Agundis v. Rice et al
MEMORANDUM OPINION - Premised on the foregoing, the defendants motions to dismiss (doc. 76 & 78) are due to be granted as to all the claims regardless of whether they are brought against Rice in his individual or official capacity. Additionally, the court finds that the defendants motion to strike Agundiss reply brief (doc. 89) is moot. An appropriate order will be entered contemporaneously herewith. Signed by Magistrate Judge John E Ott on 7/13/2018. (KEK)
2018 Jul-16 AM 09:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ELIA A. AGUNDIS,
JOHN LEON RICE,
Plaintiff Elia Agundis, acting pro s e, has sued John Leon Rice in his official
and individual capacities for numerous alleged intentional torts and criminal and
civil rights violations. (Doc. 68). 1 This action was originally filed in the Southern
District of Alabama, but was transferred to this court due to a lack of jurisdiction
over the claims. (Doc. 62). Rice has filed two motions to dismiss the second
amended complaint on various grounds. (Docs. 76 & 78). Rice has also filed a
motion to strike Agundis’s brief filed in response to one of the motions to dismiss.
(Doc. 89). For the reasons stated below, the court finds that the motion to strike is
moot and the motions to dismiss are due to be granted and this case dismissed.
References herein to “Doc. ___” are to the document numbers assigned by the Clerk of the
Court and located at the top of the document.
STANDARD OF REVIEW
To the extent Rice challenges this court’s personal jurisdiction over him
pursuant to Federal Rule of Civil Procedure 12(b)(2), the court must undertake a
two-step inquiry. The court is required to determine whether “the exercise of
jurisdiction (1) [is] appropriate under the state long-arm statute and (2) does not
violate the Due Process Clause of the Fourteenth Amendment to the United States
Constitution.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
To the extent Rice challenges whether the second amended complaint states
a claim upon which relief can be granted pursuant to Federal Rule of Civil
Procedure Rule 12(b)(6), the “issue is not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support the claims.” Little
v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986) (quoting Scheur v.
Rhodes, 416 U.S. 232, 236 (1974) (internal quotation marks omitted)).
considering a motion to dismiss, the court assumes the factual allegations in the
complaint are true and gives the plaintiff the benefit of all reasonable factual
inferences. Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224
(11th Cir. 2008).
Rule 12(b)(6) is read in light of Rule 8(a)(2), which requires “a short and
plain statement of the claim showing that the pleader is entitled to relief,” in order
to “give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation marks omitted).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (citations, brackets, and internal quotation marks omitted). “Factual allegations
must be enough to raise a right to relief above the speculative level....” Id. Thus,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face,’” i.e., its “factual content ... allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations
omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
(quoting Twombly, 550 U.S. at 557).
Agundis alleges multiple claims against Rice in both his individual and
official capacities, including a conspiracy to commit assault; assault and battery;
trespass; “aggravated cruelty to animals;” witness tampering; “crossing state
boundaries to [a] violate protection order;” stalking, breaking and entering; rape;
sexual assault; intentional infliction of emotional distress; and outrage. (Doc. 68).
The events are alleged to have occurred while Rice was a police officer with the
City of Columbus, Mississippi or while he was a deputy sheriff with the Oktibbeha
County, Mississippi Sheriff’s Department. (Id. at ¶ 1). Agundis appears to be
seeking relief, at least in part, pursuant to 42 U.S.C. § 1983. (Id. at 21).
Background Facts According to the Complaint
Agundis asserts that Rice broke into her Columbus, Mississippi home
between July 2012 and December 2013 on multiple occasions to see Agundis’s
daughter and to steal food and money. (Id. at ¶¶ 2, 6, 22-26 & 39-41). Rice
allegedly grew more violent as time went on, and Agundis claims Rice killed her
cat in July of 2012, assaulted her (Agundis) various times from July to December
2012, and sexually assaulted and impregnated her in December 2012. (Id. at ¶¶ 4,
7, 8, 20-21, 27-28, 42-52). According to Agundis, Rice returned to her residence
in March 2013 as Agundis was going to a doctor’s appointment. He pushed her
into her house and told Agundis she did not need a doctor because “Africa[n]
women don’t use doctors to have babies.” (Id. at ¶ 9). Agundis alleges Rice came
to the house in July 2013 with a bucket of plaster and forced Agundis’s daughter to
plaster Agundis’s naked body. (Id. at ¶ 10). Agundis further asserts that Rice also
attempted to “abduct” her new-born child in September 2013. (Id. at ¶ 11).
After failing to receive help from various law enforcement agencies in
Mississippi, Agundis moved to Gulf Shores, Alabama, in December 2013. (Id. at ¶
13). Thereafter, she obtained a “Protection [From] Abuse Order” in an Alabama
court against Rice. (Id.) According to Agundis, Rice actively avoided being
served with the Protection Order. (Id.)
Agundis alleges she received threatening text messages from Rice
subsequent to her move to Alabama. She also states that Rice posted death threats
directed at her on social media. (Id. at ¶ 13).
On December 21, 2015, Agundis was in Birmingham, Alabama to attend a
Protection from Abuse hearing. When she arrived at the courthouse with her
daughter, Agundis saw Rice and Regina Sykes, another Oktibbeha County deputy
sheriff. According to Agundis, Rice identified her to Sykes and Rice had Sykes
roll up some “legal documents” and strike her “in the abdomen, causing swelling
and bruising.” (Id. at ¶¶ 14 & 17). Agundis asserts that this incident occurred after
Rice had been served with a copy of an “emergency protection order, forbidding
him or any third-party under his direction [from] contact[ing] or communicat[ing]
with [Agundis].” (Id. at ¶ 18).
