Smith v. City Of Mobile et al

Filing 55

ORDER granting in part and denying in part 39 Motion for Summary Judgment; summary judgment under FRCP 56(f) is DENIED as to federal claims in Counts I and III against Sandy Stimpson related to Smith's pre-termination proceedings, is otherwi se GRANTED in favor of Stimpson as to federal claims asserted in Counts I and III. This order does not dispose of any claims under "Alabama Statutory Law" asserted in Count III. The pending motion for summary judgment 50 is MOOT as to Cou nt V and the federal claims in Count IV as they have been dismissed by previous order. The motion for summary judgment 50 is MOOT to the extend Dees seeks qualified immunity on all remaining federal claims against him. The motion is DENIED to the extent Barnett seeks to dismiss any pending state law claims against her based on "official capacity immunity" for reasons stated in 8/15/17 order 51 . Signed by Magistrate Judge Katherine P. Nelson on 9/26/17. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL SMITH,
Plaintiff,
v.
CITY OF MOBILE, et al.,
Defendants.

)
)
)
)
)
)
)

CIVIL ACTION NO. 16-00478-N

ORDER
The undersigned has considered the parties’ briefing (Docs. 52 – 54) timely
submitted in response to the Court’s August 15, 2017 order (Doc. 51), which gave
notice of intent to grant summary judgment under Federal Rule of Civil Procedure
56(f) in favor of all Defendants on the federal claims raised in Counts I and III of the
complaint. Upon consideration, the undersigned finds that summary judgment is
due to be granted in part for the reasons previously stated in the Court’s August 15
order.
The Due Process Clause of the Fourteenth Amendment provides “nor
shall any State deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1. The Supreme Court's
interpretation of this clause explicates that the amendment provides
two different kinds of constitutional protection: procedural due process
and substantive due process. Cf. Zinermon v. Burch, 494 U.S. 113, 125,
110 S. Ct. 975, 983, 108 L.Ed.2d 100 (1990). A violation of either of
these kinds of protection may form the basis for a suit under section
1983. Id.
McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc).
Count I alleges that the Defendants deprived Smith of “his property right
interest in his job as a county merit system employee…” (Doc 1 at 9, ¶ 52). As was

explained previously, it has long been the law of this Circuit that “areas in which
substantive rights are created only by state law (as is the case with…employment
law) are not subject to substantive due process protection under the Due Process
Clause because substantive due process rights are created only by the Constitution.
As a result, these state law based rights constitutionally may be rescinded so long as
the

elements

of

procedural—not

McKinney, 20 F.3d at 1556.

substantive—due

process

are

observed.”

Thus, “an employee with a property right in

employment is protected only by the procedural component of the Due Process
Clause, not its substantive component. Because employment rights are state-created
rights and are not ‘fundamental’ rights created by the Constitution, they do not
enjoy substantive due process protection.”

Id. at 1560. See also Bell v. City of

Demopolis, Ala., 86 F.3d 191, 192 (11th Cir. 1996) (per curiam) (McKinney “held that
the 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.”).
Count III alleges that the Defendants deprived Smith “his due process right to a fair
disciplinary hearing” (Doc. 1 at 10, ¶ 54), which also implicates only procedural due
process. See id. at 1559 (“Whether an individual…asserts that his particular hearing
was not fair and impartial, he has raised only procedural due process concerns.”).
Smith’s brief confirms that he is only asserting procedural due process violations.
(See Doc. 52 at 8 – 9).
It is axiomatic that, in general, the Constitution requires that the state
provide fair procedures and an impartial decisionmaker before
infringing on a person's interest in life, liberty, or property. More
specifically, the Supreme Court has explained that a “tenured employee

is entitled to oral or written notice of the charges against him, an
explanation of the employer's evidence, and an opportunity to present
his side of the story” before a state or state agency may terminate an
employee. In other words, the employee is entitled to “some kind” of
pre-termination hearing. That hearing is not a mini-trial and “need not
definitely resolve the propriety of the discharge. It should be 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.”
McKinney, 20 F.3d at 1561 (citations omitted) (quoting Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542, 545-46 (1985)).

See also Gilbert v. Homar, 520 U.S.

