Michael Warren v. Garry Bearden

AlaFile E-Notice

11-CV-2011-000068.00 Judge: MALCOLM B STREET JR To: ODOM JASON CLAUDE jcodom@odomlegal.com

NOTICE OF ELECTRONIC FILING IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA MICHAEL WARREN VS. GARRY D. BEARDEN, SR. 11-CV-2011-000068.00 The following matter was FILED on 7/21/2011 4:37:16 PM

Notice Date:

7/21/2011 4:37:16 PM

TED HOOKS CIRCUIT COURT CLERK CALHOUN COUNTY, ALABAMA 25 WEST 11TH STREEt ANNISTON, AL 36201 256-231-1750 ted.hooks@alacourt.gov

ELECTRONICALLY FILED 7/21/2011 4:37 PM CV-2011-000068.00 CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA TED HOOKS, CLERK

IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALABAMA THE STATE OF ALABAMA AT THE RELATION OF MICHAEL WARREN,

* * * * Plaintiff, * * vs. * * GARRY D. BEARDEN, SR., * * Defendant. * __________________________________ * * AND RELATED COUNTER-CLAIM * AND/OR CROSS-CLAIMS OF * DEFENDANT. *

CASE NO: CV-2011-000068.00

ORDER THIS CAUSE coming before the Court to be heard was originally submitted upon the various Motions to Dismiss filed by the Plaintiff and each Cross-Defendant 1 in this action. The instant case was assigned to the undersigned and a hearing was set to address the pending motions.

The Plaintiff was represented by Attorney Shaun L.

Quinlan and the Defendant was represented by Attorney William E. Rutledge. Alleged Cross-Claim Defendants Sheila Crumley Field, Jeffrey A. Clendenning and Ellen Cole were represented by Attorney Jason C. Odom; alleged Cross-Claim Defendant Willie Harvey was represented by Attorney Shaun L. Quinlan and alleged Cross-Claim Defendant Carolyn Henderson was represented by Attorney Tori L. Adams (who was

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After challenge with regard to the classification of Defendant’s claims as “Third-Party Claims,” counsel for Defendant proffered that he had intended to file Cross-Claims against various individuals. The Court notes that approval for filing such claims was neither sought nor received from the Court. It also does not appear, from the record, that Defendant ever served the requisite documents upon the alleged “CrossClaim” Defendants.

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not physically present at the hearing but whose submitted brief was reviewed in detail and given all due consideration).

The Plaintiff filed this Quo Warranto action against the Defendant as provided for in Section 6-6-591 of the Code of Alabama (1975), alleging that the Defendant, after his election as the Mayor of the City of Weaver, failed to maintain his residence in the City of Weaver and is therefore in violation of Section 11-43-1 of the Code of Alabama (1975). Said Code Section requires all elected mayors to maintain residency in the City in which they were elected during their term as mayor.

The Defendant ultimately filed an Answer and Counter-Claim against the Plaintiff, along with a purported Third-Party Complaint against Sheila Field, Jefferey Clendenning, Ellen Cole, William Harvey and Carolyn Henderson. Defendant then filed an Amendment to Counterclaim and Third-Party Complaint against the same individuals which unilaterally changed the nature of the Third-Party Complaint to an action for cross-claims against non-parties to the original suit. Such amendment advanced the following: Counts 1 and 3: Allegations in the Counter-Claim against Plaintiff Warren and supposed cross-claims against the other named individuals for an alleged conspiracy to violate 42 USC §§1983 & 1988; and 42 USC §1985; Count 2 made specific allegations against Plaintiff Warren alone for an alleged violation of the Alabama Litigation Accountability Act (ALAA) for events that occurred in the previously dismissed Calhoun County Circuit Court case bearing docket number CV-10-407.

Plaintiff Warren and William Harvey collectively filed a Rule 12(b) motion to dismiss as permitted by the Alabama Rules of Civil Procedure and alleged that: (1) 42 USC §1983, requires that a party act under color of law and that none of the actions

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complained of by the Defendant were under color of law; (2) 42 USC §1988 addresses proceedings to vindicate civil rights, and that the Defendant made no allegations that his civil rights have been violated; and (3) the Defendant has offered no allegations that would justify his claim that there was a conspiracy to violate his rights under 42 USC §1985. Plaintiff Warren also moved to dismiss the Defendant’s count for violation of the ALAA because the allegations reference events that transpired in the now dismissed action known as CV-10-407. In addition, Plaintiff avers that the ALAA is not a separate cause of action, rather, it is brought by motion.

Purported Cross-Claim Defendants Field, Clendenning and Cole filed a Motion to Dismiss pursuant to Rule 12(b)(6) and a Motion to Strike pursuant to Rule 12(f). In their pleadings and argument, said Defendants advanced the theory that Count One (1) of Defendant’s Counterclaim and Third-Party Complaint alleged to be based upon 42 USC §§1983 and 1988, claimed that the Councilmembers acted “under color of statute” to deprive Mr. Bearden of some “rights, privileges or immunities secured by the Constitution.” Cross-Claim Defendants argued that Bearden’s allegations wholly failed to state any set of rational facts or allegations which would support Bearden’s claims.

