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Bonner v. Kilgore

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

March 21, 2017

SCOTT BONNER, Plaintiff,
v.
JIMMY KILGORE, SHERIFF, in his official and individual capacity; the TALLADEGA COUNTY SERVICE BOARD; and the TALLADEGA COUNTY COMMISSION, Defendants.

          MEMORANDUM OPINION

          John E. Ott Chief United States Magistrate Judge.

         In this 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] 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

         (3) the 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[2] 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.

         I. BACKGROUND

         A. Plaintiff is Terminated and Seeks Administrative and Judicial Review under Alabama State Law

         Plaintiff 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).

         Plaintiff 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 at 105-06).

         Plaintiff 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).

         After 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 calling?
[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 stuff.
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 you.

[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 postpone her.

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 myself.
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 here.
Spears: I can sec maybe needing 30 minutes more. You think longer?
Walker: I think longer.

         (Doc. 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.

         (Doc. 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 ...

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