United States District Court, N.D. Alabama, Southern Division
CLIFTON R. BUSH, SR., Plaintiff,
DEBORAH FRAZIER, et al., Defendants.
MEMORANDUM OPINION 
G. CORNELIUS U.S. MAGISTRATE JUDGE
before the undersigned is the defendants' motion to
dismiss the plaintiff's amended complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (Doc. 27). For the reasons discussed below, the
motion is due to be granted, and this action is due to be
plaintiff, Clifton R. Bush, Sr., and his wife divorced in
December 2009. (Doc. 19 at 14). The Circuit Court of
Jefferson County, Alabama ordered the plaintiff to pay
$743.00 per month in child support. (Id. at 17). The
court modified the plaintiff's child support obligation
in October 2012. (Id. at 19). The modification
reduced the plaintiff's child support obligation to
$586.75 per month, retroactive to March 1, 2011.
October or November 2017 and March 2018, the Alabama
Department of Human Resources (“ADHR”) garnished
the plaintiff's account(s) at Regions Bank to collect
child support payments he owed. (Id. at 7, 11).
According to the plaintiff, the amount garnished was based on
his pre-modification obligation. (Id. at 11). The
plaintiff alleges Ashley Lee, an ADHR employee, initiated the
garnishment without conducting an investigation, submitted
incorrect documents to Regions Bank, and otherwise mishandled
the matter. (Id. at 7, 12). The plaintiff alleges
Deborah Frazier (Lee's supervisor), Aminha Roussell
(Assistant Director of ADHR's Child Support Enforcement
Program), and Lathesia Saulsberry (Director of ADHR's
Child Support Enforcement Program) failed to review or
wrongfully approved documents Lee submitted to Regions Bank
in connection with the garnishment. (Id. at 7,
March 2018, ADHR moved to intervene in the plaintiff's
domestic relations case and set aside an agreement into which
the plaintiff and his former wife had entered. (Id.
at 7-8). The plaintiff had to travel to Birmingham, Alabama
from Galveston, Texas for a hearing on the motion.
(Id. at 8). During the hearing, ADHR made an oral
motion to dismiss, which the court granted. (Id.).
The plaintiff alleges ADHR and the defendants had financial
interests in his domestic relations proceedings.
the hearing, the plaintiff spoke with an agent and/or
financial representative of the State of Alabama, who
reviewed documents presented to him by the plaintiff, stated
“this was not right, ” and gave him contact
information for an attorney. (Id.). The attorney
reviewed the documents and told the plaintiff “to talk
to someone in Montgomery to resolve the matter.”
about April 30, 2018, the plaintiff met with Saulsberry and
Roussell. (Id. at 8-9). He presented documents
related to his divorce proceedings to them. (Id. at
9). Roussell said ADHR did not have the court documents and
made copies. (Id.). Saulsberry and Roussell then
coerced the plaintiff into signing a “review paper,
” stating that was the only way for his money to be
on the foregoing factual allegations, the plaintiff claims
ADHR, Lee, Frazier, Roussell, and Saulsberry violated his
Fourth, Fifth, Eighth, and Fourteenth Amendment rights under
the U.S. Constitution; 15 U.S.C. §§ 1672(c) and
1673(c), which are garnishment provisions of the Consumer
Credit Protection Act; 18 U.S.C. § 666, which
criminalizes theft or bribery concerning programs receiving
federal funds; 42 U.S.C. § 1983, which prohibits the
deprivation of federal rights by “persons” acting
under color of state law; 45 C.F.R. §§ 302.34 and
302.50(e), which set out state plan requirements for child
support enforcement programs under Title IV-D of the Social
Security Act; Ala. Code § 13A-8-2, which criminalizes
theft of property; and Ala. Code § 13A-8-3, which
provides that theft of property exceeding $2, 500 in value
constitutes first-degree theft of property, a Class B felony.
(Id. at 7-13). He also alleges Frazier, Roussell,
and Saulsberry failed to properly train employees under their
supervision. (Id. at 7, 12). He requests a variety
of monetary damages. (Id. at 11-13).
Standard of Review
under Rule 12(b)(6) is appropriate if a complaint does not
“contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
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.
(citing Twombly, 550 U.S. at 556). “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. “[L]abels and conclusions, ”
“a formulaic recitation of the elements of a cause of
action, ” and “naked assertion[s] devoid of
further factual enhancement” are insufficient.
