Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 1 of 44

Case No. 2:25-cv-00429-MHT-SMH

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

REAR ADMIRAL W. KENT DAVIS (RET.),

Plaintiff,

v.

KAY E. IVEY, in her individual capacity and her official capacity as

Governor of the State of Alabama,

Defendant.

Plaintiff’s Brief in Opposition to Defendant’s Motion to Dismiss

Kenneth J. Mendelsohn
Counsel for Plaintiff

JEMISON & MENDELSOHN, P.C.

1772 Platt Place
Montgomery, AL 36117
(334) 213-2323
kenny@jmfirm.com
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 2 of 44

TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………...………………2
TABLE OF AUTHORITIES…………………………………………………………………..3
INTRODUCTION…………………………………………………………………………….8
FACTS…………………………………………………………………….…………………..8
MOTION TO DISMISS STANDARD………………………………….………..………….15
ARGUMENT…………………………………………………………………..…….………15
I. Count One---Davis’s First Amendment Retaliation Claim…………………………...16
II. Count Two---Davis’s Procedural and Substantive Due Process Claim…….….……20
III. Davis is Entitled to Injunctive Relief on His Federal Claims (Counts I and II)……..26
IV. Davis is Entitled to Declaratory Judgment/Injunctive Relief………………….…….27
V. Supplemental Jurisdiction Is Not at Issue…………………………………...……….27
VI. Counts Four through Eight - Davis’s State-Law Claims………….………...………..27
A. Ivey Did Not Have the Authority to Terminate Davis…………………...……….28
B. Ivey is not afforded State Immunity ………………………………………...……28
C. Ivey is not afforded State-Agent Immunity……………………………………….33
D. Ivey in her Individual Capacity is Liable for Monetary Damages
(Counts Four and Five)…………………………………………………..………35
E. Ivey Retaliated Against Davis in Violation of Alabama Code § 36-25-24…...…..37
F. Davis Stated a Valid Claim for Wrongful Termination (Count Five)……...……..38
G. Davis Stated Valid Claims for Invasion of Privacy and Defamation
(Counts Six and Seven)…………………………………………..………………..40
H. Ivey Can Be Held Liable for Intentional Interference (Count Eight)……….…….41
CONCLUSION ………………………………………………………………………………….43
CERTIFICATE OF SERVICE…………………………………………………………………...44

2
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 3 of 44

TABLE OF AUTHORITIES

CASES

Alabama Dep't of Transp. v. Harbert Int'l, Inc.,

990 So.2d 831, 840 (Ala.2008)………………………………………….……………… 29

Barnes v. Dale,
530 So. 2d 770, 781 (Ala. 1988)………………………….………………..…….28, 31, 32

Barnhart v. Ingalls,
275 So. 3d 1112 (Ala. 2018)………………………………………………………..……36

BellSouth,
814 So.2d at 214…………………………………………………………………………41

Bias v. Cenlar Agency, Inc.,

No. 2:15-CV-00768-SGC, 2018 WL 2365428, at *5 (N.D. Ala. May 24, 2018)………..40

Birmingham v. Graffeo,
551 So. 2d 357, 364 (Ala. 1989)………………………………………..……………21, 22

Brown v. Georgia Dept. of Revenue,

881 F.2d 1018, 1025 (11th Cir. 1989)………………………..………………………….20

Carruth v. Bentley,
942 F.3d 1047, 1054 (11th Cir. 2019)……………………………………………..…….20

Cleveland Board of Education v. Loudermill,

470 U.S. 532, 538 (1985)……………………………………………………...……..21, 22

Coleman v. City of Dothan,

598 So.2d 873, 875 n. 2 (Ala.1992)……………………………………….……………..30

Cooper v. Smith,
1:12-CV-889-WKW, 2013 WL 252382, at *2 (M.D. Ala. Jan. 23, 2013)………………30

DeStafney v. University of Alabama,

413 So.2d 391, 393 (Ala.1981)………………………………………………………31, 32

Elmore v. Fields,
45 So. 66, 67 (Ala. 1907)……………………………………………………...…………29

Ex parte Alabama Dept. of Mental Health and Retardation,

837 So. 2d 808, 814 (Ala. 2002)…………………………………………………………35

3
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 4 of 44

Ex parte Butts,
775 So.2d 173, 177 (Ala.2000)………………………………………...…...………. 33, 35

Ex parte Cranman,
792 So.2d 392 (Ala.2000)………………………………………………...………….29, 33

Ex parte Davis,
930 So. 2d 497, 500 (Ala. 2005)………………………………………...……………….29

Ex parte Estate of Reynolds,

946 So.2d 450, 452 (Ala.2006)…………………………………………………………..33

Ex parte Haralson,
853 So. 2d 928, 933 (Ala. 2003)………………………………………………...……….30

Ex parte Lawley,
38 So. 3d 41, 43–44 (Ala. 2009)………………………………….………………….31, 33

Ex parte Pinkard,
373 So. 3d 192, 199 (Ala. 2022)……………………………...…………...……..29, 36, 37

Foulke v. Weller,
2024 WL 2761778, at *5………………………………………….……………………..19

Giambrone v. Douglas,
874 So. 2d 1046, 1052 (Ala. 2003)………………………………………………………33

Gill v. Sewell,
356 So.2d 1196, 1198 (Ala.1978)…………………………………………..……28, 31, 32

Hardric v. City of Stevenson,

843 So. 2d 206, 210 (Ala. Civ.App. 2002)………………………………………………39

Kirkpatrick v. Geneva Cnty. Bd. of Educ.,

2015 WL 5853778, at *3 (M.D. Ala. Oct. 6, 2015)…………………………….……16, 19

Lumpkin v. Cofield,
536 So.2d 62, 65 (Ala.1988)…………………………………………………………31, 32

Lyons v. River Road Constr., Inc.,

858 So.2d 257, 261 (Ala.2003)…………………………………………………..…..28, 32

Mitchell v. Town of Hayneville, Alabama,

2020 WL 7480551, at *9 (M.D.Ala. Dec. 18, 2020)………………………..………….. 39

4
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 5 of 44

Ohio Valley Conf. v. Jones,

385 So. 3d 948 (Ala. 2023)……………………………………...…………...…………..36

Patton v. Black,
646 So.2d 8, 10 (Ala.1994)………………………………………………………………35

Pennington v. Taylor,
776 F. Supp. 3d 1118, 1141–42 (M.D. Ala. 2025)…………………………...………….19

Phillips v. Thomas,
555 So. 2d 81, 83 (Ala. 1989)…………………………………………………..……31, 32

Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, Will Cnty., Illinois,
391 U.S. 563, 574 (1968)…………………………………………………...……16, 17, 18

Raley v. Main,
987 So. 2d 569, 575 (Ala. 2007)……………………………………..…………………..28

Regions Bank v. Plott,

897 So. 2d 239, 244 (Ala. 2004)…………………………………………...…………….40

Riley v. Cornerstone Community Outreach, Inc.,

57 So. 3d 704 (Ala. 2010)……………………………………………...………….8, 25, 26

Sellers v. Nationwide Mut. Fire Ins. Co.,

968 F.3d 1267, 1273 (11th Cir. 2020)……………………………………….…………..27

St. Clair County v. Town of Riverside,

272 Ala. 294, 296, 128 So.2d 333, 334 (1961)………………………………………31, 32

State ex rel. Gray v. King,

395 So. 2d 6, 7 (Ala. 1981)……………………………………………………...……….39

Summit Med. Assocs. v. Pryor,

180 F.3d 1326, 1337, 1338 (11th Cir. 1999)……………………………….……………26

Taylor v. Troy State Univ.,

437 So.2d 472, 474 (Ala.1983)…………………………………………………………..29

Terry v. RCHP-Florence, LLC,

671 F. Supp. 3d 1321, 1325 (N.D. Ala. 2023)……………………...………………..41, 42

The Bd. of Regents of State Colleges v. Roth,

408 U.S. 564, (1972)……………………………………………………………………..21

Unzicker v. State,

5
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 6 of 44

346 So.2d 931, 933 (Ala.1977)………………………………………………………31, 32

Wal-Mart Stores, Inc. v. Smitherman,

872 So. 2d 833, 840 (Ala. 2003)…………………………………………………………41

Wells v. McCovery,
No. 2:22CV600-MHT, 2025 WL 2423744, at *1 (M.D. Ala. Aug. 21, 2025)…………..15

White v. Birchfield,
582 So.2d 1085, 1088 (Ala. 1991)……………………...………………………..30, 31, 32

White Sands Group, L.L.C. v. PRS II, LLC,

32 So. 3d 5, 14 (Ala. 2009)………………………………………………………………41

6
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 7 of 44

STATUTES

ALA. CODE § 6-5-182…………………………………………………………………………..40

ALA. CODE § 31-5-2………………………………………………………….………………….8

ALA. CODE § 31-5-3…………………………………………………………..…………………8

ALA. CODE § 31-5-6……………………………..………8, 12, 14, 15, 18, 19, 20, 22, 25, 26, 39

ALA. CODE § 36-1-12……………………………………………………………….………….33

ALA. CODE § 36-16-7………………………………………………………………………15, 20

ALA. CODE § 36-25-17 …………………………………………………………...……11, 37, 38

ALA. CODE 1975 § 36-25A………………………………………………...………………12, 13

ALA. CODE § 36-25-24………………………………………………………...……………….37

ALA. CODE § 36-25-27……………………………………………………………………..37, 38

ALA. CONST. art. I, § 14……………………………………………………………28, 29, 31, 32

ALA. CONST. art. V, § 113……………………………………………..………………………24

ALA. CONST. art. V, § 120………………………………………..…………………8, 25, 26, 31

Act 2024- 412………………………………………………………...………………………….10

7
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 8 of 44

INTRODUCTION

The Office of Governor does not come with a crown. Yet the focus of Ivey’s treatment of

Davis and her Motion to Dismiss are based on her idea that she has the “supreme executive power”

to decide what she thinks is best regardless of what the U. S. Constitution or state laws require. As

anyone who passed sixth grade civics knows, there are 3 separate branches of government and

Ivey’s role as Governor was to execute the laws, not disregard them. ALA. CONST. art. V, § 120.

