argument in favor of dismissal––such that dismissal would be appropriate. As the
Eleventh Circuit has held,
A defendant is entitled to a pre-trial dismissal on the basis
of qualified immunity under two circumstances. First, the
defendant is entitled to dismissal when the plaintiff has
failed to allege a violation of a clearly established right.
Harlow v. Fitzgerald, 457 U.S. 800, 818 [] (1982). In such
a case the defendant may be entitled to a dismissal even
before discovery, [Mitchell v.] Forsyth, 472 U.S. [511,]
526 [(1985)], but if “substantial factual development” is
necessary before the court can identify the set of facts
implicating a clearly established right that the defendant
has allegedly violated, the district court should defer ruling
on the qualified immunity issue. Cf. Riley v. Wainwright,
810 F.2d 1006, 1007 (11th Cir. 1987). In this first instance,
it is the plaintiff’s allegations that determine whether the
defendant is entitled to immunity because (as with all
16

motions for judgment on the complaint or pleadings) the
plaintiff’s factual allegations are taken as true. See Fed. R.
Civ. P. 12(b), 12(c) (motions for judgment relying on
matters outside the pleadings are transformed into
summary judgment motions).
Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir. 1990).2 That court has also opined that
to be entitled to qualified immunity, “the public official must first prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful
acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotations and citations omitted). “To determine whether an official was engaged in
a discretionary function, [courts must] consider whether the acts the official
undertook ‘are of a type that fell within the employee’s job responsibilities.’” Crosby
v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (quoting Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004)).
To determine if plaintiff’s property right was clearly established, plaintiff must
demonstrate that defendant Franklin had fair warning that terminating him without
affording him a hearing was unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 74041 (2002). Plaintiff asserts that an Eleventh Circuit line of cases3 recognizes that
2

The second circumstance involves entitlement to summary judgment on the issue of
qualified immunity (see Andreu, 919 F.2d at 639), an issue not germane at this time.
3

See Green v. City of Hamilton, 937 F.2d 1561, 1563 (11th Cir. 1991); Nicholson v.
Gant, 816 F.2d 591, 597 (11th Cir. 1987); Glenn v. Newman, 614 F.2d 467, 471–72 (5th Cir.
1980).
17

when an employer gives an employee a handbook containing policies and procedures
providing for a hearing prior to termination, a procedural due process claim arises in
the absence of such a hearing, and that these cases give fair warning to Defendant
Franklin that her denial of a hearing to plaintiff amounts to a constitutional violation.
Defendant argues, however, that because the appointment and retention of deputies
is clearly established to be within the official responsibilities of the Sheriff (see Terry
v. Cook, 866 F.2d 373, 377 (11th Cir. 1989), quoted supra), it is unquestionable that
Sheriff Franklin met her burden of showing that she was acting within the scope of
her discretionary authority, so that plaintiff’s alleged property right in his
employment was not so “clearly established” as to destroy defendant Franklin’s
immunity from suit.
Ultimately, “[w]hether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
‘objective legal reasonableness’ of the action . . . assessed in light of the legal rules
that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton, 483
U.S. 635, 639 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818–819 (1982)).
Under Eleventh Circuit jurisprudence, “‘[f]or the law to be clearly established to the
point that qualified immunity does not apply, the law must have earlier been
developed in such concrete and factuall y defined context to make it obvious to all
18

reasonable government actors, in the defendant’s place, that what he is doing violates
federal law.’” Crawford v. Carroll, 529 F.3d 961, 977 (11th Cir. 2008) (quoting
Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004)). “When case law is
needed to ‘clearly establish’ the law applicable to the pertinent circumstances,
[courts] look to decisions of the U.S. Supreme Court, the United States Court of
Appeals for the Eleventh Circuit, and the highest court of the pertinent state.” Marsh
v. Butler County, 268 F.3d 1014, 1032 n.10 (11th Cir. 2001).
Numerous decisions of the Eleventh Circuit and Alabama appellate courts,4 as
well as the Opinions of the Alabama Attorney General,5 accord with the general
principle that “[t]he closeness and cooperation required between sheriffs and their
deputies necessitates the sheriffs’ absolute authority over [the deputies’] appointment
and/or retention.” Terry v. Cook, 866 F.2d 373, 376 (11th Cir. 1989).6 Under this

4

See, e.g., Mack v. Arnold, 929 So. 2d 480 (Ala. Civ. App. 2006) (Deputy Sheriff could
not prevail on a due process claim against the Sheriff based on the policies and procedures in the
personnel manual); Whitten v. Lowe, 677 So. 2d 778 (Ala. Civ. App. 1995) (County Personnel
Board’s rules and regulations did not apply to deputy sheriffs because they are state employees).
5

See, e.g., Ala. Op. Atty. Gen. No. 2003-046 (Franklin County Sheriff “does not need the
permission of the county commission to advertise for, hire, discipline, or fire deputies or
jailers”); Ala. Op. Atty. Gen. No. 2002-316 (Baldwin County deputies and jailers are employees
at will of the Sheriff).
6

See also Lancaster v. Monroe County, Ala., 116 F. 3d 1419, 1430 (11th Cir. 1997) (an
Alabama sheriff retains “freedom to handpick deputies from among qualified applicants,” and
“the sheriff’s power to pick his own employees demonstrates power and control over those
employees”); Carr v. City of Florence, 916 F. 2d 1521 (11th Cir. 1990).
19

principle, it would be reasonable for Sheriff Franklin to conclude that she could
dismiss plaintiff with or without such process as she might deem appropriate. Put
another way, if the law is otherwise, even in plaintiff’s case, it would not be “obvious
to all reasonable government actors” (Crawford, 529 F.3d at 977), here a sheriff or
other law enforcement officer, that Sheriff Franklin’s authority to dismiss her
deputies was not as broad as stated in Terry. Moreover, even if Sheriff Franklin were
mistaken in her interpretation of the law, the Supreme Court recently opined that the
purpose of qualified immunity is to “give[] government officials breathing room to
make reasonable but mistaken judgments,” and it “protects all but the plainly
incompetent or those who knowingly violate the law.” Messerschmidt v. Millender,
132 S.Ct. 1235, 1244 (2012) (internal quotations omitted).
In light of the foregoing, defendant Franklin is entitled to qualified immunity
as to the § 1983 claim against her in her individual capacity. Count IV of plaintiff’s
complaint is due to be dismissed.
Conclusion
The court having considered the foregoing, and being of the opinion that the
motions to dismiss of defendants “Morgan County Sheriff’s Office” and Morgan
County, Alabama, are due to be granted, the court shall so rule by separate Order.
The court further being of the opinion that defendant Sheriff Ana Franklin’s
20

motion to dismiss is due to be denied in part and granted in part, the court shall so
rule by separate order.
DONE and ORDERED this 12th day of April 2012.

INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE

21