Butler v. DeKalb County School District et al

Filing 104

OPINION AND ORDER ADOPTING 97 Final Report and Recommendation ; GRANTING Defendants' 66 Motion for Judgment on the Pleadings; IT IS FURTHER ORDERED that Plaintiff's claims against Defendant DCSD, Tyson, Ramsey and Thurmond are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Defendants Atkinson and Turk are DISMISSED WITHOUT PREJUDICE from this action. Signed by Judge William S. Duffey, Jr on 7/28/2015. (adg)

I.

BACKGROUND
Plaintiff Yvonne Sanders Butler (“Plaintiff”) was a principal at a DeKalb

County elementary school. On August 13, 2010, Defendant DCSD demoted her on
the grounds of incompetency, insubordination and neglect of duties based on her
alleged use of school funds to purchase books authored and sold by a company she
owned.1 On May 11, 2011, DCSD offered Plaintiff a contract for a teaching
position for the 2011-2012 academic year, in lieu of termination. Plaintiff declined
the position, and on July 15, 2011, DCSD terminated her employment.
On March 9, 2012, Plaintiff filed a mandamus action in the Superior Court
of DeKalb County (the “DeKalb action”), requesting (i) a hearing under the Fair
Dismissal Act (“FDA”)2, O.C.G.A. § 20-2-940, et seq., (ii) a name-clearing
hearing, and (iii) damages for breach of an implied covenant of good faith and fair
dealing. The Superior Court granted Plaintiff’s petition for a writ of mandamus
regarding her request for an FDA hearing, denied, as moot, her request for a
name-clearing hearing, and denied her claim for breach of an implied covenant of

1

During the investigation of these purchases, Plaintiff was suspended from the
duties of principal.
2

The FDA establishes certain procedural safeguards for public school employees
in Georgia, including the permissible grounds for suspending and terminating
employees. See O.C.G.A. § 20-2-940.

2

good faith and fair dealing.
On September 22, 2014, the Georgia Supreme Court entered its order
reversing in part, and affirming in part, the order entered in the DeKalb action.3
The Georgia Supreme Court held that Plaintiff was not entitled to an FDA hearing
because she obtained a supervisory position in August 1995. See
DeKalb Cty. Sch. Dist. v. Butler, 763 S.E.2d 473, 475 (Ga. 2014). The Georgia
Supreme Court noted that the FDA provides that “[a] person who first becomes a
school administrator on or after April 7, 1995, shall not acquire any rights under
this Code section to continued employment with respect to any position of school
administrator.” Id. (citing O.C.G.A. § 20-2-942-(c)(1)). The Georgia Supreme
Court affirmed the Superior Court’s denial of a name-clearing hearing and the
dismissal of Plaintiff’s breach of the implied covenant of good faith and fair
dealing claim. Id.
On June 6, 2014, Plaintiff filed her Complaint in this Court. In it, she
alleges that her demotion and subsequent termination (1) violated the Due Process
Clause of the Fifth and Fourteenth Amendments, (2) violated the Equal Protection
Clause of the Fourteenth Amendment, (3) was actionable discrimination under
3

Under Georgia law, judgments or orders granting or refusing to grant mandamus
are generally appealable directly to the Georgia Supreme Court. See
Selke v. Carson, 759 S.E.2d 853, 854 (Ga. 2014).

3

42 U.S.C. § 1981, (4) was actionable discrimination under 42 U.S.C. § 1983,
(5) violated Title VII of the Civil Rights Act, and (6) was retaliation under
42 U.S.C. § 1997d. Plaintiff also asserts state law claims for “ex post facto
prosecution,” negligence, slander, breach of contract and intentional and negligent
infliction of emotional distress. Plaintiff seeks damages of $25,000,000, plus
interest and costs.
On April 27, 2015, the Magistrate Judge issued his R&R, recommending
that Plaintiff’s claims against DCSD be dismissed as barred by res judicata. In the
alternative, the Magistrate Judge recommended that Plaintiff’s claims against
DCSD be dismissed because Plaintiff’s federal and state law claims fail as a matter
of law.
The Magistrate Judge further recommended that Plaintiff’s claims against
Defendants Tyson, Ramsey and Thurmond, in their individual capacities, be
dismissed on qualified immunity grounds because Plaintiff failed to allege specific
acts committed by them personally. The Magistrate Judge recommended that the
claims against Defendants Tyson, Ramsey and Thurmond, in their official
capacities, should be dismissed because they are the same claims as those alleged
against the DCSD, which the Magistrate Judge found failed as a matter of law.
Finally, the Magistrate Judge recommended that Defendants Atkinson and Turk be

