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DOCUMENT 18

ELECTRONICALLY FILED
4/7/2017 11:47 AM
03-CV-2017-900286.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

WARREN CRAIG POUNCEY )


)
Plaintiff, )
)
v. )
)
MARY SCOTT HUNTER; )
CIVIL ACTION NO.
PHILIP CLEVELAND; )
03-CV-2017-900286
JULIANA TEIXEIRA DEAN; )
JAMES R. WARD; )
SUSAN TUDOR CROWTHER, et al., )
)
Defendants. )

DEFENDANT PHILIP CLEVELANDS MOTION TO DISMISS PLAINTIFFS


COMPLAINT AND BRIEF IN SUPPORT THEREOF

Defendant Dr. Phillip Cleveland hereby moves this Honorable Court to dismiss the

Complaint filed by Plaintiff William Craig Pouncey (Plaintiff) in its entirety for lack of subject

matter jurisdiction, pursuant to Alabama Rule of Civil Procedure 12(b)(1). At all times relevant

to the Complaint, Dr. Cleveland was a constitutional officer of the State of Alabama in his

capacity as Interim State Superintendent of Education. Under the doctrine of absolute sovereign

immunity, this Court lacks subject-matter jurisdiction over him and should dismiss this lawsuit

now. In the alternative, Superintendent Cleveland is also entitled to State-agent immunity, and

this Court should dismiss the Complaint against him for lack of subject matter jurisdiction under

this doctrine as well. Finally, this Court should dismiss all claims against Superintendent

Cleveland under Rule 12(b)(6) of the Alabama Rules of Civil Procedure because the Complaint

wholly fails to state a claim against him upon which relief can be granted. In support of this

motion, Superintendent Cleveland offers the following brief in support.


DOCUMENT 18

INTRODUCTION

Plaintiffs allegations against Superintendent Cleveland amount to little more than the

following: A Board member handed Superintendent Cleveland an anonymous letter,1 which

alleged serious ethics violations against an applicant for the State of Alabamas highest position

in the Department of Education. As he was required to do by statute, Superintendent Cleveland

then gave this letter to his General Counsel and suggested that she look into it and forward it to

the Ethics Commission.2 Superintendent Cleveland then discussed this matter with Board

members and with his internal lawyers in person and via e-mail.

The allegations in Plaintiffs Complaint, even taken as true, wholly arise out of actions

Superintendent Cleveland allegedly took during the period he served as the Interim State

Superintendent of Education. See Compl. 3. As such, Superintendent Cleveland has absolute

sovereign immunity and the case must be dismissed now. See Ex parte Retirement Sys. of Ala.,

182 So. 3d 527, 53334 (Ala. 2015) (constitutional officers enjoy absolute sovereign immunity

for executing their official duties because a suit against them is a de facto suit against the State of

Alabama). Moreover, the allegations in the Complaint wholly pertain to discretionary actions

that are plainly within the line and scope of the Superintendents position, i.e., the hiring of

essential personnel. Therefore, the case must also be dismissed because Superintendent
1
Notably, Plaintiff does not allege that Superintendent Cleveland had anything to do with
creating or distributing this anonymous letter.
2
The Complaint attempts to script this exchange for the Court by paraphrasing what the
Superintendent might have said to Ms. Dean at the time, i.e., that Superintendent Cleveland
stated in substance, you are not going to let someone else beat you to the Ethics Commission,
are you? Compl. 27 (emphasis added). Assuming for the sake of this motion only that
Superintendent Cleveland in fact said these words to Ms. Dean, the fact is, this is precisely what
Ala. Code 36-25-17 requires of him as a government agency head. That is, within 10
days, he must file reports with the [ethics] commission on any matters that come to his or her
attention in his or her official capacity which constitute a violation of [the Code of Ethics]. Id.
Plaintiffs attempt to recast Superintendent Clevelands affirmative legal duty as some improper
scheme is transparent at best.
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Cleveland has State-agent immunity. Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000) (A

State agent shall be immune from civil liability in his or her personal capacity when the conduct

made the basis of the claim against the agent is based upon the agents . . . exercising his or her

judgment in the administration of a department or agency of government[s] . . . hiring, firing,

transferring, assigning, or supervising personnel; or . . . exercising judgment in the discharge of

duties imposed by statute, rule, or regulation in . . . educating students.) (emphasis added); see

also Ala. Code 36-1-12 (stating the same).

For the reasons outlined in greater depth below, this Court should dismiss this lawsuit in

its entirety against Superintendent Cleveland for lack of subject matter jurisdiction under Ala. R.

Civ. P. 12(b)(1). In the alternative, Superintendent Cleveland moves this Court to dismiss all

claims against him under Rule 12(b)(6) of the Alabama Rules of Civil Procedure because the

Complaint wholly fails to state a claim against him upon which any relief can be granted.

FACTUAL AND PROCEDURAL BACKGROUND

On April 14, 2016, the Board named Defendant Dr. Phillip Cleveland as the Interim State

Superintendent.3 Compl. 18. On the same day, the Board set out an application timeline for the

selection of the new State Superintendentsetting July 12, 2016 as a date for the possible

selection of the candidate and setting the candidates potential start date [for] August 1, 2016.

Id. On May 18, 2016, Plaintiff Craig Pouncey submitted his application for the job. Compl. 19.

At the July 12, 2016 Board meeting, during which the possible selection of the

candidates was to take place, an anonymous letter was delivered to some of the members of the

Board stating that Plaintiff had used his office for personal gain, circumvented bid laws, broken

3
The Board also voted 5-4 that the Interim State Superintendent would not be eligible to serve as
State Superintendent. Compl. 17.

