Case 2:10-cv-03314-SLB Document 14 Filed 01/21/11 Page 1 of 6 FILED 2011 Jan-21 PM 01:51 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA J.W., a minor by and through TAMMY WILLIAMS, G.S., a minor by and through LATONYA STEARNES, P.S., a minor by and through LATONYA STEARNES, T.L.P., a minor by and through TARRA PRITCHETT, T.A.P., a minor by and through BARBARA PETTAWAY, and B.J., a minor by and through RENEE HOWARD, V. PLAINTIFFS, BIRMINGHAM BOARD OF EDUCATION, CRAIG WITHERSPOON, A.C. ROPER, J. NEVITT, A. CLARK, ANTHONY MOSS, R. TARRANT, and M. BENSON, Defendants. CIVIL ACTION NUMBER 10-cv-3314-SLB DEFENDANTS MOTION TO DISMISS COME NOW defendants Birmingham Board of Education, Craig Witherspoon and Anthony Moss and respectfully move the Court to dismiss all claims against these defendants. As grounds, the defendants show as follows: 1. Official capacity claims against Dr. Witherspoon and Mr. Moss are functionally equivalent to claims against the Board of Education. The official capacity claims are therefore merely duplicative and are due to be dismissed.
Case 2:10-cv-03314-SLB Document 14 Filed 01/21/11 Page 2 of 6 2. Punitive damage claims against the Board, a state agency, and its officials are barred by immunity under federal and state law. 3. The plaintiffs claims for declaratory and injunctive relief are based upon an alleged right which does not exist under the U.S. Constitution or laws, i.e. a duty of protection by school officials from injury by third parties. 4. The plaintiffs claim for declaratory and injunctive relief seeks a permanent injunction prohibiting the defendants from engaging in unlawful conduct. The relief sought is an impermissible obey-the-law injunction and the claim is therefore due to be dismissed. 5. The plaintiffs claim for injunctive relief seeks an order for the defendant school officials to prevent the actions of persons who are not subject to the school officials control. The plaintiffs claim for injunctive relief is therefore due to be dismissed due to the impossibility of performance. 6. The plaintiffs claim for declaratory and injunctive relief for alleged conspiracy by the defendants to violate the plaintiffs rights is due to be dismissed because this claim also is founded on a non-existent right, i.e. alleged right of students to protection by school officials from the actions of third parties. 2
Case 2:10-cv-03314-SLB Document 14 Filed 01/21/11 Page 3 of 6 7. The claim for declaratory and injunctive relief for conspiracy also seeks an impermissible obey-the-law injunction and it seeks an order for the defendants to prohibit the actions of third parties not subject to the school officials control. 8. The plaintiffs claim for declaratory and injunctive relief arising from alleged conspiracy is barred by the intracorporate conspiracy doctrine. 9. The plaintiffs claim for alleged conspiracy between school officials and police officials is barred by the intracorporate conspiracy doctrine to the extent the plaintiffs claim that the school officials authorized actions of police officers. 10. The allegations of conspiracy between police officials and defendant school officials fail to establish the requisite basis for a conspiracy, therefore the claims for declaratory and injunctive relief arising from such alleged conspiracy are due to be dismissed. 11. The plaintiffs claim against defendant Anthony Moss for alleged use of excessive force fails to state a claim for relief that is plausible on its face or that raises the possibility of relief above the mere speculative level. 12. The plaintiffs claim against defendant Anthony Moss for alleged use of excessive force fails to plead sufficient facts against Mr. Moss to support a reasonable inference that the defendant is liable for the alleged misconduct. 3
Case 2:10-cv-03314-SLB Document 14 Filed 01/21/11 Page 4 of 6 13. The plaintiffs claims for damages for alleged failure by the Board and Dr. Witherspoon to protect the plaintiffs from harm by third parties fails to state a claim upon which relief could be granted because there is no constitutional right to such protection. 14. The plaintiffs claims for damages under 42 U.S.C. 1983 against the Board and Dr. Witherspoon in his official capacity fail to state claims upon which relief can be granted because state agencies and state officials in their official capacity are not persons subject to suit for damages under 1983. 15. The plaintiffs claims against the Board and Dr. Witherspoon for alleged conspiracy to violate the plaintiffs rights are barred by the intracorporate conspiracy doctrine. 16. The plaintiffs claims against the Board and Dr. Witherspoon for alleged conspiracy to violate the plaintiffs rights fail to allege facts sufficient to establish a conspiracy. 17. The plaintiffs claims against the Board and Dr. Witherspoon in his official capacity for damages for alleged conspiracy to violate the plaintiffs rights must be dismissed because the Board and Dr. Witherspoon in his official capacity are not persons subject to suit for damages under 42 U.S.C. 1983. 4
Case 2:10-cv-03314-SLB Document 14 Filed 01/21/11 Page 5 of 6 18. The plaintiffs claim against defendant Anthony Moss for damages for alleged excessive corporal punishment fail to allege any facts upon which defendant Moss could be held liable. 19. The plaintiffs factual allegations against defendant Anthony Moss for excessive corporal punishment could support, at most, a state law tort claim and the plaintiffs claim for a constitutional violation arising from alleged excessive corporal punishment must therefore be dismissed. 20. The plaintiffs claim against defendant Anthony Moss for assault and battery fails to allege sufficient facts from which Mr. Moss could be held liable for assault and battery. 21. The plaintiffs claim under Alabama law against Anthony Moss in his official capacity is equivalent to a claim against the Board of Education, a State agency, and is therefore barred by absolute State immunity under Article I, 14 Ala. Constitution (1901. 22. The plaintiffs claim against defendant Anthony Moss for the tort of outrage must be dismissed because the alleged conduct of the defendant is not within any of the three categories of claims for which the Alabama Supreme Court has permitted outrage claims. 5
Case 2:10-cv-03314-SLB Document 14 Filed 01/21/11 Page 6 of 6 23. In further support of this motion, the defendants rely upon all grounds and authorities stated in their Brief in Support of Motion to Dismiss submitted concurrently herewith. WHEREFORE, defendants Birmingham Board of Education, Craig Witherspoon and Anthony Moss respectfully move the Court to dismiss all claims against them. /s/ Mark S. Boardman Mark S. Boardman (ASB-8572-B65M /s/ Clay R. Carr Clay R. Carr (ASB-5650-C42C BOARDMAN, CARR, HUTCHESON & BENNETT, P.C. 400 Boardman Drive Chelsea, Alabama 35043-8211 (205 678-8000 (205 678-0000 Facsimile CERTIFICATE OF SERVICE I hereby certify that on January 24, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Ebony G. Howard, Esq. Mary Catherine Bauer, Esq. Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 Fredric L. Fullerton, II, Esq. Thomas Bentley, III, Esq. Nicole E. King, Esq. City of Birmingham Department of Law 600 City Hall Building 710 North 20 th Street Birmingham, Alabama 35203 /s/ Clay R. Carr Of Counsel 6