4

dismissed without prejudice from this action because Plaintiff failed to serve them
with the Summons and Complaint.
On June 8, 2015, Plaintiff filed her Objections to the R&R. Plaintiff’s
Objections are poorly organized and difficult to understand. Based on the Court’s
review of them, Plaintiff appears to assert the following Objections to the R&R:
(i) Defendant’s Motion for Judgment on the Pleadings is untimely as to certain
counts4 of the Complaint and, as a result, the Magistrate Judge should not have
considered them, (ii) Plaintiff’s claims of gender and race discrimination under
Title VII are not barred for lack of jurisdiction for failing to exhaust administrative
remedies, (iii) Plaintiff is entitled to assert her Section 1983 claim because she was
denied the hearing ordered in the DeKalb action, (iv) Defendants were not entitled
to qualified immunity because the statute of limitations has not run on her Section
1983 claims, and (v) Plaintiff’s claims are not barred by res judicata.
II.

DISCUSSION
A.

Legal Standard

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1) (Supp. V 2011);
4

Specific counts were not identified.

5

Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A
district judge “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1). If a party has not objected to findings and
recommendations in a report and recommendation, a court conducts a plain error
review of the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983) (per curiam).
B.

Analysis
1.

Leave to File Motion for Judgment on the Pleadings

The Magistrate Judge granted Defendants’ request to file their Motion for
Judgment on the Pleadings on the ground that Plaintiff’s Title VII and state law
claims are required to be dismissed for lack of subject matter jurisdiction, and
“a federal court must always dismiss a case upon determining that it lacks subject
matter jurisdiction, regardless of the stage of the proceedings.” See
Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 n.6 (11th Cir. 2001).
The Motion for Judgment on the Pleadings was not untimely under Rule 12(c) of
the Federal Rules of Civil Procedure because it was filed “[a]fter the pleadings
[were] closed—but early enough not to delay trial.” See Fed. R. Civ. P. 12(c). A
trial date had not been set in this matter, and Plaintiff does not offer any

6

explanation to show that Defendants’ Motion was untimely under Rule 12(c).
Upon de novo review, the Court concludes that Defendants’ Motion for Judgment
on the Pleadings was not untimely.
2.

Res Judicata

Plaintiff objects to the finding in the R&R that her federal and state law
claims against DCSD are barred by res judicta because they are based on the same
subject matter as Plaintiff’s claim for mandamus relief in the DeKalb action. In
determining if a judgment has res judicata effect, the Court applies the res judicata
law of the state that rendered the state court judgment. See Kizzire v. Baptist
Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006) (citing 28 U.S.C. § 1738).
DCSD argues that the Georgia Supreme Court’s September 22, 2014, order bars,
under the doctrine of res judicata, the claims asserted against DCSD.
Under Georgia law, “[t]hree prerequisites must be satisfied before res
judicata applies—(1) identity of the cause of action, (2) identity of the parties or
their privies, and (3) previous adjudication on the merits by a court of competent
jurisdiction.” Karan, Inc. v. Auto-Owners Ins. Co., 629 S.E.2d 260, 262
(Ga. 2006); see also O.C.G.A. § 9-12-40. Regarding the first element, res judicta
prevents subsequent actions “as to all matters put in issue or which under the rules
of law might have been put in issue” in the original action. See O.C.G.A.

