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Shuler v. Garrison

United States District Court, N.D. Alabama, Southern Division

January 13, 2017

ROGER SHULER, et al., Plaintiffs,
v.
JESSICA MEDEIROS GARRISON, et al., Defendants.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This case is before the court on Motions to Dismiss filed by the following Defendants: Craft, Nowlin & Associates, Nowlin, Angela Crider, Preston Crider, Crow, Riley, Garrison, Gore, Millirons, Odom, Wermuth, Spartan Value Investors, Jackson, Mobley, Dillard, Baxley, JPMorgan Chase Bank, Birmingham Water Works, Al.com, Alabama Media Group, Strange, Jag Investment Strategies, James Williams, Lara Williams, Marie Claire, Welch, Cliff Sims, Yellowhammer News, and Duke.[1] (Docs. # 11, 18, 19, 21, 22, 27, 28, 29, 30, 38, 39, 41, 54, 75, 77, 78, 79, 80, 84, 88, 132, 141, 146). The Motions have been fully briefed. Additionally, Plaintiffs have filed a “Request for Leave to Respond to Defendant Rob Riley's Reply, ” which includes a brief Plaintiffs ask the court to consider. (Doc. # 118). The court grants Plaintiffs' request as to that matter, and has considered their brief (Doc. # 118) accordingly.

         II. Factual Background

         This case arises out of the foreclosure of a home Plaintiffs previously owned. Because the contentions made in Plaintiffs' Amended Complaint rely on an assumed conspiracy between at least twenty-nine actors, and because many of the defendants argue for dismissal based on the legal insufficiency of Plaintiffs' factual allegations, the court sets out Plaintiffs' factual allegations in their entirety rather than providing a summation of the facts pled by Plaintiffs. Plaintiffs allege as follows:

