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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CARI D. SEARCY, et al., )
VS. ) CASE NO.: 1:14‐cv‐ 00208
ROBERT BENTLEY, et al., )
BRIEF IN SUPPORT OF MOTION TO DISMISS
BY DEFENDANT NANCY BUCKNER
Pursuant to FED. R. CIV. P. 12(b)(1),12(b)(6) and S.D. ALA. L.R. 7.1 Defendant,
Commissioner Nancy Buckner, submits the following brief in support of her
Motion to Dismiss:
I. INTRODUCTION .............................................................................................................................. 1
II. RULE 12(b)(1) STANDARD ............................................................................................................. 3
III. RULE 12(b)(6) STANDARD ............................................................................................................. 4
IV. ARGUMENTS .................................................................................................................................... 6
A. Plaintiffs lack standing to bring a claim against Commissioner Buckner. ............................. 6
B. Commissioner Buckner is entitled to qualified immunity. .................................................... 13
V. CONCLUSION ................................................................................................................................. 16
Plaintiff McKeand gave birth to plaintiff, minor, K.S., in 2005, in Mobile,
Alabama and subsequently legally married plaintiff, Searcy in California in 2008.
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 1 of 18
(Complaint, Doc. #1, ¶ 13, 18). Plaintiff Searcy petitioned the Probate Court of
Mobile County, Alabama seeking to adopt K.S. as step‐parent and was denied by
defendant, Judge Don Davis. (Complaint, ¶ 21‐22). Upon denial, a Notice of
Appeal was filed with the Supreme Court of Alabama, which subsequently
assigned the case to the Court of Civil Appeals of Alabama. (Complaint, ¶ 23).
The Court of Civil Appeals denied the appeal and affirmed Judge Davis’
decision. (Complaint, ¶ 23).
On May 7, 2014, Plaintiffs filed a federal claim for declaratory and injunctive
relief against defendants alleging violations of the Full Faith and Credit Clause,
Amendment Equal Protection rights and violation of 14
Process rights. (Complaint, ¶ 2). Searcy and McKeand claim that they were
denied the right to a step‐parent adoption specifically because they are a same‐
sex married couple. This claim contests the constitutionality of ALA. CODE § 30‐1‐
19 and ALA. CONST. AMEND. No. 774. (Complaint, ¶ 1) .
Plaintiffs named multiple defendants which include: Robert Bentley,
Governor of Alabama; Luther Strange III, Attorney General for the State of
Alabama; Honorable Don Davis, Mobile County, Alabama Judge of Probate;
Catherine M. Donald, Alabama State Registrar for Vital Statistics; and Nancy
Buckner, Commissioner for the State of Alabama Department of Human
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 2 of 18
Plaintiffs allege that DHR has the authority to amend birth certificates to
reflect the adoption of a child thereby having enforcement authority relative to
the statutes and laws of the State of Alabama. (Complaint, ¶ 11). Plaintiffs allege
that Defendant Buckner, as Commissioner of Alabama DHR, has enforcement
authority in connection with the Sancity Laws in relation to the altering and/or
amendment of birth certificates. (Complaint, ¶ 11).
II. RULE 12(b)(1) STANDARD
“Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, see Willy v. Coastal Corp.,, 503 U.S.
131, 136‐137, 112 S.Ct. 1076, 1080, 117 L.Ed.2d 280 (1992); Bender v. Williamsport
Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed. 2d 501 (1986),
which is not to be expanded by judicial decree, American Fire & Casualty Co. v.
Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). It is to be presumed that a cause
lies outside this limited jurisdiction, Turner v. Bank of North America, 4 U.S. (4
Dall.) 8, 11, 1 L.Ed. 718 (1799), and the burden of establishing the contrary rests
upon the party asserting jurisdiction, McNutt v. General Motors Acceptance Corp.,
298 U.S. 178, 182‐183, 56 S.Ct. 780, 782, 80 L.Ed. 1135 (1936).” Kokkonen v.
Guardian Life Insurance Company of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675
(1994). A defendant can move to dismiss a complaint under Fed. R. Civ. P.
