Barber et al v. Alabama, State of et al
MEMORANDUM OPINION AND ORDER: After carefully reviewing Plaintiffs' allegations, and based on the law that this court must follow, the court finds that Plaintiffs failed to plead sufficient facts to show that they are entitled to relief. Accordingly, as stated more fully below, the court GRANTS all motions to dismiss ( 42 , 43 , 44 , 45 , 48 , 49 and 53 ) and DENIES the motion for default judgment, 50 . Signed by Judge Abdul K Kallon on 04/16/12. (CVA)
2012 Apr-16 PM 04:32
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DONALD JOE BARBER, et al.,
STATE OF ALABAMA, et al.,
Civil Action Number
MEMORANDUM OPINION AND ORDER
Before the court are motions to dismiss Plaintiffs Donald Joe Barber and
Joshua Allen Barber’s (collectively “Plaintiffs”) Amended Complaint, doc. 40,
filed by Randy Christian, doc. 42, John Pennington, doc. 43, Jefferson County
Sheriff’s Office, doc. 44, Mike Hale, doc. 45, B.L. Cochran and the City of
Morris, doc. 48, the State of Alabama, Alfred Bahakel, District Attorney’s Office,
Brandon Falls, and Pactrick Lamb, doc. 49, and Steve Loggins, North Jefferson
Baptist Association, Jackie Lee Robinson, Christopher Dwayne Smith, and
Patricia Faye Smith, doc. 53. Also before the court is Plaintiffs’ motion for a
default judgment against certain Defendants, doc. 50.
It is clear from the record that Plaintiffs believe their rights were
violated—and by individuals exercising laws of jurisdictions that Plaintiffs believe
have no power or control over them. While Plaintiffs are purportedly not “citizens
of these united States of America,” as they point out repeatedly, they are
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nonetheless entitled to the protections afforded by the Constitution of the United
States. However, after carefully reviewing Plaintiffs’ allegations, and based on the
law that this court must follow, the court finds that Plaintiffs failed to plead
sufficient facts to show that they are entitled to relief. Accordingly, as stated more
fully below, the court GRANTS all motions to dismiss and DENIES the motion
for default judgment.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Mere “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action” are insufficient. “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 129 S. Ct. at
1949 (quoting Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at
1949 (citations and internal quotation marks omitted). Thus, when considering a
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motion to dismiss, the court accepts all factual allegations as true. See, e.g.,
Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). However,
legal conclusions unsupported by factual allegations are not entitled to that
assumption of truth. Iqbal, 129 S. Ct. at 1950. A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. This demands “more than a sheer possibility that a
defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the speculative level.”).
The Eleventh Circuit instructs that Rule 12(b)(6) “‘does not impose a probability
requirement at the pleading stage,’ but instead ‘simply calls for enough fact to
raise a reasonable expectation that discovery will reveal evidence of’ the necessary
element[s].” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295-96 (11th Cir. 2007)
(quoting Twombly, 550 U.S. at 555). Ultimately, this inquiry is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 129 S. Ct. at 1950.
FACTUAL AND PROCEDURAL HISTORY
The basis for this action originates in February or March 2010, when
Plaintiffs purportedly “sent notice to the Jefferson County Sheriff’s office and to
the Jefferson County Commission that they, and a group of other men and women
in the Pinson area, were exercising their rights of self-determination by
reestablishing their own government call[ed] the judicial district of tens, fifties,
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hundreds and thousands, as found in the book of Exodus in the King James Bible
and pursuant to the Declaration of Independence.” Doc. 40, at 4. Following this
notice of exodus from the state’s jurisdiction, in May 2010, Plaintiffs sought the
aid of the District Attorney’s Office by reporting an alleged theft of money from
Plaintiffs’ church by Defendants Jackie Lee Robinson, Patricia Faye Smith,
Christopher Dwayne Smith, North Jefferson Baptist Association, and Steve
Loggins (collectively “Baptist Association Defendants”). When the District
Attorney’s Office failed to prosecute, Plaintiff Donald Joe Barber “instituted
commercial liens against the offending parties under his Right to contract under
the Constitution for these united States of America.” Id. In response, the Baptist
Association Defendants purportedly convinced the District Attorney’s Office to
issue warrants and arrest Plaintiffs. Id. at 5.
On October 24, 2010, Plaintiffs “issued a press release . . . asking why the
people of Jefferson County should re-elect a district attorney who would not
prosecute criminals, namely the thieves that stole the money from the church.” Id.
Plaintiffs claim that for doing so, the District Attorney, presumably Brandon Falls,
“[t]rumped up charges against the plaintiff and his two sons, Joshua Allen Barber
and Donald Jason Barber.” Id. Plaintiffs contend that the “charges against Donald
Joe Barber and Joshua Allen Barber were allegedly intimidating a witness by the
filing of court documents, by their exercising their Right to Contract, Right of Free
Speech, the Right to redress of grievance and Right of freedom of religion.” Id.
Moreover, Plaintiffs assert that, as it relates to the charges against Donald Jason
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Barber, the District Attorney utilized a previously dismissed attempted burglary
charge. In addition to this burglary charge, the District Attorney charged Donald
Jason Barber with possession of burglary tools and a traffic violation arising from
a license “plate on his automobile from the judicial district of tens, fifties,
hundreds and thousands.” Id. For these charges, Donald Jason Barber allegedly
faces a $31,000 bond. Id.
After the arrest of Donald Jason Barber, Plaintiffs maintain that the
Jefferson County Sheriff’s Office executed an unlawful search warrant on the
Plaintiffs’ property based on a false affidavit given by Defendant John
Pennington. Id. at 6, 8-9. Pennington supposedly failed “to state any crime that
had been committed or was in the process of being committed . . . for said search
warrant.” Id. at 6. Plaintiffs provide that the search warrant also failed to
particularly describe the “place to be searched and things to be seized,” id. at 8,
and that Jefferson County Sheriff Deputies “took documents that the plaintiff
would and could rely upon in a defense of the alleged charges should this matter
go to trial.” Id. at 9. Moreover, allegedly, the Jefferson County Sheriff’s Office
falsely “informed the media that the plaintiff’s[sic] were somehow involved with
the Oklahoma City bombing and a shooting in Memphis, Tennessee and other socalled groups in the Midwest that had caused physical violence against the
government” when Plaintiffs “had well advised the defendants that they were nonbelligerent, non-violent, good and lawful Christian men and women that believed
in using the courts as a means of redress and grievance and would never revert to
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violence.” Id. at 6.