924, 929 (1997) (“In Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S. Ct.
1487, 84 L. Ed. 2d 494 (1985), we concluded that a public employee dismissable only
for cause was entitled to a very limited hearing prior to his termination, to be
followed by a more comprehensive post-termination hearing. Stressing that the
pretermination

hearing

‘should

be

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 545–546, 105 S. Ct., at 1495, we held that pretermination process
need only include oral or written notice of the charges, an explanation of the
employer's evidence, and an opportunity for the employee to tell his side of the story,
id., at 546, 105 S. Ct., at 1495.”).
The lack of a meaningful opportunity to be heard is at the core of a due
process claim because “the deprivation by state action of a
constitutionally protected interest in ‘life, liberty, or property’ is not in
itself unconstitutional; what is unconstitutional is the deprivation of
such an interest without due process of law.” Zinermon v. Burch, 494
U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100 (1990) (emphasis

in original) (quoting Parratt v. Taylor, 451 U.S. 527, 537, 101 S. Ct.
1908, 1913, 68 L. Ed. 2d 420 (1981)).
…
“Although the Due Process Clause generally requires notice and an
opportunity to be heard before the government seizes one's property ...
the Supreme Court ‘has rejected the proposition that ... the State [must
always] provide a hearing prior to the initial deprivation of property.’ ”
Reams v. Irvin, 561 F.3d 1258, 1263 (11th Cir. 2009) (emphasis in
original) (internal citation omitted) (quoting Parratt, 451 U.S. at 540–
41, 101 S. Ct. at 1915–16); see also Hudson v. Palmer, 468 U.S. 517, 104
S. Ct. 3194, 82 L. Ed. 2d 393 (1984).
“[T]he feasibility of predeprivation procedures [i]s the central question
in determining [whether predeprivation procedures must be provided].”
Rittenhouse v. DeKalb Cnty., 764 F.2d 1451, 1455 (11th Cir. 1985); see
also Carcamo v. Miami–Dade Cnty., 375 F.3d 1104, 1105 n.4 (11th Cir.
2004). So long as the State provides adequate post-deprivation
remedies, “due process d[oes] not require pre-deprivation hearings
where the holding of such a hearing would be impracticable, that is,
where the deprivation is the result of either a negligent or an
intentional deprivation of property.” McKinney v. Pate, 20 F.3d 1550,
1562–63 (11th Cir. 1994) (en banc).
Pre-deprivation process is impractical “where a loss of property is
occasioned by a random, unauthorized act by a state employee, rather
than by an established state procedure,” because “the state cannot
know when such deprivations will occur.” Hudson, 468 U.S. at 532, 533,
104 S. Ct. at 3203. These “established state procedure[s]” are typically
established for the purpose of depriving citizens of their property.
Rittenhouse, 764 F.2d at 1455.
Nat'l Ass'n of Boards of Pharmacy v. Bd. of Regents of the Univ. Sys. of Georgia, 633
F.3d 1297, 1316–17 (11th Cir. 2011)
Here, the “established state procedures” for depriving certain Mobile County
public employees, such as Smith, of their constitutionally protected property

interests in their employment tenure, and for providing them both pre- and
post-termination process, are found in Act No. 470, Local Acts of 1939, as amended
by Act No. 2004–105, Ala. Acts 2004 (“Local Act 470”), and the Rules and
Regulations of the Personnel Board (“Board Rules”).1

More specifically, Board Rule

14.3(a) provides an “established state procedure” for pre-termination hearings. 2
Additional

Board

Rules

provide

an

“established

state

procedure”

for

a

post-termination appeal to the Mobile County Personnel Board (see id. at 55-56

Under Section IX of Local Act 470, the Board Rules “have the force and effect of law.”
(Doc. 41-3).

1

2

Board Rule 14.3(a) states:
Before any permanent employee is dismissed, suspended or demoted for
cause, the Appointing Authority or his designated representative shall
afford the employee due process in the form of a pre-disciplinary
hearing. Written notice of the reasons for termination, suspension or
demotion must be given the employee at least twenty-four (24) hours
prior to the pre-disciplinary hearing, at which time the employee must
be given the opportunity to respond orally and/or in writing to the
charges made before the official, or the designated representative of the
official, charged with the responsibility of making the disciplinary
decision. The pre-disciplinary hearing must be held within seven (7)
days after written notice to the employee. The determination as a result
of the pre-disciplinary hearing must be communicated to the employee
in writing within fourteen (14) days of the hearing. Circumstances that
prevent adherence to these timeframes must have approval of the
Director. The dismissal, suspension or demotion of an employee by an
Appointing Authority without having first accorded the employee a
pre-disciplinary hearing in accordance with this Rule shall be void and
of no force and effect, and shall not be recognized by the Board, except
in extraordinary situations as hereinafter specified.