Ivey tries to support her claim through the case of Riley v. Cornerstone Community Outreach, Inc.,

57 So. 3d 704 (Ala. 2010). As will be discussed in detail below, that case does not give a governor

unbridled authority to violate the law. Importantly, in that case the court recognized that the

“governor obviously is not a king” Id. at 729. So too, Ivey is not the Queen of Alabama. She is an

elected official charged with the responsibility to uphold the laws, not violate them.

FACTS

Davis set out detailed facts in paragraphs 5 through 52 of his Complaint (Doc 1) In response

to Ivey’s Motion to Dismiss (Doc 12), Davis will point out the pertinent facts below.

In 1945, the Alabama Legislature created the State Department of Veterans' Affairs, to

operate under a State Board of Veterans' Affairs ("SBVA") and to be headed by a State Service

Commissioner. Code of Alabama § 31-5-2. (Doc. 1, ¶ 5) Per this statute, the Governor served as

chair of the Board and along with several appointed representatives of the state’s veteran

community. Code of Alabama § 31-5-3. (Doc. 1, ¶ 6) Pursuant to Code of Alabama § 31-5-6 the

SBVA had the duty “to appoint a State Service Commissioner who shall serve for a term of four

years subject to removal by the State Board for cause .... " (Doc. 1, ¶ 7)

8
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 9 of 44

In 2019, Davis was appointed Commissioner by the SBVA. In 2022, Davis was

unanimously reappointed by the SBVA to a second four-year term that began in February 2023.

As a matter of law, Davis was not appointed nor hired by Ivey and did not serve at Ivey 's pleasure.

(Doc. 1, ¶ 8)

During Davis’s second term, the ADVA received $5 million in American Rescue Plan Act

("ARPA") funds to address veterans mental health needs in its State Veterans Homes. (Doc. 1, ¶ 9)

In June 2023, the Alabama Department of Finance approached the ADVA regarding an additional

$2 million in funds available for veterans' mental health. (Doc. 1, ¶ 10)

The Alabama Department of Mental Health ("ADMH") was consulted and advised using a

Request for Proposals (RFP) process and also indicated they were open to the idea of administering

the grants and suggested an interagency agreement. (Doc. 1, ¶ 11) Thereafter, the ADVA signed a

Memorandum of Agreement (MOA) with the ADMH for assistance in administering the grant

program based on its experience, expertise, and knowledge of administering grant programs with

ARPA funds; the entire $7 million in grant funds were thus transferred to ADMH. (Doc. 1, ¶ 12)

The ADVA regularly communicated, worked, and met with representatives of the ADMH during

the following months to discuss the grant program. (Doc. 1, ¶ 16)

Unbeknownst to Davis at the time, ADMH Commissioner Kim Boswell became upset

about the amount of work for her department under the MOA and the fact that she did not like

some of the grant recipients. Also unbeknownst to Davis, Commissioner Boswell became upset

with John Kilpatrick, an SBVA member and official affiliated with two potential grant recipients.

(Doc. 1, ¶ 20) Although there was a dispute resolution process required by the ADVA-ADMH

MOA, Commissioner Boswell ignored the procedure and presented Commissioner Davis with a

termination letter of the MOA with agency counsel Beverly Gebhardt present. The ADMH never

9
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 10 of 44

had made any indication of any issues or concern with the grant program to Davis prior to the

termination letter, including during an extensive April 2 meeting. Also, unbeknownst to Davis,

Commissioner Boswell sent a copy of the termination letter listing serious but false allegations to

the Alabama Department of Finance. (Doc. 1, ¶ 21)

Following the termination of the MOA, the ADMH returned the $7 million of ARPA funds

to the ADVA. (Doc. 1, ¶ 22) In turn, the ADVA transferred the entire $7 million of ARPA funds to

the Finance Department. (Doc. 1, ¶ 29)

Since Boswell and ADMH at the last minute refused to serve as grant administrator and

destroyed the ADVA’s obligations to provide funds to the grant recipients that had already been

selected and notified of their awards, Davis sought to find an alternate solution to provide grant

funds to the intended veterans' mental health programs. (Doc. 1, ¶ 22) Davis was aware that Troy

University had its own grant program which provided the expertise and capability to administer

sizeable grants. Therefore, Davis contacted Troy and it agreed to serve as the grant administrator.

Troy and the ADVA entered into an MOA. (Doc. 1, ¶ 23) Also, Davis was able to convince the

Alabama State Legislature to appropriate sufficient funds through Senate Bill 66 to authorize the

ADVA to utilize Veterans Assistance Fund dollars as an alternate option for funding the grant

program. SB66 received final legislative passage on May 8. It became a law when signed by

Governor Ivey on May 17, 2024, making it Act 2024- 412. (Doc. 1, ¶ ¶ 24, 25)

Finance Director Bill Poole informed Davis that Finance had looked into the allegations

against him and the SBVA regarding the grant program and found that the procedures they used

were good. Director Poole also commended Commissioner Davis for finding alternate funding for

the grant program. (Doc. 1, ¶ 28)

10
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 11 of 44

On July 9, 2024, before a quarterly meeting of the SBVA in Enterprise, Alabama, Davis

was approached by 3 members of the SBVA who expressed to Davis what they characterized as

ethics concerns surrounding the actions of various external parties, including ADMH

Commissioner Boswell, who had been involved in the ARPA grant program and other veteran

mental health issues. (Doc. 1, ¶ 30) Alabama Code § 36-25-17 (a), a section of the Alabama Code

of Ethics for Public Officials, provides that "[ e ]very governmental agency head shall within 10

days file reports with the commission on any matters that come to his or her attention in his or her

official capacity which constitute a violation of this chapter." Pursuant to that requirement, and

after speaking with additional witnesses, on July 22, 2024, Davis filed an Ethics Complaint against

ADMH Commissioner Boswell and others. (Doc. 1, ¶ 31)

On August 27, 2024, the Ethics Commission notified Commissioner Davis that it was

dismissing the ethics complaint but thanked him for understanding his obligation under Alabama

Code §36-25-17(a) to report the entire issue to them. (Doc. 1, ¶ 33) The Ethics Commission did

not determine that the Ethics Complaint was frivolous. Davis alleged in his Complaint and has

reasons to believe that Ivey became upset that Davis had filed the Ethics Complaint against her

friend, ADMH Commissioner Boswell, despite Davis’s legal requirement to do so. (Doc. 1, ¶ 34)

On September 5, 2024, less than 2 weeks after the Ethics Complaint was dismissed, Ivey

sent a termination letter to Davis. (Doc.1 ¶ 35, Doc. 1-1) The letter specifically stated that Davis’s

“service must come to an end" and asked for Davis's resignation by 5:00 PM that day to be effective

September 30, 2024. Ivey's decision to terminate Davis was done without a vote by the SBVA and

without providing due process to Davis as required by Alabama Code § 31-5-6. (Doc.1 ¶ 35, Doc.

1-1) The letter also falsely accused Davis and his agency of mishandling the ARPA grant program.

Ivey simultaneously released her letter to the news media, thus publicly defaming Davis. Davis

11
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 12 of 44

alleged in his Complaint and will produce evidence through discovery that Ivey knew or should

have known that her accusations were false and were stated merely as a pretext for Ivey's personal

animosity towards Davis. (Doc.1 ¶ 36) Indeed, if Ivey truly believed that Davis mishandled $7

million of ARPA funds, she would not have signed into law a Bill that provided Davis and the

SBVA with millions of state dollars to replace the ARPA funds.