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the revolving door prohibition, plagiarized his doctoral dissertation and misused state resources

to do so. Compl. 25. Two days later, on July 14, 2016, a member of the Board, who had

received that anonymous letter, met Superintendent Cleveland and gave him her copy of the

anonymous letter. Compl. 26. Superintendent Cleveland then delivered the anonymous letter

to Julianna Dean, the Alabama State Department of Educations General Counsel, and

encouraged her to look into the matter and to send the letter to the Ethics Commission. Compl.

27.

According to the Complaint, on the same day, Board Member Mary Scott Hunter (Ms.

Hunter) independently informed the Executive Director of the Ethics Commission about the

existence of the allegations in the anonymous letter, and, shortly thereafter, the General Counsel

of the Ethics Commission called Ms. Dean to inquire about it. Ms. Dean then allegedly hand-

delivered a copy of the letter to the Ethics Commission, as was her statutory duty. Compl. 29-

30.

Eight days later, on July 22, 2016, the Associate General Counsel for the Alabama State

Department of Education, James Ward, sent a memorandum to Ms. Dean outlining four available

options for Superintendent Cleveland to consider when handling the anonymous letternot only

as to the Departments duty to report the letter to the Ethics Commission under Ala. Code 36-

25-17, but also as to the letters impact on Plaintiffs suitability for the position of

Superintendent. Indeed, the Board had been given a letter suggesting that Plaintiff had used his

office for personal gain, circumvented bid laws, broken the revolving door prohibition, misused

state funds, and plagiarized his doctoral thesis. In possession of this information and in

appointing someone to the position of State Superintendent of Education, the Board possesses a

legal duty to choose someone of good moral character, with academic and professional

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education equivalent to graduation from a standard university or college . . . sufficient to qualify

him to perform the duties of his office. See Ala. Code 16-4-1; see also Compl. 33; Exhibit A

thereto. Because of this, during the course of the Boards due diligence in looking into this

matter, according to the Complaint, Superintendent Cleveland discussed the issues surrounding

Plaintiffs application with Board attorneys.4

The options in the memorandum from Mr. Ward to Ms. Dean included (a) relying on the

results from the Ethics Commissions investigation; (b) requesting Samford University, which

awarded Plaintiff his doctorate, to conduct an independent investigation and to report back to the

Board; (c) employing an outside party to conduct an investigation on behalf of the Board; and (d)

requesting Plaintiff to respond the allegations. See Exhibit A. Because the selection of the State

Superintendent [was] too urgent to wait for a resolution from either the State Ethics Commission

or Samford University, Mr. Ward recommended that the Board adopt options (c) and (d)to

employ an outside party to conduct an independent investigation and to allow Plaintiff the

opportunity to respond. Id.

Plaintiff was indeed afforded the opportunity to address the allegations in the anonymous

letter, and, on August 2, 2016, he provided Ms. Dean with a letter and supporting documentation

purporting to refute the allegations in the anonymous letter. Compl. 35; Exhibit B.

Ultimately, however, on August 11, 2016, Mr. Michael Sentance was selected to be the

next State Superintendent. Compl. 43. This lawsuit followed.

4
The Complaint attempts to color these exchangesciting no specific language whatsoeverby
alleging that all defendants, including Superintendent Cleveland, had numerous discussions and
emails where they discussed various options to disparage [Plaintiff] and to make the false
allegations against him public. Compl. 34. It must be noted that, at the time, none of the
Board members had any way of knowing whether the accusations were false or notand indeed,
this was the purpose of the outside, independent investigation they had recommended take place.

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STANDARD OF REVIEW

Under the doctrine of sovereign immunity, this Court must dismiss the claims against

Superintendent Cleveland for lack of subject-matter jurisdiction under Rule 12(b)(1) of the

Alabama Rules of Civil Procedure. Ex parte Alabama Dep't of Mental Health & Retardation,

837 So. 2d 808, 810 (Ala. 2002) (quoting Alabama State Docks Terminal Ry. v. Lyles, 797 So.2d

432, 435 (2001): This constitutionally guaranteed principle of sovereign immunity, acting as a

jurisdictional bar, precludes a court from exercising subject-matter jurisdiction. Without

jurisdiction, a court has no power to act and must dismiss the action.); see also Liberty Nat. Life

Ins. v. Univ. of Ala. Health Servs. Found., 881 So. 2d 1013, 1017 (Ala. 2013) (motions to

dismiss should be granted only if a plaintiff could prove [no] set of circumstances that would

entitle [him] to relief.); accord Ex parte Alabama Dept of Transp., 978 So. 2d 718, 720 (Ala.

2007) (applying the same standard of review to a motion to dismiss under Rule 12(b)(1) for lack

of subject-matter jurisdiction).

Even if Superintendent Cleveland were not entitled immunity, this Court must dismiss

Plaintiffs claims against him because the allegations, even taken as true, fail to state a claim

upon which relief can be granted under Rule 12(b)(6) of the Alabama Rules of Civil Procedure.

Century Tel of Alabama, LLC v. Dothan/Houston County Communications District, 197 So. 3d

456, 460 (Ala. 2015) (quoting Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993) (a motion to

dismiss pursuant to Rule 12(b)(6) must be granted when it appears that the plaintiff could not

prove any set of circumstances that would entitle him to relief even when the allegations of

the complaint are viewed most strongly in the pleaders favor.)).

