Hadder v. Walker County, Alabama et al

Filing 25

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 10/2/2014. (KAM, )

FILED
2014 Oct-02 AM 09:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
ADAM HADDER,
Plaintiff;
vs.
WALKER COUNTY,
ALABAMA, et al.,
Defendants.

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6:14-cv-00586-LSC

Memorandum of Opinion

Plaintiff Adam Hadder (“Hadder”) brought this action under 42 U.S.C. § 1983
and Ala. Code § 36-25-24, seeking damages based on his termination as a Walker
County sheriff’s deputy. Before the Court are Defendants Walker County and Sheriff
John Mark Tirey’s (“Tirey”) renewed motion to dismiss (Doc. 11) and motion for
summary judgment (Doc. 15). Tirey also raises the defense of qualified immunity. The
issues have been fully briefed and are ripe for review. For the reasons stated below,
Defendants’ motion for summary judgment is due to be granted with respect to the
§ 1983 claim. The remaining state law claim is to be dismissed without prejudice.
Defendants’ renewed motion to dismiss is to be denied as moot.
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I.

Background
Hadder worked as a Walker County sheriff’s deputy for approximately fifteen

years. At all times relevant to this suit, Defendant Tirey was the elected sheriff of
Walker County. Hadder was a member of the Narcotics Enforcement Team (“NET”)
while working as a Walker County sheriff’s deputy. NET officers investigated drugrelated offenses, and routinely seized both drugs and cash from suspects. The NET
had a bank account to fund its operations that included forfeited money from
convicted suspects. Hadder claims that NET director Paul Kilgore (“Kilgore”)
misused NET funds by paying for personal expenses with the account.
Hadder further claims that his job status began to suffer once he took steps to
report Kilgore’s mishandling of cash seized as part of a June 2010 arrest. After the
NET completed its portion of the investigation related to the arrest, the Federal
Bureau of Investigation (“FBI”) sought to take over the case to initiate federal
prosecution. However, the FBI encountered problems when attempting to obtain the
cash from Kilgore. Eventually, a grand jury subpoenaed the Sheriff’s Department in
an effort to have the cash evidence delivered to the FBI. After the subpoena was
delivered, Hadder told Sheriff Tirey that he suspected Kilgore of wrongdoing.
According to Hadder, Tirey told him not to report his suspicions to anyone else.

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In late 2011, Kilgore finally turned over the cash to the FBI. However, the cash
was delivered to the FBI in denominations that apparently did not match the
description of the seized cash, which prompted Hadder to tell the FBI that he
suspected Kilgore of wrongdoing. The NET was shut down on January 23, 2012
following an FBI search of the NET offices. Kilgore retired on January 30, 2012, and
committed suicide shortly thereafter. Hadder claims that his relationship with Tirey
further deteriorated after Kilgore’s death, as Tirey blamed him for Kilgore’s suicide.
On August 16, 2012, a formal citizen’s complaint was filed against Hadder after
Hadder arrested an individual that attempted to serve him with process. It was the
second citizen’s complaint filed against Hadder in less than a year. Tirey suspended
Hadder with pay while the complaints were investigated.1 On September 4, 2012,
Hadder filed a grievance with the Walker County Civil Service Commission. Hadder
argued in his grievance letter that the citizen complaints were actually filed at the
direction of a Walker County attorney who held a grudge against Hadder due to a
2009 arrest. Hadder now alleges that Tirey conspired with this attorney to file the
citizen complaints, and that the citizen complaints were actually a pretext to remove

1

Both citizen complaints allege that Hadder was verbally abusive and subjected the
complainants to unlawful arrests. One complaint stems from conduct occurring in December of 2011,
while the second stems from conduct occurring in July of 2012. A third complaint is undated and not
referenced in the notice of suspension.
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Hadder from his position following the Kilgore incident. (Doc. 8, at ¶ 24.)
On September 13, 2012, Hadder received a letter of proposed termination from
Tirey. The letter informed Hadder that he had a right to request a hearing, as well as
a right to respond in writing to any allegations. (Doc. 16-1, at 17.) Hadder and Tirey
scheduled a hearing for September 19, 2012. Hadder appeared at the Sheriff’s
Department offices for the hearing, but Tirey was sick and asked that the hearing be
rescheduled. The hearing was rescheduled for September 21, 2012. Tirey sent Hadder
a text message informing Hadder of the rescheduled date and time. Hadder initially
agreed by text message to the date of the rescheduled hearing, but later asked that the
hearing to be rescheduled so that his attorney could be present.
Tirey rescheduled the pre-termination hearing for September 27, 2012. The
Sheriff’s Department attempted to hand-deliver to Hadder a letter stating the new
date and time. However, due to the fact that Hadder’s property was gated and
Hadder’s dogs were roaming the property freely, the Sheriff’s Department was unable
to hand-deliver the letter. Instead, the individual attempting delivery left the notice
on the gate and spoke in-person to Mr. Hadder’s father concerning the notice, as
Hadder’s parents lived next door. Tirey also sent Hadder a text message telling him

