United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge
Jalen Green (“Mr. Green”) initiated this
discrimination in education case on June 28, 2016, against
Jacksonville State University (“JSU”) and several
individual Defendants (sued in their personal capacities
only). Mr. Green has sued Defendants under Title VI of the
Civil Rights Act of 1964,  42 U.S.C. § 1983, 42 U.S.C. §
1981, and Alabama law. (Doc. 1 at 2 ¶ 2). Mr.
Green's most recent pleading is a Corrected Repleaded
Complaint (Doc. 29) filed on October 29,
before the court is a Motion To Dismiss (Doc. 47) (the
“Partial Motion”) filed by Defendants
Jacksonville State University (“JSU”), Dr.
Kenneth Bodiford (“Dr. Bodiford”), Dr. Timothy
King (“Dr. King”), and Dr. Christopher Probst
(“Dr. Probst”) (collectively Drs. Bodiford, King,
and Probst are sometimes referred to as the “Individual
Defendants”) on January 6, 2017. The claims at issue in
the Partial Motion are limited to:
• Count I (Doc. 29 ¶¶ 92-100) against Dr.
Bodiford for violation of the equal protection clause
asserted pursuant to § 1983 and § 1981;
• Count II (Doc. 29 ¶¶ 101-08) against Dr.
Bodiford for tort liability asserted under Alabama law;
• Count I (Doc. 29 ¶¶ 109-115) against Dr.
King for violation of the equal protection clause asserted
pursuant to § 1983 and § 1981;
• Count I (Doc. 29 ¶¶ 116-121) against Dr.
Probst for violation of the equal protection clause asserted
pursuant to § 1983 and § 1981;
• Unnumbered Count (Doc. 29 ¶¶ 182-88) against
“Individual Defendants” for intentional and
negligent infliction of emotional distress under Alabama law;
• Count I (Doc. 29 ¶¶ 151-165) against JSU for
a claim of a racially hostile environment in education (or
student-on-student racial harassment) arising under Title VI.
Green opposed Defendants' Partial Motion on February 25,
2017. (Doc. 52). Defendants followed with their reply (Doc.
55) on March 6, 2017.
carefully considered the contentions raised by both sides,
the Partial Motion is GRANTED IN PART, DENIED IN PART, and
otherwise TERMED as MOOT.
Rule 12(b)(6) Dismissal Standard
12(b)(6) motion attacks the legal sufficiency of the
complaint. See Fed. R. Civ. P. 12(b)(6) (“[A]
party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be
granted[.]”). The Federal Rules of Civil Procedure
require only that the complaint provide “‘a short
and plain statement of the claim' that will give the
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80
(1957) (footnote omitted) (quoting Fed.R.Civ.P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007);
see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing
“a short and plain statement of the claim showing that
the pleader is entitled to relief”).
plaintiff must provide the grounds of his entitlement to
relief, Rule 8 does not mandate the inclusion of
“detailed factual allegations” within a
complaint. Twombly, 550 U.S. at 555, 127 S.Ct. at
1964 (quoting Conley, 355 U.S. at 47, 78 S.Ct. at
103). However, at the same time, “it demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550
U.S. at 563, 127 S.Ct. at 1969.
court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679, 129 S.Ct. at
1950. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Id. “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Id.
(emphasis added). “Under Twombly's
construction of Rule 8 . . . [a plaintiff's] complaint
[must] ‘nudge [any] claims' . . . ‘across
the line from conceivable to plausible.'
Ibid.” Iqbal, 556 U.S. at 680, 129
S.Ct. at 1950-51.
is plausible on its face “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949. “The plausibility standard is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556, 127 S.Ct. at 1965).
Motion for Judgment on the Pleadings
12(c) of the Federal Rules of Civil Procedure provides that
“[a]fter the pleadings are closed--but early enough not
to delay trial--a party may move for judgment on the
pleadings.” Fed.R.Civ.P. 12(c). As the Eleventh Circuit
has explained the Rule 12(c) standard:
Judgment on the pleadings is appropriate when there are no
material facts in dispute, and judgment may be rendered by
considering the substance of the pleadings and any judicially
noticed facts. See Bankers Ins. Co. v. Florida
Residential Property and Cas. Joint Underwriting
Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998) (citing
Hebert Abstract Co. v. Touchstone Properties, Ltd.,
914 F.2d 74, 76 (5th Cir. 1990)); see also
Rule 12(c), Fed.R.Civ.P. When we review a judgment on the
pleadings, therefore, we accept the facts in the complaint as
true and we view them in the light most favorable to the
nonmoving party. See Ortega, 85 F.3d at 1524 (citing
Swerdloff v. Miami Nat'l Bank, 584 F.2d 54, 57
(5th Cir. 1978)). The complaint may not be dismissed
“‘unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'”
Slagle, 102 F.3d at 497 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2
L.Ed.2d 80 (1957) & citing Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17,
125 L.Ed.2d 612 (1993)).
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367,
1370 (11th Cir. 1998).
