Brown v. University of Alabama

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

JAMES P. BROWN, et al., )

)

Plaintiffs, )

)

v. ) Case No. 7:24-cv-1069-GMB

)

UNIVERSITY OF ALABAMA, et al., )

)

Defendants. )

)

MEMORANDUM OPINION AND ORDER

Pro se Plaintiffs James P. Brown and Patti McGee Brown bring claims

pursuant to 42 U.S.C. § 1983 against The Board of Trustees of The University of

Alabama (the “Board”),1 Kay Palan, Joanne Hale, and Kristy Reynolds. Doc. 1. The

parties have consented to the jurisdiction of a United States Magistrate Judge

pursuant to 28 U.S.C. § 636(c). Doc. 24. Before the court are motions to dismiss

filed by the Board and Palan (Doc. 8) and by Hale and Reynolds. Doc. 23. The

motions are fully briefed (Docs. 13, 14, 27 & 28) and ripe for decision. The motions

to dismiss are due to be granted but the court will allow the Browns an opportunity

to remedy the deficiencies in their complaint.

1 The Browns list the “University of Alabama” as a defendant in their complaint, but the Board

explains in its motion to dismiss that the university is a division of the Board and is not registered

as its own legal entity with the Alabama Secretary of State. Doc. 8 at 1 n.1. The Clerk of Court is

therefore DIRECTED to correct the docket to designate this defendant as The Board of Trustees

of The University of Alabama.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a

complaint for “failure to state a claim upon which relief can be granted.” In

considering a motion to dismiss under Rule 12(b)(6), the court must “take the factual

allegations in the complaint as true and construe them in the light most favorable to

the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). To

survive a motion to dismiss, a complaint must include “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550

(2007). A claim is “plausible on its face” if “the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint

“requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Factual

allegations need not be detailed, but “must be enough to raise a right to relief above

the speculative level,” id., and “unadorned, the-defendant-unlawfully-harmed-me

accusation[s]” will not suffice. Iqbal, 556 U.S. at 678.

“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 F. App’x 635, 637 (11th

Cir. 2010).

At the motion-to-dismiss stage, the court limits its consideration to the

allegations contained in the complaint. See Erb v. Adv. Sales & Marketing, LLC,

2012 WL 3260446, at *3 (N.D. Ala. Aug. 3, 2012). Accordingly, “a plaintiff may

not supplant allegations made in [the] complaint with new allegations raised in a

response to a motion to dismiss.” Brahim v. Holder, 2014 WL 2918598, at *4 (S.D.

Fla. June 26, 2014) (citing Long v. Satz, 181 F.3d 1275, 1278–79 (11th Cir. 1999))

(“It is axiomatic that a plaintiff may not amend his Complaint in response to a motion

to dismiss.”).

In the Browns’ responses to the motions to dismiss, they mention facts that

are not alleged in the complaint. See Doc. 13 at 1–2; Doc. 27 at 1–2. Because the

Browns may not rely on these new facts to defeat a motion to dismiss, see Erb, 2012

WL 3260446, at *3, the court limits its discussion below to the allegations in the

Browns’ complaint.

II. STATEMENT OF FACTS

The University of Alabama employed James Brown for 12 years as a Senior

Instructor in the Culverhouse College of Business. Doc. 1 at 8. His employment was

subject to a non-tenured, three-year renewable contract. Doc. 1 at 8. At the time of

his hiring, the “Defendant’s Department Head” informed him that the college

“regularly renews” its three-year employment contracts, and in fact had “never not

renewed a [three]-year faculty contract.” Doc. 1 at 8. In late 2021, however, James’

wife, Patti, “posted several opinion pieces on Facebook which were critical of the

University.” Doc. 1 at 8. “After being made aware of these posts,” the University

did not renew James’ employment contract. Doc. 1 at 8.

Based on these events, the Browns filed their federal complaint and alleged

that the defendants “retaliated against Patti’s exercise of her free speech rights by

not renewing her husband’s employment contract.” Doc. 1 at 8. As a result, the

Browns claim to have “suffered financial, reputational, and emotional harm.”

Doc. 1 at 8.

III. DISCUSSION

The defendants argue that they are immune from suit.2 First, they argue that

the Eleventh Amendment immunizes Palan, Hale, and Reynolds from official-

capacity claims and the Board from all claims.3 Doc. 8 at 3–5; Doc. 23 at 3–5.