(Doc. 41-4 at 54). No party has argued that the “extraordinary situations”
exception applies in this case.

(Board Rules 14.4 – 14.8)), and § XXXIV of Local Act 470 provides for appeal of the
Board’s decision to the Circuit Court of Mobile County.
This is not a case involving a complete lack of a pre-termination hearing;
there is no dispute that Smith received “some kind of a hearing” prior to his
termination on September 9, 2014.

Loudermill, 470 U.S. at 542.

This is also not

a case where the terminated employee is challenging the “established state
procedures” themselves as unconstitutional.

See Galbreath v. Hale Cty., Alabama

Comm'n, Civil Action No. 15-308-CG-N, 2017 WL 457197, at *13 (S.D. Ala. Feb. 1,
2017) (“[E]ither a complete lack of a pretermination hearing or a constitutional
attack on the policy itself would not be barred by McKinney…”).

Rather, by all

accounts this appears to be a case, like McKinney, which does “not contest the
sufficiency of the review system in question but that the review system was applied
in a deficient manner” (i.e., by the Defendants’ alleged failure to follow Local Act
470 and the Board Rules).

Id. See also Bell, 86 F.3d at 192 (“Bell attempts to

distinguish McKinney [by] describ[ing] his attack as one on the termination process
itself, whereas the plaintiff in McKinney challenged procedures as they applied to
him. For the first time in his supplemental brief in support of his motion to set aside
the judgment, Bell stated his challenge was ‘to the state's system itself, and its
failure to ever provide him with a proper evidentiary hearing with counsel,
witnesses, and cross-examination.’ Bell's characterization cannot belie the fact that
the meat of his complaint-bias on the part of the police committee and the city

council and inadequate time to speak in his post-termination hearing-amounts to an
‘as applied’ attack.”).

Counts I and III both expressly allege that the respective deprivations at
issue were caused by the Defendants’ failure to follow the “established state
procedures” in Local Act 470 and the Board Rules.3

Smith’s brief in response to the

August 15 order acknowledges his complaint “alleges that various Rules and Laws
were not followed or were denied to him by the named Defendants” (Doc. 52 at 5)
and is replete with allegations that the deprivations at issue were caused by the
Defendants’ failure to adhere to the Board Rules.

For instance, Smith alleges that

his pre-termination hearing was not a proper “Rule 14.3(a) pre-disciplinary
hearing,” but was instead “a Trial Board Hearing based on M[obile Police
Department] disciplinary rules.”

(Id. at 2.

See also id. at 4 (“The record taken as

a whole suggests that the City provided Smith with a disciplinary hearing according
to MPD regulations and not MCPB Rules.”)).

In other words, Smith admits he

received “some kind of hearing” prior to his termination, but that the hearing did

Count I alleges that, “[b]y terminating Plaintiff Smith without following
mandatory and nondiscretionary merit system ‘due process procedures’,
Defendants deprived Plaintiff of his property right interest in his job as a county merit
system employee without due process of law.” (Doc. 1 at 9, ¶ 52 (emphasis added)).
Count III, entitled “INTENTIONAL VIOLATION OF SECTION XXXIV OF THE
LOCAL ACTS, THE RULES OF THE MOBILE COUNTY PERSONNEL BOARD
STATUTORY DUE PROCESS VIOLATIONS,” alleges the Defendants “intentionally
denied Plaintiff Smith his due process right to a fair disciplinary hearing in clear
violation of MCPB Rule 43.3(a) [sic] by serving him with an inadequate notice of
hearing, and in the conduct of the hearing itself by denying Smith the right to call
witnesses of his choose, and to confront witnesses called by the City.” (Id. at 10, ¶ 54
(emphasis added)).

3

not conform to the “established state procedures” for such hearings required by
Board Rule 14.3(a).

