Case 1:15-cv-00104-CG-N Document 16 Filed 03/06/15 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARI D. SEARCY,
Plaintiff,
v.
HON. DON DAVIS,
individually and in his official
capacity as Probate Judge for
Mobile County, Alabama,
Defendant.

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Case No. 15-00104-CG

PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS MOTION TO

DISMISS
COMES NOW the Plaintiff, Cari D. Searcy, by and through undersigned counsel, pursuant to
Federal Rule of Civil Procedure 12 and this Courts Order of March 2, 2015, and files this her
Response in Opposition to Defendants Motion to Dismiss:

INTRODUCTION
Defendants Motion to Dismiss is due to be denied because the Defendant has not met,
and cannot meet, the high burden the law imposes on him when seeking a Motion to Dismiss
under Rule 12. Fed. R. Civ. P. 12.
Many judges, historians, philosophers, and lawyers have remarked that the United States
is a nation of laws and not of men and women. The American people and the people of Alabama
depend upon the rule of law. There can be no doubt that stare decisis and federalism form the
foundation upon which our entire legal system rests.

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It is terribly unfortunate that numerous state judges and state courts have done a
disservice to all residents of Alabama by attacking well-established notions of stare decisis,
comity, and federalism.
While the Alabama Supreme Court has issued a mandamus order and Judge Moore has
previously issued Administrative directives, there can be no doubt that Defendant is bound by the
Orders of this Court. Moreover, the Defendant (and all local and state officials) are bound by
rulings of the Supreme Court of the United States. This Court held that the Alabama Sanctity
Laws were void and unenforceable for any purpose beginning on February 9, 2015. The Supreme
Court of the United States upheld that date and effectively ruled that same-sex marriage and outof-state same-sex marriage recognition was to commence throughout Alabama beginning on
February 9, 2015. That should resolve this case. Additionally, the injunction that currently binds
Defendant should resolve it as well.1
Defendants arguments are largely premised on the notion that whether or not same-sex
marriage and recognition of existing same-sex marriages somehow remain open questions.
Worse, the Defendant offers arguments to this Court without ever specifically mentioning the
fact that he has been directly enjoined by this Court from enforcing the now void Alabama
Sanctity Laws.
Despite being specifically enjoined by this Court from enforcing the Alabama Sanctity
Laws, Davis is doing just thathe is refusing to grant this adoption, or even set it for hearing,
premised upon the Alabama Sanctity Laws and Judge Roy Moores void Order of February 8,

But, the orders of numerous state courts and state judges have squarely pushed our state through the
looking glass, in violation of our most basic American jurisprudential concepts regarding federalism,
comity, and stare decisis.
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2015. (Doc. 8-1). This Court could not have been clearer: This injunction binds Judge Don
Davis and all his officers, agents, servants and employees, and others in active concert or
participation with any of them, who would seek to enforce the marriage laws of Alabama which
prohibit or fail to recognize same-sex marriage. (Strawser v. Strange & Davis, CV-14-0424,
Doc. 55, p. 8)(emphasis added). That Order and injunction issued to Davis on February 12,
2015.
Nonetheless, eight days later, Davis issued an Interlocutory Order that states It is further
ORDERED by the Court that this Decree is qualified in nature, and the Court will not issue a
final adoption order until a final ruling is issued in the United States Supreme Court on the
Marriage Act cases before it. (Exhibit C to Plaintiffs ComplaintDoc. 1-1, p. 26).
Defendant mischaracterizes and, in places, flatly misstates the current state of the law in
Alabama. Likewise, Defendants Motion to Dismiss contains arguments and contentions that
directly contradict previous Orders of this Court. Significantly, Davis also makes arguments that
run afoul of binding precedent from the 11th Circuit Court of Appeals, and, notably, the Supreme
Court of the United States.
As was discussed during oral argument before this Court on February 12, 2015, at which
Davis was represented by the same attorneys representing him in this matter, the Supreme Court
of the United States has effectively ruled that Alabamas bans on same-sex marriage and
recognition of out-of-state same-sex marriages ended on February 9, 2015. Simply put, this
Court held that same-sex marriage, including legal recognition of same-sex marriages performed
in other states, would be lawful in Alabama for all purposes beginning on February 9, 2015. The
11th Circuit upheld that Order as did the Supreme Court of the United States. That fact resolves