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AR
RGUMENT

I. This
T Court la acks subject-matter jurrisdiction ovver claims b
based entireely upon actts
th
hat occurred
d while Dr. Cleveland was
w the Inteerim State S Superintenddent of
Education.
E

a. Superrintendent Cleveland
C has
h sovereig n immunityy as a constiitutional offficer.

Article
A 1, 14
1 of the Alabama Con
nstitution graants sovereiign immunitty to the Staate of

Alabamaa. Ala. Constt. Art. I, 14


1 ([T]he State of Alabbama shall nnever be madde a defendaant in

any courrt of law orr equity.). Constitution


C nal officers aalso enjoy tthe same abbsolute soveereign

immunity
y for actionss taken in ex
xecuting theeir official duuties becausse a suit agaainst them iss a de

facto suiit against th


he state of Alabama.
A Seee Retireme nt Sys. of A
Ala., 182 Soo. 3d at 533334;

Wheeler v. George, 39
3 So. 3d 1061, 109293
3 (Ala. 20099). The State Superintenddent of Educcation

is a consttitutional offficer. Ala. Const. Art. V, 112 (Thhe executive department shall consisst of a

governorr, lieutenant governor, attorney-gene


a eral, state auuditor, secreetary of statee, state treassurer,

superinteendent of edu
ucation . . . .).

This
T Court should
s dism
miss the claiims against Superintenndent Clevelland for lacck of

subject-m
matter jurisdiction beccause, as a constitutioonal officerrand unllike other, non-

constitutiional officeers within the executiive branch which havve qualifiedd or State-agent

y5the Statte Superinten


immunity ndent has ab
bsolute soveereign immuunity from ssuit from acctions

taken wh
hile executin
ng the dutiess of his officce. Indeed, tthe face of tthe Complaiint mandates this

result wh
hen it alleg
ges that att all materiaal times, [C
Cleveland] sserved as thhe interim State

Superinteendent of Ed
ducation. Compl. 3.

The
T Alabamaa Supreme Court addreessed the isssue of consstitutional oofficers receeiving

absolute sovereign immunity


i in
n Wheeler. See
S e.g., W
Wheeler, 39 So. 3d at 1109293. Seeveral

5
As will be discussed infra, the case
c must also be dismisssed pursuannt to State-aggent immuniity.
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landowners in that case brought claims against Governor Siegelman, alleging that they received

inadequate compensation when the State purchased their land for the development of the

Hyundai plant outside of Montgomery. Id. at 1069-75. The Wheeler plaintiffs sued Governor

Siegelman both in his individual capacity and as the president of the Alabama Incentives Finance

Authority (AIFA), because he acted through the entity to purchase the plaintiffs property on

behalf of the State. Id. at 1091, 1093. The Alabama Supreme Court recognized that the plaintiffs

complaint was directed solely at actions taken while [Governor Siegelman] was executing the

duties of his office. Id. at 1092. As a result, the Court held that, even though the plaintiff

purported to sue the governor in his personal capacity, the governor was still entitled to absolute

sovereign immunity:

Alabama courts have consistently held that a claim for monetary damages made against a
constitutional officer in the officers individual capacity is barred by State immunity
whenever the acts that are the basis of the alleged liability were performed within the
course and scope of the officers employment. Consequently, then Governor Siegelman is
entitled, on the facts here presented, to State immunity in his individual capacity and in
his capacity as the former president of the AIFA.

Id. at 1092-93.6

The same result afforded to former Governor Siegelman in Wheeler obtains here.

Superintendent Cleveland was handed an anonymous letter from a Board member, which alleged

serious ethics violations against an applicant for the State of Alabamas highest educational

position. Superintendent Cleveland gave this letter to his General Counsel and suggested that she

look into it, as was his legal duty. Superintendent Cleveland then allegedly discussed this matter

6
Importantly, though Superintendent Cleveland is no longer the acting State Superintendent; the
Wheeler court applied a sovereign immunity defense to the former governor based on the
premise that the actions that gave rise to the complaint occurred while the defendant was the
acting governor, as is the case here. Wheeler, 39 So. 3d at 1092 (discussing then Governor
Siegelman).
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with Board members and his internal lawyers in person and via e-mail. All of these actions

plainly occurred within the line and scope of his duties as Superintendent.

And though Plaintiff claims that Cleveland is being sued personally and in his individual

capacity only ( Compl. 3.), just as in Wheeler, all of Plaintiffs claims actually arise from

actions taken in Clevelands capacity as the Superintendent. Thus, they are barred by absolute

sovereign immunity because sovereign immunity precludes plaintiffs from bringing money-

damages claims against Alabamas constitutional officerseven claims purportedly against

them in their individual capacitiesbased on actions they took in the line of line and scope of

their employment. See Ex parte Donaldson, 80 So. 3d 895, 90001 (Ala. 2011) (finding that a

motion to dismiss was appropriate when a deputy sheriff was acting within the line and scope of

his employment); Ex Parte Haralson, 853 So.2d 928, 933 (Ala. 2003) (reaffirming that while a

constitutional officer cannot avoid tort liability simply by claiming that his mere status as a

[S]tate official cloaks him with the [S]tates constitutional immunity, immunity attaches so

long as he is acting within the line and scope of his employment).

