# Ferguson v. City of Montgomery

> District Court, M.D. Alabama · May 19, 2023

URL: https://www.frixlaw.com/law-library/cases/9988337

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** May 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

ANTAVIONE FERGUSON, )
)
Plaintiff, )
)
v. ) CIVIL ACT. NO. 2:22-cv-607-ECM
) (WO)
CITY OF MONTGOMERY, et al., )
)
Defendants. )

MEMORANDUM OPINION and ORDER
I. INTRODUCTION
Plaintiff Antavione Ferguson (“Ferguson”) alleges he was wrongfully terminated
from his employment as a Montgomery police officer by Defendants City of
Montgomery (“Montgomery”) and Steven Reed (“Reed”), mayor of Montgomery
(collectively, the “Defendants”). Ferguson filed a complaint against the Defendants for a
violation of Title VII of the 1964 Civil Rights Act (Count I), and for violations of the
Fourteenth Amendment Substantive Due Process Clause, pursuant to 42 U.S.C. § 1983
(Counts II and III). (Doc. 1).
Now pending before the Court is the Defendants’ motion pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Doc. 11). They move to dismiss Count I—insofar as it
is brought against Reed—and Counts II and III. Ferguson failed to respond to the motion
to dismiss. The onus is on the parties to formulate arguments, and absent argument and
supporting statutes or case law, Ferguson’s failure to file a response cannot support a
finding in his favor or even trigger a meaningful review by the Court. Resolution Tr.
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995); Rd. Sprinkler Fitters Local
Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994).
Nevertheless, the Court’s own analysis reveals that Ferguson’s Title VII claim against

Reed and his Fourteenth Amendment substantive due process claims are due to be
dismissed.
II. JURISDICTION AND VENUE
The Court has original subject matter jurisdiction of this matter pursuant to
28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested, and the Court

concludes that venue properly lies in the Middle District of Alabama. See
28 U.S.C. § 1391.
III. LEGAL STANDARD
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of the complaint against the legal standard set forth in Rule 8: “a short and

plain statement of the claim showing that the pleader is entitled to relief.”
FED. R. CIV. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). At this stage of the proceedings, “the court must accept as

true all factual allegations in the complaint and draw all reasonable inferences in the
plaintiff’s favor.” Bailey v. Wheeler, 843 F.3d 473, 478 n.3 (11th Cir. 2016).

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The determination of “whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. The plausibility standard

requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678.
Conclusory allegations that are merely “conceivable” and fail to rise “above the
speculative level” are insufficient to meet the plausibility standard. Twombly, 550 U.S. at
555, 570. This pleading standard “does not require detailed factual allegations, but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Iqbal, 556 U.S. at 678 (quotations and citations omitted). Indeed, “[a] pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of action
will not do.” Id. (quotations and citations omitted).
IV. FACTS1
Ferguson, a black male, served as a Montgomery police officer from 2004 until his

termination in 2020. On June 30, 2020, while pursuing a suspect, Ferguson deployed a
carotid submission hold to effectuate an arrest. Montgomery internal affairs investigated
Ferguson’s use of force, and the mayor’s representative held a hearing. As a result,
Ferguson received a twenty-day suspension.
Ferguson appealed this suspension directly to Reed pursuant to Montgomery City-

County Personnel Board Rules. On October 20, 2020, Reed terminated Ferguson for the

1 This recitation of the facts is based on Ferguson’s complaint. (Doc. 1). The Court recites only the facts
pertinent to resolving the Defendants’ motion to dismiss. For purposes of ruling on the motion, the facts
alleged in the second amended complaint and reasonable inferences drawn therefrom are set forth in the
light most favorable to Ferguson.

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use of the carotid submission hold during the arrest. After exhausting administrative
remedies, Ferguson brought this lawsuit.
V. DISCUSSION

A. Title VII Claim Against Reed
The Defendants ask the Court to dismiss Ferguson’s Title VII race discrimination
claim against Reed. It is unclear from the complaint against which Defendant Ferguson
intends to bring his Title VII claim. The claim’s heading reads: “Plaintiff’s Claims of
Race Discrimination in Violation of Title VII Against Defendant.” (Doc. 1 at 5).

