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

This action is before the Court on the Defendants’ “Partial Motion to Dismiss” 

(Doc. 29), which seeks dismissal of the “Fourth Federal Cause of Action” (“Count 

IV”) in the Plaintiff’s Second Amended Complaint (Doc. 28) under Federal Rule of 

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

response in opposition (Doc. 31) to the motion, and the Defendants have timely filed 

a reply (Doc. 32) to the response. The motion is now under submission and is ripe 

for adjudication. (See Doc. 30). 

The motion has been referred to the undersigned 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, and for the reasons stated 

herein, the undersigned RECOMMENDS that the Defendants’ “Partial Motion to 

Dismiss” (Doc. 29) be GRANTED.

I. Applicable Background

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

Court alleging claims against Defendants Conecuh County Board of Education (“the 

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Board”), Ronnie Brogden, superintendent of the Conecuh County school system 

(“Superintendent Brogden”), and Mary Ann Danford, Curriculum 

Coordinator/Counselor Coordinator for the Conecuh County school system 

(“Danford”). (See Doc. 1). The Defendants challenged the initial Complaint by filing 

a motion to dismiss or, alternatively, for more definite statement (Doc. 7) under 

Federal Rules of Civil Procedure 12(b)(6) and 12(e), respectively. On December 30, 

2014, the Court, adopting the recommendations of the undersigned (Doc. 16), 

granted that motion in part and denied it in part, dismissing certain claims and 

ordering Betts to file an amended complaint pursuant to Rule 12(e) conforming to 

certain standards. (Doc. 17). 

Betts timely filed her First Amended Complaint (Doc. 19), to which the 

Defendants responded with a motion to dismiss under Rule 12(b)(6) or, alternatively, 

Rule 41(b) for failure to comply with the Court’s previous repleader order. (Doc. 20). 

On March 30, 2015, the Court, adopting the recommendations of the undersigned 

(Doc. 24), denied the second motion to dismiss but found that Betts had not repled 

her complaint in compliance with the Court’s December 30, 2014 order. (Doc. 25). 

The Court ordered Betts’s First Amended Complaint (Doc. 19) be stricken and gave 

her a final opportunity to replead in accordance with the Court’s previous Order. 

(Doc. 25). After being granted an extension of time (Docs. 26, 27), Betts timely filed 

her Second Amended Complaint (Doc. 28), the operative pleading in this action. 

The Defendants have responded to the Second Amended Complaint with the 

present motion to partially dismiss (Doc. 29).

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II. Analysis

As has been explained previously, Betts’s previous pleadings have been

“shotgun” in nature, as they incorporated every antecedent allegation by reference 

into each subsequent claim for relief. As was also exhaustively explained, the Court 

of Appeals for the Eleventh Circuit has repeatedly and roundly condemned such 

pleading, going so far as to state that a district court should sua sponte order 

repleading if a defendant does not raise the issue in a motion. (See Docs. 17, 24 

(citing cases)). Thus, in the Court’s December 30, 2014 Order, the Court instructed, 

inter alia, that Betts “shall refrain...from the wholesale adoption by reference of all 

antecedent allegations into each subsequent cause of action” in her complaint and 

instead “identify with specificity the factual allegations used to support each 

discrete claim against each individual Defendant.” (Doc. 17). 

In the Report and Recommendation dated March 9, 2015 (which the Court 

adopted in full after no objections were filed (see Doc. 25)), the undersigned 

determined that Betts had failed to comply with this directive in her First Amended 

Complaint, noting: “In apparent response to this requirement, Betts simply deleted 

from each count those paragraphs purporting to ‘adopt by reference, and 

incorporate in [each] cause of action’ all proceeding allegations, but made no effort 

to obey the Court’s instructions by specifying which preceding factual allegations 

support each count. Count I cites no specific factual assertions at all. Counts II and 

IV simply assert that unspecified ‘actions’ of the Defendants ‘as alleged herein’

constitute unlawful retaliation.” (Doc. 24 at 11 – 12 (record citations omitted)). For 

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this reason, among others set out in the March 9, 2015 Report and Recommendation, 

Betts was again ordered to replead in accordance with the instructions set out in 

the Court’s December 30, 2014 repleader order. (See Docs. 24 – 25). In their 

present motion, the Defendants argue that Betts has again failed to follow these 

instructions in pleading Count IV in her Second Amended Complaint, which asserts 

a claim for retaliation under 42 U.S.C. § 1981, by way of 42 U.S.C. § 1983, against 

Defendant Ronnie Brogden in his individual capacity. (Doc. 28 at 13 - 14).

