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IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICKEY STOKES, on behalf of himself )
and a class of persons similarly situated, )
)
Plaintiff,
)
)
v.
)
)
CITY OF DOTHAN, ALABAMA
)
)
Defendant.
)

Case No.: 1:16-cv-00430

CLASS ACTION

MOTION TO DISMISS
OF DEFENDANT CITY OF DOTHAN
COMES NOW the City of Dothan (City) and files this motion to dismiss defendants
Complaint for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P. As grounds for
the same, City shows as follows:
I.

INTRODUCTION
To survive dismissal, a plaintiff's complaint must contain sufficient factual matter,

accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Stating a claim upon which relief may be
granted requires more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not be enough to survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007).
II.

FACTS
Plaintiff was charged in two separate cases with the crime of Unlawful Imprisonment II

and was tried and convicted in Dothan Municipal Court on September 29, 2014. See Exh. 1B

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(certified copies of Municipal Court records in Cases No. MC11-14-1254 and MC11-14-1235
showing not guilty plea and conviction on September 29, 2014). 1
Plaintiff appealed his convictions on the day he was convicted and was released pursuant
to appeal bonds on the same day. See Exh. 2 (certified copies of municipal court records showing
September 29, 2014 Notice of Appeal for cases MC11-14-1254 and MC11-14-1255 and appeal
bonds for each case all dated September 29, 2014).
The crux of Plaintiffs complaint is that he was convicted by [Special Municipal Judge]
SMJ Carl Chamblee, Jr., (Chamblee) and that SMJ Chamblee was not appointed in accordance
with the procedure of [Alabama Code Sec.] 12-14-34. Doc. 1 at Par. 14.
Alabama Code Sec. 12-14-34 requires that acting municipal judges (what Plaintiff is
calling a Special Municipal Judge) be appointed by the mayor of the municipality. Plaintiff alleges
that the judge who convicted him was not appointed by the mayor. Doc. 1 at 12. The person
who signed off on the judges appointment was instead the City Manager in lieu of the Mayor.
See Exh. 1-B. Importantly, Plaintiff does not allege that he raised the issue of the acting judges
appointment at any point during his trial or prior to his conviction.
Having timely appealed his conviction, Plaintiff was entitled to a trial de novo before the
Circuit Court of Houston County. See Ala. Code Sec. 12-14-70(a) (trial de novo on appeal to

Documents can be considered without converting the motion to dismiss into a motion for summary
judgment where they are (1) central to the plaintiff's claim, and (2) [their] authenticity is not
challenged. Speaker v. U.S. Dep't of Health & Human Servs. Centers for Disease Control &
Prevention, 623 F.3d 1371, 1379 (11th Cir.2010) (internal quotations and citations omitted). The
documents attached as exhibits to this motion are certified court records and their authenticity
cannot be legitimately challenged. In addition, this Court can take judicial notice of public records
such as the court records at issue here. See Universal Express, Inc. v. U.S. SEC, 177 Fed. Appx.
52, 53 (11th Cir.2006) (courts may take judicial notice of public records).

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Circuit Court) & Exh. 2 (noting that appeal of each charge was to the Circuit Court of Houston
County).
On June 10, 2016, before the instant case was filed and before Plaintiffs unlawful
imprisonment charges were tried de novo before the Circuit Court, the prosecutor moved to dismiss
Plaintiffs appeal and to remand the cases for retrial before the municipal court. See Exh. 1. The
ground for the remand was that the judge who had tried the Plaintiffs case had not been properly
appointed and the underlying judgment was void. See Exh. 1. The Houston County Circuit Court
granted the motion to dismiss the appeal, and the case was remanded to the Dothan Municipal
Court on June 13, 2016. See Exh. 3.
Plaintiff has not pled any facts that would suggest that the problem with the appointment
of the judge who convicted him was the result of anything more than an honest error.
Though Plaintiff contends in his Complaint that he was initially incarcerated, Doc. 1,
Par. 14, Plaintiff was not incarcerated as a result of his conviction as evidenced by the fact that he
appealed the conviction and obtained an appeal bond on the same day he was convicted as set out
above. See Exh. 2.
Plaintiff also does not contend that he paid fines or costs in this matter (nor did he). See
Doc. 1 at Par. 14 (noting only initial[ly] incarceration and incur[ence of] appeal bond fees and
the costs of the appeal bond.).
Plaintiff does not seek injunctive relief. He seeks only damages and Section 1988
attorneys fees for the alleged violation of his due process and equal protection rights. See Doc.
1, Pars. 25-27.
In summary, Plaintiff was not incarcerated as a result of the conviction and has no
outstanding judgment for fines or costs. Nor has Plaintiff paid any fines or costs, and he has been