33. In March 1990, the Shulers purchased the property at 5204 Logan Drive in Birmingham, executing a mortgage with Troy Nichols. The Shulers refinanced with Troy Nichols in 1993. They later received notice that their mortgage was held by Chase Mortgage, a subsidiary of JPMorgan Chase Bank.
34. In May 2008, powerful political forces connected to then Gov. Bob Riley cheated Roger Shuler out of his job as an editor at the University of Alabama at Birmingham (UAB), where he had worked for 20 years. Shuler became unemployed because his personal blog, Legal Schnauzer, wrote forcefully and accurately about corruption in Alabama state and federal courts. Audiotaped evidence proves Shuler was “fired” because of his coverage about the unlawful political prosecution of former Gov. Don Siegelman, who was Bob Riley's chief political opponent.
35. For good measure, the same political forces cheated Carol Shuler out of her job in 2009 at Infinity Insurance Co., which includes at least one major Riley ally (Drayton Nabers) on the board of directors.
36. The Shulers filed federal employment-discrimination/retaliation lawsuits, but both were dismissed at summary judgment in flagrantly unlawful rulings by U.S. judges William Acker Jr. and Abdul Kallon, respectively. Roger Shuler was allowed to conduct no discovery in his case, Carol Shuler never received adequate responses to key discovery requests in her case, and the court never compelled Infinity to engage properly in discovery.
37. From 1990 to 2012, roughly 23 years, the Shulers always timely made their mortgage payments. But the impact of unemployment and court-related cheat jobs caused them to start falling behind on their mortgage.
38. The Shulers received a forbearance from Chase, and were in the process of starting to catch up on their mortgage payments, when Rob Riley and Liberty Duke filed a defamation lawsuit against both Shulers (even though Carol had nothing to do with Legal Shnauzer or the blog posts in question at the time). Roger Shuler had reported that Riley and Duke had engaged in an extramarital affair, and their lawsuit claimed Shuler's reporting was false and defamatory.
39. At about the same time, Jessica Medeiros Garrison (like Riley, a Republican political operative and ally of U.S. Circuit Judge William Pryor) filed a defamation lawsuit against Roger Shuler, claiming his reports about her extramarital affair with Attorney General Luther Strange were false and defamatory.
40. Riley and Duke sought a preliminary injunction against both Shulers, even though more than 200 years of First Amendment law have forbidden such prior restraints. Riley and Duke sought a contempt order and incarceration of both Shulers - neither action had any basis in law - when the Shulers failed to appear at a hearing. The Shulers did not appear because they had not been lawfully served and challenged service via a Motion to Quash, which the court never heard. An attorney's review of the sealed record later showed that no summons had been issued at the time of the hearing, meaning the Shulers had multiple grounds for not appearing in court - No. 1 being that they had not been summoned.
41. The Shulers were waiting for a ruling on their Motion to Quash when Shelby County deputies entered their basement garage on Oct. 23, 2013, beat up Roger Shuler, doused him with pepper spray, and took him to the Shelby County Jail for a stay of more than five months. Roger Shuler became the only journalist in the Western Hemisphere to be incarcerated in 2013, the first in the United States since 2006, and apparently the only journalist in U.S. history to be incarcerated because of a contempt order related to an unlawful preliminary injunction in a defamation case.
42. Roger Shuler's arrest was not connected to just the Riley/Duke case. On Oct. 22, 2013, Shuler wrote a post about an apparent sweetheart deal Garrison received on a $400, 000 home in Mountain Brook, after she had been forced to give up her job in AG Luther Strange's office after her ex-husband filed a complaint related to child custody. One day after the report about the Garrison house deal, and its ties to Luther Strange, Roger Shuler was beaten inside his own home and arrested - all with deputies showing no warrant, never stating they had a warrant, and not stating their reasons for being on the premises. Given that no warrant ever has been produced, it appears Roger Shuler was the victim of a state-sanctioned kidnapping - coordinated by Garrison, Strange, Riley, Duke, and perhaps others.
43. With Roger Shuler in jail and Carol Shuler afraid to leave the house for fear of being arrested, the Shulers had no chance to address issues related to their mortgage. Despite that, Chase provided no notice that the forbearance was going to be brought to a close.
44. While in jail, Roger Shuler attended two hearings in the Garrison lawsuit, but he was shackled at the wrists and ankles and essentially was unable to defend himself.
45. In March 2014, just as Roger Shuler was about to be released from jail, the Shulers received notice from attorney Robert Wermuth, of the Stephens Millirons law firm in Huntsville, that Chase was foreclosing on the Shuler's home of almost 25 years.
46. On March 26, 2014, Roger Shuler was released from jail - and he immediately had to work frantically with his wife in an effort to save their house. Alabama law holds that homeowners under threat of foreclosure must have at least 30 days to seek a solution - and because of Roger Shuler's incarceration - the Shulers did not even have that much time. After five months in jail, Roger Shuler was suffering from a number of physical (loss of 25 pounds, dehydration) and psychological (PTSD) issues and was unable to address the complex issues associated with foreclosure.
47. The Shulers were unable to obtain the financial or legal resources to save their home in such a short time. On April 29, 2014, their home was auctioned on the steps of the Shelby County Courthouse.
48. Attorney Robert Wermuth and the Stephen Millirons law firm of Huntsville conducted the foreclosure process. But they provided the Shulers with no information once the sale was completed. The Shulers did not even receive a copy of the foreclosure deed.
49. A company called Spartan Investors, led by CEO Clayton Mobley and property manager Linday Jackson, left notice on the Shulers' door that they had purchased the property. Attorney and auctioneer James J. Odom conducted the actual sale.
50. The Shulers received notice from Alabama Power and Birmingham Water Works that their accounts had been placed in Spartan's name. At one point, Spartan unlawfully had the water to the Shulers' home shut off.
51. The Shulers, in July 2014, were forced to move to Springfield, Missouri (where Roger Shuler grew up), and they wound up losing almost all of their possessions - either during the move under traumatic conditions or during an unlawful eviction in Missouri.
52. After moving out of state and with his home torn asunder, Roger Shuler had no way to defend the Garrison case or even appear - even though he had made multiple appearances while in jail. During one of those appearances, Shuler inexplicably spent a week at the Jefferson County Jail, which deservedly has been the subject of litigation regarding its inhumane conditions for prisoners.
53. With Shuler unable to defend himself, and even though he received no notice of a default hearing, Garrison was awarded a $3.5-million default judgment that has no basis in fact or law. In both the Riley/Duke and Garrison/Strange cases, there was no jury trial as required by First Amendment law (in fact, there was no trial at all in either case), meaning Shuler's reporting was not false or defamatory, as a matter of law.
54. Who benefited most from the foreclosure on the Shulers' home? The top two answers would be Jessica Garrison and Luther Strange. They were able to conclude Garrison's dubious lawsuit, and even get a default judgment, without ever having to face discovery or adversarial questioning of any kind. Jessica Garrison, which inexplicably has been sealed from public view, has remained unsealed. (Sic). It would have been a key piece of evidence had Roger Shuler not gone through a foreclosure and been able to defend himself.
55. According to press reports, Jessica Garrison committed perjury during a hearing on her lawsuit. It's unclear if Luther Strange also lied under oath, but press reports make that appear likely.
56. Garrison and Strange engaged in a conspiracy to cheat the Shulers out of their home. Among those aiding in the effort were Garrison attorney Bill Baxley, Rob Riley, Robert Wermuth and the Stephen Millirons law firm, unknown officials from JPMorgan Chase Bank, Liberty Duke and attorney Christina Crow, and probably others who were unknown at this time.
57. Garrison and Strange hardly were the only ones to benefit from the Shulers' foreclosure. Mere days after the Shulers moved out, Spartan Value Investors “flipped” the property to another real-estate investment outfit, called JAG Investment Strategies, led by James F. and Lara G. Williams. JAG obtained a loan from Nowlin & Associates, led by Charles Nowlin and Justin Craft, apparently to renovate and market the Shulers' home. Public records show that Preston and Angela Gulledge Crider, a married couple, bought the property at a price well below what it would have brought on the regular market. The Shulers? They were out a home in which they had invested 25 years of their lives.
58. A friend helped the Shulers obtain a copy of the foreclosure deed, which showed the house drew a price about $9, 000 above the amount owed on the mortgage. That amount, therefore, was the Shuler's equity, and it was due to be paid to them. But Wermuth and Stephens (sic) Millirons never fulfilled their duties to disburse the funds to the Shulers. Instead, Roger Shuler had to contact the firm, only to be told that the money had been sent to Liberty Duke, as an alleged creditor in the Riley/Duke lawsuit. There never was a trial or final judgment in the Riley/Duke case, so Liberty Duke could not possibly have any lawful claim to the Shulers' equity funds. She basically stole almost $9, 000 from the Shulers, apparently with the help of lawyers Rob Riley and Christina Crow.
59. In April 2015, Garrison was granted a $3.5-million default judgment against Roger Shuler. Public records show that Shuler neither received nor was sent notice of the default-judgment hearing, so the judgment is void as a matter of law. Garrison attorney Joel Dillard told the press: “She is the righteous, kind, gracious working mother of a young son she adores, and this fact magnified the outrageous wrong. Shuler's statements about her were not just libelous, they were plucked from thin air, and were cyber-bullying of the worst order.”
60. In October 15, 2015, Garrison was the subject of an “as-told-to” story about her $3.5-million default judgment against Roger Shuler, in Marie Claire, an international women's magazine and Web site that is published in the United States by Hearst Corporation. Title of the article (sic), written by Liz Welch, is “A blogger claimed I had an affair with my boss, and I sued him for $3.5 million.” In the story, Garrison falsely intimates that I (sic) was stalking her. She falsely claims I (sic) wrote that Luther Strange was the father of her son. She falsely claims there was a trial in the defamation case.
61. Yellowhammer News, a conservative political Web site run by publisher Cliff Sims, picked up the Marie Claire (MC) article and ran it verbatim. Al.com reporter Leada Gore, an employee of Alabama Media Group, picked up on the MC article and repeated a number of Garrison's false statements, including the claim that I (sic) had reported her son was Luther Strange's child. Gore and al.com (Alabama Media Group) also provided a link to the full MC article.

