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ELECTRONICALLY FILED
4/7/2017 5:11 PM
03-CV-2017-900286.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
TIFFANY B. MCCORD, CLERK
IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

DR. WARREN CRAIG POUNCEY, )

)
Plaintiff, )
)
v. )
)
MARY SCOTT HUNTER; ) CASE NO. CV-2017-900286
PHILIP CLEVELAND; JULIANA TEIXEIRA )
DEAN; JAMES R. WARD, III; SUSAN )
TUDOR CROWTHER, )
)
Defendants. )
)

MOTION TO DISMISS CLAIMS AGAINST DEFENDANTS DEAN, WARD, AND CROWTHER

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Alabama Rules of Civil Procedure,

Defendants Juliana T. Dean, James R. Ward III, and Susan T. Crowther, all lawyers in the

Alabama State Department of Educations Office of General Counsel (collectively, the GC

Defendants) move the Court to dismiss the Complaint, doc. 2, with prejudice. As grounds for

this motion, the GC Defendants show that they have State agent immunitythus the Court lacks

subject matter jurisdiction as to themand that even if that were not the case, the Complaint

fails to meet the minimum pleading requirements to state a claim upon which relief may be

granted.

Introduction

This unfortunate lawsuit arises from Dr. Craig Pounceys unsuccessful candidacy for

State Superintendent of Education. Dr. Pouncey maintains that he was not appointed because,

during the selection process, an anonymous letter was distributed to Board members accusing

him of serious ethical and legal misconduct. No one seems to know who wrote or sent the letter,

so that person who should be the centerpiece is not sued. Among those sued instead, and

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quite regrettably, are three career state lawyers who are entirely blameless, having done nothing

more or less than perform their jobs honestly and appropriately.

This lawsuit may be an effort to identify the unknown letter-writer through discovery, or

perhaps Dr. Pouncey feels that going on the offensive with any lawsuit, regardless of merit, helps

him toward vindication. Whatever its purpose, this lawsuit should not remain pending a moment

longer against these state employees. They are not only entitled to State agent immunity, but to

immediate dismissal because the Complaint fails to allege facts sufficient to support any of the

deficiently pled torts. In fact, and quite ironically, the facts alleged in the Complaint show that

these state employees should be commended for their work on behalf of the Alabama State

Board of Education, not sued in their individual capacities for it.

Factual Background 1

In March 2016, the Alabama State Board of Education (the Board) began the process

of selecting a new State Superintendent of Education. (Compl. 17). The Board tasked the

Office of the General Counsel and Juliana Dean, the Departments General Counsel, with

collecting application materials from candidates and submitting those materials to the Board. (Id.

18).

Dr. Pouncey submitted his application. (Compl. 19). At its July 12, 2016 meeting, the

Board discussed the various candidates for the position, including Dr. Pouncey. (Id. 24). At

some point during this meeting, Board members received an anonymous letter with copies of

emails and certain state ethics laws attached to it. (Id. 25). Dr. Pouncey does not claim that the

1
The GC Defendants accept as true for purposes of this motion only the factual allegations in the
Complaint, but reserve the right to contest Dr. Pounceys factual allegations should this action
proceed past the motion to dismiss stage.

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anonymous letter was written by Dean, Ward, or Crowther and, indeed, it was not. The letter

made several allegations against Dr. Pouncey, including that he had:

Violated Alabama Ethics laws;

Plagiarized his doctoral dissertation at Samford University;

Used state employees during state work hours to write, edit, compile, review, and
submit his doctoral work;

Accepted meals, golf outings, and other things of value from vendors;

Circumvented bid laws to grant contracts to specific vendors; and

Violated the revolving door law by hiring education employees without waiting the
requisite amount of time and then paying them through a company outside Alabama.

(Id. 25); Exhibit A, Copy of Anonymous Letter and Attached Emails. 2 The emails that were

attached to the anonymous letter tend to support at least some of the allegations that were made

about Dr. Pounceys doctoral work. See Ex. A. 3

2
The Court may consider the anonymous letter and the emails attached thereto without
converting this motion to dismiss into a motion for summary judgment because they are referred
to in the Complaint and are central to that pleading and because they are public documents. See
Compl. 7-9, 25-31, and generally; Donoghue v. American Natl Ins. Co., 838 So. 2d 1032,
1035 (Ala. 2002) (adopting the rule precluding conversion when the exhibits in question are
referred to in, and are central to, the plaintiffs complaint).
3
For example, on page four of the anonymous complaint (Ex. A. at 5), a Department of
Education employee wrote to Dr. Pouncey that she had edited the survey based upon our
discussion this morning and that she added 2 more demographics questions that will provide
helpful information when it is time for you to analyze your data . . . . She then wrote that she
was also editing Chapters 1-3, especially 3, to reflect our discussion and for the sake of
consistency. Another example is found on the same page, where Dr. Pouncey asks the same
Department of Education employee to email me the exact wording of the four constructs the
survey is intended to measure. [Another person] is going to list them in the email when she sends
it out this morning. Ex. A. at 5. In another email between Department of Education employees,
one employee wrote that she was glad the project was moving forward, and that she had had
some small but important edits before [Dr. Pouncey] sends to the entire committee. Id. at 3.
Indeed, some of the letters that Dr. Pouncey attached to his Complaint show that there is no
dispute that some Department of Education employees helped Dr. Pouncey with his dissertation
during their work day. E.g., doc. 4, at Shannon Parks Letter ([W]ith the exception of maybe
meeting with him a few times, and sending some emails, what few suggestions I did make were

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According to Dr. Pouncey, [m]ost of the [Board] members did not pay attention to the

letter because it was anonymous. (Id.). A few days after the Board meeting, interim

Superintendent of Education Phillip Cleveland, Deans supervisor, gave a copy of the

anonymous letter to Dean and strongly encouraged her to provide it to the Ethics Commission.

(Compl. 25-27).

According to the Complaint, on July 14, 2016, defendant Mary Scott Hunter, a Board

member, allegedly contacted the Executive Director of the Alabama Ethics Commission and

informed him about the allegations in the anonymous letter. (Id. 29). The next day, the Ethics

Commission General Counsel called Dean and requested the letter. (Id. 30). Dean gave him a

copy of the letter, and the Ethics Commission in turn wrote Dean a letter acknowledging receipt.

(Id. 31); Exhibit B, 7/15/16 Letter from Ethics Commission to Juliana Dean. 4 In that letter, the

Ethics Commission stated: As the Board recognizes, there is a reporting requirement under

36-25-17 of activities that constitute violations of the Act. We appreciate the Boards and

your sensitivity to this requirement and the Board has complied with its statutory

reporting duty. Ex. B (emphasis added).

On July 20, 2016, James Ward, an Associate General Counsel for the Department,

contacted Samford University. (Compl. 32). Despite the assertions made by Dr. Pouncey, Ward

merely contacted Samford at the request of State Board of Education members to learn whether

it had an ability to address the allegations about Dr. Pounceys dissertation. See Ex. C, infra.

after hours and on my own time.) and at Dean Murray Letter (It is true that during the day if
there was a quick minor edit I would make that change to the document.).
4
The Court may consider the July 15, 2016 letter from the Ethics Commission to Juliana Dean
without converting this motion to dismiss into a motion for summary judgment because it is
referred to in the Complaint and is central to that pleading and because it is a public document.
See Compl. 31, 42 and generally; supra note 1.

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Two days later, Ward sent a memorandum to Dean titled Recommendations concerning

the allegations about Dr. Craig Pouncey. (Id. 33 and exhibit A). A copy of this memorandum,

including an article from the Alabama Lawyer (a monthly publication of the Alabama State Bar

Association) that was attached to the memorandum, is attached as Exhibit C. Ward identified

four options for evaluating the allegations in the anonymous letter: (1) relying on the Ethics

Commission to conduct an investigation; (2) requesting Samford University to conduct an

investigation; (3) employing an outside party to facilitate an investigation; and (4) requesting Dr.

Pouncey to respond to the allegations. Ex. C. Analyzing those four options, Ward noted that

[a]lthough Dr. Pouncey no longer works at the Department, the allegations against him refer to

a time when he was employed here. Id. Accordingly, citing an excerpt from the Alabama

Lawyer on conducting internal investigations, Ward suggested that an outside entity perform

some investigation into the letters allegations so as to eliminate any perception that Dr.

Pounceys previous positions as Chief of Staff and as Deputy State Superintendent influenced

the investigation. Id. Ward also recommended that requesting Dr. Pouncey to respond to the

allegations would be fair and worthwhile. Id.