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the question, and there is no just, legal reason for Davis to single out Cari D. Searcy and her
family for separate, unequal treatment in the form of indefinitely delaying this adoption until
some undefinable later date.
Plaintiff respectfully requests that the Court deny the Defendants Motion to Dismiss
because (1) the Defendant is obviously infringing on the Plaintiffs defined constitutional rights
and (2) the Defendant is actively and directly violating the lawful injunction imposed on him by
this Court. Worse yet, Davis does not even attempt to articulate a reason for doing so, and
Plaintiff would submit that failure is due to the fact that there is no just, articulable reason behind
Daviss actions.
STANDARD OF REVIEW
This Court has aptly stated the standard for evaluating a Motion to Dismiss:
A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. A court may
dismiss a complaint only if it is clear that no relief could be granted under any set
of facts that could be proven consistent with the allegations. See Hishon v. King
& Spalding , 467 U.S. 69, 73 (1984); see also Chepstow Ltd. v. Hunt , 381 F.3d
1077, 1080 (11th Cir. 2004). In other words, a motion to dismiss only requires a
court to determine whether a plaintiff's allegations, if proven, are sufficient to
state a recognized claim at law upon which relief can be granted. In analyzing a
motion to dismiss, the court must view the complaint in the light most favorable
to the plaintiff. Jenkins v. McKeithen , 395 U.S. 411, 421-22 (1969); Hishon v.
King & Spalding , 467 U.S. 69, 73 (1984) (The court must, "[a]t this stage of the
litigation, ... accept [plaintiff's] allegations as true."); Stephens v. HHS , 901 F.2d
1571, 1573 (11th Cir. 1990); cf. South Florida Water Mgmt. Dist. v. Montalvo , 84
F.3d 402, 409 n. 10 (11th Cir. 1996) (conclusory allegations and unwarranted
deductions of fact are not deemed true on a motion to dismiss). The rules of
pleading require only that a complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). The
court's inquiry at this stage focuses on whether the challenged pleadings "give the
defendant fair notice of what the plaintiff's claim is and the grounds upon which it
rests." Conley v. Gibson , 355 U.S. 41, 47 (1957).

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Stoddard v. Hawsey, Civil Action 05-0287-CG (S.D. Ala. July 26, 2007).
Likewise, the Court has correctly noted that:
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. 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. The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a defendant's
liability, it stops short of the line between possibility and plausibility of
entitlement to relief.
Johnson v. Penton Ashworth, CV-11-0228-CG-C (September 14, 2012, S.D. Ala.)(quoting and
citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)).
ARGUMENT
I.
PLAINTIFFS COMPLAINT IS WELL PLED AND MEETS ALL PLEADING
REQUIREMENTS OF IQBAL AND TWOMBLY.
A. Plaintiffs Complaint makes numerous factual allegations that indicate that she not only has a
plausible lawsuit against Defendant, she has a substantial likelihood of success on the merits of
this lawsuit and is entitled to the relief sought.2
At the risk of being overly duplicative, the Plaintiff makes the following factual
allegations in her Complaint which do sufficiently state facts that, at a bear minimum
demonstrate that she has met the plausibility standard of pleading:
(a) That she is an adult resident citizen of Alabama and the United States, and, therefore
is endowed with certain inalienable rights including being treated justly and equally
under the laws of the United States and Alabama;

Most importantly being the injunctive relief that would compel Judge Don Davis from continuing to
interfere with the adoption thereby allowing the Plaintiff to protect her family.
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(b) That Defendant is the Probate Judge of Mobile County and is responsible for hearing
and granting adoptions in Mobile County;
(c) This Court held that the Alabama Sanctity Laws violate the Equal Protection and Due
Process Clauses of the 14th Amendment to the United States Constitution;
(d) That Defendant has already been specifically enjoined from enforcing the Sanctity
Laws;
(e) That the State of Alabama has been specifically enjoined from enforcing the Sanctity
Laws;
(f) That the Defendant continues to enforce the Alabama Sanctity Laws;
(g) That the Plaintiff is married to Kimberly McKeand having been so since they were
married in California in 2008;
(h) That the minor child of McKeand was born on December 30, 2005;
(i) That the minor child was conceived via a sperm donor;
(j) That the sperm donor has no parental rights under Alabama law;
(k) That the sperm donor consents to the adoption;
(l) That Searcy and McKeand having a loving stable home and they jointly provide the
minor child with a nurturing, supportive home and have done so since his birth. They
each attend to the needs of the minor child and will continue to do so;
(m) Searcy and McKeand are the only two parents the minor child has ever known or will
ever know;
(n) That Davis Ordered that he would not issue a final adoption unless and until the
Supreme Court of the United States issues an Order legalizing gay marriage nationwide
arising from unrelated cases from the 6th Circuit Court of Appeals;
(o) That this Court previously held that the Sanctity Laws were unconstitutional and that
the laws were enjoined from enforcement beginning February 9, 2015;
(p) That the 11th Circuit Court of Appeals denied the State of Alabamas request to
extend that stay beyond February 9, 2015; and
(q) That the Supreme Court of the United States denied the State of Alabamas request to
extend the stay beyond February 9, 2015.

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Defendant makes no argument as to whether the Complaint is adequately pled otherwise,

and he has not filed a Motion for More Definite Statement under Rule 12(e). Therefore, Plaintiff
assumes that Defendant makes no complaint as to the actual mechanics of the Complaint, and
that, other than his expressed arguments, Defendant is not otherwise attacking the sufficiency of
Plaintiffs Complaint.
B. Defendants argument suggesting that Plaintiffs allegation that Davis is continuing to uphold
and enforce the Alabama Sanctity Laws amounts to an unfounded assertion is due to be denied.
Such a claim by the Defendant is demonstrably false, and the truth of Plaintiffs allegations are
and again will be made demonstrably true.