The Amended Complaint states that the Jefferson County Sheriff’s Office
also arrested Joshua Allen Barber for attempted burglary and possession of
burglary tools; however, the Amended Complaint fails to provide a time frame for
this arrest. Id. As it relates to this arrest, Plaintiffs contend that Joshua Barber
“was asked by a friend to help another friend retrieve a deep freeze[r] that
belonged to them from the former place in which they lived, which was at the
husband’s house of the couple that was separated. Joshua consented and went
with his friend to help get the deep freeze[r]. The Jefferson County Sheriff’s
office was allegedly called on a burglary attempt, claiming they were stealing the
copper out of an air conditioner.” Id. Moreover, at some point, Joshua Barber
“was pulled over by [a] Jefferson County deputy because he had a cracked
windshield . . . [t]he deputy did an unlawful search of the plaintiff’s automobile
and found a pill of some sort under the seat and alleged that it belong to Joshua
Allen Barber.” As such, the deputy arrested Joshua Barber. Id. at 7.
The District Attorney’s Office subsequently attempted to revoke certain
bonds against Plaintiffs. Id. at 6. Accordingly, Plaintiffs appeared before
Jefferson County Circuit Judge Alfred Bahakel for a bond revocation hearing, see
id. at 7-9, and “challenged the jurisdiction of the court” but “the court has refused
and/or otherwise failed to prove said jurisdiction over the plaintiff’s[sic].” Id. at 7.
Moreover, after one of Joshua Barber’s arrests, Plaintiffs appeared in Judge
Bahakel’s court for an arraignment and “immediately challenge[d] the jurisdiction
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of the court again and demanded proof of such jurisdiction.” Id. As a result, the
“court placed the Plaintiff under house arrest, without proof of jurisdiction,
usurping a false jurisdiction ending in a false arrest of the Plaintiff Joshua Allen:
Barber, an American National and NOT a ‘citizen of the UNITED STATES’ or a
‘citizen of the ‘STATE OF ALABAMA.’” Id. at 9 (emphasis by Plaintiffs).
Plaintiffs filed their original complaint on September 9, 2011. Doc. 1.
After Plaintiffs cured certain procedural defects, they eventually filed a fifty-two
count Amended Complaint on January 4, 2012 against the State of Alabama,
Jefferson County, Judge Alfred Bahakel, the District Attorney’s Office, District
Attorney Brandon Falls, Assistant District Attorney Pactrick Lamb, Jefferson
County Sheriff’s Office, Sheriff Mike Hale, Deputy Sheriff Randy Christian,
Deputy Sheriff John Pennington, the City of Morris, B.L. Cochran, Jackie Lee
Robinson, Patricia Faye Smith, Christopher Dwayne Smith, North Jefferson
Baptist Association, and Steve Loggins. Doc. 40. All Defendants have filed
motions to dismiss, docs. 42, 43, 44, 45, 48, 49, 53, that are fully briefed, docs. 55,
56, 57, 58, 59, 62, and ripe for review.
Claims Failing to Satisfy Fed. R. Civ. P. 8(a)
The court must construe Plaintiffs’ pleadings liberally because they proceed
in this case pro se—that is, without an attorney. See Alba v. Montford, 517 F.3d
1249, 1252 (11th Cir. 2008) (citation omitted). However, “this leniency does not
give a court license to serve as de facto counsel for a party, or to rewrite an
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otherwise deficient pleading in order to sustain an action.” GJR Invs. v. Cnty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds
by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). Indeed, “[o]nce a pro se
litigant is in court, he is subject to the relevant laws and rules of court, including
the Federal Rules of Civil Procedure.” Smith v. Fla. Dep’t of Corr., 369 F. App’x
36, 38 (11th Cir. 2010) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989)). Therefore, while the court construes Plaintiffs’ pleadings liberally and
affords significant leniency in light of their pro se status, the court may not wholly
disregard the federal pleading standards and standard of review. See Brown v.
Crawford, 906 F.2d 667, 670 (11th Cir. 1990); see also Smith, 369 F. App’x at 38.
Accordingly, the court agrees with Defendants that various counts asserted in the
Amended Complaint fail to state any cognizable right to relief. See, e.g., doc. 48
(incorporating arguments made in doc. 29); doc. 49 (incorporating arguments
made in doc. 16); doc. 53. These counts amount to unsupported legal conclusions
that Plaintiffs generally allege against all seventeen named Defendants and that
offer no reasonable inference of liability. See Iqbal, 129 S. Ct. at 1950. While
Fed. R. Civ. P. 8(a) allows for liberal pleading, these counts are simply
“unadorned, the-defendant-unlawfully-harmed-me accusation[s].” Therefore, they
violate the Rule 8 pleading standards, and the court DISMISSES with prejudice
counts 1, 2, 3, 4, 12, 13, 15, 18, 19, 22, 23, 24, 25, 28, 29, 30, 31, 32, 33, 42, 43,
44, 47, 48, 51. See generally doc. 40.
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State of Alabama
Plaintiffs may not bring suit against the State of Alabama because “‘an
unconsenting State is immune from suits brought in federal courts by her own
citizens as well as by citizens of another state.’” Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (quoting Emp. of Dep’t of Pub. Health and
Welfare, Mo. v. Dep’t of Pub. Health and Welfare, Mo., 411 U.S. 279, 280
(1973)). While state sovereign immunity is not absolute, see In re Diaz, 647 F.3d
1073, 1082 (11th Cir. 2011), here, Plaintiffs offer no justification that allows this
court to entertain a private entity’s suit against the State of Alabama. See Va.
Office for Protection and Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011)
(“[A]bsent waiver or valid abrogation, federal courts may not entertain a private
person’s suit against a State.”); Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir.
2011) (“Pursuant to the Eleventh Amendment, a state may not be sued in federal
court unless it waives its sovereign immunity or its immunity is abrogated by an
Act of Congress under section 5 of the Fourteenth Amendment.”) (citing Kimel v.
Fla. Bd. of Regents, 528 U.S. 62 (2000)). Put differently, in Plaintiffs’ fifty-two
count Amended Complaint, they fail to provide a cause of action against the State
of Alabama in which Congress abrogated state sovereign immunity under the
Eleventh Amendment to the United States Constitution or where Alabama waived
sovereign immunity. See generally doc. 40. Therefore, Plaintiffs’ claims against
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the State of Alabama are DISMISSED with prejudice.1
District Attorney’s Office
Plaintiffs also file suit against the District Attorney’s Office; however, the
District Attorney’s Office constitutes a state agency and is therefore entitled to
state sovereign immunity under the Eleventh Amendment. In other words, as aptly
stated by the Federal District Court for the Southern District of Alabama,
“[b]ecause an Alabama district attorney’s office is a state agency, when the office
is sued, it is as if the State is sued. However, a lawsuit against the State or its
agencies is barred by the Eleventh Amendment regardless of the relief requested.”
Peeples v. Mobile Cnty. Dist. Attorney’s Office, No. 11-00217-CG-B, 2011 WL
5217257, at *2 (S.D. Ala. Oct. 11, 2011). Again, the State of Alabama has not
waived immunity here, and Plaintiffs fail to assert any claim against the District
Attorney’s Office where Congress abrogated Eleventh Amendment sovereign
immunity. See generally doc. 40. Therefore, Plaintiffs’ claims against the District
Attorney’s Office are DISMISSED with prejudice.
