IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DELOUISE DAILEY,

Plaintiff,

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vs. : CIVIL ACTION 14-423-KD-M

:

SYLVIA HANDS, et al.,

Defendants.

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REPORT AND RECCOMENDATION

The Defendant’s Motion to Dismiss has been referred to 

the undersigned for report and recommendation under 28 

U.S.C. 636(b)(1)(B) and Local Rule 72.2. After careful 

consideration of the pleadings, the Motion to Dismiss, 

Plaintiff’s Response thereto and Defendant’s Reply, it is 

recommended that Defendant’s Motion to Dismiss be granted 

for failure to state a claim upon which relief may be 

granted. 

I. Facts and Proceedings

Plaintiff Delouise Dailey1 filed her three-count 

 1 The Court’s electronic filing system refers to 

Plaintiff as “Deloris Dailey.” Plaintiff’s Civil Cover 

Sheet refers to her as “Deloris Dailey.” The caption in 

Plaintiff’s Complaint and Response in Opposition to 

Defendant’s Motion to Dismiss refers to her as “Delouise 

Dailey.” (Docs. 1, 10). Defendants likewise refer to 

Plaintiff as “Delouise Dailey.” Despite the discrepancy 

between Plaintiff’s own Civil Cover Sheet and her 

Complaint, the Court will refer to her Delouise Dailey 

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Complaint (Doc. 1) on September 16, 2014, alleging causes 

of action under the First Amendment via 42 U.S.C. § 1983, 

and for defamation and for intentional infliction of 

emotional distress under Alabama law. The basis of the 

Complaint stems from an offer of compromise presented to 

Plaintiff by Defendant Hands in Defendant Hands’ election 

contest, as well as multiple gatherings between Defendants 

wherein they allegedly subjected Plaintiff’s good character 

to shame, disrepute and humiliation. (Doc. 1 at 5). As 

Defendants, Plaintiff names Sylvia Hands, Linda Rowell, and 

Sue Starr. (Doc. 1). Upon service of the Complaint, 

Defendants filed their Motion to Dismiss, to which 

Plaintiff responded in opposition, and Defendants filed 

their Reply. (Docs. 1, 5, 10, 11). The fully briefed 

Motion has been considered; the Court finds in favor of 

 

since that seems to be the spelling most used throughout 

this action. In addition to this naming error, the Court 

notes that Plaintiff’s Complaint and her response to 

Defendants’ Motion was fraught with typographical and 

grammatical errors making each submission a difficult read 

for the Court. The Court cautions counsel for Plaintiff 

that, though briefs filed in federal court are not expected 

to be flawless, they should be sufficiently error-free and 

coherent to allow the Court to understand the party’s 

arguments without having to splice it together based on 

what we think the party intends to argue. See, e.g., U.S. 

ex rel. Crenshaw v. Degayner, 622 F.Supp.2d 1258 n. 5 (11th 

Cir. 2008) (citing In re Roete, 936 F.2d 963, 967 (7th Cir. 

1991)(upholding imposition of sanctions where numerous 

unsupported arguments and grammatical errors in a party’s 

pleading required the court to spend additional time to 

insure that a proper decision is reached)).

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Defendants for the reasons set out below.

Plaintiff states that “at all times material hereto, 

Defendant Hands was the duly elected member serving 

District 1 of the Council for the Town of Frisco City, 

Alabama.” (Doc. 1 at 2). Plaintiff further contends that 

“at all times material hereto, Defendant Sue Starr was the 

duly elected Mayor for the Town of Frisco City, Alabama, . 

. . and Defendant Linda Rowell was the duly elected member 

serving District 5 of the Council for the Town of Frisco 

City, Alabama.” (Id.). 

Municipal elections for the town of Frisco City were 

held on August 28, 2012. For the City Council District One

representative, Defendant Sylvia Hands was the incumbent 

against whom Loyce Richardson ran. (Doc. 1 at 2). 

Plaintiff Delouise Dailey is the sister of Loyce 

Richardson. (Id.). Loyce Richardson was declared the 

winner by two votes, receiving 69 votes to Defendant’s 67. 

(Id.). On September 7, 2012, Defendant Hands filed a 

lawsuit in her individual capacity as a resident and 

qualified elector of District One of Frisco City contesting 

the results of that election. (Id.). The lawsuit was 

filed in the Circuit Court of Monroe County, Alabama. 

