United States District Court, S.D. Alabama, Southern Division
D. ANGELINA KENNEDY, Plaintiff,
WARREN PROPERTIES, LLC, et al., Defendants.
REPORT AND RECOMMENDATIONS
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
action is before the Court on the motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) (Doc. 19) filed by
Defendants Judge Matthew Green, David Wible, and Derrick
Williams; the motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) (Doc. 22) filed by Defendant Ashley Rich;
and the motion to dismiss, construed as a motion for judgment
on the pleadings under Federal Rule of Civil Procedure 12(c)
(Doc. 24), filed by Defendant Michael Kaoui. The Court has
referred the foregoing motions to the undersigned Magistrate
Judge for appropriate action under 28 U.S.C. §
636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala.
GenLR 72(a). See S.D. Ala. GenLR 72(b); (7/14/2017 &
7/17/2017 electronic referrals). The motions have been
briefed (see Docs. 43, 45, 46, 47, 48, 51) and are
now under submission (see Doc. 40). Upon
consideration, the undersigned RECOMMENDS
that the Movant Defendants' motions be
Applicable Legal Standards
deciding a motion to dismiss under Rule 12(b)(6) for
“failure to state a claim upon which relief can be
granted, ” the Court must construe the complaint in the
light most favorable to the Plaintiffs, “accepting all
well-pleaded facts that are alleged therein to be
true.” E.g., Miyahira v. Vitacost.com,
Inc., 715 F.3d 1257, 1265 (11th Cir. 2013). Under Rule
12(c), “judgment on the pleadings is appropriate where
no issue of material fact remains unresolved and the moving
party is entitled to judgment as a matter of law…When
reviewing judgment on the pleadings, [the Court] must take
the facts alleged in the complaint as true and view them in
the light most favorable to the nonmoving party.”
Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir.
R. Civ. P. 8(a)(2) requires that a pleading contain ‘a
short and plain statement of the claim showing that the
pleader is entitled to relief' in order to give the
defendant fair notice of what the claim is and the grounds
upon which it rests.” Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation
omitted). “ ‘While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.' ”
Id. at 1289 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167
L.Ed.2d 929 (2007)). A complaint's “
‘[f]actual allegations must be enough to raise a right
to relief above the speculative level ... on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).' ” Id. (quoting
Twombly, 550 U.S. at 555). “[T]o survive a
motion to dismiss, a complaint must now contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.' ”
Id. (quoting Twombly, 550 U.S. at 570).
While this “plausibility standard is not akin to a
‘probability requirement' at the pleading stage,
… the standard ‘calls for enough fact to raise a
reasonable expectation that discovery will reveal
evidence' of the claim.” Id. (quoting
Twombly, 550 U.S. at 556).
“ ‘the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions.' ” Id. at 1290
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Under the plausibility standard, “
‘where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not “show
[n]”-“that the pleader is entitled to
relief.” ' ” Id. (quoting
Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2))). Iqbal “suggested that courts
considering motions to dismiss adopt a ‘two-pronged
approach' in applying these principles: 1) eliminate any
allegations in the complaint that are merely legal
conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief.' ” Id. (quoting Iqbal,
556 U.S. at 679). “Importantly, … courts may
infer from the factual allegations in the complaint
‘obvious alternative explanation[s], ' which
suggest lawful conduct rather than the unlawful conduct the
plaintiff would ask the court to infer.” Id.
(quoting Iqbal, 556 U.S. at 679 (quoting
Twombly, 550 U.S. at 567)).
the existence of an affirmative defense will not support a
rule 12(b)(6) motion to dismiss for failure to state a claim.
A district court, however, may dismiss a complaint on a rule
12(b)(6) motion when its own allegations indicate the
existence of an affirmative defense, so long as the defense
clearly appears on the face of the complaint.”
Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir.
1993) (quotation omitted)).
document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam) ((citation
and quotations omitted)). “Yet even in the case of
pro se litigants this leniency does not give a court
license to serve as de facto counsel for a party, or to
rewrite an otherwise deficient pleading in order to sustain
an action.” Campbell v. Air Jamaica Ltd., 760
F.3d 1165, 1168-69 (11th Cir. 2014) (quotation omitted).
well-pleaded allegations in Plaintiff D. Angelina
Kennedy's amended complaint (Doc. 4), which is the
operative pleading in this action,  in May 2002 she moved into
an apartment complex in Mobile, Alabama, operated by
Defendant Warren Properties, Inc. (Doc. 4 at 3, ¶ 1).
