Case 1:15-cv-00104-CG-N Document 1 Filed 02/24/15 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

CARl D. SEARCY,

)

)

Plaintiff,

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)

v.

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HON. DON DAVIS,

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individually and in his official

)

capacity as Probate Judge for

)

Mobile County, Alabama,

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)

Defendant.

)

COMPLAINT AND REOUEST FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF

COMES NOW the Plaintiff, Cari D. Searcy, by and through undersigned counsel, and files this her Complaint and Request for Injunctive Relief as follows:

JURISDICTION AND VENUE

1. This matter is filed pursuant to 28 U.S.C. § 2201-2202 and 42 U.S.C. § 1983 as a

challenge to the Probate Court of Mobile County, Alabama's refusal to grant an unqualified

adoption to the Plaintiff presumably under the guise of Ala. Code § 30-1-19 (the so-called

"Marriage Protection Act"), Ala. Const. Amend. No. 774 (the so-called "Sanctity of Marriage

Amendment") and the February 8, 2015, Order of the Alabama Chief Justice, Roy Moore. A

copy of Judge Moore's Order is attached hereto as Exhibit "A."

2. This Court is a proper venue pursuant to 28 U.S.C. § °1331 (1) because the Defendant,

Hon. Don Davis resides in this judicial district. Alternatively, venue is proper in this judicial

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district pursuant to 28 U.S.C. § 1331(2) because "a substantial part of the events or omissions giving rise to the claim occurred" in this judicial district.
3. The Court possesses proper subject matter jurisdiction and personal jurisdiction over the parties. 4. The Plaintiff is an adult resident citizen of Mobile County, Alabama. 5. The acts and omissions complained of occurred in Mobile County, Alabama. Plaintiff's cause of action arose in Mobile County, Alabama.
PARTIES 6. Plaintiff Cari D. Searcy is an adult resident citizen of both Alabama and the United States. As such, she is endowed with certain inalienable rights that include, among others, the right to be treated justly and equitably under the laws of the United States and of the State of Alabama. 7. Defendant Hon. Don Davis is an adult resident citizen of Mobile County, Alabama and is a citizen of the United States. Hon. Don Davis is the Judge of Probate for Mobile County, Alabama. As such, Hon. Don Davis is charged with upholding the laws and Constitution of the United States and the laws and Constitution of the State of Alabama. Hon. Don Davis is the Judge responsible for hearing and granting adoptions in Mobile County.
FACTUAL ALLEGATIONS 8. This Court held that the Alabama Sanctity Laws violate the Equal Protection and Due Process Clauses of the 14th Amendment of the United States Constitution. (Copies of the

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relevant Orders are attached hereto collectively as Exhibit "B"). Of particular note, this Court has already held those laws to be unconstitutional in a case wherein the current Plaintiff was the Plaintiff. By continuing to enforce and uphold the now void Alabama Sanctity Laws, Hon. Don Davis is violating the Constitution of the United States and the laws of the State ofAlabama. 9. This Court has also specifically enjoined the Defendant, Hon. Don Davis, from enforcing the Sanctity Laws, and the State of Alabama is enjoined from enforcing those laws as well. (Strawser v. Strange and Searcy v. Strange). Yet, Hon. Don Davis is continuing to enforce the remnants of those now void laws in violation of the constitutional rights of the Plaintiff. 10. The Plaintiff is married to Kimberly McKeand having been so since 2008 when Searcy and McKeand were married in California. K.S. was born to Kimberly McKeand in Mobile, Alabama on December 30, 2005. K.S. 's biological father is a adult citizen of the State of Florida named Mike. McKeand and Searcy becanle friends with Mike, and eventually it was decided that Mike would be a sperm donor and that McKeand would carry a child that would be raised by Searcy and McKeand. Mike was not listed as father of K.S. on the birth certificate, and Mike did not register as the father with the State of Alabama's putative father registry system. Mike did not contest the adoption, and in fact, Mike consents to the adoption and executed a waiver to that effect. Mike has waived all parental rights and he has terminated all rights as a parent to K.S. II. In reliance on this Court's Orders, the Plaintiff filed a. Petition for Adoption with the Probate Court of Mobile County on or about February 9~ 2015, seeking to adopt K.S. pursuant to Ala. Code § 26-10A-27 (1975), which "[a]ny person may adopt his or her spouse's child according to the provisions of this chapter" subject to three exceptions and conditions that are inapplicable to this matter.

