Ex parte Wilcox County Board of Education and Lester Turk, Donald McLeod, Joseph Pettway, Jr., and Shelia Dortch, in their individual and official capacities as members of the Wilcox County Board of Education
Wilcox County Board of Education and Lester Turk, Donald McLeod, Joseph Pettway, Jr., and Shelia Dortch, in their individual and official capacities as members of the Wilcox County Board of Education, and Timothy Irvin Smiley and Roshanda Jackson, in their individual and official capacities as teacher and principal, respectively, of J.E. Hobbs Elementary School In re: Kimberly Perryman, as guardian and next friend of R.M., a minor
(Wilcox Circuit Court, CV-17-4)
PETITION FOR WRIT OF MANDAMUS
Wilcox County Board of Education ("the Board"), and
Board members Lester Turk, Donald McLeod, Joseph Pettway,
Jr., and Shelia Dortch (hereinafter referred to collectively
as "the Board members"), petition this Court for a
writ of mandamus directing the Wilcox Circuit Court to vacate
its order denying their motion to dismiss the claims against
them based on immunity and to enter an order granting that
motion. We grant the petition in part and deny it in part.
February 6, 2017, Kimberly Perryman, as guardian and next
friend of her minor son, R.M., sued the Board, Roshanda
Jackson, and Timothy Irvin Smiley. Jackson was the principal
at J.E. Hobbs Elementary School in Camden, Alabama -- a part
of the Wilcox County school system -- and Smiley was a
teacher at the elementary school at the time of the alleged
events. Perryman alleged that on March 1, 2016, Smiley,
"in a fit of rage and unprovoked, did lift the Plaintiff
R.M. and slam him down upon a table, with such force as to
break said table." Perryman further alleged in her
rendition of the facts that "Smiley was in the habit of
continuously and repeatedly using harsh, physical and
otherwise inappropriate tactics on the students in his
class" and that "Smiley's behavior was known or
should have been known to the Principal Defendant and the
School Board Defendant." Perryman asserted that
Jackson had "prior knowledge of the violent and
inappropriate behaviors of Defendant Smiley prior to
Smiley's violent assault upon Plaintiff R.M." but
that no disciplinary action was ever taken against Smiley.
Perryman also asserted that, despite the "assault"
Smiley committed upon R.M., the Board "failed to take
any action whatsoever against the Defendant Smiley."
Perryman added that, "despite [the] Board's policies
and procedures regarding protecting students from assault,
Defendant Jackson, and the Wilcox County Board of Education
neither reprimanded nor disciplined Defendant Smiley."
Perryman alleged that R.M. suffered physical pain and mental
anguish as a result of Smiley's "violent
assault" upon him and that R.M. had to receive
psychological counseling because of the incident. Indeed,
Perryman alleged that, "[s]ince the assault upon the
Plaintiff R.M., R.M. has been in an almost noncommunicative
state" and that "[h]is emotional debilitation is
likely permanent." Perryman further asserted that
"R.M.'s mental and physical conditions have been
directly caused and/or exacerbated by a systematic failure of
the Defendant Jackson, and the Wilcox County School Board to
supervise, discipline, suspend and reassign teachers, like
Defendant Smiley who showed a pattern and practice of abusive
and criminal behavior towards their students, and who posed a
real and immediate danger to said student population."
asserted claims of assault and battery and intentional
infliction of emotional distress against Smiley; claims of
negligence and negligent/wanton hiring, training, retention,
and supervision against Jackson; and a claim of negligence
against the Board. Specifically, the negligence claim against
the Board stated: "The ... Wilcox County Board of
Education negligently breached [its] dut[y] to R.M. by
failing to supervise, discipline or remove if necessary, the
Defendant teacher [Timothy Smiley], thereby placing the
Plaintiff R.M. in harm's way."
listed several remedies in the "Prayer for Relief"
section of her complaint:
"a. Declare the conduct engaged in by the Defendants to
be in violation of Plaintiff RM's rights and Alabama law;
"b. Enter appropriate declaratory and injunctive relief;
"c. Award Plaintiff R.M. compensatory damages against
the Defendants, in an amount that will fully compensate him
for the physical injuries, mental distress, anguish, pain,
humiliation, embarrassment, suffering and concern that he has
suffered as a direct and/or proximate result of the statutory
and common law violations as set out herein;
"d. Enter a judgment against all the Defendants, save
the Wilcox County School Board, for such punitive damages as
will properly punish them for the constitutional, statutory
and common law violations perpetrated upon Plaintiff as
alleged herein, in an amount that will serve as a deterrent
to Defendants and others from engaging in similar conduct in
March 15, 2017, the Board filed a motion to dismiss
Perryman's action, asserting State immunity under Art. I,
§ 14, Ala. Const. 1901, as one of its defenses.
24, 2017, Perryman filed an amended complaint in which she
added the Board members as defendants in both their official
and individual capacities. In the amended complaint, Perryman
asserted, verbatim, the same claims she had asserted in her
original complaint, including her negligence claim against
the Board. None of the claims specifically mentioned the
Board members. The amended complaint requested the same
relief as the original complaint.
August 3, 2017, the Board and the Board members filed a
motion to dismiss the amended complaint. Once again, State
immunity was asserted as a defense on behalf of the Board,
and it was also asserted as a defense for the Board members
in their official capacities. The motion to dismiss also
asserted that the Board members were entitled to State-agent
immunity in their individual capacities for any claims
asserted against them.