Throughout the claim, Ferguson asserts that the “actions of the Defendant . . . caused the
Plaintiff financial loss” and “[t]he Defendant has a habit and/or practice of allowing and
condoning discrimination.” (Id. at 7). Ferguson also seeks damages in this Count “as a
consequence of Defendant’s unlawful conduct.” (Id.). Because it is unclear against
which defendant Ferguson brings this claim, the Defendants assume it is against

Montgomery and do not seek to have that claim against the city dismissed.
To the extent that Ferguson also brings a Title VII claim against Reed, the
Defendants move to dismiss this claim. The law in this Circuit is clear that Title VII
claims are properly brought against employers, not individual employees. See, e.g.,
Hinson v. Clinch Cnty. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000) (“The relief

granted under Title VII is against the employer, not individual employees whose actions
would constitute a violation of the Act.” (citing Busby v. City of Orlando, 931 F.2d 764,
772 (11th Cir. 1991))). Accordingly, Ferguson cannot properly bring a claim under Title
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VII against Reed individually for his involvement in his alleged wrongful termination.
And because any official capacity claim against Reed as mayor would be duplicative of
Ferguson’s claim against Montgomery, the Court dismisses any official capacity Title VII

claim against Reed as redundant. See Dubose v. City of Hueytown, 2016 WL 3854241,
at *6 (N.D. Ala. July 15, 2016) (“[C]ourts in the Eleventh Circuit routinely dismiss the
official capacity claims against the individual defendant when the municipality they
represent is also a defendant.”). Therefore, to the extent that Ferguson asserts claims
against Reed pursuant to Title VII, either in his individual or official capacity, those

claim are due to be dismissed.
B. Fourteenth Amendment Substantive Due Process Claims
The Defendants maintain that Ferguson’s Fourteenth Amendment substantive due
process claims are due to be dismissed because the Substantive Due Process Clause does
not protect public employment rights. The Fourteenth Amendment of the U.S.

Constitution prevents states from depriving “any person of life, liberty, or property,
without due process of law.” U.S. CONST. amend. XIV, § 1. “The Due Process Clause
provides two different kinds of constitutional protections: procedural due process and
substantive due process.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013)
(citations omitted). The Substantive Due Process Clause “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) (quotation and citation
omitted). The Supreme Court has recognized a limited number of fundamental rights—
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namely, those “rights enumerated in the Bill of Rights” and “certain unenumerated
rights.” Id. Areas, however, “in which substantive rights are created only by state law (as
is the case with tort law and employment law)”—not involving fundamental rights—“are

not subject to substantive due process protection” of the Fourteenth Amendment. Id.
Here, Ferguson asserts a substantive due process right to public employment. His
claims against Montgomery and Reed are for “Violation[s] of 14th Amendment
Substantive Due Process Rights,” claiming Reed “wrongfully terminated” him “without
review of any of the evidence and based . . . on arbitrary and capricious factors.” (Doc. 1

at 8, 9). It is clear, then, that the basis of Ferguson’s substantive due process claims is his
alleged right to continued employment.
In McKinney, however, the court held that property rights in public employment
raise only procedural due process concerns, not substantive due process concerns.
20 F.3d at 1556 (“[R]emaining largely outside the scope of substantive due process

jurisprudence [is] public employment law.”). Because “public employment law” falls
under the category of “substantive rights . . . created only by state law,” a right to
continued employment is “not subject to substantive due process protection under the
Due Process Clause.” Id. Therefore, McKinney forecloses Ferguson’s claims to
substantive due process arising from any interest he may have in continued public

employment as a police officer. See id. The Defendants’ motion to dismiss the
Fourteenth Amendment substantive due process claims, therefore, is due to be granted.

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VI. CONCLUSION
Accordingly, for the reasons stated, and for good cause, it is
ORDERED that the Defendants’ motion to dismiss (doc. 11) is GRANTED. All

claims against defendant Steven Reed are DISMISSED. Counts II and III against the
City of Montgomery are DISMISSED.
Done this 19th day of May, 2023.

/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9988337. Public record. Not legal advice.