7

§ 9-12-40. Georgia courts have interpreted this requirement to mean that “one
must assert all claims for relief concerning the same subject matter in one lawsuit
and any claims for relief concerning that same subject matter which are not raised
will be res judicta pursuant to O.C.G.A. § 9-12-40.” See Fowler v. Vineyard, 405
S.E.2d 678, 682 (Ga. 1991) (internal quotation marks and citations omitted).
Plaintiff appears to claim that the cause of action here is not identical to
Plaintiff’s mandamus petition in the DeKalb action.5 Plaintiff specifically claims
that her Section 1983 claim and Title VII claim were not litigated previously. See
Pl.’s Obj. at 11. In Georgia, “the doctrine of res judicata prevents the re-litigation
of all claims which have already been adjudicated, or which could have been
adjudicated, between identical parties or their privies in identical causes of action.”
See James v. Intown Ventures, LLC, 752 S.E.2d 213 (2012) (internal quotation
marks omitted). Plaintiff does not contend that the federal and state law claims she
raises against DCSD in this action do not arise from her demotion and subsequent
termination, which were the subject of litigation in the DeKalb action. Plaintiff
failed to raise these additional claims in her state mandamus petition, even though
these claims could have been litigated in that prior action. See Starship Enterprises
5

Plaintiff does not dispute that there is identity of the parties and a previous
adjudication on the merits by a court of competent jurisdiction in this State. The
Court does not find any plain error in these findings.

8

of Atlanta, Inc. v. Coweta Cty., 708 F.3d 1243, 1256 (11th Cir. 2013) (applying
Georgia law to conclude that plaintiff’s federal constitutional claims were barred
by res judicata because the claims were based on the denial of a business license
that was the subject of an earlier state mandamus petition); Sharpley v. Davis, 786
F.2d 1109, 1111-12 (11th Cir. 1986) (applying Georgia law to conclude that public
school principal’s federal claims were barred by res judicta because he failed to
raise those claims in a prior state court action).
After a de novo review of the Magistrate Judge’s R&R, the Court concludes
that Plaintiff’s federal and state law claims against DCSD are barred by res
judicita. Plaintiff’s objection is overruled.6

6

The Magistrate Judge recommended, in the alternative, that Plaintiff’s claims
against DCSD be dismissed as a matter of law because plaintiff failed to state a
claim for relief under Section 1981, Section 1983, the Due Process Clause, and the
Equal Protection Clause. The Magistrate Judge also recommended that Plaintiff’s
Title VII claim be dismissed for failure to state a claim and failure to exhaust
administrative remedies, that the Section 1997d claim be dismissed for lack of
standing, that the state law tort claims be dismissed on the grounds of sovereign
immunity, and the state law contract claim be dismissed for failure to state a claim.
Upon de novo review, the Court concludes that Plaintiff’s claims against DCSD
fail as a matter of law even if res judicata did not apply to bar her claims.

9

3.

Official Capacity

The Magistrate Judge recommended that Plaintiff’s claims against
Defendants Tyson, Ramsey, and Thurmond, in their official capacity, be dismissed
because “suits against public employees in their official capacities are in reality
suits against the state, and therefore, [barred by the doctrine of] sovereign
immunity.” See Banks v. Happoldt, 608 S.E.2d 741, 744 (Ga. Ct. App. 2004); see
also Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991) (holding that
“[b]ecause suits against a municipal officer sued in his official capacity and direct
suits against municipalities are functionally equivalent, there no longer exists a
need to bring official-capacity actions against local government officials [under
Section 1983], because local government units can be sued directly. . . .”).
Plaintiff did not object to the dismissal of her official capacity claims based on
state law and Section 1983 against Tyson, Ramsey and Thurmond, and the Court
does not find plain error in the Magistrate Judge’s conclusion that these claims
should be dismissed.
4.