After filing the election contest, Defendant Hands

sent Plaintiff Dailey an offer of compromise in a strange

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attempt to settle the election contest. (Id. at 3). The 

Court notes that, oddly, Plaintiff was not a named party in 

the election contest lawsuit, but received the offer in 

compromise anyway. The offer of compromise indicated that 

Defendant Hands would be willing to dismiss her pending 

election contest if Plaintiff Dailey complied with three 

conditions: (1) Plaintiff must send a signed letter to the 

Mayor and City Council stating that she would not be 

designated by any candidate, or serve, as a poll watcher at 

any future municipal election in Frisco City; (2) Plaintiff 

must submit a letter to the Monroe County Judge of Probate 

stating that she would not serve as a poll worker in Monroe 

County in any future election; and (3) Plaintiff would 

reimburse Defendant Hands her filing/service fee of 

$291.00, along with her attorney’s fees which were, at the 

time, $850.00. (Id.). As a result of receiving the offer 

in compromise, Plaintiff contends that Defendant Hands’

actions “were tantamount [sic] subjugating [sic] her civil 

rights to serve in the election process by engaging in acts 

of intimidation and extortion.”2 (Doc. 1 at 3). 

 2 In addition to the alleged civil rights violation in 

Count I, Plaintiff asserts in Counts II and III that 

Defendants Starr and Rowell acted in concert with Defendant 

Hands, under the color of state law, in their official and 

individual capacities, to “unlawfully affect the out come 

[sic] of the election results and voting for elective 

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Count I titled Federal Cause of Action, alleges that 

Defendant Hands, acting under color of state law, 

undermined through intimidation Plaintiff’s First Amendment 

rights to free speech, political expression and to petition 

the government for redress. (Id. at 4). Plaintiff 

contends that “under applicable voting rights law, state 

and federal, [she] has the right to serve as a poll watcher 

and participate in the electoral process, . . . and that 

 

offices to the Town. Defendant Hands, Starr and Rowell, 

[sic] met with each other at the home of Hands and at the 

Fire Department . . . which was a designated polling 

station wherein they engaged in acts to unduly and 

unlawfully affect the results of municipal elections of 

2012. Plaintiff avers that in open council meetings . . . 

she called into question certain actions of elected 

officials, among them misuse of city funds, use of city 

workers and equipment for private property, [and] 

Defendants Linda Rowell and Sue Starr made verbal attacks 

against her good name and character. Plaintiff avers that 

the actions complained of herein submitted her to libel, 

slander, and violations of rights secured to her by” 

Alabama state law and the First and Fourteenth Amendments. 

(Id. at 3-4).

Counts II and III address these alleged acts of 

defamation which purportedly intentionally inflicted 

emotional distress on Plaintiff. These claims, titled 

“Defamation” and “Intentional Infliction of Emotional 

Distress,” respectively, Defendants submit, and Plaintiff 

concedes that, state law does not provide Plaintiff a cause 

of action under the circumstances. (Doc. 10 at 6). 

Therefore, the Court treats this concession as a voluntary 

dismissal for those Counts, and for Defendants Starr and 

Rowell, as Count I does not contain any allegations against 

Starr and Rowell. The Court will not address these 

allegations or these Defendants any further beyond this 

point.

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the First Amendment’s Free Speech Clause guarantees [] her 

. . . the right to express her views on the affairs of city 

government for [t]he Town of Frisco City. Speech, 

including, oral, written and symbolic expression, is 

entitled to comprehensive protection under the First 

Amendment. . . .” (Id.). 

As a result of the alleged First Amendment violation, 

Plaintiff allegedly suffered “damages, including but not 

limited to emotional anguish.” (Id.). Plaintiff seeks 

compensatory damages in an unspecified amount, and 

“injunctive relief, enjoining the actions of the defendants 

[sic] from trammeling of [sic] rights of the plaintiffs 

[sic] and citizens of the Town of Frisco City from serving 

as poll watchers and participating in the electoral 

process.” (Id.). 

In her Motion to Dismiss, (Doc. 5), Defendant Hands 

contends that Plaintiff’s First Amendment claim is due to 

be dismissed because it fails to allege any facts which 

give rise to a violation of free speech. Factually, 

Defendant argues that Plaintiff has failed to make any 

specific factual allegation demonstrating that she was

actually precluded, prevented, or otherwise inhibited from 

engaging in any actions, speech, expression or other 

conduct implicated by the First Amendment, or that her 

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right to freedom of expression was chilled in any way. 