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the date and time of the third rescheduled hearing.2 Hadder claims never to have
received this text message.
Hadder did not attend the rescheduled hearing, and instead wrote a letter to
Tirey. In the letter, Hadder stated that he was “responding to [Tirey’s] allegations in
writing” and had already “provided [Tirey] with sufficient documentation of
[Hadder’s] total innocence.” (Id. at 27.) The letter further stated that Hadder
received no notice of the hearing, but was nonetheless aware of the correct date and
time due to “the onslaught of media talk and the rumor mill.” (Id.) The letter closed
with Hadder telling Tirey to “please consider this my response to your wrongful
allegations.” (Id.) Hadder was terminated on September 27, 2012 after he failed to
appear for his hearing. Tirey says that he reviewed this letter, as well as all other
materials submitted by Hadder, before making the final decision to fire Hadder. The
Walker County Civil Service Board affirmed Hadder’s termination following a threeday hearing.
Hadder filed this action on March 31, 2014. Hadder’s § 1983 claim is based on
an alleged violation of pre-termination procedural due process. Walker County and

2

Tirey’s first text message to Hadder telling him of the rescheduled hearing stated the wrong
day of the week. However, Tirey followed up three minutes later with another text message telling
Hadder the correct day and the exact time of the hearing.
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Tirey previously filed a motion to dismiss for failure to state a claim, and Tirey further
argued that he was entitled to qualified immunity with respect to the § 1983 claim.
This Court found that Hadder failed to adequately plead a violation of pre-termination
procedural due process, but gave Hadder leave to amend his complaint. The Court
also refused to grant qualified immunity to Tirey at the time, since allowing Hadder
an opportunity to amend his complaint was not necessarily futile. Hadder filed his
amended complaint on June 10, 2014. Walker County and Tirey now bring a renewed
motion to dismiss and a motion for summary judgement.
II.

Standard of Review
Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); see also Avenue CLO Fund, Ltd. v. Bank of Am., NA, 723 F.3d 1287,
1294 (11th Cir. 2013). There is a “genuine dispute” as to a material fact “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. The trial judge should not weigh the evidence but
must simply determine whether there are any genuine issues that should be resolved

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at trial. Id. at 249.
In considering a motion for summary judgment, trial courts must give deference
to the non-moving party by “considering all of the evidence and the inferences it may
yield in the light most favorable to the nonmoving party.” McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F.3d
1321, 1325 (11th Cir. 2005)). However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833
F.2d 1525, 1529 (11th Cir. 1987). In making a motion for summary judgment, “the
moving party has the burden of either negating an essential element of the nonmoving
party’s case or showing that there is no evidence to prove a fact necessary to the
nonmoving party’s case.” Id. Although the trial courts must use caution when
granting motions for summary judgment, “[s]ummary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as an integral part of the
Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327(1986).
III. Discussion
A.

Due Process Violation

A procedural due process claim requires that a plaintiff show “‘(1) a
deprivation of a constitutionally-protected liberty or property interest; (2) state action;

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and (3) constitutionally-inadequate process.’”Catron v. City of St. Petersburg, 658 F.3d
1260, 1266 (11th Cir. 2011) (quoting Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.
2003)). Due process typically requires that any deprivation of “life, liberty, or
property be preceded by notice and the opportunity for a hearing.” Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (internal quotation marks omitted); see
also id. (“We have described the ‘root requirement’ of the Due Process Clause as
being ‘that an individual be given an opportunity for a hearing before he is deprived of
any significant property interest’” (quoting Boddie v. Connecticut, 401 U.S. 371, 379
(1971))).
1. Adequacy of Pre-Termination Procedures
Hadder’s § 1983 claim alleges a pre-deprivation violation of procedural due
process. In other words, Hadder argues that he was fired without first being provided
a “constitutionally adequate” opportunity to rebut the accusations against him. While
due process requires some form of initial hearing, the type of pre-deprivation
procedure required will vary based on the nature of the case. See id. at 545 (stating that
“‘[t]he formality and procedural requisites for the hearing can vary, depending upon
the importance of the interests involved and the nature of the subsequent
proceeding’” (quoting Boddie, 401 U.S. at 378)). As explained in Loudermill, the