For the third time, see docs. 24, 39, Defendant Jefferson County is
Plaintiffs argue that sovereign immunity constitutes a “legal fiction,” is absent from the
U.S. Constitution, and is “sternly denounced in the Declaration of Independence.” Doc. 55, at 34. The court however notes the plain language of the Eleventh Amendment to the U.S.
Constitution which provides that “[t]he Judicial power of the United States shall not be construed
to extend to any suit in law or equity commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST.
amend. XI. See also Emp. of Dep’t of Pub. Health and Welfare, Mo. v. Dep’t of Pub. Health and
Welfare, Mo., 411 U.S. 279, 280 (1973).
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DISMISSED without prejudice due to its current bankruptcy proceedings.
Jefferson County, Alabama filed Chapter 9 bankruptcy in the United States
Bankruptcy Court for the Northern District of Alabama, Case No. 11-05736-9, on
November 9, 2011. Accordingly, Jefferson County is dismissed as a defendant in
the above styled action, subject to the right of any party to seek reactivation upon
resolution of the bankruptcy proceedings.
Jefferson County Sheriff’s Office
Although Plaintiffs name the Jefferson County Sheriff’s Office as a party
defendant, the Sheriff’s Office or Department is not a legal entity and is therefore
not subject to suit or liability. Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir.
1992). While sheriff’s departments “are not usually considered legal entities
subject to suit,” id. at 1214, the “capacity to sue or be sued shall be determined by
the law of the state in which the district court is held.” Id. (citing Fed. R. Civ. P.
17(b)).2 And, “[u]nder Alabama law, a county sheriff’s department lacks the
capacity to be sued.” Id. at 1215 (citing White v. Birch, 582 So. 2d 1085, 1087
(Ala. 1991)). Therefore, Plaintiffs’ claims against the Jefferson County Sheriff’s
Office are DISMISSED with prejudice.
Plaintiffs assert money damages claims against Jefferson County Circuit
Court Judge Alfred Bahakel (“Judge Bahakel”) for erroneous exercise of
Moreover, the “Jefferson County Sheriff’s Department is not an ‘unincorporated
association’ for purposes of Rule 17.” Dean v. Barber, 951 F.2d at 1214 n.4.
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jurisdiction over Plaintiffs, id. at 20, 21, 27 (counts 26, 27, 46), and refusal to
return certain properties to Plaintiffs, id. at 29 (count 49). Although not
specifically stated, Plaintiffs primarily seek relief under 42 U.S.C. § 1983,3 in that
they claim Judge Bahakel, acting under color of state law, violated certain
constitutional rights and guarantees. See generally doc. 55, at 1-3. In turn, Judge
Bahakel asserts judicial immunity from liability. See doc. 49 (incorporating
arguments made in doc. 16, at 5-7). The court finds Judge Bahakel entitled to
“[T]he nature of the adjudicative function requires a judge frequently to
disappoint some of the most intense and ungovernable desires that people can
have.” Forrester v. White, 484 U.S. 219, 226 (1988). And indeed, “[i]f judges
were personally liable for erroneous decisions, the resulting avalanche of suits,
most of them frivolous but vexatious, would provide powerful incentives for
judges to avoid rendering decisions likely to provoke such suits. The resulting
timidity would be hard to detect or control, and it would manifestly detract from
independent and impartial adjudication.” Id. at 226-27 (citations omitted).
“Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress, except that
in any action brought against a judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia shall be considered to be a statute of the
District of Columbia.” 42 U.S.C. § 1983.
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Perhaps more importantly, there are alternative avenues to challenge decisions
made by judicial officers, or put differently, “suits against judges [are not] the only
available means through which litigants can protect themselves from the
consequences of judicial error.” Id. at 227. Litigants facing unfavorable decisions
may seek relief “through ordinary mechanisms of review, which are largely free of
the harmful side-effects inevitably associated with exposing judges to personal
Accordingly, to the extent that Plaintiffs bring suit against Judge Bahakel in
his individual capacity for money damages, “[t]he Supreme Court has set forth a
two-part test for determining when a judge is entitled to immunity from money
damages liability when sued under section 1983. Stump v. Sparkman, 435 U.S.
349, 98 S. Ct. 1099, 55 L.Ed.2d 331 (1978). The first part of the test is whether
the judge dealt with the plaintiff in a judicial capacity.” Simmons v. Conger, 86
F.3d 1080, 1084 (11th Cir. 1996). “[T]he second part of the test is whether the
judge acted in the ‘clear absence of all jurisdiction.’” Id. at 1085 (quoting Stump,
435 U.S. at 357). Plaintiffs first purportedly contend that Judge Bahakel acted
outside of his judicial capacity. See doc. 55, at 8. In support, Plaintiffs allege that,
when the state brought them before Judge Bahakel for an arraignment, they:
[R]ead into the record a document challenging the jurisdiction of said
court, explaining that he did not understand the charges nor the nature
and cause of the action and for that reason refused to make a plea.
The plaintiff’s[sic] went on and offered substantial proof to the court
of their lack of jurisdiction and then asked the court to offer their
proof of jurisdiction. The only response was a shrug of the shoulders
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of the judge. However, the judge determine[sic] in his own mind that
he somehow had jurisdiction and continued on with the case without
proving jurisdiction as is required by the . . . Supreme Court.
Id. at 9. Plaintiffs’ argument appears to actually address the second prong—i.e.,
whether Judge Bahakel properly exercised jurisdiction, therefore, the court focuses
its analysis on the second prong.4
Thus, the pertinent question is whether Judge Bahakel acted in a clear
absence of all jurisdiction. “A judge does not act in the ‘clear absence of all
jurisdiction’ when he acts erroneously, maliciously, or in excess of his authority,
but instead, only when he acts without subject-matter jurisdiction.” Takuma
Owuo-Hagood v. Sullivan, 388 F. App’x 953, 955 (11th Cir. 2010) (citing Dykes
v. Hosemann, 776 F.2d 942, 947-48 (11th Cir. 1985)). Here, based on the facts
provided by Plaintiffs in their Amended Complaint, Joshua Allen Barber
originally appeared before Judge Bahakel after his arrest in Jefferson County for
alleged possession of an illegal substance or alleged attempted burglary, doc. 40,
at 5-7, and subsequently appeared before Judge Bahakel for bond revocation
The court further notes the Supreme Court’s decision in Pierson v. Ray, 386 U.S. 547,
553-54 (1967), cited by Plaintiffs, doc. 55, at 7, and which supports judicial immunity for Judge
Bahakel: “The record is barren of any proof or specific allegation that Judge Spencer played any
role in these arrests and convictions other than to adjudge petitioners guilty when their cases
came before his court. Few doctrines were more solidly established at common law than the
immunity of judges from liability for damages for acts committed within their judicial discretion,
as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20
L.Ed. 646 (1872). This immunity applies even when the judge is accused of acting maliciously
and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for
the benefit of the public, whose interests it is that the judges should be at liberty to exercise their
functions with independence and without fear of consequences.” Id. (quotation marks and
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hearings. That Plaintiffs are not “‘citizen[s] of the UNITED STATES’ or a
‘citizen of the ‘STATE OF ALABAMA,’” doc. 40, at 9, does not divest Judge
Bahakel of jurisdiction over them or establish that Judge Bahakel acted in a clear
absence of jurisdiction.5 This is because “[a] person who is not a citizen of the
United States or a resident of Alabama may be prosecuted in the jurisdiction where
he committed a crime.” Snavely v. City of Huntsville, 785 So. 2d 1162, 1169 (Ala.