In his Brief, Davis states as follows:

The Complaint specifically seeks relief based on an impermissible conclusory
statement of liability - the allegation that Judge Davis is continuing to enforce
and uphold the enjoined Alabama Sanctity Laws. However, the only factual
allegation offered in support of the Plaintiffs claim is that Judge Davis qualified
his interlocutory order that the Court will not issue a final adoption order until a
final ruling is issued in the United States Supreme Court on the Marriage Act
cases before it. There is no mention of or stated reliance on the Alabama
Sanctity Laws in Judge Davis order, and in fact his order clearly states that the
decision was made due to the pending U.S. Supreme Court case. The Plaintiffs
cannot make unfounded assertions in an attempt to impute a motive to the Mobile
County Probate Court, and these are certainly not enough to meet the plausibility
standard.
(Doc. 9, pp. 16-17).
Defendants assertion that Plaintiff is somehow incorrectly alleging that Davis is relying
on the now void Alabama Sanctity Laws defies the plain truth that is apparent from the
circumstances. Plaintiff offers that there simply is no other conclusion that a reasonable person
could reach. The answer to the rhetorical question of what else could he possibly be relying
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upon? stands in obviousnessnothing else. Equally apparent is the reality that Daviss order
would not be qualified if Cari Searcy was a man as opposed to a woman; further there are no
Mobile Probate qualified interlocutory orders that indicate heterosexual adoptions are being
subjected to the presumptive speculation a future order of the Supreme Court of the United
States with regard to the Marriage Act.
There can be no other conclusion that only the Alabama Sanctity Laws, which are now
void, are the only impediments to this adoption. After all, those laws were cited as sole reason
why Davis denied the adoption in the first place. Defendants contention is not only wrong, but it
is also disingenuous at best and downright dishonest at worst.
The fact that Davis is upholding the Alabama Sanctity Laws is further evidenced by
recent events. Premised on Judge Moores void Administrative Opinion of February 8, 2015,
Davis closed the marriage license office rather than be confronted with the decision as to whether
to (1) issue heterosexual marriage licenses but not same-sex marriage licenses or (2) whether to
issue marriage licenses to heterosexual and same-sex couples beginning on February 9, 2015,
and continuing until this Court specifically enjoined him from enforcing the Alabama Sanctity
Laws on February 12, 2015. (Strawser v. Strange, 1:14-cv-00424-CG-C, Doc. 55). The last
sentence of this Courts Order states: This injunction binds Judge Don Davis and all his officers,
agents, servants and employees, and others in active concert or participation with any of them,
who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize
same-sex marriage. Id. (emphasis added).

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Now, following an order of the Alabama Supreme Court designed to have the same effect
of Judge Moores void order of February 8, 2015, Davis is doing the same thing.3 As the Court
may be aware, the Alabama Supreme Court issued an Order on February 3, 2015, directing
judges across Alabama to continue to uphold the Alabama Sanctity Laws. However, there is
nothing new in that Order in the Alabama Supreme Court has previously ruled that same-sex
marriage and out-of-state same-sex marriage recognition were illegal. Likewise, Daviss initial
closing of the marriage license office was premised upon Judge Moores Opinion and Orders of
February 8, 2015. Now, it is the Alabama Supreme Court itself issuing an Order with the same
effect based upon the same premisethat the Alabama Sanctity Laws are still enforceable under
Alabama law. Nonetheless, Davis is specifically enjoined from enforcing those same laws just as
he was notwithstanding Judge Moores Opinion and Orders to the contrary.
Worse yet, Daviss refusal to issue a final adoption in this matter was made known by his
Order of February 20, 2015, a full week-and-a-half prior to the Alabama Supreme Court Order of

This notice is currently posted in the Probate Court of Mobile County and on its website:

IMPORTANT
NOTICE TO ALL
INTERESTED PERSONS
RULING OF THE ALABAMA SUPREMET COURT RELATING TO ISSUANCE OF MARRIAGE
LICENSES
Attached is the March 3, 2015, ruling of the Alabama Supreme Court on a petition for writ of mandamus
requesting that Alabama probate judges be instructed to not issue marriage licenses to persons of the same
sex. The Court and its legal counsel are currently evaluating this opinion and its effect on the Mobile
County Probate Court, given recent rulings of the United States District Court for the Southern District of
Alabama.
Until said analysis is complete, the Court will not issue any marriage licenses to any applicants. We regret
having to take this action, but feel it is necessary given the unprecedented circumstances that exist. It is
the Courts intent to comply will all law governing its operations and to not discriminate in any manner
against any person. We regret any inconvenience this action may cause any party.

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March 3, 2015. He was attempting to enforce the Alabama Sanctity Laws by refusing to grant
this adoption premised only upon the facts and circumstances existing at the time he was
specifically enjoined from enforcing those very same lawshe violated the Plaintiffs rights and
violated the injunction of this Court ten days before the Alabama Supreme Court did anything.
The plain language of Daviss interlocutory Order of February 20, 2015, makes clear that
he was qualifying that Order and delaying the adoption so that he could wait and see what the
Supreme Court of the United States does with the 6th Circuit cases that it will hear later this year.
He does so despite the fact that there is no just reason for him to delay this adoption because (1)
the Alabama Sanctity Laws are unconstitutional and unenforceable beyond February 9, 2015, by
Order of this Court, the 11th Circuit Court of Appeals, and the Supreme Court of the United
States and (2) he is enjoined from enforcing the very same Alabama Sanctity Laws for any
purpose.

II.

PLAINTIFFS CLAIMS ARE SUFFICIENTLY RIPE.