While Plaintiff does not explicitly state in his Complaint that Superintendent Cleveland

was acting in the line and scope of his employment, the absence of these words does not

negate that the facts alleged against Superintendent Cleveland arise entirely from actions

Superintendent Cleveland took within the line and scope of his employment. To find otherwise

would be to allow plaintiffs to plead around sovereign immunity simply by carefully avoiding

specific languageirrespective of the pleaded facts. This would hardly support the notion that

sovereign immunity is a wall that is nearly impregnable and almost invincible providing the

State an unwaivable, absolute immunity from suit in any court. Ex parte Town of Lowndesboro,

950 So. 2d 1203, 1206 (Ala. 2006) (citing Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d

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867 (Ala.2004)). Assuming the pleaded facts as true, Plaintiff has alleged that Superintendent

Cleveland was acting within the line and scope of his employment. Therefore, Plaintiffs claims

are barred by sovereign immunity.

Finally, the conclusory allegations that Clevelands actions were willful, malicious,

fraudulent, in bad faith and/or beyond their authority, are exceptions only to State-agent

immunitynot absolute sovereign immunity. Compl. 16. Absolute sovereign immunity of

constitutional officers does not have a bad-faith exception in suits for monetary damages. See

Retirement Sys. of Ala., 182 So. 3d at 53334; Wheeler, 39 So. 3d at 109293.

Plaintiffs claims fall squarely within the ambit of claims that are barred by absolute

sovereign immunity. On the face of the Complaint alone, Superintendent Clevelands actions and

conduct were undertaken in his official capacities as a constitutional officer and Plaintiffs

Complaint does not make out even the most basic allegations for avoiding 14 of the Alabama

Constitution. Indeed, if the doctrine of sovereign immunity is meaningful in any way, it is to

shield constitutional officersand the State itselffrom the onerous cost that discovery in

lawsuits like this one generates. Ryan v. Hayes, 831 So. 2d 21, 31 (Ala. 2002) (quoting Siegert v.

Gilley, 500 U.S. 226, 232 (1991) (One of the purposes of immunity, absolute or qualified, is to

spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed

upon those defending a long drawn out lawsuit.)). On this basis alone, this Court should dismiss

all of Plaintiffs claims against Superintendent Cleveland now, with prejudice, for lack of

subject-matter jurisdiction.

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b. Even assuming Superintendent Cleveland is not entitled to absolute


sovereign immunity, the Complaint should be dismissed because he was
acting as a state agent when he shared the letter with his General Counsel
which he was legally obligated to doand no bad faith exists.

A person who acts as a state agent is covered by the state's sovereign immunity if the acts

complained of were committed while that person was performing a discretionary act. Nance v.

Matthews, 622 So.2d 297 (Ala.1993). Discretionary acts are [t]hose acts [as to which] there

is no hard or fast rule as to [the] course of conduct that one must or must not take . . . [;] [those

requiring] exercise in judgment and choice and [involving] what is just and proper under the

circumstances. See Faulkner v. Patterson, 650 So.2d 873, 874 (Ala.1994) (citing Black's Law

Dictionary 467 (6th ed. 1990)). And [w]hether a particular defendant is engaged in a

discretionary function, and is thereby immune from liability, is a question of law to be decided

by the trial court. Louviere v. Mobile Cty. Bd. of Educ., 670 So. 2d 873, 877 (Ala. 1995).

The Alabama Supreme Court reaffirmed State-agent immunity in Ex parte Cranman, 792

So.2d 392 (Ala. 2000), holding that [a] State agent shall be immune from civil liability in his or

her personal capacity when the conduct made the basis of the claim against the agent is based

upon the agents . . . exercising his or her judgment in the administration of a department or

agency of government[s] . . . hiring, firing, transferring, assigning, or supervising personnel; or .

. . exercising judgment in the discharge of duties imposed by statute, rule, or regulation in . . .

educating students. Cranman, 792 So.2d at 405 (emphasis added); see also Ala. Code 36-1-12

(stating the same). It also recently held that determining whether a defendant was engaged in a

discretionary act is a two-fold inquiry: We ask whether the government employee was (a)

performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through

means that were within his power to utilize. Ex parte Hugine, No. 1130428, 2017 WL 1034467,

at *10 (Ala. Mar. 17, 2017)).

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To pass the first step of the discretionary function test for qualified immunity, the

defendant must have been performing a function that . . . would have fallen with his legitimate

job description. Id. at *11 (emphasis in original). The second step is determining whether the

defendant has executed this job function in an authorized manner. Id. Once these prongs are

satisfied, the Alabama Supreme Court has established a burden-shifting process, in which the

burden then shifts to the plaintiff to show that one of the two categories of exceptions to State-

agent immunity recognized in Cranman is applicable. Ex parte Sumerlin, 26 So. 3d 1178, 1184

(Ala. 2009) (quoting Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006)). The two

exceptions are as follows:

(1) when the constitution or laws of the United States, or the Constitution of this State, or
laws, rules or regulations of this State enacted or promulgated for the purpose of
regulating the activities of a governmental agency require otherwise; or

(2) when the state agent acts willfully, maliciously, fraudulently, in bad faith, beyond his
or her authority, or under a mistaken interpretation of the law.

Cranman, 792 So. 2d at 405 (emphasis added); see also Ala. Code 36-1-12 (stating the same).

This bad faith exception, however, is not meant to apply to any misstep by any state employee

or other state agent that wrongs another. Instead, the plaintiff must prove something more. Ex

parte Auburn Univ., 6 So. 3d 478, 487 (Ala. 2008) (quoting Segrest v. Lewis, 907 So. 2d 452,

456-57 (Ala. Civ. App. 2005)).

