United States District Court, N.D. Alabama, Northeastern Division
JAMES D. MONTGOMERY, Plaintiff,
DR. ANDREW HUGINE, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE
Dr. Andrew Hugine, Jr. (“Dr. Hugine”),
individually and in his official capacity as president of
Alabama Agricultural and Mechanical University
(“Alabama A&M”), in addition to Jerome
Williams (“Trustee Williams”), Andre Taylor
(“Trustee Taylor”), Chris Robinson
(“Trustee Robinson”), Kevin Ball (“Trustee
Ball”), Perry D. Jones (“Trustee Jones”),
Velma Tribue (“Trustee Tribue”), Dr. Hattie M.
Myles (“Trustee Myles”), and Ginger Harper
(“Trustee Harper”) individually and in their
official capacities as members of the Board of Trustees of
Alabama A&M (collectively, the “Trustees”),
have filed a Motion to Dismiss (doc. 32) pursuant to Rule
12(b)(1) and (b)(6) of the Federal Rules of Civil
Procedure. Plaintiff James D. Montgomery
(“plaintiff”) has filed a response, and
defendants have filed a reply. Therefore, the Motion to
Dismiss is ready for review. For the reasons stated herein,
the Motion to Dismiss is granted.
is member of the Board of Trustees of Alabama A&M (the
“Board”). Plaintiff's lawsuit is based on
what he coins a “campaign of harassment” against
him by Dr. Hugine and the Trustees as a result of plaintiff
engaging in protected speech regarding various issues
involving Alabama A&M. (Doc. 25, p. 8). In particular,
plaintiff asserts, in the operative amended complaint (doc.
25), the following claims: (1) a claim for First Amendment
retaliation pursuant to 42 U.S.C. § 1983 against
defendants in their official and individual capacities; (2) a
defamation claim against defendants in their individual
capacities under Alabama law; and (3) a claim against Trustee
Williams in his individual capacity for violation of Sections
36-25-24 and 36-25-27(a)(4) of the Alabama Code.
allegations in the amended complaint are not in chronological
order. In attempt to more efficiently and clearly address the
parties' arguments, the Court organizes, to the extent
that it can, plaintiff's allegations by topic.
appointment to the Board and to board committees
was appointed to the Board in 2006. (Doc. 25, p. 4). In 2006,
plaintiff was appointed chair of the Business and Finance
Committee, and in 2007 he was appointed chair of Academic
Affairs. (Id.). In 2014, plaintiff was reappointed
to the Board by then governor, Robert Bentley.
(Id.). Plaintiff's term expires in 2020.
alleges that, in 2009 when O.D. Lanier became chairman of the
Board, he was no longer appointed to any board committee.
(Id.). Also, in 2009, Dr. Hugine began to serve as
president of Alabama A&M, and Kevin Rolle was hired as
executive vice president. (Id.).
audit report and preceding events
2009 to 2015, plaintiff alleges that he learned of various
questionable financial expenditures, including a payment of
$6, 500 to Rolle for moving expenses, as well as a $75,
000.00 monthly expense for private auditors. (Doc. 25, p. 5).
Plaintiff questioned these expenditures in board meetings,
outside of board meetings, and with the press.
2014, because of these alleged financial improprieties,
plaintiff requested the state chief examiner of public
accounts audit Alabama A&M's finances.
(Id.). A state audit report was released in January
2015. The state audit report found that the receipt for $6,
500 submitted by Rolle was fraudulent. (Id. at
The state audit report also made fourteen findings, as well
as some recommendations. (Id. at 6-7). The state
audit report was given to the Alabama Attorney General.
(Id. at 6). Plaintiff asserts that before and after
the state audit report, he spoke about this issue to the
Board, Dr. Hugine, the Alabama A&M legal office, and the
Hugine's rebuttal of the findings in the state audit
alleges that Dr. Hugine attempted to rebut the fourteen
findings in the state audit report. (Id. at 7).
Plaintiff publicly objected to this rebuttal. (Id.).
The Board passed a resolution supporting Dr. Hugine's
rebuttal. (Id. at 8). Plaintiff publicly called for
rescission of the resolution, and that the board members who
had voted in favor of the resolution resign. (Id.).
The Board did not take up plaintiff's request.
October 2015, plaintiff contacted the press and the
Governor's office regarding his request that the
resolution be rescinded; plaintiff also spoke out about the
private auditors and related issues with them.
to plaintiff, in January 2016, a second audit report was
issued by state examiners; the second audit report found that
many of the findings issued in the initial audit had not been
corrected. (Doc. 25, p. 12). Plaintiff spoke to the press
about the second audit report. Within that context, plaintiff
asserts that he also spoke about how money had been handled
at Alabama A&M, the lack of alumni members on the Board,
and the power retained by the president. (Id. at
Hugine's failure to administer the Trust for Education
“spoke out” about Dr. Hugine's failure to
administer the Trust for Education Excellence consistent with
the court decree that governed it. (Doc. 25, p. 8).
of conduct in updated bylaws
August 2011, the Board, “against the approval of
Plaintiff, ” updated its bylaws. (Doc. 25, p. 10).