To place the foregoing in context, it also is helpful to review various
proceedings in the state courts of Mississippi. After Agundis had her child in
December 2013, Rice filed suit in the Chancery Court of Oktibbeha County,
Mississippi against Agundis, seeking to determine paternity, visitation and
custody. (Docs. 17-1; 44-1). Following a trial, the Chancery Court determined
Rice was the natural father of the child. The court also awarded the parties joint
legal custody of the child, with physical custody remaining with Agundis;
visitation for Rice; and child support for the child. (Docs. 17-3 at 172-78; 44-3 at
172). After Agundis moved to Alabama she filed numerous motions opposing the
award of visitation rights to Rice. She specifically attempted to have the findings
of the Chancery Court set aside. The decision of the Chancery Court was affirmed
by the Mississippi Court of Appeals on June 28, 2016. See Adams v. Rice, 2 196
So. 3d 1086 (Miss. Ct. App. 2016).3 Rice also filed a petition for contempt and
The caption for the case lists various names for “Appellant Elle Adams,” including Elle
Aquilera, Ellie Adams, and Elle Agundis.
By way of additional background, this court notes that the Mississippi Court of Appeals
provided the following facts in its opinion:
¶ 1. John Rice and Elle Adams met in 2011 on a dating website.
Thereafter, they met in person at Books–A–Million in Columbus, Mississippi. At
that time, Rice was employed as a police officer with the Columbus Police
Department. According to Rice, he and Adams began dating, and he eventually
moved in with Adams and her two daughters. Her daughters were ages three and
fifteen. Adams gave Rice a key to the home, and Rice claimed that he often kept
Adams’s two children. Adams, however, denies ever dating Rice and living
together. Adams claimed that Rice would often come over, uninvited and
intoxicated. Adams did admit that she gave Rice a key, but she testified that she
asked Rice to return the key and even contacted his employer to have it returned.
According to Adams, Rice was violent, neglectful, and an alcoholic.
¶ 2. Rice and Adams’s relationship, nevertheless, resulted in the birth of
their son on September 19, 2013. Rice claimed that he continued to live with
Adams until their son was about a month old. According to Rice, they began to
have problems once he refused to marry Adams. Rice claimed that Adams
modification of child custody in November 2015, alleging that Agundis refused to
allow him visitation or contact with their then two-year old child. Adams v. Rice,
2018 WL 2928703 (Miss. Ct. App. Jun. 12, 2018). The Chancery Court found
Agundis in contempt for failing to allow Rice to see the child. It also ordered Rice
threatened to take the child to Mexico and “adopt the child out.” Rice testified
that he moved out of Adams’s home shortly thereafter. Adams, on other hand,
testified that their son was the result of Rice raping her.
¶ 3. On December, 30, 2013, Rice filed a petition to establish paternity,
custody, and support of their son in the Chancery Court of Oktibbeha County,
Mississippi. Rice initially wanted custody, but that issue was later narrowed
down to visitation privileges. On September 3, 2014, Adams filed a counterclaim
for custody, child support, and the medical costs incurred in the birth of the child.
The trial was held on September 4, 2014. At that time the child was eleven
¶ 4. At trial, Rice called three witnesses to testify on his behalf. Two
testified that they had been to the home that Rice and Adams shared and had
observed their relationship. One witness also testified that Rice had brought
Adams’s youngest daughter to her office, and the child appeared to be
comfortable with Rice. The chancellor found all three witnesses’ testimony to be
¶ 5. The chancellor also found that the three witnesses’ statements were
highly relevant because Adams claimed that Rice’s visitation should be
supervised if awarded. Adams testified that any visits Rice made to his friends
while he had her younger daughter were done without her permission. Adams
also accused Rice of having a strong attachment to “young girls.” Adams’s oldest
daughter and two of her daughter’s friends testified on Adams’s behalf. The
chancellor, however, found that their testimony lacked credibility.
¶ 6. The chancellor, therefore, awarded both parties joint legal custody of
the child, with physical custody remaining with Adams. The chancellor
established a visitation schedule and ordered Rice to pay child support. The
chancellor ordered Rice to pay one-half of the hospital medical expenses
associated with the birth of the child. She also ordered Rice to pay fifteen
hundred dollars to Starkville Women’s Clinic for services in connection with the
birth of the child….
Adams, 196 So. 3d 1088-89.
to pay his child support arrearage. Id. at *2-3. Agundis challenged that decision in
a pro se appeal. The Mississippi Court of Appeals affirmed the Chancery Court
decision on June 12, 2018.
Rice resigned from the City of Columbus Police Department on February
14, 2013. (Doc. 76-1 at 2, ¶ 5).
This federal action was filed while the child custody proceedings were still
pending in the Chancery Court. (See Docs. 17-3 at 179-245; 44-3 at 179-245).
Agundis initially named numerous other Mississippi defendants, including the
Chancery Court Judge. (Doc. 1 at 1). All the defendants except Rice previously
were dismissed in this action.
Agundis’s Second Amended Complaint
Agundis’s second amended complaint is the operative pleading at this
Therein, she asserts thirteen separate claims against Rice in his
individual and official capacities as a former police officer for the City of
Columbus, Mississippi (the “City”) and as a deputy sheriff for Oktibbeha County,
Mississippi (the “County”). She asserts federal claims against Rice purportedly
arising under 18 U.S.C. §§ 2261, 2262 and 2265 (doc. 68 at ¶¶ 17 & 34) and under
42 U.S.C. § 1983 (id. at 21). The claims include the following: (1) conspiracy to
commit assault (Count I); (2) assault and battery (Count II); (3) trespass (Count
III); (4) aggravated cruelty to animals (Count IV); (5) witness tampering (Count
V); (6) crossing state boundaries to violate a protection order (Count VI); (7)
stalking (Count VII); (8) breaking and entering (Count VIII); (9) rape (Count IX);
(10) sexual assault (Count X); (11) invasion of privacy (Count XI); (12) intentional
infliction of emotional distress (Count XII); and (13) outrage (Count XIII). (Doc.
