1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ANN LANGFORD, :

 :

Plaintiff, :

 :

vs. :

 : CIVIL ACTION 14-0070-KD-M

HALE COUNTY, ALABAMA, et al., :

 :

Defendants. :

REPORT AND RECOMMENDATION

The Motion for Partial Dismissal filed by Defendants Hale 

County, Alabama Commission (hereinafter The Commission), Hale 

County, and Hale County Probate Judge Arthur Crawford 

(collectively referred to as the Defendants) (Docs. 7, 10) has 

been referred for report and recommendation, under 28 U.S.C. § 

636(b)(1)(B) and Local Rule 72.2. Plaintiff has invoked 

arising-under jurisdiction under 28 U.S.C. § 1331, pursuant to 

42 U.S.C. § 1983, Title VII of the Civil Rights Act, and the Age 

Discrimination in Employment Act (hereinafter ADEA) (Doc. 1, ¶¶ 

1-2). After consideration, it is recommended that the Motion be 

granted as to Plaintiff’s claim that she was denied Due Process 

(Count one) and that it be denied as to everything else.

The facts are, briefly, as follows. Plaintiff Ann Langford 

is a 59 year-old Caucasian woman, residing in Hale County, 

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Alabama, formerly employed as the Chief Clerk of the Hale County 

Probate Office (Doc. 1, ¶¶ 4, 8). On March 11, 2013, Defendant 

Crawford terminated Plaintiff’s employment without prior notice 

or hearing (Doc. 1, ¶¶ 7, 22-23); Plaintiff’s replacement was a 

younger Black woman (id at ¶ 28). Langford filed a grievance 

with the Commission challenging her termination; the grievance 

was denied on May 1, 2013 without a hearing (id. at ¶¶ 5, 33-

34). Plaintiff appealed the denial to the Personnel Review 

Board,1 but her objections were rejected (id. at ¶¶ 35, 37). 

Langford filed a complaint with the Equal Employment Opportunity 

Commission and, on November 22, 2013, was granted a “Right to 

Sue Letter” to pursue this action in Court (id. at ¶ 38; Doc. 1, 

Exhibit A).

On February 18, 2014, Plaintiff filed this action, claiming 

that the previously-named Defendants: (1) violated her 

Fourteenth Amendment Due Process rights; (2) violated her 

Fourteenth Amendment Equal Protection rights; (3) violated her 

First Amendment rights to freedom of speech and political 

association; (4) discriminated against her because of her race; 

(5) discriminated against her because of her age; (6) 

 

1

The Personnel Review Board is not a party to this action.

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discriminated against her because of her race;2 and (7) 

retaliated against her for pursuing protected activities (Doc. 

1).3 Defendants subsequently filed this Partial Motion to 

Dismiss (Docs. 7, 10); Langford filed a response (Doc. 13) to 

which the Defendants have replied (Doc. 14).

The Court notes, initially, that “[w]hen considering a 

motion to dismiss, all facts set forth in the plaintiff’s 

complaint ‘are to be accepted as true and the court limits its 

consideration to the pleadings and exhibits attached thereto.’” 

Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 

2000) (quoting GSW, Inc. v. Long County, 999 F.2d 1508, 1510 

(11th Cir. 1993)). In order to state a claim for relief, the 

Federal Rules of Civil Procedure state that a pleading must 

contain “a short and plain statement of the claim showing that 

the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The 

U.S. Supreme Court explained that the purpose of the rule was to 

“give the defendant fair notice of what the plaintiff’s claim is 

and the grounds upon which it rests.” Conley v. Gibson, 355 

U.S. 41, 47 (1957).4 While factual allegations do not have to be 

 

2

Langford’s fourth claim was brought under Title VII while the 

sixth claim was brought pursuant to 42 U.S.C. § 1981. 3

Claims one through six were brought against all Defendants;

Defendant Crawford was not named in the seventh claim. 4

Though Conley was overruled on other grounds, see Bell Atlantic 

Corporation v. Twombley, 550 U.S. 544, 557-563 (2007), the Court, 

(Continued)

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detailed, they must contain more than “labels and conclusions;” 

“a formulaic recitation of the elements of a cause will not do.” 