Crim. App. 2000). Thus, regardless of Plaintiffs’ claimed nationality, Judge
Bahakel still exercised proper jurisdiction because the state charged Joshua Allen
Barber with crimes occurring within Judge Bahakel’s territorial jurisdiction. As
stated aptly by the Alabama Court of Criminal Appeals, “[j]urisdiction to
prosecute or convict for crime comes solely from the criminal law, and depends in
no degree upon the consent of the litigant, whether state or citizen, sovereign or
subject.” Id. And again, the court reiterates that, in light of any unfavorable
judicial decisions by Judge Bahakel—such as bond revocations, imposition of
criminal sentences, or failure to disclose seized property—Plaintiffs are not
precluded from seeking relief through the appropriate appellate channels.
Therefore, while Plaintiffs correctly assert in their response that judicial immunity
is not absolute, doc. 55, at 1, the court finds no evidence that Judge Bahakel
“Every person, whether an inhabitant of the State of Alabama or of any other state or
country, is liable to punishment by the laws of Alabama for an offense committed in the state,
except when it is by law exclusively cognizable in the United States courts.” Ala. Code § 15-2-1;
see also Ala. Code § 15-2-2 (“Unless otherwise provided by law, the venue of all public offenses
is in the county in which the offense was committed.”).
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lacked jurisdiction over Plaintiffs.6 Accordingly, the court DISMISSES with
prejudice all claims against Judge Bahakel.
Brandon Falls and Pactrick Lamb
Plaintiffs assert money damages claims against District Attorney Brandon
Falls (“Falls”) and Assistant District Attorney Pactrick Lamb (“Lamb”) for
retaliation against Plaintiffs for exercise of First Amendment rights, doc. 40, at 12,
16, 23 (counts 6, 16, 34, 35); abuse of office, id. at 12-13 (counts 7, 8); impairing
the right to contract in violation of 42 U.S.C. § 1983, id. at 16 (count 17)7; breach
of prosecutorial duties for failure to prosecute alleged wrongdoers, id. at 27 (count
45); refusal to produce evidence of jurisdiction, id. at 27 (count 46); and refusal to
Plaintiffs repeatedly cite Hagans v. Lavine, 415 U.S. 528 (1974), for the proposition that
once they challenged Judge Bahakel’s jurisdiction, such jurisdiction “must be proved.” See doc.
40, at 7-8; doc. 55, at 8-9. However, the Court in Hagans addressed a federal district court’s
subject matter jurisdiction. 415 U.S. at 548-49. Federal courts have limited jurisdiction, and
indeed, litigants must demonstrate federal subject matter jurisdiction in order to pursue their
claims in a federal court. See Fed. R. Civ. P. 8(a)(1); In re Trusted Net Media Holdings, LLC,
550 F.3d 1035, 1042 (11th Cir. 2008). On the other hand, state circuit courts possess general
jurisdiction to hear alleged criminal matters. See Ex parte Williams, 53 So. 2d 334, 335 (Ala.
1951) (“The circuit court is a court of unlimited, original jurisdiction in respect to the
enforcement of the criminal laws of the state . . . .”). Thus, again, Plaintiffs fail to demonstrate
how Judge Bahakel falsely exercised jurisdiction for these alleged criminal charges.
Plaintiffs also cite 42 U.S.C. §§ 1985 and 1986 as grounds for relief against Lamb. Doc.
40, at 16. Without more explicit direction in the Amended Complaint, the court assumes
Plaintiffs seek relief under 42 U.S.C. 1985(3). “To state a claim for relief under § 1985(3), a
plaintiff must establish that there was ‘some racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ actions.’” Smith v. Belle, 321 F. App’x 838, 845
(11th Cir. 2009) (quoting Griffin v. Breckenridge, 402 U.S. 88, 102 (1971)). Here, Plaintiffs fail
to demonstrate that they belong to some protected class; as such, their § 1985(3) claim against
Lamb is DISMISSED. Accordingly, Plaintiffs’ § 1986 claim—premised on knowledge of §
1985 violations—is also DISMISSED.
Page 16 of 35
return certain properties to Plaintiffs, id. at 29 (count 49). Similar to the claims
against Judge Bahakel, the proper procedural vehicle for Plaintiffs’ various
theories of constitutional violations against Falls and Lamb arises from 42 U.S.C.
§ 1983. Also similar to Judge Bahakel, Falls and Lamb contend that Plaintiffs’
claims are barred under prosecutorial immunity.
“Traditional common-law immunities for prosecutors apply to civil cases
brought under § 1983.” Rehberg v. Paulk, 611 F.3d 828, 837 (11th Cir. 2010)
(citing Imbler v. Pachtman, 424 U.S. 409, 427-28 (1976)). As such, “prosecutors
have absolute immunity for all activities that are ‘intimately associated with the
judicial phase of the criminal process.’” Id. (quoting Van de Kamp v. Goldstein,
555 U.S. 335, 341 (2009)). In determining whether a prosecutor may seek relief
under this immunity, the court must consider “the nature of the function
performed, not the identity of the actor who performed it.” Buckley v.
Fitzsimmons, 509 U.S. 259, 269 (1993). Accordingly, absolute prosecutorial
immunity “‘extends to a prosecutor’s acts undertaken . . . in preparing for the
initiation of judicial proceedings or for trial, and which occur in the course of his
role as an advocate for the State.’” Rehberg, 611 F.3d at 838 (quoting Jones v.
Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999)). Put differently, a “prosecutor’s
decision to bring charges against a person, so long as the prosecutor is acting
within the scope and territorial jurisdiction of his office, is immune from an action
for damages under § 1983.” Elder v. Athens-Clark Cnty., Ga., 54 F.3d 694, 695
(11th Cir. 1995). However, where a “prosecutor functions in a capacity unrelated
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to his role as an advocate for the state, he is not protected by absolute immunity
but enjoys only qualified immunity.” Rehberg, 611 F.3d at 838.
Here, as it relates to Falls and Lamb, Plaintiffs allege that “[t]he district
attorney, after many attempts to get him to prosecute the people responsible for
stealing the churches[sic] monies, failed and/or otherwise refused to do so.” Doc.