On September 6, 2024, Ivey, apparently recognizing that she did not have the legal

authority to fire Davis, wrote Davis again stating she was calling a special meeting of SBVA to

consider his removal as Commissioner. (Doc. 1-2) In that letter, which Ivey also simultaneously

released to the press, Ivey claimed that Davis and the ADVA mishandled the $7 million in ARPA

grant funds. This statement was false and Ivey knew or at least should have known it was false. In

fact, all ARPA funds were preserved and returned to the Department of Finance and, as a result of

Davis's efforts, the grant program was successful without using any ARPA funds, but instead using

funds appropriated by the legislature and approved of by Ivey. (Doc.1 ¶ 37)

Ivey learned of widespread opposition in the veteran's community to her purported

termination of Davis. Ivey's staff polled SBVA members, in violation of Alabama Open Meetings

Act, Alabama Code 1975 § 36-25A, on how they intended to vote in the upcoming meeting,

commenting to several of those members that "we can count on your support of the Governor, can't

we?" In the process, Ivey learned that a majority vote to remove Davis probably did not exist. At

Ivey’s direction, her Chief of Staff then asked Davis to come to the Governor's office on September

9, 2024, for a meeting to ascertain if an SBVA specially called meeting could be avoided via a

compromise agreement. (Doc.1 ¶ 37)

Davis was also contacted by the SBVA Vice Chair who falsely represented to him that the

SBVA had the votes to remove him from office for cause. The Vice Chair also called at least one

12
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 13 of 44

other SBVA member, in violation of Alabama Open Meetings Act, Alabama Code 1975 § 36-25A,

and had that member call Davis in turn to relate the same threat. At the time, Davis was

approximately 16 months shy of his state retirement vesting. (Doc.1 ¶ 40) Naturally, Davis feared

that he would lose his job, income and benefits and therefore, under duress, went to the State

Capitol for that meeting with Ivey and her staff. An agreement was reached by which Davis would

resign as Commissioner of ADVA effective December 31, 2024, and all agreed not to say anything

in public that would be considered derogatory toward the other parties. In addition, Ivey agreed

that neither she nor her staff would do anything to impair Davis's ability to obtain future

employment commensurate with his resume, even offering to give positive job referrals to any

potential employer. Davis, while under duress, decided to resign and seek other state employment

for which he was imminently qualified, so he could maintain state employment and his benefits.

Both parties made a public statement shortly thereafter favorably touting that agreement. (Doc.1 ¶

41)

On October 9, 2024, the SBVA held a committee meeting in which it asked Davis to go

through the entire ARPA timeline in detail so that the committee could get a thorough

understanding of the entire process and address previous allegations that had been made of

impropriety. At the end of that public meeting held under the Open Meetings Act, the SBVA

committee unanimously voted to exonerate Commissioner Davis of any wrongdoing involving the

entire ARPA grant program. (Doc.1 ¶ 42) On October 10, 2024, the SBVA in its quarterly meeting

unanimously voted to ask Davis to rescind his previous resignation. (Doc.1 ¶ 43)

On October 18, 2024, Ivey, who was upset with the SBVA's decision to request that Davis

not resign, sent a letter to Davis informing him that she was calling "a special meeting of the State

Board of Veterans Affairs to consider his immediate removal as Commissioner of the Department"

13
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 14 of 44

and that she regretted that Davis's "service must come to an end in this manner." (Doc 1-3)

Although this meeting was supposed to provide Davis with his due process rights guaranteed by

the Constitution and Code of Alabama § 31-5-6, it is clear that Ivey planned on firing Davis even

if the Board found there was no just cause to do so. In this letter which Ivey provided to the Press

for publication, she falsely accused Davis of "general lack of cooperation," "breach of [the

September 9, 2024] agreement," "manipulation of the [SBVA]," "filing of frivolous ethics

complaint," and "failure to comply." (Doc 1-3) Ivey made these accusations to pressure the SBVA

to go along with her unrelenting desire to terminate Davis. (Doc.1 ¶ 44)

Ivey's false and nebulous accusations of "general lack of cooperation" and "general loss of

trust and confidence" related to public statements Davis had made regarding matters of public

interest and concern, including his criticism of the Alabama legislature's cuts to the GI Dependent

scholarship program; his criticism of the legislature's and ADMH Commissioner's general lack of

support for veterans' mental health programs; his criticism of false criminal allegations by Rep. Ed

Oliver directed at the quality of care in state veterans homes; his criticism of the legislature for not

providing more ARPA funds, opioid settlement funds, or General Fund dollars to address critical

problems with veterans mental health; his criticism of Rep. Mike Rogers and his staffer Chris

Brinson for their past actions; and his criticism of Defendant Ivey for never having visited a single

one of the seventy facilities statewide overseen by ADVA. Davis's statements were true and were

expressed solely to help benefit veterans. (Doc.1 ¶ 45)

Also on October 18, Ivey released her latest letter to the press and made a public

announcement to the news media, thus defaming Davis once again. The letter called for another

special-called meeting of the SBVA to remove Commissioner Davis immediately, with that

meeting to be held at Ivey 's convenience in the State Capitol on October 22, 2024. (Doc.1 ¶ 46)

14
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 15 of 44

On October 22, 2024, at the specially-called meeting of the SBVA, which Ivey did not

attend, the SBVA voted to reject the immediate removal of Davis from the Commissioner position.

(Doc.1 ¶ 47) Immediately after the vote was taken, the governor's legal counsel approached Davis

and his lawyer and handed them a previously prepared letter (Doc 1-4) from Ivey purporting to

immediately remove Davis from the Commissioner position using what she claimed to be her

"supreme executive power" despite the vote just taken by the SBVA. Ivey 's position is contrary to

Alabama law. Ala. Code § 36-16-7. This statute expressly limits the governor's power to terminate

a "person who holds office or employment in any of the state executive departments and agencies

by virtue of appointment by the incumbent Governor or any preceding Governor." Davis was not

appointed to his position by Ivey nor any preceding governor. Instead, he was appointed by the

SBVA pursuant to Alabama Code § 31-5-6 and could only be terminated for cause by the SBVA,

which the SBVA voted not to do. (Doc.1 ¶ 48)

MOTION TO DISMISS STANDARD

Recently, in Wells v. McCovery, No. 2:22CV600-MHT, 2025 WL 2423744, at *1 (M.D.

Ala. Aug. 21, 2025) the Court restated the well-settled Motion to Dismiss Standard as follows:

In considering a defendant's motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court accepts the plaintiff's allegations as true and draws all reasonable
inferences in the plaintiff's favor. See Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).
To survive a Rule 12(b) (6) motion to dismiss, a complaint need not contain “detailed
factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), but rather “only
enough facts to state a claim to relief that is plausible on its face.” Id. at 570. “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
ARGUMENT

15
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 16 of 44

I. COUNT ONE---DAVIS’S FIRST AMENDMENT RETALIATION CLAIM

“To set forth a free-speech claim,” a plaintiff must show that: “(1) [he] was speaking as a

citizen on a matter of public concern; (2) [his] interests as a citizen outweighed the interests of the

State as an employer; and (3) the speech played a substantial or motivating role in the adverse

employment action.’” Kirkpatrick v. Geneva Cnty. Bd. of Educ., 2015 WL 5853778, at *3 (M.D.

Ala. Oct. 6, 2015) (Thompson, J.) (citing Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007) and

Lane v. Franks, 134 S. Ct. 2369, 2378 (2014)). Davis meets each of these elements.

The State of Alabama has failed our veterans especially those suffering from physical

injuries, PTSD and other mental disabilities acquired while protecting our country in battle.

Davis’s public statements concerning the lack of care for veterans are matters of public concern.

The well-being of our veterans and the States’ failures in adequately caring for veterans are

certainly matters of public concern.

Ivey, however, claims that since Davis was acting as the Commissioner of SBVA, he does

not have First Amendment protections against retaliation for making those statements. That is not

the law. In Pickering v. Bd. of Ed. of Tp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S. 563,

574 (1968) the Supreme Court noted that “statements by public officials on matters of public

concern must be accorded First Amendment protection.” That case, as the Court is well aware,

involved a schoolteacher who was wrongfully terminated for sending a letter critical of the local

school board. The Court stated that “[t]eachers are, as a class, the members of a community most

likely to have informed and definite opinions as to how funds allotted to the operations of the

schools should be spent. Accordingly, it is essential that they be able to speak out freely on such

questions without fear of retaliatory dismissal.” Id. at 572 The same analysis applies here. Davis,

as Commissioner, definitely has informed and well thought out opinions on the lack of treatment

16
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 17 of 44

of veterans, including those with mental health issues. Like the teacher in Pickering, Davis must

be able to speak out freely on such questions without fear of retaliatory dismissal.

Davis alleged and will prove during discovery that his speech played a substantial or

motivating role in the adverse employment action. Ivey made clear in her letter October 18, 2024,

(Doc 1-3) that her termination of Davis was based on false accusations of "general lack of

cooperation," "breach of [the September 9, 2024] agreement," "manipulation of the [SBVA],"

"filing of frivolous ethics complaint," and "failure to comply.” Davis’s allegations in his

Complaint, which are deemed to be true, show that Ivey’s false accusations of "general lack of

cooperation" and "general loss of trust and confidence" related to public statements Davis had

made regarding matters of public interest and concern, including his criticism of the Alabama

legislature's cuts to the GI Dependent scholarship program; his criticism of the legislature's and

ADMH Commissioner's general lack of support for veterans' mental health programs; his criticism

of false criminal allegations by Rep. Ed Oliver directed at the quality of care in state veterans

homes; his criticism of the legislature for not providing more ARPA funds, opioid settlement funds,

or General Fund dollars to address critical problems with veterans mental health; his criticism of

Rep. Mike Rogers and his staffer Chris Brinson for their past actions; and his criticism of

Defendant Ivey for never having visited a single one of the seventy facilities statewide overseen

by ADVA. Davis's statements were true and were expressed solely to help benefit veterans. (Doc.1

¶ 45)

Ivey attempts to avoid liability by making factual statements that are contrary to Davis’s

allegations in the Complaint and will later be proven to be false. For example, in her letters

purportedly terminating Davis and on page 29 of her Motion (Doc 12), Ivey claims the Ethics

Complaint was frivolous. Just because Ivey says it was frivolous does not make it true. There was

17
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 18 of 44

no determination made by the Ethics Commission that the Ethics Complaint was frivolous and

Davis maintains that it was not. If anything, this is an issue that should be raised at the summary

judgment phase but not on a 12(b) Motion.