“[w]hether the court examine[s] [a pleading] under Rule
12(b)(6) or Rule 12(c), the question [remains] the same:
whether the [complaint] stated a claim for
relief.” Sampson v. Washington Mut. Bank,
453 F. App'x 863, 865 n.2 (11th Cir. 2011) (emphasis
added) (quoting Strategic Income Fund, L.L.C. v. Spear,
Leeds & Kellogg Corp., 305 F.3d 1293, 1295
n.8 (11th Cir. 2002)); Sampson, 453 F. App'x at
865 n.2 (applying Strategic Income and concluding
that court's error in granting a dismissal under Rule
12(c) instead of Rule 12(b)(6) was harmless).
Individual Defendants assert that qualified immunity bars Mr.
Green's federal claims brought against them in their
individual capacities. “The defense of qualified
immunity completely protects government officials performing
discretionary functions from suit in their individual
capacities unless their conduct violates ‘clearly
established statutory or constitutional rights of which a
reasonable person would have known.'” Cottone
v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal
quotation marks omitted) (quoting Gonzalez v. Reno,
325 F.3d 1228, 1233 (11th Cir. 2003)). “To receive
qualified immunity, a government official first must prove
that he was acting within his discretionary authority.”
Cottone, 326 F.3d at 1357.
a two-part test. Under the first step, “the defendant
must [prove that he or she was] performing a function that,
but for the alleged constitutional infirmity, would have
fallen within his legitimate job description.”
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
1266 (11th Cir. 2004). Next, the defendant must prove that he
or she was “executing that job-related
function[.]” Id. at 1267. “Once a
defendant establishes that he was acting within his
discretionary authority, the burden shifts to the plaintiff
to show that the defendant is not entitled to qualified
immunity.” Cottone, 326 F.3d at
2009, the Supreme Court had required a two-part inquiry to
determine the applicability of qualified immunity, as
established by Saucier v. Katz, 533 U.S. 194, 201,
121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001), modified in
application by Pearson v. Callahan, 555 U.S. 223, 227,
129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009) (holding that
“Saucier procedure should not be regarded as
an inflexible requirement”). Under the Saucier
test, “[t]he threshold inquiry a court must undertake
in a qualified immunity analysis is whether [the]
plaintiff's allegations, if true, establish a
constitutional violation.” Hope v. Pelzer, 536
U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002).
under the plaintiff's allegations, the defendants would
have violated a constitutional right, “the next,
sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358
(quoting Saucier, 533 U.S. at 201, 121 S.Ct. at
2156). The “clearly established” requirement is
designed to assure that officers have fair notice of the
conduct which is proscribed. Hope, 536 U.S. at 739,
122 S.Ct. at 2515. This second inquiry ensures “that
before they are subjected to suit, officers are on notice
their conduct is unlawful.” Saucier, 533 U.S.
at 206, 121 S.Ct. at 2158.
“unlawfulness must be apparent” under preexisting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct.
3034, 3039, 97 L.Ed.2d 523 (1987) (citing Malley v.
Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98,
89 L.Ed.2d 271 (1986)). Therefore, a temporal requirement
exists related to this inquiry. More particularly, a
plaintiff must show that a reasonable public officer would
not have believed her actions to be lawful in light of law
that was clearly established at the time of the purported
violation. See Anderson, 483 U.S. at 639, 107 S.Ct.
at 3038 (“[W]hether an official protected by qualified
immunity may be held personally liable for an allegedly
unlawful official action generally turns on the
‘objective legal reasonableness' of the action[, ]
assessed in light of the legal rules that were ‘clearly
established' at the time it was taken[.]”)
(emphasis added) (citation omitted); Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160
L.Ed.2d 583 (2004) (“If the law at that time
did not clearly establish that the officer's conduct
would violate the Constitution, the officer should not be
subject to liability or, indeed, even the burdens of
litigation.”) (emphasis added); Brosseau, 543
U.S. at 198, 125 S.Ct. at 599 (“Because the focus is on
whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of
the law at the time of the conduct.”)
