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Johnson v. Hu

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

April 2, 2018

HOWARD HU, et al., Defendants.



         This 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.

         I. Background

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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.).

         On 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).

         II. Standard of Review

         In 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)).

         Nevertheless, “[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).

         III. Analysis

         The court addresses the sufficiency of each of Plaintiff's claims, in turn.

         A. Count I

         Count I 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).

         1. The Statute of Limitations Precludes Plaintiff from Recovering Relief for Claims Which Accrued More than Two Years Prior to the Initiation of this Action

         Plaintiff 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 § 6-2-38(1).

         Plaintiff 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 ...

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