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12. Searcy and McKeand enjoy a close, loving, and stable relationship, and they have provided K.S. with a nurturing, supportive, and loving home environment since birth. Together, they attend to K.S. 's educational, physical, emotional, spiritual, and mental development. 13. Searcy and McKeand share in financial, medical, career, spiritual, and social decisions as a married couple. More importantly to this matter, the two jointly parent K.S. and they will continue to do so. K.S. views both as parents, and K.S. has only known Searcy and McKeand as his parents since birth. 14. There is no articulable reason why Searcy is not allowed to adopt K.S. other than the fact that she is a woman married to another woman. 15. In step-parent adoption petitions, Hon. Don Davis typically issues an interlocutory order 16. In the present matter, Hon. Don Davis did issue an interlocutory order, but it is materially different than what he issues in a heterosexual step-parent adoption situation. A redacted copy of the Interlocutory order is attached hereto as Exhibit "C." 17. As the Court can see, Hon. Don Davis has "qualified" his Interlocutory order specifically stating that "It is further ORDERED by the Court that this Decree is qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it." 18. This current lawsuit challenges Hon. Don Davis's refusal to grant final adoption in the matter despite being specifically enjoined by this Court from enforcing the Sanctity Laws for any purpose. 19. As this Court is aware, this Court ordered that the Alabama Sanctity Laws were unconstitutional and that the laws were enjoined from enforcement as of February 9, 2015. The

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Eleventh Circuit Court of Appeals upheld the expiration of the stay of February 9, 2015. Significantly, the Supreme Court of the United States upheld the same meaning that the Alabama Sanctity Laws became null and void on February 9, 2015. There can be no legitimate question on the issue, and Hon. Don Davis has no legitimate reason for continuing to abide by the fiction that the Alabama Sanctity Laws have any effect in Alabama. Quite simply, that issue has been decided, and there is no valid, legal reason why he is affirmatively delaying this adoption. In so doing, he is violating the legal rights of the Plaintiff, and, by extension, her family.
COUNT 1 VIOLATIONS OF RIGHTS SECURED BY THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)
20. Plaintiff hereby re-alleges and incorporates by reference all allegations set forth In paragraphs 1-19 as if fully set forth herein. 21. All acts and omissions taken by Hon. Don Davis were done by Hon. Don Davis while acting under color of state law and had the effect of depriving the Plaintiff of rights secured by the Constitution and laws of the United States, specifically the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 22. The treatment that Plaintiff has received is in retaliation for the exercise of her civil rights secured by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 23. Defendant Hon. Don Davis acts and omissions were intentional, malicious, willful, wanton, and in gross reckless disregard of Plaintiff's constitutional rights.

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COUNT 2 VIOLATIONS OF RIGHTS SECURED BY THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)
24. Plaintiff hereby re-alleges and incorporates by reference all allegations set forth in paragraphs 1-23 as if fully set forth herei n.
25. All acts and omissions taken by Hon. Don Davis were done by Hon. Don Davis while acting under color of state law and had the effect of depriving the Plaintiff of rights secured by the Constitution and laws of the United States, specifically the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
26. The treatment that Plaintiff has received is in retaliation for the exercise of her civil rights secured by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
27. Defendant Hon. Don Davis acts and omissions were intentional, malicious, willful, wanton, and in gross reckless disregard of Plaintiff's constitutional rights.
WHEREFORE, the premises considered, the Plaintiff respectfully requests that the Court enter an Order as follows:
(a) Enjoining Hon. Don Davis from enforcing, directly or indirectly the Alabama Sanctity Laws; (b) Commanding Hon. Don Davis to grant the adoption sought in this matter without any further delay, and specifically commanding Hon. Don Davis; (c) Striking Hon. Don Davis's "qualified" Interlocutory Order so as to treat Cari Searcy and this family the same way that he would a heterosexual family;

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Case 1:15-cv-00104-CG-N Document 1 Filed 02/24/15 Page 7 of 7

(d) Awarding compensatory, consequential, and other damages (including punitive damages if the Court deems it appropriate);
(e) Awarding the Plaintiff attorneys' fees, costs, and expenses associated with this lawsuit;
(f) Commanding Hon. Don Davis to end his discriminatory practices directed towards the Plaintiff and her family;
(g) To the extent the Court deems necessary, reaffirming its previous Orders in the Searcy v. Strange; Hedgepeth v. Probate Court of Mobile County; and Strawser v. Strange matters;
(h) Granting Preliminary Injunctive Relief commanding Hon. Don Davis to vacate his Interlocutory Order to the extent it is "qualified" upon a ruling from the Supreme Court at some unknown point in the future;
(i) Setting the issue of a preliminary injunction at the earliest convenient time once this Complaint is served as Plaintiff anticipates serving Hon. Don Davis with the Summons and Complaint the same day as the filing of this Complaint;
(j) Granting such other, further, and different relief as the Court deems appropriate