Id. (quoting Twombly, 550 U.S. at 555, 557)
(internal quotations omitted). “Pro se
pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
“This leniency, however, does not require or allow
courts to rewrite an otherwise deficient pleading in order to
sustain an action.” Thomas v. Pentagon Fed. Credit
Union, 393 Fed.Appx. 635, 637 (11th Cir. 2010).
the defendants purport to bring their motion exclusively
pursuant to Rule 12(b)(6), their asserted grounds for
dismissal implicate Rule 12(b)(1), as well. Dismissal is
appropriate under Rule 12(b)(1) where subject matter
jurisdiction is lacking. See Fed. R. Civ. P.
12(b)(1). For example, “a dismissal on sovereign
immunity grounds should be pursuant to Rule 12(b)(1) because
no subject-matter jurisdiction exists.” Thomas v.
U.S. Postal Serv., 364 Fed.Appx. 600, 601 n.3 (11th Cir.
2010). Additionally, dismissal pursuant to Rule 12(b)(1) for
lack of subject matter jurisdiction is appropriate to the
extent a plaintiff asserts a claim under a statute that
affords no private right of action. See Abner v. Mobile
Infirmary Hosp., 149 Fed.Appx. 857, 858-59 (11th Cir.
2005) (holding district court properly found subject matter
jurisdiction lacking where statute at issue provided no
private right of action).
motion to dismiss for lack of subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1) can be based upon either a
facial or factual challenge to the complaint.”
McElmurray v. Consol. Gov't of Augusta-Richmond
County, 501 F.3d 1244, 1251 (11th Cir. 2007).
A “facial attack” on the complaint requires the
court merely to look and see if the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in his complaint are taken as true for
the purposes of the motion. “Factual attacks, on the
other hand, challenge the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings, such as testimony and
affidavits are considered.
Id. (internal quotation marks and citation omitted).
The defendants have not submitted evidence outside the
pleadings to support their arguments with respect to subject
matter jurisdiction. Therefore, they have made a facial attack
on the amended complaint.
Section 1983 Claims
42, Section 1983 of the U.S. Code “ ‘is not
itself a source of substantive rights.'” Graham
v. Connor, 490 U.S. 386, 393-94 (1989) (quoting
Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). It
provides a private right of action to vindicate violations of
federal rights elsewhere conferred by the U.S. Constitution
and federal statutes. See Id. (recognizing purpose
of § 1983); Maine v. Thiboutot, 448 U.S. 1, 4-8
(1980) (rejecting argument § 1983 provides cause of
action only for constitutional violations).
the undersigned construes the plaintiff's claim for a
violation of § 1983 as a vehicle for asserting his
claims for violations of various other federal
constitutional, statutory, and regulatory provisions. See
Green v. Pennington, 2006 WL 1553999, at *1 (N.D.Ga. May
30, 2006) (holding claim for violation of § 1983 was
more appropriately viewed as vehicle for bringing claims for
due process and equal protection violations). So construed,
the plaintiff's claims brought pursuant to § 1983
implicate whether the defendants are “persons”
subject to suit under § 1983, as well as sovereign and
qualified immunity. These defenses will be addressed after
consideration of the plaintiff's the failure-to-train
claim against Frazier, Roussell, and Saulsberry.
§ 1983, a supervisor can be held liable for failing to
train his or her employees ‘only where the failure to
train amounts to deliberate indifference to the rights of
persons with whom the [subordinates] come into
contact.'” Keith v. DeKalb Cty., Georgia,
749 F.3d 1034, 1052 (11th Cir. 2014) (quoting City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
“[A] plaintiff alleging a constitutional violation
premised on a failure to train must demonstrate that the
supervisor had ‘actual or constructive notice that a
particular omission in [the] training program causes
[subordinates] to violate citizens' constitutional
rights,' and that armed with that knowledge the
supervisor chose to retain that training program.
Id. (quoting Connick v. Thompson, 563 U.S.
51, 61 (2011)). To establish the requisite actual or
constructive notice, “ ‘[a] pattern of similar
constitutional violations by untrained employees is
ordinarily necessary.'” Id. at 1053
(quoting Connick, 563 U.S. at 62); see also
Belcher v. City of Foley, Alabama, 30 F.3d 1390, 1397-98
(11th Cir. 1994) (“Failure to train can amount to
deliberate indifference when the need for more or different
training is obvious, such as when there exists a history of
abuse by subordinates that has put the supervisor on notice
of the need for corrective measures, and when the failure to
train is likely to result in the violation of a
constitutional right.” (internal citations omitted)).
the plaintiff does not allege a pattern of similar
constitutional violations by untrained employees or any other
facts that would support the inference Frazier, Roussell, or
Saulsberry had actual or constructive notice of a deficiency
in their training of subordinates. Accordingly, to the extent
the plaintiff asserts a failure-to-train claim against these
defendants pursuant to § 1983, that claim is due to be