United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court on an initial review of
Plaintiff's Amended Complaint. (Doc. # 6). In April 2017,
the court granted Plaintiff in forma pauperis
status, reviewed her initial complaint, and directed her to
file an amended complaint to correct several deficiencies in
the original complaint. (Doc. # 5). Now, the court proceeds
to consider the sufficiency of the Amended Complaint. After
careful review, and for the reasons explained below, the
court concludes that Plaintiff's Amended Complaint is due
to be dismissed.
has filed this civil rights action against eleven named
Defendants. Howard Hu and Chen Hu allegedly own the property
adjoining Plaintiff's house. (Doc. # 6 at ¶¶
2-3). Defendant “That Hu” is their son.
(Id. at ¶ 4). Defendants Wyatt Pugh, Jim Wyatt,
Mr. Cobb, and Scott Cook are building and zoning engineers
employed by Defendant City of Homewood. (Id. at
¶¶ 5-8). These Defendants are sued in their
official capacities. (Id.). Defendants Jon Newland
and Sugg are police officers employed by the City of Homewood
Police Department, and Defendant Ross is the chief of police.
(See Id. at ¶¶ 10-12). Defendant Ross is
expressly sued in his official capacity, but Plaintiff has
not specified the capacity in which Defendants Newland and
Sugg are sued. (Id.). Finally, Defendant has sued
the City of Homewood (“Homewood”). (Id.
at ¶ 13).
alleges that she reported several crimes committed by two
non-parties --including deceptive business practices, false
advertising, falsifying business records, menacing,
harassment, and destruction of property -- to the Homewood
Police Department, but the police department refused to
investigate or prosecute the reported criminal acts.
(Id. at ¶¶ 19-20). Plaintiff also alleges
that a retaining wall on the Hus' property collapsed onto
her property. (Id. at ¶ 22). Plaintiff asserts
that the collapsed wall and other nuisances violated several
Homewood ordinances. (Id.). Nevertheless, she
alleges that Defendants Pugh, Wyatt, Cobb, and Cook failed to
intervene or investigate the ordinance violations that she
reported. (Id. at ¶¶ 22-23). Moreover, she
claims that Defendants harassed her regarding the collapsed
retaining wall. (Id. at ¶ 23).
alleges that Defendants Howard Hu, Chen Hu, and “That
Hu” trespassed onto her property and threw debris and
trash onto the property. (Id.). On August 24, 2014,
these Defendants allegedly attacked Plaintiff “with a
ceramic tile.” (Id. at ¶ 24). According
to Plaintiff, Defendant Newland refused to intervene, report,
investigate, or prosecute the assault, and he threatened to
prosecute Plaintiff for criminal mischief. (Id.).
Plaintiff recounts that she filed a civil action against
Defendants Howard and Chen Hu in state court, but Defendants
Howard and Chen Hu allegedly perjured themselves during the
state-court action. (Id. at ¶¶ 25-26).
Additionally, she alleges the City ignored subpoenas issued
by Plaintiff during the state-court action. (Id.).
April 4, 2017, Defendants Pugh and Cobb came to
Plaintiff's residence after Plaintiff requested
assistance. (Id. at ¶ 27). Plaintiff alleges
that Defendants Pugh and Cobb trespassed onto her property,
illegally searched it, and refused to enforce municipal
ordinances. (Id.). That same day, Plaintiff alleges
that Defendants Howard Hu, Chen Hu, and “That Hu”
videotaped her children and her while harassing them.
(Id. at ¶ 28). Finally, Plaintiff claims that
Defendant Pugh sent her a letter “on behalf of the City
of Homewood accusing Plaintiff of multiple crimes and
violations and refusing City services such as trash pick
up.” (Id. at ¶ 30).
Standard of Review
actions where a plaintiff has been granted in forma
pauperis status, the court must dismiss the action if it
determines that the action is frivolous or malicious, fails
to state a claim for relief, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B)(i)-(iii). The court conducts the review
required by 28 U.S.C. § 1915(e)(2)(B)(ii) using the
standards applied to motions under Federal Rule of Civil
Procedure 12(b)(6). Alba v. Montford, 517 F.3d 1249,
1252 (11th Cir. 2008). To survive a Rule 12(b)(6) motion, a
complaint must “state a claim to relief that is
plausible on its fact.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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. In considering a motion to dismiss, a court
should “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.'” Kivisto v.
Miller, Canfield, Paddock & Stone, PLC, 413
Fed.Appx. 136, 138 (11th Cir. 2011) (unpublished) (quoting
Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290
(11th Cir. 2010)).
“[p]ro 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, 1100 (11th Cir. 2008).
court addresses the sufficiency of each of Plaintiff's
claims, in turn.
of Plaintiff's Amended Complaint seeks monetary relief
from Defendants for violating her equal protection, due
process, and Fourth Amendment rights, pursuant to 42 U.S.C.
§ 1983. (See Doc. # 6 at p. 8-9).
The Statute of Limitations Precludes Plaintiff from
Recovering Relief for Claims Which Accrued
More than Two Years Prior to the Initiation of this
initiated this action by filing her initial complaint on
April 10, 2017. To the extent that Plaintiff complains about
actions which she alleges occurred more than two years prior
to that date and violated her constitutional rights, those
claims are barred by the statute of limitations. The proper
statute of limitations for a § 1983 action is the forum
state's general or residual statute of limitations for
personal injury. See Owens v. Okure, 488 U.S. 235,
236, 249- 50 (1989). The residual statute of limitations for
personal injury in Alabama is two years. Ala. Code §
has alleged a wide array of facts to support her claims that
Defendants violated her constitutional rights. However, the
two-year statute of limitations bars claims which purportedly
accrued prior to April 10, 2015. Accordingly, to the extent
Plaintiff's claims rely on the Homewood Police
Department's failure to investigate Alex Hirschfield or
Monty Klanaris, the City's failure to investigate
reported ordinance violations in 2013 and 2014, the damages
Plaintiff suffered from the collapsed retaining wall in 2013
and 2014, the assault and harassment she suffered in August
2014, and the police department's failure to investigate
the August 2014 incident, they are barred by the ...