Second, Palan, Hale, and Reynolds argue they are entitled to qualified immunity for

2 Hale and Reynolds also argue that the Browns’ claims are barred by the statute of limitations.

Doc. 23 at 8–9. In doing so, the defendants rely on facts that the Browns improperly included in

their briefs after omitting from their complaint. See Doc. 23 at 9 & n.7. The Browns should include

any dates material to their claims in their amended complaint, and the court will revisit any statute

of limitations arguments once it receives the amended complaint.

3 While the Browns state in response to the motion to dismiss that their “suit is directed at

Defendants in their individual capacities” (Doc. 27 at 3), their complaint and briefs are not a model

of clarity on this issue. The court therefore addresses the viability of any official capacity claims

against the three individual defendants.

any claims brought against them in their individual capacities. Doc. 8 at 5–9;

Doc. 23 at 5–8. The court agrees on both points.

A. Eleventh Amendment Immunity

The Eleventh Amendment provides that the “Judicial power of the United

States shall not be construed to extend to any suit in law or equity, commenced or

prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. “The Supreme

Court has extended Eleventh Amendment immunity to prevent suits in federal court

against a state by its own citizens.” Brown v. Fla. Dept. of Rev., 697 F. App’x 692,

692 (11th Cir. 2017). And it is “well-settled that Eleventh Amendment immunity

bars suits brought in federal court . . . when an ‘arm of the State’ is sued.” Manders

v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (citing Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). The Board of Trustees of the

University of Alabama, like any other board of a state university in Alabama, is an

arm of the state for purposes of Eleventh Amendment immunity. Page v. Hicks, 773

F. App’x 514, 518 (11th Cir. 2019); Harris v. Bd. of Tr. Univ. of Ala., 846 F. Supp.

2d 1223, 1233 (N.D. Ala. 2012) (citing Harden v. Adams, 760 F.3d 1158, 1163 (11th

Cir. 1985)).

Likewise, Eleventh Amendment immunity has “been extended to state

officials, acting in their official capacity, where an agency or individual may ‘be

treated as an arm of the State partaking of the Eleventh Amendment Immunity.’”

Melton v. Abston, 841 F.3d 1207, 1233 (11th Cir. 2016), abrogated on other grounds

by Twombly, 550 U.S. at 544 (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 280 (1977)). In this context, university faculty and employees

are considered to be state officials. See Harden v. Adams, 760 F.2d 1158, 1163–64

(11th Cir. 1985) (explaining that the board of trustees of an Alabama state university

and various university officials, such as the university president, are entitled to

sovereign immunity); Greenwell v. Univ. of Ala. Bd. of Trs., 2012 WL 3637768, at

*7–8 (N.D. Ala. Aug. 22, 2012) (same).

There are two exceptions to Eleventh Amendment immunity. The first is that

“a state may waive its immunity expressly through legislative enactment.” Carr v.

City of Florence, 916 F.2d 1521, 1524 (11th Cir. 1990). The second is that

“Congress can abrogate eleventh amendment immunity without the state’s consent

when it acts pursuant to the enforcement provisions of section 5 of the fourteenth

amendment.” Id. Neither exception applies here. Congress has not abrogated

Eleventh Amendment immunity in § 1983 cases, see Quern v. Jordan, 440 U.S. 332,

338 (1979), and the State of Alabama has not waived its immunity. See Ala. Const.

art. I, § 14 (“[T]he State of Alabama shall never be made a defendant in any court of

law or equity.”).

For these reasons, the court must dismiss the Browns’ § 1983 claim against

the Board because it is an arm of the state entitled to Eleventh Amendment

immunity. See Page, 773 F. App’x at 520. The defendants also argue that Palan, the

dean of the University’s business school; Hale, the associate dean of the business

school; and Reynolds, the head of the business school’s marketing department, are

all state officials who are entitled to Eleventh Amendment immunity. See Doc. 8 at

7; Doc. 23 at 4; Doc. 1 at 2. The court agrees and dismisses any official-capacity

claims stated against them. See Melton, 841 F.3d at 1233; Greenwell, 2012 WL

3637768, at *7–8.

B. Qualified Immunity

Palan, Hale, and Reynolds also contend that qualified immunity protects them

from the Browns’ § 1983 claims against them in their individual capacities. “The

defense of qualified immunity completely protects government officials performing

discretionary functions from suit in their individual capacities unless their conduct

violates clearly established statutory or constitutional rights of which a reasonable

person would have known.” Marbury v. Warden, 936 F.3d 1227, 1232 (11th Cir.