Bell Atlantic Corporation v. Twombley, 550 U.S. 544, 555 (2007) 

(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual 

allegations must be enough to raise a right to relief above the 

speculative level.” Id. (citations omitted). “Facts that are 

‘merely consistent with’ the plaintiff’s legal theory will not 

suffice when, ‘without some further factual enhancement [they] 

stop short of the line between possibility and plausibility of 

“entitle[ment] to relief.”’” Weissman v. National Association 

of Securities Dealers, Inc., 500 F.3d 1293, 1310 (11th Cir. 2007) 

(quoting Twombley, 550 U.S. 557) (quoting DM Research, Inc. v. 

College of American Pathologists, 170 F.3d 53, 56 (1st Cir. 

1999)). “Only a complaint that states a plausible claim for 

relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 

U.S. 662, 679 (2009) (citing Twombley, 550 U.S. at 556). “Where 

the well-pleaded facts do not permit the court to infer more 

than the mere possibility of conduct, the complaint has alleged—

but it has not ‘show[n]’—‘that the pleader is entitled to

 

nevertheless, finds Conley’s statement regarding the purpose of Rule 

8(a)(2) to be useful in deciphering the analysis necessary for 

evaluating Plaintiff’s claims.

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relief.’” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 

8(a)(2)). As noted by the Supreme Court, Plaintiffs must 

“nudge[] their claims across the line from conceivable to 

plausible[; otherwise,] their complaint must be dismissed.” 

Twombly, 550 U.S. at 570. It is noted, however, that a 

complaint may be dismissed, under Federal Rule of Civil 

Procedure 12(b)(6), “on the basis of a dispositive issue of 

law.” Executive 100, Inc. v. Martin County, 922 F.2d 1536, 1539 

(11th Cir.) (citing Neitzke v. Williams, 490 U.S. 319 (1989)), 

cert. denied, 502 U.S. 810 (1991). 

Defendants first seek dismissal of a portion of Langford’s 

third claim, a claim that Defendants violated her First 

Amendment right to freedom of political association.5 They argue 

that her work as Chief Clerk of the Probate Court is a political 

patronage job and that dismissal is not unconstitutional on that 

basis (Doc. 10, pp. 4-6). As support for that argument, 

Defendants have cited two different Alabama statutes, the first 

of which defines the powers of the probate court chief clerk:

(a) The chief clerk shall have the following 

powers:

(1) To issue letters testamentary, of 

administration and of guardianship, where 

 

5

Defendants acknowledge that they have not moved to dismiss 

Lankford’s freedom of speech claim (Doc. 14, p. 1 n.1).

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there is no contest.

(2) To administer oaths relating to the 

business of the court and to take and 

certify acknowledgments and proof of 

instruments authorized to be recorded.

(3) To solemnize matrimony, approve 

bonds and appoint guardians ad litem.

(4) To admit wills to probate and 

record and to pass and allow accounts of 

executors, administrators and guardians, 

where there is no contest.

(5) To do all other acts and things and 

perform all other duties, ministerial and 

judicial, where there is no contest, that 

the probate judge may do and perform.

(b) All of the official acts of such chief 

clerk must be performed in the name of the 

probate judge, except when there is a 

vacancy in that office.

Ala. Code § 12-13-14. The second statute states as follows:

Whenever a vacancy shall occur in the 

office of the probate judge, the chief clerk 

in that office, appointed and qualified as 

authorized by law, shall, during such 

vacancy and until the qualification of a 

lawful successor, perform all the duties of 

that office which he is authorized by law to 

perform when there is no vacancy, but must 

not receive money on decrees or executions 

or become the custodian of trust funds 

pertaining to the court. He may make all 

necessary orders for the continuances of 

cases and proceedings pending in the court.

All such duties are to be performed, 

during such vacancy, by such chief clerk in 

his own name as clerk of the probate court, 

and he is entitled to the lawful fees 

therefor. For his official acts under this 

article, such chief clerk and the sureties 

on his bond to the probate judge shall be 

liable to persons injured according to the 

legal effect of official bonds as declared 

by statute.

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Ala. Code § 12-13-15. 

The Court notes that the chief clerk’s responsibilities, 

listed in the first statute, do not include discretionary 

duties; specifically, three subsections of the first section of 

the statute preclude the clerk from performing certain tasks if 

the parties have a dispute. In the second statute, the chief 

clerk gains no responsibilities when the judge’s position is 

vacant; rather, the clerk is allowed to order that whatever work 

arises—other than what the clerk already has the authority to 

do—be continued. These statutes do not provide support for the 

Defendants’ argument that the chief clerk is the alter ego of 

the probate judge.