(Doc. # 10 at ¶¶ 33-61).

         III. Standard of Review

         The Federal Rules of Civil Procedure require only that the complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Still, the complaint must include enough facts “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).[2] Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked assertion[s]” without supporting factual allegations. Twombly, 550 U.S. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the nonmoving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

         To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. 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). Although “[t]he plausibility standard is not akin to a ‘probability requirement, ' ” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support the claim. Twombly, 550 U.S. at 556. After Iqbal, which applied the Twombly pleading standard in a civil rights/qualified immunity context, “there is no longer a ‘heightened pleading' standard in ‘cases governed by Rule 8(a)(2), including civil rights [cases]' under § 1983.” Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014) (quoting Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010)). The Supreme Court has recently identified “two working principles” for a district court to use in applying the facial plausibility standard. First, in evaluating motions to dismiss, the court must assume the veracity of well-pleaded factual allegations; however, the court does not have to accept as true legal conclusions when they are “couched as . . . factual allegation[s].” Iqbal, 556 U.S. at 678. Second, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679.

         Application of the facial plausibility standard involves two steps. Under prong one, the court must determine the scope and nature of the factual allegations that are well-pleaded and assume their veracity; and under prong two, the court must proceed to determine the claim's plausibility given the well-pleaded facts. That task is context specific and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense . . . to infer more than the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Id.

         Nevertheless, “pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys, and will, therefore, be liberally construed.” Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). Therefore, “wildly implausible allegations in the complaint should not be taken to be true, but the court ought not penalize the litigant for linguistic imprecision in the more plausible allegations.” Miller v. Donald, 541 F.3d 1091 (11th Cir. 2008).

         IV. Counts One, Two, and Three (Violations of the First, Fourth, and Fourteenth Amendments)

         The court will assess each of the counts pled in Plaintiffs' Amended Complaint, [3] in turn. Counts One, Two, and Three of Plaintiffs' Amended Complaint (Doc. #10) state causes of action for constitutional violations asserted by way of 42 U.S.C. §1983 (“Section 1983”). Plaintiffs allege Counts One, Two, and Three against Defendants Garrison, Strange, Baxley, Duke, Crow, and Riley. The court will also address the facts pled against each named defendant.

