United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
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.
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
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 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)
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.”). 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.
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 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.
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).
 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,
 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.