Rice responded to the second amended complaint with two motions to
dismiss. The first is advanced by Rice in his official capacity as a former police
officer of the City. (Doc. 76). Therein, he alleges the amended complaint is due to
be dismissed because there is a lack of personal jurisdiction and because the claims
relate to the time he was a Columbus police officer and, therefore, are barred by
the statute of limitations. (Id.) The second is advanced by Rice in his individual
capacity and his official capacity as a County deputy sheriff.
Specifically, he alleges the amended complaint is due to be dismissed because (1)
Agundis has no private right of action arising under 18 U.S.C. §§ 2262, 2262 or
2265; (2) of insufficient service; (3) of the statute of limitations; (4) Agundis failed
to allege that Rice was acting under color of law; (5) Agundis failed to allege that
her injuries were the result of a policy, practice, or custom of the public entity
employing Rice; (6) Agundis cannot bring a private action for purported criminal
acts; (7) the court should not exercise supplemental jurisdiction if the federal
claims are dismissed; (8) the court lacks jurisdiction over the Mississippi-based
state-law claims; and (9) the court should abstain from or not exercise jurisdiction
over Agundis’s claims. (Doc. 79 at i-ii).4
Rice asserts that the claims against him in his official capacity are due to be
dismissed because the court lacks jurisdiction over him in his official capacity.
(Docs. 77 at 2-3 & 79 at 19- 24). The United States Supreme Court recently has
reiterated that “[a] court must have the power to decide the claim before it (subjectmatter jurisdiction) and power over the parties before it (personal jurisdiction)
before it can resolve a case.” Lightfoot v. Cendant Mortg. Corp., ___U.S.___, 137
S. Ct. 553, 562 (2017). It also is well-settled in the Eleventh Circuit that a court
should address issues involving personal jurisdiction before considering the merits
of the remaining matters. See Madara v. Hall, 916 F.2d 1501,1513-14 (11th Cir.
1990). In examining the issue of personal jurisdiction, the following principles
The plaintiff bears the burden of establishing personal jurisdiction
over a non-resident defendant. See S & Davis Intern., Inc. v. The
Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000). When the
issue of personal jurisdiction is decided on the briefs and
Counsel for Rice adopts additional defenses in their reply brief that are offered on behalf of
Rice in his official capacity with regard to the City. (Doc. 86 at 7). The additional defenses are
identical to those asserted by counsel for Rice in his individual capacity and on behalf of Rice in
his official capacity with regard to the County. (Id.)
accompanying evidence, but without a discretionary evidentiary
hearing, a plaintiff satisfies his or her burden by demonstrating a
“prima facie case of jurisdiction.” Francosteel Corp,. UnimetalNormandy v. M/V Charm, Tiki, Mortensen & Lange, 19 F.3d 624, 626
(11th Cir. 1994); Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990). A plaintiff establishes a prima facie case by submitting
evidence sufficient to defeat a motion for judgment notwithstanding
the verdict. See DeLong Equip. Co. v. Washington Mills Abrasive
Co., 840 F.2d 843, 845 (11th Cir. 1988). [Consistent] with that
standard of review, the court construes the allegations in the
complaint as true if they are uncontroverted by affidavits or deposition
testimony. See Bracewell v. Nicholson Air Serv., Inc., 748 F.2d 1499,
1504 (11th Cir. 1984). The Eleventh Circuit has explained on more
than one occasion that, “[i]f a plaintiff pleads sufficient material facts
to establish a basis for personal jurisdiction and a defendant then
submits affidavits controverting those allegations, ‘the burden
traditionally shifts back to the plaintiff to produce evidence supporting
jurisdiction[,] unless those affidavits contain only conclusory
assertions that the defendant is not subject to jurisdiction.’ ” Whitney
Information Network, Inc. v. Xcentric Venture, LLC, Slip No. 0611888, 2006 WL 2243041, *3 (11th Cir. Aug.1, 2006) (quoting Meier
v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)). If the
evidence conflicts, the court makes reasonable inferences in favor of
the plaintiff, particularly when the jurisdictional questions are
seemingly intertwined with the merits of the case. See DeLong, 840
F.2d at 845.
Ashton v. Florala Memorial Hosp., 2006 WL 2864413,*2 (M.D. Ala. Oct 5, 2006).
Additionally, as previously noted in this action by United States Magistrate Judge
In an action such as this, the court “undertakes a two-step inquiry to
determine whether personal jurisdiction exists: the exercise of
jurisdiction must (1) be appropriate under the state long-arm statute,
and (2) not violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.” United Techs. Corp.
v. Mazer, 556 F.3d 1260, 1274 (2009). As noted supra, because
Alabama’s long-arm provision, Rule 4.2(a) of the Alabama Rules of
Civil Procedure, is coextensive with due process requirements, see
Waterproofing Co. v. Hanby, 431 So. 2d 141, 145 (Ala. 1983), the
court need only consider whether the exercise of jurisdiction satisfies
the requirements of due process. Oliver v. Merritt Dredging Co., 979
F.2d 827, 830 (11th Cir. 1992). Due process requires both that the
defendant have “certain minimum contacts” with the forum state, and
if such minimum contacts exist, that the exercise of jurisdiction over
the defendant “does not offend traditional notions of fair play and
substantial justice.” Burnham v. Superior Court of Calif., 495 U.S.
604, 618, 110 S. Ct. 2105, 109 L. Ed. 2d 631 (1990) (quoting Int’l
Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95
(1945)). “This two-part test embodies the controlling due process
principle that a defendant must have ‘fair warning’ that a particular
activity may subject it to the jurisdiction of a foreign sovereign."
Vermeulen v. Renault, U.S.A., Inc., 985 F. 2d 1534, 1545 (11th Cir.