The same holds true for Ivey’s other conclusory claims regarding Davis’s conduct. On page

30 of her Motion (Doc 12) Ivey states that she had an interest in cross-executive agency

cooperation and functionality. Whether there was a lack of cross-executive agency cooperation and

whether Davis was responsible for such lack of cooperation will be a highly disputed issue. Even

assuming there were issues between Davis and Ivey’s appointed Mental Health Commissioner,

Ivey still did not have the statutory authority to fire Davis.

On page 33 of her Motion (Doc 12) Ivey claims that the Pickering Balancing Test does not

prohibit a governor from firing an executive official based on policy disagreements. Under the

facts of this case, Ivey is wrong. First, as a matter of law, Ivey did not have the authority to

terminate Davis. Ala. Code § 31-5-6. Second, Ivey’s claim on page 34 of her Motion (Doc 12) that

Davis’s speech “impeded the government’s ability to perform efficiently” is another disputed fact

that cannot be decided at this early stage. Third, Ivey’s claim on page 34 that the Governor and the

State are entitled to agency heads who work to further, rather than impede, the State’s policies in

the areas those agency heads oversee and that it is thus “reasonably possible” that Plaintiff’s speech

could have caused “adverse harm” to the State’s operations. However, at this stage, it is equally as

possible that Davis’s speech did not cause harm to the State’s operations. Indeed, the Board did

not think so when it exonerated Davis. Most importantly, the Pickering Test does not supersede

the Constitution.

Ivey is not entitled to Sovereign Immunity in this case.

18
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 19 of 44

Ivey’s quotation of Pennington v. Taylor, 776 F. Supp. 3d 1118, 1141–42 (M.D. Ala. 2025)

while correct is incomplete. Your Honor also stated the following:

While state officials, in their official capacities, are usually entitled to sovereign immunity,
the Supreme Court, in Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714
(1908), recognized an exception allowing federal claims for injunctive relief to be brought
against state officials. The Court explained that when an official's conduct violates federal
law, that official is stripped of the cloak of sovereign immunity, as the “state has no power
to impart to [the official] any immunity from responsibility to the supreme authority of the
United States.” Id. at 160, 28 S.Ct. 441. Thus, to ensure the supremacy of federal law, and
consistent with the traditions of equity, plaintiffs may ask a federal court to enjoin state
officials from enforcing “state laws that are contrary to federal law.” Jackson, 595 U.S. at
39, 142 S.Ct. 522; see also Ex parte Young, 209 U.S. at 160, 28 S.Ct. 441.

Id. at 1141–42 (M.D. Ala. 2025). Here, Ivey violated Davis’s First Amendment rights and as will

be shown in the next section his Due Process rights which are protected by the U. S. Constitution

and Alabama Code § 31-5-6.

Ivey also is not entitled to qualified immunity, most certainly not at this early stage of the

litigation. Davis agrees with Ivey’s statement on 36 of her Motion (Doc 12) that “ ‘[q]ualified

immunity offers complete protection for government officials sued in their individual capacities if

their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’ Foulke, 2024 WL 2761778, at *5.” Here, Ivey’s

termination of Davis violated the clearly established law set out Alabama Code § 31-5-6 which

provided that Davis could only be fired by the Board and only for cause. When the Board found

no just cause and voted not to terminate Davis, Ivey usurped the Board’s statutory authority and

fired Davis anyway. Ivey cannot violate clear laws and established rights, fire Davis and now claim

she has immunity.

In Kirkpatric, supra, Your Honor stated that “[q]ualified immunity protects government

officials, in their individual capacities, from suit unless the law preexisting the defendant official's

19
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 20 of 44

supposedly wrongful act was already established to such a high degree that every objectively

reasonable official standing in the defendant's place would be on notice that what the defendant

official was doing would be clearly unlawful given the circumstances.” Here, the law was clearly

established. Ivey did not have the authority to fire Davis. Every reasonable official, or for that

matter, anyone who reads Alabama Code § 31-5-6 would know that Ivey lacked the authority to

fire Davis.

Ivey cited Carruth v. Bentley, 942 F.3d 1047, 1054 (11th Cir. 2019) for the proposition that

to “receive” the protections of “qualified immunity,” the Governor “must first prove that [she] was

acting within the scope of [her] discretionary authority when the allegedly wrongful acts

occurred.” If she “makes this showing, the burden shifts to the plaintiff to show that qualified

immunity is not appropriate.” Id. Davis agrees with Ivey’s analysis but not her application of it to

the facts of this case. The law is clear that Ivey did not have the “discretionary authority” to fire

Davis; only the Board could and only for cause. Moreover, Ivey’s “discretionary authority” to fire

any executive branch official is severely limited by state statute, and Ivey clearly violated that

statute. Ala. Code § 36-16-7

II. DUE PROCESS

Davis had a property interest in his job

The issue of whether Davis had a property interest in his job is not subject to dispute. It is

well settled that “as a matter of federal law a property interest is created whenever a public

employee can only be fired ‘for cause.’” State law determines whether a particular employee is

terminable at will or only for cause. Brown v. Georgia Dept. of Revenue, 881 F.2d 1018, 1025 (11th

Cir. 1989) Here, Code of Alabama § 31-5-6 provided that "[i]t shall be the duty of the State Board

of Veterans' Affairs to appoint a State Service Commissioner who shall serve for a term of four

20
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 21 of 44

years subject to removal by the State Board for cause." (emphasis added) Thus, Davis was not

an employee at will but rather an employee who had a statutorily protected right to only be fired

for cause and only by the Board.

In The Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, (1972) the Supreme Court

addressed the issue of whether a non-tenured professor hired for a specific one-year term had a

property interest in continued employment. Although the Supreme Court found that under the

facts of that case the professor had no such property interest, the Court’s analysis shows that Davis

clearly had a property interest in his job as Commissioner. Please consider the following from the

Court’s Opinion:

To have a property interest in a benefit, a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation of it. He must, instead,
have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of
property to protect those claims upon which people rely in their daily lives, reliance that
must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing
to provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution. Rather they are created
and their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law—rules or understandings that secure certain benefits
and that support claims of entitlement to those benefits.
Id. at 577. Davis certainly had the expectation, pursuant to state law, that he would continue in his

4-year term of office and that he could only be terminated for cause by the Board. Accordingly,

Davis clearly had a property interest in his job.

On page 41 of her Motion (Doc 12) Ivey claimed that Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 538 (1985) and Birmingham v. Graffeo, 551 So. 2d 357, 364 (Ala. 1989)

“establishes that public officials like Plaintiff have no property right in their positions.” Ivey is

simply incorrect. In Loudermill, two school district employees brought suit alleging they were

wrongfully discharged in violation of their due process rights. The Supreme Court reviewed the

21
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 22 of 44

applicable state statute which provided that the employees were entitled to retain their positions

during good behavior and efficient service who could not be dismissed except for misfeasance,

malfeasance, or nonfeasance in office. Loudermill, at 538–39 The Court then held that the statute

plainly supports the conclusion that the discharged employees possessed property rights in

continued employment. Id. The ultimate issue in that case was what process was due to those

plaintiffs; not whether they had rights to due process. Actually, that case supports Davis’s claim

that he had a property interest in his job.

Graffeo does not in any way relate to this case. It involved a city council member elected

under Birmingham’s at-large system, whose term was shortened after the City enacted an

ordinance providing for single-member districts. Graffeo was not fired by the Mayor nor the City

Council. Moreover, there was no statute similar to Code of Alabama § 31-5-6 setting out that

Graffeo could only be discharged “for cause.” The mere fact that the Alabama Supreme Court

found that Graffeo did not have a property interest in his elected position under those

circumstances does not detract from the decisions of the U. S. Supreme Court and Eleventh

Circuit holdings that property rights arise when a statute or other regulation provide that the

employee can only be fired for cause.

The question here is whether Code of Alabama § 31-5-6, which guaranteed Davis a four-

year term subject only to termination for cause, provided Davis with a property interest in his

position. The only possible answer is yes.