On August 2, 2016, Dr. Pouncey sent a letter to Dean in response to the anonymous

letter, and included as attachments statements supporting his assertion that he authored his own

dissertation. (Compl. 35-36). Dean sent the response to Board members for their

consideration. (Id. 38).

On August 9, 2016, the Alabama Political Reporter ran a story that included the July 15,

2016 letter from the Ethics Commission to Dean. (Id. 42).

On August 11, 2016, the Board selected Michael Sentance to be the new State

Superintendent. (Id. 43).

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Standard of Review

This Court should dismiss Dr. Pounceys claims against the GC Defendants if Dr.

Pouncey could prove [no] set of circumstances that would entitle [him] to relief. Liberty Nat.

Life Ins. v. Univ. of Ala. Health Servs. Found., 881 So. 2d 1013, 1017 (Ala. 2013); accord Ex

parte Alabama Dept of Transp., 978 So. 2d 718, 720 (Ala. 2007) (applying the same standard of

review to a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction). If the

GC Defendants are immune from suit, then there is no set of circumstances under which Dr.

Pouncey could recover. But even if the GC Defendants were not entitled to State agent

immunity, this Court should still determine whether the allegations of the Complaint, even if

taken as true, state a claim upon which relief can be granted. If they do not, this Court must

dismiss the case against the GC Defendants for failure to state a claim upon which relief can be

granted under Rule 12(b)(6) of the Alabama Rules of Civil Procedure.

Argument

Dr. Pouncey, a government official who was seeking election to an even more influential

and powerful governmental position, apparently believes that a complaint about his official

conduct should not be investigated or even discussed through internal memoranda by the GC

Defendants, despite their responsibilities to the Board and public. Dr. Pouncey also appears to

believe that the anonymous letter caused the Board to select someone other than him for the State

Superintendent position. Nonetheless, his accusations against Dean, Ward, and Crowther reveal

that the GC Defendants actions relating to that letter were extremely limited, reasonable, and

fair.

Dr. Pouncey alleges that Dean (1) received a request from the General Counsel of the

Ethics Commission for a copy of the anonymous letter, (2) complied with that request, and (3)

forwarded to the Board Dr. Pounceys response to the letter. (Compl. 30-31, 38); Ex. B. Dr.

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Pouncey alleges that Ward (1) spoke with Samford University and falsely accused Dr. Pouncey

of plagiarizing his dissertation (even though Samford had nothing to do with the State

Superintendent selection process), and (2) composed an internal, confidential memorandum to

Dean discussing various options for how to evaluate the accusations against Dr. Pouncey. (Id.

32, 33); Ex. C. Dr. Pouncey makes no allegation specific to Crowther, other than asserting

generally as to all named defendants that they had numerous discussions and emails where they

discussed various options to disparage Dr. Pouncey and to make the false accusations against

him public. (Compl. 34).

The Complaint contains no allegation that Dean, Ward, or Crowther:

Created the anonymous letter;

Disseminated the anonymous letter to the Board; 5

Had any knowledge of the letter until Dean received a copy days after it was given to
Board members;

Provided the letter to the Ethics Commission except at the express request of the
Commission (Dean);

Discussed the allegations of the anonymous letter or the Ethics Commissions

involvement with any member of the press;

Discussed the allegations of the anonymous letter or the Ethics Commissions

involvement with the public or other entity, except for Wards limited conversations with
Samford University (and no allegation is made that those conversations had any influence
on any Board members decision not to select Dr. Pouncey as State Superintendent);

Publicly or privately disclosed Wards confidential, privileged memorandum to Dean

concerning the allegations against Dr. Pouncey; or

Had any knowledge or influence whatsoever over the votes of the Board members
responsible for making the State Superintendent selection.

5
In fact, Dr. Pouncey names as separate fictitious parties the person(s) who created and
delivered the anonymous letter and emails to the Board. (Compl. 7-9).

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The Complaint simply contains no factual allegations to substantiate the unfounded

generalizations of wrongdoing against the GC Defendants. Moreover, it is clear that the GC

Defendants, to the extent they took any actions, were performing discretionary functions in the

line and scope of their employment such that they are protected by State agent immunity.

I. State agent immunity bars Dr. Pounceys claims against the GC Defendants.

The GC Defendants are entitled to State agent immunity, also known as qualified

immunity, on all of Dr. Pounceys claims. 6 The Alabama Supreme Court has formulated a test

for determining when State agents sued in their individual capacities are entitled to the defense

of State agent immunity:

A State agent shall be immune from civil liability in his or her personal capacity
when the conduct made the basis of the claim against the agent is based upon the
agents:

(1) formulating plans, policies, or designs; or

(2) exercising his or her judgment in the administration of a department or agency

of government, including, but not limited to, examples 7 such as:

(a) making administrative adjudications;

(b) allocating resources;
(c) negotiating contracts;
(d) hiring, firing, transferring, assigning, or supervising personnel; or

(3) discharging duties imposed on a department or agency by statute, rule, or

regulation, insofar as the statute, rule, or regulation prescribes the manner for
performing the duties and the State agent performs the duties in that manner;
or

6
See McConico v. Patterson, 204 So. 3d 409, 417 (Ala. Civ. App. 2016) (State officials and
state employees sued in their individual capacities may be entitled to qualified immunity, also
known as state-agent immunity.).
7
It is to be noted that the situations listed in subparagraphs (2)(a)-(d) of the Cranman immunity
rule are expressly only examples of the general principle stated in paragraph (2) itself. Ryan v.
Hayes, 831 So. 2d 21, 31 (Ala. 2002).

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(4) exercising judgment in the enforcement of the criminal laws of the State,
including, but not limited to, law-enforcement officers arresting or attempting
to arrest persons; or

(5) exercising judgment in the discharge of duties imposed by statute, rule, or

regulation in releasing prisoners, counseling or releasing persons of unsound
mind, or educating students.

Ex parte Butts, 775 So. 2d 173, 177-78 (Ala. 2000) (adopting, as majority viewpoint, the State

agent immunity test proposed by the plurality decision in Ex parte Cranman, 792 So. 2d 392,

405 (Ala. 2000)); accord Ala. Code 36-1-12(c).

In essence, a State agent is protected by State agent immunity for decisions or actions that

are discretionary. Discretionary functions have been described . . . as being those acts as to

which there is no hard and fast rule as to the course of conduct that one must or must not take

and those acts requiring exercise in judgment and choice and involving what is just and proper

under the circumstances. Ex parte City of Montgomery, 758 So. 2d 565, 569 (Ala. 1999)

(quoting Wright v. Wynn, 682 So. 2d 1, 2 (Ala. 1996)); 8 see also Ex parte Hugine, No. 1130428,

2017 WL 1034467, at *17 (Ala. Mar. 17, 2017) (When public officials do their jobs, it is a good

thing. Qualified immunity is a real-world doctrine designed to allow local officials to act

(without always erring on the side of caution) when action is required to discharge the duties of

public office.) (citing Davis v. Scherer, 468 U.S. 183, 196 (1984) ([O]fficials should not err

8
See also Louviere v. Mobile Cty. Bd of Educ., 670 So. 2d 873, 877 (Ala. 1995) (Whether a
particular defendant is engaged in a discretionary function, and is thereby immune from liability,
is a question of law to be decided by the trial court.); Phillips v. Thomas, 555 So. 2d 81, 84
(Ala. 1989) (In determining what is a discretionary function, we have recognized certain factors
that may be considered, including the following: [1] the nature and importance of the function
that the officer is performing; [2] the extent to which passing judgment on the exercise of
discretion will amount necessarily to passing judgment on the conduct of a coordinate branch of
government; [3] the extent to which the imposition of liability would impair the free exercise of
discretion by the officer; [4] the extent to which the ultimate financial responsibility will fall on
the officer; [5] the likelihood that harm will result to members of the public if the action is taken;
[6] the nature and seriousness of the type of harm that may be produced; and [7] the availability
to the injured party of other remedies and other forms of relief.) (internal quotations omitted).

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always on the side of caution.). The crucial question in many Stage agent immunity cases

involves the analysis of whether the official acted reasonably in the particular circumstances

that he or she faced. Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014).