The Court further finds that the cases cited by Defendants 

do not lend support to their argument. In one such case, the 

Eleventh Circuit Court of Appeals held that a deputy sheriff is 

the alter ego of the sheriff. Terry v. Cook, 866 F.2d 373, 377 

(11th Cir. 1989) (citing Mosely v. Kennedy, 17 So.2d 536, 537 

(Ala. 1944)). The Terry Court further noted, though, that 

“[a]ny transaction within the scope of the sheriff’s duties may 

be acted upon by his deputy,” Terry, 866 F.2d at 377 (citing 

Ramsey v. Strobach, 52 Ala. 513, 515 (1875)).

Under Terry, the deputy can do anything the sheriff can do. 

However, the chief clerk is restricted from doing everything 

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that the probate judge can do by statute. This does not further 

Defendants’ argument.

Defendants also cite Underwood v. Harkins, 698 F.3d 1335, 

1343-44 (11th Cir. 2012), cert. denied, --- U.S. ---, 134 S.Ct. 

99 (2013), in which the Eleventh Circuit Court of Appeals held 

that a deputy superior court clerk performed the identical tasks 

as the court clerk and that the clerk could dismiss the deputy 

clerk from that position for having run against the clerk in the 

political party’s primary election. Again, however, the duties 

of the two positions were the same; that is not the circumstance 

in this action. More significant though is the fact that 

Underwood is a case based on Georgia law; Defendants have failed

to demonstrate the relevance of Georgia law to this action.

The Court recommends that Defendants’ Motion to Dismiss 

(Doc. 7) be denied as to Langford’s third claim. Defendants 

have not even argued—much less demonstrated—that Plaintiff has 

failed to set out the necessary facts to proceed with her claim 

that the Defendants violated her First Amendment right to 

freedom of political association. Instead, Defendants have 

attempted to prove that Langford’s claim is not viable as a 

matter of law. However, the laws brought forth to support their 

argument, if anything, provide support for Plaintiff’s argument 

that this claim should not be dismissed.

Defendants also seek to have the Court dismiss Plaintiff’s 

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claim that her due process rights were violated. The first 

argument raised is that Langford did not have a property 

interest in her job (Doc. 10, pp. 6-9). 

The United States Supreme Court has noted that the 

“Fourteenth Amendment’s procedural protection of property is a 

safeguard of the security of interests that a person has already 

acquired in specific benefits.” Board of Regents of State 

Colleges v. Roth, 408 U.S. 564, 576 (1972). The Court went on 

to hold that “[p]roperty interests [] are not created by the 

Constitution. Rather they are created and their dimensions are 

defined by existing rules or understandings that stem from an 

independent source such as state law-rules or understandings 

that secure certain benefits and that support claims of 

entitlement to those benefits.” Board of Regents, 408 U.S. at 

577. The Court notes that “State law defines the parameters of 

a plaintiff’s property interest for section 1983 purposes. 

‘Whether state law has created a property interest is a legal 

question for the court to decide.’” Mackenzie v. City of 

Rockledge, 920 F.2d 1554, 1559 (11th Cir. 1991) (quoting Marine 

One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir. 1989), 

rehearing denied, 898 F.2d 1490 (11th Cir. 1990)). 

As for Alabama law, the Alabama Supreme Court has stated 

the following:

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It has long been the law in Alabama 

that employment is terminable at will by 

either party for any reason unless there is 

an express and specific contract for 

lifetime employment or employment for a 

specific duration. “[A]bsent an agreement 

on a definite term, any employment is 

considered to be ‘at-will,’ and may be 

terminated by either party, with or without 

cause or justification.” Clark v. America's 

First Credit Union, 585 So.2d 1367, 1369 

(Ala. 1991). Furthermore, employees in 

Alabama bear a heavy burden of proof to 

establish that an employment relationship is 

other than “at will.” The law considers 

lifetime or permanent employment contracts 

to be extraordinary and not lightly to be 

implied. Alabama Mills, Inc. v. Smith, 237 

Ala. 296, 301, 186 So. 699, 704 (1939).

Howard v. Wolff Broadcasting Corp., 611 So.2d 307, 310-11 (Ala. 