         A. Plaintiffs Have Not Established that Defendants Garrison, Baxley, Crow, Riley, Duke are State Actors Suable under Section 1983

         Count One of Plaintiffs' Amended Complaint asserts that Defendants Garrison, Baxley, Crow, Riley, and Duke committed violations of the First Amendment of the United States Constitution. In support of their claim, Plaintiffs incorporate paragraphs 1-60 of their Amended Complaint. Plaintiffs further claim that the named Defendants, “acting under the color of state law or in conjunction with state actors, knowingly and maliciously took steps to retaliate against [Plaintiffs] for Roger Shuler's reporting and to stop future reporting.” (Doc. #10 at ¶ 62). Plaintiffs contend that the named Defendants, because of Plaintiff Roger Shuler's reporting on his blog, retaliated against him by seeking his unlawful arrest and initiating a wrongful foreclosure of Plaintiffs' home. (Doc. #10 at ¶ 63).

         Count Two of Plaintiffs' Amended Complaint asserts that Defendants Garrison, Baxley, Duke, Crow, and Riley committed violations of the Fourth Amendment of the United States Constitution. In support of their claim, Plaintiffs incorporate paragraphs 1-60 of their Amended Complaint. Plaintiffs further claim that the named defendants, “acting under color of state law or in conjunction with state actors, subjected [Plaintiffs] to unlawful seizures, in violation of the Fourth Amendment.” (Doc. #10 at ¶ 65). Plaintiffs contend that the named Defendants, by their actions, caused Plaintiffs' real and personal property to be unlawfully seized. (Doc. # 10 at ¶ 66).

         Count Three of Plaintiffs' Amended Complaint asserts that Defendants Garrison, Baxley, Duke, Crow, and Riley committed violations of the Fourteenth Amendment of the United States Constitution. In support of their claim, Plaintiffs incorporate paragraphs 1-60 of their Amended Complaint. Plaintiffs further claim that the named Defendants “took steps to ensure that [Plaintiffs'] rights to due process and equal protection would be trampled, in violation of the Fourteenth Amendment.” (Doc. # 10 at ¶ 68).

         Counts One, Two, and Three are due to be dismissed as to Defendants Garrison, Baxley, Duke, Crow, and Riley because Plaintiffs have failed to allege facts demonstrating that they were state actors and liable for suit under Section 1983.

         To state a claim for relief in § 1983 action, a plaintiff “must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law…. the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

         The Eleventh Circuit has employed three tests in determining whether the actions of a private person or entity may properly be attributed to the state:

(1) [T]he public function test; (2) the state compulsion test; and (3) the nexus/joint action test. The public function test limits state action to instances where private actors are performing functions “traditionally the exclusive prerogative of the state.” The state compulsion test limits state action to instances where the government “has coerced or at least significantly encouraged the action alleged to violate the Constitution.” The nexus/joint action test applies where “the state has so far insinuated itself into a position of interdependence with the [private party] that it was a joint participant in the enterprise.” We must determine on a case-by-case basis whether sufficient state action is present from a non-state actor (defendant) to sustain a section 1983 claim.

Willis v. Univ. Health Servs., Inc., 993 F.2d 837, 840 (11th Cir. 1993) (internal citations omitted).

         Because Plaintiffs' Amended Complaint fails to plead facts sufficient to show (under any of the above tests) that Defendants Garrison, Baxley, Duke, Crow, and Riley were state actors, Plaintiffs' § 1983 claims against them fail as a matter of law.

         1.Defendant Garrison

         Plaintiffs have more to say about Defendant Garrison than most of the Defendants named in the Amended Complaint, and make a number of factual allegations regarding her. Plaintiffs contend that “Defendant Jessica Medeiros Garrison is an attorney licensed to practice law in Alabama, with the Balch & Bingham law firm of Birmingham, Alabama.” (Doc. # 10 at ¶ 4). Further, “[Defendant] Jessica Medeiros Garrison (like [Defendant] Riley, a Republican political operative and ally of U.S. Circuit Judge William Pryor) filed a defamation lawsuit against Roger Shuler, claiming his reports about her extramarital affair with Attorney General Luther Strange were false and defamatory.” (Doc. # 10 at ¶ 39).

         In describing his former arrest, Plaintiff Roger Shuler contends his “arrest was not connected to just the Riley/Duke case. On [October] 22, 2013, Shuler wrote a post about an apparent sweetheart deal [Defendant] Garrison received on a $400, 000 home in Mountain Brook, after she had been forced to give up her job in AG Luther Strange's office after her ex-husband filed a complaint related to child custody. One day after the report about the Garrison house deal, and its ties to Luther Strange, Roger Shuler was beaten inside his own home and arrested - all with deputies showing no warrant, never stating they had a warrant, and not even stating their reasons for being on the premises. Given that no warrant ...


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