David G. Kennedy ASB 1238-I72K The Kennedy Law Firm P.O. Box 556 Mobile, Alabama 36601 251-338-9805 david@kennedylawers.com

ristine Hernandez ASB 8252-164H The Hernandez Firm, LLC P.O. Box 66174 Mobile, Alabama 36660 25 J-479- J477 christi ne@hernandezlaw.comcastbiz.net

The Defendant may be served by private process server as follows:
Hon. Don Davis Judge of Probate Court for Mobile County, Alabama 151 Government Street Mobile, Alabama 36602

 
 Case: 1:15-cv-104 As of: 04/08/2015 12:09 PM CDT 1 of 4

U.S. District Court Southern District of Alabama (Mobile) CIVIL DOCKET FOR CASE #: 1:15−cv−00104−CG−N

CLOSED2015

Searcy v. Davis Assigned to: Judge Callie V. S. Granade Referred to: Magistrate Judge Katherine P. Nelson Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 02/24/2015 Date Terminated: 03/26/2015 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Cari D. Searcy

represented by Christine Cassie Hernandez P.O. Box 66174 Mobile, AL 36660 251−479−1477 Email: christine@hernandezlaw.comcastbiz.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Graham Kennedy P.O. Box 556 Mobile, AL 36601 251−338−9805 Email: david@kennedylawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Don Davis

represented by Harry V. Satterwhite Satterwhite &Tyler, LLC 1325 Dauphin Street Mobile, AL 36604 (251) 432−8120 Fax: (251) 405−0147 Email: harry@satterwhitelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Michael Druhan , Jr. Johnston Druhan, LLP P.O. Box 154 Mobile, AL 36601 (251) 432−0738 Email: mike@satterwhitelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee L. Hale Hale and Hughes 501 Church Street Mobile, AL 36602 251−433−3671 ext 2 Fax: 251−432−1982 Email: lee.hale@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark S. Boardman

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Boardman, Carr, Bennett, Watkins, Hill &Gamble, P.C. 400 Boardman Dr. Chelsea, AL 35043−8211 (205)678−8000 Fax: 2056780000 Email: mboardman@boardmancarr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clay Richard Carr Boardman, Carr &Hutcheson, P.C. 400 Boardman Dr. Chelsea, AL 35043−8211 (205)678−8000 Fax: 205−678−0000 Email: ccarr@boardmancarr.com ATTORNEY TO BE NOTICED
Teresa Bearden Petelos 400 Boardman Dr. Chelsea, AL 35043 205−678−8000 Email: tpetelos@boardmancarr.com ATTORNEY TO BE NOTICED

Date Filed 02/24/2015
02/24/2015 02/24/2015
02/24/2015 02/24/2015
02/25/2015 02/25/2015
02/26/2015 02/27/2015 02/27/2015 02/27/2015

# Docket Text
1 COMPLAINT against Don Davis, filed by Cari D. Searcy. (Fee Paid; Receipt No. 34263) (Attachments: # 1 Exhibit A−C) (Kennedy, David) (Additional attachment(s) added on 2/24/2015: # 2 Civil Cover Sheet) (tot). Modified on 2/24/2015 (tot). (Entered: 02/24/2015)
2 NOTICE of Filing Proposed Summons by Cari D. Searcy (Kennedy, David) (Entered: 02/24/2015)
MOTION for Preliminary Injunction &MOTION for Permanent Injunction by Cari D. Searcy (SEE IMAGE AT DOC. 1 ). (Referred to J/Granade on 2/24/15) (tot) (Entered: 02/24/2015)
3 Summons Issued as to Don Davis. (NOTE TO COUNSEL: The Summons has been issued. Please print copies necessary for service.) (tot) (Entered: 02/24/2015)
4 Service Notice entered 2/24/2015. Plaintiff to notify the Court the action taken to effect service and the results thereof. Service order deadline set to 4/10/2015. (tot) (Entered: 02/24/2015)
5 SUMMONS Returned Executed by Cari D. Searcy. Don Davis served on 2/25/2015, answer due 3/18/2015 (Kennedy, David) (Entered: 02/25/2015)
6 Order, setting Preliminary Injunction hearing for Monday, March 2, 2015 at 1:00 p.m., to be held in Courtroom 2B, United States Courthouse, Mobile, Alabama. Signed by Judge Callie V. S. Granade on 2/25/2015. (mab) (Entered: 02/25/2015)
7 Notice of Filing Notice of service of appearance subpoena filed by Cari D. Searcy. (Kennedy, David) (Entered: 02/26/2015)
8 MOTION to Dismiss by Don Davis. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit) (Satterwhite, Harry) (Entered: 02/27/2015)
MOTIONS REFERRED: 8 MOTION to Dismiss referred to Judge Katherine P. Nelson. (tot) (Entered: 02/27/2015)
9 Brief filed by Don Davis re 8 MOTION to Dismiss filed by Don Davis. (Satterwhite, Harry) (Entered: 02/27/2015)