Kennedy alleges that, over the course of several years,
Warren Properties and its agents refused her repeated
requests for a first-floor apartment to accommodate her
medical conditions. She also alleges that, over the years she
has lived at the apartment complex, she experienced a number
of instances of harassment and intimidation by other tenants
and visitors. Though she complained to Warren Properties
staff, those individuals refused to take any meaningful
action and ended up allegedly participating in the
relevant to the claims against the Movant Defendants,
sometime in 2011 an unknown juvenile white male began
stalking and sexually harassing Kennedy, an African-American
female. (See id., ¶¶ 2, 5). After Kennedy
complained of this to an apartment manager, the manager
allegedly revealed Kennedy's identity and apartment
number to Defendant Brandi Sheppard, a white female tenant at
the complex and the mother of the harassing juvenile male,
who “immediately began harassing” her and
recruited others to do the same, with the harassment,
including the use of “racial slurs, ” continuing
through 2011 and into 2012. (see Id. at 3 - 7).
“By May 19, 2012, the police had told [Kennedy to get
surveillance video for [her] protection and [her] property.
Brandi Sheppard objected to [Kennedy] having it. She told the
supervisor [Kennedy] was videotaping men, women, and
children.” (Id. at 4, ¶ 32).
23, 2012, Kennedy was allegedly assaulted by Defendants
Veronica R. Young, Nickie Kidd, Angela Santos, and Duncan
Cunningham while in the apartment complex office, where two
Warren Property staff members watched without intervening.
(Id. at 7, ¶ 38). The assault allegedly knocked
Kennedy unconscious and knocked out most of a tooth.
(Id., ¶¶ 39 - 40). “July 23, 2012,
coincidentally, was the day Brandi Sheppard was arraigned in
court for the May 19, 2012, harassment of” Kennedy.
(Id., ¶ 41). Kennedy alleges that Defendant
Green, a judge of the City of Mobile Municipal Court (see
Id. at 2), blocked [her] from signing a warrant for
assault against Veronica Young” and Kennedy “had
to fight that.” (Id. at 7, ¶ 42). This is
the extent of Green's alleged involvement in the
circumstances underlying Kennedy's claims.
Rich, the Mobile County District Attorney; Wible and
Williams, both Mobile city attorneys; and Kaoui, a private
attorney (see Id. at 2), Kennedy alleges as follows:
I was given a Case Number for Witness Intimidation, the
District Attorney's office refused. I was told it
doesn't fit the criteria for a warrant. Then, Ms Giardino
(?) said, we are doing a sweep of the city for
“CHEECCCKKKKSSSS”, and hung up. It was days
before I figured it out. Over twenty years ago, my oldest
sister, who could not read or write had me open a bank
account for her with monthly money I gave her, I was teaching
high school. Her daughters were going to manage it for her.
So she gave them the checkbooks and they wrote checks
everywhere. Even my sister got arrested in a store with thos
echecks [sic]. I bailed everyone out, paid all the check I
knew about. Ashley Rich and Ray Brazel, told me they
didn't want me they wanted my sister but wanted me to
testify against her. I refused and they came straight for me.
Brazel had me arrested at every high school I taught, 4 of
them. I asked for a photo lineup and handwriting analysis. I
passed them all. Ashley Rich was trying to send me to prison
for 5 years. They both had evidence that exonerated me and
withheld it in retaliation for my temerity to say
“no” to people I was supposed to be afraid of and
worse, supposed to defer to and become obsequious. I
wasn't testifying against my oldest sister, period. They
set out to punish and ruin my life, I did nothing to fight
back as long as my oldest sister lived, otherwise they would
come after her. She died, April 6, 2015. Ashley Rich was
contacted by Gary Moore because Warren Properties needed to
protect Veronica Young that she would never be prosecuted for
July 27, 2012, I was arrested for Disorderly Conduct, in
front of my grown daughter. Their storyline was
stereotypical, Black on Black crime, and argument that
Brandi Sheppard's son's juvenile trial was set for
July 30, 2012. After my “disorderly conduct”
arrest for being beaten up, there was a mysterious HOLD for
me, from 20 years ago. It originated in Ashley Rich's
office. I missed the juvenile trial, Brandi Sheppard told the
judge I was locked up in jail. All to discredit me. It was
July 30, 2012, with a paid attorney who found the document,
all was cleared and paid 20 years ago. The document reads
like it got paid on July 30, 2012, smoke and mirrors. A lie.
Ashley Rich, contacted David Wible and Derrick Williams.
Derrick Williams threatened, my privately paid attorney,
Michael Kaoui, who lied to me, on me, cheated and violated
his oath, as well as the law.
September 11, 2012, Veronica Young was found
not guilty of assaulting me. My attorney, unbeknownst to me,
David Wible. He stayed out of the courtroom until we were
literally in front of the judge. I had not idea what we were
doing or who he was until it was too late.
(Id. at 7 - 8, ¶¶ 43 - 48, 50 (numbering
indiscriminately alleges the following causes of action
against all named Defendants:
1. Denial of equal protection on basis of race or color in
violation the Fourteenth Amendment of the U.S. Constitution,