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Heard v. Bibb County

United States District Court, N.D. Alabama, Western Division

September 24, 2014

ERVIN HEARD, Plaintiff,
v.
BIBB COUNTY SHERIFF KEITH HANNAH, in his official capacity, Defendants

Order Filed: August 28, 2014

Page 1130

[Copyrighted Material Omitted]

Page 1131

For Ervin Heard, Plaintiff: Albert J Osorio, LEAD ATTORNEY, LAW OFFICES OF ALBERT J OSORIO, Birmingham, AL.

For Keith Hannah, Bibb County Sheriff; in his official capacity, Bibb County Commission, a governmental entity, Defendants: Jamie Helen Kidd, LEAD ATTORNEY, WEBB & ELEY PC, Montgomery, AL.

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MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, United States District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983, in which the plaintiff, Ervin Heard, brings claims against the Bibb County, Alabama, Sheriff, Keith Hannah, in his official capacity, alleging violations of the Fourteenth Amendment, and under Alabama state law, in connection with the termination of the plaintiff's employment. (Doc.1). The case comes before the court on Hannah's motion, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss all claims for money damages due to lack of subject-matter jurisdiction, and, pursuant to Rule 12(b)(6), to dismiss all other causes of action for failure to state a claim upon which relief may be granted. (Doc. 12). Also included in Hannah's filing is a Rule 12(f) motion to strike certain allegations of the plaintiff's pleading, as well as a demand for attorney's fees under 42 U.S.C. § 1988.

On August 28, 2014, the magistrate entered a report and recommendation and recommended:

[T]hat Defendant Hannah's motion (Doc. 12) be DENIED to the extent it asks the court to strike certain allegations of the Amended Complaint pursuant to Fed.R.Civ.P. 12(f), be GRANTED insofar as it seeks dismissal of Plaintiff's claims for damages and backpay for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1); be GRANTED insofar as seeks dismissal of all remaining claims pursuant to Fed.R.Civ.P. 12(b)(6); and be DENIED as it relates to an award of attorney fees under 42 U.S.C. § 1988.

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(Doc. 19 at 25-26) (emphasis in original). The time for objections to the recommendation has expired and no objections have been filed by any party.

Having carefully reviewed and considered de novo all the materials in the court file, including the report and recommendation, the court is of the opinion that the magistrate judge's report is due to be and is hereby ADOPTED and his recommendation is ACCEPTED. The Court EXPRESSLY FINDS that plaintiff's claims for damages and backpay are due to be dismissed for lack of subject matter jurisdiction, and that his remaining claims are due to be dismissed because they fail to state a claim upon which relief may be granted.[1] The court also finds that no allegations in the amended complaint are due to be stricken and no attorney's fees should be awarded.

An order of dismissal will be entered.

DONE and ORDERED

ORDER

The case comes before the court on the defendant's motion, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss all claims for money damages due to lack of subject-matter jurisdiction, and, pursuant to Rule 12(b)(6), to dismiss all other causes of action for failure to state a claim upon which relief may be granted. (Doc. 12). Also included in the defendant's filing is a Rule 12(f) motion to strike certain allegations of the plaintiff's pleading, as well as a demand for attorney's fees under 42 U.S.C. § 1988.

In accordance with the memorandum opinion entered contemporaneously herewith, it is hereby ORDERED, ADJUDGED, and DECREED as follows:

1. The magistrate judge's report is due to be and is hereby ADOPTED and his recommendation is ACCEPTED as amplified by the Memorandum Opinion filed contemporaneously herewith;

2. To the extent that the motion seeks to strike certain allegations in the plaintiff's pleadings, and requests an award of attorney's fees it is DENIED;

3. In all other respects, the motion is GRANTED; and

4. This case is DISMISSED with prejudice.

DONE and ORDERED this 24th day of September, 2014.

REPORT AND RECOMMENDATION

JOHN E. OTT, Chief United States Magistrate Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. In his now-governing Amended Complaint, Plaintiff Ervin Heard brings claims against the Bibb County, Alabama, Sheriff, Keith Hannah, in his official capacity, alleging violations of the Fourteenth Amendment and Alabama state law in connection with the termination of Plaintiff's employment. (Doc.[1] 10 (" Amended Complaint" or " Amd. Compl." )). The action is assigned to the

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undersigned United States Magistrate Judge pursuant to the General Order of Reference dated January 14, 2013. The cause comes to be heard for a report and recommendation, see 28 U.S.C. § 636(b), Fed. R. Civ. P.; Rule 72(b); LR 72.1(b), on Hannah's motion to dismiss all claims for money damages for lack of subject-matter jurisdiction under Fed.R.Civ.P. 12(b)(1) and to dismiss all other causes of action for failure to state a claim under Fed.R.Civ.P. 12(b)(6). (Doc. 12). Also included in Hannah's filing is a motion to strike certain allegations of Plaintiff's pleading under Fed.R.Civ.P. 12(f), as well as a demand for attorney's fees under 42 U.S.C. § 1988. Upon consideration, it will be recommended that Hannah's motion to strike be denied, his motion to dismiss be granted, and that his demand for attorney's fees be denied.

I. BACKGROUND

Plaintiff, an African-American male, was employed for over thirteen years as a deputy sheriff in the Bibb County Sheriff's Department. (Amd. Compl. ¶ 8). At all times relevant, Hannah, who is white, was the Bibb County Sheriff. ( Id. ¶ 5). On September 27, 2013, Plaintiff received a letter from Hannah advising that Plaintiff was suspended with pay " pending the reports of a special inquiry" by the Bibb County Grand Jury into unspecified activities of Plaintiff. ( Id. ¶ 9; Doc. 10-1 at 2).

According to Plaintiff, Hannah thereafter " leaked false information and ... unfounded allegations to the press," thereby " subjecting plaintiff to non-verified accusations, slanderous statements, and information." (Amd. Compl. ¶ 12). More specifically, Plaintiff alleges that Hannah " leaked" information to the local Fox television station to the effect that Plaintiff was involved in " inappropriate behavior" while on patrol duties. ( Id. ¶ 9). Likewise, Hannah was quoted in a newspaper article published in the Centreville Press on October 8, 2013, which stated Plaintiff was the subject of complaints for " exhibiting inappropriate behavior during traffic stops." ( Id. ¶ 12).

On October 11, 2013, Plaintiff received a letter from Hannah notifying Plaintiff that his employment was terminated, effective immediately. ( Id. ¶ 13; Doc. 10-1 at 4). The letter advised that such termination was based on " multiple violations" of Plaintiff's oath as a deputy; the law enforcement code of ethics; and certain " rules, regulations, and standard operating procedures, including but not limited to" the following:

Failure to fufill the duties of your office, including neglecting and failing to complete reports and turn over ...


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