No exception to State agent immunity applies here. Dr. Pounceys conclusory allegations

are insufficient to support claims that the GC Defendants act[ed] willfully, maliciously,

fraudulently, in bad faith, beyond his or her authority, or under mistaken interpretation of the

law. Ex parte Butts, 775 So. 2d 173, 177-78 (Ala. 2000); Ex parte Cranman, 792 So. 2d 392,

405 (Ala. 2000). That exception is not meant to apply to any misstep by any state employee or

other state agent that wrongs another. Instead, the plaintiff must plead something more. Ex

parte Auburn Univ., 6 So. 3d 478, 487 (Ala. 2008) (quoting Segrest v. Lewis, 907 So. 2d 452,

456-57 (Ala. Civ. App. 2005)). The exception does not apply in this case and Dr. Pouncey

cannot show otherwise.

Dr. Pouncey alleges throughout his Complaint the conclusion that the GC Defendants

acted willfully, maliciously, fraudulently, in bad faith and/or beyond their authority. (Compl.

16 and generally). In other words, he pleads a legal conclusion but fails to allege factual basis for

that conclusion. Dr. Pouncey cannot overcome immunity by simply reciting the exception,

without supporting factual allegations. See Ala. R. Civ. P. 8, Committee Comments on 1973

Adoption (Although Rule 8(a) eliminates many technical requirements of pleading, it is clear

that it envisages the statement of circumstances, occurrences, and events in support of the claim

presented.). To allow a damages action to proceed against individual state employees based on

such superficial allegations would be contrary to the basic notion that State agent immunity is

designed to prevent not just an award of damages against individuals who are performing

discretionary functions, but also the necessity of having to defend against the lawsuit at all. Ryan

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v. Hayes, 831 So. 2d 21, 31 (Ala. 2002) (quoting Siegert v. Gilley, 500 U.S. 226, 232 (1991)

(One of the purposes of immunity, absolute or qualified, is to spare a defendant not only

unwarranted liability, but unwarranted demands customarily imposed upon those defending a

long drawn out lawsuit.)).

Dr. Pouncey does not allege that Dean acted outside her scope of duty in cooperating

with the Ethics Commission. On the contrary, it is undisputed that Deans Supervisor,

Superintendent Cleveland, strongly encouraged Dean to provide a copy of the anonymous letter

to the Ethics Commission. (Compl. 27). It is also undisputed that the Ethics Commission called

her for the letter. (Compl. 30). Dr. Pouncey also makes no allegation that it was not within

Wards scope of duty to conduct due diligence in seeking information about allegations

distributed to the Board concerning a candidate for State Superintendent (again, no specific

actions are alleged against Crowther). Instead, Dr. Pouncey simply contends that, in his case, the

GC Defendants acted wrongfully when they did these things. Thus, it is undisputed that the GC

Defendants actions were within the line and scope of their employment.

The primary wrongdoing alleged against Dean is her delivery, at the express direction of

the Ethics Commission, of a copy of the anonymous letterof which the Commission was

already aware. The July 15, 2016 letter response from the Ethics Commission to Dean, states:

As the Board recognizes, there is a reporting requirement under 36-25-17 of activities that

constitute violations of the Act. We appreciate the Boards and your sensitivity to this

requirement and the Board has complied with its statutory reporting duty. Ex. B (emphasis

added). Indeed, Ala. Code 36-25-17(b) provides that Governmental agency heads shall

cooperate in every possible manner in connection with any investigation or hearing, public or

private, which may be conducted by the commission. See also 36-25-4(h) (In the course of

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an investigation, the [Ethics] [C]ommission may subpoena witnesses and compel their

attendance and may also require the production of books, papers, documents, and other evidence.

If any person fails to comply with any subpoena lawfully issued, or if any witness refuses to

produce evidence or to testify as to any matter relevant to the investigation, it shall be the duty of

any court of competent jurisdiction or the judge thereof, upon the application of the director, to

compel obedience upon penalty for contempt, as in the case of disobedience of a subpoena issued

for such court or a refusal to testify therein.).

Moreover, as a criminal statute, the Ethics law further states that:

(a)(1) Except as otherwise provided, any person subject to this chapter who
intentionally violates any provision of this chapter other than those for which a
separate penalty is provided for in this section shall, upon conviction, be guilty of a
Class B felony.

(7) Any person subject to this chapter who intentionally fails to disclose information
required by this chapter shall, upon conviction, be guilty of a Class A misdemeanor.

Ala. Code 36-25-27 (emphasis added).

Dr. Pouncey fails to allege any facts to show that Deans delivery of a copy of the

anonymous letter to the Ethics Commission General Counsel (at his specific request) was

anything other than satisfaction of her legal, statutory obligations to cooperate with the Ethics

Commissionand, just as significantly, not to obstruct the Ethics Commission. Conversely, Dr.

Pouncey does allege that Deans supervisor, Superintendent Cleveland, strongly encouraged her

to send the letter to the Ethics Commission, see Compl. 27, although it is notable that Dean did

not provide it until the Ethics Commission requested it. Considering these obligations, the

allegations in the Complaint show that Dean acted within the scope of her job responsibilities

and acted reasonably in the particular circumstances that . . . she faced. Plumhoff v. Rickard,

134 S. Ct. at 2023; see also Ex parte Butts, 775 So. 2d at 177-78 (State agent immunity applies if

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the agent is exercising his or her judgment in the administration of a department or agency of

government, discharging duties imposed on a department or agency by statute, rule, or

regulation, insofar as the statute, rule, or regulation prescribes the manner for performing the

duties and the State agent performs the duties in that manner, or exercising judgment in the

enforcement of the criminal laws of the State.); see Ex. B (Ethics Commission letter to Dean

confirming that, through her cooperation, the Board has complied with its statutory reporting

duty). To refuse to provide the letter to the Ethics Commission could have exposed Dean,

Superintendent Cleveland, and the Board to potential criminal liability. Dean acted more than

reasonably under the circumstances; indeed, she acted in accordance with her statutory

responsibilities, as the letter from the Ethics Commission acknowledges.

Dr. Pouncey claims that the accusations in the anonymous letter related to events that

occurred more than 6 years earlier, and implies that the vintage of the events should have

somehow negated any concern the GC Defendants may have had about the allegations. (Compl.

25). It is true that the emails attached to the anonymous letter and discussing Dr. Pounceys

dissertation are dated in 2009, see Ex. A., but Dr. Pouncey neglects to mention that there are

several additional allegations raised in the anonymous letter that do not relate to his dissertation,

including that Dr. Pouncey:

Accepted meals, golf outings, and other things of value from vendors;

Circumvented bid laws to grant contracts to specific vendors; and

Violated the revolving door law by hiring education employees without waiting the
requisite amount of time and then paying them through a company outside Alabama.

(Id. 25); Ex. A. There are no dates or time periods associated with those allegations, and it is

not clear from the letter itself that all of the allegations regarding Dr. Pounceys dissertation were

time-barred for an ethics violation (and, in any event, that was not a decision for Dean or the

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other GC Defendants to make). The GC Defendants duty was to cooperate with the Ethics

Commission, not evaluate the legitimacy of the Ethics Commissions reasons for requesting the

letter.

What is clear is that the Board members received an anonymous letter at their meeting on

July 12, 2016. Board member Hunter gave the letter to the Interim Superintendent, Dr.

Cleveland. Dr. Cleveland then gave the letter to Dean on July 14, 2016. There is no clearer

example of state employees following the chain of command than what transpired in this case.

The letter was received by the Board, delivered from a Board member to the Superintendent, and

from the Superintendent to the General Counsel. Completely consistent with her duties as

General Counsel and within her discretionary authority in performing her job, Dean began the

process of reviewing the letter to determine what action, if any, was appropriate. However,

before Dean could complete her review, the Ethics Commission called for the letter. Under the

Ethics Law, Dean had a legal duty to provide the letter to the Ethics Commission when

requested. When the Commission requested the letter, Dean did not know and could not have

known what information the Ethics Commission already had, and whether the Ethics

Commission was already investigating Dr. Pouncey. Dean did know, however, that she had a

legal duty to cooperate with and not to obstruct the Ethics Commissionand even if she did not

have such a legal duty, making a judgment call to deliver a copy of the letter to the Commission,

once requested, was completely within the scope of her job responsibilities and discretion as

General Counsel. 9

9
Actually, even if the Ethics Commission had not requested the letter and/or even if
Superintendent Cleveland had not encouraged Dean to provide the letter to the Commission, it
still would have been within Deans discretionary judgment, as General Counsel, to send the
letter to the Commission. In other words, it was clearly within the line and scope of Deans
employment to decide how to handle the letter, regardless of a directive from her supervisor or

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As for Ward, the confidential and privileged memorandum that he drafted to Dean (that

was disclosed through no action of the GC Defendants) reveals that the GC Defendants took a

measured, good faith approach in deciding how to evaluate the allegations in the anonymous

letter. Ward suggested that an outside entity investigate the anonymous letters allegations so as

to eliminate any perception that Dr. Pounceys previous positions as Chief of Staff and as

Deputy State Superintendent influenced the investigation. Ex. C; see also Ex parte Hugine, No.