(Doc. 5-1 at 5). Defendant Hands contends that absent any 

such factual allegations, Plaintiff’s free speech claim 

“stops short of the line between possibility and 

plausibility of ‘entitlement to relief’” as discussed in 

the landmark cases, Iqbal and Twombly, infra, pp. 9-10. 

Defendant further points out that Plaintiff fails to 

provide any facts tending to prove that Defendant Hands 

acted under color of state law, which is an essential 

element to her § 1983 claim. Defendants contend that 

Plaintiff mouths the buzzwords “under color of state law,” 

but never provides any facts sufficient to prove that 

Defendant Hands acted under color of state law in sending 

her an offer of compromise. 

In an effort to salvage the single remaining claim in 

her Complaint, Plaintiff responds in opposition to 

Defendants’ Motion and concludes without sufficient factual 

allegations that her claims are more than a formulaic 

recitation of the elements of a First Amendment claim. 

(Doc. 10). “Plaintiff submits that her federal cause of 

action claim asserting First Amendment infringement by the 

defendants transcend [sic] merely serving as a poll watcher 

and more profoundly alleges an infringement of the right to 

vote and participate in the electoral process.” (Id. at 

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2). Plaintiff then attempts to raise in her response

claims of “retaliation and infringement of political 

affiliation,” as well as “unlawful employment 

discriminatory practices” based on race-- none of which are 

alleged anywhere in her Complaint. (Id. at 2, 4).

Plaintiff contends that Defendants’ arguments are 

“preposterous” and concludes again without support that “at 

all time material hereto the defendants were elected 

officials of Frisco City” acting under color of state law 

to influence the outcome of future elections and voting 

processes. (Id. at 5). 

Concluding her response, Plaintiff states, “to the 

extent that this Court finds that her First Amendment claim 

needs to be amended, the appropriate relief is not 

dismissal but rather the filing of a more definite 

statement by way of an amended complaint.” (Id. at 5-6).

Defendant’s Reply succinctly reiterates her previously 

asserted arguments regarding Plaintiff’s unsupported 

conclusory allegations. The Reply closes with the argument 

that Plaintiff’s allegations regarding retaliation, 

political infringement, race or ethnicity discrimination 

are due to be stricken as they were never raised in the 

Complaint, but only in Plaintiff’s Response to the Motion 

to Dismiss. The Defendants correctly state that those 

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claims are not before the Court given that they were not 

raised in the Complaint, and thus have not been briefed via 

the pending Motion to Dismiss.

II. Discussion

a. Motion to Dismiss Standard

A defendant may move to dismiss a complaint pursuant 

to Federal Rule of Civil Procedure 12(b)(6) if the 

plaintiff has failed to state a claim upon which relief may 

be granted. To survive a 12(b)(6) motion to dismiss for 

failure to state a claim, the complaint “does not need 

detailed factual allegations;” however, the “plaintiff's 

obligation to provide the ‘grounds' of his ‘entitle[ment] 

to relief’ requires more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action 

will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 

555 (2007) (internal citations omitted). Factual 

allegations, on the assumption that all allegations in the 

complaint are true, must be enough to raise a right to 

relief above the speculative level and state a claim for 

relief that is plausible on its face. Id. at 555, 570. “A 

claim has facial plausibility when the plaintiff pleads 

factual content that allows a court to draw the reasonable 

inference that the defendant is liable for the misconduct 

alleged . . . . Where a complaint pleads facts that are 

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‘merely consistent with’ a defendant’s liability, it stops 

short of the line between possibility and plausibility of 

entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009)(quoting Twombly at 556, 557, 570)(quotation 

marks omitted).

The Court accepts all facts as true and limits its 

consideration to the pleadings and exhibits attached 

thereto. Abraham v. Greater Birmingham Humane Soc’y, Inc., 

No. 2:11-CV-4358-SLB, 2014 WL 1043230, *1 (N.D.Ala. Mar. 