40, at 4. Plaintiffs contend that they subsequently instituted commercial liens
against the offending parties, and for doing so, the “Dist. Atty. [p]romptly issued
warrants, in violation of the Plaintiffs[sic] Rights, and arrested the plaintiffs,
Donald Joe: Barber and Joshua Allen Barber for exercising their Right to Contract
and for filing documents into the courts.” Id. at 5. Moreover, Plaintiffs assert that
they “issued a press release on or about October 24, 2010 asking why the people
of Jefferson County should re-elect a district attorney who would not prosecute
criminals, namely the thieves that stole the money from the church. In an act of
revenge and retaliation, the Dist. Atty. [t]rumped up charges against the plaintiff
and his two sons, Joshua Allen Barber and Donald Jason Barber.” Id. Plaintiffs,
however, provide that the state charged Donald Jason Barber with attempted
burglary, possession of burglary tools, and a traffic violation. Additionally,
Plaintiffs maintain—although it is unclear from the face of the complaint when
this occurred—that the “District Attorney’s Office has now filed a motion to
revoke the bond of Joshua Allen Barber” for burglary and possession of burglary
tools charges. Id. at 6.
Taking these allegations as true, the court finds that Lamb and Falls acted in
Page 18 of 35
their capacity as advocates for the state and are therefore entitled to absolute
prosecutorial immunity. Despite allegations of malicious prosecution, Plaintiffs
fail to allege “that either attorney acted outside of his role as an advocate.” Bias v.
Crosby, 346 F. App’x 455, 458 (11th Cir. 2009) (finding district attorneys immune
from liability where plaintiff claimed “that they maliciously caused him to be
arrested, fabricated evidence that led to his imprisonment, suppressed material
evidence, and conspired with [the Sheriff], but allege[d] nothing showing that
either attorney acted outside of his role as an advocate”). See also Rowe v. City of
Fort Lauderdale, 279 F.3d 1271, 1279-80 (11th Cir. 2002) (holding that, because
the “prosecutorial function includes the initiation and pursuit of criminal
prosecution, . . . it is clear that, even if [the prosecutor] knowingly proffered
perjured testimony and fabricated exhibits at trial, he is entitled to absolute
immunity from liability for doing so”). Indeed, Plaintiffs’ allegations, at worst,
maintain that Lamb and Falls instituted unfounded charges against Plaintiffs.
However, Plaintiffs fail to demonstrate that Lamb and Falls left the realm of
advocates for the state in bringing these charges. Moreover, Plaintiffs neglect to
maintain any indication leading to the reasonable inference that the charges
brought by Lamb and Falls were actually unfounded. Thus, Plaintiffs’ claims
against Falls and Lamb are DISMISSED with prejudice.
Plaintiffs assert money damages claims against Jefferson County Sheriff
Mike Hale (“Sheriff Hale”) in his individual capacity for the execution of
Page 19 of 35
fraudulent search warrants by the Jefferson County Sheriff’s Department under his
leadership, doc. 40, at 13-14 (counts 10, 11); harassment and trespass, id. at 15
(count 14); and false detainment of persons after posting of proper bail, id. at 29
(count 50). Sheriff Hale maintains that these claims are barred under the doctrine
of qualified immunity. See doc. 45 (incorporating by reference arguments made in
doc. 11).8 Plaintiffs fail to assert that Sheriff Hale personally violated a clearly
established constitutional right, and therefore, the court grants Sheriff Hale
qualified immunity and DISMISSES Plaintiffs’ claims against Sheriff Hale with
“Qualified immunity operates ‘to ensure that before they are subjected to
suit, officers are on notice their conduct is unlawful.’” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), overruled on
other grounds by Pearson v. Callahan, 555 U.S. 223 (2009)). To receive qualified
immunity from suit, “the government official must first prove that he was acting
within the scope of his discretionary authority when the allegedly wrongful acts
occurred.” Mathews v. Crosby, 480 F.3d 1265, 1269 (11th Cir. 2007). The
burden then shifts to the plaintiff to demonstrate that qualified immunity is not
appropriate. To do so, plaintiffs must show: (1) “the government official’s
conduct violated a constitutional right” and (2) preexisting federal law “clearly
To the extent that Plaintiffs seek to bring claims for money damages against Sheriff
Hale in his official capacity, such claims are barred by the Eleventh Amendment. Carr v. City of
Florence, 916 F.2d 1521, 1525 (11th Cir. 1990).
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established” this right. Id. (citing Saucier, 533 U.S. at 201). Recently, the
Supreme Court provided that “judges of the district courts . . . should be permitted
to exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” Pearson, 555 U.S. at 236. Therefore,
“[g]overnment officials performing discretionary functions are entitled to qualified
immunity ‘insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Lancaster
v. Monroe Cnty., Ala., 116 F.3d 1419, 1424 (11th Cir. 1997) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)); see also Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1264 (11th Cir. 2004).
As it relates to violations of “clearly established” constitutional rights,
Plaintiffs allege that Sheriff Hale allowed service of a “known fraudulent search
warrant against plaintiff’s[sic] that did not even closely resemble the properties
listed in the search warrant and took properties of the plaintiff that were not listed
in the fraudulent search warrant in violation of the 5th Amendment.” Doc. 40, at
13-14. Additionally, Plaintiffs maintain that Sheriff Hale “falsely detained
inmates after bail has been posted. The Plaintiffs had bail posted and was[sic]
detained some six to eight hours after said bail was posted in violation of the
Plaintiffs[sic] Right to life and liberty under the Fifth Amendment to the
Constitution of these united States of America.” Id. at 29.
The illegal search and seizure and due process allegations fail to sufficiently
Page 21 of 35
establish that Sheriff Hale personally participated in a constitutional violation or
that some act by Sheriff Hale caused these purported constitutional violations. “‘It
is axiomatic, in section 1983 actions, that liability must be based on something
more than a theory of respondeat superior.’” Brown v. Crawford, 906 F.2d 667,
671 (11th Cir. 1990) (quoting H.C. by Hewett v. Jarrard, 786 F.2d 1080, 1086
(11th Cir. 1986)). However, Plaintiffs’ specific factual allegations are made
against Jefferson County Sheriff Deputies “under the leadership of Mike Hale.”
Doc. 40, at 13-14. “Supervisory liability occurs either when the supervisor
personally participates in the alleged constitutional violation or when there is a
causal connection between actions of the supervising official and the alleged
constitutional deprivation.” Brown, 906 F.2d at 671. Moreover, the “causal
connection can be established when a history of widespread abuse puts the
reasonable supervisor on notice of the need to correct the alleged deprivation, and
he fails to do so.” Id. Here, Plaintiffs fail to establish a causal connection or to
plead facts that show that Sheriff Hale had notice of the need to correct alleged
deprivations and failed to do so. Instead, by merely alleging isolated
constitutional violations “under the leadership” of Sheriff Hale, Plaintiffs
insufficiently allege that Sheriff Hale, in his supervisory capacity, violated a
clearly established constitutional right regarding fraudulent search warrants or due
process. See Iqbal, 129 S. Ct. at 1953-54. Accordingly, Plaintiffs’ claims against
Sheriff Hale fail.