1130428, 2017 WL 1034467, at *16-17 (Ala. Mar. 17, 2017) (citing Rioux v. City of Atlanta, 520

F.3d 1269 (11th Cir. 2008), including the presence of independent investigations as to alleged

wrongful conduct by plaintiff as factor in support of qualified immunity). Moreover, rather than

blindly attacking Dr. Pouncey, as the Complaint infers, Ward also recommended that allowing

Dr. Pouncey to respond to the allegations would be fair and worthwhile. Id. 10 Wards inquiry

to Samford, in conducting due diligence as to allegations brought against a candidate for State

Superintendent, as well as his thoughtful consideration of the Departments options for

evaluating the allegations in the anonymous letter, were reasonable under the circumstances and

are protected by State agent immunity. Plumhoff v. Rickard, 134 S. Ct. at 2023; Ex parte Butts,

775 So. 2d at 177-78 (State agent immunity applies if the agent is exercising his or her

judgment in the administration of a department or agency of government).

request from the Ethics Commission, and whether Dean handled it as Dr. Pouncey believes she
should have is inconsequential, as discussed infra.
10
Highlighting the lack of actual substance to this lawsuit, Dr. Pouncey curiously contends that
Wards Memorandum set out four options for Defendant Cleveland regarding the anonymous
letter and Wards recommendations, all of which were designed to hurt Pouncey. (Compl., 33
(emphasis added). This statement is hopelessly inaccurate, as it is expressly contradicted by the
Memorandum itself. Clearly, the options recommended by Ward employing an outside party to
conduct an investigation and/or giving Dr. Pouncey an opportunity to respond were not
designed to hurt Dr. Pouncey but, instead, to be a fair and reasonable way for the Board to
handle the anonymous letter.

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Despite Dr. Pounceys blanket legal conclusions, his factual allegations and the evidence

he has included with his Complaint demonstrate that the GC Defendants did not act in bad faith,

maliciously, or otherwise wrongfully. Rather, the facts reflect that the GC Defendants acted

reasonably at all times. Thus, they are protected by State agent immunity, and each of their

claims should be dismissed as a result. See Ex parte Hugine, No. 1130428, 2017 WL 1034467, at

*21 (Ala. Mar. 17, 2017) ([I]f all these individuals did was fulfill their administrative

responsibility to make a judgment call as to whether the plaintiff was tenured and they made a

mistake in that judgment call, then the plaintiff is not entitled to pursue those individual

defendants personal bank accounts under the beyond-authority exception to State-agent

immunity. They were doing their jobs as state-school officials, and it is the protection of officials

engaged in such discretionary activities that is the purpose of State-agent immunity.); Ex parte

Spivey, 846 So. 2d 322 (Ala. 2002) (school woodshop teacher entitled to State agent immunity

where he exercised his judgment in operation of equipment which injured student); Quinn v.

Alabama State Bd. of Educ., 119 So. 3d 411, 417 (Ala. Civ. App. 2012) (affirming dismissal of

state law, individual capacity claims against Superintendent of State Department of Education,

Board members, and others on the grounds of State agent immunity where Board defendants

merely discharged duties imposed on them by statute, rule, or regulation in denying

certifications); Ex parte Montgomery Cty. Dept of Human Res., 982 So. 2d 545 (Ala. Civ. App.

2007) (state and county departments of human resources sufficiently established that actions of

their attorneys, in filing a motion to have individual removed as guardian ad litem in two

dependency actions, were taken in accordance with the performance of their statutory duties, as

required for attorneys to be entitled to State agent immunity for purposes of individuals request

for sanctions following denial of motion); Key v. City of Cullman, 826 So. 2d 151, 158 (Ala. Civ.

248324.1 16
 DOCUMENT 26

App. 2001) (The questions whether a better method of identifying suspects was available to

[police officer] and whether the manner in which [officer] conducted his investigation was

negligent or even reckless are debatable. However, those matters are within the discretion

afforded the investigator of a crime, and, therefore, they fall within the immunity provided

by State-agent immunity for discretionary acts.); Manzini v. The Florida Bar, 511 Fed. Appx

978, 981-82 (11th Cir. 2013) (attorney for state bar had discretionary authority to send e-mail to

client of attorney against whom client had complained to bar, informing client of status of

complaint, as required to support bar attorneys assertion of qualified immunity from

of qualified immunity from attorneys 1983 due process claims after he was disbarred, even

though no disciplinary proceedings were pending against attorney at time that e-mail was sent to

his client, since e-mail fell within bar attorneys legitimate job description that included

communicating case developments to complaining parties, and her e-mail about case

developments was carried out through means that were within her power to utilize); Walton v.

Montgomery County Bd. of Educ., 371 F. Supp. 2d 1318, 1325 (M.D. Ala. 2005) (The

immunity afforded State agents who exercise their judgment in the education of students and the

supervision of personnel is not abrogated for negligent and wanton behavior; instead, immunity

is withheld only upon a showing that the State agent acted willfully, maliciously, fraudulently, in

bad faith, or beyond his or her authority) (quoting Giambrone v. Douglas, 874 So. 2d 1046,

1057 (Ala. 2003)).

Against this background, all of the claims against the GC Defendants should be dismissed

based upon State agent immunity. However, for the sake of argument, if they are not, then Dr.

Pounceys claims still must be dismissed as a matter of law, as explained below.

248324.1 17
 DOCUMENT 26

II. Dr. Pounceys conspiracy claim (Count I) fails for lack of a well-pleaded
underlying tort and because it is barred by the intracorporate conspiracy doctrine.

A plaintiff alleging a civil conspiracy must show (1) concerted action by two or more

persons (2) to achieve an unlawful purpose or a lawful purpose by unlawful means. Ex parte

Alamo Title Co., 128 So. 3d 700, 713 (Ala. 2013) (citation omitted). Dr. Pouncey alleges that the

GC Defendants conspired to disparage Dr. Pounceys reputation; to place him in a false light to

the public; to have him investigated and prosecuted for crimes he did not commit; [and] to get

Samford University to revoke Dr. Pounceys doctorate degree. (Compl. 47). Dr. Pounceys

claim against the GC Defendants fails for several reasons.

First, [a] civil conspiracy action focuses not on the conspiracy alleged, but on the wrong

committed by virtue of the conspiracy. Conspiracy itself furnishes no civil cause of

action. Triple J Cattle, Inc. v. Chambers, 621 So. 2d 1221, 1225 (Ala.1993) (citations omitted);

see also Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1124 (Ala. 2003)

(A conspiracy cannot exist in the absence of an underlying tort . . . . [L]iability for civil

conspiracy rests upon the existence of an underlying wrong and if the underlying wrong provides

no cause of action, then neither does the conspiracy.) (citing Willis v. Parker, 814 So. 2d 857,

867 (Ala. 2001)). In other words, an actionable wrong must transpire as a result of the

conspiracy for a defendant to be liable for conspiracy. Thompson Properties 119 AA 370, Ltd. v.

Birmingham Hide and Tallow Co., Inc., 897 So. 2d 248, 267 (Ala. 2004). Whether due to State

agent immunity, or failure to plead sufficient factual allegations sufficient to state a claim, each

of Dr. Pounceys other claims against the GC Defendants in this action fail as a matter of law.

Accordingly, his conspiracy claim against the GC Defendants fails as well.

Second, the alleged conspiratorsDean, Ward, Crowther, Cleveland, and Hunterwere

at all relevant times acting as employees and/or agents of the same public entity, the Board. As a

248324.1 18
 DOCUMENT 26

result, Dr. Pounceys conspiracy claim is barred by the intracorporate conspiracy doctrine.

[T]he intracorporate conspiracy doctrine holds that acts of corporate agents are attributed to the

corporation itself, thereby negating the multiplicity of actors necessary for the formation of a

conspiracy. . . . [U]nder the doctrine, a corporation cannot conspire with its employees, and its

employees, when acting in the scope of their employment, cannot conspire among

themselves. Grider v. City of Auburn, Ala., 618 F.3d 1240, 1261 (11th Cir. 2010) (affirming

judgment dismissing conspiracy claim against two law enforcement officers within the same

police department based on intracorporate conspiracy doctrine) (citing McAndrew v. Lockheed

Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000)). This doctrine has been applied not only to

private corporations but also to public, government entities. Dickerson v. Alachua Cty.

