Ex parte Wilcox County Board of Education

          (Wilcox Circuit Court, CV-17-4)

          PETITION FOR WRIT OF MANDAMUS

          MENDHEIM, JUSTICE.

         The 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.

         I. Facts

         On 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."

         Perryman 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."

         Perryman 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 the future;

"...."

         On 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.

         On July 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.

         On 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.

         On 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.

         Also on 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 emotional injuries.

"55. As a direct and proximate result of the Defendants' conduct, [R.M.] suffered the injuries described herein."

         The second amended complaint requested the same relief as did the previous two complaints.

         On 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.

         On 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 its ruling.

         On 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.

         II. Standard of Review

         In Ex parte Branch, 980 So.2d 981 (Ala. 2007), this Court stated:

"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).

         III. Analysis

         The 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 complaint.

         A. Immunity as to ...