August 9, 2017, Perryman filed a response in opposition to
the motion to dismiss the amended complaint. Perryman
appeared to argue in that response that the defenses of State
immunity and State-agent immunity were not available in this
case because an assault had occurred that was committed by
someone who Jackson knew, and the Board should have known,
had a propensity for violence.
August 9, 2017, Perryman filed a second amended complaint.
The second amended complaint contained the same factual
allegations and asserted the same state-law claims as the
previous two complaints. It did not name the Board members in
any of the state-law claims. However, the second amended
complaint also added a claim alleging a "violation of
[R.M.'s] federal civil rights" against all the
defendants, including the Board and the Board members, under
42 U.S.C. § 1983 ("the § 1983 claim").
Specifically, the § 1983 claim stated:
"Count 5 "Violation of Federal Civil
Rights (As to all named Defendants)
"51. ... 42 U.S.C.A. § 1983 provides that:
"'Every person who, under color of any statute,
ordinance, regulation, custom, or usage of any State or
Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or any other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress ....'
"52. The Defendants violated various dimensions of the
U.S. Constitution and of federal law as they relate to
[R.M.], and as are set forth in the counts in this Complaint.
"53. The defendants' violations of such provisions
were done with the defendants acting under color of state
law, in their capacities as school district and
administrative/supervisory employees of the district acting
in the scope of their employment.
"54. As a direct and proximate result of the
Defendants' violations of [R.M.'s] federal civil
rights, [R.M. has] suffered financial, physical, and
"55. As a direct and proximate result of the
Defendants' conduct, [R.M.] suffered the injuries
second amended complaint requested the same relief as did the
previous two complaints.
August 21, 2017, the Board and the Board members filed a
motion to dismiss the second amended complaint. Once again,
they asserted State immunity and State-agent immunity as
defenses to Perryman's state-law claims. The Board and
the Board members also contended that the amendments to
Perryman's original complaint were nullities because,
they said, the original complaint, which named only the Board
and none of the Board members as defendants, had failed to
invoke the subject-matter jurisdiction of the circuit court.
With respect to the § 1983 claim, they argued, among
other things, that the Board was entitled to immunity under
the Eleventh Amendment to the United States Constitution and
that the Board members in their individual capacities were
entitled to federal qualified immunity.
November 16, 2017, the circuit court held a hearing on the
motion to dismiss filed by the Board and the Board members.
On March 21, 2018, the circuit court entered an order denying
the motion to dismiss the second amended complaint. In the
order, the circuit court did not explicate the reasons for
April 13, 2018, the Board and the Board members filed a
motion to stay the circuit court's ruling in anticipation
of their filing a petition for a writ of mandamus concerning
the March 21, 2018, order denying their motion to dismiss the
second amended complaint. On the same date, the circuit court
granted the motion to stay. The Board and the Board members
subsequently filed their petition for a writ of mandamus on
May 2, 2018.
Standard of Review
Ex parte Branch, 980 So.2d 981 (Ala. 2007), this
"The denial of a motion for a summary judgment or of a
motion to dismiss grounded on immunity is reviewable by a
petition for a writ of mandamus. Ex parte Rizk, 791
So.2d 911, 912 (Ala. 2000). Ex parte Haralson, 853
So.2d 928, 931 n.2 (Ala. 2003) ('The denial of a motion
to dismiss or a motion for a summary judgment generally is
not reviewable by a petition for writ of mandamus, subject to
certain narrow exceptions, such as the issue of immunity.
Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d
758, 761-62 (Ala. 2002).'). This Court has stated:
"'A writ of mandamus is an extraordinary remedy
available only when there is: "(1) a clear legal right
to the order sought; (2) an imperative duty upon the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) the properly
invoked jurisdiction of the court." Ex parte BOC
Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001).'
"Ex parte Nall, 879 So.2d 541, 543 (Ala.
2003)." 980 So.2d at 984.
"In reviewing the denial of a motion to dismiss by means
of a mandamus petition, we do not change our standard of
review. [Ex parte Butts, 775 So.2d 173, 176 (Ala.
2000)]; see also [Ex parte] Wood, 852 So.2d [705, ]
709 [(Ala. 2002)] (review of a denial of a summary-judgment
motion grounded on a claim of immunity by means of a petition
for a writ of mandamus does not change the applicable
standard of review). Under Rule 12(b)(6), Ala. R. Civ. P., a
motion to dismiss is proper when it is clear that the
plaintiff cannot prove any set of circumstances upon which
relief can be granted. Cook v. Lloyd Noland Found.,
Inc., 825 So.2d 83, 89 (Ala. 2001). '"In making
this determination, this Court does not consider whether the
plaintiff will ultimately prevail, but only whether [she] may
possibly prevail."' Id. (quoting Nance
v. Matthews, 622 So.2d 297, 299 (Ala. 1993)). We
construe all doubts regarding the sufficiency of the
complaint in favor of the plaintiff. Butts, 775
So.2d at 177."
Ex parte Haralson, 853 So.2d 928, 931 (Ala. 2003).
Board and the Board members contend that they are entitled to
immunity -- both state and federal -- from the claims
asserted against them by Perryman. They also argue that the
circuit court lacked subject-matter jurisdiction over the
original complaint and that, therefore, it should have
disallowed Perryman's amendments to the complaint and
dismissed her action in its entirety. We will first address
the Board and Board members' immunity arguments with
respect to the state-law claims and the § 1983 claim.
Then we will examine the contention that the circuit court
lacked subject-matter jurisdiction over the original
Immunity as to ...