Commn, 200 F.3d 761, 767 (11th Cir. 2000) (collecting cases). 11

The intracorporate conspiracy doctrine clearly bars conspiracy claims based on alleged

conspiracy between employees or agents of the same entity. See M&F Bank v. First Am. Title

Ins. Co., 144 So. 3d 322, 234 (Ala. 2013) (citing Grider and McAndrew, affirming summary

11
See also, e.g., Denney v. City of Albany, 247 F.3d 1172, 119091 (11th Cir. 2001) (stating the
only two conspirators identified . . . are both City employees; no outsiders are alleged to be
involved and concluding intracorporate conspiracy doctrine barred plaintiffs 1985(3)
conspiracy claims for deprivation of their equal protection rights); Rehberg v. Paulk, 611 F.3d
828, 854 (11th Cir. 2010) concluding intracorporate conspiracy doctrine barred 1983
conspiracy claim against a county employee); Chambliss v. Foote, 562 F.2d 1015 (5th Cir.
1977) (affirming district courts summary judgment opinion applying the intracorporate
conspiracy doctrine to bar a 1985(3) claim against a public university and its officials); White
v. City of Athens, 169 F. Supp. 3d 1254, 126970 (N.D. Ala. 2016) (applying intracorporate
conspiracy doctrine in dismissing conspiracy claims against city employees who were all agents
of the same legal entity); Taylor v. Alabama, 95 F. Supp. 2d 1297, 1317-18 (M.D. Ala. 2000)
(applying intracorporate conspiracy doctrine to dismiss claim that DOT employees conspired to
commit libel and slander and an invasion of privacy because employees, as agents and
employees of the DOT, constitute[d] a single legal entity and, thus, are not capable of conspiring
together) (citation and quotations omitted); Vestavia Plaza, LLC v. City of Vestavia Hills, Ala.,
No. 2:11-CV-4152-TMP, 2013 WL 4804196, at *13 (N.D. Ala. Sept. 9, 2013) (conspiracy claim
against city employees barred by intracorporate conspiracy doctrine because [t] is no allegation
that they conspired with anyone not employed by the City.).

248324.1 19
 DOCUMENT 26

judgment against conspiracy claim against agents and employees of defendant based on the

intracorporate conspiracy doctrine); see also McClurkin v. Ziebach & Webb Timber Co., 666 So.

2d 520, 523 (Ala. Civ. App. 1995) (affirming summary judgment as to conspiracy claim against

forest manager and its agent).

Accordingly, because each of the alleged conspirators identified by Dr. Pouncey acted as

an employee and/or agent of the same entity, the Board, either as a Board member, interim State

Superintendent, or Board Counsel, they were not capable of conspiring together and Dr.

Pounceys conspiracy claim fails as a matter of law. See, e.g., Taylor, 95 F. Supp. 2d at 1317-18.

III. Dr. Pounceys malicious prosecution claim (Count II) fails against the GC
Defendants because none of the GC Defendants initiated a judicial proceeding
against Dr. Pouncey.

The plaintiff in a malicious prosecution case must prove each of the following elements:

1) that a prior judicial proceeding was instigated by the defendant 2) without probable cause and

3) with malice; 4) that that prior proceeding was terminated in the plaintiff's favor; and 5) that

the plaintiff suffered damage[ ] as a result of that prior proceeding. Whitlow v. Bruno's, Inc.,

567 So. 2d 1235, 1237 (Ala. 1990). Such actions are generally disfavored because public

policy requires that all persons shall resort freely to the courts for redress of wrongs and to

enforce their rights, and that this may be done without the peril of a suit for damages in the event

of an unfavorable judgment by jury or judge. Ex parte State Farm Mut. Auto. Ins. Co., 924 So.

2d 706, 71011 (Ala. 2005) (citations omitted).

Dr. Pounceys malicious prosecution claim against the GC Defendants is based on the

Defendants[] actions in initiating an Ethic[s] complaint. (Compl. 52-57). This claim fails as

to Dean, Ward and Crowther based on the first element of that cause of action alone because

248324.1 20
 DOCUMENT 26

there are no factual allegations in the Complaint to support Dr. Pounceys allegation that any of

them instigated or initiated any type of judicial proceeding. 12

First, a complaint made to the Ethics Commission does not qualify as a judicial

proceeding under Alabama law. The Commission has statutory authority to investigate

complaints, see 36254(7), Ala. Code 1975, and to [r]eport suspected violations of [the

ethics] law to the appropriate law-enforcement authorities, see 36254(8), Ala. Code 1975,

but has no independent authority to prosecute or adjudicate. Gibbons v. State Ethics Commn,

827 So. 2d 801, 802-03 (Ala. Civ. App. 2001) (noting that the Ethics Commission does not

perform an adjudicatory function and characterizing Commission as an administrative

agency) (further citations omitted). The Court of Civil Appeals later observed that there is no

Alabama case recognizing a malicious-prosecution claim premised on an administrative

proceeding. Haynes v. Coleman, 30 So. 3d 420, 423-26 (Ala. Civ. App. 2009). Noting that some

jurisdictions may recognize malicious prosecution claims based on an administrative proceeding

in certain situations, the Haynes Court declined to decide whether such a claim could proceed

under Alabama law because, even if we were to recognize such a claim, [the defendant] did not

initiate the administrative proceeding in this case. Id.

Just as in Haynes, neither Dean, Ward, nor Crowther initiated any proceeding in this case.

Assuming, arguendo, that submitting an ethics complaint were considered initiating a judicial

proceeding, a malicious prosecution action must be based on a proceeding initiated by the

defendant. Cutts v. American United Life Insurance Co., 505 So. 2d 1211, 1214 (Ala. 1987)).

12
The GC Defendants do not concede, and expressly contest, that Dr. Pouncey has made
sufficient factual allegations to support the without probable cause and with malice elements
of a malicious prosecution claim. See Whitlow, 567 So. 2d at 1237 (listing elements). The GC
Defendants do not address those elements here because the first element, initiation of a judicial
proceeding, is dispositive in their favor.

248324.1 21
 DOCUMENT 26

Dr. Pounceys Complaint is clear that neither Dean, Ward, nor Crowther contacted the Ethics

Commission about the allegations regarding Dr. Pouncey. (Compl. 29). Neither Ward nor

Crowther are alleged to have had any contact at all with the Ethics Commission. The malicious

prosecution claim as to all of them can be quickly disposed.

As for Dean, the only allegation against her with respect to the Ethics Commission was

that she responded to the Commissions request for a copy of the anonymous letter. In fact, Dean

was legally obligated to comply with that request. See Ala. Code 36-27-17 (attached to Dr.

Pounceys Complaint, regarding cooperation with Ethics Commission); 36-25-4(h)

(Commissions subpoena power and related authority to gather information; 36-25-27

(criminal act to fail to comply with ethics law); see Ex. B (Ethics Commission letter to Dean

confirming that, through her cooperation, the Board has complied with its statutory reporting

duty).

Alabama law is clear, moreover, that a defendants mere giving of information to an

official with the power to issue charges is insufficient to establish that defendant instigated

judicial proceedings. See Haynes, 30 So. 3d at 424-26 (affirming dismissal of malicious

prosecution claim against defendant who allegedly provided information that later led to school

superintendent initiating proceeding against plaintiff) (citing Davis v. Board of Education of St.

Louis, 963 S.W.2d 679 (Mo. Ct. App. 1998) (The general rule is that an individual who merely

provides facts concerning the conduct of another to an officer possessing the authority to issue

charges is not liable for malicious prosecution.)); Ritch v. Waldrop, 428 So. 2d 1, 3 (Ala. 1982)

(where the defendant had given the district attorney information regarding a crime, but left the

decision to prosecute entirely to the uncontrolled discretion of the district attorney, the

defendant had not instigated the criminal proceeding) (citing Alabama Power Company v.