There are two types of personal jurisdiction: “general” and
“specific.” There is general personal jurisdiction over a party when”
the cause of action does not arise out of ... the [party’s] activities in
the forum State,” but there are “continuous and systematic” business
contacts with the forum state. See Consolidated Development Corp.
v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); see also Sloss
Indus. Corp. v. Eurisol, 488 F.3d 922, 925 n.3 (11th Cir.
2007)(“general jurisdiction ... can only be exercised if the defendant
has ‘continuous and systematic’ contacts with the forum”); Stubbs v.
Wyndham Nassau Resort & Crystal Palace Casino, 447 F. 3d 1357,
1360 n.3 (11th Cir. 2006) (“General jurisdiction arises from the
defendant’s contacts with the forum that are not directly related to the
cause of action being litigated.”). The due process requirements for
general personal jurisdiction are more stringent than for specific
personal jurisdiction. Consolidated Development Corp., 216 F.3d at
1292. On the other hand, specific jurisdiction “arises out of a party’s
activities in the forum that are related to the cause of action alleged in
the complaint.” Id. at 1291; Helicopteros Nacionales De Colombia v.
Hall, 466 U.S. 408, 414 at n.8, 80 L. Ed. 2d 404 (1983). For specific
personal jurisdiction, the contacts at issue must satisfy the minimumcontacts test. “Minimum contacts involve three criteria: First, the
contacts must be related to the plaintiff’s cause of action or have given
rise to it. Second, the contacts must involve some purposeful
availment of the privilege of conducting activities within the forum,
thereby invoking the benefits and protections of its laws. Third, the
defendant’s contacts within the forum state must be such that [it]
reasonably anticipate[s] being haled into court there.” Sculptchair,
Inc. v. Century Arts, Ltd., 94 F. 3d 623, 631 (11th Cir. 1996) (citation
(Doc. 60 at 12-14). Finally, in Seiferth v. Helicopteros Atuneros, Inc., the Fifth
Circuit Court of Appeals held that personal jurisdiction is claim specific, but where
there are “multiple claims that arise out of different forum contacts, [the party
asserting jurisdiction] must establish specific jurisdiction for each claim.” 472
F.3d 266, 274 (5th Cir. 2006) (citing 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure: Civil 3d § 1351, at 299 n.30 (2004) (“There is no
such thing as supplemental specific personal jurisdiction; if separate claims are
pled, specific personal jurisdiction must independently exist for each claim and the
existence of personal jurisdiction for one claim will not provide the basis for
To the extent that Agundis’s complaint alleges claims against Rice in his
official capacity while he was employed by the City, the court finds there is
insufficient contact within the State of Alabama for the Court to exercise personal
jurisdiction over those claims. There is no allegation in Agundis’s pleadings that
while acting as a Columbus police officer Rice traveled to Alabama or interacted
with her while she was in Alabama. To the contrary, the record demonstrates Rice
left the Columbus Police Department in March 2013 5 and Agundis did not move to
Alabama until December 2013.
Accordingly, any claim premised on Rice’s
official capacity as a police officer with the City is due to be dismissed for lack of
personal jurisdiction. This would include all the claims advanced by Agundis in
the Second Amended Complaint.6
To the extent that Agundis alleges claims against Rice in his official
capacity while he was employed by the County, the only contact Rice purportedly
had with Agundis after she moved to Alabama was occasional texts and personal
interaction with Rice and Sykes in Birmingham on December 21, 2015.
Accordingly, any claims alleging liability premised on Rice’s conduct in an official
capacity as an County deputy sheriff for events that occurred in Columbus,
Mississippi are due to be dismissed for lack of personal jurisdiction. This would
include the assault and battery claim (Count II); the trespass claim (Count III); the
aggravated cruelty to animals claim (Count IV); the stalking claim (Count VII); the
breaking and entering claim (Count VIII); the rape claim (Count IX); the sexual
assault claim (Count X); and the invasion of privacy claim (Count XI). It would
also include the intentional infliction of emotional distress (Count XII) and the
outrage claims (Count XIII) to the extent they are premised on conduct occurring
Agundis does not dispute this fact.
Agundis states in her response to the defendant’s motion to strike her reply brief that there is no
longer any claim against Rice in his official capacity as a Columbus City police officer. (See
Doc. 90 at 1).
in Mississippi. Each of these claims involves actions in Mississippi before Agundis
moved to Alabama.
Specifically, the assault and battery is alleged to have
occurred during July 2012 and October 2013 at Agundis’s home; the trespass is
alleged to have occurred from June 7, 2012, until December 2013 at her residence;
the aggravated cruelty to animals is alleged to have occurred in September 2013;
the stalking is alleged to have occurred in Columbus from July 2012 until
December 2013; the breaking and entering is alleged to have occurred from July
2012 to December 2013 at Agundis’s residence; the rape is alleged to have
occurred on December 12, 2012; the sexual assault is alleged to have occurred July
2013; the invasion of privacy is alleged to have occurred while Rice was with the
City; and the intentional infliction of emotional distress and outrage claims relate
to events occurring in Agundis’s home in Columbus and before she moved to
Alabama in December 2013. The conspiracy claim (Count I), the witness
tampering claim (Count V), the violating a protection order claim (Count VI), the
intentional infliction of emotional stress claim (Count XII) and the outrage claim
(Count XIII) will be further addressed below to the extent they are arguably
premised on conduct occurring in Alabama.
Insufficient Process and Service of Process
Rice next asserts that that “the complaint is due to be dismissed … for
insufficient service of process and insufficient process under [Fed. R. Civ. P.]
12(b)(4) and (5).” 7 (Doc. 79 at 11 (footnote omitted)). Specifically, Rice asserts
that Agundis has not properly served him with regard to this action. He complains
that Agundis improperly attempted to serve him at the Oktibbeha County Sheriff’s
Department. (Id. at 10). He also notes that he has consistently objected “to the
process and service of process in this action.” (Id. at 11, n.6 (citing Doc. 17 at 1
and doc. 44 at 1)). Agundis responds that she is pro se, she consulted with the
Clerk of the Court for the Southern District of Alabama, and Rice has answered.