12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack. “A
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 3 of 18
facial attack on the complaint requires the court merely to look and see if the
plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in his complaint are taken as true for the purposes of the motion.”
(quotation, citation, and alterations omitted). By contrast, a factual attack on a
complaint challenges the existence of subject matter jurisdiction using material
extrinsic from the pleadings, such as affidavits or testimony.” Staley v. Orlando
regional Healthcare System, Inc., 524 F. 3d 1229, 1233 (11
“The statutory and (especially) constitutional elements of jurisdiction are
an essential ingredient of separation and equilibration of powers, restraining the
courts from acting at certain times, and even restraining them from acting
permanently regarding certain subjects.” Friends of Everglades v. United States
Environmental Protection Agency, 699 F. 3d 1280, 1288 (11
Cir. 2012); quoting Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003 (1998).
Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the
cause.” Anago Franchising, Inc. v. Shaz, LLC, 677 F. 3d 1272, 1281 (11
III. RULE 12(b)(6) STANDARD
Under FED. R. CIV. P. 12(b)(6) dismissal of the complaint for failure to state
a cause of action is appropriate when no construction of the factual allegations of
the complaint will support the cause of action. Marshall County Board of Education
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 4 of 18
v. Marshall County Gas District, 992 F.2d 1171, 1174 (11
Cir. 1993). The Court
may dismiss the complaint only if it is clear that no relief could be granted under
any set of facts in support of its claims. Jackam v. Hospital Corp. of America
Mideast, Ltd., 800 F.2d 1577, 1579 (11
The rule for dismissal is summarized as follows:
A Rule 12(b) (6) motion tests the legal sufficiency of the complaint.
Prior to the Supreme Court’s recent decision in Bell Atl. Corp. v.
Twombly, 127 S.Ct. 1955 (2007), a motion to dismiss could only be
granted if a plaintiff could prove “no set of facts … which would
entitle him to relief.” See Conley v. Gibson, 355 U.S. 41, 45‐46 (1957);
see also Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Wright v.
Newsome, 795 F.2d 964, 967 (11
Cir.1986). Now, in order to survive
a motion to dismiss for failure to state a claim, the plaintiff must
allege “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 127 S.Ct. at 1974. While the factual allegations of a
complaint need not be detailed, a plaintiff must nevertheless
“provide the ‘grounds’ of his ‘entitlement to relief’ and a formulaic
recitation of the elements of a cause of action will not do.” Id. at
1965. The plaintiff’s “[f]actual allegations must be enough to raise a
right to relief above a speculative level on the assumption that the
allegations in the complaint are true.” Id. It is not sufficient that
the pleadings merely “le[ave] open the possibility that the plaintiff
might later establish some set of undisclosed facts to support
recover.” Id. At 1968 (internal quotation and altercation omitted).
In considering a defendant’s motion to dismiss, a district court will
accept as true all well‐pleaded factual allegations and view them in
a light most favorable to the plaintiff. See Am. United Life Ins. Co. v.
Martinez, 480 F.3d 1043, 1057 (11
Cir.2007). Accord Nelson v.
Campbell, 541 U.S. 637, 640 (2004) (where a court is considering
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 5 of 18
dismissal of a complaint at the pleading stage, it must assume the
allegations of the complaint are true).
McClesky v. City of Dothan, Alabama, F.Supp. 2d ___, 2009 WL 4671454, 454
at 3 (M.D. Ala. December 3, 2009).
The Court is not required to accept a plaintiff’s legal conclusions, Ashcroft
v. Iqbal, 566 U.S. 662 (2009) (noting “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to legal conclusions”).
In evaluating the sufficiency of a plaintiff’s pleadings, the court makes
reasonable inferences in the plaintiff’s favor, “but [is] not required to draw
plaintiff’s inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242,
Cir. 2005). Similarly, “unwarranted deductions of fact” in a complaint
are not admitted as true for the purpose of testing the sufficiency of plaintiff’s
allegations. Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951 (2009) at
1951 (stating conclusory allegations are “not entitled to be assumed true”).
