United States District Court, N.D. Alabama, Southern Division
CORRECTED MEMORANDUM OPINION
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE.
Shuler (“Roger”) and Carol Shuler
“Plaintiffs”), filed this lawsuit on March 26,
2016, against twenty-two defendants: Francois Blaudeau, Chris
Blevins, Campus Crest Communities, Christina Crow, Chris
Curry, Mike DeHart, Liberty Duke, Google, Keith Jackson,
Jinks Crow & Dickson, McMichael & Parrish Homes,
Jeremiah Mosley, Jay Murrill, Zac Parrish, William H. Pryor,
Rob Riley, Riley Jackson LLC, Michelle Rollins, Ted Rollins,
Rollins Jamaica LTD, TXG Capital, and Jason Valenti.
(Complaint, doc. 1) On September 27, 2017, Plaintiffs filed
their Amended Complaint (doc. 26), which is therefore the
operative document before this Court. The Amended Complaint
asserts claims against the original twenty-two defendants,
and, for the first time, asserts claims against the following
additional eight (8) defendants: Luther Strange, Harrison
Street Real Estate/Campus Crest Communities, Jessica Medeiros
Garrison, William E. Swatek, Watercrest Group, Valeo Groupe,
David Gespass, and Claud Neilson. According to CM/ECF, all
but three of the defendants have appeared. Two of those
defendants-Harrison Street Real Estate/Campus Crest
Communities and Watercrest Group-who have not appeared were
not named in the original Complaint, but only in the Amended
Complaint. The third non-appearing defendant is identified on
CM/ECF as Campus Crest Communities and was named in the
Amended Complaint is a model of “mud throwing” by
the Plaintiffs, together with conclusory allegations but very
few relevant facts. It is also classically
“shotgun” in nature, a practice that has been
repeatedly condemned by the Eleventh Circuit. See, e.g.,
Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir.
2001); Ebrahimi v. City of Huntsville Bd. of Educ.,
114 F.3d 162, 164 (11th Cir. 1997); Anderson v. Dist. Bd.
of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366
(11th Cir. 1996). Nonetheless, defendants have filed motions
to dismiss the claims against them. Plaintiffs have responded
and replies have been filed. Accordingly, the motions are
ripe for determination.
Court will first set out the applicable standards. It will
then analyze each of the Counts of the Amended Complaint. For
the reasons set out below, the Court finds that all claims in
all Counts are due to be dismissed with prejudice as to all
28 U.S.C. § 1915(E)(2)(B)
Plaintiffs are proceeding in forma pauperis, the
Court reviews the Amended Complaint under 28 U.S.C. §
1915(e)(2)(B). That statute instructs the Court to
dismiss an action brought by an in forma pauperis plaintiff
if the action is “frivolous or malicious, ”
“fails to state a claim on which relief may be granted,
” or “seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. §
1915(e)(2)(B)(i)-(iii); see Neitzke v. Williams, 490
U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338
(1989) (discussing frivolity under § 1915).
is frivolous as a matter of law where, inter alia,
the defendants are immune from suit, id. at 327, 109
S.Ct. at 1833, or the claim seeks to enforce a right that
clearly does not exist. Id. Moreover, a complaint
may be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim upon which relief may be granted.
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.
1997). To avoid dismissal for failure to state a claim upon
which relief can be granted, the allegations must show
plausibility. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 557, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (2007).
“Factual allegations must be enough to raise a right to
relief above the speculative level[.]” Id. at
555, 127 S.Ct. at 1965. That is, the allegations must be a
“plain statement possess[ing] enough heft to sho[w]
that the pleader is entitled to relief.” Id.
at 557, 127 S.Ct. at 1966 (second brackets in original)
(internal quotations marks omitted). “[L]abels and
conclusions [ ] and a formulaic recitation of a cause of
action's elements” are insufficient grounds for
entitlement to relief. Id. at 555, 127 S.Ct. at
1965. However, when a successful affirmative defense ...
appears on the face of a complaint, dismissal for failure to
state a claim is also warranted. Jones v. Bock, 549
U.S. 199, 215, 127 S.Ct. 910, 920-21, 166 L.Ed.2d 798 (2007).
