Lewis v. McCall

Decision Date05 February 2016
Docket NumberCase No. 3:15-cv-112-WKW-PWG
PartiesMORRIS LEWIS, et al., Plaintiffs, v. HUGH MCCALL, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

MORRIS LEWIS, et al., Plaintiffs,
HUGH MCCALL, et al., Defendants.

Case No. 3:15-cv-112-WKW-PWG


February 5, 2016


This case arises out of claims by Plaintiffs Morris Lewis and Lewis Transportation (collectively referred to hereinafter as "Lewis") that the Defendants have engaged in discriminatory assignments of tow-truck jobs and have ultimately removed Lewis Transportation from the rotations list for such assignments. The following are named as Defendants: Hugh B. McCall, the Director of the Alabama Department of Public Safety ("Department"); Post Commander Sergeant McWaters; Lieutenant Suzanne Capps; Captain Ron Short; and Major Kerry Chapman. Defendant McCall is sued only in his official capacity while the remaining defendants are sued both their individual and official capacities.

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Lewis's Complaint is the operative pleading. (Doc. 1). Therein, Plaintiff seeks to state federal claims arising out of both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, by and through the remedial vehicle of 42 U.S.C. § 1983.1 Before the court is Defendants' motion to dismiss the Complaint. (Doc. 8). For the reasons stated herein, the Magistrate Judge RECOMMENDS that Defendants' motion to dismiss is due to be GRANTED in part and DENIED in part.


Subject matter jurisdiction over Lewis's federal claims is conferred by 28 U.S.C. § 1331. The parties do not dispute venue or personal jurisdiction, and there are adequate allegations in Lewis's Complaint to support both. On October 21, 2015, this matter was referred to the undersigned by Chief U.S. District Judge W. Keith Watkins for disposition or recommendation on all pretrial matters. (Doc. 20). See also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.; United States v. Raddatz, 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507 (11th Cir. 1990).

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Lewis brings claims for denial of equal protection (Counts One and Two) and denial of procedural due process (Count Three).


Morris Lewis, an African-American male, owns Lewis Transportation, a towing service contractor. (Doc. 1 at ¶¶ 1-2, 10, 17, and 20). Lewis brought a federal lawsuit in 1991 in this court against the Alabama Department of Public Safety ("Department") and several individual Department representatives, Lewis v. Alabama Department of Representatives, No. 91-D-1463-E (M.D. Ala. filed on December 3, 1991) (hereinafter referred to as "Lewis I"). (Id. at ¶ 11). As explained by United States District Judge Ira Dement in a Memorandum Opinion filed on August 10, 1993:

The State of Alabama requires that each trooper post maintain a list of wrecker operators which troopers call on a rotating basis when the owner of a motor vehicle is unable to make a decision about a wrecker service to tow his vehicle. The wrecker operators are private companies with no affiliation with the [Department]. The [Department] has adopted rules and regulations, the requirements of which wrecker operators must meet in order to be included on the list. One of the regulations adopted by the Department [in 1987] is the requirement that the operator not be convicted of a felony or misdemeanor involving force, violence or moral turpitude.

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(Lewis I, Doc. 37 at p. 1).

Lewis applied in 1990 with the Department for his tow truck company to be placed on the list of wrecker operators. (Id. at 1). However, his "application was denied" because he "had been convicted of five worthless check violations which have been held by the Supreme Court of Alabama to involve moral turpitude." (Id. at pp. 1-2). Lewis claimed that the Department's regulation requiring that the wrecker operator not be convicted of a misdemeanor involving moral turpitude violated his equal protection rights under the Fourteenth Amendment. (Id. at p. 3). Judge Dement concluded that the regulation was unconstitutional in violation of the Equal Protection Clause for two reasons: (1) the regulation's "across the board prohibition against placing people on the rotation list who are misdemeanants and who have been convicted of crimes against 'moral turpitude' . . . is both over and under inclusive"; and (2) "[t]he regulation is enforced differently against people who apply with convictions and those who are convicted of such a misdemeanor or even a felony after being placed on the list." (Id. at 5).3

Lewis states in his current lawsuit that, with respect to the assignment of tow truck jobs, "the State of Alabama by and through individual actors under color of

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state law continue to violate Lewis' constitutional rights to be free of race discrimination, arbitrary/capricious decisions and deprivation of procedural due process." (Doc. 1 at ¶ 11). According to Lewis, "[t]he State of Alabama establishes rules and regulations for placement on the [assignment] list and requirements to stay on the list." (Id. at ¶ 34). The Defendants, who are members of the Department and collectively identified by Lewis as the Alabama State Troopers, "are the sole assignors of Tow truck Activities on Alabama interstate, county and state roads." (Id. at ¶ 10). The Alabama State Troopers, however, have "failed to follow their own internal regulations as to the order of the list, inclusion upon the list, and all rights and privileges during the appeals process where Lewis was removed from the list." (Id.).

Specifically, from 2009 until the present, Lewis became aware that the "Alabama State Troopers began to change the order for Tow Truck Activity assignments." (Id. at ¶ 10). Lewis complained on multiple occasions during this time frame that the tow truck assignments were made in a racially discriminatory manner which, in turn, caused economic harm to Lewis. (Id. at ¶¶ 10, 12). While Lewis was at all relevant times qualified for the assignment list, the Alabama State Troopers "systematically removed or diverted the order of Lewis calls" and acted "through selective enforcement" to remove Lewis from the assignment list. (Id. at ¶ ¶ 12, 19).

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Defendants McWaters, Capps, Chapman, and Short are Caucasian and engaged in this conduct to remove Lewis from the list. (Id. at ¶ 21). Defendant McCall, an African-American male, "chose to ratify the conduct of the discriminatory officers under his supervision." (Id. at ¶ 21). According to Lewis, "Caucasian tow truck drivers and Caucasian companies were not punished for violating the same procedures wherein Lewis, the African American was removed from the list." (Id. at ¶ 12).4

Lewis appealed the decision of the Alabama State Troopers to remove him from the assignment list. (Id. at ¶¶ 14-15, and 25). A hearing with respect to Lewis's appeal was conducted in September, 2014, at which Defendant Short indicated that Lewis's removal from the list was inappropriate. (Id. at ¶15). Defendant Short further stated that Lewis could stay on the list during his appeal. (Id. at ¶ 25). However, at no time following his removal from the list has Lewis been returned to the assignment list. (Id. at ¶ 15). According to Lewis, the Alabama State Troopers "failed to provide a hearing where the result was determined by the evidence presented at the hearing" and instead "applied a more onerous standard to Lewis than other tow truck drivers." (Id. at 36).

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A Rule 12(b)(6) motion to dismiss tests the sufficiency of the Complaint against the legal standard set forth in Rule 8: "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).

When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take "the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff." Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 663 (alteration in original) (citation omitted). "[F]acial plausibility" exists "when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The standard also "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence" of the claim. Twombly, 550 U.S. at 556. While the complaint need not set out "detailed factual allegations," it must provide sufficient factual amplification "to raise a right to relief above the speculative level." Id. at 555.

"So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, 'this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.'" Twombly, 550 U.S. 558 (quoting 5 Wight & Miller § 1216, at 233-34 (quoting in turn Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D. Haw. 1953)) (alteration original). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal,...

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