Franklin v. Arbor Station (MAG+)
MEMORANDUM OPINION AND ORDERED as follows: 1) The 13 Objection to the Magistrate's Recommendation is OVERRULED; 2) The 12 Report and Recommendation of the Magistrate Judge is ADOPTED to the extent it recommends the dismissal pursuant to 28 U SC § 1915 of the claims in the 1 Complaint and the denial of the 11 Motion to Amend. It is REJECTED to the extent that it recommends dismissal of the entire action and denial of certain motions as moot; 3) The claims against Arbor Station co ntained in the 1 Complaint are DISMISSED; 4) The 11 Motion to Amend is DENIED; 5) The 14 Motion to Amend is GRANTED in PART and DENIED in PART; 6) On or before 7/1/2011, Franklin shall file an Amended Complaint, as further set out in order; 7) This case is referred back to the Magistrate Judge for action or recommendation on all pretrial matters, including the 3 Motion for Leave to Proceed In Forma Pauperis, which motion remains pending. Signed by Honorable Judge Mark E. Fuller on 6/22/2011. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NUE CHEER FRANKLIN,
CASE NO. 2:11-cv-294-MEF
(WO- DO NOT PUBLISH)
MEMORANDUM OPINION AND ORDER
On April 18, 2011, Plaintiff Nue Cheer Franklin (‘Franklin”) initiated this lawsuit by
filing a Complaint, an Application to Proceed in District Court without Prepaying Fees or
Costs, and a Motion for Temporary Restraining Order.1 Proceeding pro se,2 Franklin brings
suit against Arbor Station (“Arbor Station”), the apartment complex located in Montgomery,
Alabama at which she currently resides. Franklin alleges that Arbor Station filed an unlawful
This Court has previously denied Franklin’s requests for temporary restraining
All litigants, pro se or not, must comply with the Federal Rules of Civil Procedure.
Although the court is required to liberally construe a pro se litigant’s pleadings, the court
does not have “license to serve as de facto counsel for a party. . .or to rewrite an otherwise
deficient pleading in order to sustain an action.” GJR Invs., Inc. v. County of Escambia, Fla.,
132 F.3d 1359, 1369 (11th Cir. 1998) (citations omitted) (overruled on other grounds by
Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)); see also Giles v. Wal-Mart Distribution
Center, 359 Fed. Appx. 91, 93 (11th Cir. 2009) (internal citations and quotations omitted)
(“Although pro se pleadings are held to a less strict standard than pleadings filed by lawyers
and thus are construed liberally, this liberal construction 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.”).
detainer complaint3 against her in the District Court for Montgomery County. She further
alleges that Arbor Station prevailed in that complaint. Franklin paid a supersedeas bond and
appealed to the Circuit Court of Montgomery County, Alabama. While her appeal was still
pending, Arbor Station is alleged to have obtained a Writ of Possession, which it caused to
be issued to Franklin. Because the Alabama Rules of Civil Procedure provide that an
appellant may obtain4 a stay during appeal when she has given a supersedeas bond, Franklin
contends that Arbor Station’s actions, namely proceeding with evicting her from her
apartment, violated her right to due process of law under the Fifth Amendment to the United
States Constitution. For this alleged violation of her rights, Franklin seeks a monetary award
to compensate her for her emotional distress and other damages.
On April 28, 2011, Franklin filed a Motion to Amend Complaint (Doc. # 11). This
proposed amendment would add the following as party defendants: Justin Matthew Parnell,
Esq.; Parnell & Crum, P.A.; Montgomery County District Court Judge Jimmy B. Pool; and
Montgomery County Circuit Court Judge Eugene W. Reese. The amendment contained
allegations that these defendants conspired to deprive Franklin of her right to liberty and
property and denied her due process of law.
On May 9, 2011, Magistrate Judge Moorer filed a Report and Recommendation (Doc.
# 12) in this action. He recommended the dismissal prior to service of the claims originally
This is a type of legal action used in Alabama to evict tenants.