Under this rubric, Superintendent Cleveland is entitled to state-agent immunity as well.

The face of the Complaint itself reveals that Superintendent Cleveland satisfies the first prong of

the state-agent inquiry as contemplated by Huginei.e., he was clearly performing a legitimate

job-related function in receiving a letter from a Board member pertaining to the professional

qualifications of an applicant for the position of State Superintendent, and in forwarding that

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letter on to his General Counsel. Moreover, the means in which he did sohanding a letter from

a Board member to the Boards General Counselsimply must be within his power to utilize

for purposes of the second prong. These actions are precisely the kind of actions that the

discretionary test is designed to shield; thus, under well-settled law, this Court should shift the

burden to Plaintiff to sufficiently plead some factual allegations supporting bad faith or

maliciousness for purposes of the Cranman exceptions. Plaintiff has not done so.

Instead, Plaintiff seeks to avoid State-agent immunity by alleging, in a conclusory

fashion, that Superintendent Cleveland acted willfully, maliciously, fraudulently, in bad faith . .

. . Compl., 16, 49, 56, 64, 72. But these are legal conclusionsnot factual allegations. Under

even the most forgiving of pleading standards, it is axiomatic that one must plead facts to support

a legal conclusion of bad faithnot simply recite the legal conclusion itself. See Ala. R. Civ. P.

8, Committee Comments on 1973 Adoption (Although Rule 8(a) eliminates many technical

requirements of pleading, it is clear that it envisages the statement of circumstances, occurrences,

and events in support of the claim presented.). To allow a damages action to proceed against

individual state employees based on such superficial allegations would be directly contrary to the

notion that State-agent immunity is designed to prevent not just an award of damages against

individuals who are performing discretionary functions, but also the necessity of having to

defend against the lawsuit at all. Ryan, 831 So. 2d at 31 (One of the purposes of immunity,

absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted

demands customarily imposed upon those defending a long drawn out lawsuit.).

Regardless, a finding of maliciousness here fails as a matter of law as well.

Superintendent Cleveland executed his duties relating to the vetting and hiring of a new

superintendent and performed a task he was legally obligated to perform under Ala. Code 36-

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25-17, which requires that a government agency head must within 10 days file reports with the

commission on any matters that come to his or her attention in his or her official capacity which

constitute a violation of [the Code of Ethics]. Ala. Code 36-25-17. And indeed, if

Superintendent Cleveland fail[ed] to disclose information required [by 36-25-17] . . . [he

would], upon conviction, be guilty of a Class A misdemeanor. Ala. Code 36-25-27(a)(7).

Moreover, because the Board was charged with appointing a candidate to the position of good

moral character . . . sufficient to qualify him to perform the duties of his office, under Ala. Code

16-4-1, Superintendent Cleveland was doubly bound, at a minimum, to ask his General

Counsel to look into the matter and to refer it to the Ethics Commission. Had Superintendent

Cleveland taken no actions whatsoever, had he disregarded the anonymous letter or simply

buried itas Plaintiff suggests he should have donehe would be in plain violation of the above

Alabama laws and guilty of a crime.

Put simply, apart from formulaic recitations of the legal standard, Plaintiff has failed to

sufficiently plead facts giving rise to any possibility that Superintendent Cleveland acted

willfully, maliciously, fraudulently, in bad faith, beyond authority or under mistaken

interpretation of law. To the contrary, the Complaint pleads facts giving rise to the conclusion

that, in fact, Superintendent Cleveland was obligated to perform the very actions complained of.

The Complaints transparent attempt to use magic words, like bad faith, to plead around the

doctrine of State-agent immunity here should be rejected by this Courtand they are, in any

event, inapposite to the doctrine of absolute immunity, to which Superintendent Cleveland is

entitled in the first instance. Under any construction of the sovereign immunity doctrine

absolute or State-agentSuperintendent Cleveland is immune from this lawsuit. The Complaint

is due to be dismissed, now, with prejudice under Ala. R. Civ. P. 12(b)(1). Indeed, because state-

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agent imm
munity is an
n immunity from suit raather than a m
mere defensee to liability, Mitchell vv.

Forsyth, 472 U.S. 511, 526 (1985


5), the Supreeme Court hhas repeatedlly emphasizeed that a

nts entitlemeent to State-aagent immun


defendan nity should bbe resolved at the earliesst possible sttage

of the litiigation.

II. Even
E if this Court
C were to find thatt Superinten ndent Cleveeland is not entitled to
im
mmunity, it should stilll dismiss eacch of the counts for faillure to statee a claim up
pon
which
w relief may be granted.

a. Plainttiffs claimss for malicio


ous prosecution and ab buse of proccess fail as a
matteer of law beccause Superrintendent C Cleveland iss not the offficer possesssing
the au
uthority to issue
i ethics charges, noor did Plainttiff allege an
ny miscondduct
after the ethics innvestigationn began.

The
generall rule is that an individuaal who mereely provides facts concerrning the connduct

of anotheer to an officcer possessin


ng the authorrity to issue charges is not liable for malicious

prosecutiion. Hayness v. Coleman


n, 30 So. 3d 420, 424 (A
Ala. Civ. Appp. 2009) (quoting Davis v.

Board off Education of


o St. Louis, 963 S.W.2d
d 679 (Mo.Ctt.App.1998))). Here, thee face of

Plaintiffs Complaintt itself shows that, at mo


ost, Superinteendent Cleveland mereely provid[edd]

facts to those with greater


g autho
ority than him
m to bring abbout the inveestigation. H
He obtained aan

ous letter from a Board member,


anonymo m han
nded it over tto the Generral Counsel, and encouraaged

her to forrward it to th
he Ethics Co
ommission
the only enttity that posssesses the auuthority to

initiate etthics investigations.