Court gives a pro se litigant's allegations a
liberal construction by holding them to a more lenient
standard than the those of an attorney. Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-596, 30
L.Ed.2d 652 (1972). However, the Court does not have
“license ... to rewrite an otherwise deficient pleading
[by a pro se litigant] in order to sustain an
action.” GJR Investments v. County of
Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds as recognized by Randall v.
Scott, 610 F.3d 701 (11th Cir. 2010). Furthermore, a
pro se litigant “is subject to the relevant
law and rules of court including the Federal Rules of Civil
Procedure.” Moon v. Newsome, 863 F.2d 835, 837
(11th Cir.), cert. denied, 493 U.S. 863 (1989).
Motion To Dismiss
deciding a motion to dismiss for failure to state a claim
under Rule 12(b)(6), this Court accepts as true all factual
allegations in the complaint and considers them in the light
most favorable to the plaintiff. Ironworkers Local Union
68 v. AstraZeneca Pharm., LP, 634 F.3d 1352, 1359 (11th
Cir. 2011). To avoid dismissal under Rule 12(b)(6) for
failure to state a claim, a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). This requirement is satisfied if the complaint: (1)
describes the claim in sufficient detail to give the
defendant fair notice of what the claim is and the grounds
upon which it rests and (2) plausibly suggests that the
plaintiff has a right to relief above a speculative level.
Bell Atl., 550 U.S. at 555; see Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “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.”
Iqbal, 556 U.S. at 678 (citing Bell Atl.,
550 U.S. at 556). “Determining whether a complaint
states a plausible claim for relief will ... be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
under Federal Rule of Civil Procedure 12(b)(6) on statute of
limitations grounds is appropriate only if it is apparent
from the face of the complaint that the claim is
time-barred.” La Grasta v. First Union Sec.,
Inc., 358 F.3d 840, 845 (11th Cir. 2004). Indeed, a
district court may dismiss a complaint pursuant to Rule
12(b)(6) based on any affirmative defense where the
allegations of the pleading, on their face, show that the
defense bars recovery. See Douglas v. Yates, 535
F.3d 1316, 1321 (11th Cir. 2008).
Plaintiffs identify Paragraphs 32 through 53 of their Amended
Complaint as their “Factual Allegations.” All of
these paragraphs are re-alleged by reference in each of
Plaintiffs' fourteen Counts. Rather than repeat these
paragraphs as to each Count, the Court will set them out
once. The Court will then address each Count, setting out the
additional allegations in each. The Court will first discuss
Plaintiffs' federal claims (all brought pursuant to 42
U.S.C. § 1983). Finally, the Court will address the claims
brought pursuant to Alabama state law.
Plaintiffs' Factual Allegations (¶¶
October 23, 2013, Shelby County deputy Chris Blevins entered
the Shulers' home at 5204 Logan Drive in Birmingham--and
without showing a warrant, saying he had a warrant or even
stating his reason for being there-beat up Roger Shuler in
his own garage. Blevins shoved Shuler viciously to a concrete
floor three times and doused him with pepper spray before
dragging him to the driveway, where deputy Jason Valenti
threatened to break Shuler's arms. Shuler was placed in
the back of a squad car and driven to the Shelby County Jail
in Columbiana, where he [was] ... incarcerated....
Defendants Rob Riley and Liberty Duke (with assistance from
the Riley Jackson Firm, plus Duke's lawyer, Christina
Crow) supposedly filed a defamation lawsuit against the
Shulers, alleging Roger Shuler published false information
about the[m]. *** Public records indicate Riley and Duke
filed the lawsuit somewhere between June and October 2015....
Officer Mike DeHart tried to "serve" the Shulers
via an unlawful traffic stop, falsely claiming Roger Shuler
had rolled through a stop sign and unlawfully extending the
traffic-citation process (by giving Riley-related court
papers to Shuler), even though there was no hint of criminal
activity associated with the Shulers' vehicle, which
would have been the only lawful grounds for extending the
stop once DeHart had returned Shuler's driver's
license, registration, and given him a warning.