(Doc. 84 at 9). She also asserts she properly served him by certified mail at his
residence and that Rice is attempting to avoid service. (Id. at 9-10).
This issue is controlled by Rule 4 of the Federal Rules of Civil Procedure
dealing with service of process upon an individual. Rule 4(e) provides:
Unless federal law provides otherwise, an individual--other than a
minor, an incompetent person, or a person whose waiver has been
filed--may be served in a judicial district of the United States by:
In addressing this section of Rice’s motion to dismiss, it is appropriate to note the following:
At the outset it is necessary to distinguish the motion under Rule 12(b)(4)
from that under Rule 12(b)(5). An objection under Rule 12(b)(4) concerns the
form of the process rather than the manner or method of its service. Technically,
therefore, a Rule 12(b)(4) motion is proper only to challenge noncompliance with
the provisions of Rule 4(b) or any applicable provision incorporated by Rule 4(b)
that deals specifically with the content of the summons. A Rule 12(b)(5) motion
is the proper vehicle for challenging the mode of delivery or the lack of delivery
of the summons and complaint. Other than those cases in which it is confused
with a motion under Rule 12(b)(5), a motion under Rule 12(b)(4) is fairly rare.
Wright & Miller, Federal Practice and Procedure 3d § 1353 (2017) (footnotes omitted).
(1) following state law for serving a summons in an action
brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the
complaint to the individual personally;
(B) leaving a copy of each at the individual’s
dwelling or usual place of abode with someone of
suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to receive service of
Fed. R. Civ. P. 4(e) (bold added)).
The Alabama Rules of Civil Procedure allow for service by certified mail.
Ala. R. Civ. P. 4(i)(2). Service is deemed complete under Alabama state law
“from the date of delivery to the named addressee or the addressee’s agent as
evidenced by [a] signature on the return receipt.” Ala. R. Civ. P. 4(i)(2)(C).
Mississippi law provides for service upon an individual “by sheriff or
process server” by “delivering a copy of the summons and of the complaint to him
personally or to an agent authorized by appointment or by law to receive service of
if service … cannot be made with reasonable diligence, by leaving a
copy of the summons and complaint at the defendant’s usual place of
abode with the defendant’s spouse or some other person of the
defendant’s family above the age of sixteen years who is willing to
receive service, and by thereafter mailing a copy of the summons and
complaint (by first class mail, postage prepaid) to the person to be
served at the place where a copy of the summons and of the complaint
were left. Service of a summons in this manner is deemed complete
on the 10th day after such mailing.
Miss. R. Civ. P. 4(d)(1)(A) & (B). An individual may also be served “by
mailing a copy of the summons and of the complaint (by first-class mail,
postage prepaid) to the person to be served, together with two copies of a
notice and acknowledgment ... and a return envelope, postage prepaid,
addressed to the sender.” Miss. R. Civ. P. 4(c)(3)(A). “The notice and
acknowledgment of receipt of summons and complaint shall be executed
under oath or affirmation.”
Miss. R. Civ. P. 4(c)(3)(C).
acknowledgment of service under this subdivision of this rule is received by
the sender within 20 days after the date of mailing, service of such summons
and complaint may be made in any other manner permitted by this rule.”
Miss. R. Civ. P. 4(c)(3)(B).
Additionally, for out-of-state defendants,
Mississippi provides that service may be accomplished by “sending a copy
of the summons and of the complaint to the person to be served by certified
mail, return receipt requested.”
Miss. R. Civ. P. 4(c)(5).
defendant is a natural person, the envelope containing the summons and
complaint shall be marked “restricted delivery.”
“Service by this
method shall be deemed complete as of the date of delivery as evidenced by
the return receipt or by the returned envelope marked ‘Refused.’” Id.
The court is not satisfied that Agundis has obtained adequate service on Rice
under any of the available means. While it appears Agundis attempted service on
Rice at his residence via certified receipt, there is no evidence that the complaint
was properly served on Rice. To the contrary, the “UPS Product Tracking &
Reporting” sheet states that “No Authorized Recipient Available.” (Doc. 13 at 12). The notation in the “Destination and Origin” section of the form, which
provides, “John Rice has been voiding service. He [is] doing [the] same with new
ex-parte order[.]” (id. at 1), is not adequate to demonstrate service.
conclusory statement by an unknown writer is totally unacceptable. There is no
evidence that Rice has been served. See, e.g., Bloodgood v. Leatherwood, 25 So.
3d 1047, 1051 (Miss. 2002) (“A returned envelope marked ‘unclaimed’ is
insufficient to satisfy service requirements under Rule 4(c)(5).”).
To the extent Agundis relies on the fact that Joe Berry, an employee in a
support staff/records clerk position at the Oktibbeha County Sheriff’s Office,
accepted a copy of the summons and complaint in this action, that does not
constitute adequate service on Rice. Berry is not an authorized agent of Rice. Still
further, Agundis acknowledges in her filings that Rice has not been served. (See
Doc. 13 at 2 (“John Rice has been voiding service.”)).
There is no evidence that Agundis has attempted service by publication. See
Ala. R. Civ. P. 4.3; Miss. R. Civ. P. 4(c)(4). Nor has a request for waiver of
service provided by Federal Rule of Civil Procedure 4(d)(1) has ever been
attempted. Thus, the court finds that Agundis has not properly served Rice.
Statute of Limitations
Rice next asserts that the § 1983 claims are due to be dismissed because they
are precluded by the statute of limitations. (Docs. 77 at 3-4 & 79 at 11-12).