Superintenden
nt Cleveland
d was legally
y obligated tto report the informationn to the Ethiccs

Commisssion, under Ala.


A Code 36-25-17, an
nd the actionns he took
forwarding it on to his llegal

counsel with
w a recom
mmendation to
t report it to
o the Ethics Commissionn, are in linee with this duuty.

Superinteendent Cleveeland had no


o authority to
o initiate an investigationn, nor issue the ethics

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charges that Plaintiff complains of in this case. Plaintiffs malicious prosecution claim against

Superintendent Cleveland fails to state a claim upon which any relief can be granted.

For similar reasons, Plaintiffs claim for abuse of process against all defendants also fails.

That is, while [m]alicious prosecution concerns the wrongful issuance of process; abuse of

process concerns the wrongful use of process after it has been issued. C.C. & J., Inc. v. Hagood,

711 So. 2d 947, 950 (Ala. 1998). The Complaint contains no factual allegations that Cleveland

abused the administrative process after the Ethics Commission initiated its investigation. And

defendants cannot be held liable for abuse of process unless they somehow acted outside the

boundaries of legitimate procedure after [the initiation of the proceeding]. Hagood, 711 So.2d at

951 (emphasis added). The Complaint does not allege any wrongful conduct by Superintendent

Cleveland after the Ethics Commission began its investigation. This claim should be dismissed

for failure to state a claim upon which relief can be granted as well.

b. Plaintiffs claims relating to alleged damages to his reputation fail as a


matter of law because Superintendent Cleveland was absolutely privileged to
communicate with his lawyer and because he did not publish the
anonymous letter.

Plaintiff alleges three causes of action for damages to his reputation, two of which

explicitly do not apply to Superintendent Cleveland.7 And the one that purports to apply to

himCount IVs invasion of privacy claim alleging that all defendants have intentionally

publicized false information about [Plaintiff]wholly fails to state a claim for relief. This is

because Superintendent Cleveland was absolutely privileged to communicate with his lawyer

and because he did not publish the anonymous letter under the legal meaning of that term.

Compl. 67.

7
Count V exclusively names Defendant Hunter. Count VI exclusively names Defendant Ward.
Accordingly, Superintendent Cleveland will not address those claims in the present motion.
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Under Alabama law, [o]ne who gives publicity to a matter concerning another that

places the other before the public in a false light is subject to liability to the other for invasion of

his privacy, if (a) the false light in which the other was placed would be highly offensive to a

reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the

falsity of the publicized matter and the false light in which the other would be placed. Regions

Bank v. Plott, 897 So.2d 239, 244 (Ala. 2004) (quoting Butler v. Town of Argo, 871 So.2d 1, 12

(Ala. 2003)). Therefore, it is integral to a false-light claim that the untrue information be

publicly communicated. Butler, 871 So. 2d at 1213.

But the fact is, publicity,

[a]s it is used in this [invasion of privacy] Section, differs from publication, as that
term is used in 577 in connection with liability for defamation. Publication, in that
sense, is a word of art, which includes any communication by the defendant to a third
person. Publicity, on the other hand, means that the matter is made public, by
communicating it to the public at large, or to so many persons that the matter must be
regarded as substantially certain to become one of public knowledge. The difference is
not one of the means of communication, which may be oral, written or by any other
means. It is one of a communication that reaches, or is sure to reach, the public.

Thus it is not an invasion of the right of privacy, within the rule stated in this Section, to
communicate a fact concerning the plaintiff's private life to a single person or even to a
small group of persons. On the other hand, any publication in a newspaper or a magazine,
even of small circulation, or in a handbill distributed to a large number of persons, or any
broadcast over the radio, or statement made in an address to a large audience, is sufficient
to give publicity within the meaning of the term as it is used in this Section. The
distinction, in other words, is one between private and public communication.

Butler, 871 So. 2d at 13 (quoting Restatement (Second) of Torts 652D (1977).

Moreover, a plaintiff cannot recover in a claim for reputational damage if absolute

privilege attaches. In defamation actions, the only absolutely privileged communications

recognized under the law are those made during legislative or judicial proceedings (or, in such

situations as that dealt with in Webster v. Byrd, quasi-judicial proceedings), or contained in

legislative acts of this state which are made under authority of law. Walker v. Majors, 496 So.

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DOCUMENT 18

2d 726, 730 (Ala. 1986). For example, in Webster v. Byrd, the Alabama Supreme Court found

that a termination letter sent to the dean of the college, the attorney for the college, the business

manager of the college, and a technical instructor at a college, which notified him of the grounds

for his termination, was absolutely privileged because it commenced a quasi-judicial proceeding.

494 So.2d 31 (Ala.1986).

Here, Plaintiffs only allegation against Superintendent Cleveland is that he obtained an

anonymous letter and gave it to the General Counsel. Compl. 26-27. Superintendent

Cleveland was privileged, as a matter of law, to share this information with his General Counsel.

That is, under Webster, Superintendent Cleveland was communicating with his lawyer as part of

quasi-judicial proceedings, when he forwarded the anonymous letter to her and encouraged her

to send it to the Ethics Commission.