1992), cert. denied, 507 U.S. 1031 (1993). The Alabama Supreme 

Court has gone on to say that

three elements must be shown to establish 

that an employment contract is one other 

than one terminable at will: (1) that there 

was a clear and unequivocal offer of 

lifetime employment or employment of 

definite duration; (2) that the hiring agent 

had authority to bind the principal to a 

permanent employment contract; and (3) that 

the employee provided substantial 

consideration for the contract separate from 

the services to be rendered.

Hoffman-La Roche, Inc. v. Campbell, 512 So.2d 725, 728 (Ala. 

1987) (citations omitted). However, the Hoffman-La Roche Court 

went on to hold that

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the language contained in a handbook can be 

sufficient to constitute an offer to create 

a binding unilateral contract. The 

existence of such a contract is determined 

by applying the following analysis to the 

facts of each case: First, the language 

contained in the handbook must be examined 

to see if it is specific enough to 

constitute an offer. Second, the offer must 

have been communicated to the employee by 

issuance of the handbook, or otherwise. 

Third, the employee must have accepted the 

offer by retaining employment after he has 

become generally aware of the offer. His 

actual performance supplies the necessary 

consideration.

Hoffman-La Roche, 512 So.2d at 735. The Parties acknowledge 

that Langford was given a handbook by her employer (Doc. 10, p. 

8; Doc. 13. pp. 3-4). The Court will review the handbook, 

entitled Hale County Personnel Policy, to determine if a binding 

unilateral contract was created (see Doc. 10, Exhibit A).6 The 

Court notes the following language:

“Each employee will be given a copy of 

his/her job description and an Employees 

Handbook, outlining all rules, regulations, 

policies, conditions, and benefits of County 

Employee employment. Both employee and 

management/supervisory staff will be 

required to know and productively implement 

 

6

Defendants provided several pages of the handbook, including the 

title page. Plaintiff submitted a larger portion of the handbook, 

though, so the Court will cite to Langford’s submission (Doc. 13, 

Exhibit A).

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all provisions and conditions of 

employment.” Section II, ¶ D.

“All employees have the right to 

discuss any and all matters relating to 

their employment and/or their personal 

welfare with their supervisors. They may 

communicate with their supervisors, either 

orally or in writing, and may be accompanied 

by representation of their choice. When 

disagreement over the solution of a problem 

cannot be resolved, permanent employees 

shall have access, through a grievance 

procedure, to successively higher levels of 

management. Management/supervisory 

personnel will produce resolution of 

problems and grievances, attempting always 

to ensure every permanent employee the right 

to due process under the grievance 

procedure.” Section II, ¶ F.

“The County believes that the goal of 

productivity in county employment will be 

served by establishing a probationary period 

for new employees during which each employee 

is oriented to all the conditions and 

requirements of county work and during which 

his/her performance is closely supervised 

and monitored to assure the attainment of 

the minimum performance requirements for the 

job/position. Probationary employees shall 

share in all the benefits of employment with 

the county except that dismissals for cause 

during the probationary period shall not be 

grievable.” Section II, ¶ I.

“Employees are expected to attend work 

regularly, arriving in time and spending the 

assigned time in productive work efforts. 

They are also expected to deal honestly, 

fairly and efficiently with the County’s 

resources and citizens. When employees 

cannot or will not conform to the Personnel 

Rules and Regulations as outlined herein, 

they may be disciplined in the following 

ways:

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1. Verbal Reprimand: a notification of 

which will be placed in the

personnel file;

2. Written Reprimand: a copy will be 

placed in the personnel file. The

employee will also be given a copy

of the written reprimand;

3. Suspension: for up to ten (10) 

consecutive working days.

Suspensions of an aggregate of 

twenty-five (25) days in any 

calendar year (dating from the 

first suspension) will result in

termination. Suspensions are 

without pay.

4. Demotion and Reduction in Pay;

5. Transfer;

6. Termination;

Steps 4, 5 and 6 shall be only with the 

concurrence of the County Engineer. An 

appeal can be made following the steps in 

grievance procedure.

The following are among the actions or 

circumstances which are considered to be 

grounds for disciplinary action:

: Chronic absenteeism

: Failure or refusal to carry out the

duties of the job

: Refusal to obey a lawful order from a

superior

: Failure to follow established lines of

authority in a grievance

: Willful or wanton destruction or damage

of County property or equipment. 