Claims brought pursuant to § 1983 are governed by the Alabama statute of
limitations for personal injury actions. See Scales v. Talladega County Dept. of
Human Resources, 2012 WL 3775837, *13 (N.D. Ala. Aug. 27, 2012) (Hopkins,
J.) (“The Alabama statute of limitations squarely applies to her claims that arise
under Alabama law, as well as her federal claims arising under sections 1983 and
Agundis filed her complaint on March 23, 2016. Therefore, to the extent she
asserts claims under § 1983, they are controlled by the two year statute of
limitations in Ala. Code § 6-2-38(l). See Jones v. Preuit & Mauldin, 876 F.2d
1480, 1483 (11th Cir. 1989). Thus, any § 1983 claims that predate March 23,
2014, are barred by the statute of limitations and are due to be dismissed. This
would include all of the claims except for the conspiracy to commit assault,
witness tampering, crossing state lines to violate a protection order and the
intentional infliction of emotional stress and outrage claims because those other
claims involve conduct that predates the limitations period. (Compare Counts IIIV and VII-XI with Counts I, V-VI, and XII-XIII). 8 The remaining claims would
not be barred under the statute of limitations to the extent they implicate conduct
by Rice after Agundis moved to Alabama. This includes the conduct occurring in
Birmingham when Rice and Sykes came for the hearing on the Protection from
D. Color of Law
Rice next asserts that Agundis’s § l983 claims are due to be dismissed
because she fails to allege sufficient facts to show that he was acting under “color
of law” as required to support such a claim. 9 (Doc. 79 at 12-13). Agundis argues
that she has met this element because Rice oftentimes conducted the alleged
activities while he was wearing his police uniform. By way of example, she states
in her reply that she alleged in her complaint that when Rice went to a medical
clinic in Starkville, Mississippi to illegally obtain her medical records, he was
wearing his Columbus police uniform. 10 (See Doc. 84 at 18).
See the discussion herein on pages 14-15.
Rice also adopts this argument in his reply related to the claims against the City. (See Doc. 86
That is not accurate. The Second Amended Complaint alleges that Rice “contacted the
woman’s clinic in Starkville MS where the Plaintiff went after the rape and obtained illegally the
A § 1983 plaintiff must show that she was deprived of a federal right by a
person acting under color of state law. Almand v. DeKalb County, Ga., 103 F.3d
1510, 1512 (11th Cir. 1997). “A person acts under color of state law when he acts
with authority possessed by virtue of his employment with the state. Edwards v.
Wallace Community College, 49 F.3d 1517, 1522 (11th Cir.1995) (citing West v.
Atkins, 487 U.S. 42, 48-50, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988)). Not
all acts by state employees are acts under color of law.
Id. at 1523.
dispositive issue is whether the official was acting pursuant to the power he/she
possessed by state authority or acting only as a private individual.’ Id. (citing
Monroe v. Pape, 365 U.S. 167, 183-84 (1961), overruled on other grounds by
Monell v. Department of Social Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978)).” Almand, 103 F.3d at 1513.
In discussing this issue, the court will apply the argument to the only
arguably viable § 1983 claim – Count I alleging a conspiracy by Rice and Sykes to
assault Agundis. This claim fails the test for a number of reasons. Contrary to
Agundis’s claim in her reply, she has not adequately alleged that Rice and Sykes
were acting under color of law while they were in Birmingham. Simply stating
that they are deputies does not demonstrate that they were acting under color of
medical records they possessed regarding any treatment with the Plaintiff….” (Doc. 68 at ¶ 47).
Agundis does not allege that Rice was wearing his uniform. Even if he was in uniform, as noted
already, this conduct occurred outside the statute of limitations.
law at the relevant time. This is particularly true in this instance where they are in
another state and, according to Agundis, Rice was at the “Birmingham Family
Court” for a “Protection from Abuse” hearing precipitated by her actions in
seeking the order. (See Doc. 68 at ¶ 17). Second, as stated above, not all actions
by a state employee are acts under color of law.
In Butler v. Sheriff of Palm Beach Cnty, 685 F.3d 1261, 1263-67 (11th Cir.
2012), the defendant corrections officer at a “boot-camp facility for minors” came
home to find the plaintiff hiding “stark naked” in her daughter’s closet after he had
engage in relations with her nineteen-year-old daughter. When the defendant
entered her daughter’s room, she removed her utility belt and placed it on the bed.
Upon discovering the plaintiff, she “yelled at him and punched him one time.” Id.
at 1263. She put her utility belt and gun back on after she discovered the plaintiff.
She then drew her weapon and told the plaintiff “that if he moved or did not follow
her commands, she would shoot him.” Id. The defendant then handcuffed the
plaintiff but eventually released him. She told him of the consequences of filing
charges against her or even “thinking about” reporting the incident. Id. at 1264.
The Eleventh Circuit found that the defendant was not acting under color of law,
but as “any irate mother with an anger management problem” would have acted.
Id. at 1267. The court further found it irrelevant that the corrections officer used
her duty weapon and handcuffs to assault the plaintiff because these items were not
restricted to law enforcement officers and the mere fact that she carried them while
on duty did not turn her actions into those taken under color of law. Id. at 1267-68.
In reaching its decision, the Butler court examined two earlier cases –
Almand and United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991). The court
Our decision in Almand (which is controlling authority) and the
Fifth Circuit’s decision in United States v. Tarpley, 945 F.2d 806 (5th
Cir. 1991) (which is persuasive authority), illustrate the line that is
drawn in § 1983 cases of this type. In the Almand case, we considered
the conduct of a police officer who forced his way into a woman’s
apartment and raped her. 103 F.3d at 1511-12. The woman had
originally let the officer in “because of his status as a police officer”
and his proffer of information about those responsible for the rape of
the woman’s daughter about a month earlier. Id. at 1514–15.
Afterwards, when he propositioned her, the woman told the officer to
leave and after he did she closed the door. Id. at 1515. Immediately
thereafter, the officer “forced open the closed door with such shock
that wood broke off the door. Having pushed open the door, [he]
reentered [her] apartment, physically struggled with her, and forcibly
raped her.” Id. at 1512.