As a final matter on this topic, Davis needs to address Ivey’s claim in footnote 13 on page

41 of her Motion (Doc 12) that Davis’s Due Process claims should be dismissed because, as she

reads Count III, Davis is bringing this claim “directly under the Fourteenth Amendment and not

under 42 U.S.C. § 1983.” Ivey ignores the fact that in the opening paragraph of his Complaint

22
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 23 of 44

(Doc. 1) Davis specifically alleged he was making “claims under 42 U.S.C. § 1983 and § 1985 to

redress the deprivation, under color of state law, of rights guaranteed to Davis by the Constitution

of the United States for Ivey knowingly violating clearly established First and Fourteenth

Amendment rights.” Paragraph 65 under Count II specifically states that Davis “adopts and

realleges each and every allegation contained in this Complaint as if set out anew herein.” Ivey

obviously was on notice that Davis was making a §1983 claim for due process violations. Indeed,

Ivey referred to §1983 several times in her Due Process argument. Should the Court be inclined to

agree with Ivey’s overly technical analysis on this issue, Davis would request the opportunity to

amend his Complaint to include the following paragraph:

65A. This cause of action is brought under 42 U.S.C. §1983 and §1985 to redress the

deprivation, under color of state law, of rights guaranteed by the Fourteenth Amendment

to the Constitution of the United States.

Respectfully, Davis should not be required to do so.

Ivey violated Davis’s rights to Due Process

Ivey’s claim beginning on page 45 of her Motion (Doc 12) that she “Supplied Plaintiff

with the Constitutional Minimum Due-Process Requirements” is contrary to the facts of this case.

On September 5, 2024, Ivey terminated Davis. (Doc 1-1) Ivey can try to claim that she was merely

asking Davis to resign but the letter specifically stated that “I regret that your service must come

to an end in this manner.” This obviously was a termination. Not only did this termination violate

Code of Alabama § 31-5-6, but it did not provide him with the opportunity to be heard before the

SBVA or even before the Governor.

23
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 24 of 44

Ivey apparently recognized or learned that she did not have the authority to terminate Davis

on her own, so she sent another letter the following day in which she stated she was calling a

special meeting of the SBVA to consider Davis’s removal as Commissioner. This letter clearly was

a termination letter as well because Ivey again stated that “I regret that your service must come to

an end in this manner.” (Doc 1-2) Thus, even though there was going to be an SBVA Board meeting

to determine if there was cause to fire Davis, it is clear that Ivey was going to terminate Davis

regardless of what the Board decided and regardless of her lack of authority to terminate him.

On October 18, 2024, Ivey wrote Davis a letter notifying him that she was calling a special

meeting of the Board to consider immediate removal of Davis as Commissioner. (Doc 1-3) Davis

acknowledges that this letter does provide Davis with notice of the charges and an opportunity to

appear before the Board and to be heard. However, as just one member of the SBVA, Ivey did not

have the authority to make these charges against Davis without Board approval. It is telling that

Ivey stated in the letter “[a]s I’ve said before, I regret that your service must come to an end in this

manner.” Thus, it was clear that Ivey did not care what the Board decided, she was terminating

Davis. Whether this Board Hearing, under these circumstances, complied with due process

requirements is also questionable since Ivey planned on firing Davis regardless of the decision by

the SBVA. In any case, what is most important here is that at the end of the Hearing, the Board

voted to reject the removal of Davis from his position. Nothing in this statute, or actually any law,

allowed Ivey to overrule the Board’s decision.

Ivey did not have the “Supreme Executive Power” to violate the law

On page 48 of her Motion (Doc 12), Ivey claims that she had the right to terminate Davis

regardless of what “a mere statute says.” Davis acknowledges that ALA. CONST. art. V, § 113

provides “[t]he supreme executive power of this state shall be vested in a chief magistrate, who

24
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 25 of 44

shall be styled ‘The Governor of Alabama.’” However, nothing in that provision or in any other

authority gives Ivey or any past or future governor the unbridled authority to fire state employees

who have constitutionally and statutorily protected rights to continued employment. Indeed, the

law is to the contrary. ALA. CONST. art. V, § 120, which Ivey relies upon, provides “[t]he

Governor shall take care that the laws be faithfully executed.” Here, Ivey not only failed to see

that Code of Alabama § 31-5-6 was followed, but she directly violated that law. In addition,

Alabama Constitution Article 1, § 35 provides that "the sole object and only legitimate end of

government is to protect the citizen in the enjoyment of life, liberty, and property, and when the

government assumes other functions it is usurpation and oppression." Ivey's termination usurped

the statutory authority of the SBVA and thus violated Davis's statutory and constitutional rights.

Ivey’s reliance on Riley v. Cornerstone Community Outreach, Inc., 57 So. 3d 704 (Ala.

2010) is misguided. That case was essentially a dispute between Governor Bob Riley and Attorney

General Troy King over who had the authority to enforce gambling laws. Governor Riley

established a Task Force on Illegal Gambling which executed search warrants and seized alleged

gambling machines from an electronic bingo facility in Lowndes County. The facility filed suit

against Riley and other state officials claiming the bingo machines were legal. Riley and the other

Defendants fought the lawsuit. During the litigation, AG King filed a Notice of Appearance

seeking to take over the representation of the State Defendants and also attempted to dismiss the

case. Essentially there was a standoff between Riley and King; the Governor sought to shut down

the bingo parlor and the AG sought to keep it open. Thus, the Alabama Supreme Court was faced

with the issue of which official had the authority to control the litigation. In finding that the

governor had the authority to make the decision, the Alabama Supreme Court made clear that its

decision was limited to that case. Specifically, the court stated the following:

25
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 26 of 44

To decide this dispute between two constitutional officers over their respective spheres of
authority, however, it is not necessary for us to decide whether the governor's discretion
to make such a decision and act upon it is indeed “absolute” in relation to the other
official, the concern expressed by the respondents. We are clear to the conclusion that, at
least under circumstances such as those presented here, Governor Riley acted consistently
with his constitutional authority.

Id. at 734. Nothing in that opinion even remotely suggests that ALA. CONST. art. V, § 120 gives

Ivey or any future governors the right to disregard an employee’s federal constitutional rights or a

state statute that guarantees his right to due process.

III. DAVIS IS ENTITLED TO INJUNCTIVE RELIEF

Ivey’s argument on this point is circuitous. She claims she legally fired Davis despite the

constitutional and statutory prohibitions against her doing but claims she has no power to correct

this wrong. If she does not have the power to reinstate Davis, then she could not have had the

power to fire him. Most certainly she can reinstate Davis if the Court orders her to do so.

Ivey points out on page 56 of her Motion (Doc 12) that the exception to Eleventh

Amendment immunity does not permit a plaintiff “to adjudicate the legality of past conduct;” thus,

a plaintiff must allege “an ongoing and continuous violation of federal law.” Summit Med. Assocs.

v. Pryor, 180 F.3d 1326, 1337, 1338 (11th Cir. 1999) Davis agrees with this general principle but

what Ivey refuses to recognize is that there is an ongoing and continuous violation of Davis’s

federal rights. The wrongful termination deprived Davis of his income, retirement benefits, other

state benefits and is still ongoing. He will continue to suffer unless and until his position and

benefits are restored.

On page 57 of her Motion (Doc 12) Ivey pointed out that “since the Governor terminated

Plaintiff, the Alabama Legislature has amended that statute. Pursuant to the current version of

Alabama Code § 31-5-6, effective as of March 17, 2025, ‘[t]he Governor shall appoint a
26
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 27 of 44

commissioner to serve at the Governor’s pleasure.’ So, to the extent Plaintiff asserts that the

Governor ever violated State law in terminating him, he cannot assert that that violation is

ongoing, precluding application of Ex parte Young.” This defeats Ivey’s prior argument that she

does not have the authority to reinstate Davis. Also, the fact that Ivey convinced the legislature to

change the law to give the governor the power to hire and fire the Commissioner further proves

that Ivey lacked the authority to do so when she fired Davis.

IV. DAVIS IS ENTITLED TO A DECLARATORY JUDGMENT AND INJUCTIVE

RELIEF

Under this section of her Motion (Doc 12), Ivey acknowledged that “a suit brought under

the [Declaratory Judgment] Act must state some independent source of jurisdiction, such as the

presentation of a federal question.’” Sellers v. Nationwide Mut. Fire Ins. Co., 968 F.3d 1267, 1273

(11th Cir. 2020). The present case presents the question of whether Ivey violated Davis’s

constitutional rights. His claims are not “grounded strictly in state law” as Ivey suggested on page

58.

V. SUPPLEMENTAL JURISDICTION IS NOT AN ISSUE

Ivey’s request that the Court decline supplemental jurisdiction is based on her presumption

this Court is going to dismiss the federal claims. Since Davis has adequately set forth valid claims

for violations of Davis’s rights to Free Speech and Due Process, this Court does not have to even

consider the supplemental or pendent jurisdiction issue raised by Ivey. In addition, comity does

not prevent this Court deciding the limits of Ivey’s authority or allow claims for monetary damages.

Indeed, this Court and all federal courts routinely preside over state law claims.