Smith also claims that Dees, in his role as Personnel Director,

“failed to investigate the process as required by Rule 14.5” and “did not perform his
duties as Personnel Director” (id. at 3, 7; see also id. at 5 – 6 (“Smith has alleged,
among other points that Dees failed to adhere to Rule 14.5. Dees’ deposition clearly
provides at a minimum a reasonable inference that Dees only confirmed a part of
Rule 14.3(a) and equally failed to realize that MPD had used their own disciplinary
procedures (a Trial Board convened under MPD’s regulations)…to terminate Smith
in violation of Rule 14.3(a) – a rule possessing force and effect of law… If Dees had
investigated the termination as required by Rule 14.5; then Dees would have
learned of the documents he claimed to have never seen…or Dees might have
realized that the MPD disciplinary process is not compliant with MCPB Rule
14.3(a). Furthermore, Dees would have learned that the Mayor never designated
anyone to hold a MCPB Rule 14.3(a) pre-disciplinary hearing.”) – in other words,
that Dees failed to follow the “established state procedures” in Board Rule 14.5. He
asserts that the City “simply ignores the MCPB Rules and instead adheres to its
own regulations regarding disciplinary hearings” and that “the MPD and Mayor
knowingly elected to ignore MCPB Rule 14.3(a) and instead used their own
pre-disciplinary procedures, which certainly were never authorized by the Personnel
Director or MCPB or that would be a violation of statutory law” (Doc. 52 at 9 – 10) –
yet again, that the Defendants failed to follow “established state procedures.”4

By

In his brief, Smith also rehashes arguments that Dees and the Board violated his
due process rights by failing to acknowledge and process Smith’s Notice of Appeal of the

4

allegedly failing to follow these established state procedures, the Defendant state
actors

engaged

in

the

kind

of

“random,

“pre-deprivation process is impractical.”

unauthorized

acts”

Hudson, 468 U.S. at 532.

for

which

See also

Zinermon v. Burch, 494 U.S. 113, 130 (1990) (“[A]n individual state employee's
ability to foresee the deprivation is ‘of no consequence,’ because the proper inquiry
under Parratt is ‘whether the state is in a position to provide for predeprivation
process.’ ” (quoting Hudson, 468 U.S. at 534 (emphasis added)).
In McKinney, the plaintiff alleged he was deprived of procedural due process
during his pre-termination hearing because the decision-making entity was biased
against him.

The en banc Eleventh Circuit, relying on the “unambiguous”

Board’s decision to the Mobile County circuit court. (See, e.g., Doc. 52 at 3 (“Based on
Dees’ deposition testimony, he confirmed that two time-stamps appeared on Smith’s
notice of appeal to the MCPB dated December 12, 2014 with one of those being a MCPB
time-stamp dated December 12, 2014…A reasonable inference can be supported that
Dees and the MCPB and their agents failed to process further Smith’s appeal and
thereafter intentionally denied Smith his right of appeal to the Circuit Court of Mobile
County.”)). The Court previously dismissed the federal due process claims asserted in
Count IV, which were based on the same circumstances, for lack of subject matter
jurisdiction under the Rooker-Feldman doctrine. (See Doc. 50). To the extent any of
the federal due process claims in Counts I and III are also based on those circumstances,
the Rooker-Feldman doctrine deprives this Court of jurisdiction to consider the merits of
those claims as well, and they are due to be dismissed without prejudice.
However, the Court uses this opportunity to supplement the reasoning of its
order applying the Rooker-Feldman doctrine. (Doc. 50). The Eleventh Circuit “has
recognized an ‘important limitation’ on the Rooker–Feldman doctrine when the plaintiff
had no ‘reasonable opportunity to raise his federal claim in state proceedings.’ ” Powell
v. Powell, 80 F.3d 464, 467 (11th Cir. 1996) (quoting Wood v. Orange County, 715 F.2d
1543, 1547 (11th Cir. 1983)). As was noted previously (see Doc. 51 at 15 n.10), while
Local Act 470 does not authorize the Board, or the circuit court on direct appeal of a
Board decision, to decide constitutional issues, constitutional claims arising from Mobile
County termination proceedings can be raised in separate and distinct collateral suits.
Wright v. City of Mobile, 170 So. 3d 656, 661–62 (Ala. Civ. App. 2014). The availability
of such a collateral suit provided Smith the “reasonable opportunity” to raise his Count
IV federal claim “in state proceedings,” thus making Rooker-Feldman applicable to those
claims.

precedent of Parratt, held that “even if McKinney suffered a procedural deprivation
at the hands of a biased Board at his termination hearing, he has not suffered a
violation of his procedural due process rights unless and until the State of Florida
refuses to make available a means to remedy the deprivation. As any bias on the
part of the Board was not sanctioned by the state and was the product of
the intentional acts of the commissioners, under Parratt, only the state's
refusal to provide a means to correct any error resulting from the bias would
engender a procedural due process violation.”