17, 2014)(citing Grossman v. Nationsbank, N.A., 225 F.3d 

1228, 1231 (11th Cir. 2000)(citation omitted). All 

reasonable inferences are drawn in favor of the plaintiff; 

however, unsupported conclusions of law or of mixed fact 

and law have long been recognized not to prevent a Rule 

12(b)(6) dismissal. Abraham, 2014 WL 1043230 at *1 (citing 

Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 

2003)(citation omitted).

b. First Amendment

The First Amendment states, “Congress shall make no 

law respecting an establishment of religion, or prohibiting 

the free exercise thereof; or abridging the freedom of 

speech, or of the press; or the right of the people 

peaceably to assemble, and to petition the Government for 

redress of grievances.” The First Amendment has long been

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held to apply to the states through the Fourteenth 

Amendment. Members of City Council v. Taxpayers for 

Vincent, 466 U.S. 789, 792 n. 2 (1984)(citation omitted). 

c. 42 U.S.C. § 1983

As stated above, Plaintiff seeks redress for the 

alleged violation of her First Amendment rights via this 

civil rights action under 42 U.S.C. § 1983. Section 1983 

states in pertinent part:

Every person who, under color of any 

statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the 

District of Columbia, subjects, or causes to 

be subjected, any citizen of the United 

States or other person within the 

jurisdiction thereof to the deprivation of 

any rights, privileges, or immunities 

secured by the Constitution and laws, shall 

be liable to the party injured in an action 

at law, suit in equity, or other proper 

proceeding for redress . . . . 

42 U.S.C. § 1983 (1994). Thus, to state a claim under § 

1983, a plaintiff must allege the violation of a right 

secured by the Constitution and laws of the United States, 

and must show that the alleged deprivation was committed by 

a person acting under color of state law. West v. Atkins, 

487 U.S. 42, 48 (1988). “The traditional definition of 

acting under color of state law requires that the defendant 

in a § 1983 action have exercised power possessed by virtue 

of state law and made possible only because the wrongdoer 

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is clothed with the authority of state law.” Id. 

(citations omitted). 

d. Application

1. First Amendment Right To Serve As Poll Watcher

Plaintiff contends that “[u]nder applicable voting 

rights law, state and federal, the plaintiff has the right 

to serve as a poll watcher and participate in the electoral 

process. (Doc. 1 at 4). Plaintiff alleges that these 

fundamental rights were violated by Defendant Hands when

she sent a letter in compromise to Plaintiff on the heels 

of Defendant Hands filing an election contest for the 

election she lost to Plaintiff’s brother, Loyce Richardson. 

As stated previously, the settlement offer requested 

Plaintiff to agree to forgo serving as a poll watcher in 

future elections in exchange for Defendant Hands dropping 

her election contest. Defendant Hands’ Motion to Dismiss 

correctly states that poll watching is not a fundamental 

right which enjoys distinct First Amendment protection, and 

thus Plaintiff’s First Amendment rights were not violated 

by the offer in compromise. See Cotz v. Mastroeni, 476 

F.Supp.2d 332, 364 (S.D.N.Y. 2007); Lopez Torres v. N.Y. 

State Bd. of Elections, 462 F.3d 161, 183 (2d Cir. 2006);

Anderson v. Celebrezze, 460 U.S. 780, 787 (1983); Williams 

v. Rhodes, 393 U.S. 23, 30-31 (1968).

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In response to Defendant’s arguments and supporting 

case law, Plaintiff proposes that poll watching is actually 

a First Amendment right that “transcends” merely serving as 

a poll watcher, and to limit her “right” to serve as a poll 

watcher profoundly infringes on her right to vote and 

participate in the electoral process. Plaintiff provides 

no case law to support her transcendence argument; 

Plaintiff’s argument is not well taken.

First, the Court notes, and Defendant points out, that 

Plaintiff’s Complaint is completely devoid of any 

allegation that she was actually precluded, prevented or 

otherwise inhibited from engaging in any actions, speech, 

expression or other conduct implicating her First Amendment 

rights. There are no allegations that Defendant Hands 

actually prevented Plaintiff from participating as a poll 

watcher in any election, or otherwise abrogated Plaintiff’s 

participation in the electoral process. At best, the Court 

finds that Defendant Hands sent Plaintiff a letter which 

offended her by asking that Plaintiff agree to forgo future 

poll watching in exchange for Defendant dropping her 

election contest against Plaintiff’s brother. To the 

Court’s knowledge, Plaintiff did not agree to any of the 

stipulations in the letter as the election contest was 

resolved via bench trial by a circuit court judge, rather 

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than by compromise.3 (See Hands v. Richardson, CV-12-31, 

Order dated February 27, 2013). 