VI. COUNTS FOUR THROUGH EIGHT: DAVIS’ STATE-LAW CLAIMS

27
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 28 of 44

A. Ivey did not have the authority to terminate Davis.

In this Section Ivey merely reasserts her claim that she has the authority to fire employees

despite constitutional and statutory prohibitions from doing so. In other words, Ivey thinks she has

the right to violate the law as long as she, in her own mind, thinks it is a good idea. For the reasons

stated above. Ivey did not have the authority to fire Davis.

B. Ivey Is Not Afforded State Immunity.

Davis’s State Law claims are against Ivey in her individual capacity only. Under the facts

of this case, Ivey is not protected by absolute state immunity.

Article I, Section 14 of the Alabama Constitution only provides that “the State of Alabama

shall never be made a defendant in any court of law or equity.” Section 14 does not provide absolute

sovereign immunity to a governor in every case. The extensions of absolute immunity beyond just

the State itself have been judicially created and limited to arms or agencies of the State, Raley v.

Main, 987 So. 2d 569, 575 (Ala. 2007) and actions against state officers in their “official”

capacities when those actions are, in effect, actions against the State. Lyons v. River Road Constr.,

Inc., 858 So.2d 257, 261 (Ala.2003). Here, Davis’s claims are against Ivey, not the State.

The Alabama Supreme Court has made clear that absolute immunity does not grant relief

from liability to constitutional and executive officers in all cases. Gill v. Sewell, 356 So.2d 1196,

1198 (Ala.1978) (“Section 14 does not necessarily immunize State officers and agents from

individual civil liability”). It is also settled that a state officer or employee may not escape tort

liability by “arguing that his mere status as a state officer cloaks him with the state’s constitutional

immunity.” Barnes v. Dale, 530 So. 2d 770, 781 (Ala. 1988). “It must stand to reason that no person

can commit a wrong upon the property or person of another, and escape liability, upon the theory

that he was acting for and in the name of the government, which is immune from suit, at the

28
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 29 of 44

instance of one of her subjects. Elmore v. Fields, 45 So. 66, 67 (Ala. 1907), holding modified by

Ex parte Cranman, 792 So. 2d 392 (Ala. 2000) The individual is not liable while acting for the

state if the suit directly affects the state treasury, but the agent is liable for torts committed within

his authority and cannot escape personal liability through the immunity shield Ex parte Cranman,

792 So. 2d 392, 399 (Ala. 2000), holding modified by Hollis v. City of Brighton, 950 So. 2d 300

(Ala. 2006) Because genuine individual-capacity claims run against officers personally, not against

the State, the Alabama Supreme Court has traditionally held that such claims cannot trigger § 14's

jurisdictional bar. See Ex parte Pinkard, 373 So. 3d 192, 199 (Ala. 2022)

Whether Section 14 Immunity serves as a defense to an action against a state officer,

including a governor sued in her individual capacity, depends upon the degree to which the action

involves a State interest. Ex parte Davis, 930 So. 2d 497, 500 (Ala. 2005) The “cases adhere to the

view that the State has an interest such as will prohibit suit against the State official or employee

where the action is, in effect, against the State.” Taylor v. Troy State Univ., 437 So.2d 472, 474

(Ala.1983). An action is deemed to be against the State “when a favorable result for the plaintiff

would directly affect a contract or property right of the State, or would result in the plaintiff's

recovery of money from the State.” Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831,

840 (Ala.2008) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala.2004))

(emphasis omitted). Such is not the case here. Davis’s state law claims are against Ivey in her

individual capacity only, not in her official capacity. Ivey will be personally responsible for paying

a judgment in favor of Davis. A judgment will not result in recovery of money from the State

Treasury. Simply put, this case is not “one against the State” as Ivey claims in her Motion (Doc

12).

29
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 30 of 44

The Alabama Supreme Court also has made clear that a constitutional officer can be held

individually liable in tort for conduct outside “the course and scope of the officer's employment.”

See, Ex parte Haralson, 853 So. 2d 928, 933 (Ala. 2003); Cooper v. Smith, 1:12-CV-889-WKW,

2013 WL 252382, at *2 (M.D. Ala. Jan. 23, 2013) For example, Sheriffs who are executive officers

and are afforded the same immunity as a governor do not have absolute immunity in all

circumstances. See Coleman v. City of Dothan, 598 So.2d 873, 875 n. 2 (Ala.1992) (“We are careful

to point out …that a sheriff is not entitled to absolute immunity in all situations.”); White v.

Birchfield, 582 So.2d 1085, 1088 (Ala. 1991) (“[B]y this opinion, we are not to be understood as

granting absolute immunity to a sheriff in all situations.”) In Haralson, the Alabama Supreme

Court reviewed the trial court’s denial of a Motion to Dismiss on claims against a deputy sheriff.

The court recognized that Sheriffs are executive officers and that they and their deputies are

sometimes afforded absolute immunity, but only when acting in the line and scope of their

employment. In denying the deputy’s Petition for Writ of Mandamus, the court held the following:

We cannot conclude, at this early stage of the proceedings, without evidence showing that
at the time of the accident he was acting within the line and scope of his employment, that
Deputy Haralson is entitled to immunity. No State officer, such as a deputy sheriff, can
avoid tort liability simply by claiming that his “ ‘mere status as a [S]tate official cloaks him
with the [S]tate's constitutional immunity.’ ” Phillips, 555 So.2d at 83 (quoting Barnes v.
Dale, 530 So.2d 770, 781 (Ala.1988)); see also Mitchell, 598 So.2d at 806. It is conceivable
that Griffith could prove facts that would show that at the time of the accident Deputy
Haralson was on a personal errand or otherwise had departed from the line and scope of
his employment. If so, Griffith “may possible prevail” on her claims. See Nance, 622 So.2d
at 299. Given the question presented by this mandamus petition—whether the trial court
should have dismissed Griffith's claims against Deputy Haralson on the ground that he is
entitled to State immunity—we conclude that Deputy Haralson has not shown that he has
“ ‘a clear legal right ... to the order sought.’
Id. at 933 (Ala. 2003)
Similarly, in Cooper, District Judge Keith Watkins denied a Motion to Dismiss filed by a

deputy. Judge Watkins noted that “under § 14 of the Alabama Constitution, deputy sheriffs, as alter

egos to the Sheriff, are absolutely immune from state-law claims for damages whenever the acts

30
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 31 of 44

that are the basis of the alleged liability were performed within the course and scope of the officer's

employment. The key question, then, is whether Defendants were acting in the course and scope

of their employment.” Here, Davis will prove that Ivey not only acted outside of the scope of the

Office of Governor, but also grossly abused her authority by violating the U. S. Constitution and

State law. The SBVA and only the SBVA had the authority to terminate Davis, and it found

insufficient cause to terminate Davis. Ivey ignored the SBVA decision and her firing of Davis after

the SBVA ruling was most certainly outside the scope of her authority; it was a direct violation of

the law and ALA. CONST. art. V, § 120, which provides that “[t]he Governor shall take care that

the laws be faithfully executed.”

Again, contrary to Ivey’s position, the law is clear that a state officer or employee is not

protected by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond

his authority, or under a mistaken interpretation of the law. White v. Birchfield, 582 So. 2d 1085,

1088 (Ala. 1991); Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989) See also, Lumpkin v. Cofield,

536 So.2d 62, 65 (Ala.1988); Barnes v. Dale, 530 So.2d 770 (Ala.1988) ], at 782; DeStafney v.

University of Alabama, 413 So.2d 391, 393 (Ala.1981); Gill v. Sewell, 356 So.2d 1196, 1198

(Ala.1978); Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); St. Clair County v. Town of

Riverside, 272 Ala. 294, 296, 128 So.2d 333, 334 (1961) In Ex parte Lawley, 38 So. 3d 41, 43–44

(Ala. 2009), suit was brought against several employees of the Department of Conservation,

including its Director, a Cabinet Appointee. In considering whether the Defendants were entitled

to State Immunity under Article I, § 14, the Alabama Supreme Court held as follows:

As this Court stated in Patton, “[i]t is not for this court to determine, based on the
complaint, whether the plaintiff will ultimately prevail, but only if he may possibly
prevail.” 646 So.2d at 10. It is conceivable that the families could prove facts that would
show that one or more of the employees failed to discharge duties pursuant to a checklist
or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority, or under a

31
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 32 of 44

mistaken interpretation of the law. If so, the families “may possibly prevail” on their
claims. Therefore, the trial court properly denied the employees' motion to dismiss the
claims stated against them in their individual capacities.

After the parties have had the opportunity to conduct discovery, the employees will have
the opportunity to seek a summary judgment on the ground that they are entitled to State-
agent immunity. If they make such a motion based on that ground and the trial court denies
it, then they can again ask this Court to review their immunity claims, either by petitioning
for permission to appeal, pursuant to Rule 5, Ala.R.App.P., or by petitioning for a writ of
mandamus, pursuant to Rule 21, Ala.R.App.P.

Davis has properly alleged that Ivey’s wrongful acts were willful, malicious, fraudulent, in

bad faith and beyond her authority and can produce overwhelming evidence to support this

position. (Doc 1, ¶¶ 86, 95, 102, 108 and 116) These are not just conclusions as Ivey suggests; the

facts set out in the Complaint clearly support those allegations. Accordingly, Ivey is not entitled

to be dismissed at this initial stage.

