Smith v. City Of Mobile et al

Filing 31

ORDER granting 22 Motion to Dismiss Count V of the complaint. Signed by Magistrate Judge Katherine P. Nelson on 1/27/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL SMITH,
Plaintiff,

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v.
CITY OF MOBILE, et al.,
Defendants.

CIVIL ACTION NO. 16-00478-N

ORDER
This action is before the Court on the motion to dismiss Count V of the
complaint (Doc. 22) filed by Defendants Donald Dees and the Mobile County
Personnel Board (hereinafter, “the Board Defendants”). As noted previously (see
Doc. 23), because these Defendants had already served answers (Docs. 12, 13) prior
to the filing of the present motion, the undersigned construes the motion as one for
judgment on the pleadings brought under Federal Rule of Civil Procedure 12(c),
rather than as one to dismiss brought under Federal Rule of Civil Procedure
12(b)(6). See Fed. R. Civ. P. 12(b) ("A motion asserting any of these defenses must
be made before a pleading if a responsive pleading is allowed."); Lillian B. ex rel.
Brown v. Gwinnett Cty. Sch. Dist., 631 F. App’x 851, 853 (11th Cir. 2015) (explaining
that pleadings are closed for purposes of Rule 12(c) “when a complaint and answer
have been filed”). Plaintiff Michael Smith has not filed any response, and the time
to do so has expired. (See Doc. 23). Thus, the unopposed motion is now under
submission and is ripe for disposition.1

With the consent of the parties, the Court has designated the undersigned
Magistrate Judge to conduct all proceedings in this civil action in accordance with
28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73.
(See Docs. 27, 28).

1

“Judgment on the pleadings is appropriate where no issue of material fact
remains unresolved and the moving party is entitled to judgment as a matter of law.
When reviewing judgment on the pleadings, [the Court] must take the facts alleged
in the complaint as true and view them in the light most favorable to the nonmoving
party.”

Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir. 1999) (citation

omitted).2
In his five-count complaint (Doc. 1), Smith, a former police officer for the City
of Mobile, asserts claims under 42 U.S.C. § 1983 and Alabama law for alleged
deprivations of various rights during his termination proceedings.

Count V,

directed only at the two Board Defendants, claims that they deprived him of his
rights under the Equal Protection Clauses of both the Alabama Constitution and the
Fourteenth Amendment to the United States Constitution “by failing to grant him
the same right as given to other employees, to confront witnesses at a duly
impaneled pre-disciplinary hearing, by refusing Smith’s effort to call indispensable
witnesses at his pre-disciplinary hearing and his appeal hearing before the MCPB,
and denying his right to appeal the termination decision to the circuit court by

The Court may not grant judgment on the pleadings merely because the motion is
unopposed, but must instead consider its merits. Cf. United States v. One Piece of
Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th
Cir. 2004) (“Summary judgment is appropriate where the ‘pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’ Fed. R. Civ. P. 56(c) (emphasis
added). Thus, the district court cannot base the entry of summary judgment on the
mere fact that the motion was unopposed, but, rather, must consider the merits of
the motion.”); S.D. Ala. CivLR 7(c) (“Failure to file a brief in opposition to any
motion, other than one under Fed. R. Civ. P. 12(b) or 56, may be sufficient cause
to grant the motion.” (emphasis added)).

2

refusing to recognize and process the timely appeal filed on December 12, 2014…”
(Doc. 1 at 11).
The Equal Protection Clause of the Fourteenth Amendment generally
requires government entities to treat similarly situated individuals
alike. Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir.
2006). In a traditional employment case brought under the Equal
Protection Clause, an employee asserts that he was discriminated
against on account of his membership in an identifiable or protected
class, such as race, religion, sex, or national origin. See Engquist, 553
U.S. at 594–95, 128 S. Ct. 2146; Sweet v. Sec'y Dep't of Corr., 467 F.3d
1311, 1318–1319 (11th Cir. 2006) (noting a plaintiff typically must
allege that he was treated differently “based on race, religion, national
origin, or some other constitutionally protected basis” to establish an
equal protection claim). In a “class of one” equal protection claim,
however, a plaintiff does not allege discrimination against a protected
class or on account of membership in a particular group, but rather,
asserts that he has been treated differently from others similarly
situated for arbitrary or irrational reasons. See Engquist[ v. Or. Dep’t of
Agric.], 553 U.S. [591,] 595–97, 128 S. Ct. 2146[ (2008)]; Leib v.
Hillsborough Cnty. Pub. Transp. Comm'n, 558 F.3d 1301, 1306 (11th
Cir. 2009).
Alford v. Consol. Gov't of Columbus, Ga., 438 F. App'x 837, 839 (11th Cir. 2011) (per
curiam) (unpublished).
Nowhere does Smith’s complaint allege that he has been discriminated
against on account of membership in a protected class.