248324.1 22
 DOCUMENT 26

Neighbors, 402 So. 2d 958, 962 (Ala. 1981) (giving information to district attorneys office is

not instigating criminal proceeding); Burch v. City of Florence, 913 F. Supp. 2d 1221, 1250-51

(N.D. Ala. 2012) ([s]etting aside the question of whether obtaining a search warrant is the

institution of a judicial proceeding under Alabama law, defendant to malicious prosecution

claim did not institute a prior judicial proceeding by merely offering a statement to a police

officer, who later obtained a search warrant relating to plaintiff); Escoffier v. Anderson, 557 So.

2d 844, 845 (Ala. Civ. App. 1990) (Furthermore, merely providing, or negligently failing

to provide, law enforcement officials with information is not sufficient to make one accountable

for any prosecution which may result from such limited action.).

Dr. Pouncey acknowledges that the Ethics Commission did not even suggest that an

investigation would be done, which undercuts the element of Dr. Pounceys claim that a judicial

proceeding took place by effectively conceding that Dean did not take any action designed to

initiate a judicial proceeding. (Compl. 31). In any event, even if an ethics complaint could

constitute initiation of a judicial proceeding for purposes of a malicious prosecution claim, it is

clear that Dean (nor Ward or Crowther) did not initiate that ethics complaint. 13 And as Dean was

legally required to cooperate with the Ethics Commission, and Alabama law provides that the

mere giving of information to an officer possessing the authority to issue charges does not equal

liability for malicious prosecution, there is absolutely no basis for holding Dean liable for

13
Dr. Pounceys reliance on Ala. Code 36-25-24(c) does not save his claims for malicious
prosecution or abuse of process. (See Compl. 52, 63). That section provides that no public
employee shall file a complaint or otherwise initiate action against a public official or other
public employee without a good faith basis for believing the complaint to be true and accurate.
(emphasis added). Again, neither Ward nor Crowther had any contact whatsoever with the Ethics
Commission, and Deans limited interaction with the Commission was (a) not initiated by her
and (b) obligated by Deans legal obligation to comply with the Commissions request for a copy
of the letter.

248324.1 23
 DOCUMENT 26

malicious prosecution in this case. For these reasons, Dr. Pounceys malicious prosecution claim

should be dismissed as to each of the GC Defendants.

IV. Dr. Pounceys abuse of process claim (Count III) fails against the GC Defendants
because there was no legal process to abuse and none of the GC Defendants abused
any proceeding involving the Ethics Commission.

Dr. Pounceys abuse of process claim, similar to his claim for malicious prosecution, is

based on his contention that the GC Defendants had an ulterior purpose when they contacted the

Ethics Commission and delivered the anonymous letter to it. (Compl. 59). Again, neither

Ward nor Crowther is alleged to have had any contact with the Ethics Commission. The abuse of

process claim against them can be resolved there. The abuse of process claim against Dean,

based on her delivering a copy of the anonymous letter to the Ethics Commission (in accordance

with the Ethics Commissions request and her statutory obligations), fails for similar reasons as

the malicious prosecution claim.

The elements of an abuse of process claim are: (1) malice, (2) the existence of some

ulterior purpose, and (3) wrongful use of process. Triple J Cattle, Inc. v. Chambers, 621 So. 2d

1221 (Ala. 1993). The basic distinction [between abuse of process and malicious prosecution] is

that malicious prosecution is aimed at a wrong committed in causing the process to be issued

while the latter remedy is for the wrong of improperly using a regularly issued process to

accomplish some ulterior purpose. J. Marsh, Alabama Law of Damages 36:41 (6th Ed. Feb.

2017 Update). A defendant cannot be liable for an abuse of process claim unless [he] somehow

acted outside the boundaries of legitimate procedure after the charge had been filed. Willis v.

Parker, 814 So. 2d 857, 865 (Ala. 2001) (citation omitted).

248324.1 24
 DOCUMENT 26

First, the consideration of a complaint before the Ethics Commission is an administrative

proceeding See Gibbons, 827 So. 2d at 802-03. An administrative proceeding does not qualify as

process for purposes of an abuse of process claim. The Haynes Court observed:

We have found no Alabama case indicating that an abuse-of-process action may

be premised on an administrative proceeding. Although no Alabama case has
directly addressed whether an administrative proceeding may give rise to an
abuse-of-process claim, we note that, in the context of an abuse-of-process claim,
our supreme court has stated: Legal process has been defined in Black's Law
Dictionary (6th ed. 1990) as a summons, writ, warrant, mandate, or other process
issuing from a court. Preskitt v. Lyons, 865 So. 2d 424, 430 (Ala. 2003).

Haynes, 30 So. 3d at 424-26 (emphasis original); see also id. at 427 (Moore, J., concurring in the

result in part and dissenting in part) ([i]n light of this language, ... this court cannot expand an

abuse-of-process claim to an administrative proceeding.); Cooper v. Escambia Cty. Commn,

No. CIV.A. 10-0330-WS-C, 2012 WL 253297, at *12 (S.D. Ala. Jan. 26, 2012) (Steele, C.J.)

(discussing Haynes and other authorities and concluding that an administrative proceeding does

not give rise to an abuse of process claim under Alabama law) (noting that [t]he Alabama

Supreme Court . . . has confirmed in another context that only documents issued by a court can

constitute process.) (citing Ex parte Brooks, 897 So. 2d 1017, 1019 n.1 (Ala. 2004)) (emphasis

added).

Additionally, [t]he complaint contains no factual allegations regarding how [Dean or

any other GC Defendant] abused the administrative process after [someone else], not [Dean],

initiated that process. A defendant cannot be held liable for abuse of process unless he or she

somehow acted outside the boundaries of legitimate procedure after [the initiation of the

proceeding]. Haynes, 30 So. 3d at 424-26 (quoting Hagood, 711 So. 2d at 951). As previously

stated, Dean complied with her legal obligation to cooperate with the Ethics Commission by

responding to the Commissions request for a copy of the anonymous letter. See Ala. Code

248324.1 25
 DOCUMENT 26

36-27-17, 36-25-4(h), 36-25-27; Ex. B. Dr. Pouncey makes no allegations that Dean had any

other contact with the Ethics Commission. There is simply no factual support for the conclusory

statement that Dean, or any other GC Defendant, abused some legal process after it was

initiated (let alone enough factual allegations to satisfy the malice element required for an

abuse of process claim).

Accordingly, Dr. Pounceys abuse of process claim should be dismissed. See Green v.

Alabama Farm Bureau Mutual Casualty Insurance Company, 522 So. 2d 773 (Ala. 1988)

(submitting lawfully required accident report to Alabama Department of Public Safety was not

an abuse of process because that action was required by law and there was no appearance of any

improper purpose); Moon v. Pillion, 2 So. 3d 842, 847 (Ala. 2008) (affirming judgment in favor

of defendant on abuse of process claim where plaintiff was found not guilty in underlying

criminal charge and plaintiff failed to show that defendant pursued the criminal action to obtain

a result which the criminal process was not intended by law to effect) (citing Willis, 814 So. 2d

at 866) (alterations omitted).

V. Dr. Pounceys invasion of privacy claim (Count IV) fails against the GC
Defendants because the GC Defendants did not create the level of publicity
required to maintain a claim, and any information communicated concerned the
public interest.

Under Alabama law, [o]ne who gives publicity to a matter concerning another that

places the other before the public in a false light is subject to liability to the other for invasion of

his privacy, if: (a) the false light in which the other was placed would be highly offensive to a

reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the

falsity of the publicized matter and the false light in which the other would be placed. Butler v.

Town of Argo, 871 So. 2d 1, 12 (Ala. 2003) (quoting Restatement (Second) of Torts 652E

(1977)).

248324.1 26
 DOCUMENT 26

Dr. Pouncey claims that the GC Defendants intentionally publicized false information

about Dr. Pouncey accusing him, among other things, of plagiarizing his dissertation; of

committing ethics violations and crimes; and of being under investigation by the Ethics

Commission. (Compl. 67-68). Again, it is important to understand what each of the GC

Defendants is alleged to have done with respect to the anonymous letter and its allegations and

the Ethics Commission. There is absolutely no allegation that Crowther communicated any

information to anyone. Ward is alleged only to have communicated with someone at Samford

University about the allegations in the letter. (Compl. 32). And Dean is alleged only to have

responded to the Ethics Commissions request for a copy of the anonymous letter, which the

Commission already knew existed.

The limitations of these allegations is critical because it is an integral part to a false-light

claim that the untrue information be publicly communicated. Butler, 871 So. 2d at 12. Meeting

this standard is not easy. Indeed, communication of a fact to a single person or even a small

group of persons is insufficient to show the required publicity element. Id. at 12-14 (publicity

element not satisfied where defendant discussed matters about plaintiff with two police officers

and a few city employees); see also Ex parte Birmingham News, Inc., 778 So. 2d 814, 818 (Ala.