Shulers' challenged DeHart's "service" as
unlawful, and no hearing ever was held where Riley/Duke met
their burden to prove service had been proper. That means the
Shulers were, in fact, never lawfully served, and the court
never had authority over them or the case.
Attorney David Gespass met with Roger Shuler while he was in
jail and stated in a letter that he had reviewed the ...
file, and it showed no summons had been issued at the time of
attempted service - or at the time of Shuler's arrest.
Shuler supposedly was arrested for contempt of court for
failing to appear at a hearing, but the statement from
attorney Gespass indicates Shuler never had lawfully been
summoned to court. Gespass' statement also indicates the
Shelby County Circuit Court, with Claud Neilson serving as
judge ... never had personal jurisdiction over Shuler.
Neilson, however, repeatedly issued unlawful orders against
Gespass went on to repeatedly lie to Shuler about the facts
and law related to incarceration and also made defamatory
statements ... to an out-of-state attorney, interfering with
Shuler's attempts to obtain counsel. This indicates
Gespass became part of a scheme to cover up what happened
with Shuler's unlawful arrest and incarcertaion.
Riley, Liberty Duke and their attorneys (Defendants Murrill,
Crow, Mosley, etc.) had every reason to know the Shulers had
not been lawfully served and they had not lawfully been
summoned to court. They also had every reason to know that a
preliminary injunction in a defamation case [is legally
barred]. They also knew that Roger Shulers' [alleged
defamatory statements were] accurate. Riley and Duke never
sought discovery, never sought a trial, never asked for a
jury - actions that indicate they knew they had no genuine
defamation case. They simply wanted Claud Neilson to act as
one-man censor from the bench, even though Neilson had no
personal jurisdiction over the Shulers.
Despite that, Riley, Duke, and their attorneys sought an
unlawful preliminary injunction against the Shulers, they
sought an unlawful contempt finding against the Shulers, and
they asked for the Shulers to be arrested. Roger Shuler, in
fact, was arrested....
Roger Shuler ... was released from jail on March 26, 2014.
While in jail, Roger Shuler was subjected to a wrongful
criminal prosecution. Officer Blevins filed a
resisting-arrest charge against Shuler.... *** [District
Judge Ron] Jackson found Shuler guilty, meaning Shuler was
subjected to probation (suspended sentence) and a fine of
Because of Shuler's unlawful arrest and incarceration,
his picture has been published at numerous Web sites,
including the one for the Shelby County Jail, suggesting he
is a criminal. ***
Alabama Attorney General Luther Strange (now U.S. Senator)
... with assistance from Garrison and Swatek, pushed for
Shuler's bogus arrest and incarceration. ***
Garrison, like Riley and Duke, filed a lawsuit against Roger
Shuler for reporting [about] her.... Garrison did not seek a
trial in her original complaint, never sought discovery or a
jury trial, and never proved in an adversarial proceeding
that Shuler's reporting was false or defamatory.
Roger Shuler's incarceration ... led to a wrongful
foreclosure on the Shulers' home, forcing them to leave
Alabama and take up residence in Missouri. That allowed
Garrison to pursue her lawsuit, without opposition....
Garrison wound up with a $3.5-million default judgment....
Garrison and Strange got a baseless default judgment, largely
because of Roger Shuler's arrest and incarceration, which
led to the Shulers' wrongful foreclosure and forced move.
about the same time of Shuler's incarceration, Campus
Crest Communities CEO Ted Rollins engaged in a flagrant
defamation campaign against the Shulers via two Web sites -
legalschnauzerexposed.com and rogershuler.com. *** The
Rollins Web sites referred to Roger Shuler as a "perv,
" "liar, " and "sicko" and suggested
he had sex with cats. They said Shuler had severe mental
illness, that he was a physical threat to those around him
and suggested multiples times that no company should hire
Shuler or his wife, Carol. They referred to Mr. Shuler as a
"racist" and a "homophobe."
witness has reported hearing Michelle Rollins (Ted's
stepmother) say that she and Ted were going to ''take
care of Legal Schnauzer." This indicates the Rollinses
and their associates were involved with Roger Shuler's
Parrish, Ted Rollins' former stepson, has been listed as
founding agent for at least one ...