A. Plaintiffs lack standing to bring a claim against
Plaintiffs bring claims against Defendant Buckner in her official capacity
as Commissioner of the Alabama Department of Human Resources. (“Alabama
DHR”) It is undisputed that Alabama DHR is a state agency. A suit against a
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 6 of 18
government official in his official capacity is considered a suit against the
official’s office itself. See Kentucky v. Graham, 473n U.S. 159, 165‐66 (1985). When
that office is an arm of the state government, the Eleventh Amendment “protects
the sovereignty of the state by prohibiting suits when recovery would be paid
from state funds”. Robinson v. Ga. Dep’t of Transp., 966 F.2d 637, 638‐39 (11
1992); see Edleman v. Jordan, 415 U.S. 651 (1976) (defining scope of sovereign
immunity under the Eleventh Amendment). Because the Eleventh Amendment
bars suits for monetary relief against a state or its instrumentalities by its own
While the Eleventh Amendment has been construed to bar suits against a
state brought by that state’s own citizens, absent the state’s consent, there exists a
well‐recognized exception to this general rule “for suits against state officers
seeking prospective relief to end continuing violations of federal law”. McClendon
v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1256 (11
Cir. 2001) (emphasis in
original); see also Ex parte Young, 209 U.S. 123, 159‐60 (1908).
In determining whether the doctrine of Ex parte Young avoids an
Eleventh Amendment bar to suit, a court need only conduct a
‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly
characterized as prospective.’ Idaho v. couer d’Alene Tribe of Idaho,
521 U.S. 261, 296, 117 S. Ct. 2028 (SOUTER, J., joined by STEVENS,
GINSBURG and BREYER, JJ., (dissenting).
Verizon Maryland, Inc. v. Public Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002).
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 7 of 18
However, the plaintiffs may not employ the doctrine under Ex parte
Young, unless they can establish Article III standing. Article III standing is a
constitutional limitation on the exercise of federal court jurisdiction. See Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992). A plaintiff will generally have standing
only where (a) they experienced injury in fact that is (1) concrete and
particularized and (2) actual or imminent, not conjectural or hypothetical; (b)
they injury is fairly traceable to the defendant’s conduct; and (c) their harm is
likely to be redressed by a favorable decision. Id. At 560‐561. “Plaintiffs bear the
burden of establishing each of the three standing elements.” See Bennet v. Spear,
520 U.S. 154, 167‐68 (1997). “At the motion to dismiss stage, the party seeking
standing must rely on the facts alleged in the complaint.” Id. (citing Lujan, 504
U.S. at 561). Here, assuming there is an injury, plaintiffs simply cannot meet
prongs (2) and (3).
In order to have standing to bring a claim for prospective or injunctive
relief, a plaintiff must allege facts that demonstrate “a sufficient likelihood that
he will again be wronged in a similar way”. City of Los Angeles v. Lyons, 461 U.S.
95, 112 (1983).
Because injunctions regulate future conduct a party has standing to
seek injunctive relief only if the party alleges, and ultimately proves, a
real and immediate ‐ as opposed to merely conjectural or hypothetical
– threat of future injury. Logically, a prospective remedy will provide
no relief for an injury that is, and likely will remain, entirely in the
past. Although past wrongs are evidence bearing on whether there is
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 8 of 18
a real and immediate threat of repeated injury, past exposure to illegal
conduct does not in itself show a present case or controversy
regarding injunctive relief if unaccompanied by any continuing,
present adverse affects.
Church v. City of Hunstville, 30 F.3d 1332, 1337 (11
Cir. 1990) (alteration to
original) (citations and internal quotation marks omitted).
The seminal case applying this standard is City of Los Angeles v. Lyons. The
plaintiff in Lyons sued the City of Los Angeles and four police officers after being
subjected to a chokehold without provocation during the course of his arrest.
Lyons, 461 U.S. at 98. The plaintiff sued for damages, as well as injunctive and
declaratory relief that would bar the city from enforcing a policy that allowed
officers to use chokeholds absent an immediate threat of deadly force. Id.