The Councilmember Defendants did not address Count Two (2) as such was solely directed at the Plaintiff.

Finally, purported Cross-Claim Defendant Henderson filed a Motion to Dismiss the Third-Party/Cross-Claim brought by Bearden based upon the following arguments: The Complaint failed to state a claim upon which relief can be granted; the Complaint is due to be dismissed based upon res judicata and collateral estoppel; and that CrossClaim Defendant Henderson is immune from the claims raised in Bearden’s Complaint

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based upon absolute judicial immunity, discretionary function immunity, qualified immunity, Eleventh Amendment U.S. Constitutional immunity and such immunity provided by Article I, § 14 of the Alabama Constitution of 1901.

This hearing was held on May 13, 2011 at 9:30 a.m. The Court heard argument of counsel and reviewed the filings from all parties before reaching its findings and rendering its decision in this matter.

The Court enters the following FINDINGS in this matter: 1.

Defendant Bearden’s claim under 42 USC §1983, requires, among other

things, that an offending party act under color of any statute, ordinance, regulation, custom, or usage, of any State. The Defendant has not alleged any facts that the Plaintiff or Cross-Claimants acted under color of any such statute, ordinance, regulation, etc., of any State. The Defendant offered no authority that would suggest the Plaintiff or Cross-Claimants would be liable under 42 USC §1983.

2. The Court finds that 42 USC §1988 contemplates a cause of action as a remedy to vindicate civil rights that have been violated. Based on Defendant Bearden’s pleadings, he has not alleged that his civil rights have been violated by the Plaintiff or any Cross-Claimants. Bearden has never been denied the opportunity to vote, nor has he been removed as Mayor of the City of Weaver – such is the core issue remaining to be decided in this case.

3. 42 USC §1985 has no application because the Defendant has not alleged that his civil rights have actually been violated.

4. Defendant’s claim under the Alabama Litigation Accountability Act against Plaintiff is solely premised on the Calhoun County Circuit Court case numbered CV-10-

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407. That case was voluntarily dismissed without prejudice. Defendant never filed a motion in that matter as required by § 12-19-272 of the Code of Alabama (1975); therefore the claims alleged by the Defendant are MOOT. 5. Defendant Bearden’s claims against the remaining “Cross-Claim Defendants” are due to be dismissed for failure to comply with the Rules of Civil Procedure. While originally styled as a “Third-Party Complaint,” such Complaint did not allege that any of the named Third-Party Defendants would otherwise be liable to Plaintiff for the allegations in the original Complaint.

Additionally, in his Amended Third-Party

Complaint, Defendant Bearden attempted to assert “Cross-Claims” against individuals who were not proper parties to the suit against whom cross-claims would be appropriate.

6. Defendant Henderson holds the office of “Voter Registrar” for Calhoun County Alabama. Such position is that of a judicial officer pursuant to § 17-3-6 of the Code of Alabama. Defendant Henderson, by virtue of her office, is immune from the claims raised in Bearden’s Complaint based upon absolute judicial immunity, discretionary function immunity, qualified immunity, Eleventh Amendment U.S. Constitutional immunity and such immunity provided by Article I, § 14 of the Alabama Constitution of 1901.

It is hereby ORDERED, ADJUDGED and DECREED as follows: A.

The Motion to Dismiss filed by Plaintiff, Michael Warren, against the

Defendant’s Counter-Claim is hereby GRANTED. All claims against Plaintiff asserted in Counts One (1) through Three (3) of Defendant Bearden’s Counter-Claim are hereby DISMISSED WITH PREJUDICE.

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B.

The Motion to Dismiss filed by Cross-Defendant Willie Harvey in response

to the Third Party/Cross-Complaint filed by Defendant Bearden is hereby GRANTED. All claims against Mr. Willie Harvey by Defendant Bearden are hereby DISMISSED WITH PREJUDICE. C.

The Motion to Dismiss filed by Cross-Defendants Sheila Field, Jeffery

Clendenning and Ellen Cole in response to the Third Party/Cross-Complaint filed by Defendant Bearden is hereby GRANTED.

All claims against Sheila Field, Jeffery

Clendenning and Ellen Cole by Defendant Bearden are hereby DISMISSED WITH PREJUDICE. D.

The Motion to Dismiss filed by Cross-Defendant Carolyn Henderson in

response to the Third Party/Cross-Complaint filed by Defendant Bearden is hereby GRANTED. All claims against Carolyn Henderson by Defendant Bearden are hereby DISMISSED WITH PREJUDICE. E.

All requests not specifically addressed herein are denied.

F.

Costs are taxed as prepaid.

G.

The Clerk is hereby directed to provide a copy of this Order to the parties

and/or the attorneys of record.

DONE and ORDERED this the 21st day of July, 2011.

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