IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

NORTHERN DIVISION

FRANCES TRAYWICK, : 

 : 

 Plaintiff, : 

 : 

VS. : CIVIL ACTION NO. 08-00327-KD-B 

 : 

ROY FIKES, et al., : 

 : 

 Defendants. : 

REPORT AND RECOMMENDATION

This case is before the Court on Defendant Deputy Roy Fikes’ 

Motion to Dismiss and supporting memorandum (Docs. 41, 42), and 

Plaintiff’s response (Doc. 47). Based upon a careful review of 

Defendant’s motion and memorandum, Plaintiff’s response and the 

case file, the undersigned RECOMMENDS that Defendant’s motion be 

GRANTED. 

I. Background

Plaintiff Frances Traywick filed individual capacity suits 

seeking damages against James Hood, sheriff of Perry County, 

Alabama, and Roy Fikes and Bobby Sanders, Perry County deputy 

sheriffs. (Doc. 35). In Plaintiff’s third Amended Complaint 

(Doc. 35), she alleges that while a county prisoner housed at 

the Perry County facility, Defendants deprived her of her right 

to privacy and her right to be free from assault and batteries. 

Specifically, Plaintiff alleges that she was placed in the Perry 

County jail in May 2006 while awaiting a probation revocation 

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hearing and that after her probation was revoked on June 16, 

2006, she continued to be housed at the jail for a total of 45 

days while awaiting transfer to the women’s facility. Plaintiff 

alleges that while housed at the jail, she was placed in a cell 

that was not separate from the cell of the male prisoners, and 

as a result, male prisoners used shaving mirrors to watch her 

disrobe and use the toilet. Plaintiff further alleges that 

Defendants Fikes and Sanders promised her mental help, food and 

other favors in exchange for sex. In Counts One, Two and Three 

of Plaintiff’s Amended Complaint, Plaintiff alleged various 

allegations against Hood in relation to her placement in a cell 

from which she could be viewed by male prisoners and others. 

Plaintiff’s claims against Hood were voluntarily dismissed. 

(Docs. 51, 52). In Counts Four and Five, Plaintiff alleges that 

Defendant Fikes sexually assaulted her in violation of the 

Eighth Amendment. In Count Six, Plaintiff alleges that Defendant 

Sanders sexually assaulted her in violation of the Eighth 

Amendment, and in Count Seven, Plaintiff alleges that Defendant 

Fikes’ actions constituted assault and battery under the laws of 

Alabama. 

Currently pending before the Court is Defendant Fike’s 

Motion to Dismiss Count Seven of Plaintiff’s Third Amended 

Complaint. Defendant Fikes argues that he is immune, under 

Article V, § 112 of the Alabama Constitution, from Plaintiff’s 

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state law claim for assault and battery. Plaintiff filed a one 

sentence document in response to Defendant’s motion. In her 

response, Plaintiff states that she “does not disagree with the 

argument of Defendant.” (Doc. 47). 

II. Analysis

A. Standard of Review

In considering a Rule 12(b)(6) motion to dismiss for 

failure to state a claim, the court accepts the non-moving 

party=s allegations as true; however, the court is not required 

to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 

556 U.S. --, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) 

(noting “the tenet that a court must accept as true all of the 

allegations contained in a complaint is inapplicable to legal 

conclusions”). In evaluating the sufficiency of a plaintiff's 

pleadings, the court makes reasonable inferences in the 

plaintiff's favor, “but [is] not required to draw plaintiff's 

inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 

F.3d 1242, 1248 (11th Cir. 2005). Similarly, “unwarranted 

deductions of fact” in a complaint are not admitted as true for 

the purpose of testing the sufficiency of plaintiff's 

allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating 

conclusory allegations are “not entitled to be assumed true”). 

In Iqbal, the Supreme Court reiterated that although Rule 8 

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of the Federal Rules of Civil Procedure does not require 

detailed factual allegations, it does demand “more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” 

Iqbal, 129 S. Ct. at 1949. A complaint must state a plausible 

claim for relief, and “[a] claim has facial plausibility when 

the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for 

the misconduct alleged.” Id. The mere possibility the defendant 

acted unlawfully is insufficient to survive a motion to dismiss. 

Id. The well-pled allegations must nudge the claim “across the 

line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). 