Plaintiff asserts that the bylaws included, for the first
time, a code of conduct applicable to members of the Board.
(Id.). Plaintiff further alleges that the Alabama
Legislature did not authorize the Board to take any action or
exercise authority over its members. (Id.).
Plaintiff raised this issue with the Board, Alabama
A&M's legal counsel, and the press. (Id.).
requests for documents
October 2015, plaintiff requested from Dr. Hugine and Trustee
Taylor, the president pro tempore, a copy of all contracts
that Dr. Hugine had signed and given to members of Alabama
A&M staff. (Doc. 25, pp. 10-11). Additionally, in
December 2015, plaintiff states that he requested
“certain documents of Dr. Hugine in connection with his
ongoing attempt” to hold Dr. Hugine's
administration accountable with respect to finances.
(Id. at 10). Plaintiff was told by Trustee Williams
that he would need to seek approval of all board members
before he would be able to receive the contracts.
(Id. at 11). Plaintiff asserts that his requests
were denied. (Id.).
concerns regarding ineligibility of certain board
raised concerns with the Governor's office and the press
regarding the ineligibility of Trustee Myles and Trustee
Jones to serve on the Board. (Doc. 25, p. 11). Plaintiff
asserts that the response by Dr. Hugine and the “other
members of the Board” was to harass him and accuse him
of operating outside of protocol “by contacting the
Governor's office and others.” (Id. at
11-12). Plaintiff further asserts that “[t]hey”
falsely accused him of not working in a cooperative spirit to
advance the mission of Alabama A&M. (Id.).
Plaintiff asserts that he was ultimately forced to
communicate with the Governor's office and press in an
attempt to get these issues addressed. (Id.).
Plaintiff alleges that Dr. Hugine accused him of being
“harassing and intimidating” by making these
requests for information. (Id.).
of Dr. Hugine's contract
October 2015, Dr. Hugine's contract was renewed over
plaintiff's objections. (Id. at 7). In November
2015, plaintiff complained to the Governor's office and
others regarding the illegal manner in which the contract
renewal was raised in the board meeting on October 30, 2015.
(Id.). The Governor's office looked into the
allegations surrounding the renewal of Dr. Hugine's
contract and requested certain information from the Board.
acts of retaliation
asserts that in January 2016, Trustee Ball published a
memorandum regarding a proposed censure of plaintiff. (Doc.
25, p. 13). In February 2016, plaintiff asserts that the
Board voted on a resolution in favor of censuring him.
(Id.). Plaintiff alleges that these acts were
outside of the Board's authority and done in retaliation
for speaking out on matters of public concern.
plaintiff asserts that Trustee Williams “on behalf of
himself[ , ] the remaining members of
the Board, ” and Dr. Hugine, submitted a letter to the
Alabama Ethics Commission (“AEC”) complaining of
purported ethics violations by plaintiff, including
harassment and false claims that plaintiff demanded that
Alabama A&M “award contracts worth millions of
dollars through a business partner.” (Id.).
Plaintiff avers that these charges were “knowingly and
utterly false, malicious, and wholly unfounded, and
constituted both defamation and a violation of the Alabama
ethics statute.” (Id.).
of harassment by unnamed people
alleges that, due to his speaking out on matters of public
concern, “some of the Board members began a campaign of
harassment against him.” (Doc. 25, p. 8). Plaintiff
asserts that articles were published accusing him of being
against historically black colleges and universities.
(Id. at 9). Plaintiff also states that “he was
falsely accused in the press of trying to close Historic
Black Colleges and Universities in Alabama.”
also alleges that he received forged and false letters from
the AEC accusing him of misconduct in a prior political
campaign. (Id.). After writing to the AEC regarding
the letters, the AEC advised that there were no pending
ethics complaints against him at that time. (Id.).
STANDARD OF REVIEW
12(b)(1) permits a defendant to move to dismiss a complaint
for lack of subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). “Facial challenges to subject matter
jurisdiction are based solely on the allegations in the
complaint.” Carmichael v. Kellogg, Brown & Root
Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009).
“When considering such challenges, the court must, as
with a Rule 12(b)(6) motion, take the complaint's
allegations as true.” Id. (citing Morrison
v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)).
12(b)(6) permits a party to move to dismiss a complaint for,
among other things, “failure to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
When considering a motion to dismiss, the Court must
“accept the allegations in the complaint as true and
constru[e] them in the light most favorable to the
plaintiff.” Mills v. Foremost Ins. Co., 511
F.3d 1300, 1303 (11th Cir. 2008) (quoting Castro v.
Sec'y of Homeland Sec., 472 F.3d 1334, 1336 (11th
Cir. 2006)). To survive a motion to dismiss, “a
complaint must contain sufficient factual matter . . . to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). A claim is facially plausible when “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 679.
“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. “But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting, in part,
Fed.R.Civ.P. 8(a)(2)). Thus, the Supreme Court has
“suggested that courts considering motions to dismiss
adopt a ‘two-pronged approach' in applying these