Although the Supreme Court allowed the plaintiff’s claim for money damages to
proceed, it found that the plaintiff did not have standing to pursue injunctive
relief because there was not a “sufficient likelihood that he will again be
wronged in a similar way”. Id. at 111. In other words, there was no “real and
immediate threat that he would again be stopped for a traffic violation, or for
any other offense, by an officer or officers who would illegally choke him into
unconsciousness without provocation or resistance on his part”. Id. at 105. See
Thomas v. Buckner, 2011 U.S. Dist. LEXIS 103260, 2011 WL 4071948 (M.D. Ala.
Sept. 13, 2011). (Plaintiffs did not have standing to seek generalized injunctive or
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 9 of 18
declaratory relief from a DHR policy that did not require a hearing before
placing alleged child abusers on a central registry that listed abusers).
Relief under the Declaratory Judgment Act is explained in Jallali v. USA
Funds, 2012 U.S. Dist. LEXIS 113578, at * 18‐20. (S.D. Fla. Aug. 10, 2012). as
The Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, does not grant
litigants an absolute right to relief. Rather, under the Act, federal courts
have ʺunique and substantial discretion in deciding whether to declare the
rights of litigants.ʺ Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S. Ct.
2137, 132 L. Ed. 2d 214 (1995). The main purpose of the Act is to settle
actual controversies before they ripen into violations of law or breaches of
duty. While past injury may confer a plaintiff standing to seek money
damages, it does not ordinarily confer standing unless a plaintiff
demonstrates a sufficient likelihood that she will again be wronged in a
similar way. Similarly, ʺ[b]ecause injunctions regulate future conduct, a
party has standing to seek injunctive relief only if the party alleges . . . a
real and immediate—as opposed to a merely conjectural or hypothetical—
threat of future injury.ʺ Lugo v. 141 NW 20th Street Holdings, LLC, No. 12‐
80440, 2012 U.S. Dist. LEXIS 90524, 2012 WL 2524288, at *3 (S.D. Fla. June
29, 2012) (Marra, J.) (quoting Wooden v. Bd. of Regents of Univ. Sys. of Ga.,
247 F.3d 1262, 1284 (11th Cir. 2001)); see also Canadian Steel, Inc. v. HFP
Capital Mkts., LLC, No. 11‐23650, 2012 U.S. Dist. LEXIS 84441, 2012 WL
2326119, at *10 (S.D. Fla. June 19, 2012) (Altonaga, J.) (ʺIn order to receive
declaratory or injunctive relief, plaintiffs must establish that there was a
violation, that there is a serious risk of continuing irreparable injury if the
relief is not granted, and the absence of an adequate remedy at law.ʺ
(quoting Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000))). Thus, a
prayer for declaratory or injunctive relief requires the Court to assess
ʺwhether the plaintiff has sufficiently shown a real and immediate threat
of future harm.ʺ Elend v. Basham, 471 F.3d 1199, 1207 (11th Cir. 2006);
accord City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L. Ed.
2d 675 (1983); Am. Federation of Labor & Congress of Indus. Orgs. v. City of
Miami, 637 F.3d 1178, 1185 (11th Cir. 2011); Johnson v. Bd. of Regents, 263
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 10 of 18
F.3d 1234, 1265 (11th Cir. 2001). In this Circuit, for an injury to suffice for
prospective relief, it must be imminent. Elend, 471 F.3d at 1207 (citing 31
Foster Children v. Bush, 329 F.3d 1255, 1266 (11th Cir. 2003)).
The Plaintiffs allege that “DHR has the authority and power to, among
other things, amend birth certificates to reflect the adoption of a child …”.
(Complaint ¶ 11). DHR’s duties are set out in ALA. CODE § 38‐2‐6. (1975) which
concern the development of “welfare activities”. DHR’s varying public welfare
responsibilities include, but is not limited to, the administration of public
assistance, conducting investigations upon complaints concerning minor
children, licensing child care institutions and licensing adult foster homes. ALA.