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“essential requirements of due process” are simply “notice and an opportunity to
respond.” Id. at 546 (stating that the opportunity to respond can be either in person
or in writing). Thus, a plaintiff typically is not entitled to a full evidentiary hearing
before termination. Rather, the primary goal of pre-termination procedures is to serve
“as an initial check against mistaken decisions—essentially, a determination of
whether there are reasonable grounds to believe that the charges against the employee
are true and support the proposed action.” Id. at 545–46; see also Mary Massaron
Ross, American Bar Association—Sword & Shield: A Practical Approach to Section 1983
Litigation § 6.II.B (2006) (stating that“[w]hen post-termination administrative
procedures are available, pre-termination procedures function only as an initial
check”).
While the Eleventh Circuit has acknowledged that termination of a police
officer’s employment is a “significant deprivation,” it has also noted that the
government has a significant interest in maintaining an effective police force by
terminating deputies who have engaged in official misconduct. See Harrison v. Wille,
132 F.3d 679, 684 (11th Cir. 1998). In fact, the Eleventh Circuit has stated, in the
context of a case involving a police deputy fired for alleged misconduct, that
“‘[a]ffording an employee the opportunity to respond after being confronted with

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charges is all that pretermination due process requires of the employer.’” Id. (quoting
Buckner v. City of Highland Park, 901 F.2d 491, 496 (6th Cir. 1990)).
Turning to this case, Hadder received all the pre-termination procedural
safeguards that due process requires. Tirey gave Hadder the opportunity to attend a
pre-termination hearing to contest the accusations against him, yet Hadder did not
attend.3 Instead, Hadder wrote a letter to Tirey contesting the citizen complaints and
offering his side of the story. In this letter, Hadder acknowledged that there was a
hearing scheduled for Thurday, September 27th. However, Hadder elected not to
attend the hearing, and instead told Tirey to “please consider [the letter] my response
to your wrongful allegations.” Hadder further stated in the letter that he had
previously provided Tirey with all the evidence necessary to support his innocence.
Tirey says that he considered the contents of the letter—as well as all other evidence
submitted by Hadder—before making the final decision to fire Hadder. (Doc. 16-1, at
4.) Finally, there was a post-deprivation administrative proceeding in place in the form
of the Walker County Civil Commission hearing. Such a formalized, trial-like postdeprivation proceeding emphasizes that any pre-termination procedures were simply
an“initial check” against a wrongful decision, and therefore need not have been

3

Though Hadder admits in the letter to being aware of the hearing, he nonetheless argues
that he lacked sufficient notice of the hearing. The Court will address this issue shortly.
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elaborate.4
Hadder had an opportunity to attend a pre-termination hearing contesting his
firing. Furthermore, Hadder actually did respond to the allegations against him in
writing, and the contents of the writing were considered by Tirey before Hadder was
terminated. Therefore, Hadder received all the pre-termination procedural safeguards
required by the Due Process Clause.
2. Notice
Separate from the adequacy of the pre-termination procedures, Hadder also
argues that he lacked sufficient notice to make use of the procedural safeguards in
place. Hadder makes this argument despite the fact that he admits in his letter to Tirey