Section VII.

Doc. 13, Exhibit A. The Handbook also sets out a grievance 

procedure, allowing a disciplined employee to seek review of the 

disciplinary action by the Personnel Review Board and the County 

Commission (Doc. 13, Exhibit A, p. 8). The Parties acknowledge 

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that the procedure does not provide for any pre-disciplinary 

hearing (Doc. 10, p. 8; Doc. 13, p. 4 n.2). 

The Court finds that, for purposes of this Motion, these 

few passages indicate that a binding unilateral contract was 

formed under Hoffman-La Roche because of the following factors. 

The handbook discusses permanent versus probationary employees; 

though neither is defined, Langford was, presumably, a permanent 

employee as she was employed in her position for six years (Doc. 

1, ¶ 8). Plaintiff received an employee handbook and continued 

to work. As found in Hoffman-La Roche, 

the language used in this handbook is clear 

enough than an employee reading it could 

reasonably believe that, as long as [s]he 

worked within the guidelines set out in the 

handbook, [s]he would not be terminated 

until all procedures set out in the handbook 

had been followed, including the reasons and 

circumstances for termination in the 

handbook. 

Hoffman-La Roche, 512 So.2d at 736-37. With this finding, the 

Court further holds that Langford has established a property 

interest in her employment. 

This finding brings the Court to Defendants’ second 

argument with regard to this claim. That assertion is that even 

if Langford had a property interest in her continued employment, 

she cannot state a claim against Defendants for violating her 

due process rights (Doc. 10, pp. 9-11). 

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Langford’s Complaint asserts that even though there was a 

grievance process set out in her employee Handbook, she appealed 

to the Hale County Commission and that it acted “without 

providing any notice [] that it was considering the grievance or 

providing her with an opportunity to defend herself” (Doc. 1, ¶ 

34). She goes on to state that she timely appealed to the 

Personnel Review Board whose members were biased against her

(Doc. 1, ¶¶ 35-36). In setting out the specific contours of her 

due process claim, Plaintiff asserts that she was not “provided 

with notice or an opportunity to be heard on her grievance” 

(Doc. 1, ¶ 42). 

The Court notes that step three of the grievance procedure, 

found in the Handbook, allows an employee to appeal a 

disciplinary action to the Personnel Review Board and indicates 

that the employee can attend the proceeding and have 

representation (Doc. 13, Exhibit A, p. 8). The written 

recommendation of that Board goes to the County Commission, at 

step four of the process, which accepts or modifies the 

recommendation and adopts it or rejects the recommendation 

altogether (Doc. 13, Exhibit A, p. 8).

While Plaintiff’s chronology of events does not correspond 

to the grievance procedure steps, there is a clear assertion 

that Lankford did not get to be heard on her grievance as 

provided for in the Handbook. The Court finds that Plaintiff 

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has asserted sufficient facts to demonstrate that she was denied 

the process offered by her employer following her termination. 

This does not, however, end the inquiry.

Defendants have staked their argument on McKinney v. Pate, 

20 F.3d 1550, 1561 (11th Cir. 1994) (en banc), cert. denied sub 

nom. McKinney v. Osceola County Board of County Commissioners, 

513 U.S. 1110 (1995), in which the Eleventh Circuit Court of 

Appeals held that a claim of bias, such as this, was a 

procedural due process claim—as opposed to a substantive due 

process claim—since “the County failed to provide one of the 

elements of procedural due process—an unbiased decisionmaker.” 

The McKinney Court went on to hold that the plaintiff in that 

case had not stated a procedural due process claim under § 1983, 

however, because state law provided an adequate remedy through 

the Florida court system. McKinney, 20 F.3d at 1563-64. 

Defendants argue that Alabama also provides a remedy at law 

through its courts (Doc. 10, p. 10). Indeed, the Eleventh 

Circuit Court of Appeals held that Alabama courts “review 

employment termination proceedings both to determine whether 

they are supported by substantial evidence and to see that the 

proceedings comport with procedural due process.” Bell v. City 

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of Demopolis, Alabama, 86 F.3d 191, 192 (1996)7 (citing Ex Parte 

Tuskegee, 447 So.2d 713 (Ala. 1984); Guinn v. Eufaula, 437 So.2d 

516 (Ala. 1983)). In Alabama, a claimant can file a common law 

writ of certiorari to seek review of a perceived wrongful 

termination because of a due process violation. See Hicks v. 