2000). Rather, publicity means that the matter is made public, by communicating it to the

public at large, or to so many persons that the matter must be regarded as substantially certain to

become one of public knowledge. Butler, 871 So. 2d at 13 (emphasis added) (citing

Restatement (Second) of Torts 652D cmt. A); cf. Butler, 871 So. 2d at 14 (On the other hand,

any publication in a newspaper or a magazine, even of small circulation, or in a handbill

distributed to a large number of persons, or any broadcast over the radio, or statement made in an

address to a large audience, is sufficient to give publicity within the meaning of the term as it is

248324.1 27
 DOCUMENT 26

used in this Section. The distinction, in other words, is one between private and public

communication.) (citations omitted).

The allegations as to the GC Defendants do not satisfy the publicity requirement for a

false-light invasion of privacy claim. The delivery of a letter of which the Ethics Commission

already knew existed certainly does not constitute a communication for purposes of such a claim.

Even if it did, the only recipients of information about Dr. Pouncey that Ward and Dean are

alleged to have provided would be (1) someone at Samford regarding Dr. Pounceys dissertation,

and (2) the General Counsel of the Ethics Commission. This is not nearly enough publicity to

support a claim. See Hoover v. Tuttle, 611 So. 2d 290, 292 (Ala. 1992) (no actionable false

light claim where false statements were made in an executive committee meeting); Johnston v.

Fuller, 706 So. 2d 700, 703 (Ala. 1997) (finding insufficient publicity to support an invasion of

privacy claim, and stating, [Defendant] did not broadcast over the radio the information

obtained about [plaintiff], he did not print it in a newspaper, and he did not tell it to a large

number of people.); Cartwright v. Tacala, Inc., No. CIV A 99-W-663-N, 2000 WL 33287445,

at *14 (M.D. Ala. Nov. 1, 2000) (Assuming that the entire staff attended, these communications

were made to approximately eighteen people, including plaintiff. The court concludes that these

communications are of a distinctly different nature from the types of public communications

referred to in the Restatement comment, and that they were not sufficiently public to give rise to

a false light cause of action.).

Additionally, it is black-letter law that [a]n action for invasion of privacy based on false

light cannot relate to any matter which is inherently public or of legitimate interest to the

public. 2 ALA. PERS. INJ. & TORTS 12:28 (2014 ed.); 62A AM. JUR. 2D PRIVACY 6; accord

Minnifield v. Ashcraft, 903 So. 2d 818, 822-23 (Ala. Civ. App. 2004) (There is a legitimate

248324.1 28
 DOCUMENT 26

public interest exception to the right to privacy.). Consistent with this principle, numerous

courts have held that there can be no false light invasion of privacy for matters involving

official acts or duties of public officers. Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781,

789 (Ariz. 1989). Where the operation of laws and activities of the police or other public bodies

are involved, the matter is within the public interest. Hagler v. Democrat- News, Inc., 699 S.W.

2d 96, 99 (Mo. Ct. App. 1985). This is particularly so with respect to governmental

investigations: where an incident is a matter of public interest, or the subject matter of a public

investigation, a publication in connection therewith can be a violation of no ones legal right of

privacy. Wilson v. Thurman, 445 S.E. 2d 811, 814 (Ga. Ct. App. 1994). These principles mean

that, even assuming the facts asserted in the Complaint were true, Dr. Pouncey cannot show any

circumstances that would entitle him to relief for false-light invasion of privacy. The alleged

statements concerned the subject matter of a public investigation as to one of the candidates

for the highest education office in the State, so the incident was inherently a matter of public

interest and thus not within Dr. Pounceys legal right of privacy. Id. Dr. Pounceys invasion

of privacy claim fails as a result.

VI. Dr. Pounceys defamation claim against Ward (Count VI) fails because Ward did
not act maliciously and because he was privileged to communicate with Samford
University.

In Count VI, Dr. Pouncey asserts a claim for defamation against Ward based on Wards

allegedly contacting Samford University [on July 20, 2016] and stating that Dr. Pouncey had

plagiarized his doctoral dissertation. (Compl. 32, 80). In truth, Ward merely contacted

Samford to learn whether it had an ability to address the allegations regarding Dr. Pounceys

dissertation. See Ex. C. Nonetheless, even if Dr. Pounceys mischaracterization were taken as

true for purposes of this motion to dismiss, his defamation claim still fails.

248324.1 29
 DOCUMENT 26

It is clear from his complaint that Dr. Pouncey is a public official (the Superintendent of

the Jefferson County School system), who had previously held public official positions with the

Department, and who was a candidate for the State Superintendent of Education. (See Compl.

1). For a public official like Dr. Pouncey to prevail in a defamation action, he must show clear

and convincing proof of actual malice, i.e., a showing of either knowledge of falsity or reckless

disregard for the truth, regardless of whether the statement is false and defamatory. Mead Corp.

v. Hicks, 448 So. 2d 308, 310, 313 (Ala. 1983). Dr. Pouncey cannot make that showing when he

has attached, as evidence to support his Complaint, letters from two former Department of

Education employees wherein they not only do not dispute that the emails attached to the

anonymous letter were true, but wherein they admit that during the work day and during their

own time they helped Dr. Pouncey with his dissertation and doctoral work. See supra note 2.

Emails involving those same employees were attached to the anonymous letter. See Ex. A. This

suggests that there was at least some merit to the allegations in the anonymous letter. See id. In

light of the anonymous letters claims and Dr. Pounceys own evidence attached to his

Complaint that tends to corroborate some aspects of the anonymous letter, there is no basis for

Dr. Pounceys claim that Ward acted with either knowledge of falsity or reckless disregard for

the truth.

Further, Wards memorandum to Dean displays a good faith effort to determine the most

appropriate way to evaluate the allegations against Dr. Pouncey. In fact, Ward asserted it would

be fair and worthwhile to provide Dr. Pouncey with the opportunity to respond, something the

Board was not legally required to do. See Ex. C; see also Gibson v. Abbott, 529 So. 2d 939, 941-

42 (Ala. 1998) (ABI officers qualifiedly privileged as to any allegedly tortious statements while

acting in their capacity as state employees; holding that plaintiff could not show actual malice

248324.1 30
 DOCUMENT 26

where he did not allege any prior acts of ill will or hostility; any threats; other actions; or any

former libels or slanders or the like on the part of any of the defendants. While this list of things

suggesting malice cannot be said to be all inclusive, we can be sure that no such allegations were

included in [plaintiffs] pleadings, and, therefore, we must assume that no proof of such things

was forthcoming.); Camp v. Correctional Med. Servs., Inc., 668 F. Supp. 2d 1338, 1363-64

(M.D. Ala. 2009) (qualified privilege applied where alleged defamatory statements by

Department of Corrections Associate Commissioner were ones in which both parties to the

communication had an interest, i.e., hiring qualified personnel to work in the Alabama prisons);

Conley v. Southern Import Sales, Inc. 382 F. Supp. 121, 125 (M.D. Ala. 1974) (clients report to

bar association of attorneys unethical conduct protected by qualified privilege) (citations

omitted).

Additionally, a qualified privilege protects a defendant who makes a communication,

and such communication is prompted by duty owed either to the public or to a third party, or the

communication is one in which the party has an interest, and it is made to another having a

corresponding interest . . . if made in good faith and without actual malice. Kirby v. Williamson

Oil Co., 510 So. 2d 176, 179 (Ala. 1987) (The duty under which the party is privileged to make

the communication need not be one having the force of legal obligation, but it sufficient if it is

social or moral in its nature and defendant in good faith believes he is acting in pursuance

thereof, although in fact he is mistaken.) (citation omitted); Fulton v. Advertiser Co., 388 So. 2d

533, 537 (Ala. 1980) (the question of whether an utterance was privileged is a matter of law to be

determined by the court).

Ward is not alleged to have publicized anything about the letter to anyone except

someone at Samford University, with whom he discussed, among other things, whether Samford

248324.1 31
 DOCUMENT 26

had a procedure for conducting an internal investigation as to a graduates dissertation efforts.