4

However, contrary to Defendants’ arguments, this does not mean that the presence of
adequate post-deprivation procedures can always cure a violation of pre-deprivation procedural due
process. Unless pre-termination procedures are “impracticable,” firing an employee with a vested
interest in continued employment requires some degree of pre-deprivation due process. Loudermill,
470 U.S. at 542. Furthermore, while the requirement for pre-deprivation procedures may be excused
where “impracticable,” to consider the situation in this case impracticable would be to make a rule
out of the exception. The impracticability exception originates from Parratt v. Taylor, 451 U.S. 527,
540–41 (1981), which involved the random, unauthorized action of a state employee that led to
deprivation of a plaintiff’s property. Because such conduct cannot be predicted, the Supreme Court
found that requiring a pre-deprivation hearing was impossible, and therefore excused the
requirement. Id. In contrast, the alleged deprivation here occurred as part of a formalized termination
process. Furthermore, it was wholly foreseeable that the Sheriff’s Department’s termination
proceedings could lead to a deprivation of a protected interest. See Fetner v. City of Roanoke, 813 F.2d
1183, 1185–86 (11th Cir. 1987) (finding that pre-termination procedures were required where
plaintiff’s alleged deprivation was “caused by a conscious and deliberate act”and the defendant
“had ample time to give [plaintiff ] notice and offer him an opportunity to be heard before they fired
him”).
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that he was aware of the correct date and time of the hearing, and elected instead to
respond in writing to the allegations against him.
Notice under the Due Process Clause is a flexible concept, as there are no fixed
standards for what constitutes sufficient notice. Rather, notice under the Due Process
Clause is context-specific, and looks at whether the means of notice was “reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.” Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Notice should be more
than a mere gesture, and may account for the “practicalities and particularities”of the
individual case at issue. Id. 339 U.S. at 314–15. Due process may be satisfied even
when a party does not actually receive notice. See Weigner v. New York, 852 F.2d 646,
649 (2d Cir. 1988) (stating that “[t]he proper inquiry is whether the state acted
reasonably in selecting means likely to inform persons affected, not whether each
[person] actually received notice” (citing Mullane, 339 U.S. at 315))).
Even viewing the facts in the light most favorable to Hadder, this Court is
convinced that the methods used to provide Hadder with notice were “reasonably
calculated” to ensure he actually did receive notice. The Walker County Sheriff’s
Department hand-delivered to Hadder the first notice of proposed termination, thus

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putting Hadder on notice of his right to a hearing contesting the action. When the
hearing was forced to be rescheduled a third time at Hadder’s request, the Sheriff’s
Department attempted to hand-deliver a new notice to Hadder, but was unable to do
so since Hadder’s gate was drawn and his dogs were roaming freely on the property.
Thus, the Sheriff’s Department discussed the notice with Hadder’s father, who lived
next door. Furthermore, Tirey informed Hadder directly of the hearing by sending
Hadder a text message. Text messaging was an established means of communication
between Hadder and Tirey for discussing the pre-termination proceedings, as the two
exchanged thirteen text messages in the days leading up to Hadder’s termination.5
Furthermore, Hadder indicated in a text message that he would “be listening for
[Tirey]” concerning the date for the rescheduled hearing (Doc. 16-1, at 14), suggesting
that Hadder himself expected to receive any rescheduling updates via text message.
Furthermore, the Court notes that Hadder had actual knowledge of the date and
time of the hearing on September 27th, 2012, but nonetheless elected to respond
solely in writing to the allegations against him. Courts have routinely found that actual
knowledge of an impending action and its consequences relieves any notice concerns.
5

In fact, Hadder initially requested his administrative hearing via a text message, which
further suggests that text message was a “reasonable means” of contacting Hadder concerning the
rescheduled hearing. Also, because due process may be satisfied even when notice is not actually
received, see Weigner, 852 F.2d at 649, Hadder’s claim that he did not receive notice by text message
or otherwise will not by itself overcome a motion for summary judgment.
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See, e.g., Moreau v. Fed. Energy Regulatory Comm’n, 982 F.2d 556, 569 (D.C. Cir. 1993)
(stating that “the Due Process Clause does not require notice where those claiming
an entitlement to notice already knew of the matters of which they might be
notified”); United States v. One 1987 Jeep Wrangler Auto., 972 F.2d 472, 482 (2d Cir.
1992) (stating that “by virtue of [claimant’s] admitted actual knowledge of the seizure,
the lack of a latter publication of notice did not arise to the level of a due process
violation”); Crocker v. Fluvanna Cnty. Va. Bd. of Pub. Welfare, 859 F.2d 14, 16 (4th
Cir. 1988) (deciding that failure of a government employer to inform a terminated
employee of certain post-termination rights did not violate due process when the
employee admitted to being fully aware of those rights). As stated in his letter to
Tirey, Hadder knew of the date and time of his pre-termination hearing, but instead
chose not to attend. He cannot now argue that he lacked sufficient notice of that
hearing.6

6

Furthermore, this Court disagrees with Hadder’s argument that he was not given enough
time to prepare for the September 27th hearing. Hadder was notified of his suspension on August
20th, and received his notice of proposed termination on September 13th. This timing is in line with
what the Eleventh Circuit has found to be sufficient. See Harrison, 132 F.3d at 681, 684 (finding that
enough time was given to prepare for a pre-termination hearing where the plaintiff was first notified
in writing of the charges against him on August 22nd and had his last opportunity to respond before
termination in September of the same year). Furthermore, Hadder asserted in his letter to Tirey that
Tirey had already been provided with “sufficient documentation” to prove Hadder’s innocence,
suggesting that Hadder himself felt like two weeks was enough time to mount a pre-termination case
against dismissal.
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In summary, the evidence shows that Hadder was given both notice and an
opportunity to respond. Hadder elected to respond in writing, and that response was
considered by Tirey before he made the final decision to terminate Hadder. Thus,
there is no genuine dispute of material fact as to whether Hadder received adequate
pre-termination procedural due process. Defendants’ motion for summary judgment
is therefore due to be granted on Hadder’s § 1983 claim.
B.