Page 22 of 35
Plaintiffs allege that John Pennington (“Pennington”), a Jefferson County
Deputy Sheriff, “appeared before a Circuit Court judge and gave perjured
testimony in order to obtain a search warrant on the plaintiff’s property.” See doc.
40, at 13, 17, 18 (counts 9, 20, 21). Plaintiffs also allege that Pennington “gave an
affidavit alleging false claims and failing to state any crime that has been
committed or was in the process of being committed in the affidavit for said search
warrant. Said affidavit was filled with hearsay, conjecture, opinion and false
testimony.” Id. at 6. See also doc. 55, at 10 (Plaintiffs asserting same allegations
in response brief). However, Pennington is also entitled to qualified immunity for
these money damages claims because Plaintiffs fail to sufficiently allege that
Pennington violated a constitutional right.9
To reiterate the qualified immunity burden structure, once the public official
demonstrates that he was engaged in a discretionary governmental function, “the
burden shifts to the plaintiff to show that the defendant is not entitled to qualified
immunity.” Holloman, 370 F.3d at 1264 (emphasis added). The court first agrees
with Pennington that obtaining search warrants falls within a sheriff deputy’s
discretionary function. See id. at 1265-66 (“A government official acts within his
or her discretionary authority if objective circumstances compel the conclusion
To the extent that Plaintiffs seek to bring claims for money damages against Deputy
Sheriff Pennington in his official capacity, such claims are barred by the Eleventh Amendment.
Carr, 916 F.2d at 1527.
Page 23 of 35
that challenged actions occurred in the performance of the official’s duties and
within the scope of his authority.”) (citation and quotation marks omitted).
Accordingly, the burden shifts and Plaintiffs “must show that: (1) the defendant
violated a constitutional right, and (2) this right was clearly established at the time
of the violation.” Id. at 1264.
While Plaintiffs assert a clearly established constitutional right, they fail to
sufficiently offer factual assertions that Pennington violated this right. The
Eleventh Circuit instructs that “the Constitution prohibits a police officer from
knowingly making false statements in an arrest affidavit about the probable cause
for an arrest in order to detain a citizen.” Jones v. Cannon, 174 F.3d 1271, 1285
(11th Cir. 1999). Moreover, the Eleventh Circuit acknowledges that this rule
regarding false statements also applies for search warrants. Id. (citing Franks v.
Delaware, 438 U.S. 154, 165-71 (1978); United States v. Martin, 615 F.2d 318,
327-29 (5th Cir. 1980)). Here, Plaintiffs correctly state this constitutional right,
but merely make the blanket assertion that Pennington violated it—thereby
amounting to a legal conclusion unsupported by factual allegations. See Iqbal,
129 S. Ct. at 1950.10 Cf. Keating v. City of Miami, 598 F.3d 753, 763-64 (11th Cir.
2010) (plaintiffs providing some factual detail regarding the specific “herding
techniques” utilized by police officers in protestors’ § 1983 action). Indeed, “the
In Randall v. Scott, 610 F.3d 701, 707 n.2 (11th Cir. 2010), the court also provided that
“whatever requirements our heightened pleading standard [for § 1983 actions] once imposed
have since been replaced by those of the Twombly-Iqbal plausibility standard.”
Page 24 of 35
legal conclusions in a complaint must be supported by factual allegations, and 
only a complaint which states a plausible claim for relief shall survive a motion to
dismiss.” Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).11 Plaintiffs fail to
allege facts that state a plausible constitutional violation by Pennington; therefore,
the court DISMISSES the claims against Pennington with prejudice.
Plaintiffs neglect to offer any factual allegations pertaining to Jefferson
County Chief Deputy Sheriff Randy Christianson (“Christianson”). See generally
doc. 40; doc. 55. Moreover, Plaintiffs fail to assert any cognizable claims against
Christianson. As such, even construing Plaintiffs’ Amended Compliant liberally,
Plaintiffs never raise a plausible inference that Christianson is liable for money
damages. Iqbal, 129 S. Ct. at 1950. Thus, while Plaintiffs’ pro se status certainly
affords leniency in pleadings, see doc. 55, at 11, “this leniency does not give a
court license to serve as de facto counsel for a party, or to rewrite an otherwise
“We have held  that the question presented by a motion to dismiss a complaint for
insufficient pleadings does not turn on the controls placed upon the discovery process. Twombly,
supra, at 559, 127 S. Ct. 1955 (‘It is no answer to say that a claim just shy of a plausible
entitlement to relief can, if groundless, be weeded out early in the discovery process through
careful case management given the common lament that the success of judicial supervision in
checking discovery abuse has been on the modest side’ (internal quotation marks and citation
omitted)) . . . . The basic thrust of the qualified-immunity doctrine is to free officials from the
concerns of litigation, including ‘avoidance of disruptive discovery.’ Siegert v. Gilley, 500 U.S.
226, 236, 111 S. Ct. 1789, 114 L.Ed.2d 277 (1991) (Kennedy, J., concurring in judgment).”
Randall, 610 F.3d at 709 (quoting Iqbal, 129 S. Ct. at 1953-54). Also, permitting Plaintiffs an
opportunity to amend is not an option because Plaintiffs never requested the opportunity to do so
as a way to cure the deficiencies raised by Defendants. Moreover, allowing Plaintiffs an
opportunity to amend will be futile because Plaintiffs have already amended their complaint
twice. See docs. 25, 40.
Page 25 of 35
deficient pleading in order to sustain an action.” GJR Invs., 132 F.3d at 1369.
Accordingly, Christianson is DISMISSED with prejudice.
City of Morris
Plaintiffs claim that the City of Morris “has come against the plaintiff,
Joshua Allen Barber in the municipal capacity of the District of Columbia,
kidnapping[sic] him into a foreign venue and imposing fines, jail time and
penalties not within the purview of their jurisdiction and causing irreparable harm
to the plaintiff.” Doc. 40, at 24 (count 37). Moreover, Plaintiffs assert that the
City of Morris violated Plaintiff Joshua Allen Barber’s “[r]ight to travel under the
Fifth Amendment of the Constitution of the United States of America . . . where
the Plaintiff has a Constitutional Right to travel uninhibited, i.e. no drivers license,
no proof of insurance, no seatbelt, no registration of his private automobile,” and
the City of Morris “did falsely imprison the plaintiff, Joshua Allen Barber because
he refused to engage in their commercial activity and to consent to be a party to
their private, corporate municipal law by not appearing in their Municipal Court
after having informed said court through a truth affidavit that he did not wish to
engage and/or participate in their private corporate, commercial venue.” Id. at 25
(counts 39, 40). See also doc. 55, at 12. Thus, Plaintiffs claim that the City of
Morris falsely imprisoned Joshua Allen Barber for failure to consent to the City’s
municipal court’s jurisdiction and abide by certain state highway regulations,
Page 26 of 35
thereby restricting his constitutional right to travel.12
The City of Morris argues that Plaintiffs fail to state a claim upon which
relief can be granted, doc. 48 (incorporating by reference arguments made in doc.
