Joseph v. Allen et al

Filing 23

MEMORANDUM OPINION AND ORDER DISMISSING CASE that all motions to dismiss are GRANTED, and the motion to stay is DENIED as moot; Plaintiff's claims against the remaining defendants who, thus far, have not responded to his complaint, are DISMISSED for lack of subject-matter jurisdiction; all claims asserted inplaintiff's complaint are DISMISSED with prejudice and Costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/12/2013. (AHI)

FILED
2013 Jul-12 PM 02:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
TIMOTHY JOSEPH, who sues on
behalf of his son, Adam Joseph,
Plaintiff,
vs.
CODY ALLEN, et al.,
Defendants.

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Civil Action No. CV-13-S-695-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Timothy Joseph, proceeding pro se, alleges that the twenty-one
defendants:1 entered a residence without permission; “savagely beat, punched and
kicked [plaintiff’s] son, shattering his face and jawbone”; and denied plaintiffs’s son
medical attention for his injuries.2 Plaintiff effected service on seventeen of the
twenty-one defendants.3 Fifteen of those seventeen defendants have filed motions to
1

The complaint names the following defendants: (i) Cody Allen; (ii) Eli Allen; (iii) Brandon
Stiles; (iv) Jake Clairday; (v) Matthew Eubanks; (vi) Bubba Hopkins; (vii) Ed Taylor, Chief of
Police; (viii) Herman Marks, City Attorney; (ix) Chip Alexander, Assitant Attorney; (x) Nadis
Carlisle, Captain; (xi) Larry Russell, Leiutenant; (xii) George Silvestri, Sergeant; (xiii) Rick Archer;
Lieutenant; (xiv) Jeremy Hayes, Sergeant; (xv) Don Stanford; Former Mayor; (xvi) Scott Anderson,
Morgan County District Attorney; (xvii) Jerry Knight, Assistant District Attorney; (xviii) Johnny
Coker, Investigator; (xix) Luthor Strange, Attorney General; and (xx) Timothy J. Tierney, Assistant
Attorney General. Doc. no. 1 (Complaint), at 5-6. The twenty-first defendant is an “unknown
female to be named later.” Id. at 5.
2

Id. at 2 (alteration supplied).

3

Specifically, plaintiff has effected service on: (i) Cody Allen; (ii) Eli Allen; (iii) Jake
Clairday; (iv) Ed Taylor, Chief of Police; (v) Herman Marks, City Attorney; (vi) Chip Alexander,
Assitant Attorney; (vii) Nadis Carlisle, Captain; (viii) Larry Russell, Leiutenant; (ix) George
1

dismiss, based upon the assertion that this court lacks subject-matter jurisdiction, see
Fed. R. Civ. P. 12(b)(1), and that plaintiff’s complaint fails to state a claim upon
which relief can be granted. See id. 12(b)(6).4 Nine of the defendants have also
moved to stay proceedings pending the resolution of their motion to dismiss.5 Upon
consideration, this court will grant all of the motions to dismiss, and deny the motion
to stay as moot. Further, this court will, sua sponte, dismiss plaintiff’s claims against
the six defendants who did not move for dismissal on grounds of lack of subjectmatter jurisdiction.
I. LEGAL STANDARDS

Silvestri, Sergeant; (x) Rick Archer; Lieutenant; (xi) Jeremy Hayes, Sergeant; (xii) Don Stanford;
Former Mayor; (xiii) Scott Anderson, Morgan County District Attorney; (xiv) Jerry Knight,
Assistant District Attorney; (xv) Johnny Coker, Investigator; (xvi) Luthor Strange, Attorney General;
and (xvii) Timothy J. Tierney, Assistant Attorney General.
Plaintiff attempted to effect service on Brandon Stiles, but the summons was returned
unexecuted, with a notice that there exists “no such street” as the one that is written on the envelope.
See doc. no. 7 (Summons Returned Unexecuted). Plaintiff has not attempted to effect service on
Matthew Eubanks, Bubba Hopkins, or the “unknown female.” As plaintiff filed his complaint on
April 15, 2013, his time for doing so does not expire until August 13, 2013. See Federal Rule of
Civil Procedure 4(m) (setting a deadline for service of process “within 120 days after the complaint
is filed”).
4

See doc. no. 12 (Motion to Dismiss by Chip Alexander, Rick Archer, Nadis Carlisle,
Jeremy Hayes, Herman Marks, Larry Russell, George Silvestri, Don Stanford, and Ed Taylor); doc.
no. 19 (Motion to Dismiss by Jake Clairday); doc. no. 20 (Motion to Dismiss by Scott Anderson,
Johnny Coker, Jerry Knight, and Luther Strange).
The remaining two defendants on whom plaintiff effected service (i.e., Cody Allen and Eli
Allen) have not appeared in this action. Cody Allen’s answer was due on July 5, 2013, and Eli
Allen’s answer is due on July 17, 2013. See doc. no. 9 (Summons for Cody Allen); doc. no. 16
(Summons for Eli Allen). Despite the fact that Cody Allen’s time for filing an answer has expired,
plaintiff has not moved for the entry of his default.
5

See doc. no. 15 (Motion to Stay by Chip Alexander, Rick Archer, Nadis Carlisle, Jeremy
Hayes, Herman Marks, Larry Russell, George Silvestri, Don Stanford, and Ed Taylor).
2