CODE § 38‐2‐6. (1)(10)(13)(18) (1975). Commissioner Buckner’s duties as DHR’s
Chief Executive Officer are specifically set out in ALA. CODE § 38‐2‐3 (1975) as
conference with State Department of Human Resources Board (hereinafter
“Board”) for the adoption of policies, rules and regulations for the
government of the Board and the Department
perform administrative and executive duties subject to the authority of the
submit annual budget of all funds appropriated to the Department for
approval by the State DHR Board
publish annual report of the operation and administration of the
Department and submission of the report with recommendations to the
appoint a director for each bureau and such other personnel as may be
necessary for the efficient performance of duties
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 11 of 18
interpret policies, rules and regulations formulated by the Board and
authority to create bureaus as necessary for effective operation of the
public assistance program, and to allocate functions among bureaus and
In this case, the plaintiffs are not entitled to seek prospective injunctive or
declaratory relief against Commissioner Buckner given that she has no authority
to amend birth certificates. To the contrary, ALA. CODE § 26‐10A‐32 states as
(b) Upon receipt of a copy of any final order of adoption the State
Registrar of Vital Statistics shall cause to be made a new record of the
birth in the new name and with the name or names of the adopting
parent or parents as contained in the final decree. The state registrar
shall then cause to be sealed and filed the original certificate of birth
with the decree of the court.
Hence, the complaint does not allege a sufficient likelihood that the plaintiffs
will suffer a future wrong by Commissioner Buckner. Any alleged “real and
immediate” future harm cannot be directly connected to Commissioner Buckner
because she has no duty for amending birth certificates nor for granting a step‐
Here, plaintiffs cannot establish prong (2) because their alleged injury is
not traceable to Commissioner Buckner. Second, plaintiffs failed to establish
prong (3) because there is legal impossibility that Commissioner Buckner has a
duty to amend birth certificates. Moreover, Commissioner Buckner does not
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 12 of 18
have the power to enact legislation to change the Sancity Laws. Therefore, she is
simply not the proper defendant.
B. Commissioner Buckner is entitled to qualified immunity.
The test for whether a government defendant is entitled to qualified
immunity in his or her individual capacity involves a two‐step analysis. The first
inquiry concerns “whether the defendant government official was performing a
discretionary function”. Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11
Commissioner Buckner’s duties are executive and administrative in nature. The
plaintiffs do not allege that she does not have discretionary authority as to her
duties set out in ALA. CODE § 38‐2‐3 (1975). Rather, plaintiffs are challenging a
“Once the official has established that he was engaged in a discretionary
function, the plaintiff bears the burden of demonstrating that the official is not
entitled to qualified immunity.” Id. If the plaintiff fails to furnish sufficient
factual allegations at this stage, the defendant officer is entitled to judgment as a
matter of law. See Marsh v. Butler County, Alabama, 248 F.3d at 1014, 1028 (11th
“For a constitutional right to be clearly established, its contours must be
sufficiently clear that a reasonable officer would understand that what he is
doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 13 of 18
internal quotations omitted). This standard does not require a prior court
decision to have declared the precise set of facts presently alleged unlawful, “but
it is to say that in the light of pre‐existing law the unlawfulness must be
apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “The salient question
… is whether the state of the law … gave [the officers] fair warning that their
alleged treatment of [the plaintiff] was unconstitutional.” Hope, 536 U.S. at 741.
The Eleventh Circuit has further refined the analysis of when the law is
clearly established. It has observed that “fair and clear” notice may be given by
(1) the “obvious clarity” of the pertinent federal statute or constitutional
provision, such that qualified immunity may be overcome in the “total absence
of case law,” (2) the judicial determination that certain conduct has been defined
as unlawful without regard to particular facts, and (3) holdings in specific cases
that are tied to certain facts. Vinyard v. Wilson, 311 F.3d 1340, 1350‐51 (11th Cir.
2002) (emphasis removed). The decisions of the Supreme Court, the Eleventh
Circuit, and the highest court in the state in which the case arose provide the case
law capable of clearly establishing the boundaries of rights in the qualified
immunity analysis. Thomas ex rel., Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir.