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02/27/2015 02/27/2015 02/27/2015 02/27/2015 02/27/2015 02/28/2015
02/28/2015 03/01/2015 03/02/2015 03/02/2015 03/02/2015
03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/06/2015 03/11/2015
03/11/2015
03/11/2015 03/11/2015

REFERRAL OF 9 Brief in Support of 8 Motion to Dismiss to Judge Granade. (mab) (Entered: 02/27/2015)
10 MOTION to Postpone Preliminary Injunction Hearing by Don Davis. (Satterwhite, Harry) (Entered: 02/27/2015)
11 MOTION to Quash Subpoena by Don Davis. (Satterwhite, Harry) (Entered: 02/27/2015)
12 RESPONSE in Opposition to Plaintiff's Request for Preliminary Injunctive Relief, filed by Don Davis. (Satterwhite, Harry) (Entered: 02/27/2015)
13 MOTION to Stay Pretrial Deadlines and Memorandum in Support by Don Davis. (Satterwhite, Harry) (Entered: 02/27/2015)
MOTIONS REFERRED: 10 MOTION to Postpone Preliminary Injunction Hearing and 11 MOTION to Quash Subpoena Referred to Judge Callie V. S. Granade. (mab) (Entered: 02/28/2015)
REFERRAL OF 12 Response in Opposition to Plaintiff's Request for Preliminary Injunctive Relief to Judge Granade. (mab) (Entered: 02/28/2015)
14 RESPONSE in Opposition re 10 MOTION to Postpone Preliminary Injunction Hearing filed by Cari D. Searcy. (Kennedy, David) (Entered: 03/01/2015)
REFERRAL OF 14 Response in Opposition to Motion to Continue Preliminary Injunction Hearing of 3/2/15 to Judge Granade. (tot) (Entered: 03/02/2015)
REFERRAL OF 13 MOTION to Stay Pretrial Deadlines and Memorandum in Support to Judge Granade. (tot) (Entered: 03/02/2015)
15 Order, GRANTING 10 MOTION to Postpone Preliminary Injunction Hearing; and setting deadline for plaintiff to file responses to 8 MOTION to Dismiss and 11 MOTION to Quash Subpoena by 3/6/2015. Defendant's replies due by 3/11/2015. Signed by Judge Callie V. S. Granade on 3/2/2015. (mab) (Entered: 03/02/2015)
16 RESPONSE in Opposition re 8 MOTION to Dismiss filed by Cari D. Searcy. (Attachments: # 1 Exhibit Exhibit A) (Kennedy, David) (Entered: 03/06/2015)
17 NOTICE of Appearance by Mark S. Boardman on behalf of Don Davis (Boardman, Mark) (Entered: 03/06/2015)
18 NOTICE of Appearance by Clay Richard Carr on behalf of Don Davis (Carr, Clay) (Entered: 03/06/2015)
19 NOTICE of Appearance by Teresa Bearden Petelos on behalf of Don Davis (Petelos, Teresa) (Entered: 03/06/2015)
20 RESPONSE in Opposition re 11 MOTION to Quash Subpoena filed by Cari D. Searcy. (Kennedy, David) (Entered: 03/06/2015)
REFERRAL OF 20 Response in Opposition to Motion to Quash Subpoena to Judge Granade. (tot) (Entered: 03/06/2015)
22 Supplemental MOTION to Stay re 13 MOTION to Stay Pretrial Deadlines and Memorandum in Support by Don Davis. (Attachments: # 1 Exhibit A: Alabama Supreme Court Order) (Boardman, Mark) (Entered: 03/11/2015)
23 REPLY to Response to Motion 8 to Dismiss filed by Don Davis. (Carr, Clay) (Additional attachment(s) added on 3/12/2015: # 1 Unsealed Exhibits Pursuant to Endorsed Order (Doc. 26)) (tot). (STRICKEN ON 3/12/15 − SEE DOC. 29) Modified on 3/12/2015 (tot). (Entered: 03/11/2015)
24 REPLY to Response to Motion 11 to Quash Subpoena filed by Don Davis. (Boardman, Mark) (Entered: 03/11/2015)
25 REPLY to 16 Response in Opposition to Motion Defendant's Amended Reply to Plaintiff's Opposition to Motion to Dismiss filed by Don Davis. (Carr, Clay) (Additional attachment(s) added on 3/12/2015: # 1 Unsealed Exhibits Pursuant to Endorsed Order (Doc. 26)) (tot). (Entered: 03/11/2015)

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03/11/2015
03/11/2015 03/12/2015 03/12/2015 03/12/2015 03/12/2015
03/13/2015 03/13/2015 03/16/2015 03/16/2015 03/16/2015
03/24/2015 03/24/2015 03/25/2015 03/26/2015

26 ENDORSED ORDER denying 21 Motion to Seal Exhibits. The substance of the exhibits has been described by the defendant in his Reply filed this date, and because the name of the child is redacted in the filed exhibits, there is no need to keep them under seal in this lawsuit. The clerk is directed to unseal the documents attached as exhibit 1 to the motion, and reference them as exhibits to Docs. 23 and 25 filed herein. Signed by Judge Callie V. S. Granade on 3/11/2015. (Granade, Callie) (Entered: 03/11/2015)
27 Amended MOTION to Dismiss re: 8 MOTION to Dismiss Amended Motion to Dismiss by Don Davis. (Boardman, Mark) Modified on 3/12/2015 (tot). (Entered: 03/11/2015)
28 MOTION to Strike 23 Reply to Response to Motion by Don Davis. (Carr, Clay) (Entered: 03/12/2015)
29 ENDORSED ORDER granting 28 Motion to Strike 23 Reply to Opposition to Motion to Dismiss. Signed by Judge Callie V. S. Granade on 3/12/2015. (tot) (Entered: 03/12/2015)
REFERRAL OF 22 Supplement to 13 MOTION to Stay, 24 Reply to Response to Motion to Quash Subpoena, 25 Reply to Opposition to Motion to Dismiss, 27 Amended MOTION to Dismiss to Judge Granade. (tot) (Entered: 03/12/2015)
30 Order, Status Conference set for 3/16/2015 at 01:00 PM in US Courthouse, Courtroom 2B, 113 St. Joseph Street, Mobile, AL 36602 before Judge Callie V. S. Granade. Signed by Judge Callie V. S. Granade on 3/12/2015. (tot) (Entered: 03/12/2015)
31 MOTION to File Surreply to Defendant's Motion to Dismiss filed by Cari D. Searcy. (Kennedy, David) Modified on 3/13/2015 (tot). (Entered: 03/13/2015)
REFERRAL OF 31 MOTION to File Surreply to Defendant's Motion to Dismiss to Judge Granade. (tot) (Entered: 03/13/2015)
32 ENDORSED ORDER granting 31 Motion for Leave to File Surreply. Signed by Judge Callie V. S. Granade on 3/16/2015. (Granade, Callie) (Entered: 03/16/2015)
Minute Entry for proceedings held before Judge Callie V. S. Granade: Status Conference held on 3/16/2015. Court Reporter Roy Isbell. (mab) (Entered: 03/16/2015)
33 Order re: status conference held on 3/16/15, Plf is granted leave to file a brief on any issues she believes remain pending in this action NLT 3/31/2015. Dft may file a responsive brief NLT 4/7/2015. Signed by Judge Callie V. S. Granade on 3/16/2015. (tot) (Entered: 03/16/2015)
34 MOTION to Dismiss by Cari D. Searcy. (Hernandez, Christine) (Entered: 03/24/2015)
REFERRAL OF 34 MOTION to Dismiss to Judge Granade. (tot) (Entered: 03/24/2015)
35 RESPONSE to Motion re: 34 MOTION to Dismiss filed by Don Davis. (Carr, Clay) (Entered: 03/25/2015)
36 ORDER granting 34 Motion to Dismiss by Cari D. Searcy; granting 27 Amended Motion to Dismiss by Don Davis. Plaintiff's claims against Defendant Mobile County Probate Judge Don Davis are hereby DISMISSED with prejudice. All previously filed motions, still pending before the court, are hereby deemed to be MOOT. Signed by Judge Callie V. S. Granade on 3/26/2015. copies to parties. (sdb) (Entered: 03/26/2015)