McKinney, 20 F.3d at 1563

(emphasis added). The court went on to conclude that, “[s]ince the Florida courts
possess the power to remedy any deficiency in the process by which McKinney was
terminated, McKinney can not claim that he was deprived of procedural due
process.”

Id. at 1565.

Similarly, in this case, the Defendants’ alleged negligent or deliberate failure
to properly apply Local Act 470 and the Board Rules during his pre- and
post-termination proceedings were “not sanctioned by the state” of Alabama and
could be corrected by an appeal to the Mobile County circuit court.

See Longmire v.

City of Mobile, Ala., Civil Action No. 16-0025-WS-M, 2017 WL 1352226, at *15 (S.D.
Ala. Apr. 10, 2017) (Steele, J.) (“That Longmire restates and reformulates those
claims for non-compliance with MCPB rules in constitutional terms in this action in
no way diminishes the effectiveness or adequacy of the state remedial process to
provide a remedy for those procedural defects by ruling directly on whether the
MCPB rules were violated, whether the decision maker was biased, and so on.”).

The fact that Smith “ ‘failed to avail himself of the full procedures provided by state
law [i.e., the post-termination remedies] does not constitute a sign of their
inadequacy.’ ”

McKinney, 20 F.3d at 1565 (quoting Kremer v. Chemical Constr.

Corp., 456 U.S. 461, 485 (1982)). Though Smith argues in his brief that this failure
should be excused because he was “not sure where the correct place to file a Section
XXXIV appeal might validly be according to law” (Doc. 52 at 16), the McKinney rule
“does not look to the actual involvement of state courts or whether they were asked
to provide a remedy in the specific case now before the federal court. Instead, the
McKinney rule looks to the existence of an opportunity-to whether the state courts, if
asked, generally would provide an adequate remedy for the procedural deprivation
the federal court plaintiff claims to have suffered. If state courts would, then there
is no federal procedural due process violation regardless of whether the plaintiff has
taken advantage of the state remedy or attempted to do so.”

Foxy Lady, Inc. v. City

of Atlanta, Ga., 347 F.3d 1232, 1239 (11th Cir. 2003) (per curiam) (quoting Horton v.
Board of County Comm'rs of Flagler County, 202 F.3d 1297, 1300 (11th Cir. 2000)).
Smith’s brief asserts that his “claims for deprivation of federal due process
are not solely premised on Defendants’ failure to follow Local Act 470 and the
Board’s Rules,” arguing that “MCPB Rule 14.3(a) is unconstitutional if it condones
the taking of a property interest without giving the employee an effective rebuttal
means to respond to the official charged with the responsibility of making the
termination decision.”

(Doc. 52 at 14 (quotation omitted)).

As noted previously,

the federal due process claims in Counts I and III are expressly predicated on the

Defendants’ alleged deviation from those state laws, and the complaint is replete
with various examples of the Defendants’ alleged failure to adhere to those laws,
with Smith going so far as to quote Board Rule 14.3(a) in full.

Nowhere in Smith’s

complaint (Doc. 1), does he raise a claim that Board Rule 14.3(a), or indeed any part
of Local Act 470 or the Board Rules, is unconstitutional. Smith even tacitly
acknowledges this in his brief, noting that “[i]t may be that leave of court to amend
will be necessary to have the pleading conform to the evidence.”

(Doc. 52 at 14).

“It is well-settled in this circuit that a plaintiff may not amend the complaint
through

argument

at

the

summary

judgment

phase

of

proceedings.”

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1258 n.27 (11th Cir. 2012).
Moreover, a passing reference or conclusory request for amending a pleading
embedded in an opposition brief is generally not the proper way to request leave to
amend under Federal Rule of Civil Procedure 15(a)(2).

See Davidson v. Maraj, 609

F. App’x 994, 1002 (11th Cir. 2015) (per curiam) (unpublished) (“It has long been
established in this Circuit that a district court does not abuse its discretion by
denying a general and cursory request for leave to amend contained in an opposition
brief.” (citing Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009); Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc); and
Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1222 (11th Cir. 1999) (per curiam)
(“Where a request for leave to file an amended complaint simply is imbedded within
an opposition memorandum, the issue has not been raised properly.”); Lord Abbett
Mun. Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1208 (11th Cir. 2012) (per curiam)

(“The Fund's request for leave to amend appeared in its response to the Defendants'
motion to dismiss. The Fund failed, however, to attach a copy of this proposed
amendment or set forth its substance. Therefore, the district court did not err by
denying the Fund's request.”). Finally, the deadline to amend the pleadings set in
the Federal Rule of Civil Procedure 16(b) scheduling order expired months before
Smith filed his brief (see Doc. 29 at 4), and Smith has failed to demonstrate any
“good cause” for amending his pleadings at this late stage in the proceedings.