See Ex. C. Whether that communication was couched as stating that Dr. Pouncey had

plagiarized his doctoral dissertation, as alleged by Dr. Pouncey, or as merely calling Samford to

discuss the allegations in a private manner in a way that could help all parties understand

whether the allegations had any merit, it is plain that both Ward (on behalf of the Department)

and Samford (which is inherently interested in the integrity and reputation of its degrees and

graduates) had legitimate interests in discussing the allegations together. See Willis v. Demopolis

Nursing Home, Inc., 336 So. 2d 1117, 1120 (Ala. 1976) (the test for determining a qualified

privilege is whether the communication involved was prompted by a social, moral, or legal duty

owed to the public or a third party or is one made between two parties with corresponding

interests). Accordingly, Wards discussion with Samford was protected by qualified privilege.

For this reason, too, Dr. Pounceys defamation claim against Ward should be dismissed. 14

VII. Dr. Pounceys outrage claim (Count VII) fails against the GC Defendants because
the allegations against the GC Defendants come nowhere near the level of
extreme and outrageous conduct required to support such a claim.

To state a claim for the tort of outrage, a plaintiff must demonstrate that the defendants

conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused

emotional distress so severe that no reasonable person could be expected to endure it. Little v.

Robinson, 72 So. 3d 1168, 1172 (Ala. 2011) (internal quotation marks omitted). The tort of

outrage does not recognize recovery for mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities. Am. Road Serv. Co. v. Inmom, 394 So. 2d 361, 36465 (Ala.

14
Dr. Pouncey does not purport to state a defamation claim against Dean or Crowther.

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1980). 15 Outrage is a very limited cause of action that is available only in the most egregious

circumstances. Thomas v. BSE Indus. Contractors, Inc., 624 So. 2d 1041, 1044 (Ala. 1993)

(citing nineteen cases in which the Alabama Supreme Court has held in a large majority of the

outrage cases reviewed that no jury question was presented). The tort of outrage is not a

panacea for all lifes ills. U.S.A. Oil, Inc. v. Smith, 415 So. 2d 1098, 1101 (Ala. Civ. App.

1990).

Dr. Pounceys outrage claim merely recites the elements of the cause of action and re-

alleges all prior paragraphs of the Complaint. As discussed above, the allegations against Dean,

Ward, and Crowther are extremely limited. Dean complied with a legal obligation to cooperate

with the Ethics Commission when, at the General Counsels request, she provided a copy of the

anonymous letter to the Commission. Ward contacted Samford University about the allegations

in the letter and drafted a memorandum to Dean analyzing the best ways to evaluate the

allegations against Dr. Pouncey. And Crowther is not alleged to have taken any specific action at

all.

Against this factual backdrop, it is clear that Dr. Pouncey has failed to state a claim for

outrage against the GC Defendants. Indeed, the Alabama Supreme Court has recognized outrage

claims only in very specific circumstances: (1) wrongful conduct in the family-burial context; (2)

barbaric methods employed to coerce an insurance settlement; (3) egregious sexual harassment;

and (4) against a family physician who, when asked by a teenage boys mother to counsel the

boy concerning his stress over his parents divorce, instead began exchanging addictive

prescription drugs for homosexual sex for a number of years, resulting in the boy's drug

15
Furthermore, when a claim of outrage is made by a public figure, the principles of defamation
of a public figure (i.e., requiring actual malice) control. See Finebaum v. Coulter, 854 So. 2d
1120, 1124 (Ala. 2003) (citations omitted).

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addiction. See Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011) (citations omitted).

While the court has indicated that the tort of outrage is not limited to these circumstances, Little,

72 So. 3d at 1172-73, they are markedly different from in kind and degree from the incidents

giving rise to this case, and [Dr. Pouncey has] not presented evidence to the court to make such a

broad deviation from Alabama case law. . . .J.W. v. Birmingham Bd. of Educ., No. 10-cv-03314,

2015 U.S. Dist. Lexis 153196, at *99-101 n.59 (N.D. Ala. Sept. 30, 2015) (emphasis added). Dr.

Pounceys outrage claim against the GC Defendants should be dismissed.

VIII. Dr. Pounceys claim for negligent, wanton, reckless and/or intentional
misconduct (Count VIII) fails against the GC Defendants because he has failed to
allege sufficient factual support for such a claim.

Dr. Pounceys final claim is a claim for negligent, wanton, reckless and/or intentional

misconduct, in which he restates his contention that the GC Defendants conducted an unlawful

scheme to ruin Dr. Pounceys name. (Compl. 90). To the extent this catch-all cause of action

constitutes an independent claim, there are insufficient facts pleaded in the Complaint to support

accusations of wrongful conduct of any kind by Dean, Ward, or Crowther, as discussed at length

above.

Even more problematic for Dr. Pouncey is that his vague claim fails to identify what

conduct is allegedly intentional, what conduct is allegedly wanton, what conduct is

allegedly reckless, what conduct is allegedly negligent, and which [GC Defendant] allegedly

committed the conduct falling into each those categories. Dysart v. Trustmark Nat. Bank, No.

CV-13-BE-2092-S, 2014 WL 1765120, at *9 (N.D. Ala. Apr. 30, 2014). In any event, Dr.

Pouncey has alleged no facts to show that the GC Defendants intentionally or recklessly

disregarded his rights so as to support a wantonness or willfulness claim. See Ex parte Capstone

Bldg. Corp., 96 So. 3d 77, 84 (Ala. 2012). Further, a plaintiff seeking to impose liability on a

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 DOCUMENT 26

defendant for negligence or wantonness must demonstrate the existence of a duty. Dolgencorp,

Inc. v. Taylor, 28 So. 3d 737, 746 (Ala. 2009); Alabama Power Co. v. Laney, 428 So. 2d 21, 22

(Ala. 1983) (There must be a duty owing from the defendant to the plaintiff to successfully

prove the negligence or wantonness of another. If there is no duty, there is no cause of action.).

Dr. Pouncey has not alleged that the GC Defendants owed him any duty at all, let alone how

such a duty could have been owed, or breached.

This vague, unsupported catch-all claim should be dismissed with prejudice. See Ex parte

State Farm Mut. Auto. Ins. Co., 924 So. 2d 706, 71011 (Ala. 2005) ([The] public policy

disfavoring malicious-prosecution actions also disfavor[s] bringing claims arising out of facts

within the ambit of malicious prosecution but couched in other terms, especially general

allegations of negligence, willfulness, or wantonness.) (emphasis original) (citing Ex parte

Tuscaloosa County, 770 So. 2d 602, 605 (Ala. 2000)).

Conclusion

It is clear from his Complaint that Dr. Pouncey is looking for someone to blame for his

perception that the anonymous letter cost him the State Superintendent job. Dean, Ward, and

Crowther simply are not those persons. The GC Defendants took narrow and considered action

in the scope of their roles as Counsel when confronted with serious allegations presented about

one of the candidates for State Superintendent. These actions were entirely consistent with the

responsibilities they had been given to assist with the selection process. There is no factual

support for Dr. Pounceys conclusory claims that the GC Defendants had anything to do with his

alleged injuries.

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 DOCUMENT 26

Accordingly, based on the principles of State agent immunity and on Dr. Pounceys

failure to state a claim, as set forth above, Dr. Pounceys claims against Dean, Ward, and

Crowther are due to be dismissed with prejudice.

Respectfully submitted this the 7th day of April, 2017.

/s/ G. Lane Knight

One of the Attorneys for Juliana Teixeira Dean,
James R. Ward, III and Susan Tudor Crowther

OF COUNSEL:

David R. Boyd (DRB005)

E-mail: dboyd@balch.com
Dorman Walker (WAL086)
E-mail: dwalker@balch.com
G. Lane Knight (KNI028)
E-mail: lknight@balch.com
BALCH & BINGHAM LLP
Post Office Box 78
Montgomery, AL 36101-0078
Telephone: (334) 834-6500
Facsimile: (334) 269-3115

Edward Hamilton Wilson, Jr.

E-mail: hwilson@ball-ball.com
Ball Ball Mathews & Novak, PA
P.O. Box 2148
Montgomery, Alabama 36102
Telephone: (334) 387-2887
Facsimile: (334) 387-3222

248324.1 36
 DOCUMENT 26

CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing with the Clerk of the Court
using the AlaFile system which will send notification of such filing and/or that a copy of the
foregoing has been served upon the following by placing a copy of same in the United States
mail, properly addressed and postage prepaid, on this the 7th day of April, 2017:

Kenneth J. Mendelsohn
JEMISON & MENDELSOHN
1772 Platt Place
Montgomery, Alabama 36117
E-mail: Kenny@jmfirm.com

/s/ G. Lane Knight

Of Counsel

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