 As noted supra, Plaintiff has indicated that she does not 

oppose Defendant’s motion. Courts in the Eleventh Circuit have 

held that the failure of a party to respond or oppose a pending 

motion may constitute an abandonment of the claims at issue in 

that motion. See Coalition for the Abolition of Marijuana 

Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (llth Cir. 

2000)(finding that a party’s failure to brief and argue an issue 

before the district court is grounds for declaring it 

abandoned); Hooper v. City of Montgomery, 482 F. Supp. 2d 1330, 

1334 (M.D. Ala. 2007)(concluding that a plaintiff’s failure to 

respond to Plaintiff’s motion to dismiss resulted in dismissal 

of those claims as abandoned). While lack of opposition 

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certainly provides sufficient basis for “abandonment,” the 

better course of action is to consider the motion on its merits. 

The Northern Assur. Co. of Am. v. Bayside Marine Constr., Inc., 

2009 U.S. Dist. LEXIS 4033 (S.D. Ala. Jan. 20, 2009)1 

B. Discussion

Defendant Fikes asserts that Plaintiff’s state-law assault 

and battery claim against him should be dismissed because he is 

entitled to absolute immunity under Alabama state law. Article 

I, § 14, of the Alabama Constitution of 1901 provides that, "the 

State of Alabama shall never be made a defendant in any court of 

 1

 In Northern Assur. Co., the Court cautioned that: 

... the court is under no duty to exercise 

imagination and conjure what a ...[party] might have 

alleged, but did not, and do counsel’s work for him or 

her.” Pinto v. Universidad De Puerto Rico, 895 F. 2d 

18, 19 (lst Cir. 1990); see also Lyes v. City of

Rivera Beach, Fla., 126 F.3d 1380, 1388 (llth Cir. 

1997)(explaining that “the onus is upon the parties to 

formulate arguments”); Resolution Trust Corp. v. Dumar 

Corp., 43 F.3d 587, 599 (llth Cir. 1995)(‘[t]here is 

no burden upon the district court to distill every 

potential argument that could be made based upon the 

materials before it.”); Bowden ex rel. Bowden v. WalMart Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. 

Ala. 2000)(‘[i]t is not for the court to manufacture 

arguments on plaintiff’s behalf”). Accordingly,. . 

.[a party’s] decision not to proffer argument or 

authority in response to the Motion [to dismiss] is at 

his peril. 

Id. at *10 (quoting Anderson v. Greene, 2005 U.S. Dist. 

LEXIS 38684, 2005 WL 1971116, *3 (S.D. Ala. Aug. 16, 2005). 

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law or equity."2 Fikes thus contends that because Plaintiff’s 

claim arose in connection with the performance of his duties as 

a deputy sheriff for Perry County, he is entitled to absolute 

immunity against any claim based on Alabama law. 

When determining whether a State interest in an action 

against a State official or employee in his or her individual 

capacity is sufficient to trigger the immunity granted by § 14, 

Alabama distinguishes between the standards applied to state 

agents or employees whose positions exist by virtue of 

legislative pronouncement and those who serve as the 

constitutional officers of this State. Ex parte Davis, 930 So.2d 

497, 500 (Ala. 2005). Alabama law provides that a county 

sheriff is a constitutional officer pursuant to § 112 of the 

Alabama Constitution of 1901, which provides that “[t]he 

executive department shall consist of . . . a sheriff for each 

 

2 The only exceptions to State immunity for suits brought against 

a sheriff or deputy are "actions brought (1) to compel him to 

perform his duties, (2) to compel him to perform ministerial 

acts, (3) to enjoin him from enforcing unconstitutional laws, 

(4) to enjoin him from acting in bad faith, fraudulently, beyond 

his authority, or under mistaken interpretation of the law, or 

(5) to seek construction of a statute under the Declaratory 

Judgment Act if he is a necessary party for the construction of 

the statute." Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 

1987). These exceptions do not apply where a sheriff is being 

sued for money damages, rather than for injunctive relief. See

Tinney v. Shores, 77 F.3d 378, 383 (llth Cir. 1996) ("[U]nder 

Article I, § 14, the only exceptions to a sheriff's immunity 

from suit are actions brought to enjoin the sheriff's conduct," 

not actions for damages). 

