Green v. McDonald et al

Filing 39

ORDER ADOPTING 35 REPORT AND RECOMMENDATIONS re 26 MOTION to Dismiss Parts of First Amended Complaint filed by Marvin McDonald. It is ORDERED that the motion to dismiss is GRANTED in part and DENIED in part, as set out herein. Signed by District Judge Kristi K. DuBose on 3/10/2025. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JOY KELLY GREEN,
On behalf of J.M.G.,
Plaintiff,
v.
MARVIN MCDONALD, et al.,
Defendants.

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Civil Action No. 2:24-00321-KD-N

ORDER
After due and proper consideration of the issues raised, and a de novo determination of those
portions of the recommendation to which objection is made, the report and recommendation of the

United States Magistrate Judge made under 28 U.S.C. § 636(a)–(b), Fed. R. Civ. P. 72, and S.D.
Ala. GenLR 72(a) and dated February 6, 2025, (Doc. 35), is PARTIALLY ADOPTED as the
opinion of this Court.
Specifically, Parts I, II, III.A, and III.C are adopted. Part III.B is not adopted. After
consideration of the report and recommendation, (Doc. 35), the objection (Doc. 36), and the
response, (Doc. 38), the Court finds that the state law claims (Counts Four through Six) against
Deputy Sheriff McDonald are due to be dismissed.
The Constitution and caselaw of the State of Alabama have distinguished constitutional
officers from other state employees and have determined that constitutional officers enjoy absolute
immunity from state law claims seeking monetary damages, both in their individual capacity and
official capacity, when acting in the scope and course of their employment with the State of
Alabama. The Court does not agree with Plaintiff that Ex Parte Pinkard, 373 So.3d 192, 200 (Ala.
2022) changed this generous grant of immunity for constitutional officers. The Court finds the

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following well-reasoned opinion to be persuasive:
Pinkard does not apply to cases involving sheriffs or their deputies because it
exclusively discussed cases brought against statutorily created officers. Sheriffs,
however, are constitutionally created executive officers. The Alabama Supreme
Court in Pinkard noted the types of suits where State immunity applies: suits
against the State, its agencies, and State officers, employees, and agents in their
official capacities. ––– So.3d at ––––, 2022 WL 1721483, at *4. Article I, § 14 of
the Alabama Constitution grants State immunity as a jurisdictional bar which
“strips courts of all power to adjudicate” these types of suits. Id. The reason for
State immunity is that a suit against the State, its agencies, or State officers sued in
their official capacities would impermissibly “result in a monetary loss to the State
treasury.” Ex parte Ala. Dep’t of Mental Health and Mental Retardation, 937 So.
2d 1018, 1023 (Ala. 2006).
The Alabama Supreme Court in Pinkard discussed State immunity as applied to
official-capacity suits against statutory officers. The court held that these officialcapacity suits are subject to State immunity because it “is equivalent to a suit
against the office itself,” which is “why claims filed against an officer in his
‘official capacity’ run not just against the named official but against all his
successors in office.” Pinkard, ––– So.3d at ––––, 2022 WL 1721483, at *4. By
suing the officer in his official capacity for money damages, a plaintiff is in essence
attempting “to reach ‘the public coffers’: damages awarded against a State agent in
his official capacity presumably would come from the State treasury rather than the
agent’s personal assets.” Id.
However, the Alabama Supreme Court has two distinct lines of cases for officers
created by legislative statute and those created by the Alabama Constitution.
Official-capacity State immunity applies only to officers “created by statute,” not
“executive officers” with special status in Article V, § 112 of the Alabama
Constitution. See Suttles v. Roy, 75 So. 3d 90, 95 (Ala. 2010). For example, in Ex
parte Lawley, the Alabama Supreme Court held that employees of the Department
of Conservation and Natural Resources (“DCNR”) did not receive State immunity
for individual suits because they did not fall under the applicable classes of
qualifying officers. 38 So. 3d 41, 46 (Ala. 2009). That is, the suit against them was
not one against the State or one of its agencies because the employees were
“statutory, not constitutional, officers.” Id. Consequently, State immunity only
applied to statutory DCNR officers if they were sued in their official capacity,
which they were not; thus, it was “not an action that implicate[d] State immunity.”
Id.
Pinkard clarified the line of cases analyzing State immunity for statutory officers,
holding that if a statutory officer is sued in his individual capacity—not getting at
the coffers of the state treasury—then he only qualifies for State-agent immunity.
––– So.3d at ––––, 2022 WL 1721483, at *4. Notably, the type of officer at issue
in Pinkard was created by statute: a deputy state fire marshal, Ala. Code § 36-191. Pinkard, ––– So.3d at ––––, 2022 WL 1721483, at *1. So too were the officers
in the cases that Pinkard either relied upon3 or overruled.4 Because the statutory