But even if he were not absolutely privileged to do so, it is simply not an invasion of

privacy to have given the letter to a single person or even to a small group of persons. Butler,

871 So. 2d at 13. That is, Plaintiff has failed to plead that Cleveland publicly shared the

anonymous letter in any meaningful wayand even his baseless allegation that all defendants,

including Superintendent Cleveland, had numerous discussions and emails where they

discussed various options to disparage [Plaintiff] and to make the false allegations against him

public fails this publicity test as well, because these allegedly disparaging comments were done

in private email conversations. Compl. 34.

As the Complaint pertains to the alleged actions of Superintendent Cleveland, Plaintiffs

invasion of privacy claim fails to sufficiently plead that he published any information about

Plaintiff at all, and even if he did, the Complaint, as alleged, shows he was absolutely privileged

to do so.

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DOCUMENT 18

c. Plaintiffs claim for outrage has no place in this lawsuit and should be
dismissed for failure to state a claim upon which relief can be granted.

Plaintiff has not alleged, and cannot allege, facts sufficient to establish that Clevelands

conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused

emotional distress so severe that no reasonable person could be expected to endure it. Wallace

v. SunTrust Mortg., Inc., 974 F. Supp. 2d 1358, 1360 (S.D. Ala. 2013). Indeed, [t]he Alabama

Supreme Court has consistently held that the tort of outrage is a very limited cause of action that

is available only in the most egregious circumstances. Id. In fact, Alabama law has recognized

a claim of outrage in only three narrow circumstances: (1) wrongful conduct in the family-

burial context; (2) barbaric methods employed to coerce an insurance settlement; and (3)

egregious sexual harassment. Jackson v. Countrywide Home Loans, Inc., 2012 WL 777180, * 8

(M.D. Ala. Mar. 7, 2010). None of those three circumstances apply here.

The notion that Superintendent Clevelands actionsbeing handed an anonymous letter

that alleged ethics violations against an applicant for the State of Alabamas highest educational

position, forwarding this letter to his General Counsel, and suggesting that she in turn forward it

to the Ethics Commissionare so outrageous as to cause[] emotional distress so severe that no

reasonable person could be expected to endure it, is simply absurd in this context. Plaintiffs

allegations do not support a claim of outrage and should be dismissed with prejudice under Rule

12(b)(6).

d. Plaintiffs remaining catch-all claims should be dismissed as well; in the


alternative, this Court should require that Plaintiff provide a more definite
statement.

Count VIII alleges four discrete torts within five sentences with such a lack of specificity

that Superintendent Cleveland cannot reasonably be expected to respond in any meaningful way.

This deficiency is further exacerbated by the fact that these shotgun allegations purport to be

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DOCUMENT 18

against all Defendantsplural. Shotgun pleadings like these are insufficient, even under

Alabamas low standard for notice pleading. Ala. R. Civ. P. 8;8 see Hoff v. Goyer, 160 So. 3d

768, 773 (Ala. Civ. App. 2014) (looking to the Eleventh Circuit for guidance on the impropriety

shotgun pleadings); see also Kabbaj v. Obama, 568 F. Appx 875, 880 (11th Cir. 2014)

(finding improper shotgun pleading where the complaint refers to the defendants collectively,

making it impossible to identify which particular defendant engaged in what allegedly wrongful

conduct); Indeed, the court in Hayden v. Alabama Department of Public Safety aptly

condemned the same kind of shotgun pleadings found in Plaintiffs lawsuit here: Plaintiff . . .

generically pleads that Defendants, in the plural form, [caused him injury] without enumerating

the precise acts of each Defendant which resulted in the alleged . . . violation. 506 F. Supp. 2d

944, 952 (M.D. Ala. 2007). Even accepting the facts alleged in the Complaint as true and making

generous inductions based on the facts presented, Plaintiff fails to make any cognizable claims

against Superintendent Cleveland in Count VIII. This count should be dismissed for failure to

state a claim upon which relief can be granted.

At a minimum, the Court should require that Plaintiff plead a more definite statement

pursuant to Rule 12(e). See Ala. R. Civ. P. 12(e) (providing that [i]f a pleading . . . is so vague

or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the

party may move from a more definite statement before interposing a pleading.); U.S. ex rel.

Atkins v. McInteer, 470 F.3d 1350, 1354 n.6 (11th Cir. 2006) (When faced with a shotgun

8
Like the Alabama rule, Fed. R. Civ. P. 8 also requires a short and plain statement of the claim
showing that the pleader is entitled to relief; and . . . a demand for judgment for the relief
sought. Because Ala. R. Civ. P. 8 is identical in relevant aspects to the corresponding Federal
Rule of Civil Procedure, Bruck v. Jim Walter Corp., 470 So. 2d 1141, 1143 (Ala. 1985), cases
construing the Federal Rules of Civil Procedure are authority for construction of the Alabama
Rules of Civil Procedure. First Citizens Bank of Luverne v. Jacks Food Sys., Inc., 602 So. 2d
374, 376 (Ala. 1992) (quotations omitted).
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DOCUMENT 18

pleading, the trial court, whether or not requested to do so by the partys adversary, ought to

require the party to file a repleader.). Superintendent Cleveland requests clarity on which of the

four discrete torts he is alleged to have committed and which facts allegedly support this legal

conclusion. Because Superintendent Cleveland is not on notice of the claims Plaintiff alleges, as

required by Rule 8(a), and because it is impossible for him to frame responsive pleadings to such

a wholly ambiguous filing, the Court should, at a minimum, require Plaintiff to file a more

definite statement here.

e. Plaintiffs conspiracy claim should be dismissed because there is no


underlying actionable tort and because it is otherwise barred by the intra-
corporate conspiracy doctrine.