The undersigned agrees. As the Defendants’ motion points out, despite the 

undersigned specifically pointing out that the allegations in Count IV of the First 

Amended Complaint (Doc. 19 at 9 – 10 (incorrectly labeled as a second “Third 

Federal Cause of Action”)) failed to identify with specificity the factual allegations 

used to support that claim, those deficient allegations have been carried over to 

Count IV of the Second Amended Complaint (Doc. 28) virtually unchanged, the only 

difference being that Betts has requested additional forms of relief (“award of lost 

employment benefits and wages, back pay, front pay, interest”) for this count.1

In her response to the present motion, Betts asserts:

[T]he defendants apparently ignore the factual allegations set forth in 

paragraphs 13 and 14 wherein the plaintiff articulated actions by 

Defendant Brogden recommending to the Conecuh County Board of 

Education that the plaintiff be transferred from Hillcrest High School 

to Evergreen Elementary School and his request to the Alabama State 

Department of Education that the plaintiff’s Professional Educator’s 

Certificate be revoked. In reciting those facts the plaintiff specifically 

 1 Betts has also amended the heading to Count IV in her Second Amended Complaint to 

highlight that the claim is against Defendant Brogden only. Compare (Doc. 19 at 9 

(“Retaliation Claim Pursuant to Sections 1983 and 1981”)) with (Doc. 28 at 13 (“Retaliation 

Claim Pursuant to Sections 1983 and 1981 Against Defendant Ronnie Brogden”)).

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averred that said conduct was retaliatory by Defendant Brogden after 

he had failed in his recommendation to Conecuh County Board of 

Education that the plaintiff’s employment be terminated. After reciting 

the aforementioned factual details in paragraph 13, the plaintiff 

represented in paragraph 14 that “the actions complained of herein 

have subjected her to unlawful employment discriminatory practices 

and retaliation”.

(Doc. 31 at 2).

The problem with Betts’s complaints has not been a dearth of allegations 

suggesting a plausible claim for relief (apart, of course from those claims previously 

dismissed as a matter of law (see Doc. 17)). Indeed, in the March 9, 2015 Report 

and Recommendation, the undersigned noted that “the Amended Complaint 

contains a number of non-conclusory factual allegations, and these allegations, 

accepted as true, plausibly indicate that some form of unlawful discrimination 

and/or retaliation may have occurred[,]” at least in the absence of any specific 

argument from the Defendants to the contrary. (Doc. 24 at 8). Rather, Betts’s 

complaints have been deficient because they have “fail[ed] to sufficiently specify 

what factual allegations support each cause of action.” (Id.).

As noted above, Count IV in both her First and Second Amended Complaints 

asserts that unspecified “actions” of Defendant Brogden “as alleged herein”

constitute unlawful retaliation. The practical effect of these nonspecific allegations 

is to (once again) simply incorporate all antecedent allegations by reference into 

Count IV, in the disfavored “shotgun” pleading style. Betts argues that “her Count 

IV must not be read in isolation of her factual allegations as set forth in the section 

of the complaint titled ‘Allegations of Fact’, but to the contrary must be read in pari 

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materia.” (Doc. 31 at 2). However, this assertion ignores the point that this Court 

has repeatedly tried to make to Betts – she may not simply set out a separate 

statement of facts, follow it with conclusory causes of action, and then leave it to the 

Defendants and/or the Court to figure out which factual allegations are meant to 

support each of those causes of action. As the Court previously pointed out, the 

failure to “specify or incorporate any specific factual allegations supporting each 

cause of action causes essentially the same problem as incorporating every factual 

allegation into every cause of action – ‘it is virtually impossible to know which 

allegations of fact are intended to support which claim(s) for relief.’ ” (Doc. 24 at 12 

(quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366

(11th Cir. 1996)).2

“Implicit [in the instruction to replead a ‘shotgun’ complaint] is the notion 

that if the plaintiff fails to comply with the court's order—by filing a repleader with 

the same deficiency—the court should strike his pleading or, depending on the 

circumstances, dismiss his case and consider the imposition of monetary sanctions.” 

Byrne v. Nezhat, 261 F.3d 1075, 1133 (11th Cir. 2001), abrogated on other grounds, 

Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008). The Court has now 

twice ordered Betts to correct the “shotgun” nature of her pleadings, explicitly 

warning that the second time would be the last time. (See Doc. 24). As to Count IV, 

she has twice failed to do so, and her response to the present motion to dismiss 

suggests a continued unwillingness to recognize that, under myriad binding Circuit 

 2 That Betts corrected the other counts in her Second Amended Complaint to reference 

specific factual allegations in support of each indicates that she understood the Court’s 

instructions to some degree.

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precedent, such pleading is unacceptable. Thus, under these circumstances, the 

undersigned finds that dismissal of Count IV is appropriate.

III. Conclusion

In accordance with the foregoing analysis, it is RECOMMENDED that the 

Defendants’ Rule 12(b)(6) “Partial Motion to Dismiss” (Doc. 29) be GRANTED and 

that Count IV of the Second Amended Complaint (Doc. 28) be DISMISSED.

IV. Notice of Right to File Objections3

A copy of this report and recommendation shall be 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); SD ALA LR 72.4. The parties should note that under Eleventh 

Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in accordance with the 

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the 

district court's order based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the consequences on appeal 

for failing to object. In the absence of a proper objection, however, the court may 

review on appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 

3-1. 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 

 3 The parties are advised that the undersigned has updated the provisions of her standard 

“Notice of Right to File Objections” since the entry of the last Report and Recommendation 

in this action.

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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 29th day of May 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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