In summation, Section 14 Sovereign Immunity only applies to the Sovereignty—the State.

The Alabama Supreme Court’s extension of absolute immunity to Sheriffs and Governors does

not apply when the actions are outside the course and scope of the officer's employment or willful,

malicious, illegal, fraudulently, in bad faith, beyond his authority or an illegal abuse of power,

which is the case here. “Actions against State officials in their individual capacities are not

prohibited by the doctrine of State immunity where it is alleged that [the State officials] ... acted

fraudulently, in bad faith, beyond their authority or in a mistaken interpretation of law.” Lyons v.

River Rd. Const., Inc., 858 So. 2d 257, 265 (Ala. 2003) A “state officer or employee is not protected

by § 14 when he acts willfully, maliciously, illegally, fraudulently, in bad faith, beyond his

authority, or under a mistaken interpretation of the law. White v. Birchfield, 582 So. 2d 1085, 1088

(Ala. 1991); Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989) See also, Lumpkin v. Cofield, 536

So.2d 62, 65 (Ala.1988); Barnes v. Dale, 530 So.2d 770 (Ala.1988), at 782; DeStafney v. University

of Alabama, 413 So.2d 391, 393 (Ala.1981); Gill v. Sewell, 356 So.2d 1196, 1198 (Ala.1978);

32
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 33 of 44

Unzicker v. State, 346 So.2d 931, 933 (Ala.1977); St. Clair County v. Town of Riverside, 272 Ala.

294, 296, 128 So.2d 333, 334 (1961)

C. Ivey is not afforded State-Agency Immunity

State-agent immunity is governed by Alabama. Code § 36-1-12 which is the codification

of the test set out in Ex parte Cranman, 792 So.2d 392 (Ala.2000) a plurality opinion, which was

later adopted by the Alabama Supreme Court in Ex parte Butts, 775 So.2d 173 (Ala.2000). That

statute and Cranman provide that:

An officer, employee, or agent of the state, including, but not limited to, an education
employee, is immune from civil liability in his or her personal capacity when the conduct
made the basis of the claim is based upon the agent’s doing any of the following:

(1) Formulating plans, policies, or designs.

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

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

a. Making administrative adjudications.

b. Allocating resources.

c. Negotiating contracts.

d. Hiring, firing, transferring, assigning, or supervising personnel.

(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.

(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.

(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.

(d) Notwithstanding subsection (c), an education employee, officer, employee, or agent of

the state is not immune from civil liability in his or her personal capacity if:

33
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 34 of 44

(1) The Constitution or laws of the United States, or the Constitution of this state,
or laws, rules, or regulations of this state enacted or promulgated for the purpose of
regulating the activities of a governmental agency require otherwise; or

(2) The education employee, officer, employee, or agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or under a mistaken
interpretation of the law.

In determining whether State-agent immunity applies in a particular case, the Alabama

Supreme Court established a “burden-shifting” process. Ex parte Estate of Reynolds, 946 So.2d

450, 452 (Ala.2006). A State agent asserting State-Agent immunity bears the burden of

demonstrating that the plaintiff's claims arise from a function that would entitle the State Agent to

immunity. Id. Only if the State agent makes such a showing does the burden then shift to the

Plaintiff to show that one of the two categories of exceptions to State-Agent immunity recognized

in Cranman is applicable. Ex parte Lawley, 38 So. 3d 41, 47 (Ala. 2009); Giambrone v. Douglas,

874 So. 2d 1046, 1052 (Ala. 2003)

On page 64 of her Motion (Doc 12) Ivey claims that she clears the first hurdle because she

was exercising her judgment in the administration of a department or agency of government. The

facts and law do not support this claim. Ivey was not allowed to exercise judgment in terminating

Davis. By law only the SBVA was granted that authority.

Assuming that Ivey can satisfy the first prong of the Giambrone test and the burden shifts

to Davis, he can satisfy both of the exceptions. First, Ivey’s termination of Davis violated the

Constitution of the United States and laws of the State of Alabama. With respect to the second

exception, the law is clear that if any employee fails to discharge her duties pursuant to detailed

rules or regulations or acted willfully, maliciously, fraudulently, in bad faith, beyond his authority,

or under a mistaken interpretation of the law, then that employee would not be entitled to State-

34
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 35 of 44

agent immunity. As the court stated in Patton v. Black, 646 So.2d 8, 10 (Ala.1994), ‘[i]t is not for

this court to determine, based on the complaint, whether the plaintiff will ultimately prevail, but

only if he may possibly prevail.’ 646 So.2d. at 10. It is clear that Ivey failed to discharge duties

pursuant to state law and acted willfully, maliciously, fraudulently, in bad faith, beyond his

authority or under a mistaken interpretation of the law. Since Davis “may possibly prevail” on his

claims, Ivey’s Motion to Dismiss Davis’s claims against her in her individual capacities should be

denied.” See also, Ex parte Alabama Dept. of Mental Health and Retardation, 837 So. 2d 808, 814

(Ala. 2002) Ex parte Butts, 775 So.2d 173, 178 (Ala.2000)

Further, the Alabama Supreme Court has made clear that a motion to dismiss is typically

not the appropriate vehicle by which to assert qualified immunity or state-agent immunity, and

normally, the determination as to the existence of such a defense should be reserved until the

summary-judgment stage, following appropriate discovery. Ex parte Alabama Dept. of Mental

Health and Retardation, 837 So.2d 808, 813-814 (Ala.2002). In that case, citing Ex parte Butts,

775 So.2d 173, 177 (Ala.2000) and Patton v. Black, 646 So.2d 8, 10 (Ala.1994), the Alabama

Supreme Court stated that “it is the rare case involving the defense of State-agent immunity that

would be properly disposed of by a dismissal pursuant to Rule 12(b)(6).”

D. Ivey In Her Individual Capacity Can Be Held Liable for Monetary Damages.

On page 66 of her Motion (Doc 12) , Ivey claims that she has no duty to pay Davis in her

individual capacity. As explained above in the section regarding State-Agent Immunity, she most

certainly can be held personally liable. Moreover, the cases she relies on do not support her

position.

35
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 36 of 44

Ohio Valley Conf. v. Jones, 385 So. 3d 948 (Ala. 2023) cited by Ivey was a case where a

collegiate athletic conference filed suit against chair of the board of trustees of a public university

and against its university's president for refusal to pay the conference what the university allegedly

owed under conference rules. It really has no relevance to this case. Further, in that case the

Alabama Supreme Court relied on Barnhart v. Ingalls, 275 So. 3d 1112 (Ala. 2018), a case which

the court later overruled in Ex parte Pinkard, 373 So. 3d 192 (Ala. 2022), the other case relied on

by Ivey.

Surprisingly, Ivey set out a quote from Pinkard which Ivey noted was a cite from Barnhart.

It is clear that Barnhart has no application here. Consider the following language from the Pinkard

decision:

The rule announced in Barnhart and extended in Cooper threatens to work an

unprecedented, and unjustified, doctrinal shift. As noted above, Alabama courts have long
recognized the right of tort victims to recover damages from State employees who injure
them while acting within the scope of their official duties. See, e.g., Elmore, 153 Ala. at
351, 45 So. at 67; Bronner, 171 So. 3d at 622 n. 7. Barnhart and its progeny dispensed with
that ancient rule by cloaking State agents with absolute and unqualified sovereign
immunity for any claim alleging breach of an official duty, including individual-capacity
tort actions. That result is unmoored from the text and history of § 14 and is at odds with
this Court's more carefully reasoned precedents. Having recognized our mistake, we are
determined not to repeat it. The expansive interpretation of § 14 announced in Barnhart
and its progeny is overruled.
In overruling these cases, we return to our pre-Barnhart understanding of § 14, which
properly recognized that State immunity does not bar claims that name and seek relief only
from individual officers in their personal capacity, as Taylor's claims against Pinkard do.
See Bronner, 171 So. 3d at 622 n.7. The circuit court therefore had subject-matter
jurisdiction over Taylor's claims.
Ex parte Pinkard, at 192, 201–02.

Moreover, in Pinkard the court held that the plaintiff’s suit against Pinkard as an individual

was not in effect a suit against the State, so State immunity did not preclude jurisdiction over the

plaintiff’s claims and because the record contained evidence from which a reasonable factfinder

36
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 37 of 44

could infer malice, Pinkard was not entitled to summary judgment on State-agent-immunity

grounds. Id. at 203. Thus, Pinkard actually proves that Davis can make a claim against Ivey.

E. Ivey Retaliated Against Davis in Violation of Alabama Code § 36-25-17.

Alabama Code § 36-25-17 provides as follows:

(a) Every governmental agency head shall within 10 days file reports with the commission
on any matters that come to his or her attention in his or her official capacity which
constitute a violation of this chapter.
(b) 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.

Accordingly, when members of the SBVA reported possible ethics violations by ADMH

Commissioner Boswell, Davis was under a legal duty to file the Ethics Complaint. In fact, had he

not done so, Davis could have been held criminally liable. Ala, Code §36-25-27, That statute

provides in pertinent part the following:

(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.
(2) Any person subject to this chapter who 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 A misdemeanor.
(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.

