United States District Court, N.D. Alabama, Eastern Division
E. Ott Chief United States Magistrate Judge.
action, Plaintiff Scott Bonner brings claims pursuant to 42
U.S.C. § 1983 alleging violations of his federal due
process rights in connection with the termination of his
employment as a deputy with the Sheriff's Department of
Talladega County, Alabama. (Doc. 1 (“Complaint”
or “Compl.”)). Bonner brings those claims
against: (1) Talladega County Sheriff Jimmy Kilgore in both
his official and individual capacity; (2) the Talladega
County Civil Service Board; and
Talladega County Commission (hereinafter collectively
“Defendants”). The cause comes to be heard on
Defendants' motion to dismiss for a failure to state a
claim under Fed.R.Civ.P. 12(b)(6), or, in the alternative,
for summary judgment under Fed.R.Civ.P. 56. (Doc. 4).
Included within that motion is a demand for an award of
attorney's fees pursuant to 42 U.S.C. § 1988. (Doc.
4 at 2). Upon consideration, the court concludes that
Defendants' alternative motion for summary judgment is
due to be granted but that their request for attorneys'
fees is due to be denied.
Plaintiff is Terminated and Seeks Administrative and Judicial
Review under Alabama State Law
alleges that he began working as a deputy in the Talladega
County Sheriff's Department (the
“Department”) in 2002. (Compl. ¶ 12). He
also pleads, however, that, in that post, he had been
“hired by, ” and was “employed with,
” the Talladega County Commission (“County
Commission”). (Id.) In any case, on June 9,
2014, Plaintiff was placed on administrative leave with pay,
and ten days later he received a notice from Sheriff Kilgore
advising that he intended to terminate Plaintiff's
employment. (Id. ¶ 13). Such disciplinary
action appears to have been related to a charge that
Plaintiff misrepresented facts in verbal and written
complaints to a Department supervisor, Chief Deputy Ken
Flowers. In particular, it seems to have been alleged that
Plaintiff had falsely claimed that another member of the
Department, a Captain Howard Bussie, had “cursed him
out” during an argument. (See Doc. 5-3 at
3-5). On July 1, 2014, after a hearing before Sheriff
Kilgore, Plaintiff was advised he was discharged. (Compl.
¶¶ 12, 13).
pursued an administrative appeal of Sheriff Kilgore's
termination decision to the Talladega County Civil Service
Board (hereinafter the “Board”), pursuant to
Alabama Act No. 88-438. (See id.; Doc. 15 at 105).
The Board held an evidentiary hearing of its own, which
included the following attendees: Plaintiff; his attorney;
Sheriff Kilgore; an attorney representing him and the
Department; the three members of the Board; the Board's
attorney; and Toni Kilgore, who happens to be both the
Board's Secretary and Sheriff Kilgore's wife
(hereinafter “Mrs. Kilgore”). (Id.) On
September 9, 2014, the Board issued a brief order affirming
Sheriff Kilgore's decision to terminate Plaintiff.
(Compl. ¶ 17; Doc. 15 at 105-06). In so doing, the Board
found that Plaintiff “did personally misrepresent
statements to a supervisor, namely Chief Deputy Ken Flowers,
” which the Board deemed a “deliberate
falsification of records and/or personal misrepresentation of
statements given to a supervisor, an official, the public, or
the Board.” (Doc. 15 at 105-06). The Board further
noted that, under its published rules, such was a
“Group Two” offense (see id.; see
also Id. at 59-60, § I(3)(b)(1)(e)), for which even
an initial violation “will normally constitute grounds
for dismissal.” (Id. at 105-06; see also
Id. at 61, § I(3)(b)(2)). As a consequence, the
Board determined that Sheriff's Kilgore's decision to
fire Plaintiff was justified and due to be upheld. (Doc. 15
then sought judicial review in the Circuit Court of Talladega
County, Alabama (hereafter the “Circuit Court”),
also pursuant to Ala. Acts 88-438. (Compl. ¶ 17; Doc.
5-1). In his pleading, Plaintiff named Sheriff Kilgore, the
Board, and the County Commission as the
“Appellees.” (Doc. 5-1). In support of his claim
for relief, Plaintiff asserted that the decision to terminate
his employment “lack[ed] a basis in law or fact”;
was “in violation of Appellees' own policies,
” was “in violation of the Civil Service Act of
the State of Alabama, ” and was “in violation of
[Plaintiff's] right to due process and/or equal
protection of the law.” (Doc. 5-1, ¶ 4).
the Board supplied the record to be considered on appeal,
Plaintiff moved the Circuit Court to amend or correct it.
(Doc. 15 at 69-87). In particular, Plaintiff asserted that
the record was incomplete because it omitted certain
discussions between Mrs. Kilgore and the members of the
Board, at least some of which were ex parte,
occurring on the day of the Board's hearing.