We concluded in Almand that the officer’s conduct in breaking
in and raping the woman was a private act, not accomplished because
of power he possessed under state law, and in that respect “he was no
different from any other ruffian.” Id. at 1515. We explained that “any
thug or burglar could have committed the same violent acts.” Id. For
those reasons, we decided that the officer’s “conduct (if he did the
things alleged) was the act of a private citizen and did not violate the
Constitution,” and we concluded that the district court should have
granted summary judgment in his favor on the § 1983 claim. Id.
The Tarpley case was different. William Tarpley, a deputy
sheriff, devised a plan to assault Kerry Vestal, a man who had
engaged in an extramarital affair with Tarpley’s wife. Tarpley, 945
F.2d at 807. With the help of his faithless wife, Tarpley planned to
lure Vestal to his house for the assault. See id. at 807-08. While at
the sheriff’s station, Tarpley and a fellow deputy, Michael Pena, made
“sap gloves,” which have “rubber hosing filled with metal or lead shot
attached to the fingers.” Id. at 808. Tarpley planned to use those
weapons to attack Vestal. See id.
When the unsuspecting Vestal arrived at Tarpley’s house, the
wife pulled him inside where Tarpley tackled him and repeatedly hit
him in the head. Id. Tarpley then put his service pistol in Vestal’s
mouth, and told him that “he was a sergeant on the police department,
that he would and should kill Vestal, and that he could get away with
it because he was a cop.” Id. Tarpley said, “ ‘I’ll kill you. I’m a cop.
I can.’ ” Id. The Tarpleys then summoned Deputy Pena to the house,
and Tarpley told Vestal that Pena was “a fellow sergeant from the
police department.” Id. Deputy Pena confirmed to Vestal that
Tarpley had shot people in the past. Id. After the two deputies finally
let Vestal go, they followed him in Pena’s squad car and radioed
another officer to do the same. Id. Both squad cars followed Vestal
to the edge of town. Id.
Tarpley contended that “he was acting as a jealous husband, not
as a police officer.” Id. at 809. The Fifth Circuit rejected that
contention, holding that there was sufficient evidence for a jury to find
that Tarpley acted under color of law. Id. The court reasoned:
Tarpley did more than simply use his service
weapon and identify himself as a police officer. At
several points during his assault of Vestal, he claimed to
have special authority for his actions by virtue of his
official status. He claimed that he could kill Vestal
because he was an officer of the law. Significantly,
Tarpley summoned another police officer from the
sheriff’s station and identified him as a fellow officer and
ally. The men then proceeded to run Vestal out of town
in their squad car. The presence of police and the air of
official authority pervaded the entire incident.
Butler, 685 F.3d at 1266-67.
As to the conspiracy claim, there is no allegation that Rice or Sykes were
acting under color of law while they were in Birmingham. The allegations only
support a conclusion that they were acting as private citizens when they were in
Birmingham. Agundis does not allege they were in uniform or how they were
acting in an official capacity as Oktibbeha County deputies at that time. Such an
inference is not supported by her allegations. Because § 1983 is intended to
prevent actions that are a “[m]isuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority of state
law... ,” Agundis fails to state a claim under § 1983 in Count I because she alleges
actions by Rice as a private citizen engaged in a domestic dispute. Butler, 685
F.3d at 1268 (citations omitted). The sole fact that Rice and Sykes are also deputy
sheriffs is not sufficient to state a claim against them under § 1983.
Absence of a Private Right of Action
Rice next alleges that to the extent Agundis attempts to assert claims
pursuant to various criminal statutes, they are precluded because those provisions
do not authorize private causes of action. (Doc. 79 at 6-9 & 18-20). With regard
to the “crossing state boundaries to violate [a] protection order” claim (Count VI),
Agundis appears to premise her claim under 18 U.S.C. §§ 2261 (interstate
domestic violence), 2262 (interstate violation of a protection order) & 2265 (full
faith and credit to protection orders). (See Doc. 68 at ¶ 34). She also references
these statutes in her conspiracy to commit assault claim (Count I). (Id. at ¶ 18).
The general rule is that private citizens do not have “a judicially cognizable
interest in the prosecution or nonprosecution of another,” nor do they have the
“right to compel a State to enforce its laws.” Diamond v. Charles, 476 U.S. 54,
64-65 (1986). The relevant question at this juncture is whether Agundis has a
private right of action under these statutes.
The Eleventh Circuit has held that no private right of action exists under
Section 2261. Rock v. BAE Systems, Inc., 556 F. App’x 869, 871 (11th Cir. 2014)
(“Section 2261 also does not explicitly contain a private right of action . . . .”).11
The court also has held that § 2261A (the interstate stalking statute) also does not
provide a private cause of action. Id. Both states criminalize interstate travel
involving domestic violence or stalking, but that is all they do. Section 2262
criminalizes crossing state lines with the intention of violating a protection order
and lists the punishment for any violations. As with the other statutes, nothing in
the text of that statute indicates that Congress intended to create a private right of
action. See Hopson v. Commonwealth Attorney’s Office, 2013 WL 1411234, at *4
(W.D. Ky. Apr. 8, 2013) (“There is nothing in § 2262(a)(1) that would lead to . . . a
conclusion [that a private right of action exists under the statute.] Violations of §
Unpublished opinions of the Eleventh Circuit Court of Appeals are not considered binding
precedent; however, they may be cited as persuasive authority. 11th Cir. R. 36-2.
2262(a)(1) are criminal offenses. Congress specifically set forth that violations of
§ 2262(a)(1) are punishable by imprisonment or fines or both.... There is no
indication that Congress intended to create a private cause of action under 18
U.S.C. § 2262(a)(1).”). Section 2265 generally provides that a protection order
meeting the requirements of the statute and entered by a state shall be afforded full
faith and credit in another state. 18 U.S.C. § 2265. Nothing in this statute creates
a private right of action. See Smith v. Daniel, 2017 WL 1352229 at *2 (N.D. Fla.