Moreover, the United

States Supreme Court has held that the “class of one” theory of equal protection
“has no place in the public employment context.”

Engquist, 553 U.S. at 594.

See

also id. at 605 (“[T]he Equal Protection Clause is implicated when the government
makes class-based decisions in the employment context, treating distinct groups of
individuals categorically differently … But we have never found the Equal

Protection Clause implicated in the specific circumstance where … government
employers are alleged to have made an individualized, subjective personnel decision
in a seemingly arbitrary or irrational manner.”).3

Thus, Smith’s pleading fails to

state a viable federal Equal Protection claim, and judgment is due to be granted on
that claim as a matter of law.
As for Count V’s Alabama Equal Protection claim, it is debatable whether
Alabama’s constitution even contains an Equal Protection Clause.

See Hutchins v.

DCH Reg'l Med. Ctr., 770 So. 2d 49, 59 (Ala. 2000) (per curiam) (“The question
whether §§ 1, 6, and 22 of Article I, Constitution of Alabama 1901, combine to
guarantee the citizens of Alabama equal protection under the laws remains in
dispute.” (3 justices concurring)); Marsh v. Green, 782 So. 2d 223, 236 n.3 (Ala. 2000)
(Cook, J., concurring in part and dissenting in part); Dyas v. City of Fairhope, Civil
Action No. 08-0232-WS-N, 2010 WL 5477754 (S.D. Ala. Dec. 30, 2010) (Steele, C.J.)
(discussing the uncertainty in the law).

Nevertheless, both this Court and the

Alabama appellate courts have found that, even assuming Alabama’s constitution
does contain an equal protection provision, an Alabama “equal protection claim … is
subject to the same analysis as [a] federal equal protection claim.”

Dyas, , 2010

WL 5477754, at *3 (citing Plitt v. Griggs, 585 So. 2d 1317, 1324-25 (Ala. 1991)).
See also Hutchins, 770 So. 2d at 59 (“Even relying on that line of cases holding that
the Alabama Constitution does provide for equal protection, we would still conclude
The prohibition announced in Engquist applies categorically to the public
employment context, “regardless of whether the aggrieved is an at-will employee or
subject to statutory protection from wrongful discharge.” Alford, 438 F. App'x at
840.

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that the statute the plaintiff challenges does not violate that constitution. The
plaintiff states no reason, and we are aware of no reason, that our analysis of the
plaintiff’s equal-protection issue raised under the United States Constitution should
not be equally applicable to her equal-protection issue raised under the Alabama
Constitution.” (3 justices concurring)); Duran v. Buckner, 157 So. 3d 956, 973 n.3
(Ala. Civ. App. 2014) (“In Ex parte Melof, 735 So. 2d 1172, 1181, 1186 (Ala. 1999),
our supreme court stated that the Constitution of Alabama of 1901 contains no
Equal Protection Clause and Alabama does not have an equal-protection provision
equivalent to that in the 14th Amendment of the United States Constitution.
Although it has been questioned whether those statements are holdings in the case,
any state equal-protection claim is subject to the same analysis as a federal
equal-protection claim.

Dyas v. City of Fairhope, (Civil Action No. 08–0232–WS–N,

Dec. 30, 2010) (S.D. Ala. 2010) (not reported in F. Supp. 2d). Accordingly, we
construe all the plaintiffs’ equal-protection claims pursuant to the analysis
applicable to a federal equal-protection claim. See Plitt v. Griggs, 585 So.2d 1317,
1324–25 (Ala. 1991) (applying analysis applicable to federal equal-protection claim
to a state equal-protection claim).”).

Thus, assuming that Alabama law permits

such a claim, Smith’s claim for Equal Protection under Alabama’s constitution fails
for the same reasons his federal claim fails.4

Smith also appears to assert an equal protection claim under “Alabama’s …
statutory law.” (Doc. 1 at 11). Smith’s complaint does not cite any specific statute
on which to base such a claim, nor has Smith attempted to justify such a claim by
way of a response to the present motion, and the Court is unaware of any authority
supporting such a claim. Accordingly, to the extent Smith is asserting an Alabama

4

Accordingly, it is ORDERED that the Board Defendants’ motion for
judgment on the pleadings (Doc. 22) is GRANTED and that Count V of the
Complaint is DISMISSED with prejudice under Federal Rule of Civil Procedure
12(c).
DONE and ORDERED this the 27th day of January 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

statutory equal protection claim, judgment on the pleadings is due to be granted on
that claim as well.