(emphasis added); see also Johnson v. Clifton, 74
F.3d 1087, 1093 (11th Cir. 1996) (“We know of no
[preexisting] case which might have clearly told Clifton that
he could not take the disciplinary action indicated by an
investigation which was initiated before he even knew about
the allegedly protected speech, and in circumstances where
the public concern implication was doubtful.”).
the Saucier framework was made non-mandatory by the
Supreme Court in Pearson, 555 U.S. at 236, 129 S.Ct.
at 818, in which the Court concluded that, “while the
sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as
mandatory.” Thus, “judges of the district courts
and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at
the Supreme Court's modification of
Saucier's analytical process, the substantive
analysis remains unchanged; an officer is entitled to
qualified immunity protection as long as he “could have
believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116
L.Ed.2d 589 (1991).Therefore, to deny immunity, a plaintiff
must affirmatively demonstrate that “no reasonably
competent officer would have” acted as the public
official did. Malley v. Briggs, 475 U.S. 335, 341,
106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
determining whether the plaintiff meets this burden in the
context of a motion to dismiss, the court is guided by the
Eleventh Circuit's recent holding in Randall v.
Scott, 610 F.3d 701 (11th Cir. 2010), which clarifies
that the heightened pleading rule no longer
applies to civil rights cases in which a qualified
immunity defense is asserted:
While Swann, GJR, and Danley
reaffirm application of a heightened pleading standard for
§ 1983 cases involving defendants able to assert
qualified immunity, we agree with Randall that those
cases were effectively overturned by the Iqbal court.
Pleadings for § 1983 cases involving defendants who are
able to assert qualified immunity as a defense shall now be
held to comply with the standards described in
Iqbal. A district court considering a motion to
dismiss shall begin by identifying conclusory allegations
that are not entitled to an assumption of truth-legal
conclusions must be supported by factual allegations. The
district court should assume, on a case-by-case basis, that
well pleaded factual allegations are true, and then determine
whether they plausibly give rise to an entitlement to relief.
. . .
After Iqbal it is clear that there is no
“heightened pleading standard” as it relates to
cases governed by Rule 8(a)(2), including civil rights
complaints. All that remains is the Rule 9 heightened
Randall, 610 F.3d at 709-10 (emphasis added)
Mr. Green's Factual Allegations
have indicated that they dispute many of Mr. Green's
allegations. (Doc. 47-1 at 5). However, at the pleadings stage,
the court must accept Mr. Green's well-pleaded facts as
true. Accordingly, the following factual allegations are
taken directly from Mr. Green's Corrected Repleaded
Complaint (subject only to some minimal modifications to give
context to the court's analysis).
a recipient of federal funding. (Doc. 29 ¶ 4). JSU has a
Music Department and a marching band named the
“Marching Southerners Marching Band”
(“MSMB”). (Doc. 29 ¶¶ 4, 5, 13, 14).
Bodiford works for JSU's Music Department, is the MSMB
band director, and has authority over the band program. (Doc.
29 ¶ 5). Dr. Bodiford has substantial control over the
harassers, including the context in which the harassment
occurred, and has authority to take remedial and disciplinary
action. (Doc. 29 ¶ 5).
Probst is a JSU employee and trumpet instructor in the Music
Department. (Doc. 29 ¶ 6). Dr. Probst has oversight and
supervision of the trumpet section and the authority to take
remedial and disciplinary action against the harassers. (Doc.
29 ¶ 6). Dr. King, the Vice President of JSU, is a
supervisory official and in a position to address Mr.
Green's complaint(s) at the time of the actions alleged.
(Doc. 29 ¶ 7).
King, Bodiford, and Probst are “appropriate
officials” for purposes of receiving complaints under
Title VI as defined by the 2016 JSU Handbook. (Doc. 29
¶¶ 5-7). Mr. Knauss and Mr. Waits (who Mr. Green
has sued) were members of the MSMB's leadership council
and/or section leaders. (Doc. 29 ¶¶ 8, 9).
MSMB's leadership hierarchy consists (in descending rank
order) as follows: 1) the Director of Bands, 2) instructional
staff; 3) Secretary of the University Bands; 4) Leadership
Council (includes all instructors and section leaders); 5)
the Drum Majors, 6) the “section leaders” (aka
“section leads”) - e.g. student leaders of a
respective instrumental section. (Doc. 29 ¶ 19).
time prior to 2016 did JSU have a policy (at least none that
was publicized to students) defining and prohibiting racial
and/or retaliatory harassment (whether peer-on-peer, or
faculty-on-peer) and explaining procedures for reporting and
resolving complaints of racial or retaliatory harassment.