Qualified Immunity

The Magistrate Judge also concluded that Plaintiff’s claims against
Defendants Tyson, Ramsey, and Thurmond, in their individual capacities, are
required to be dismissed because Plaintiff’s Third Amended Complaint fails to

10

allege any specific acts personally committed by them. “Qualified immunity offers
complete protection for government officials sued in their individual capacities if
their conduct ‘does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). “Suits against government officials for damages against them individually
are costly not only for the defendants, but for society as a whole. The social costs
include the expenses of litigation, the diversion of official energy from pressing
public issues, and the deterrence of able citizens from acceptance of public office.”
Post v. City of Fort Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993) (internal
quotation marks and citations omitted). “Qualified immunity recognizes that,
where an official’s duties legitimately require action in which clearly established
rights are not implicated, the public interest may be better served by action taken
with independence and without fear of consequence.” Id.
Plaintiff objects to the Magistrate Judge’s recommendation that her
individual capacity claims against these Defendants should be dismissed on the
ground that Defendants’ actions were “intentional, or negligent at best,”7 and thus
7

This argument is derived from a largely incoherent discussion. The citation to
page 9 of the Objections is based on the CM-ECF numbers of the filing. Plaintiff
did not number the pages of her Objections.
11

they are not entitled to qualified immunity. Pl.’s Obj. at 9. This conclusory claim
is not supported by facts in any of Plaintiff’s Complaints or in her Objections to the
R&R. The burden is on the Plaintiff to show that these Defendants are not entitled
to qualified immunity. See Dalrymple v. Reno, 334 F.3d 991, 995
(11th Cir. 2003). To overcome Defendants’ claim of qualified immunity made
against them in their individual capacities, Plaintiff was required to allege
“sufficient facts to support a finding of a constitutional violation of a clearly
established law.” Chandler v. Sec’y of Fla. Dep’t of Transp., 695 F.3d 1194, 1198
(11th Cir. 2012) (citing Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009)); see
also Andreu v. Sapp, 919 F.2d 637, 639 (11th Cir. 1990) (“[T]he defendant is
entitled to dismissal when the plaintiff has failed to allege a violation of a clearly
established right.”) (citations omitted). The Complaint filed in this action and
Plaintiff’s Objections to the R&R do not contain facts regarding what actions, if
any, the individual Defendants allegedly took to violate her constitutional rights.
Plaintiff has thus failed to allege any facts to support a finding of a violation of a
clearly established constitutional right. See Chandler, 695 F.3d at 1198.
After a de novo review of the Magistrate Judge’s R&R, the Court concludes
that Plaintiff’s claims against Tyson, Ramsey, and Thurmond are required to be
dismissed because she failed to allege any facts to support that they are not entitled

12

to qualified immunity. Plaintiff’s objection is overruled.
5.

Failure to Serve

Rule 4(m) of the Federal Rules of Civil Procedure provides that “[i]if a
defendant is not served within 120 days after the complaint is filed, the court—on
motion or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a specified
time.” See Fed. R. Civ. P. 4(m). The record does not show that Defendants
Atkinson and Turk were served with the Summons and Complaint. The Magistrate
Judge recommended that the action against Defendants Atkinson and Turk be
dismissed without prejudice for failure to perfect service of process.
An R&R that recommends dismissal for failure to perfect service of process
provides a plaintiff with notice under Rule 4(m) of the Federal Rules of Civil
Procedure. See Anderson v. Osh Kosh B’Gosh, 255 F. App’x 345, 348
(11th Cir. 2006). Plaintiff does not object to the recommendation that the claims
against Defendants Atkinson and Turk be dismissed from this action. The Court
does not find plain error in the Magistrate Judge’s recommendation, and
Defendants Atkinson and Turk are dismissed without prejudice from this action for
failure to perfect service of process.

13

III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge E. Clayton Scofield’s

Final R&R is ADOPTED.
IT IS FURTHER ORDERED that Defendants’ Motion for Judgment on
the Pleadings is GRANTED [66].
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendant
DCSD, Tyson, Ramsey and Thurmond are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Defendants Atkinson and Turk are
DISMISSED WITHOUT PREJUDICE from this action.

SO ORDERED this 28th day of July, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

14