(Id. at 69-71). On that score, Plaintiff explained
that he had made his own digital recording of the Board's
hearing, after giving notice to the Board that Plaintiff
intended to do so and the Board did not object. (Id.
at 69, ¶ 1). In reviewing that recording, Plaintiff
discovered that, after he and his counsel had left the
hearing room during a recess, their recording device had
continued to run. And during that recess, Mrs. Kilgore could
be heard discussing the case with the members of the Board in
an ex parte conversation as follows:
[Board Member George] Sims: Who are y'all thinking about
[Board Member Tommy] Spears: I kinda would like to hear from
[Plaintiff Scott] Bonner and I would kinda like to hear from
[Sheriff] Jimmy [Kilgore].
[Board Chairman Mike] Walker: Well you know to me I don't
know why we haven't heard from him before. There was no
statement. Ya know why didn't Scott give a statement. I
understand he's got a lawyer, but if you're telling
the truth, what difference does it make.
Sims: I don't know he may have something he don't
want us to know. Ya know what I was thinking look at it if
you make a decision on that other stuff I mean them cussing
one another I don't see that being a big deal if he did
or not I don't know he probably did you know uh but uh I
think it just boils down to the thing with [Captain] Howard
[Bussie's] wife I think I saw something in some of this
Spears: Now to me that immaterial.
Sims: Oh it is?
Spears: Because Bonner or she said that Bonner or maybe
Bussie said Bonner tried to call him later and he didn't
answer the phone so I can see where Bonner might have gone up
there to talk to Bussie face to face and thought he would
catch him at lunch where he knew he would always be.
Walker: Well I don't know if there are rules against it
or not but that's not why were are here.
Spears: That's why I think Peggy is insufficience (sic).
Walker: Well let's get back to ...
Spears: Well I got like a half page of stuff right here I
would like to ask
[Mrs.] Kilgore: Well he's an employee so y'all got
every right to question ‘em.Walker: We might even call
[Mrs.] Kilgore: I wouldn't care.
[Board Attorney Will] Hollingsworth: I thought the big
beef was lying about the Draper stuff. You know he meets with
[Chief Deputy] Flowers and I think the sheriff even denies
that ever happened then you got Haynes tell him what he heard
him say ya know why...
Walker: Brantley Shaw is not telling the truth.
Spears: Ya know about that phone call is something I
wanted to ask directly to Bonner. Let him answer it um about
the Draper business rather than hearing two other
people's story. Ones saying he didn't the other
saying he overheard it mentioned and other party say no
ain't no way.
Walker: Should we break for lunch. Spears: If she can
Walker: She has a thing at 3:00.
Spears: Take in consideration postpone if we had to.
Walker: It's not like you have anything to do.
[Mrs.] Kilgore: I do I do have a job.
Walker: You have a job.
[Mrs. Kilgore]: Yes.
Sims: I got dogs on the couch at home watching TV.
[Mrs.] Kilgore: Tommy [Spears] works I know.
Walker: You know this will be a lengthy if you know [Sheriff]
Jimmy [Kilgore's] testimony probably won't be long
but Bonner's probably won't be long because he
probably won't say anything you know I guess he can evoke
(sic) his Fifth Amendment right.
Hollingsworth: Well it's not a criminal thing.
Spears: Well I know that.
Walker: Well I don't know. My best defense would be
Sims: Yea[h, ] me to[o, ] I agree.
Walker: I would be chopping at the bit to defend myself.
[Mrs.] Kilgore: Did she agree you could talk to him a while
ago? Did she agree she would stay and you could call him?
Spears: Well she hasn't agreed to stay we agreed on well
I guess the next thing we need to do is ask her if she can
stay longer and if not then we need to adjourn or recess and
come back at a later time.
Walker: Sounds good to me. What about you George?
Sims: I can come back anytime I mean I had rather come back
Spears: I can sec maybe needing 30 minutes more. You think
Walker: I think longer.
15 at 79-81 (emphasis added)). At that point, the attorneys
returned to the hearing, whereupon Barry Vaughn, the attorney
for Sheriff Kilgore and his Department, advised the members
of the Board that they could not hold it against Plaintiff
Bonner if he chose not to testify. (Id. at 81).
After that, the recording captured the following:
Walker: My question would be about his abusive criticize of a
superior. Includes the sheriff or Kennedy or Howard [Bussie]
or whoever. You know there seems like there's a big
problem with his supervisors. And I realize that. You're
suppose[d] to you know I'm having a hard time with that
you know criticize who I'm working for. If you don't
want to work for ‘em them so I would like to ask him
about that. I mean what is his problem with the Sheriff's
Department? Where he has been employed 8 some odd years. And
um you know you um were not showing a pattern of being
reprimanded as such like he should be you know written up for
this um then you terminate someone. Uuhhno (sic). This right
here is well you know there is politics in it. You can't
get around politics. Politics in law enforcement. But you
know but if you're that unhappy then you know you're
causing a problem and uhh my experience with the
Sheriff's Department is they work very well. Look at the
length of employment on all these guys I mean they work
smooth. They never have any problems. This is a rare
occurrence. So I want to talk to Lt. Bonner and ask him
questions. That is my opinion and the way I feel.
Sims: I agree.
15 at 81-82). The attorneys then left the room, at which
point the group discussed whether to eat lunch and whether to
continue the hearing until some later time:
Walker: If she can stay George we can all stay. What I'm
saying we can go eat and all come back and get ...