Franklin argued at the hearing that the issuance of the stay is automatic. For
purposes of determining this motion, the Court need not and does not reach this question.
set forth in the Complaint and the denial of the motion to amend. This Court agrees with the
legal analysis of the Report and Recommendation. Specifically, the claims in the original
Complaint which were stated against Arbor Station necessarily fail as it is not a “state actor”
such that it can be subject to suit pursuant to 42 U.S.C. § 1983. Furthermore, this Court
agrees with the legal analysis of the Report and Recommendation which advises that the
motion for leave to amend to allow the addition of claims against Judge Reese and Judge
Pool should be denied because they enjoy absolute judicial immunity. Moreover, the Court
finds that neither Parnell & Crum, nor Justin Matthew Parnell constitute state actors such that
Franklin can bring claims against them pursuant to 42 U.S.C. § 1983 for allegedly depriving
her of constitutionally granted rights. Nothing in Franklin’s Objection compels any other
conclusion and her objections are due to be OVERRULED.
Two weeks after the entry of the Report and Recommendation which recommended
the effective termination of this action, Franklin filed another Motion to Amend Complaint
(Doc. # 14). The proposed Second Amended Complaint also seeks to add the following as
party defendants: Justin Matthew Parnell, Esq.; Parnell & Crum, P.A.; Montgomery County
District Court Judge Jimmy B. Pool; and Montgomery County Circuit Court Judge Eugene
W. Reese. Count A1 sets for a claim pursuant to 42 U.S.C. § 1983 against Arbor Station for
allegedly violating her right to due process of law. Count A2 alleges that Arbor Station
unlawfully evicted her in violation of her constitutional rights. Count A3 and Count A4
allege claims against Arbor Station pursuant to the Alabama Residential Landlord and Tenant
Act of 2007. Count A5 and Count A7 allege claims against Arbor Station for fraud. Count
A6, Count A8, Count A9, and Count A10 allege claims against Arbor Station under the Fair
Debt Collection Practices Act. Counts B1 through B3 allege claims against Justin Matthew
Parnell pursuant to the Fair Debt Collection Practices Act. Count B4 alleges a claim against
Justin Matthew Parnell for negligence or legal malpractice. Count C1 through C4 seek to
hold Parnell & Crum, P.A. vicariously liable for the actions of Justin Matthew Parnell.
Count C5 seeks to hold Parnell & Crum, P.A. liable for negligently hiring and supervising
Justin Matthew Parnell. Franklin also includes claims against Judge Pool and Judge Reese
for allegedly violating her constitutional right to due process.
To the extent that this Second Amended Complaint seeks to bring claims against
private actors like Arbor Station for alleged violations of Franklin’s rights under the United
States Constitution, it suffers the same defects previously identified. Similarly, the claims
Franklin would bring against the state court judges pursuant to 42 U.S.C. § 1983 are futile
as such claims are barred by the doctrine of judicial immunity. Some of the claims which
Franklin now wishes to raise cannot be said, at least at this juncture, to be subject to either
dismissal prior to service or a ruling that they are futile and may not be added to this lawsuit.
For the foregoing reasons, it is hereby ORDERED as follows:
1. The Objection to the Magistrate’s Recommendation (Doc. # 13) is OVERRULED.
The Report and Recommendation of the Magistrate Judge (Doc. # 12) is
ADOPTED to the extent it recommends the dismissal pursuant to 28 U.S.C. § 1915 of the
claims in the Complaint (Doc. #1) and the denial of the Motion to Amend (Doc. # 11). It is
REJECTED to the extent that it recommends dismissal of the entire action and denial of
certain motions as moot.
3. The claims against Arbor Station contained in the Complaint (Doc. # 1) are
4. The Motion to Amend (Doc. # 11) filed on April 28, 2011 is DENIED.
5. The Motion to Amend (Doc. # 14) filed on May 23, 2011 is GRANTED in PART
and DENIED in PART.
6. On or before July 1, 2011, Franklin shall file an Amended Complaint. That
Amended Complaint may not include claims against Arbor Station pursuant to 42 U.S.C. §
1983, nor may it contain claims against either Judge Pool or Judge Reese.
7. This case is referred back to the Magistrate Judge for action or recommendation
on all pretrial matters, including the Motion for Leave to Proceed In Forma Pauperis (Doc.
# 3), which motion remains pending.
DONE this the 22nd day of June, 2011.
/s/ Mark E. Fuller
CHIEF UNITED STATES DISTRICT JUDGE
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