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Shuler v. Duke

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

May 31, 2018

LIBERTY DUKE, et al., Defendants.



         I. BACKGROUND

         Roger Shuler (“Roger”) and Carol Shuler (“Carol”) (collectively, “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.[1] 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 original Complaint.[2]

         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.[3]

         The 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 defendants.

         II. STANDARDS

         A. 28 U.S.C. § 1915(E)(2)(B)

         Because Plaintiffs are proceeding in forma pauperis, the Court reviews the Amended Complaint under 28 U.S.C. § 1915(e)(2)(B).[4] 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).

         A claim 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).

         The 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).

         B. Motion To Dismiss

         When 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.

         “Dismissal 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).


         The 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.[5] 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).[6] Finally, the Court will address the claims brought pursuant to Alabama state law.[7]

         A. Plaintiffs' Factual Allegations (¶¶ 32-53)[8]

         32. On 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....


         35. 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....

         36. 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.

         37. The 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.

         38. 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 Shuler ....

         39. 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.

         40. Rob 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.

         41. 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....

         42. *** Roger Shuler ... was released from jail on March 26, 2014.

         43. 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 $845.

         44. 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. ***


         46. Alabama Attorney General Luther Strange (now U.S. Senator) ... with assistance from Garrison and Swatek, pushed for Shuler's bogus arrest and incarceration. ***

         47. 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.

         48. 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.

         49. At 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 - and *** 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."

         50. A 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 incarceration.

         51. Zac Parrish, Ted Rollins' former stepson, has been listed as founding agent for at least one ...

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