2019) (quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233

(11th Cir. 2003)); Jordan v. Mosley, 487 F.3d 1350, 1354 (11th Cir. 2007)

(explaining that qualified immunity protects “all but the plainly incompetent or those

who knowingly violate the law”). Qualified immunity “grants officials a right not

to be subjected to litigation beyond the point at which immunity is asserted,” and it

should be resolved “at the earliest possible stage of litigation.” Miller v. Palm Beach

County Sheriff’s Off., 129 F.4th 1329, 1333 (11th Cir. 2025) (quotation marks and

citations omitted). An entitlement to qualified immunity “raised on a motion to

dismiss will be granted if the complaint fails to allege the violation of a clearly

established constitutional right.” Id. at 1333–34 (quoting Chesser v. Sparks, 248 F.3d

1117, 1121 (11th Cir. 2001)) (cleaned up).

Qualified immunity begins with a two-step inquiry. First, the court must

determine whether the government official has demonstrated she was “acting within

the scope of [her] discretionary authority when the alleged wrongful act occurred.”

Maggio v. Sipple, 211 F.3d 1346, 1350 (11th Cir. 2000) (quotation marks and

citation omitted). Here, Palan, Hale, and Reynolds assert that their roles are

supervisory to a senior instructor, such as James, and that not renewing James’

contract falls within their scope of authority. Doc. 8 at 7–8; Doc. 23 at 7. The

Browns do not dispute this assertion, so the court moves on to the second step.

See Maggio, 211 F.3d at 1350–51.

After a defendant establishes that she was acting within her discretionary

authority—as Palan, Hale, and Reynolds do here—the burden shifts to the plaintiff

to show that qualified immunity is not appropriate. Miller, 129 F.4th at 1333. To do

so, the plaintiff must plausibly allege that “(1) the defendant violated a constitutional

right, and (2) this right was clearly established at the time of the alleged violation.”

Id. (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.

2004)). “Both elements must be satisfied for an official to lose qualified immunity,”

Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011) (quoting Grider v.

City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir. 2010)), and if “a plaintiff fails

to establish either one, then the defendant is entitled to qualified immunity.”

Daugherty v. Hurst, 491 F. Supp. 3d 1214, 1224 (S.D. Ala. 2020).

Although the defendants here focus their attention primarily on the second

element (see Doc. 8 at 8–9; Doc. 23 at 7–8), the court may conduct “this two-pronged

analysis . . . in whatever order is deemed most appropriate for the case.” Brown v.

City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). Exercising this

discretion, the court will start with the first component: whether the Browns have

plausibly alleged the defendants violated their First Amendment rights when they

did not renew James Brown’s contract after Patti Brown’s social media posts.

1. Whether the Defendants Violated a Constitutional Right

The First Amendment to the United States Constitution “prohibits government

officials from subjecting an individual to retaliatory actions for engaging in

protected speech.” Nieves v. Bartlett, 587 U.S. 391, 298 (2019) (quotation marks and

citation omitted). And the First Amendment may “be violated where the speech that

invoked the government’s retaliatory response was not made by the plaintiff

[himself], but rather by a person in a close relationship with the plaintiff.” Lewis v.

Eufaula City Bd. of Educ., 922 F. Supp. 2d 1291, 1304 (M.D. Ala. 2012) (citing

Adler v. Pataki, 185 F.3d 35, 45 (2d Cir. 1999); Thompson v. N. Am. Stainless, LP,

562 U.S. 170, 173 (2011)). To support a First Amendment claim under those

circumstances, the plaintiff must show that (1) the speech at issue “can be fairly

characterized as relating to a matter of public concern,” (2) his “interests as a citizen

outweigh the interests of the governmental entity . . . as an employer,” and (3) the

protected speech “played a substantial or motivating role in the government’s

decision to take an adverse-employment action.” Lewis, 922 F. Supp. at 1304 (citing

Akins v. Fulton County, Ga., 420 F.3d 1293, 1303 (11th Cir. 2005).

Relevant here, “speech involves a matter of public concern if it can ‘be fairly

considered as relating to any matter of political, social, or other concern to the

community.’” Cook v. Gwinnett County Sch. Dist., 414 F.3d 1313, 1319 (11th Cir.