Furthermore, the Court finds that the proposed offer 

in compromise had no force or effect over Plaintiff, as she 

was not a party to the election contest, was not obligated 

to any terms in the offer, and it is unclear whether there 

was requisite consideration sufficient to create a binding 

settlement agreement. Though Plaintiff may have felt a 

moral or familial obligation to agree to the offer in order 

to spare her brother’s election results, the Court does not 

find that Defendant Hands’ proposed offer in compromise 

violated Plaintiff’s right to serve as a poll watcher, 

since poll watching is not a fundamental right protected by 

the First Amendment. There is also no indication that 

Defendant’s proposed offer in compromise was power 

exercised and possessed by virtue of state law or that the 

filing the election contest was made possible only because 

she was clothed with the authority of state law. See West, 

supra, p. 13.

 3 The contested election results were ultimately 

vacated via bench trial due to the fact that at one polling 

location, at least two voters were present and ready to 

vote, but unable to do so because the ballots were late 

arriving to that location. This situation ultimately 

caused the margin to win to change, thereby rendering the 

election for District One null, leaving the position 

vacant. 

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Regarding the First Amendment claim, the Court 

concludes that Plaintiff’s Complaint sounds more in 

bitterness, revenge and insult rather than in seeking 

protection from a deprivation of rights. Mere insult and 

offense does not rise above the level of speculation, and 

thus fails to state a claim for which relief can be granted 

under Rule 12(b)(6), and Iqbal and Twombly. 

2. “Under Color of State Law”

Plaintiff’s Complaint alleges that Defendants, “acting 

under color of state law, in their individual and official 

capacity, unlawfully engaged in acts of intimidation to 

undermine and violate her First Amendment rights to free 

speech, political expression and to petition the Government 

for redress.” (Doc. 1 at 4). Defendant disagrees, as does 

the Court. 

Initially, the Court determines that Plaintiff’s § 

1983 claim fails as a matter of law because Plaintiff has 

provided no facts sufficient to support her claim that 

Defendants’ actions were taken under the color of state 

law. As is well-established under federal pleading 

standards, “a formulaic recitation of the elements of a 

cause of action will not do . . . Factual allegations must 

be enough to raise a right to relief above the speculative 

level.” Twombly, 550 U.S. at 555-56. Plaintiff, in sum, 

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insists that all actions taken by Defendants were in their 

individual and official capacities as elected officials of 

the Town of Frisco City. (Doc. 1 at 4). Those actions 

include the following: (1) the initiation of an election 

contest by Defendant Sylvia Hands; and (2) the sending of a 

letter form Defendant Hands to Plaintiff in an attempt to 

settle the election contest. 

Despite the mere statement that Defendant Hands acted 

under color of state law, Plaintiff provides absolutely no 

factual support for the conclusory allegations that any of 

these actions were taken pursuant to any power granted to 

Defendant Hands by virtue of her position as elected 

official of the Town of Frisco City. In fact, the 

complaint in the election contest does not mention anywhere 

that Hands was filing in her official capacity. Rather, it 

states that Hands was merely a resident and qualified 

elector of the Town of Frisco City, and was filing as such. 

(See Hands v. Richardson, CV-12-31, Am. Petition dated

September 7, 2012). The complaint does make note that Hands 

was one of the candidates running for the position, and 

that she received votes in the election, but it never 

specifically states that she filed the contest in her 

official capacity based on the power she possessed by 

virtue of being the previous elected representative of

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District One. Thus, without any factual allegations 

indicating such, those allegations are merely speculative 

and do not rise to the level of a § 1983 violation. 

Furthermore, the Alabama statute under which Hands 

filed her election contest does not require that it be 

filed in any official capacity, but expressly states that 

an election contest may be filed by “any person who was at 

the time of the election a qualified elector of such city 

or town. . . .” Ala. Code § 11-46-69. Defendant Hands 

fits that description.

Absent any factual support that Defendant Hands’ 

actions were exercised based on the power possessed by her 

by virtue of state law, Plaintiff cannot satisfy 

fundamental elements of her First Amendment and § 1983 

claims and her Complaint is due to be dismissed for that 

reason.

III. Conclusion

Based on the foregoing, the Court recommends that 

Defendant Hands’ Motion to Dismiss be granted, and 

Plaintiff’s Complaint be dismissed with prejudice in its 

entirety for failure to state upon which relief can be 

granted.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be 

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served on all parties in the 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 20th day of February, 2015.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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