Daviss Motion to Dismiss and Brief, together with his Order, administrative decisions,

and judicial decisions are replete with contradictory positions that lead to contradictory
outcomes. For instance, Davis spends considerable briefing outlining that he believes the law is
not clearly established as applied to him because of the effect he chooses to place on (1) Judge
Moores February 8, 2015 Order, (2) the fact that litigation affecting other aspects of same-sex
marriage is pending in other courts, and (3) his correct prediction that the Alabama Supreme

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Court would be issuing a mandamus directing judges to disregard this Courts Orders that were
affirmed relative to a stay on the Alabama Sanctity Laws becoming void by the Supreme Court
of the United States. Despite all that, Defendant contradicts himself.
Ultimately, Davis chose to not comply with the injunction this Court entered against him
which prevents him from refusing to issue same-sex marriage licenses and certificates and from
refusing to recognize same-sex marriage for other purposes of which this adoption is one. Rather,
his actions of closing the marriage license office again at the direction of the Alabama Supreme
Court and conditioning final adoption in this matter within the February 20. 2015, Interlocutory
Order. Again, this Court specifically enjoined him from enforc[ing] the marriage laws of
Alabama which prohibit or fail to recognize same-sex marriage. (Strawser, Doc. 55, February
12, 2015).
In other words, Davis is refusing to issue same-sex marriage licenses by closing the
marriage license office (much as he did between February 9-12, 2015 leading to injunction levied
against him) and still conditioning the final adoption in this matter on future rulings of the
Supreme Court of the United States.
As applied to this adoption, he simply chose to condition his compliance with this Courts
Injunction upon conditions and future events that are extraneous to his compliance with this
Courts Injunction against him.
Despite all evidence to the contrary, including the words of his Interlocutory Order
indicating conditions of a future ruling(s) Supreme Court of the United States in cases from the

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6th Circuit, Defendant now claims that he was only premising that on an assumption that the
United States Supreme Court would rule before the dispositional hearing. (Doc. 8, p. 11).
Defendant seems to suggest that he is not really conditioning and refusing to comply with this
Courts Injunction and Orders despite doing the same things that led to the Injunction in the first
placeclosing the marriage license office so as to prevent same sex-marriage licenses from
issuing. Likewise, by qualifying his Interlocutory Order and conditioning the adoption on a
future ruling of the Supreme Court of the United States, he is fail[ing] to recognize same-sex
marriage just as he held in previously denying the former adoption petition.
Defendant claims that his Interlocutory Order has not harmed and does not continue to
harm the Plaintiff. Requiring Ms. Searcy and her family to wait for an indefinite and unknown
period of time having to guess and worry about how the Supreme Court of the United States will
fashion its decision in the 6th Circuit Cases and how that future decision will then impact Judge
Daviss determinations as to whether to grant this adoption or not has and does cause harm. It
also unconstitutionally and unconscionably infringes upon Ms. Searcy's and her families
constitutional rights in violation of this Courts Injunction and Orders.
Defendants claims simply dispute the reasoning of this Court and the plain terms of its
Order finding that
same-sex couples face harm by not having their marriages recognized and not
being allowed to marry. The harms entailed in having their constitutional rights
violated are irreparableAs long as a stay is in place, same-sex couples and their
families remain in a state of limbo with respect to adoption, child care and
custody, medical decisions, employment and health benefits, future tax
implications, inheritance and many other rights associated with marriage. The
court concludes that these circumstances constitute irreparable harm.
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(Searcy v. Strange, 1:14-cv-00208, Doc. 59 (January 25, 2015)).

This Court similarly held that the denying and delaying adoptions
also brings harm to children of same-sex couples because it denies the families of
these children a panoply of benefits that the State and the federal government
offer to families who are legally wed. Additionally, these laws further injures
those children of all couples who are themselves gay or lesbian, and who will
grow up knowing that Alabama does not believe they are as capable of creating a
family as their heterosexual friends.
Id., Doc. 53 (January 23, 2015).
Also of significance, the Supreme Court of the United States agreed and affirmed this
Courts decision when it upheld this Courts January 25, 2015, Order quoted above. After all, the
Supreme Court was deciding whether to uphold this Courts decision to lift the stay beginning on
February 9, 2015, upon the same factors which include irreparable harm to the Plaintiff and her
family. Strange v. Searcy, 574 U.S. ____ (2015)(holding The application for stay presented to
Justice Thomas and by him referred to the Court is denied.). Again, Plaintiff submits that in
effect, the Supreme Court of the United States has already held that the Alabama laws banning
same-sex marriage and out-of-state same-sex marriage recognition expired and became void on
February 9, 2015, premised in part upon a finding that a stay causes irreparable harm to same-sex
couples and their children.
Singling out Cari Searcys adoption petition for different treatment than Defendant would
provide if Cari Searcy was a man has already caused harm to her and her family and continues to
do so as of this very moment.