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granted a new trial. Thus, the only deprivation Plaintiff could even arguably claim would be the
alleged appeal bond fees and the costs of the appeal bond though Plaintiff does not indicate what,
if any, amounts he actually paid in connection with such costs and fees. See Doc. 1 at Par. 14.
Under Alabama law, where there is no objection to a faultily-appointed judge prior to
conviction, the underlying conviction is not reviewable even in a collateral proceeding. Benjamin
v. State, 156 So.3d 424, 459 (Ala. Crim. App. 2013) (emphasis added). Rather, after such a
conviction, the Alabama law renders the judge a de facto official, and his actions are valid and
binding. See id. (quoting and relying on Ala. Code 36-1-2, Alabamas de facto official statute).
Therefore, while the issue of the judges authority was raised (by the prosecution) in Plaintiffs de
novo appeal to Circuit Court in the underlying case and was thus considered as a basis for reversal
in that case, the individuals in the alleged class who Plaintiff seeks to represent have waived the
issue to the extent that the issue was not raised before their convictions were final. Plaintiff has
not alleged that any member of the purported class raised the appointment issue prior to conviction.
III.

FAILURE TO STATE A CLAIM

Plaintiff alleges that he was deprived of his right to due process of law. (Doc. 1 at Par.

20). Although his Complaint does not make clear whether he alleges a procedural-due-process
claim or a substantive-due-process claim, Plaintiff cannot prevail under either claim, and his case
is due to be dismissed under Rule 12(b)(6) of the Fed. R. Civ. P.
A.

Substantive Due Process

In order to establish a substantive due process claim under 42 U.S.C. 1983, Plaintiff must
allege: 1) that an act or omission deprived [him] of a right, privilege or immunity secured by the
Constitution or laws of the U.S.; and 2) that the act or omission was done by a person acting under

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color of law. Niziol v. Pasco County Dist. School Bd., 240 F.Supp.2d 1194, 1203 (M.D.Fla.2002)
(cited in Ward v. Smoke, 2015 WL 9488252 *5 (M.D. Ala. 2015)).
It is well-established that the violation of a state law by a governmental actor does not
necessarily convert subsequent resulting harm into a due-process violation. Jackson v. Hamm, 78
F.Supp.2d 1233, 1239 (M.D. Ala. 1999). Likewise, 1983 provides no cause of action for
violation of state-law procedural requirements, even if those requirements were instituted in part
to ensure compliance with the federal Constitution. Alexander v. City of Muscle Shoals, 766 F.
Supp. 2d 1214, 1234-35 (N.D. Ala. 2011).
Instead, a government actors violation of state law must correspond with the infringement
of a right derived from the United States Constitution in order to establish a substantive-dueprocess claim. Jackson v. Hamm, 78 F. Supp. 2d 1233, 1239 (M.D. Ala. 1999). Substantive due
process protects those rights that are fundamental, that is, rights that are implicit in the concept
of ordered liberty. McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (en banc) (quoting
Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
In this case, the Complaint alleges that the City failed to adhere to the procedural
requirements of Ala. Code 12-14-34 when it appointed acting municipal court judges. However,
this violation of state-law procedural requirements provided does not, by itself, make out a
substantive-due-process claim. In fact, Plaintiff does not allege the violation of any fundamental
right with regard to the allegedly improper appointment of the municipal court judge, nor could
he, particularly where his conviction was vacated and a retrial granted prior to his serving any time
or paying any fines or costs. See Ward v. Smoke, 2015 WL 9488252 *5 (M.D. Ala. 2015) ([t]he

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law of this Circuit is clear that fundamental rights are rooted in the Constitution, not in state laws
. . . .). 2
Because Plaintiffs Complaint fails to allege the violation of any fundamental right, he has
failed to state a claim upon which relief can be granted. As a result, to the extent that Plaintiffs
Complaint asserts a substantive due process claim, it is due to be dismissed as a matter of law.
B.

Procedural Due Process

In addition, any procedural due process claim asserted in Plaintiffs Complaint is also due
to be dismissed. To prevail on a procedural due process claim under 1983, Plaintiff must
establish: (1) a constitutionally protected interest in life, liberty or property; (2) governmental
deprivation of that interest; and (3) the constitutional inadequacy of procedures accompanying the
deprivation. Jackson v. Hamm, 78 F. Supp. 2d 1233, 1243 (N.D. Ala. 1999) (quoting Bank of
Jackson County v. Cherry, 980 F.2d 1354, 1357 (11th Cir. 1992)). Procedural due process merely
requires notice and an opportunity to be heard. See, e.g., Doe v. Moore, 410 F.3d 1337, 1342 (11th
Cir. 2005).
At most, Plaintiff may be claiming that the City violated his right to procedural due process
when the Municipal Court collected appeal-related fees from him or required an appeal bond. The
facts set out in Plaintiffs Complaint fail to establish a procedural due process claim because the
unlawful conduct described, the faulty appointment of the municipal court judge, amounts to, at
most, a negligent failure to follow state law governing [Plaintiffs] trial and appeal, and does not
constitute a deprivation under the Due Process Clause. Frone v. City of Riverdale, 521 Fed.