To protect those who file Ethics Complaints, the Alabama Legislature enacted an anti-

retaliation law. Ala. Code § 36-25-24. The pertinent portion of that statute follows:

(a) A supervisor shall not discharge, demote, transfer, or otherwise discriminate against a
public employee regarding the employee's compensation, terms, conditions, or
privileges of employment based on either the employee's reporting a violation or what
he or she believes in good faith to be a violation of this chapter, or the employee's giving
37
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 38 of 44

truthful statements or truthful testimony concerning an alleged ethics violation,

regardless of whether the employee filed the complaint.

(d) A supervisor who is alleged to have violated this section shall be subject to civil action.
Ivey’s termination letter (Doc 1-3) shows that a motivating factor in terminating Davis was his

filing of the Ethics Complaint against ADMH Commissioner Boswell, an Ivey Cabinet appointee

and friend of Ivey. As can be seen, contrary to Ivey’s position, subsection (d) expressly grants

Davis a cause of action against Ivey.

Ivey argues that the anti-retaliation law does not protect Davis and claims that she had the

right to retaliate against Davis because of the position he held. Her attempts to distinguish between

“public officials" and "public employees” makes no sense as it applies to the anti-retaliation statute.

Certainly, the Alabama Legislature did not intend to protect “employees” but not “officials,”

especially when considered along with Alabama Code § 36-25-17 which requires officials to file

Ethics Complaints and the fact that the official could be subjected to criminal liability under

Alabama Code §36-25-27 if he did not. It is baffling that Ivey would even take this position. If she

prevails on this argument, then all “public officials,” who receive information of ethical violations

by someone who is personally politically connected the governor, will face the dilemma of

violating the law by not reporting the violation or face retaliation by the governor for reporting it

irrespective of their due process rights.

Davis respectfully submits that this cause of action should not be dismissed, especially on

a Rule 12(b) Motion. At the very least, Davis should be allowed to depose Ivey and others on this

theory. Ivey will still be allowed to preserve this theory at the summary judgment stage.

F. Davis Stated a Claim for Wrongful Termination

38
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 39 of 44

On page 67 of her Motion (Doc 12) Ivey, citing Hardric v. City of Stevenson, 843 So. 2d

206, 210 (Ala. Civ. App. 2002), acknowledged the well-settled Alabama law that “[t]he dismissal

of a public employee who is entitled to a pretermination hearing, without such a hearing, is a

wrongful act constituting a tort.” Here, by statute, Davis was entitled to a pretermination hearing

with the Board and could only be dismissed for cause. Ivey did not have the unilateral authority to

fire Davis, yet that is exactly what she did by her letters attempting to terminate Davis without

allowing him to appear before the Board and then firing him despite the Board’s decision not to

fire Davis.

Ivey also cited Mitchell v. Town of Hayneville, Alabama, 2020 WL 7480551, at *9

(M.D.Ala. Dec. 18, 2020) (Thompson, J.) for the proposition that “Alabama courts do allow suits

for wrongful termination by public employees fired from tenure-protected positions.” Davis again

agrees. In Mitchell, this Court recognized that Police Chief Mitchell was not an employee-at-will,

but by virtue of the law he was in a tenured-protected position explaining:

As police chief, he was an appointed official of the town. See Amended Complaint (doc.
no. 8) at ¶¶ 15-16. Town councils may remove an appointed official only for good cause,
such as “incompetency, malfeasance, misfeasance, or nonfeasance in office and for
conduct detrimental to good order or discipline.” Ala. Code § 11-43-160(a)(2). Law-
enforcement officers, including police chiefs, are also specifically entitled to a hearing
before being suspended or terminated. See Ala. Code §§ 11-43-230 to -231.

Id at *5. The same applies to Davis. Alabama Code §31-5-6 provides that Davis could be fired

only for cause and only by the SBVA. Clearly, Davis was not an employee-at-will; he too was in

a tenured-protected position with a right to pursue a wrongful termination claim.

Ivey also relied on the case of State ex rel. Gray v. King, 395 So. 2d 6, 7 (Ala. 1981). That case

has nothing to do with the present case. In that case, after a vacancy occurred in the job of Captain

of the Birmingham Fire Department, the Chief picked one of the three candidates that were

39
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 40 of 44

certified to him. Thereafter, the President of the Birmingham Firefighters Association filed a quo

warranto challenging the right of the selected candidate to serve as Captain. The Alabama Supreme

Court stated that “[t]he principal issue presented in this appeal is whether a captaincy in the

Birmingham Fire Department is a public office, and thereby subject to a quo warranto action

against an alleged usurper, intruder, or unlawful holder of an office under s 6-6-591, Code 1975”

and determined that quo warranto action will not lie. Id. at 8. Simply put, that case does not in any

way detract from the clear law that public employees, such as Davis, who are wrongfully fired

from their tenure-protected positions can maintain a cause of action for wrongful termination.

G. Davis Stated Valid Claims for Invasion of Privacy and Defamation (Counts Six
and Seven)

Ivey did not claim that Davis failed to state claims for Invasion of Privacy and Defamation.

However, it is clear that Davis properly alleged those claims and set out substantial facts to support

those causes of action.

Davis is making a claim for Invasion of Privacy under the False Light theory. To establish

this claim Davis was only required to allege that Ivey (1) “gave publicity to a matter” concerning

the Davis, (2) placed him in a “false light” that would be highly offensive to a reasonable person,

and (3) did so with knowledge the publicized matter was false or with reckless disregard to its truth

or falsity. Bias v. Cenlar Agency, Inc., No. 2:15-CV-00768-SGC, 2018 WL 2365428, at *5 (N.D.

Ala. May 24, 2018); Regions Bank v. Plott, 897 So. 2d 239, 244 (Ala. 2004) Paragraphs 98 through

102 in Davis’s Complaint (Doc 1) satisfy that requirement.

With respect to the Defamation Count, Alabama Code § 6-5-182 provides that “the plaintiff

must prove, unless it shall be admitted by the defendant, the facts showing that the alleged

defamatory matter was published or spoken of the plaintiff.” In addition, the law is clear that the

40
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 41 of 44

“elements of a cause of action for defamation are: 1) a false and defamatory statement concerning

the plaintiff; 2) an unprivileged communication of that statement to a third party; 3) fault

amounting at least to negligence on the part of the defendant; and 4) either actionability of the

statement irrespective of special harm or the existence of special harm caused by the publication

of the statement.” Wal-Mart Stores, Inc. v. Smitherman, 872 So. 2d 833, 840 (Ala. 2003)

Paragraphs 106 through 110 in Davis’s Complaint (Doc 1) meets those elements.

H. Ivey Can Be Held Liable for Intentional Interference

Under Alabama law, the elements of this tort are as follows:

(1) the existence of a protectible business relationship;

(2) of which the defendant knew;

(3) to which the defendant was a stranger;

(4) with which the defendant intentionally interfered; and

(5) damage.

Terry v. RCHP-Florence, LLC, 671 F. Supp. 3d 1321, 1325 (N.D. Ala. 2023); White Sands Group,

L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009)

Davis properly alleged this cause of action and supported it with sufficient facts. Ivey only

challenged number (3). Her argument is flawed. In Terry, the Federal District Court thoroughly

considered the third element and denied the defendant’s Motion to Dismiss. In doing so the court

stated that “what is relevant is not whether the defendant exercised control over the plaintiff’s

contract or business relationship but whether the defendant had a delineated right to do so. See

BellSouth, 814 So.2d at 214 (holding that BellSouth was not a stranger because it had the “legal

41
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 42 of 44

right to terminate Cellulink’s relationship with Wal-Mart directly” due to its own “rights and

duties” arising out of the relevant contracts between the three parties) (emphasis in original)” Terry

at 1327. Here, as shown above, Ivey did not have a “delineated right” to terminate Davis. In fact,

the law is clear that Ivey did not have the right to terminate Davis. Therefore, Ivey’s Motion to

Dismiss this cause of action is due to be denied.

42
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 43 of 44

CONCLUSION

Ivey’s termination of Davis violated his Constitutional and statutory rights. Ivey’s claim

that she has the “supreme executive power” to disregard Davis’s rights cannot be condoned; most

certainly not on a 12(b) Motion. For the reasons stated above, Davis respectfully submits that

Ivey’s Motion should be denied.

/s/ Kenneth J. Mendelsohn

KENNETH J. MENDELSOHN (ASB-7113-N64K)
Attorney for Plaintiff

OF COUNSEL:
JEMISON & MENDELSOHN, P.C.
1772 Platt Place
Montgomery, Alabama 36117
Phone:(334) 213-2323
Fax: (334) 213-5663
kenny@jmfirm.com

43
 Case 2:25-cv-00429-MHT-SMD Document 16 Filed 09/16/25 Page 44 of 44

CERTIFICATE OF SERVICE

I do hereby certify that on the 16th day of September, 2025, the foregoing was electronically
filed using the CM/ECF filing system which will furnish a copy to all counsel of record.

/s/ Kenneth J. Mendelsohn

KENNETH J. MENDELSOHN (ASB-7113-N64K)

44