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officer in Pinkard was not sued in his official capacity, the court analyzed the
claims against him under State-agent immunity.5
As constitutional executive officers, sheriffs and their deputies are generally
immune from suits for damages brought against them in their official and individual
capacities for actions taken within the line and scope of their employment. 6
Importantly, the cases analyzing official-capacity State immunity for statutory
officers, including Pinkard, do not include claims against any of the nine executive
officers listed in Article V, § 112 of the Alabama Constitution: “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.” Suits against constitutional executive officers are
distinct from the official-capacity suits discussed in Pinkard because that case
involved claims against statutory officers. If statutory officers are truly sued in their
individual capacities, then, according to Pinkard, those officers may receive Stateagent immunity. Cases granting State immunity to sheriffs—even in individualcapacity suits—were not discussed or overruled in Pinkard, Cooper, or Barnhart.
The Alabama Supreme Court grants sheriffs and their deputies State immunity
because they are constitutionally created executive officers. In Parker v. Amerson,
519 So. 2d 442, 446 (Ala. 1987), the Alabama Supreme Court held that sheriffs are
immune from suit under § 14 for actions taken “while executing [their]
discretionary duties.” Answering a certified question from the Eleventh Circuit, the
Alabama Supreme Court held that absolute State immunity is due to sheriffs’ status
as constitutional executive officers under Article V, § 112. Parker, 519 So. 2d at
446. The only circumstance, according to Parker, in which a sheriff does not
receive State immunity is
when an action is brought: (1) to compel state officials to perform their legal
duties; (2) to compel state officials to perform ministerial acts; (3) to enjoin
state officials from enforcing unconstitutional laws; (4) to enjoin state
officials from acting in bad faith, fraudulently, beyond their authority, or
under mistaken interpretation of the law, or (5) to seek construction of a
statute under the Declaratory Judgment Act.
Id. at 445 (citing Gill v. Sewell, 356 So. 2d 1196, 1198 (Ala. 1978)).
Sheriff State immunity extends to a deputy sheriff because they operate as the
sheriff’s “alter ego.” The Eleventh Circuit in Carr v. City of Florence, 916 F.2d
1521, 1526 (11th Cir. 1990), identified this extension in Alabama, citing back to
Mosely v. Kennedy, 245 Ala. 448, 17 So. 2d 536, 537 (1944). The alter-ego theory
from Carr was cited approvingly by the Alabama Supreme Court in Hereford v.
Jefferson County:
In general, the acts of the deputy sheriff are the acts of the sheriff. The
deputy sheriff is the alter ego of the sheriff.... [A] deputy is legally an
extension of the sheriff. If the deputy’s acts are generally considered the
acts of the sheriff, it is logical that those acts should also enjoy the
immunity covering the sheriff’s own acts.

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586 So. 2d 209, 210 (Ala. 1991) (citations omitted). The Alabama Supreme Court
continues to grant State immunity to a sheriff or his deputy against monetary claims
for actions taken “within the line and scope of his employment as a ... sheriff,”
unless one of the Parker exceptions apply. Ex parte McWhorter, 880 So. 2d 1116,
1117 (Ala. 2003).7
State immunity for sheriffs is distinct from State immunity offered to nonconstitutional officers sued in their official capacities. The Eleventh Circuit
recently noted in an unpublished opinion that “Alabama generally grants sovereign
immunity to its state executive officers, sheriffs, and deputy sheriffs pursuant to” §
14 because a suit for monetary damages “against a constitutional officer in the
officer’s individual capacity is barred by State immunity whenever the acts that are
the basis of the alleged liability were performed within the course and scope of the
officer’s employment.” Ass’n of Cnty. Comm’ns of Ala. Liab. Self-Insured Fund v.
Robinson, 777 F. App’x 397, 399 (11th Cir. 2019). State immunity is granted to
sheriffs pursuant to Article V, § 112—even in individual-capacity actions—
because suits against a constitutional officer “for actions taken in the line and scope
of their employment inherently constitute actions against the State, and such actions
are prohibited by § 14.” Donaldson, 80 So. 3d at 898 (quoting Shelley, 53 So. 3d at
895). In other words:
When determining whether a State interest in an action against a state
official or employee in his or her individual capacity is sufficient to trigger
the immunity granted by § 14, ... cases distinguish between the standards
applied to those state agents or employees whose positions exist by virtue
of legislative pronouncement and those who serve as the constitutional
officers of this State.
Davis, 930 So. 2d at 500. If sued individually, officers created by legislative
pronouncement may receive State-agent immunity, and those created by the
constitution, such as deputy sheriffs, enjoy State immunity.
Reynolds v. Calhoun, 650 F. Supp. 3d 1272, 1276–79 (M.D. Ala. 2023).
In this case, as in Reynolds, the plaintiff has claimed in her complaint that Deputy
McDonald was at all times acting in the course and scope of his employment. As such, the State
of Alabama has granted Deputy McDonald absolute immunity from State law claims that seek
monetary damages.
Accordingly, it is ORDERED that Defendant Deputy Marvin McDonald’s Partial Motion
to Dismiss Plaintiff’s Amended Complaint, (Doc. 26), is GRANTED in PART and DENIED in
PART as follows:

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The motion to dismiss the claims against McDonald in his official capacity (Counts One
and Two) is GRANTED and Counts One and Two (§ 1983 Claims) are DISMISSED against
McDonald in his official capacity but remain against McDonald in his individual capacity.
The motion to dismiss the state law claims against McDonald (Counts Four, Five, and Six)
is GRANTED and the state law claims against McDonald (Counts Four, Five, and Six) are
DISMISSED.
The motion to dismiss all claims against fictitious defendants John Does II-L is
GRANTED and all claims against fictitious defendants John Does II-L are DISMISSED.
The motion to dismiss all claims against fictitious defendant Deputy Doe I is DENIED and
the claims against fictitious defendant Deputy Doe I remain.
The request to strike the pleading of any reference to 42 U.S.C. §§ 1981, 1985, and 1986
is GRANTED and all references to 42 U.S.C. §§ 1981, 1985, and 1986 are STRICKEN.
DONE and ORDERED this the 10th day of March 2025.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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