In Ward, for instance, the plaintiff complained that the county violated its own policy and
procedure manual in connection with the appointment of the appeal board that heard her
termination appeal, among other things. This Court very clearly held that the infraction did not
arise to the violation of a fundamental constitutional right.
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Appx. 789, 791 (11th Cir. 2013). In Frone, the plaintiff contended that his due process rights were
violated because he was made to pay his fines and costs while his appeal was or should have been
pending. The court held otherwise. The Plaintiffs claim here is analogous to Frone in that he
seems to be arguing that he was made to pay the appeal-related costs in error because the
underlying conviction was invalid. Just as in Frone, nothing suggesting anything more than pure
negligence has been alleged.
More importantly, there appears to be no case law holding that it is a deprivation of a
property interest where a party to litigation pays costs associated with an appeal or appeal bond
merely because the judge who ruled on the case was improperly appointed or otherwise lacked
jurisdiction. Presumably, appeal bonds serve the same purpose whether the underlying conviction
is subject to being vacated on this kind of jurisdictional ground as it would in any other
circumstance. What Plaintiff is basically arguing is that the requirement to post an appeal bond or
pay an appeal-bond fee is an unconstitutional deprivation of property whenever the court from
which the appeal was taken lacked subject matter jurisdiction. Such a rule does not appear to be
established in the case law.
Further, even if Plaintiffs Complaint were sufficient to state a plausible deprivation of a
property interest, Plaintiffs claim is nevertheless due to be dismissed because he has not and
cannot allege that the state failed to provide him an adequate remedy for the alleged deprivation
suffered. This is true because a procedural-due-process violation is not complete unless and until
the State fails to provide due process. In other words, the state may cure a procedural deprivation
by providing a later procedural remedy; only when the state refuses to provide a process sufficient
to remedy the procedural deprivation does a constitutional violation actionable under section 1983
arise. McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (internal citations omitted).

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In this case, any property deprivation that Plaintiff could even arguably allege can be raised
in a state court tribunal. See, e.g., Armstrong v. Cummins, 2009 WL 2709954 at *4 (M.D. Ala.
2009) (explaining that even though plaintiff claims procedural deficiencies and bias in the
hearings, he has not alleged that the state of Alabama has refused to provide an adequate postdeprivation remedy. In the absence of such an allegation, he fails to state a claim for violation of
his right to procedural due process.) (citing Bell v. City of Demopolis, Ala., 86 F.3d 191, 192
(11th Cir. 1996) (the availability of state court review belies a procedural due process claim); Hicks
v. Jackson County Comm'n, 990 So.2d 904, 912 (Ala. Civ. App. 2008)). In other words, Plaintiffs
claim for procedural due process fails because he has not alleged that the State of Alabama failed
to provide him an adequate post-deprivation remedy. There is nothing stopping Plaintiff from
filing a motion before the Municipal Court for seeking reimbursement of his appeal-related fees
or seeking to have his appeal bond vacated.
In conclusion, because Plaintiffs conviction has already been vacated and his case
remanded to municipal court for a new trial, and he has not alleged that the state will fail to provide
him due process in connection with the alleged deprivation of the appeal-related fees or that such
costs constitute a deprivation, his procedural due process claim is due to be dismissed as a matter
of law.
C.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment requires the government to
treat similarly situated people alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432,
439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985). To state a claim under the Equal Protection
Clause, a plaintiff generally must allege that (1) she is similarly situated with other persons who
received more favorable treatment; and (2) her discriminatory treatment was based on some

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constitutionally protected interest. See Jones v. Ray, 279 F.3d 944, 94647 (11th Cir. 2001)
(internal quotations omitted). Thus, in order to assert a viable equal protection claim, a plaintiff
must first make a threshold showing that she was treated differently from others who were
similarly situated to her. See Nordlinger v. Hahn, 505 U.S. 1, 112 S. Ct. 2326, 2331, 120 L. Ed.
2d 1 (1992); Hendking v. Smith, 781 F.2d 850 (11th Cir.1986). The Plaintiff must also allege that
the defendant acted with the intent to discriminate against her. See McClesky v. Kemp, 481 U.S.
279, 292, 107 S. Ct. 1756, 1767, 95 L.Ed.2d 262 (1987); E & T Realty v. Strickland, 830 F.2d
1107, 1113 (11th Cir.1987).
Conclusory allegations or assertions of personal belief of disparate treatment or
discriminatory intent are insufficient. GJR Inv., Inc. v. County of Escambia, Fla., 132 F.3d 1359,
136768 (11th Cir.1998); Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1569 (11th Cir.1987). The Equal
Protection Clause is also implicated in class of one claims. Campbell v. Rainbow City, Ala., 434
F.3d 1306, 1314 (11th Cir.2006). A class of one equal protection claim does not allege
discrimination against a protected class, but rather it alleges that the plaintiff 'has been
intentionally treated differently from others similarly situated and that there is no rational basis for
the difference in treatment.' Griffin Indus. v. Irvin, 496 F.3d 1189, 1202 (11th Cir.2007) (quoting
Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000)).
The same strict similarly situated standard applies whether an equal-protection claim is brought
under a class of one theory or a traditional theory of unlawful discrimination. Id. at 120405.
Indeed, the similarly situated requirement must be rigorously applied in the context of class of
one claims. See Leib v. Hillsborough Cnty. Pub. Transp. Comm'n, 558 F.3d 1301, 1306 (11th Cir.
2009).