Jackson County Commission, 990 So.2d 904, 912 (Ala. Civ. App. 

2008). 

The Court notes that it has studied the case cited by 

Langford from our sister court in the middle district, 

Enterprise Fire Fighters’ Association v. Watson, 869 F.Supp. 

1532 (M.D. Ala. 1994), and finds the opinion by Judge Thompson 

well-written and thought-provoking. Nevertheless, the Court 

finds McKinney and Bell to be the law of this Circuit. 

Accordingly, the Court recommends that Defendants’ Motion 

to Dismiss be granted as to Langford’s claim that she was denied 

due process. It is further recommended that Plaintiff’s claim 

of due process (count one) be dismissed from this action as 

Langford has a remedy for her claim in the state courts.

Finally, Defendants seek this Court’s ruling that Defendant 

Crawford is entitled to qualified immunity, in his individual 

 

7

The Court notes that Bell affirmed the lower court opinion by 

U.S. District Judge Charles R. Butler. Bell v. City of Demopolis, 

C.A. 92-1051-CB-S (S.D. Ala. January 20, 1994).

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capacity (Doc. 10, pp. 12-15). The Court notes that although 

Defendants assert immunity on Plaintiff’s First and Fourteenth 

Amendment claims, no argument has been made as to Langford’s 

claim for a violation of her Equal Protection rights (count 

two). Therefore, the Court will proceed with the Motion to 

Dismiss as to the third (Freedom of Association) claim.8 

The Court notes that “[g]overnment officials sued for acts 

committed in the course of their official duties may invoke the 

defense of qualified immunity. To be even potentially eligible 

for qualified immunity, the official has the burden of 

establishing that he was acting ‘within the scope of his 

discretionary authority.’” O’Rourke v. Hayes, 378 F.3d 1201, 

1205 (11th Cir. 2004) (quoting Hartsfield v. Lemacks, 50 F.3d 

950, 953 (11th Cir. 1995)). To make this determination, 

[i]nstead of focusing on whether the acts in 

question involved the exercise of actual 

discretion, we assess whether they are of a 

type that fell within the employee's job 

responsibilities. Our inquiry is two-fold. 

We ask whether the government employee was 

(a) performing a legitimate job-related 

function (that is, pursuing a job-related 

goal), (b) through means that were within 

his power to utilize. . . . In applying each 

prong of this test, we look to the general 

 

8 As a recommendation is being made that Plaintiff’s first claim 

be dismissed, the Court will not go through the analysis to determine 

if qualified immunity is appropriate as to the Due Process claim.

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nature of the defendant's action, 

temporarily putting aside the fact that it 

may have been committed for an 

unconstitutional purpose, in an 

unconstitutional manner, to an 

unconstitutional extent, or under 

constitutionally inappropriate 

circumstances.

O’Rourke, 378 F.3d at 1205 (quoting Holloman v. Harland, 370 

F.3d 1252, 1266 (11th Cir. 2004)). 

The Court notes that Plaintiff makes no argument as to 

whether or not Defendant Crawford’s discretionary duties 

included disciplinary action against her, including termination 

(see Doc. 13, p. 5). As such, the Court finds that his action 

was discretionary and will continue with the analysis.

With this finding, it is Langford’s burden to demonstrate 

that Judge Crawford is not entitled to qualified immunity by 

showing “that the defendant violated a constitutional right, and 

that the right was clearly established at the time of the 

alleged violation.” O’Rourke, 378 F.3d at 1206 (citing 

Holloman, 370 F.2d at 1266). 

A party may show that the law was clearly 

established by (1) pointing to “‘a 

materially similar case [that has] already 

decided that what the [Defendant] was doing 

was unlawful;’” or (2) demonstrating that 

“the words of the pertinent federal statute 

or federal constitutional provision . . . 

[are] specific enough to establish clearly 

the law applicable to particular conduct and 

circumstances and to overcome qualified 

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immunity, even in the total absence of case 

law.

Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 

2003) (internal citations omitted). The Storck Court went on to 

note that “‘[u]nless a government agent’s act is so obviously 

wrong, in the light of pre-existing law, that only a plainly 

incompetent [Defendant] or one who was knowingly violating the 

law would have done such a thing, the government actor has 

immunity from suit.’” Storck, 354 F.3d at 1317-18 (quoting 

Lassiter v. Alabama A & M University, Board of Trustees, 28 F.3d 

1146, 1149 (11th Cir. 1994) (en banc). 

