Shabani v. City of Gadsden

Filing 6

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/20/2012. (JLC)

FILED
2012 Jul-20 PM 03:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DAVID SHABANI,

)
)
Plaintiff,
)
)
v.
) Case No.: 4:12-CV-983-VEH
)
CITY OF GADSDEN, ALABAMA, a )
municipal corporation,
)
)
Defendant.
)

MEMORANDUM OPINION
I.

Introduction
This lawsuit originated in the Circuit Court of Etowah County on October 26,

2010. (Doc. 1 at Ex. C at 6). Defendant City of Gadsden (the “City”) removed the
action to this court on March 28, 2012, on the basis of Plaintiff David Shabani’s
(“Mr. Shabani”) amended complaint which presented a federal question. (Doc. 1 at
3).
Pending before the court is the City’s Motion To Dismiss (Doc. 3) (the
“Motion”) filed on June 27, 2012. The Motion seeks “to dismiss the plaintiff’s
amended complaint and then remand this case to the Circuit Court of Etowah
County.” (Id. at 1). The City also has filed a supporting brief. (Doc. 4).

Mr. Shabani has not opposed the Motion which under Appendix III to the
court’s uniform initial order was due on July 11, 2012. (Doc. 2 at 22 ¶ B.2 (“The
opponent’s responsive brief shall be filed no later than fourteen (14) calendar days
thereafter.”)). For the reasons explained below, the Motion is due to be granted.
II.

Standards
A.

Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
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“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal, 129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “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 556).
B.

Mr. Shabani’s Failure to Oppose

Mr. Shabani’s failure to file any opposition to the Motion is not without
significant repercussions. As explained by Judge Steele in Williams v. Quality
Filters, Inc., No. 07-0015-WS-B, 2007 WL 4219201, *1 (S.D. Ala. Nov. 27, 2007):
Courts are not obligated to read a party’s mind or to construct arguments
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that it has failed to raise and that are not reasonably presented in the
court file. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587,
599 (11th Cir. 1995) ( “There is no burden upon the district court to
distill every potential argument that could be made based upon the
materials before it . . . .”); see also Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999) (declaring that a “party
who aspires to oppose a . . . motion must spell out his arguments
squarely and distinctly, or else forever hold his peace,” as district court
may ignore arguments not adequately developed by nonmovant).
Clearly, “the onus is upon the parties to formulate arguments.”
Resolution Trust, 43 F.3d at 599; Bowden ex rel. Bowden v. Wal-Mart
Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000) (“It is not for
the court to manufacture arguments on Plaintiff's behalf.”).
Accordingly, plaintiff’s decision not to respond to the Motion is at her
peril.
Williams, 2007 WL 4219201, *1.
III.

Analysis
A.

Background

This dispute centers upon “three multi-family residences (one duplex building
and two four-unit buildings) located at 936 South 11th Street, Gadsden, Alabama”
owned by Mr. Shabani. (Doc. 4 at 1). On November 20, 2009, the City, through its
agent, Building Official Brian Harbison (“Mr. Harbison”) “issued an order to abate
nuisance by repair or removal of the structures within one hundred twenty days.”
(Doc. 4 at 1).
Mr. Shabani contested this order by filing suit in the Circuit Court of Etowah
County on October 26, 2010. (Doc. 1 at Ex. C at 6). After conducting a hearing, the
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state court ordered Mr. Shabani “to demolish the two four-unit buildings” and if he
did so “on or before May 8, 2011, then the City of Gadsden was ordered to issue a
building permit for renovation and rehabilitation of the duplex . . . .” (Doc. 4 at 2; see
also Doc. 1 at Ex. C at 21).
Mr. Shabani unsuccessfully sought to alter, amend, or vacate the state court
order. (Doc. 1 at Ex. C at 23). Mr. Shabani also filed a notice of appeal to the
Supreme Court of Alabama, which was dismissed on August 8, 2011, as “a non-final,
non-appealable order.” (Id. at 44).
Mr. Shabani then filed a motion to dismiss in the circuit court (suggesting that
he no longer had title to the subject property) on August 9, 2011, and followed this
with an amended complaint on March 15, 2012. (Id. at 45, 50-52). Within this new
pleading, Mr. Shabani attempts to formulate a second count to his complaint and for
the first time alleges Fourth Amendment constitutional violations against the City
(Doc. 1 at Ex. C at 50-51), thereby triggering federal question jurisdiction.
B.

Mr. Shabani’s Amended Pleading

Mr. Shabani’s primary contention set forth in his amended complaint appears
to be that the City has wrongfully withheld the issuance of a building permit with
respect to the duplex. However, noticeably absent from his pleading is any factual
averment that he has complied with the order of demolition concerning the four-unit
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buildings, a prerequisite to any building permit issuance by the City.
Mr. Shabani also complains that the appeal of the circuit court case should have
resulted in a stay, that Mr. Harbison kicked in doors at the apartments, and that the
City improperly cited him for trash violations. Having studied the amended pleading,
the court is in agreement with the City that the starkness and conclusory nature of Mr.
Shabani’s allegations either have nothing to do with it (like the stay) or seek to
impose liability on the City due to isolated incidents of its agents and, regardless, do
not plausibly support a Fourth Amendment constitutional claim against it. See, e.g.,
Monell v. Dept. of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed.
2d 611(1978) (“In particular, we conclude that 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.”); see also City of Canton
v. Harris, 489 U.S. 378, 387, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989) (“Nor,
without more, would a city automatically be liable under § 1983 if one of its
employees happened to apply the policy in an unconstitutional manner, for liability
would then rest on respondeat superior.”); cf. Gold v. City of Miami, 151 F.3d 1346,
1351 (“To establish a ‘deliberate or conscious choice’ or such ‘deliberate
indifference,’ a plaintiff must present some evidence that the municipality knew of
a need to train and/or supervise in a particular area and the municipality made a
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deliberate choice not to take any action.”).
Mr. Shabani’s constitutional conspiracy claim is likewise devoid of any facts
which establish its plausibility. Additionally, the City is correct that it is absolutely
immune from Mr. Shabani’s punitive damages claim. See City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 271, 101 S. Ct. 2748, 2762, 69 L. Ed. 2d 616 (1981)
(“Because absolute immunity from such damages obtained at common law and was
undisturbed by the 42d Congress, and because that immunity is compatible with both
the purposes of § 1983 and general principles of public policy, we hold that a
municipality is immune from punitive damages under 42 U.S.C. § 1983.”).
III.

Conclusion
Therefore, in light of the absence of any objection from Mr. Shabani and based

upon the foregoing analysis, the Motion is due to be granted as unopposed and on the
merits. Further, because no federal claims will be pending, the remainder of the
lawsuit, in the court’s discretion, is due to be remanded to the Circuit Court of
Etowah County pursuant to 28 U.S.C. § 1367(c)(3) (declining to exercise
supplemental jurisdiction is appropriate when “the district court has dismissed all
claims over which it has original jurisdiction”). The court will enter a separate order.

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DONE and ORDERED this the 20th day of July, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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