17), and the court agrees. Once again, absent any other indication, the court
assumes that Plaintiffs seek relief under § 1983 for the alleged constitutional
violations by the City of Morris. “A municipality may only be held liable under §
1983 when one of its policies causes a constitutional injury.” Am. Fed’n of Labor
and Congress of Indus. Org. v. City of Miami, Fla., 637 F.3d 1178, 1187 (11th
Cir. 2011) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)).
Stated differently, “‘[t]o impose § 1983 liability on a municipality, a plaintiff must
show: (1) that his constitutional rights were violated; (2) that the municipality has
a custom or policy that constituted deliberate indifference to that constitutional
right; and (3) that the policy or custom caused the violation.’” T.W. ex rel. Wilson
v. Sch. Bd. of Seminole Cnty., Fla., 610 F.3d 588, 603 (11th Cir. 2010) (quoting
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)). As such, it appears
Although the language is ambiguous, Plaintiffs may also attempt to impose vicarious
liability on the City of Morris for the alleged actions of B.L. Cochran—“Defendant, B.L.
COCHRAN, an employee of the CITY OF MORRIS and acting in the capacity as a police officer
in the District of Columbia, did threaten bodily harm against the plaintiff, Donald Joe Barber,
and did entice Plaintiff to come to the CITY OF MORRIS where he could carry out his threats.”
Doc. 40, at 25 (count 28). However, “a municipality cannot be held liable solely because it
employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978).
Instead, a Plaintiff must show that a city’s policy or custom caused the constitutional violation.
Here, Plaintiffs never allege that a City policy or custom caused Cochran’s purported conduct.
See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1145 (11th Cir. 2007).
Page 27 of 35
Plaintiffs claim that the City of Morris implemented a policy or custom to enforce
certain state highway laws—such as requiring drivers licenses, proof of insurance,
seatbelts, and registration of automobiles—and this policy or custom violates, or is
deliberately indifferent to, Plaintiffs’ constitutional right to travel. See doc. 40, at
Plaintiffs correctly maintain that a constitutional right to travel exists, and
this right “protects a person’s right to enter and leave another state, the right to be
treated fairly when temporarily present in another state, and the right to be treated
the same as other citizens of that state when moving there permanently.” Doe v.
Moore, 410 F.3d 1337, 1348 (11th Cir. 2005) (citing Saenz v. Roe, 526 U.S. 489,
500 (1999)). “However, mere burdens on a person’s ability to travel from state to
state are not necessarily a violation of their right to travel.” Id. Put differently,
“[a] state law implicates the right to travel when it actually deters such travel.”
Attorney General of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986). The court finds
no constitutional violation arising from the City of Morris’ enforcement of neutral
traffic regulations because these regulations do not deter interstate travel. See
Hendrick v. State of Maryland, 235 U.S. 610, 622 (1915) (“In the absence of
national legislation covering the subject, a state may rightfully prescribe uniform
regulations necessary for public safety and order in respect to the operation upon
its highways of all motor vehicles, those moving in interstate commerce as well
as others.”); Snavely v. City of Huntsville, 785 So. 2d 1162, 1166 (Ala. Crim. App.
2000) (“[A] state may regulate its public highways and may impose reasonable
Page 28 of 35
regulations for securing the safety of the travelers using those highways.”). Thus,
even taking Plaintiffs’ Amended Complaint as true, the City of Morris validly
enforced constitutional laws; accordingly, the court finds that Plaintiffs fail to state
a cognizable claim for relief against the City of Morris and DISMISSES with
prejudice Plaintiffs’ claims against the City of Morris.
Plaintiffs first claim that B.L. Cochran (“Cochran”), a City of Morris
employee, “and acting in the capacity of a police officer in the District of
Columbia, did threaten bodily harm against the plaintiff, Donald Joe Barber, and
did entice said Plaintiff to come to the City of Morris where he could carry out his
threats.” Doc. 40, at 25 (count 38). Plaintiffs also claim that Cochran came “to
the plaintiff’s home located in Birmingham, Alabama armed with assault rifles and
did enter plaintiff’s home, viet armis against the plaintiff[sic] will and without a
proper warrant and without justification trying to arrest the plaintiff, Joshua Allen
Barber, without lawful police power (out of the jurisdiction of the City of Morris)
and acting in his private capacity, thus violating the plaintiff’s fourth amendment
right.” Doc. 40, at 26 (count 41).
As it relates to Plaintiffs’ assertion that Cochran “threatened bodily harm,”
the court finds this claim devoid of any further factual development and merely
“an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.
Ct. at 1949. Cochran correctly contends that Plaintiffs’ Amended Complaint
contains no factual allegations regarding Cochran other than those alleged in
Page 29 of 35
counts 38 and 41. Doc. 48 (incorporating by reference arguments made in doc.
17). Rule 8(a)(2) imposes a liberal pleading standard, but it still requires some
basic factual allegations demonstrating a plausible inference of liability. Iqbal,
129 S. Ct. at 1949-50. Furthermore, Plaintiffs again neglect to assert any specific
cause of action but contend that Cochran “acted in the capacity of a police officer”
and “was acting under the scope of municipal law” when he allegedly threatened
Plaintiff Donald Joe Barber; as such, the court assumes that Plaintiffs bring this
count pursuant to § 1983 for excessive use of force. The facts pled simply offer
no reasonable inference that Cochran used excessive force in violation of the
Fourth Amendment. Cf. Crenshaw v. Lister, 556 F.3d 1283, 1290-91 (11th Cir.
Moreover, Plaintiffs’ second claim against Cochran is filled with legal
conclusions that fail to sufficiently state a cause of action. Plaintiffs assert that
Cochran acted “without a proper warrant,” “without justification,” “without lawful
police power,” and “in his private capacity.” See doc. 40, at 26. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to survive a motion to dismiss. Iqbal, 129 S. Ct. at
1949. The court cannot grant Plaintiffs’ legal conclusions a presumption of truth
because they are unsupported by any factual allegations. See, e.g., Am. Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1293-94 (11th Cir. 2010). In other words,
Plaintiffs simply reiterate the legal characteristics of a Fourth Amendment
warrantless search violation without sufficiently providing a factual basis for the
Page 30 of 35
court to infer that such a violation occurred. These conclusory statements fail to
nudge the claim “across the line from conceivable to plausible.” Twombly, 550
U.S. at 570. See also Wright v. Dodd, 438 F. App’x 805, 806 (11th Cir. 2011)
(“[A]s to Wright’s false arrest claim, the complaint alleges in conclusory fashion
that the police arrested Wright without a warrant, but does not allege any facts
showing that the police lacked probable cause to arrest him.”). Accordingly, the
court DISMISSES the claims against Cochran with prejudice.