(Doc. 29 ¶ 13). Likewise, other than a broad statement
of support for nondiscrimination, JSU had no published
procedures for reporting and resolving complaints of
invidious discrimination or retaliation. (Doc. 29 ¶ 13).
The DOE Office of Civil Rights concluded as much following an
investigation in 2014. Id.
to the MSMB Handbook, authored by Dr. Bodiford, as Director
he is “responsible for the total band program.”
(Doc. 29 ¶ 16). Accordingly, Dr. Bodiford determines the
rules, policies, structure, membership and organization of
MSMB. Id. Although Dr. Bodiford relies upon a
hierarchical, chain-of-command structure --consisting of
instructors, students and staff with delegated authority over
particular functions - to run the program, he retains plenary
authority to “remove anyone from the program for any
reason ….” Id. As the penultimate
leader of MSMB, Dr. Bodiford sets the tone and culture of the
Bodiford requires that MSMB members follow a
“Leadership Model” that emphasizes a
“strict chain of command.” (Doc. 29 ¶ 18).
Specifically, MSMB is organized as a top-down hierarchy, with
new initiates - called “slugs”-occupying the
lowest rank in this pecking order. Id. Under the
chain-of-command model, a band member is required to submit
any complaint or request, including a complaint of
discrimination, to his immediate superior, even if the
immediate superior is the cause of the complaint.
Id. New initiates are indoctrinated into this rigid
system on their first day of mandatory band camp, and its
importance is impressed upon them continuously. (Doc. 29
¶ 18). To breach the chain-of-command is regarded as
virtually unthinkable. (Doc. 29 ¶ 18).
Bodiford delegates to section leads absolute authority to
manage and supervise their section members and enforce his
policies. (Doc. 29 ¶ 21). This includes authority to
convene and supervise practice sessions, to grant or deny
requests for leaves of absence, to evaluate performance of
individual members and decide their rank and placement within
the line; to grade members thus determining whether they
receive academic credit for band class; to address complaints
of discrimination; to discipline members; to administer the
section's respective social media platforms, including
the respective section's Facebook page; to assign solo
opportunities; to supervise the section during mandatory band
camp; and to assign other tasks and duties. Id.
Section leads serve as employees and agents of Dr. Bodiford
and, by extension, of JSU. Id.
Green's Student-on-Student Racial Harassment
Green auditioned for MSMB in August 2011, was awarded two
music scholarships from JSU, officially enrolled in JSU for
the 2011-112 academic year, and became a member of MSMB
assigned to the trumpet section or the “Southerners
Trumpet Line” (“STL”). (Doc. 29 ¶ 26).
Mr. Green also attended band camp at JSU in August 2011.
(Doc. 29 ¶ 28). Dr. Bodiford was present at band camp.
during band camp that Mr. Green, then only 17 years old, was
first exposed to the racially hostile climate that permeates
STL. (Doc. 29 ¶ 30). Specifically, during this two-week
program, section leads and veteran members, all of them
white, ridiculed and taunted Mr. Green on the basis of his
race and color. Id. This included repeatedly calling
him “nigger”, and making racist jokes that
publicly humiliated him in front of the overwhelmingly white
section members and new recruits. Id. STL members
who engaged in this abusive treatment told Jalen it was an
STL “tradition” - ostensibly employed to
“break” incoming freshman (known in band parlance
as “slugs”) of “racial sensitivity.”
(Doc. 29 ¶ 32). Several veteran members drove cars
affixed with the “rebel flag” at the back.
Bodiford was within earshot on several occasions when STL
members referred to Jalen in racial epithets. (Doc. 29 ¶
33). He also was in a position to observe the confederate
flag on cars driven by members on campus. Id. He did
nothing to stop any of this. Id.
Green continued to endure taunts, “jokes” and
epithets, including being regularly referred to as
“nigger” or “nigga”. (Doc. 29 ¶
34). As a “slug” at the bottom of the pecking
order, in an overwhelmingly white organization, run by white
leaders, and headed by a white Director that required him to
perform “Dixie” and follow a chain-of-command
that effectively silenced him, Mr. Green simply endured this
humiliation by focusing on his music. Id. Two other
African American “slugs” dropped out after their
first year. Id.
examples of statements made by white band members and section
leads include, but are not limited to:
a. Routinely referring to African Americans, including Mr.
Green, as “nigger” or “nigga”;
b. Routinely comparing African Americans to
c. Told to “go pick cotton because it doesn't
matter what black people think” in response to Mr.
Green expressing an opinion;
d. Told Mr. Green that he was only able to play as well as he
did “because of his big black lips.”
e. Admonished by section leads if Mr. Green was late for a
practice that he was “running on black people