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For the immediate purposes of this Response, Plaintiff submits that because Cari Searcy
(and her family) has been harmed by the Defendant and continue to be, the Defendants Motion
to Dismiss is due to be denied because the Plaintiffs claims are more than sufficiently ripe. She
has been trying to adopt this child so as to better be able to protect this child and her family for
almost the entirety of this nine-year-old boys life. This family should not have to wait-and-see
what the Defendant will do any longer, and it is unfortunate that the Defendants decisions have
caused additional harm and delay necessitating Plaintiff and her family bearing the burden of this
present lawsuit.
Defendant makes a passing allegation that Plaintiff has not fully complied with all
procedural requirements incumbent on her at this point. Plaintiff has met all qualifications
necessary to receive an unqualified Interlocutory Order that does not include language indicating
that the Probate Court will not grant final adoption (no matter what) until the Supreme Court of
the Untied States rules on the 6th Circuit cases pending before it at some future point in time.
The fact that Plaintiff has met all such qualifications are not disputed by the Defendant. (Doc. 8,
p. 4, 8)(The Mobile County Probate Courts practice and procedure is to enter the
interlocutory decree upon the filing of the following.The Plaintiff has met this requirement.).
Because she has met all the requirements to receive an unqualified Interlocutory Order in
this step-parent adoption petition, Daviss Order qualifying the same in such a manner as to be
limited and qualifying the same to state that he will not issue a final adoption until the Supreme
Court of the United States does something at some future, undefined point in time violates the

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constitutional rights of the Plaintiff and violates the Injunction entered against him by this Court.
Daviss faulty argument directly contradicts previous Orders of this Court.
III.
PLAINTIFFS CLAIMS ARE NOT BARRED BY THE RES JUDICATA
DOCTRINE.
Plaintiffs Complaint is sufficiently clear: This current lawsuit challenges Hon. Don
Daviss refusal to grant final adoption in the matter despite being specifically enjoined by this
Court from enforcing the Sanctity Laws for any purpose. (Doc. 1, p. 4). In qualifying his
Interlocutory Order and by conditioning final adoption in this matter for an indefinite period of
time, Davis has exhibited new and different behavior than the claims made in the previous
lawsuit.
The timing bears this outPlaintiffs claims in this lawsuit are based upon actions of
Defendant that began on February 20, 2015, and are continuing to the present moment. Searcy v.
Strange was decided by this Court on January 23, 2015. This case arises from different facts and
circumstances than the Searcy v. Strange case, and, therefore, are not barred by the res judicata
doctrine.
Daviss contentions are akin to claiming that Driver could not sue Train Company arising
from a train-wreck because Driver had previously sued Train Company in a prior, unrelated
train-wreck. In other words, Davis has further harmed the Plaintiff (and her family) since the last
case was decided by this Court, vis-a-vis his Qualified Interlocutory Order. While it may involve
similar issues and facts, it is separate and distinct as a matter of fact and law.

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Because the Plaintiffs claims in this lawsuit are not barred by the res judicata doctrine,
the Defendants Motion to Dismiss is due to be denied.
IV.
DEFENDANT IS NOT ENTITLED TO SOVEREIGN IMMUNITY FOR
VIOLATIONS OF 42 U.S.C. 1983. DEFENDANT IS NOT ENTITLED TO QUALIFIED
IMMUNITY FOR VIOLATIONS OF 42 U.S.C. 1983 EITHER.
In his Motion to Dismiss and Brief, Defendant argues that his Court is equivalent to the
State of Alabama and that he, in his official capacity as Judge of Probate, is a state official, and
that, therefore, both are entitled to sovereign immunity. Defendant goes so far as to claim that
Judge Davis is a state official created by the Judicial Article of the Alabama
Constitution. (Doc. 9, p. 18). Davis also claims that he is entitled to Eleventh Amendment
immunity.
While Davis has mischaracterized this action as frivolous at worst, Daviss claim that
he is a state actor, and, therefore, entitled to sovereign immunity is completely false and
frivolous. Both Alabama and federal cases confirm that Defendants claim to sovereign immunity
under the Eleventh Amendment of the United States Constitution is baseless and that the direct
opposite is in fact true. The law on the matter is clear and fully resolved, and Davis is not a state
official. Probate Judges are county, and not state, officials. It has long been held that Probate
Judges are not entitled to sovereign immunity.
The truth is that in his official capacity as Judge of Probate of Mobile County, Judge
Davis is, as a matter of law, a county official, and, therefore, not entitled to sovereign immunity.
The case law makes this clear and makes equally clear that he is not entitled to qualified
immunity as well. See, e.g., excerpts from the following:
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# 1: Johnson v. Walters, 970 F. Supp. 991, 1001-03 (M.D. Ala. 1997):