Mar. 17, 2017) (Plaintiff lacks standing to bring claims under §§ 2261A, 2262 &
2265), report and recommendation adopted over objections, Smith v. Daniel, 2017
WL 1370734 (N.D. Fla. Apr. 5, 2017). As a result of the foregoing, the court finds
that the interstate travel to violate a protection order claim (Count VI) is due to be
dismissed. Similarly, to the extent the conspiracy to commit assault claim (Count
I) is premised on these criminal statutes, the claim is also due to be dismissed.
To the extent Agundis asserts a “witness tampering” claim (Count V), she
fails to specify the basis of her claim. (See Doc. 68 at ¶¶ 30-32). This claim fails
for the reason just discussed – there is no private cause of action for such a claim.
Both state and federal statutes prohibit intimidating or threatening a witness. See
Madden v. Abate, 800 F. Supp. 2d 604, 606-07 (D. Vt. 2011) (existence of a
criminal statute prohibiting certain conduct does not in and of itself create a civil
cause of action that may be brought by the victim of that conduct). The federal
witness tampering statute makes it a crime for anyone to intentionally use physical
force or the threat of physical force to prevent, influence, or delay the testimony of
any person in an official proceeding. 18 U.S.C. § 1512(a)(2). This statute, which
is applicable only in federal proceedings, does not create a private right of action.
Roberts v. Choate Constr. Co., 2011 WL 5006469, at * 2 (M.D. Fla. Oct. 20,
2011). Similarly, the applicable Alabama criminal code provisions addressing
witness intimidation and tampering do not include language creating a private
cause of action. See Ala. Code §§ 13A-10-123 (intimidating a witness) and 124
(tampering with a witness); see also Sulehria v. New York, 2012 WL 1288760, *11
(N.D.N.Y. Feb. 8, 2012) (“As with federal crimes, plaintiff has no private right of
action to enforce state criminal statutes and lacks the authority to institute a
criminal investigation.”). Thus, Agundis’s witness tampering claim (Count V) is
due to be dismissed.
Twombly/Iqbal pleading standard
In the first count, Agundis brings a claim against Rice alleging a
“[c]onspiracy to [c]ommit [an a]ssault.” (Doc. 68 at 11). Agundis asserts that Rice
and Sykes “conspired to circumvent the contact restrictions of the Protection from
(Id. at ¶ 14).
Agundis further claims that Rice “identified
[Agundis] to Sheriff Sykes and instructed her to tightly wind up legal documents
into the form of a baton to serve Plaintiff and strike Plaintiff in her abdomen....”
(Id. at ¶ 17).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555 (citations, brackets, and internal quotation marks omitted).
allegations must be enough to raise a right to relief above the speculative level ....”
Id. Thus, “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face,’” i.e., its “factual content ...
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations
omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
(quoting Twombly, 550 U.S. at 557).
This claim does not contain sufficient factual detail to establish a claim to
relief that is plausible on its face. Agundis claims that Rice “conspired” to assault
the plaintiff and that he “instructed” Sheriff Sykes to assault her, but Agundis
provides no supporting factual material to make this claim any more than
conclusory statements. (See Doc. 68 at 9 & 11). While pro se complaints are to be
construed liberally, it must still conform to established pleading standards.
Therefore, Count I is due to be dismissed on this additional ground.
The intentional infliction of emotion distress and outrage claims (Counts XII
and XIII) are also premised on conclusory allegations that merely recount some of
the elements of such claims. In both claims, Agundis asserts that she has been
subjected to “pain, suffering, loss of liberty, emotional distress, mental anguish,
embarrassment, and humiliation....” (Doc. 68 at 20-21). However, as already
thoroughly discussed, the allegations do not provide any factual information
demonstrating that these claims concern events that occurred after she arrived in
Alabama. To the extent she does provide any detail, the events alleged relate
events occurring in Mississippi in 2013 before she moved to Gulf Shores, Alabama
in 2015. By way of example, she alleges, “The Defendants [sic] intentionally
breached that duty [(not to engage in conduct likely to cause severe emotional
distress)] by intimidation, physically assaulting, stalking, harassing, threatening,
sexually assaulting, raping, stealing properties [sic] from the plaintiff’s home and
person, as well as causing Plaintiff to lose control of and become at times a hostage
in her own home.” (Id. at ¶ 57). The court finds that the “Intentional Infliction of
Emotional Distress” claim (Count XII) is due to be dismissed.
To the extent Agundis advances an “Outrage” claim (Count XIII) premised
on the same allegations (id. at ¶ 59), the court finds they also are insufficient to
state a claim for relief. In order to demonstrate an outrage claim, a plaintiff must
allege conduct on the part of the defendant (1) that was intentional or reckless; (2)
that was extreme and outrageous; and (3) that caused emotional distress so severe
that no reasonable person could be expected to endure it. Ex parte Crawford &
Co., 693 So. 2d 458, 460 (Ala. 1997). Although not specifically stated, even if
Agundis is advancing this claim premised on the fact that Sykes struck her in the
stomach with rolled up papers, that is not sufficient to state an outrage claim to
support the award of relief against Rice.12
Premised on the foregoing, the defendant’s motions to dismiss (doc. 76 &
78) are due to be granted as to all the claims regardless of whether they are brought
against Rice in his individual or official capacity. Additionally, the court finds that
the defendant’s motion to strike Agundis’s reply brief (doc. 89) is moot. An
appropriate order will be entered contemporaneously herewith.
DATED, this 13th day of July, 2018.
JOHN E. OTT
Chief United States Magistrate Judge
The court pretermits any discussion regarding the application of Younger v. Harris, 401 U.S.
37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct.
149, 68 L. Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462,
103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).
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