The Court has reviewed the case law and found the following 

relevant discussion in a United States Supreme Court case:

As Mr. Justice BRENNAN noted in Elrod, 

it is not always easy to determine whether a 

position is one in which political 

affiliation is a legitimate factor to be 

considered. [Elrod v. Burn, 427 U.S. 347,] 

367 [(1980)]. Under some circumstances, a 

position may be appropriately considered 

political even though it is neither 

confidential nor policymaking in character. 

As one obvious example, if a State's 

election laws require that precincts be 

supervised by two election judges of 

different parties, a Republican judge could 

be legitimately discharged solely for 

changing his party registration. That 

conclusion would not depend on any finding 

that the job involved participation in 

policy decisions or access to confidential 

information. Rather, it would simply rest 

on the fact that party membership was 

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essential to the discharge of the employee's 

governmental responsibilities.

It is equally clear that party 

affiliation is not necessarily relevant to 

every policymaking or confidential position. 

The coach of a state university's football 

team formulates policy, but no one could 

seriously claim that Republicans make better 

coaches than Democrats, or vice versa, no 

matter which party is in control of the 

state government. On the other hand, it is 

equally clear that the Governor of a State 

may appropriately believe that the official 

duties of various assistants who help him 

write speeches, explain his views to the 

press, or communicate with the legislature 

cannot be performed effectively unless those 

persons share his political beliefs and 

party commitments. In sum, the ultimate 

inquiry is not whether the label 

“policymaker” or “confidential” fits a 

particular position; rather, the question is 

whether the hiring authority can demonstrate 

that party affiliation is an appropriate 

requirement for the effective performance of 

the public office involved.

Having thus framed the issue, it is 

manifest that the continued employment of an 

assistant public defender cannot properly be 

conditioned upon his allegiance to the 

political party in control of the county 

government. The primary, if not the only, 

responsibility of an assistant public 

defender is to represent individual citizens 

in controversy with the State.

Branti v. Finkel, 445 U.S. 507, 518-19 (1980). 

Having already reviewed the Chief Clerk responsibilities, 

the Court will examine the duties of the Probate Judge. 

Statutory law sets them out to be as follows:

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(b) The probate court shall have original 

and general jurisdiction over the following 

matters:

(1) The probate of wills. 

(2) The granting of letters 

testamentary and of administration and the 

repeal or revocation of the same. 

(3) All controversies in relation to 

the right of executorship or of 

administration. 

(4) The settlement of accounts of 

executors and administrators. 

(5) The sale and disposition of the 

real and personal property belonging to and 

the distribution of intestate's estates. 

(6) The appointment and removal of 

guardians for minors and persons of unsound 

mind. 

(7) All controversies as to the right 

of guardianship and the settlement of 

guardians' accounts. 

(8) The allotment of dower in land in 

the cases provided by law. 

(9) The partition of lands within their 

counties. 

(10) The change of the name of any 

person residing in their county, upon his 

filing a declaration in writing, signed by 

him, stating the name by which he is known 

and the name to which he wishes it to be 

changed. 

(11) Such other cases as jurisdiction 

is or may be given to such courts by law in 

all cases to be exercised in the manner 

prescribed by law. 

Ala. Code § 12-13-1.

The Court notes that there does not appear to be any duty 

requiring that the Clerk and Probate Judge be of the same 

political mind to fulfill their respective responsibilities. 

For this reason, under the guidance of Branti, it is recommended 

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that Defendants’ Motion to find that Defendant Crawford is 

entitled to qualified immunity be denied as to Langford’s third 

claim.

In summary, Defendants have filed a Motion to Dismiss 

(Docs. 7-10). It is recommended that the Motion be granted as 

to Plaintiff’s claim that she was denied due process (Count 

one). It is further recommended that the Motion be denied as to 

Plaintiff’s claim that Defendants violated her First Amendment 

right to freedom of political association (Count three). 

Finally, it is recommended that the Motion be denied as to the 

argument that Defendant Crawford is entitled to qualified 

immunity in his individual capacity.

NOTICE OF RIGHT TO FILE OBJECTIONS

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); 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 

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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 May, 2014.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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