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Kennedy v. Warren Properties, LLC

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

November 7, 2017

D. ANGELINA KENNEDY, Plaintiff,
v.
WARREN PROPERTIES, LLC, et al., Defendants.

          REPORT AND RECOMMENDATIONS

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.

         This 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.[1] 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 GRANTED.

         I. Applicable Legal Standards

         In 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. 1999).[2]

         “Fed. 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).

         Moreover, “ ‘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)).

         “[G]enerally, 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)).

         “A 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).

         II. The Complaint

         Per the well-pleaded allegations in Plaintiff D. Angelina Kennedy's amended complaint (Doc. 4), which is the operative pleading in this action, [3] 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 harassment.

         As is 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).

         On July 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.

         As for 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 assaulting me.
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 escalated.
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 reset.
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 omitted)).

         Kennedy 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, and ...

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