2. Immunity Defenses

Having found that plaintiff sufficiently states claims of discrimination

based on race and gender to survive summary judgment, the court will now
consider whether any doctrines of immunity preclude suit against defendant
Waters in his official or individual capacities.
a) Official Capacity Liability-Eleventh Amendment Immunity
The Eleventh Amendment of the United States Constitution prohibits
federal courts from exercising jurisdiction over a lawsuit against a state, its agents
or instrumentalities except where the state has consented to be sued or waived its
immunity, or where Congress has overridden the state's immunity. Edelman v.
Jordan, 415 U.S. 651, 653, 94 S.Ct. 1347, 1351, 39 L.Ed.2d 662 (1974);
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct.
900, 906-908, 79 L.Ed.2d 67 (1984); Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct.
1139, 1145, 59 L.Ed.2d 358 (1979). Congress exercised its abrogation authority
for suits brought pursuant to Title VII of the Civil Rights Act, and therefore, the
Eleventh Amendment does not preclude suit against Waters for plaintiff's Title VII
claim. See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614
(1976); Allen v. Alabama State Bd. of Educ., 816 F.2d 575, 577 (11th Cir. 1987).
Therefore, if Eleventh Amendment immunity is available for Waters, only
plaintiff's claims under Section 1983 would be precluded. It is a disputed legal
issue, however, whether Waters is a state or local official.
Waters makes the untenable argument that as probate judge he is an
executive officer of the State of Alabama pursuant to Alabama Constitution of
1901, Article V, 112. Section 112 enumerates the following officials as officers
of the executive department: governor, lieutenant governor, attorney-general, state
auditor, secretary of state, state treasurer, superintendent of education,
commissioner of agriculture and industries, and a sheriff for each county. Probate
judges are not included in this designation nor is there a reasonable basis for the
contention that they are intended to be.
More important, the Supreme Court of Alabama long ago resolved the
issue of the official status of a county probate judge. In Hawkins v. Jefferson
County, 233 Ala. 49, 169 So. 720 (1936), the court held that since the state
constitutional provision that provides for the creation of the probate courts limited
those courts' jurisdiction to the county, and the probate judge is "elected by the
vote of a single county confined in duty to the territorial limits of that county," the
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proper construction of the constitution makes the probate judge a county

officer.
Additionally, the Alabama Supreme Court found that the county
probate judge was a proper defendant in an action by a former probate office
employee alleging breach of contract and wrongful discharge because the
judge he had the authority to employ and terminate persons working in the
probate office. Williams v. Killough, 474 So.2d 680, 681 (1985). Certainly, if a
privilege precluding suit against the probate judge was available, the court would
not have deemed the probate judge "a proper defendant." See also McDaniel v.
Woodard, 886 F.2d 311 (11th Cir. 1989) (plaintiff maintained action against
Pickens County, Alabama district court judge under Section 1983 alleging
that she was terminated in violation of her first amendment rights).
As a probate judge for Bullock County, defendant Waters is not a
state official, and, therefore, is not immune from suit under the Eleventh
Amendment of the United States. Moreover, since Waters is a county official,
he is within the definition of "persons" subject to liability under Section
1983. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018,
2036, 56 L.Ed.2d 611 (1978); Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989).
Defendant Waters's motions to dismiss and for summary judgment in his
favor on plaintiff's Title VII and Section 1983 race and gender discrimination
claims against him in his official capacity are due to be denied.
b) Individual Capacity Liability

ii. Section 1983 Claims

Defendant Waters also argues that he is entitled to qualified immunity for
plaintiff's Section 1983 claim against him in his individual capacity. Qualified
immunity protects "government officials performing discretionary functions from
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person should have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.
2d 396 (1982). The issue that the court must resolve is "whether the legal norms
allegedly violated by the defendant were clearly established at the time of the
challenged actions." Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816,
86 L.Ed.2d 411 (1985). See also Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct.
1789, 1792-1793, 114 L.Ed.2d 277 (1991). Thus, if the contours of the right that
defendant allegedly violated is sufficiently clear such that a reasonable official
would have understood that his conduct was unlawful, the defendant is not

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entitled to qualified immunity. Anderson v. Creighton, 483 U.S. 635, 640, 107
S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).
A person's right to be free from discrimination in the workplace because of
her gender or race has been long established. Nicholson v. Georgia Dept. of
Human Resources, 918 F.2d 145 (11th Cir. 1990); Yeldell v. Cooper Green Hosp.,
Inc., 956 F.2d 1056 (11th Cir. 1992). Thus, if defendant Waters is found to have
terminated plaintiff because of her gender or race, such conduct violates clearly
established constitutional rights, and this would have been known to a reasonable
official in Waters's circumstances. Accordingly, Waters is not entitled to qualified
immunity for plaintiff's race and gender discrimination claims as enforced under
Section 1983.
In summary, the court finds that plaintiff's claim that she was terminated
because of her race and gender in violation of Title VII and the equal protection
clause of the Fourteenth Amendment as it is enforced under Section 1983 survives
Waters's motions to dismiss and for summary judgment. Plaintiff may proceed
against Waters in his official capacity only on her Title VII claim but Waters
may be subject to liability under Section 1983 in his official and individual
capacities.
(emphasis added).
The case law and black letter law is clearDavis is not entitled to sovereign immunity.
Likewise, he is not entitled to qualified immunity, and he is subject to damages in his personal
capacity. Searcy has alleged the violations of her constitutional rights by Defendant. These rights
have been clearly established by this Court and further supported by Orders of the 11th Circuit
and the Supreme Court of the United States. Clarity of Plaintiffs rights are all the more evident
given that Davis is specifically enjoined from enforcing the Alabama Sanctity Laws ban on
recognizing same-sex marriage. In an Order granting an injunction against Davis, this Court
specifically held that he infringes on Constitutional rights of all same-sex couples by (1) refusing
to grant same-sex marriage licenses and (2) refusing to recognize same sex marriage. Rarely, if

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ever, could a Plaintiffs constitutional rights be made any more clearer to the Defendantthis
Court has even specifically ordered him to not do so.
Searcy has adequately pled the specific facts necessary to entitle her to relief, and an
injunction is in place to prevent Davis from interfering with those rights. Therefore, Davis is not
entitled to qualified immunity.