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county.” Parker, 519 So. 2d at 443. Section 14 immunity has 

been extended to deputy sheriffs despite the fact the position 

is not recognized in the constitution itself. See, e.g., Ex 

Parte Blankenship, 893 So. 2d 303 (Ala. 2004). The Alabama 

Supreme Court has reasoned that "'the acts of the deputy sheriff 

are the acts of the sheriff. The deputy sheriff is the alter ego 

of the sheriff.'" Hereford v. Jefferson County, 586 So.2d 209, 

210 (Ala. 1991). Recently however, in Ex parte Shelley, 2009 

Ala. LEXIS 221 (Ala. Sept. 8, 2009), the Alabama Supreme Court 

held that unlike sheriff’s deputies, jailers do not qualify for 

absolute immunity under the State's constitution. 

In this case, Plaintiff acknowledges that Defendant Fikes 

was employed as a sheriff’s deputy for Perry County. While 

Plaintiff alleges that Fikes was performing jailer duties at the 

time the allegedly wrongful conduct occurred, she does not 

allege that he was a jailer nor has she argued that he is not 

entitled to absolute immunity with respect to her state law 

claim. Furthermore, Plaintiff has not argued that Fikes’ 

alleged misconduct did not arise in connection with the 

performance of his duties nor has she alleged any facts which 

suggest that Defendant Fikes is not entitled to absolute 

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immunity with respect to her state law claim3. In fact, as noted 

supra, in response to Fikes’ Motion to Dismiss, Plaintiff 

responded that she does not disagree with Defendant’s arguments. 

Accordingly, the undersigned finds that Defendant Fikes is 

entitled to absolute immunity with respect to Plaintiff’s 

assault and battery claim. It is therefore recommended that 

Defendant Fikes’ motion be granted, and that Plaintiff’s assault 

and battery claim be dismissed. 

The attached sheet contains important information regarding 

objections to this recommendation. 

DONE this 30th day of July, 2010. 

 /s/ SONJA F. BIVINS_____ 

 UNITED STATES MAGISTRATE JUDGE 

 3

 In McMillian v. Johnson, 101 F.3d 1363, 1365 (11th Cir. 

1996), the Eleventh Circuit observed that the wall of § 14 

immunity is impenetrable even in the face of allegations that 

the state constitutional officer acted maliciously and 

intentionally. Id. at 1364-65. 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. 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. Failure to do so will bar a de novo

determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual 

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); 

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. 

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982) (en banc). The 

procedure for challenging the findings and recommendations of 

the Magistrate Judge is set out in more detail in SD ALA LR 72.4 

(June 1, 1997), which provides that: 

A party may object to a recommendation entered by 

a magistrate judge in a dispositive matter, that 

is, a matter excepted by 28 U.S.C. § 

636(b)(1)(A), by filing a ‘Statement of Objection 

to Magistrate Judge’s Recommendation’ within ten 

days4 after being served with a copy of the 

recommendation, unless a different time is 

established by order. The statement of objection 

shall specify those portions of the 

recommendation to which objection is made and the 

basis for the objection. The objecting party 

shall submit to the district judge, at the time 

of filing the objection, a brief setting forth 

the party’s arguments that the magistrate judge’s 

recommendation should be reviewed de novo and a 

different disposition made. It is insufficient 

to submit only a copy of the original brief 

submitted to the magistrate judge, although a 

copy of the original brief may be submitted or 

referred to and incorporated into the brief in 

support of the objection. Failure to submit a 

brief in support of the objection may be deemed 

an abandonment of the objection. 

 4

 Effective December 1, 2009, the time for filing written 

objections was extended to “14 days after being served with a 

copy of the recommended disposition[.]” Fed. R. Civ. P. 

72(b)(2). 

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 A magistrate judge's recommendation cannot be appealed to a 

Court of Appeals; only the district judge's order or judgment 

can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). 

Pursuant to 28 U.S.C. § 1915 and FED. R. CIV. P. 72(b), the 

Magistrate Judge finds that the tapes and original records in 

this case are adequate for purposes of review. Any party 

planning to object to this recommendation, but unable to pay the 

fee for a transcript, is advised that a judicial determination 

that transcription is necessary is required before the United 

States will pay the cost of the transcript. 

 

DONE this 30th day of July, 2010. 

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

 

 

 

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