2003). The relevant inquiry is “fact specific, 39 F. 3d 308, 311 (11
Cir. 1994), and
a plaintiff must point to a controlling case, decided before the events at issue that
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 14 of 18
establishes a constitutional violation of immaterially similar facts”. Lassiter v.
Alabama A&M Univ. Bd. of Trustees, 28 F. 3d 1146, 1150 (11
The qualified immunity analysis consists of two separate components:
first, the government official must establish that he or she acted within the scope
of discretionary authority when the allegedly wrongful acts occurred, and
second, the plaintiff must demonstrate that the official’s actions clearly violated
established rights. Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th
Cir. 1992). The term “discretionary authority” includes all actions of a
government official that (1) “were undertaken pursuant to the performance of his
duties,” and (2) were “within the scope of his authority.” Jordan v. Doe, 38 F.3d
1559, 1566 (11th Cir. 1994) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.
“The purpose of this immunity is to allow government officials to
carry out their discretionary duties without the fear of personal
liability or harassing litigation,” Vinyard v. Wilson, 311 F.3d 1340,
1346 (11th Cir.2002), by ensuring that only “the plainly incompetent
or those who knowingly violate the law” are subjected to liability.
Chesser, 248 F.3d at 1122 (quoting Malley v. Briggs, 475 U.S. 335, 341,
106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986)). “To receive qualified
immunity, the public official must first prove that he was acting
within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Vinyard, 311 F.3d at 1346 (quoting Lee v.
Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002) (internal quotation
marks omitted)). If the defendants were not acting within their
discretionary authority, they are ineligible for the benefit of
qualified Immunity. See Lee, 284 F.3d at 1194.
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 15 of 18
Smith v. Siegleman, 322 F.3d 1290, 1294‐1295 (11th Cir. 2003).
All of Commissioner Buckner’s duties concern administration of an
welfare agency which would be within her discretion. There is no clear
precedent that establishes any duty on her part to enact legislation regarding the
Sanctity Laws. Additionally, she has no responsibilities that mandate or even
give her the authority to amend a birth certificate. Instead, that lies with another
agency. Plaintiffs simply cannot be permitted to “discharge their burden by
referring to general rules and to the violation of abstract ‘rights’.” Lassiter v.
Alabama A & M, 28 F.3d at 1150; See also Barts v. Joyner, 865 F.2d 1187, 1190 (11
Cir. 1989) (plaintiffs’ may not rely on “general conclusory allegations of some
constitutional violation, or by stating broad legal truisms”).
For all the foregoing reasons, Defendant Commissioner Buckner requests
this Honorable Court to dismiss plaintiffs’ claims with prejudice.
RESPECTFULLY SUBMITTED on this the 3
day of June, 2014.
LUTHER STRANGE (STR003)
SHARON E. FICQUETTE
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 16 of 18
/s/ Felicia M. Brooks
Felicia M. Brooks (BRO153)
Deputy Attorney General
COUNSEL FOR DEFENDANT
STATE OF ALABAMA DEPARTMENT
OF HUMAN RESOURCES
P. O. Box 304000
Montgomery, Alabama 36130‐4000
Phone Number: (334) 242‐9330
Facsimile: (334) 242‐0689
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 17 of 18
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing BRIEF IN SUPPORT OF
MOTION TO DISMISS BY DEFENDANT NANCY BUCKNER on the
following via CM/ECF E‐file system and/or U.S. mail to the following on this the
day of June, 2014.
Hon. Christine C. Hernandez
Hon. David G. Kennedy
Hon. Jason Kirk Hagmaier
Hon. Luther Strange, III
501 Washington Avenue
Montgomery, AL 36104
Catherine M. Donald
201 Monroe Street, Ste. 1150
Montgomery, AL 36104
/s/ Felicia M. Brooks
Felicia M. Brooks (BRO153)
Case 1:14-cv-00208-N Document 15 Filed 06/03/14 Page 18 of 18
This action might not be possible to undo. Are you sure you want to continue?