#2: Scott v. Estes, 60 F. Supp. 2d 1260, 1272-73 (M.D. Ala. 1999):

Because Scott has alleged that Estes deprived her of a constitutional right,
because the right was clearly established during the period in which Estes
allegedly deprived her of that right, and because she has set forth with specificity
facts to support that Estes deprived her of that right, Estes is not entitled to
qualified immunity. Scott may, therefore, proceed against Estes in his individual
capacity with her sexual harassment claim under 1983.
The court also rejects Estes and Montgomery County's argument that Estes
is a state employee entitled in his official capacity to immunity under the eleventh
amendment to the United States Constitution. Admittedly, while neither the 1901
Alabama Constitution nor the 1975 Alabama Code expressly lists the officers of
the State's judicial division, the Alabama Constitution vests the judicial power of
the State in a "unified judicial system," which includes a probate court. 1901 Ala.
Const. amend. 328, 6.01(a). A probate judge is, therefore, a member of the
State's unified judicial system.
The Alabama Constitution, however, designates the Montgomery County
Judge of Probate as a "county officer" and requires the county to pay his salary.
1901 Ala. Const. amend. 4. In addition, state law provides that, unless otherwise
provided by local law, the county probate judge shall be a member of the county
commission and shall serve as its chair. See 1975 Ala.Code 11-3-1. And other
provisions of the Alabama Constitution and the 1975 Alabama Code indicate that
probate judges are not state officers, at least for purposes related to their
compensation. See, e.g., 1901 Ala. Const. art. VI, 150 (excepting probate judges
from among those judges whose compensation may not be diminished during
their terms in office); 1901 Ala. Const. amend. 328, 6.09(a) ("A state judicial
compensation commission is hereby created which shall recommend the salary
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and expense allowances to be paid from the state treasury for all the judges of this
state except for judges of the probate court."); 1975 Ala.Code 12-10-4
(excepting only probate judges and municipal judges from the judiciary for
purposes of the Judicial Compensation Commission's recommending to the
legislature the salary and expense allowances to be paid to judges from the state
treasury); 1975 Ala.Code 12-1-15(a) (excepting probate judges and municipal
judges, but not other judges, from receiving benefits received by state employees).
And, finally, both state and federal courts have held or indicated that
Alabama probate judges are county, and not state, officials. See, e.g., Johnson
v. Waters, 970 F.Supp. 991, 1001-02 (M.D.Ala.1997) (Carroll, M.J.); Hawkins v.
Jefferson County, 233 Ala. 49, 169 So. 720, 722 (1936). Therefore, for these
reasons, the court finds that the Montgomery County Judge of Probate is a
county, not a state, official.
(emphasis added).

Again, Plaintiff will not belabor the point that Davis is not entitled to sovereign
immunity. Plaintiff will, however, take the opportunity to again state that Searcy has alleged the
violations of her constitutional rights. These rights have been clearly established by this Court
and further supported by Orders of the 11th Circuit and the Supreme Court of the United States.
The right is made ever more clear given that Davis is enjoined from enforcing the Alabama
Sanctity Laws ban on recognizing same-sex marriage. Searcy has adequately pled the specific
facts necessary to entitle her to relief. Therefore, Davis is not entitled to qualified immunity.
V.

DAVISS CLAIM THAT THE ADOPTEES OVERALL WELL-BEING IS

OF PRIMARY IMPORTANCE IS DEMONSTRABLY FALSE IN THE
PRESENT SITUATION.
Davis claims that an adoptees over all well-being is of primary importance to him in

making determinations on adoptions. Plaintiff does not dispute that as a general principle, but
Plaintiff does dispute that Davis is delaying this adoption because he is concerned about the
overall well-being of Kari Searcy and Kim McKeands son. Every day that his adoption is
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delayed while heterosexual couples adoptions go forward without waiting for rulings on 6th
Circuit cases before the Supreme Court of the United States is a day that Searcy, McKeand and
the minor child are harmed.
This Court held that children of same-sex couples are just as worthy of protection and
recognition by the State as are the children being raised by same-sex couples because doing so
humiliates thousands of children now being raised by same-sex couples. The law in question
makes it even more difficult for the children to understand the integrity and closeness of their
family and its concord with other families in their community and in their daily lives. Searcy v.
Strange, Doc. 53, p. 9 (January 23, 2015). This Court held that it negatively impacts the financial
status of children and their families and causes denial of state and federal benefits. Id. This Court
also held that those children are further injured because they will grow up knowing that
Alabama does not believe they are as capable of creating a family as their heterosexual friends.
Id. at p. 10.
This Court similarly held that every day same-sex marriage recognition is delayed the
Plaintiff and the minor child are irreparably harmed because same-sex couples and their
families remain in a state of limbo with respect to adoption, child care and custody, medical
decisions, employment and health benefits, future tax implications, inheritance and many other
rights associated with marriage. Searcy v. Strange, Doc. 59 (January 25, 2015)(denying
extension of stay)(denial of extended stay upheld by the 11th Circuit and the Supreme Court of
the United States).

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VI.

AS APPLIED TO THIS DEFENDANT, THE LAW COULD NOT BE MORE

CLEARLY ESTABLISHED.