2005) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Courts look to the

“content, form, and context of the speech” to determine whether a plaintiff has

plausibly alleged that the speech involved a matter of public concern. Id.; Cheatwood

v. City of Vestavia Hills, 2019 WL 13268181, at *3 (N.D. Ala. Mar. 1, 2019)

(dismissing a First Amendment retaliation claim where plaintiff offered “no

information about the nature of the grievances that he raised in his letter” so the court

could not “determine whether the grievances addressed matters of public concern”).

In addition, for a plaintiff to show that protected speech played a role in the

government’s actions, he must allege a causal connection between the protected

speech and the adverse action. Wall-DeSousa v. Fla. Dept. of Hwy. Safety and Motor

Vehicles, 691 F. App’x 584, 591 (11th Cir. 2017). “To establish a causal connection,

the plaintiff must show that the defendant was subjectively motivated to take the

adverse action because of the protected speech.” Id. (quoting Castle v. App. Tech.

Coll., 631 F.3d 1194, 1197 (11th Cir. 2011) (cleaned up). It follows that the causal-

connection inquiry requires a plaintiff to plausibly allege that the defendants had

actual knowledge of the protected speech. Id. (citing Brungart v. BellSouth

Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).

Here, the Browns do not plausibly allege a violation of their First Amendment

right to be free from retaliation. They state that Patti Brown “posted several opinion

pieces on Facebook which were critical of the University” (Doc. 1 at 8), but they

offer no information about the nature of these opinion pieces. Without any facts to

demonstrate that these posts involved a matter of political, social, or other concern

to the community, they have failed to show that Patti engaged in protected speech.

See Cheatwood, 2019 WL 13268181, at *3. And even if they cleared this hurdle,

the Browns did not provide any facts to show Palan, Hale, or Reynolds had actual

knowledge of Patti’s posts or that the posts caused the University’s decision not to

renew James’ contract. The Browns thus have not pled facts in their complaint that

plausibly suggest a First Amendment retaliation claim. See Ashcroft, 556 U.S. at

678. In light of this deficiency, the court concludes the Browns have failed at the

first prong in the qualified immunity analysis.

2. Whether the Constitutional Right Was Clearly Established

Even if the Browns properly alleged a violation of their First Amendment

rights, they also fail to show that these rights were clearly established at the time of

the defendants’ actions.

“To defeat a defendant’s claim to qualified immunity, a plaintiff must show

that a reasonable person in the defendant’s position would have been on notice that

his actions violated clearly established law.” Maggio, 211 F.3d at 1354. The

Eleventh Circuit has explained that “[b]ecause the analysis of First Amendment

retaliation claims involves intensely fact-specific legal determinations, ‘a defendant

in a First Amendment suit will only rarely be on notice that his actions are

unlawful.’” Worley v. City of Lilburn, 408 F. App’x 248, 252 (11th Cir. 2011)

(quoting Maggio v. Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000)). And, in any case,

the Supreme Court has repeatedly cautioned lower courts “not to define clearly

established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011); Rivas-Villegas v. Cotresluna, 595 U.S. 1, 5–6 (2021) (“This inquiry must be

undertaken in light of the specific context of the case, not as a broad general

proposition.”). For example, the “general proposition . . . that an unreasonable

search or seizure violates the Fourth Amendment is of little help in determining

whether the violative nature of particular conduct is clearly established.” Id.

A plaintiff nevertheless can show that a right was clearly established in one

of three ways. The first is by pointing to a “materially similar case decided at the

time of the relevant conduct by the Supreme Court, the Eleventh Circuit, or the

relevant state supreme court.” Stalley v. Cumbie, 124 F.4th 1273, 1284 (11th Cir.

2024) (quotation marks and citation omitted). This path “looks at the relevant case

law at the time of the alleged violation that would have made it obvious to the officer

that his actions violated federal law” such that the “constitutional question [is]

beyond debate.” Id. The second is by identifying a “broader, clearly established

principle that should govern the novel facts of the situation.” Id. And in the third,

“the plaintiff can show that the conduct at issue so obviously violated the

Constitution that prior case law is unnecessary.” Id. The latter two paths are known

as “obvious clarity” cases, which are rare. Gaines v. Wardynski, 871 F.3d 1203, 1209

(11th Cir. 2017); MacIntyre v. City of Palm Bay, 2025 WL 722856, at *7 (M.D. Fla.

Mar. 6, 2025).

