Montgomery v. Hugine

          MEMORANDUM OPINION AND ORDER

          LILES C. BURKE UNITED STATES DISTRICT JUDGE

         Defendants 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.^[1] 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.

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff's 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.

         Plaintiff's appointment to the Board and to board committees

         Plaintiff 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. (Id.).

         Plaintiff 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.).

         State audit report and preceding events

         From 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. (Id.).

         In 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 6).^[2] 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 press. (Id.).

         Dr. Hugine's rebuttal of the findings in the state audit report

         Plaintiff 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. (Id.).

         In 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. (Id.).

         Second audit report

         According 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 12-13).

         Dr. Hugine's failure to administer the Trust for Education Excellence

         Plaintiff “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).

         Code of conduct in updated bylaws

         In 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.).

         Plaintiff's requests for documents

         In 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.).

         Plaintiff's concerns regarding ineligibility of certain board members

         Plaintiff 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.).

         Renewal of Dr. Hugine's contract

         In 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. (Id.).

         Alleged acts of retaliation

         Plaintiff 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. (Id.).

         Additionally, 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.).

         Allegations of harassment by unnamed people

         Plaintiff 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.” (Id.).

         Plaintiff 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.).

         II. STANDARD OF REVIEW

         Rule 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)).

         Rule 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 ...