See

Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418-19 (11th Cir. 1998) (per curiam)
(“District courts are required to ‘enter a scheduling order that limits the time to ...
join other parties and to amend the pleadings ...’ Fed. R. Civ. P. 16(b). Such orders
‘control the subsequent course of the action unless modified by a subsequent order,’
Fed. R. Civ. P. 16(e), and may be modified only ‘upon a showing of good cause.’ Fed.
R. Civ. P. 16(b). This good cause standard precludes modification unless the schedule
cannot ‘be met despite the diligence of the party seeking the extension.’ ” Fed. R. Civ.
P. 16 advisory committee's note…[B]ecause Sosa's motion to amend was filed after
the scheduling order's deadline, she must first demonstrate good cause under Rule
16(b) before we will consider whether amendment is proper under Rule 15(a).”).
For all of these reasons, the undersigned finds that any claim that Board Rule
14.3(a) is unconstitutional is not currently before the Court.
Nevertheless, a charitable reading of Smith’s complaint reveals certain
factual allegations that his pre-termination hearing did not provide the minimum
constitutionally required due process, independent of “random, unauthorized” acts

such as the failure to follow the Board Rules and Local Act 470. The Defendants
tacitly acknowledge this in their own briefs responding to the August 15 order, as
both present argument that Smith’s pre-termination hearing was constitutionally
sufficient under current Supreme Court authority, despite the fact such an issue was
not raised in the August 15 order as grounds for granting summary judgment under
Rule 56(f). See McKinney, 20 F.3d at 1561-62 (determining that the plaintiff had
received a sufficient pre-termination hearing prior to turn to the issue of whether
state post-deprivation remedies provided sufficient due process to address an
allegedly biased decisionmaker); Ogburia v. Cleveland, 380 F. App'x 927, 929-30
(11th Cir. 2010) (deciding whether there was sufficient pre-termination due process
after determining that an adequate available state remedy foreclosed the
“post-termination” due process claim).

Because it was not raised in the Court’s

Rule 56(f) notice order, the Court will not rule on whether summary judgment is due
to be granted on the issue of pre-termination due process at this time. However,
summary judgment is otherwise due to be GRANTED in favor of all Defendants on
the federal due process claim asserted in Counts I and III of the complaint because,
as explained above and in the Court’s August 15 order (Doc. 51), they are based on
the alleged “random, unauthorized” acts of the Defendants for which adequate state
court remedies exist.

Because Sandy Stimpson was the only named Defendant

involved in the pre-termination proceedings, the federal claims in Counts I and III
will remain pending only as to him.

Accordingly, it is ORDERED that summary judgment under Federal Rule of
Civil Procedure 56(f) is DENIED as to the federal claims in Counts I and III against
Defendant Sandy Stimpson related to Smith’s pre-termination proceedings, is
otherwise GRANTED in favor of Stimpson as to the federal claims asserted in
Counts I and III, and is GRANTED in favor of all other Defendants as to all federal
claims asserted against them in Counts I and III. This order does not dispose of
any claims under “Alabama Statutory Law” asserted in Count III.
As explained in the August 15 order, the pending motion for summary
judgment (Doc. 50) is MOOT as to Count V and the federal claims in Count IV, as
they have been dismissed by previous orders and are no longer pending. (See Docs.
31, 50). The pending motion for summary judgment (Doc. 50) is also MOOT to the
extent Dees seeks qualified immunity on all remaining federal claims against him in
his individual capacity, and to the extend Defendant Barnett seeks “official capacity
immunity” on the federal claims against her in her official capacity, as the Court has
determined Smith has failed to demonstrate a procedural due process claim against
either of these defendants, see supra, and therefore need not determine whether
such immunities apply. However, the motion for summary judgment is DENIED
to the extent Barnett seeks to dismiss any of the pending state law claims against
her based on “official capacity immunity,” for the reasons previously explained in the
August 15 order (see Doc. 51 at 9 – 10).
DONE and ORDERED this the 26th day of September 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE