IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TERRA BETTS, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 14-00356-CG-N

)

CONECUH COUNTY BOARD OF )

EDUCATION, RONNIE BROGDEN, and )

MARY ANN DANFORD, )

Defendants. )

REPORT AND RECOMMENDATION

Pending before the Court is the Defendants’ "Motion to Dismiss or 

Alternatively for More Definite Statement ” (Doc. 7) brought under Federal Rules of 

Civil Procedure 12(b)(6) and 12(e). The Plaintiff, Terra Betts (“Betts”), has timely 

filed a response in opposition (Doc. 12) to the motion, and the Defendants have 

timely filed a reply (Doc. 13) to the response. The motion is now under submission 

and is ripe for adjudication. (See Doc. 11). The present motion has been referred to 

the undersigned United States Magistrate Judge for entry of a report and 

recommendation under 28 U.S.C. § 636(b)(1)(B)-(C) and Federal Rule of Civil 

Procedure 72(b)(1). Upon consideration, the undersigned RECOMMENDS that the 

Defendants’ "Motion to Dismiss or Alternatively for More Definite Statement ” (Doc. 

7) be GRANTED in part and DENIED in part, as set forth herein.

I. Applicable Legal Standards

In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a 

claim upon which relief can be granted,” the Court construes the complaint in the 

light most favorable to the plaintiff, “accepting all well-pleaded facts that are 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 1 of 29
2

alleged therein to be true.” Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 

(11th Cir. 2013) (citing Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1328 (11th Cir.

2006)). “ ‘To survive ... a complaint must contain sufficient factual matter, accepted 

as true, to “state a claim to relief that is plausible on its face.” ’ ” Id. (quoting 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 570 (2007))). “The plausibility standard ‘calls for enough fact to raise a 

reasonable expectation that discovery will reveal evidence’ of the defendant's 

liability.” Id. (quoting Twombly, 550 U.S. at 556).

Under Rule 12(e), “[a] party may move for a more definite statement of a 

pleading to which a responsive pleading is allowed but which is so vague or 

ambiguous that the party cannot reasonably prepare a response. The motion must 

be made before filing a responsive pleading and must point out the defects 

complained of and the details desired.” Whether to grant relief under Rule 12(e) is 

left to the Court’s discretion. See Porter v. Duval Cnty. Sch. Bd., 406 F. App'x 460, 

461 (11th Cir. 2010) (per curiam) (unpublished) (“We review for abuse of discretion 

a district court's grant of a motion for a more definite statement.” (citing Mitchell v. 

E–Z Way Towers, Inc., 269 F.2d 126, 131 (5th Cir. 1959)).

II. Background

Betts initiated this action on July 31, 2014, by filing a Complaint with the 

Court alleging claims against Defendants Ronnie Brogden (“Superintendent 

Brogden”), and Mary Ann Danford, Curriculum Coordinator/Counselor Coordinator

for the Conecuh County school system (“Danford”). (See Doc. 1). The following wellCase 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 2 of 29
3

pleaded factual allegations in the Complaint are accepted as true for purposes of the 

present motion:1

Betts, an African-American, has been employed with the Defendant 

Conecuh County Board of Education (“the Board”) for thirteen (13) 

years, having first been hired in 2001. At all times relevant to the 

claims in this action, Betts has been employed in the capacity of 

Guidance Counselor, a position in which she has served for the past 

eight (8) years. Betts has an undergraduate degree from Alabama 

State University (ASU) in Elementary Education, a graduate degree 

(Masters in Counseling) from ASU, and an Ed.S in school counseling 

from ASU/Auburn University Montgomery, jointly. (Id. at 3, ¶ 7).

Defendant Ronnie Brogden (“Superintendent Brogden”) is 

superintendent of the Conecuh County school system. Defendant Mary 

Ann Danford (“Danford”) is employed with the Conecuh County school 

system in the Central Office in the capacity of Curriculum 

Coordinator/Counselor Coordinator. Danford is not certified in 

counseling. Both Superintendent Brogden and Danford are white. (Id.

at 4, ¶¶ 8-9).

On or about December 12, 2012, Betts was served with a “Notice of 

Recommendation of Termination of Employment” (hereinafter, the 

“Termination Recommendation Notice”) signed by Superintendent 

Brogden. The Termination Recommendation Notice alleged 

“insubordination, incompetency, neglect of duty, failure to perform 

duties in a satisfactory manner, and/or other good and just cause....” 

Betts challenged the recommendation, and after a two day hearing 

 1 The Supreme Court has stated:

[A] court considering a motion to dismiss can choose to begin by identifying 

pleadings that, because they are no more than conclusions, are not entitled to 

the assumption of truth. While legal conclusions can provide the framework 

of a complaint, they must be supported by factual allegations. When there are 

well-pleaded factual allegations, a court should assume their veracity and 

then determine whether they plausibly give rise to an entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)

The Defendants have attached to their motion a copy of Betts’s Complaint that 

highlights certain portions that they deem to be conclusory allegations not entitled to an 

assumption of truth. (See Doc. 7 at 3-4; Doc. 7-1). The undersigned agrees with the 

Defendants’ assessment in full and has not accepted the highlighted allegations as true for 

purposes of the present motion to dismiss.

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 3 of 29
4

commencing on February 12, 2013, Betts was reinstated to her 

employment. Betts returned to work on February 14, 2013. Though 

both Danford and Superintendent Brogden testified that they had not 

undertaken any efforts to replace Betts, Annette Bohannon, who is 

white, had already moved into Betts’s office. (Id., ¶ 10).

Upon her return to work, Betts submitted a correspondence to 

Superintendent Brogden demanding a work environment at Hillcrest 

High School free of any acts of retaliation, intimidation and hostility. 

On or about June 4, 2013, Superintendent Brogden submitted a 

“Notice of Recommendation of Transfer” (hereinafter, the “Transfer 

Recommendation Notice”) to her and the Board. The Board ratified 

the recommendation and transferred Betts to Evergreen Elementary 

School. (Id. at 4-5, ¶ 11).

In or about July 2013, Superintendent Brogden filed a complaint with 

the State of Alabama Department of Education requesting a “proposed 

revocation and non-renewal of Alabama professional Educator 

Certificate” against Betts. Superintendent Brogden’s request and 

recommendation tracked verbatim the language of his December 12, 

2012 Termination Recommendation Notice. (Id. at 5, ¶ 11).

Based on the preceding factual allegations, Betts asserts the following causes 

of action against the Defendants:

• Count 1 -discriminatory disparate treatment on the basis of race, in violation 

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as 

amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981a (“Title VII”). (See

Doc. 1 at 5-6).

• Count 2 – unlawful retaliation. (See id. at 6-7).

• Count 3 – discrimination on the basis of race and ethnicity “in violation of the 

Constitution and laws of the United States that secure and guarantee to her

the equal protection of the law” –specifically, “[t]he Fourteenth Amendment 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 4 of 29
5

to the United States Constitution” – “as enforced by Title 42 U.S.C. §§ 1981 

and 1983.”2 3 (Id. at 1, 7-8).

Betts states that Superintendent Brogden “is being sued in his individual 

capacity relative to [her] §§ 1981 and 1983 claims.” (Id. at 3, ¶ 6). The Complaint 

does not specify in what capacit(ies) Betts is suing Superintendent Brogden as to 

her Title VII claims, or at all for Danford.

III. Analysis

In subsection A, infra, the undersigned will determine those claims that, 

regardless of whether they have sufficiently been plead, can be dismissed as a 

matter of law, as this will narrow the scope of claims that will require a more 

definite statement, as set forth in subsection B, infra.

A. Rule 12(b)(6) Dismissal

1. Title VII Claims against Superintendent Brogden and Danford

The Defendants argue that Betts’s Title VII claims against Superintendent 

Brogden and Danford in Counts One and Two of the Complaint are due to be 

dismissed because they are not her “employers” within the meaning of Title VII. 

(See Doc. 7 at 9-11). Betts’s complaint and her response both expressly acknowledge 

that, at all relevant times, she was an employee of the Board. (Doc. 1 at 3, ¶ 5; Doc. 

 2 “The Civil Rights Act of 1866, or Section 1981, guarantees ‘all persons ... the same right ... 

to make and enforce contracts ... as is enjoyed by white citizens,’ and it also protects against 

race-based employment discrimination and retaliation. The Civil Rights Act of 1871, or 

Section 1983, prohibits state actors from acting in violation of federal law.” Thomas v. 

Autauga Cnty. Bd. of Educ., No. 2:12-CV-971-WKW, 2014 WL 1491199, at *8 (M.D. Ala. 

Apr. 15, 2014).

3 Thus, this Court has subject matter jurisdiction over the claims in this action under 28 

U.S.C §§ 1331 (federal question) and 1343(a)(3) & (4) (civil rights actions).

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 5 of 29
6

12 at 4). Eleventh Circuit precedent is clear “that ‘ “[t]he relief granted under Title 

VII is against the employer, not [against] individual employees whose actions would 

constitute a violation of the Act.” ’ ” Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 

2006) (per curiam) (quoting Hinson v. Clinch Cnty. Bd. of Educ., 231 F.3d 821, 827 

(11th Cir. 2000)). Accord Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 

1991) (per curiam); Cross v. State of Ala., State Dep't of Mental Health & Mental 

Retardation, 49 F.3d 1490, 1504 (11th Cir. 1995). Thus, “ ‘[i]ndividual capacity 

suits under Title VII are ... inappropriate.’ ” Cross, 49 F.3d at 1504 (quoting Busby, 

931 F.2d at 772) (alteration added). See also Yeldell v. Cooper Green Hosp., Inc., 

956 F.2d 1056, 1060 (11th Cir. 1992) (“[B]oth this court and the Fifth Circuit have 

held that Title VII actions are not appropriately brought against government 

officials in their personal capacities. Such suits may be brought only against 

individuals in their official capacity and/or the employing entity.”). 

“The only proper individual defendants in a Title VII action would be 

supervisory employees in their capacity as agents of the employer.” Hinson, 231 

F.3d at 827. In her response, Betts admits that her “retaliation claim is a statutory 

right pursuant to Title VII” and that “[t]he individual defendants are being sued in 

their individual capacity.” (Doc. 12 at 6). Based on the foregoing authority, the 

undersigned finds that Betts’s Title VII claims against Superintendent Brogden and 

Danford in their individual capacities are due to be DISMISSED.

Moreover, the Eleventh Circuit has held that “ ‘the proper method for a 

plaintiff to recover under Title VII is by suing the employer, either by naming the 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 6 of 29
7

supervisory employees as agents of the employer or by naming the employer 

directly.’ ” Cross, 49 F.3d at 1504 (emphasis added) (quoting Busby, 931 F.2d at 

772). Here, Betts has already asserted Title VII claims against her employer, the 

Board. Thus, to the extent Superintendent Brogden and Danford are being sued 

under Title VII in their capacities as agents of the Board, such claims are 

redundant and due to be DISMISSED. See Shoots v. City of Mobile, Civil Action 

No. 11-00673-KD-M, 2013 WL 3281875, at *3 (S.D. Ala. June 28, 2013) (DuBose, J.) 

(“To the extent Shoots' alleges [Title VII ]claims against the individual defendants 

in their official capacities..., such claims are redundant as her employer has been 

named as a defendant.” (citing Cross, 49 F.3d at 1504; Portera v. State of Ala. Dep't 

of Fin., 322 F. Supp. 2d 1285, 1287 (M.D. Ala. 2004) (“[A]ny claim against 

McClenney in his official capacity is redundant since the Finance Department is 

already a defendant”)). But see Yeldell, 956 F.2d at 1060 (Title VII “[s]uits may be 

brought only against individuals in their official capacity and/or the employing 

entity.” (emphasis added)).4 

Thus, the Defendants’ motion to dismiss (Doc. 7) is due to be GRANTED as 

to Betts’s Title VII claims against Superintendent Brogden and Danford, both 

individually and as agents of the Board, in Counts One and Two of the Complaint 

(Doc. 1).

 4 Betts appears to be under the mistaken impression that the so-called “cat’s paw” theory of 

liability allows supervisory employees to be held liable in their individual capacities under 

Title VII. (See Doc. 12 at 5-6). However, this “theory of liability, also referred to as 

‘subordinate bias theory,’ is liability seeking to hold an employer liable for the animus of a 

supervisor who was not charged with making the ultimate employment decision.” Sims v. 

MVM, Inc., 704 F.3d 1327, 1335 n.6 (11th Cir. 2013) (emphasis added) (citing Staub v. 

Proctor Hosp., 131 S. Ct. 1186, 1190 (2011)).

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 7 of 29
8

2. Retaliation

Count Two does not specify under what provision(s) Betts brings her claims 

of retaliation. The Defendants, noting this ambiguity in Count Two, “assume this 

claim is brought under Title VII, because a claim for retaliation cannot be brought 

under the equal protection clause.” (Doc. 7 at 10 n.3). The undersigned construes 

this as a request for dismissal of any claim for retaliation not based on Title VII.

“Retaliation against an employee who engages in statutorily protected 

activity is barred under both Title VII and § 1981.” Chapter 7 Tr. v. Gate Gourmet, 

Inc., 683 F.3d 1249, 1257-58 (11th Cir. 2012) (citing 42 U.S.C. § 2000e–3(a); CBOCS 

West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (concluding that § 1981 

encompasses retaliation claims); Bryant v. Jones, 575 F.3d 1281, 1301 (11th Cir.

2009) (discussing the right of action for retaliation under § 1981 both pre- and postHumphries )). Moreover, “the elements required to establish retaliation claims 

under § 1981 are the same as those required for retaliation claims under Title VII.”

Word v. AT & T, 576 F. App'x 908, 912 (11th Cir. 2014) (unpublished) (per curiam) 

(citing Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)). 

However, “[s]ection 1981 does not provide a cause of action against state 

actors; instead, claims against state actors or [sic] allegations of § 1981 violations 

must be brought pursuant to § 1983.” Baker v. Birmingham Bd. of Educ., 531 F.3d 

1336, 1337 (11th Cir. 2008) (citing Butts v. County of Volusia, 222 F.3d 891, 892–94 

(11th Cir. 2000)). Accord Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009)

(“We have held that § 1981 does not provide an implicit cause of action against state 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 8 of 29
9

actors; therefore, § 1983 constitutes the exclusive federal remedy for violation by 

state actors of the rights guaranteed under § 1981.”); Rioux v. City of Atlanta, Ga., 

520 F.3d 1269, 1273 n.3 (11th Cir. 2008). 

“The traditional definition of acting under color of state law requires 

that the defendant in a [section] 1983 action have exercised power 

‘possessed by virtue of state law and made possible only because the 

wrongdoer is clothed with the authority of state law.’ ” West v. Atkins, 

487 U.S. 42, 49, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988) (quoting 

United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L.

Ed. 1368 (1941)). “A person acts under color of state law when he acts 

with authority possessed by virtue of his employment with the state,” 

Griffin v. City of Opa–Locka, 261 F.3d 1295, 1303 (11th Cir.2001), or 

when “the manner of his conduct ... makes clear that he was asserting 

the authority granted him and not acting in the role of a private 

person,” Williams v. United States, 341 U.S. 97, 100, 71 S. Ct. 576, 578, 

95 L. Ed. 774 (1951). “The dispositive issue is whether the official was 

acting pursuant to the power he/she possessed by state authority or 

acting only as a private individual.” Edwards v. Wallace Cmty. Coll., 

49 F.3d 1517, 1523 (11th Cir.1995).

Myers v. Bowman, 713 F.3d 1319, 1329-30 (11th Cir. 2013).

Betts does not dispute that the Board is “a governmental entity.” (Doc. 12 at 

6). See also Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir. 1983) (“The Alabama 

county school boards are creatures of the state and are controlled by the state.”); 

Stewart v. Baldwin Cnty. Bd. of Educ., 908 F.2d 1499, 1511 n.7 (11th Cir. 1990)

(“[O]ur comment in Jaffree was with regard to whether or not the school systems 

could be considered state actors.”). Thus, the undersigned finds that the Board is a 

state actor for purposes of §§ 1981 and 1983. 5 Moreover, the allegations in the 

 5 Recently the Eleventh Circuit, reaffirming as binding precedent its opinion in Stewart v. 

Baldwin Cnty. Bd. of Educ., 908 F.2d 1499 (11th Cir. 1990), held “that local school boards 

in Alabama are not arms of the state” with respect to “employment-related decisions (i.e., 

hiring, assignment, and compensation)” for purposes of Eleventh Amendment immunity. 

Walker v. Jefferson Cnty. Bd. of Educ., --- F.3d ----, No. 13-14182, 2014 WL 5575607, at *1, 7 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 9 of 29
10

Complaint make clear that at all relevant times, Superintendent Brogden and 

Danford were acting “under color of state law” as employees of the Board, thus 

making them “state actors” for purposes of §§ 1981 and 1983. Therefore, Betts’s § 

1981 claims against the Defendants, including her § 1981 retaliation claims, are 

merged into her § 1983 claims. See Busby, 931 F.2d at 771 n.6 (11th Cir. 1991)

(“The section 1981 claim has been effectively merged into the section 1983 claim for 

racial discrimination. This occurs because the the [sic] express action at law 

provided by § 1983 for the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, provides the exclusive federal damages 

remedy for the violation of the rights guaranteed by § 1981 when the claim is 

pressed against a state actor.” (quotations omitted)); Rioux, 520 F.3d at 1273 (“The 

First Complaint alleged a first count under 42 U.S.C. § 1981 against the City and 

Young, and this count was merged into Rioux's section 1983 claim stated in count 

two.”); Parker v. Chilton Cnty. Bd. of Educ., No. 2:12-CV-0650-MEF, 2014 WL 

116341, at *6 n.6 (M.D. Ala. Jan. 13, 2014) (“Section 1983 constitutes the exclusive 

federal remedy for violation by state actors of the rights guaranteed under § 1981. 

See Bryant v. Jones, 575 F.3d 1281, 1288 n.1 (11th Cir. 2009). Therefore, Parker's § 

1981 and § 1983 claims[ against the defendant Alabama school board] merge. See 

Fason v. City of Montgomery, 240 F.3d, 905, 906 (11th Cir. 2001).”); Adams v. Cobb 

Cnty. Sch. Dist., 242 F. App'x 616, 620 n.6 (11th Cir. 2007) (per curiam) 

 

(11th Cir. Nov. 4, 2014). However, the determination of whether a defendant is considered 

a state actor for purposes of §§ 1981 and 1983 “is completely separate from and has no 

independent bearing on a determination as to whether a county defendant is a state 

defendant for purposes of the Eleventh Amendment” Stewart, 908 F.2d at 1511 n.7.

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 10 of 29
11

(unpublished) (“The basis of Adams's § 1983 retaliation claim is an alleged violation 

of § 1981, which itself prohibits an employer from retaliating against its employee 

as a response to the employee's complaint of race-based discrimination. Because 

Adams has sued the District, a state-created entity, § 1983 serves as the exclusive 

vehicle through which Adams must pursue his § 1981–based retaliation claim.” 

(citations omitted)); Braswell v. Allen, 586 F. Supp. 2d 1297, 1310 (M.D. Ala. 2008)

(“Section 1983 is the vehicle through which plaintiffs must pursue a section 1981 

retaliation claim.”).

Acknowledging “the great confusion that so often surrounds claims and 

defenses involving personal capacity and official capacity liability,” the Eleventh 

Circuit has provided the following “brief description of the differences between 

personal capacity and official capacity lawsuits”:

“Personal-capacity suits seek to impose personal liability upon a 

government official for actions he takes under color of state law. 

Official-capacity suits, in contrast, ‘generally represent only another 

way of pleading an action against an entity of which an officer is an 

agent.’ ” [Kentucky v. Graham, 473 U.S. 159,] 165-66, 105 S. Ct. [3099,]

3105[ (1985)] (citations omitted) (quoting Monell v. Department of 

Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035 n.55-56 L.

Ed. 2d 611 (1978)). In other words, a plaintiff in an action against a 

government official in his personal capacity can recover only against 

the official's personal assets. The assets of the governmental entity are 

not accessible. The reverse is true in an official capacity lawsuit. 

Furthermore, “to establish personal liability in a § 1983 action, it is 

enough to show that the official, acting under color of state law, caused 

the deprivation of a federal right.... [I]n an official-capacity suit the 

entity's ‘policy or custom’ must have played a part in the violation of 

federal law.” Id. 473 U.S. at 166, 105 S. Ct. at 3105 (citations omitted).

Yeldell, 956 F.2d at 1060.

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 11 of 29
12

Again, because Betts is already alleging § 1983 claims against the Board, to 

the extent Betts is suing Superintendent Brogden and Danford in their official 

capacities under §§ 1981 and 1983, such claims are due to be DISMISSED as 

redundant.6

Section 1983 itself also provides a cause of action for retaliation. See 

generally, e.g., Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005). However, the 

Defendants are correct that a claim for retaliation under § 1983 cannot be brought 

under the equal protection clause. See Watkins v. Bowden, 105 F.3d 1344, 1354-55

(11th Cir. 1997) (per curiam) (affirming district court’s grant of a directed verdict 

for defendants on plaintiff’s equal protection retaliation claim under § 1983 because

“[a] pure or generic retaliation claim...simply does not implicate the Equal 

Protection Clause.” (citing, inter alia, Ratliff v. DeKalb Cnty., 62 F.3d 338, 340 

(11th Cir. 1995)); Owens v. Jackson Cnty. Bd. of Educ., 561 F. App'x 846, 848 (11th 

Cir. 2014) (unpublished) (“Harding contends that the district court erred by denying 

summary judgment on Owens' Fourteenth Amendment retaliation claim. This

Court has held that a claim of gender-based retaliation ‘simply does not implicate 

 6 See Busby, 931 F.2d at 776 (“In Busby's action against the City of Orlando, the district 

court recognized that the intended defendant was actually the City. To keep both the City 

and the officers sued in their official capacity as defendants in this case would have been 

redundant and possibly confusing to the jury. We therefore AFFIRM the district court's 

decision to grant a directed verdict in favor of Walsh, Mays, Paden, and Noble as officially 

named defendants, because the City of Orlando remained as a defendant.”); M.R. v. Bd. of 

Sch. Comm'rs of Mobile Cnty., Civil Action No. 11-0245-WS-C, 2012 WL 2931263, at *2 & 

n.5 (S.D. Ala. July 18, 2012) (Steele, C.J.) (“[C]ourts in this Circuit routinely and 

overwhelmingly deem suits against both a local government official in his official capacity 

and the entity of which the officer is an agent to be redundant, and dismiss the officialcapacity claims against the individual defendant on that basis.”).

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 12 of 29
13

the Equal Protection Clause.’ ” As a result, Harding is entitled to summary 

judgment on Owens' retaliation claim.” (quoting Watkins, 105 F.3d at 1354) 

(internal citations omitted))). “The right to be free from retaliation is clearly 

established as a first amendment right and as a statutory right under Title VII; but 

no clearly established right exists under the equal protection clause to be free from 

retaliation.” Ratliff, 62 F.3d at 340. See also Bennett, 423 F.3d at 1250 (“To state a[ 

§ 1983] retaliation claim, the commonly accepted formulation requires that a 

plaintiff must establish first, that his speech or act was constitutionally protected; 

second, that the defendant's retaliatory conduct adversely affected the protected 

speech; and third, that there is a causal connection between the retaliatory actions 

and the adverse effect on speech.”). Betts’s Complaint specifically references the 

“Fourteenth Amendment” and “equal protection” multiple times (see Doc. 1 at 1, ¶ 1; 

7-8), but the First Amendment, “freedom of speech,” etc., are never referenced. 

Thus, to the extent Betts alleges claims of retaliation based solely on § 1983, such 

claims are due to be DISMISSED.

For the foregoing reasons, the undersigned finds as follows:

1. To the extent Betts alleges causes of action for retaliation based solely on § 

1983 (as opposed to a claim of retaliation under § 1981 by way of § 1983) in 

Count 2, the Defendants’ motion to dismiss is due to be GRANTED as to 

those claims.

2. Though the Defendants have not expressly moved for such relief, to the 

extent Betts asserts claims under §§ 1981 and 1983 against Superintendent 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 13 of 29
14

Brogden and Danford in their official capacities, such claims are due to be 

DISMISSED as redundant of her claims under §§ 1981 and 1983 against the 

Board.

3. To the extent Betts asserts claims of retaliation under § 1981, by way of § 

1983, against the Board and against Superintendent Brogden and Danford in 

their individual capacities, the Defendants’ motion to dismiss is due to be 

DENIED.

3. Punitive Damages

The Defendants argue that Betts’s demands for punitive damages in all three 

Counts are due to be dismissed because “[p]unitive damages are not available 

against government entities, including school boards.” (See Doc. 7 at 11). Betts 

acknowledges “that punitive damages may not be awarded on the plaintiff’s claim 

against a governmental entity such as a school board” but argues that “nothing

prohibits that same against individual defendants.” (Doc. 12 at 6).

Per the undersigned’s previous recommendation, see supra, Betts’s Title VII 

claims are asserted solely against the Board. The undersigned agrees that punitive 

damages are not available against the Board, a government agency, for Betts’s Title 

VII claims. 

The Civil Rights Act of 1991 allows a Title VII plaintiff to recover 

punitive damages in certain circumstances; however, it expressly 

precludes recovery of punitive damages from governments, government 

agencies, and political subdivisions. 42 U.S.C. § 1981a(b); see also 

Alexander v. Fulton County, Ga., 207 F.3d 1303, 1322 (11th Cir. 2000), 

overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th 

Cir.2003); see also McGriff v. Decatur County Sheriff's Office, 2005 U.S. 

Dist. LEXIS 16866, at * 2 (M.D. Ga. Aug. 9, 2005) (“Title VII plaintiffs 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 14 of 29
15

may not recover punitive damages against governments and 

government agencies or political subdivisions.”); Walker v. H. Councill 

Trenholm State Tech. Coll., 2006 U.S. Dist. LEXIS 60066, at *5 (M.D.

Ala. Aug. 23, 2006) (“Title VII disallows punitive damage awards 

against the government or a governmental agency.”). 

Freeman v. City of Riverdale, No. 1:06CV 2230WSD LTW, 2007 WL 1129004, at *2 

(N.D. Ga. Apr. 16, 2007). Accord Young v. City of Mobile, Civil Action No. 13-0586-

KD-B, 2014 WL 2739422, at *2 (S.D. Ala. June 17, 2014) (DuBose, J.) (“As to his 

claim pursuant to...Title VII, 42 U.S.C. § 1981a(b)(1) precludes an award of 

punitive damages against a ‘government, government agency or political 

subdivision.’ ”). Thus, the undersigned finds that Betts’s claims for punitive 

damages under Title VII against the Board are due to be DISMISSED. 

“Punitive damages are of course available under 42 U.S.C. §§ 1981 and 1983

when the defendant's conduct is shown to be motivated by evil motive or intent, or 

when it involves reckless or callous indifference to the federally protected rights of 

others.” Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir. 1985) (quotation 

omitted). First, as explained supra, because all Defendants are deemed state 

actors, Betts’s § 1981 claims have merged into her § 1983 claims, and “§ 1983 

constitutes the exclusive federal remedy for violation by [the Defendants] of the 

rights guaranteed under § 1981.” Bryant, 575 F.3d at 1288 n.1. See also Busby, 931 

F.2d 764, 771 (11th Cir. 1991) (“ ‘[T]he express “action at law” provided by § 1983 

for the “deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws,” provides the exclusive federal damages remedy for the 

violation of the rights guaranteed by § 1981 when the claim is pressed against a 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 15 of 29
16

state actor.’ ” (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989) 

(holding that section 1981 can provide no broader remedy against a state actor than 

section 1983)).

The Supreme Court has held that “a municipality is immune from punitive 

damages under 42 U.S.C. § 1983.” City of Newport v. Fact Concerts, Inc., 453 U.S. 

247, 271 (1981). Though the Eleventh Circuit Court of Appeals has not directly 

addressed the issue, district courts in this Circuit have extended the holding in City 

of Newport to include school boards, including, as here, Alabama county school 

boards. See Kubany v. Sch. Bd. of Pinellas Cnty., 839 F. Supp. 1544, 1551 (M.D. 

Fla. 1993) (“On the issue of damages, as Defendant School Board points out, 

punitive damages are not available under § 1983 from a governmental entity.” 

(citing Kentucky v. Graham, 473 U.S. at 167 n.13; City of Newport v, 453 U.S. 247)); 

Garrett v. Clarke Cnty. Bd. of Educ., 857 F. Supp. 949, 953 (S.D. Ala. 1994) (Hand, 

J.) (“Punitive damages are not available under § 1983 from a governmental entity. 

Accordingly, the plaintiff's claims for punitive damages against the Board, and 

against the Superintendents in their official capacities, under § 1983 are due to be 

dismissed with prejudice.” (citing, inter alia, Kubany, Graham, and City of Newport) 

(internal citations omitted)).7 Cf. Colvin v. McDougall, 62 F.3d 1316, 1319 (11th 

 7 See also Brown v. Baldwin Union Free Sch. Dist., 603 F. Supp. 2d 509, 518-19 & nn. 8-9 

(E.D.N.Y. 2009) (“Title VII, § 1981, and § 1983 do not provide for punitive damages against 

municipalities, leaving only the question of whether a school district and its board of 

education are municipal entities for purposes of immunity from punitive damages. 

Although neither the Supreme Court nor the Second Circuit has answered that question 

directly, this Court concurs with the many district courts that have all reached a single 

conclusion on the question—school districts and boards of education are municipal entities 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 16 of 29
17

Cir. 1995) (finding that “Newport's reasoning applies equally to a [Florida ]Sheriff's 

Department, thus barring a punitive damage award against Sheriff[] in his official 

capacity”). Given that Betts does not contest dismissal of her request for punitive 

damages against the Board, see supra, the undersigned finds that Betts’s claims for 

punitive damages under § 1983 against the Board are due to be DISMISSED. 

“In a § 1983 action, punitive damages are only available from government 

officials when they are sued in their individual capacities.” Young Apartments, Inc. 

v. Town of Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir. 2008). See also Kentucky v. 

Graham, 473 U.S. 159, 167 n.13 (1985) (“[P]unitive damages...are available in a 

suit against an official personally” under § 1983). Though, the undersigned has 

already recommended that Betts’s official-capacity § 1983 claims against 

Superintendent Brogden and Danford are due to be dismissed as redundant, see 

supra, in the interest of covering all bases, to the extent Betts requests punitive 

damages for those claims, the Defendants’ motion to dismiss is due to be 

GRANTED as to this request. 

Thus, the undersigned finds that the Defendants’ motion to dismiss is due to 

be GRANTED as to Betts’s claim for punitive damages against the Board on all 

claims and against Superintendent Brogden and Danford in their official capacities. 

The motion is due to be DENIED, however, as to any request for punitive damages 

under § 1983 against Superintendent Brogden and Danford in their individual 

capacities.

 

immune from punitive damages under Title VII, § 1981, and § 1983.” (footnote omitted) 

(citing cases, including Garrett)).

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 17 of 29
18

4. Declaratory and Injunctive Relief

In the first section of her Complaint, describing the general “nature of the 

action,” Betts requests, inter alia, a declaratory judgment, pursuant to the 

provisions of Title 28 U.S.C. § 2201, declaring the rights and relations of the 

parties...” (Doc. 1 at 1, ¶ 1). Also, in Count 2, Betts requests “declaratory and 

injunctive relief” in addition to monetary damages. (Id. at 7, ¶ 24). The Defendants 

move for dismissal of hers claims for declaratory and injunctive relief, arguing that 

Betts “does not say what she wants to be declared, or what or whom she wants to be 

enjoined” and that “[t]his statement is too vague for the Defendants to make any 

response to it...” (Doc. 7 at 12).

“[I]n an employment discrimination suit brought, as here, under Title VII 

and § 1981, a plaintiff can obtain...declaratory and injunctive relief under both 

statutes...” Davis, 516 F.3d at 965 n.18. Such relief may also be available under § 

1983. However, the undersigned rejects the Defendants’ contention that Betts is 

required to plead the declaratory and injunctive relief she seeks with specificity. In 

fact, the Eleventh Circuit, albeit in an unpublished decision, has held that a 

“district court should not...den[y] declaratory and injunctive relief” under Title VII

even where a plaintiff has “failed to specifically request such relief in his complaint” 

at all, noting: “Under...Title VII, the district court has broad discretion in 

fashioning relief to achieve the broad purposes of the Civil Rights Act and has 

authority to award appropriate relief dictated by evidence, ‘even though it may not 

have been sought in pleadings.’ ” Carter v. Diamondback Golf Club, Inc., 222 F. 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 18 of 29
19

App'x 929, 931 (11th Cir. 2007) (per curiam) (quoting Fitzgerald v. Sirloin Stockade, 

Inc., 624 F.2d 945, 957 (10th Cir. 1980)). See also Rivers v. Washington Cnty. Bd. of 

Educ., 770 F.2d 1010, 1012 (11th Cir. 1985) (per curiam) (“The district court has 

broad, equitable discretion to grant any equitable relief it deems appropriate to 

make persons whole for injuries suffered on account of unlawful employment 

discrimination.”).

What, if any, injunctive and/or declaratory relief Betts is entitled to depends 

on the ultimate outcome of this case and need not be specified in detail (or indeed, 

at all) in the pleading stage. See Canup v. Chipman-Union, Inc., 123 F.3d 1440, 

1444 (11th Cir. 1997) (“Injunctive or declaratory relief may not be available in a 

given case..., but it will be available in some situations.”). Thus, the Defendants’ 

motion to dismiss is due to be DENIED as to Betts’s claims for injunctive and 

declaratory relief.

5. “Individual Members” of the Board

The Defendants note with some concern that paragraph 19 of the Complaint, 

located in Count 2 (Retaliation), states: “The Defendant Conecuh County Board of 

Education and its individual members as alleged herein rubber stamped and 

approved the discriminator actions of the superintendent.” (Doc. 1 at 7, ¶ 19). As 

the Defendants correctly point out, the individual members of the Board “have not 

previously been identified as defendants.” (Doc. 7 at 11 n.4). To the extent the 

Board members are being sued in their official capacities and as agents of the 

Board, such claims are redundant of Betts’s claims against the Board itself and are 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 19 of 29
20

due to be DISMISSED. To the extent the Board members are being sued in their 

individual capacities under Title VII, such claims are also due to be DISMISSED. 

To the extent Betts alleges a claim of retaliation against the Board members in 

their individual capacities under § 1981 by way of § 1983, the Board members 

individually have neither been properly served nor listed in the title of the 

complaint, see Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the 

parties...”) and thus are currently not considered parties to this action.8

B. Rule 12(e) More Definite Statement

Should the District Judge adopt all of the recommendations made in Section 

III.A., supra, the following causes of action will remain, thus narrowing the scope of 

claims that may require a more definite statement:

 8 Moreover, Betts’s one passing reference to the “individual members” of the Board is 

insufficient to put them on notice that they are being sued in their individual capacities. Cf. 

Colvin v. McDougall, 62 F.3d 1316, 1317 (11th Cir. 1995):

In trying to determine in what capacity Sheriff McDougall was sued, we look 

at the complaint and the course of proceedings. See Kentucky v. Graham, 473 

U.S. 159, 167–68 n.14, 105 S. Ct. 3099, 3106 n.14, 87 L. Ed. 2d 114 (1985). In 

this case, the caption of the complaint lists as a defendant, “John J. 

McDougall, as Sheriff of the Lee County ” (emphasis added). This style 

suggests that McDougall was sued in his official capacity, as the Sheriff, not 

as an individual. McDougall is mentioned by name in the complaint only 

three times. Each time, McDougall is referred to as follows:

The defendant, John J. McDougall, is and was at all times material 

hereto, the Sheriff of Lee County, Florida, an agent for both the Lee

County Board of Commissioners, and the Lee County Sheriff's 

Department. Defendant John J. McDougall was elected, duly 

appointed, employed and acting as Sheriff of the County of Lee, a 

municipal corporation and governmental subdivision of the State of 

Florida at all times material hereto.

This kind of pleading looks like an official capacity suit.

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 20 of 29
21

• Count 1 (against the Board only) – discriminatory disparate treatment on the 

basis of race, in violation of Title VII. No punitive damages available.

• Count 2 – 1) unlawful retaliation under Title VII against the Board only, and 

2) unlawful retaliation under § 1981 (by way of § 1983) against the Board and 

against Superintendent Brogden and Danford in their individual capacities. 

Punitive damages available only against Superintendent Brogden and 

Danford in their individual capacities.

• Count 3 – claims against the Board and against Superintendent Brogden and 

Danford in their individual capacities for discrimination on the basis of race 

and ethnicity “in violation of the Constitution and laws of the United States 

that secure and guarantee to her the equal protection of the law” –

specifically, “[t]he Fourteenth Amendment to the United States Constitution” 

– “as enforced by Title 42 U.S.C. §§ 1981 and 1983.” (Id. at 1, 7-8). Punitive 

damages available only against Superintendent Brogden and Danford in 

their individual capacities.

The Defendants move for dismissal of the Complaint (Doc. 1) in general 

under Rule 12(b)(6), or alternatively for a more definite statement under Rule 12(e), 

because it is a “proverbial shotgun pleading,” as it “incorporate[s] every antecedent 

allegation by reference into each subsequent claim for relief . . .” Wagner v. First 

Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006). See also, e.g., Strategic 

Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 

2002) (“The typical shotgun complaint contains several counts, each one 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 21 of 29
22

incorporating by reference the allegations of its predecessors, leading to a situation 

where most of the counts (i.e., all but the first) contain irrelevant factual allegations 

and legal conclusions. Consequently, in ruling on the sufficiency of a claim, the trial 

court must sift out the irrelevancies, a task that can be quite onerous.”); Anderson v. 

Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996)

(“Anderson's complaint is a perfect example of ‘shotgun’ pleading, in that it is 

virtually impossible to know which allegations of fact are intended to support which 

claim(s) for relief.” (internal citation omitted)); Magluta v. Samples, 256 F.3d 1282, 

1284 (11th Cir. 2001) (per curiam) (“Each count incorporates by reference the 

allegations made in a section entitled ‘General Factual Allegations’...while also 

incorporating the allegations of any count or counts that precede it. The result is 

that each count is replete with factual allegations that could not possibly be 

material to that specific count, and that any allegations that are material are buried 

beneath innumerable pages of rambling irrelevancies. This type of pleading 

completely disregards Rule 10(b)'s requirement that discrete claims should be plead 

in separate counts...”). The Complaint is also “shotgun” in nature because “all 

defendants are charged in each count[,]” and “[t]he complaint is replete with 

allegations that ‘the defendants’ engaged in certain conduct, making no distinction 

among the []defendants charged...” Magluta, 256 F.3d at 1284.

In this Circuit, “shotgun pleadings” have “been roundly, repeatedly, and 

consistently condemn[ed] for years, long before this lawsuit was filed.” Davis v. 

Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008). See also, 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 22 of 29
23

e.g., id. at 981-84 (discussing at length the “unacceptable consequences of shotgun 

pleading”); Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1125-28 (11th Cir. 2014)

(discussing “the persistence of the shotgun pleading problem”); Wagner, 464 F.3d at

1279 (“ ‘[S]hotgun pleadings wreak havoc on the judicial system.’ Byrne v. Nezhat, 

261 F.3d 1075, 1130 (11th Cir. 2001). Such pleadings divert already stretched 

judicial resources into disputes that are not structurally prepared to use those 

resources efficiently.”). A Rule 12(b)(6) motion to dismiss and a Rule 12(e) motion 

for more definite statement are appropriate responses to a shotgun pleading. See 

Paylor, 748 F.3d at 1126-27 (“A defendant served with a shotgun complaint should 

move the district court to dismiss the complaint pursuant to Rule 12(b)(6) or for a 

more definite statement pursuant to Rule 12(e) on the ground that the complaint 

provides it with insufficient notice to enable it to file an answer.” (footnotes 

omitted)); Davis, 516 F.3d at 983-84 (“[D]efense counsel, faced with a [“shotgun” 

]complaint..., should have moved the court for a more definite statement pursuant 

to Federal Rule of Civil Procedure 12(e).”); Anderson, 77 F.3d at 366 (“Under the 

Federal Rules of Civil Procedure, a defendant faced with a [“shotgun” 

]complaint...is not expected to frame a responsive pleading. Rather, the defendant 

is expected to move the court, pursuant to Rule 12(e), to require the plaintiff to file a 

more definite statement.”).9

 9 Even where a Rule 12(e) motion is not filed, the Eleventh Circuit has suggested that a 

district court should order repleading sua sponte when faced with a “shotgun” pleading. See

Davis, 516 F.3d at 984 (“In light of defense counsel's failure to request a repleader, ‘the 

court, acting sua sponte, should have struck the plaintiff's complaint, and the defendants' 

answer, and instructed plaintiff's counsel to file a more definite statement.’ ” (quoting 

Anderson, 77 F.3d at 367 n.5)); Paylor, 748 F.3d at 1127 (same); Ferrell v. Durbin, 311 F. 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 23 of 29
24

Though certainly not the most egregious example of “shotgun” pleading,10

Betts’s Complaint, as drafted, still creates confusion. On a general level, the 

Defendants are correct that the allegations in the counts themselves are only 

“[t]hreadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements,” that “do not suffice” to state plausible claims. Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009). While Betts does make factual allegations 

preceding her claims for relief, by simply alleging each claim against unspecified 

“defendants” and incorporating all antecedent allegations into each count, Betts has 

made it, if not “virtually impossible[,]” at the very least difficult “to know which 

allegations of fact are intended to support which claim(s) for relief.” Paylor, 748 

F.3d at 1126 (quotation omitted). Thus, the Defendants – and the Court – are left 

to guess as to which allegations are relevant to each claim against each Defendant.

As to more specific examples of the confusion caused by Betts’s “shotgun” 

pleading, Count 1, alleging a cause of action for “employment discrimination” under 

“Title VII,” appears to allege only a claim for disparate treatment. See (Doc. 1 at 6, 

 

App'x 253, 259 n.8 (11th Cir. 2009) (per curiam) (unpublished) (“When presented with a 

shotgun complaint, the district court should order repleading sua sponte.” (citing Wagner, 

464 F.3d at 1280)); Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 

1333 (11th Cir. 1998) (“We recognize the time pressures that the federal district courts face 

because of crowded dockets; it is much easier in the short term to permit shotgun 

pleadings—in the hope that the parties will settle their dispute—instead of intervening sua 

sponte to narrow the issues. In the long term, however, the judicial work that results from 

shotgun pleading is far more time consuming than the work required up front to prevent 

the case from proceeding beyond the pleadings until the issues are reasonably well defined. 

As we have previously stated, and state once again, district courts have the power and the 

duty to define the issues at the earliest stages of litigation.”).

10 Cf., e.g., Strategic Income Fund, 305 F.3d at 1295-96 (“shotgun” complaint contained “127 

paragraphs...and nine counts, with each count incorporating by reference every paragraph 

that precedes it”); Magluta, 256 F.3d at 1284 (“shotgun” complaint was “fifty-eight pages 

long[,]...name[d] fourteen defendants, and all defendants [were] charged in each count”).

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 24 of 29
25

¶ 15 (“[S]he has been discriminated against by the defendants and treated 

differently than other employees because of their race in violation of Title VII of the 

Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. This treatment 

by the defendant has affected the terms and conditions of the plaintiff's 

employment, resulting in her transfer, proposed termination and the filing of 

charges proposing the revocation of her Alabama Professional Certificate.”)). Count 

3, alleging a cause of action under §§ 1981 and 1983, simply alleges that Betts has 

“been discriminated against by the defendants and treated differently than other 

employees because of her race and ethnicity[,]” again suggesting a claim only for 

disparate treatment. (Id. at 8, ¶ 25). However, both counts also adopt and 

incorporate all antecedent allegations “as if the same were fully set forth” therein. 

(Id. at 6-8). In paragraphs 9 and 14, antecedent to both counts, Betts claims that 

she has been subject to, inter alia, a “hostile work environment.” (Id. at 4-5). As 

such, it is unclear whether Betts is alleging claims for hostile work environment

under Title VII and/or §§ 1981 and 1983.

Another example of confusion is Betts’s inclusion of Danford with the other 

“defendants” on her claim of retaliation in Count 2 for “having successfully defended 

the Superintendent’s proposed termination of her employment...” (Doc. 1 at 7, ¶ 

19). In her allegations of fact, only Superintendent Brogden and the Board are 

alleged to have taken retaliatory action against Betts following her reinstatement –

i.e. Superintendent Brogden’s recommendation of transfer, adopted by the Board, 

and Brogden’s complaint for revocation of Betts’s teaching certificate. (Id. at 4-5). 

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 25 of 29
26

By simply lumping Danford with the other defendants in this count, she has 

attempted to assert a cause of action against Danford based solely on the actions of 

others.11

“Civil pleadings are supposed to mark the boundaries for discovery; discovery 

is not supposed to substitute for definite pleading.” Id. at 1127. Given the Eleventh 

Circuit’s explicit and repeated condemnation of “shotgun” pleading, the examples of 

confusion noted above, and the recommended dismissal of a number of Betts’s 

claims, see supra, the undersigned finds that repleader under Rule 12(e) is due in 

order for Betts to clarify her causes of action and prevent this case from devolving 

into a “discovery goat rodeo[.]” Paylor, 748 F.3d at 1127.12

Accordingly, the undersigned finds that the Defendants’ Rule 12(e) motion for 

more definite statement is due to be GRANTED and that their Rule 12(b)(6) motion 

 11 Count 2 also claims that Betts was retaliated against for “having filed a Charge of 

Discrimination with the Equal Employment Opportunity Commission.” (Doc. 1 at 7, ¶ 19). 

However, the Complaint contains no allegation stating when this charge was filed or when 

any of the Defendants were made aware of it. As such, it is impossible for the Court to 

determine whether a plausible claim for retaliation has been alleged on this basis.

12 While the Defendants make some mention of dismissal under Rule 12(b)(6) being 

warranted for failure to meet the Twombly-Iqbal standard of pleading, no specific argument 

is made on this issue, and the undersigned finds repleading under Rule 12(e) to be the more 

appropriate course of action at this point in the litigation. Cf. Wagner, 464 F.3d at 1280 

(“[W]e disagree that dismissal was the appropriate course of action for the district court to 

take at this juncture in the litigation. As the district court concluded, ‘the problem was not 

that Plaintiffs did not allege enough facts, or failed to recite magic words; the problem lay 

in the fact that while Plaintiffs introduced a great deal of factual allegations, the amended 

complaint did not clearly link any of those facts to its causes of action.’ We disagree with 

the dismissal of this case because these observations sound more clearly in Rule 12(e)'s 

remedy of ordering repleading for a more definite statement of the claim, rather than in 

Rule 12(b)(6)'s remedy of dismissal for failure to state a claim. In fact, the court noted that 

there was ‘no repeated failure on Plaintiffs['] part to draft a conforming complaint.’ ” 

(internal citation omitted)).

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 26 of 29
27

to dismiss be DENIED except as otherwise noted above. The undersigned 

RECOMMENDS that Betts be required to adhere to the following standards in 

repleading her complaint:

1. Betts shall omit mention of any claim that is dismissed by the Court’s Order 

addressing this Report and Recommendation.

2. She shall refrain from incorporating multiple causes of action into one count, 

as well as from the wholesale adoption by reference of all antecedent 

allegations into each subsequent cause of action. Instead, she must list each 

discrete cause of action (e.g., “disparate impact under Title VII,” “hostile work 

environment under Title VII,” “retaliation under § 1981”) in a separate count 

and identify with specificity the factual allegations used to support each 

discrete claim against each individual Defendant. 13

3. In being ordered to replead under Rule 12(e), Betts is not being granted leave 

to amend her complaint under Federal Rule of Civil Procedure 15(a)(2). 

Thus, she shall not use this as an opportunity to add new claims and/or 

parties which are not apparent from the allegations in her initial Complaint 

(Doc. 1). Cf. Washington v. Util. Trailer Mfg. Co., No. 1:13-CV-610-WEF, 

 13 Though Betts invokes the Declaratory Judgment Act, 28 U.S.C. § 2201, in the 

opening of her Complaint, she does not assert a separate cause of action under it, and from 

the allegations in her Complaint it appears that she seeks a “declaratory judgment” only as 

one of several forms of relief on her Title VII, § 1981, and § 1983 actions. 

Should the Court adopt the recommendation that Betts be ordered to replead under 

Rule 12(e), Betts shall set forth a discrete count asserting a cause of action under the 

Declaratory Judgment Act if she indeed wishes to do so. Otherwise, she shall omit 

reference to the Declaratory Judgment Act on repleader.

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 27 of 29
28

2014 WL 2831189, at *5 n.5 (M.D. Ala. June 23, 2014) (“Plaintiffs may not 

use this order to re-plead Count I as an opportunity to add new claims.”).

IV. Conclusion

In accordance with the above-stated analysis, the undersigned 

RECOMMENDS as follows:

1. The Defendants’ Rule 12(b)(6) (Doc. 7) should be GRANTED as to the 

following claims and DENIED in all other respects:

• Betts’s Title VII claims against Superintendent Brogden and Danford, 

both individually and as agents of the Board.

• Betts’s claims for retaliation brought solely under § 1983.

• Betts’s claims for punitive damages under both Title VII and § 1983 

against the Board, and for punitive damages under §§ 1981 and 1983 

against Superintendent Brogden and Danford in their official capacities.

2. Betts’s § 1983 claims (including her merged § 1981 claims) against 

Superintendent Brogden and Danford in their official capacities should be 

DISMISSED sua sponte as redundant.

3. The Defendants’ Rule 12(e) motion for more definite statement should be 

GRANTED, with Betts required to replead as set out in Section III.B., 

supra.14

V. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

 14 “If the court orders a more definite statement and the order is not obeyed within 14 days 

after notice of the order or within the time the court sets, the court may strike the pleading 

or issue any appropriate order.” Fed. R. Civ. P. 12(e).

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 28 of 29
29

manner provided by law. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of service of this 

document, file specific written objections with the Clerk of this Court. See 28 U.S.C. 

§ 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is 

made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific.

DONE this the 10th day of December 2014.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

Case 1:14-cv-00356-CG-N Document 16 Filed 12/10/14 Page 29 of 29