No matter the path the Browns choose, they have not met their burden. They

simply argue that “a ‘reasonable competent officer’ would have recognized that non-

renewal of an employment contract as retaliation for First Amendment-protected

speech was unlawful.” See Doc. 13 at 5. The is exactly the type of high-level

comparison the Supreme Court has rejected. See al-Kidd, 563 U.S. at 742. In support

of this general proposition, the Browns identify one non-binding and factually

dissimilar case from Seventh Circuit. Doc. 27 at 7–8; see Surita v. Hyde, 665 F.3d

860 (7th Cir. 2011) (analyzing whether city officials are immune from First

Amendment claims when they required citizens, not government employees, to

apply for a permit under the city’s assembly ordinance before hosting a rally and

barred them from speaking at public city council meetings). The Browns make no

other attempt to identify materially similar caselaw, and they neither argue nor

provide any support for finding that this is a rare “obvious clarity” case. As a result,

the Browns have not established that Palan, Hale, or Reynolds violated clearly

established law.4

Because the Browns do not demonstrate that (1) the defendants violated a

constitutional right or (2) that this right was clearly established at the time of the

alleged violation, they have not met their burden to defeat qualified immunity for

the individual capacity claims against Palan, Hale, or Reynolds.

C. Leave to Amend

Although the allegations in the complaint are insufficient at present, a district

court’s discretion to dismiss a complaint without granting leave to amend “is

severely restrict[ed]” by Federal Rule of Civil Procedure 15(a), “which directs that

4 Even if the Browns had pointed to materially similar caselaw, they do not specify precisely when

the defendants allegedly violated their First Amendment rights. Again, the Browns must plead

any material dates in their amended complaint.

leave to amend ‘shall be freely given when justice so requires.’” Thomas v. Town of

Davie, 847 F.2d 771, 773 (11th Cir. 1988) (internal quotation marks and citation

omitted). Where a more carefully drafted pleading might state a viable claim, a

district court must give at least one chance to amend the complaint before dismissing

the action with prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).

However, a district court need not allow an amendment where (1) “there has been

undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies”

through prior amendments; (2) amending the complaint would prejudice the

opposing party; or (3) “amendment would be futile.” Id.

The court finds that any attempt to amend the Browns’ claims against the

Board or the individual defendants in their official capacities would be futile because

these claims are barred by the Eleventh Amendment. However, with respect to the

claims against Palan, Hale, and Reynolds in their individual capacities, the court will

permit the Browns an opportunity to amend the complaint to correct the deficiencies

described above.

When amending their complaint, the Browns should take note of their

obligations under the Federal Rules of Civil Procedure. Rule 8 requires that a

complaint “must contain . . . a short and plain statement of the claim showing that

the pleader is entitled to relief” and “[e]ach allegation must be simple, concise, and

direct.” And Rule 10 requires that a complaint contain “numbered paragraphs, each

limited as far as practicable to a single set of circumstances.”

The Browns’ amended complaint must clearly set forth the facts concerning

any incident about which they complain in separately numbered paragraphs. The

amended complaint must contain a separate count for each claim that contains a

factual basis for that claim only. Each count should identify: (1) the specific

defendant(s) against whom the claim is asserted, and (2) the statute or law under

which the claim is brought. In addition, the Browns must (1) identify each defendant

they allege participated in the violation of their individual rights; (2) describe what

each defendant did that amounted to a violation of their individual rights; (3) state

when and where the incidents underlying the violation of their individual rights

occurred; (4) describe how the acts or omissions of each defendant resulted in harm

to one or both of them; (5) identify the nature of that harm (for example, loss of

money, income, or property, bodily injury, or interference with their right to engage

in or refrain from some activity); and (6) state the specific relief they seek from each

defendant (for example, compensatory or punitive damages or some form of

injunctive relief, including any request for attorneys’ fees, costs, and expenses).

Finally, the amended complaint must be an entire stand-alone complaint and must

set forth each and every allegation and claim without reincorporating allegations and

claims from any other pleading.

IV. CONCLUSION

For these reasons, it is ORDERED as follows:

1. Defendants’ Motions to Dismiss (Docs. 8 & 23) are GRANTED and all

claims in the complaint are DISMISSED without prejudice.

2. The Browns shall file an amended complaint consistent with this

Memorandum Opinion and Order no later than July 24, 2025. The amended

complaint must be an entire stand-alone complaint and must set forth each and every

allegation and claim against Palan, Hale, and Reynolds in their individual capacities

without reincorporating allegations and claims from any other pleading. The

Browns do not have leave to amend their § 1983 First Amendment claim against the

Board.

DONE and ORDERED on July 10, 2025.

GRAY x De

UNITED STATES MAGISTRATE JUDGE

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