The most applicable law to the Defendant was enunciated by this Court: This injunction
binds Judge Don Davis and all his officers, agents, servants and employees, and others in active
concert or participation with any of them, who would seek to enforce the marriage laws of
Alabama which prohibit or fail to recognize same-sex marriage. (Strawser v. Strange, Doc.
55, p. 8 (February 12, 2015)).
Davis claims that Judge Moores Order of February 8, 2015, puts him in a double-bind.
Undoubtedly, now that the Alabama Supreme Court has ordered all Probate judges from issuing
same-sex marriage licenses, Davis will claim that this bolsters his position notwithstanding the
fact that that Order specifically exempts him.
Defendant has not challenged or appealed this Courts Injunction or the other Orders of
this Court, the 11th Circuit, or the Supreme Court of the United States.
Plaintiff submits that this Injunction is binding on Davis and specifically precludes him
from following any state law (including an Order from Judge Roy Moore or an Order of the
Alabama Supreme Court). This is made all the more obvious given that Judge Moore himself
was removed from the bench for refusing to comply with a federal injunction.

VII.

DEFENDANTS VIOLATIONS OF PLAINTIFFS CONSTITUTIONAL

RIGHTS ARE DONE WILLFULLY, RECKLESSLY, AND WITH MALICE.
REGARDLESS, PLAINTIFF IS NOT REQUIRED TO PROVE THESE
CLAIMS AT THIS STAGE OF LITIGATION BECAUSE DAVIS FILED A
MOTION TO DISMISS AND NOT A MOTION FOR SUMMARY
JUDGMENT.

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Plaintiffs Complaint alleges that Davis violated Searcys 14th Amendment rights and
doing so was and is intentional, malicious, willful, wanton and in gross disregard for Plaintiffs
Constitutional Rights. (Doc. 1, 23 and 27). Following this Courts specific injunction directed
to Defendant, there can be no doubt that the Defendant was on notice that refusing to recognize
same-sex marriage violates the Plaintiffs constitutional rights.
Being conscious of a right and purposefully disregarding it does amount to willful and/or
malicious, and/or intentional, and or/ wantonness and/or amounts to a gross disregard for
Plaintiffs rights. Yet, he decided to impose, in effect, an indefinite stay on her adoption petition.
He is aware, via previous Orders of this Court, the 11th Circuit Court of Appeals, and the
Supreme Court of the United States that Plaintiff is irreparably harmed every time her marriage
to Kimberly McKeand is not recognized. This is especially true when she is not allowed to
receive and provide the most basic of protections on behalf of what is, in reality (but not yet in
law due to the Defendants choices) her son. Defendants position is unsurprising given he claims
that he has not harmed the Plaintiff and is looking out for the minor childs best interests.
Defendant is also aware that irreparable harm is inflicted on the minor child K.S. when
his parents marriage is not recognized. Davis cannot claim ignorance on these points, and,
therefore, the evidence will ultimately show that his actions were intentional, willful, malicious,
wanton, and in gross disregard for the Plaintiffs judicially defined constitutional rights. Harming
a parent and then harming that parents child and doing it with full knowledge that you are
enjoined from doing so meets the most basic definition of those terms as alleged in the
Complaint.

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CONCLUSION
Davis is now asking for an additional eleven days to respond to the Supreme Court of
Alabamas Order of March 3, 2015. (A copy of Daviss Motion for Extension of Time is included
herewith as Exhibit A.). Yet, that has no bearing on this motion or the determinations Plaintiff
requests of the Court.
No court can overrule this Court save for the 11th Circuit Court of Appeals and/or the
Supreme Court of the United States. The Alabama Supreme Courts determination on Daviss
current Motion for Extension of time and resolution of the underlying issue of the Mandamus
Orders effect on Davis is meaningless because that Court is powerless to undo this Courts
injunction.
That is so because this Court has consistently demonstrated that it does enforce our most
basic jurisprudential concepts of federalism, stare decisis, and comity.
Plaintiff offers that Davis never qualifies his Interlocutory Order or delays adoptions of
heterosexual step-parent adoptions. He has no valid, legal, constitutional reason for doing so as
applied to Plaintiff and her family.
Plaintiff hereby respectfully requests that the Court deny the Plaintiffs Motion to
Dismiss.
Respectfully submitted this 6th day of March, 2015,
/s/ David G. Kennedy (KEN049) /s/
David G. Kennedy
ASB 1238-I72K
The Kennedy Law Firm
P.O. Box 556
Mobile, Alabama 36601
251-338-9805
david@kennedylawyers.com
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Of Counsel for the Plaintiff:

Christine C. Hernandez
ASB 8252-I64H
The Hernandez Firm, LLC
P.O. Box 66174
Mobile, Alabama 36660
251-479-1477
christine@hernandezlaw.comcastbiz.net

CERTIFICATE OF SERVICE
I hereby certify that I, David G. Kennedy, have filed the foregoing this 6th day of March, 2015,
using the CM/ECF electronic system which will send notice of the above and a copy of the same
to all counsel of record.
/s/ David G. Kennedy (KEN049) /s/
David G. Kennedy
ASB 1238-I72K
The Kennedy Law Firm
P.O. Box 556
Mobile, Alabama 36601
251-338-9805
david@kennedylawyers.com

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