Qualified Immunity for Due Process Claim

This Court also notes that, even if it were to decide that there was a violation
to Hadder’s pre-termination procedural due process rights, Tirey would be immune
from suit due to qualified immunity. A state official acting within the scope of his
employment is “shielded from suit against him in his individual capacity if, while
performing a discretionary function, his conduct did not violate a clearly established
right of which a reasonable person would have known.” Chandler v. Sec’y of Fla. Dept.
of Transp., 695 F.3d 1194, 1198 (11th Cir. 2012) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). When deciding whether a right is “clearly established,” courts must
define the right at issue with specificity, taking into account the unique facts of the
case. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (stating that “we have
instructed that courts should define the ‘clearly established’ right at issue on the basis

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of the ‘specific context of the case’” (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001))). However, this Court remains mindful to draw all factual inferences in favor
of the non-movant when doing so.
Considering the factual contours of this case when framing the “right at issue,”
Tirey’s conduct was reasonable in that it violated no “clearly established” pretermination right. The undisputed facts reveal that Hadder received some degree of
pre-deprivation “notice and opportunity to respond,” as required by the Due Process
Clause. On September 13, 2012, Hadder received notice of his proposed termination
and of the fact he was entitled to hearing. Tirey attempted hand-delivery of the third
rescheduling notice, and sent Hadder a text message containing the date and time of
the rescheduled hearing. Hadder was aware of the date and time of his rescheduled
hearing, but elected to respond in writing instead.
This Court is aware of no similarly-situated case that has clearly articulated a
need for more pre-termination process than what Tirey gave to Hadder. In fact, Tirey
afforded significantly more process than what the Eleventh Circuit has suggested must
be provided to plaintiffs in similarly-situated cases. See Harrison, 132 F.3d at 684
(stating that a terminated sheriff’s deputy“need only be given an opportunity to
present his side of the story” for pre-termination procedural due process to be met).

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Thus, Tirey cannot be said to have “fair warning” that his actions violated Hadder’s
pre-termination procedural due process rights. See Tolan, 134 S. Ct. at 1866 (stating
that “‘the salient question . . . is whether the state of the law’ at the time of an
incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was
unconstitutional” (quoting Hope, 536 U.S. at 741))).
C.

State Law Claim

Hadder also brought a claim against both Tirey and Walker County under Ala.
Code § 36-25-24, which prohibits retribution when public employees report ethic
violations. There is no independent basis for federal jurisdiction over this state law
claim, and thus the Court must determine whether to exercise supplemental
jurisdiction under 28 U.S.C. § 1367 (2012). Section 1367 “reflects a dichotomy
between a district court’s power to exercise supplemental jurisdiction, § 1367(a), and
its discretion not to exercise such jurisdiction, § 1367(c).” Parker v. Scrap Metal
Processors, Inc., 468 F.3d 733, 742 (11th Cir. 2006). While this court has the power to
decide state law claims that form “part of the same case or controversy” as the federal
anchor claim, the Court may decline to do so if:

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(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over which it
has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (2012).
Since summary judgment is due to be granted against Hadder’s sole federal
claim, this Court declines to exercise supplemental jurisdiction over Hadder’s
remaining state law claim. See 28 U.S.C. § 1367(c)(3); see also Raney v. Allstate Ins. Co.,
370 F.3d 1086, 1089 (11th Cir. 2004) (“We have encouraged district courts to dismiss
any remaining state law claims when, as here, the federal claims have been dismissed
prior to trial.”). Therefore, Hadder’s claim based on Ala. Code § 36-25-24 is due to
be dismissed without prejudice so that Hadder may refile the claim in state court.
IV.

Conclusion
For the foregoing reasons, Walker County and Tirey’s motion for summary

judgment (Doc. 15) is GRANTED with respect to Hadder’s § 1983 claim.
Furthermore, Hadder’s remaining state law claim based on Ala. Code. § 36-25-24 is
DISMISSED without prejudice so that he may refile it in the appropriate forum.
Defendants’ renewed motion to dismiss (Doc. 11) is DENIED as moot.
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A separate Order will be entered.
Done this 2nd day of October 2014.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
177822

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