A civil conspiracy claim, as Plaintiff has asserted in Count I, is derivative. The gist of an

action alleging civil conspiracy is not the conspiracy itself but, rather, the wrong committed and

if the underlying wrong provides no cause of action, then neither does the conspiracy. Hooper

v. Columbus Regional Healthcare System, Inc., 956 So.2d 1135, 1141 (Ala.2006). Accordingly,

a civil conspiracy claim is cognizable only insofar as the underlying tort cause of action is

actionable. Ford v. Cent. Loan Admin., No. CIV.A. 11-0017-WS-C, 2011 WL 4702912, at *7

(S.D. Ala. Oct. 5, 2011). As noted above, because all of the underlying claims against

Superintendent Cleveland fail, Plaintiffs conspiracy claim should be similarly dismissed.

Additionally, the alleged conspiratorsDean, Ward, Crowther, Cleveland, and Hunter

were, at all relevant times, acting as employees and/or agents of the same public entity, the

Alabama State Department of Education. As a result, Plaintiffs conspiracy claim is barred by the

intracorporate conspiracy doctrine. [U]nder the [intracorporate conspiracy doctrine], a

corporation cannot conspire with its employees, and its employees, when acting in the scope of

their employment, cannot conspire among themselves. Grider v. City of Auburn, Ala., 618 F.3d

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DOCUMENT 18

1240, 1261 (11th Cir. 2010) (citing McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036

(11th Cir.2000)). This doctrine has been applied not only to private corporations but also to

public, government entities. Dickerson v. Alachua Cty. Commn, 200 F.3d 761, 767 (11th Cir.

2000). Alabama appellate courts have also recognized the intracorporate conspiracy doctrine as a

bar to conspiracy. See M&F Bank v. First Am. Title Ins. Co., 144 So. 3d 322, 234 (Ala. 2013)

(citing Grider and McAndrew, affirming summary judgment against conspiracy claim against

agents and employees of defendant based on the intracorporate conspiracy doctrine); see also

McClurkin v. Ziebach & Webb Timber Co., 666 So. 2d 520, 523 (Ala. Civ. App. 1995)

(affirming summary judgment as to conspiracy claim against forest manager and its agent).

Accordingly, because each of the alleged conspirators identified by Plaintiff acted as an

employee or agent of the same entity either as a Board member, State Superintendent, or General

Counsel, they were not capable of conspiring together and Plaintiffs conspiracy claim fails as

a matter of law. See, e.g., Taylor, 95 F. Supp. 2d at 1317-18.

CONCLUSION

If sovereign immunity is to be an almost invincible and nearly impregnable wall, it

must protect Superintendent Cleveland from the meager claims in this lawsuit. The Complaint

here amounts to little more than a series of legal conclusions based on facts thateven as

allegedclearly demonstrate that Superintendent Cleveland was acting within the line and scope

of his employment at all relevant times and thus entitled to absolute sovereign immunity. Indeed,

Superintendent Clevelands actionsof receiving an anonymous letter from a Board member

and suggesting that the Boards lawyers forward it on to the Ethics Commission, which is an act

required of him by laware precisely the kinds of actions that the doctrines of absolute

sovereign and state-agent immunity are designed to protect and encourage. Finally,

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DOCUMENT 18

Superintendent Cleveland adopts and incorporates all arguments contemporaneously asserted by

co-defendants Juliana Dean, Mary Scott Hunter, James Ward, and Susan Crowther in their

respective motions to dismiss, and asserts, as they do, that Plaintiffs case should be dismissed in

its entirety now.

Respectfully submitted,

/s/ R. Ashby Pate


One of the Attorneys for Defendant
Philip Cleveland

OF COUNSEL:
Samuel H. Franklin (FRA006)
sfranklin@lightfootlaw.com
R. Ashby Pate (PAT077)
apate@lightfootlaw.com
Rachelle E. Sanchez (JON201)
rsanchez@lightfootlaw.com
LIGHTFOOT, FRANKLIN & WHITE, L.L.C.
The Clark Building
400 North 20th Street
Birmingham, AL 35203-3200
(205) 581-0700

CERTIFICATE OF SERVICE

I certify that on the 7 day of April, 2017, I electronically filed the foregoing with the
Clerk of the Court using the Alafile system, which will send electronic notification of such filing
to the parties. If Alafile indicates that Notice needs to be delivered by other means to any of the
following, I certify that a copy will be sent via U.S. Mail, properly addressed, postage prepaid.

Kenneth J. Mendelsohn
kenny@jmfirm.com
JEMISON & MENDELSOHN
1772 Platt Place
Montgomery, Alabama 36117
(334) 213-2323 (Telephone)
Attorney for Plaintiff

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DOCUMENT 18

Lee Copeland
Copeland@copelandfranco.com
Copeland, Franco, Screws & Gill, P.A.
444 South Perry Street
P.O.Box 347
Montgomery, Alabama 36101

Dorman Walker
dwalker@balch.com
David R. Boyd
dboyd@balch.com
G. Lane Knight
lknight@balch.com
Balch & Bingham LLP
105 Tallapoosa Street, Ste 200
Montgomery, AL 36104

Ham Wilson
hwilson@ball-ball.com
Ball, Ball, Matthews & Novak
445 Dexter Avenue, Ste 9045
Montgomery, AL 36104

/s/ R. Ashby Pate


Of Counsel

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