Jackie Lee Robinson, Patricia Faye Smith, Christopher Dwayne Smith,
North Jefferson Baptist Association, and Steve Loggins
Plaintiffs allege that the Baptist Association Defendants “conspired with the
other defendants to deprive the Plaintiffs of their Right to contract guaranteed
under the Constitution of these united States of America and your Title 42 USC
1981 by the issuing warrants against the Plaintiffs for exercising their
Constitutional Rights, contrary to previous Supreme Court rulings.” Doc. 40, at
30 (count 52). This claim is merely a naked assertion of liability completely
devoid of further factual enhancement. Iqbal, 129 S. Ct. at 1949. Put simply, the
court cannot draw a reasonable inference of liability because Plaintiffs offer no
allegations pertaining to this purported “conspiracy.” See id. at 1950. Moreover,
to “state a claim for non-employment discrimination under § 1981, a plaintiff must
allege (1) he is a member of a racial minority, (2) the defendant intended to
racially discriminate against him, and (3) the discrimination concerned one or
more of the activities enumerated in the statute.” Jimenez v. Wellstar Health Sys.,
Page 31 of 35
596 F.3d 1304, 1308 (11th Cir. 2010). Here, Plaintiffs fail to properly allege any
factual basis for all three prongs of a § 1981 discrimination claim. Therefore, the
court DISMISSES with prejudice all claims against Jackie Lee Robinson,
Patricia Faye Smith, Christopher Dwayne Smith, North Jefferson Baptist
Association, and Steve Loggins.13
While Plaintiffs specifically demand money damages after each count in
their Amended Complaint, Plaintiffs also “respectfully request of this court an
injunction against the defendants from interfering with the daily lives of the
Plaintiffs and further to order them to either prove their jurisdiction in the matters
Plaintiffs also filed a motion for default judgment against Faye Smith, North Jefferson
Baptist Association, Steve Loggins, Chris Smith, and John Pennington based on failure to timely
answer the Amended Complaint. Doc. 50. See also doc. 62. First, Pennington timely filed a
motion to dismiss Plaintiffs’ Amended Complaint, doc. 43; as such, Plaintiffs’ motion for default
judgment as it relates to Pennington is DENIED. Furthermore, while Plaintiffs’ motion for an
entry of default against Faye Smith, North Jefferson Baptist Association, Steve Loggins, Chris
Smith, and Jackie Lee Robinson is procedurally correct, the court finds “good cause” would exist
for it to set aside a default—if it had entered one—and therefore DENIES Plaintiffs’ motion for
default judgment. See Fed. R. Civ. P. 55(c). The Eleventh Circuit instructs that “‘“[g]ood cause”
is a mutable standard, varying from situation to situation. It is also a liberal one-but not so elastic
as to be devoid of substance.’” Compania Interamericana Export-Import, S.A. v. Compania
Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (quoting Coon v. Grenier, 867 F.2d
73, 76 (1st Cir. 1989)). As such, courts consider “whether the default was culpable or willful,
whether setting it aside would prejudice the adversary, and whether the defaulting party presents
a meritorious defense.” Id. All three factors would weigh in favor of setting aside any default,
particularly in light of the fact that these Defendants present a meritorious defense against
Plaintiffs claims. See also Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1317
(11th Cir. 2002) (affirming district court’s denial of motion for default judgment where
defendant “filed a motion to dismiss a short time after the deadline for responsive pleadings,”
and plaintiff failed to show any prejudice). In short, the court cannot enter a default judgment
when the claims against these Defendants have no merit.
Page 32 of 35
before them or in the alternative dismiss the cases as required by the Supreme
Court decisions mentioned above.” Doc. 40, at 30. Plaintiff Joshua Allen Barber
also “petitions this court for an order for the CIRCUIT COURT OF JEFFERSON
COUNTY to release him from the bondage that the Circuit Court has placed upon
him, without jurisdiction in that they have failed and/or otherwise refused to prove
that jurisdiction exist with them, against this American National State Citizen that
is not within their venue.” Doc. 40, at 30.
Without more, the court finds that Plaintiffs lack standing for an injunction
pertaining to possible interference with their daily lives because there is no “‘real
and immediate threat of repeated injury.’” City of Los Angeles v. Lyons, 461 U.S.
95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). Even if
the court assumes some past unconstitutional behavior by Defendants,14 “‘[p]ast
exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any continuing, present
adverse effects.’” Id. Finding no factual allegations of an imminent threat, the
court DENIES this request for relief.
As it relates to the purported ongoing criminal cases proceeding against
Plaintiffs in the Circuit Court of Jefferson County, the court must abstain from
issuing an injunction pursuant to Younger v. Harris, 401 U.S. 37 (1971). See 31
Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir. 2003). “Federal courts
The court notes that it finds no such alleged violations in Plaintiffs’ Amended
Page 33 of 35
should abstain from exercising their jurisdiction if doing so would ‘disregard the
comity between the States and the National Government.’” Wexler v. Lepore, 385
F.3d 1336, 1339 (11th Cir. 2004) (quoting Pennzoil Co. v. Texaco, Inc., 481 U.S. 1
(1987)). Indeed, “Younger abstention is the doctrine that federal courts should
abstain from interfering with ongoing state criminal prosecutions.” Abusaid v.
Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1315 n.9 (11th Cir.
2005). Under this doctrine, “where a plaintiff is the subject of a pending state
prosecution under a statute that he argues is unconstitutional, the federal court
generally should not intervene provided that the plaintiff has an adequate remedy
at law in raising this constitutional defense in the state proceeding.” NTL, L.L.C.
v. Pryor, 128 F. Supp. 2d 1324, 1327 (N.D. Ala. 2001). Although not challenging
the constitutionality of a specific Alabama statute, here, Plaintiffs appear to be
challenging the constitutional validity of the Jefferson County Circuit Court’s
criminal jurisdiction over them. See generally doc. 40. As the state court
proceeding is still purportedly ongoing and Plaintiffs have yet to exhaust their
existing state appellate remedies, the court finds that federalism concerns require
abstention from considering this injunctive relief. As such the court DENIES this
request for relief.
Finally, Plaintiffs “petition this court for an order granting the plaintiff’s
permission to collect their costs and fees associated with defending the frivolous
actions brought against them by the defendants.” Doc. 40, at 30-31. However,
Plaintiffs fail to offer, and the court is unable to find, any basis in the law allowing
Page 34 of 35
a federal district court to award costs from a separate and pending state court
action. Therefore, the court DENIES this relief.
The court concludes that Plaintiffs’ Amended Complaint maintains no
viable right to relief against Defendants. As a result, the court GRANTS the
Defendants’ motions to dismiss, docs. 42, 43, 44, 45, 48, 49, 53, and the Plaintiffs’
Amended Complaint is due to be and is hereby DISMISSED. The court also
DENIES Plaintiffs’ motion for default judgment, doc. 50.
DONE the 16th day of April, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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