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Plaintiff does not attempt to flesh out any basis for an equal-protection claim. Plaintiff
does not even allege who the similarly situated group treated more favorably is. Moreover, his
class claims even allege that he was treated exactly as all defendants who appeared before an acting
municipal court judge. More importantly, though, there is no claim that the City intentionally
sought to treat him less favorably, and, therefore, Plaintiff cannot show that Dothan acted with an
intent to discriminate against him. See McClesky, supra. Plaintiff himself recognizes that he has
no basis upon which to claim that the invalid appointment was the result of anything more than
negligence. See Doc. 1 at 12 (using the introductory phrase [w]hether intentionally or through
mere negligence to describe the invalid appointment). As such, his equal-protection claim is due
to be dismissed for failure to state a claim at all, and it is certainly due to be dismissed under the
heightened pleading standards of Twombly, supra.
D.

Younger Abstention

Even if Plaintiffs Complaint sufficiently stated a claim for relief, this Court should
nonetheless dismiss Plaintiffs claims under the Younger abstention doctrine. In determining
whether to apply the Younger doctrine, this court must consider three issues: (1) whether the
proceedings constitute an ongoing state judicial proceeding; (2) whether the proceedings involve
important state interests; and, (3) whether there is an adequate opportunity in the state proceedings
to raise constitutional challenges. See 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.
2003).
In this case, because all three Younger considerations are satisfied, this Court should
dismiss Plaintiffs claims. First, Plaintiffs criminal charges are currently pending in the Dothan
Municipal Court. See Exh. 3. Second, the proceedings implicate important state interests because
the issue raised involves the application of a state statute (Code of Alabama, 12-14-34), the

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function of the state judicial system, and issue of state-court jurisdiction. Finally, as explained
above, Plaintiff has an adequate opportunity in the state proceedings to raise his constitutional
challenges. Specifically, he can certainly file a motion to seek reimbursement of any appeal-bond
related fees paid to the Court in his criminal proceeding.
E.

Ripeness

In this case, because Plaintiffs procedural-due-process claims are not yet ripe for judicial
determination, this Court should exercise judicial restraint. See Stubbs v. City of Center Point, 988
F. Supp. 2d 1270, 1278-79 (N.D. Ala. 2013) (internal quotations omitted). In Stubbs, the court
held that the plaintiff was still in the middle of her process; therefore, her claim that she has not
received the process she is due under the constitution is not yet fit for judicial determination.
Stubbs at 1279. Just as in Stubbs, the due process issue in this case in not yet ripe for judicial
decision and the plaintiff must continue to pursue h[is] remedy in state court before this court
can determine whether a due process violation has occurred. Id. at 1280.
CONCLUSION
In conclusion, Plaintiffs complaint is due to be dismissed in its entirety for failure to state
a claim upon which relief may be granted.
Respectfully submitted this 4th day of August, 2016.

s/Shannon L. Holliday
Lee H. Copeland (ASB-3461-o72l)
Shannon L. Holliday (ASB-5440-Y77S)
COPELAND, FRANCO, SCREWS & GILL, P.A.
P.O. Box 347
Montgomery, AL 36101-0347
Telephone: 334-834-1180
Facsimile: 334-834-3172
copeland@copelandfranco.com
holliday@copelandfranco.com
ATTORNEYS FOR CITY OF DOTHAN
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CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of August, 2016, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system, which will send notification of such filing to:
Derek E. Yarborough
Motley, Motley & Yarborough LLC
117 East Main Street
Dothan, AL 36301
Stephen T. Etheredge, Sr.
Dustin J. Fowler
Buntin, Etheredge & Fowler, LLC
P.O. Box 1193
Dothan, AL 36301

s/Shannon L. Holliday
Of Counsel

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EXHIBIT 1

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EXHIBIT 1A

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EXHIBIT 1B

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EXHIBIT 1C

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EXHIBIT 1D

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EXHIBIT 2

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EXHIBIT 3

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