Federal Rule of Civil Procedure 12(b)(1) permits a party to move to dismiss a
complaint for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). When
ruling upon a Rule 12(b)(1) motion, the court must first determine whether the moving
party is mounting a “facial” or “factual” attack on the court’s subject matter
jurisdiction. Where, as here, the motion is based on the lack of jurisdiction on the face
of the complaint, “the plaintiff is left with safeguards similar to those retained when
a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised — the court
must consider the allegations in the plaintiff’s complaint as true.” Williamson v.
Tucker, 645 F.2d 404, 412 (5th Cir. 1981) (internal citations omitted).6
Federal Rule of Civil Procedure 12(b)(6) permits a party to move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). That rule must be read together with Rule 8(a), which requires that a
pleading contain only a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that pleading standard
does not require “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 544
U.S. 544, 550 (2007), it does demand “more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).
6

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
3

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.” [Bell Atlantic Corp., 550 U.S.] at 570. A claim
has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id., at 556. 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. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied).
As always is the case in the context of ruling upon a motion to dismiss, the
district court is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
Steel Supply Corp.], 547 U.S. 451, [453,] 126 S. Ct. [1991,] 1994
[(2006)] (stating that on a motion to dismiss, the court must “accept as
true the factual allegations in the amended complaint”); Marsh v. Butler
County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc) (setting forth
the facts in the case by “[a]ccepting all well-pleaded factual allegations
(with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”).
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)
(alterations supplied). Even so,
the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. [Bell Atlantic Corp., 550 U.S.] at 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (Although for the purposes of a motion to
dismiss we must take all of the factual allegations in the complaint as
true, we “are not bound to accept as true a legal conclusion couched as
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a factual allegation” (internal quotation marks omitted)).
Iqbal, 556 U.S. at 678 (alteration supplied).
II. FACTS AS ALLEGED
Because plaintiff is proceeding pro se, he completed the “General Complaint
Form for Pro Se Litigants.”7 Plaintiff attached a handwritten list of twenty-one
defendants, one of whom is unnamed.8 Under the heading “On Charges of Assault,”
plaintiff listed the following seven defendants: (i) Cody Allen; (ii) Eli Allen; (iii)
Brandon Stiles; (iv) Jake Clairday; (v) Matthew Eubanks; (vi) Bubba Hopkins; and
(vii) an “unknown female to be named later.”9 Under the heading “On Charges of
Conspiracy,” plaintiff listed the following fourteen defendants: (i) Police Chief Ed
Taylor; (ii) City Attorney Herman Marks; (iii) Assistant Attorney Chip Alexander; (iv)
Captain Nadis Carlisle; (v) Lieutenant Larry Russell; (vi) Sergeant George Silvestri;
(vii) Lieutenant Rick Archer; (viii) Sergeant Jeremy Haves; (ix) Former Mayor Don
Stanford; (x) Morgan County District Attorney Scott Anderson; (xi) Assistant District
Attorney Jerry Knight; (xii) Investigator Johnny Coker; (xiii) Attorney General Luther
Strange; and (xiv) Assistant Attorney General Timothy J. Tierney.10
The section of the “General Complaint Form for Pro Se Litigants” entitled
7

See doc. no. 1 (Complaint), at 1.

8

See id. at 5-6.

9

Id. at 5.

10

Id. at 6.
5

“Statement of Claim” directed plaintiff to “[s]tate . . . the FACTS of [his] case,” and
to “[d]escribe how each defendant is involved.”11 Plaintiff filled out that section as
follows:
My son, Adam Joseph, was assaulted after the defendants entered
the residence uninvited and started an argument with my son. The
defendants savagely beat, punched and kicked my son, shattering his
face and jawbone. Upon arrival of Decatur Police no arrests were made
nor did they dispatch any medical aid for my son.12
The section of the complaint form entitled “Relief” instructed plaintiff to
“[s]tate . . . exactly what [he] want[s] the court to do for [him].”13 Plaintiff filled out
that section as follows: “I want the defendants arrested and charged for their
crimes.”14
III. DISCUSSION
A.

Defendants’ Motions to Dismiss
Three motions to dismiss have been filed on behalf of fifteen of the

defendants.15 Each is based upon Federal Rule of Civil Procedure 12(b)(1) for “lack
of subject-matter jurisdiction,” and, Federal Rule of Civil Procedure 12(b)(6) for

11

Id. at 2 (boldface emphasis in original, italicized emphasis and alterations supplied).

12

Id. at 2-3.

13

Doc. no. 1 (Complaint), at 3 (alterations supplied).

14

Id.

15

See doc. no. 12 (Motion to Dismiss by Chip Alexander, Rick Archer, Nadis Carlisle,
Jeremy Hayes, Herman Marks, Larry Russell, George Silvestri, Don Stanford, and Ed Taylor); doc.
no. 19 (Motion to Dismiss by Jake Clairday); doc. no. 20 (Motion to Dismiss by Scott Anderson,
Johnny Coker, Jerry Knight, and Luther Strange).
6

“failure to state a claim upon which relief can be granted.” Of the three motions, only
the first (doc. no. 12) contains legal analysis. Jake Clairday’s motion to dismiss (doc.
no. 19) is one paragraph long, and contains little beyond the grounds for dismissal
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The final motion to
dismiss (doc. no. 20) “incorporate[s] and adopt[s]” the legal analysis of the motion
docketed as doc. no. 12.16 Accordingly, this court will confine its discussion to the
first motion to dismiss. That motion identifies two grounds for dismissal, each of
which is independently sufficient.17
First, defendants observe that plaintiff requests that “defendants [be] arrested
and charged for their crimes.”18 The Supreme Court has unequivocally stated that “a
citizen lacks standing to contest the policies of the prosecuting authority when he
himself is neither prosecuted nor threatened with prosecution.” Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973) (alteration supplied). The Eleventh Circuit adopted the
rule that citizens lack standing to contest the prosecutions (or non-prosecutions) of
others in Garcia v. Miami Beach Police Department, 336 F. App’x 858, 859 (11th Cir.
2009) (quoting Linda R.S., 410 U.S. at 619, for the proposition that the “Supreme
Court has held that ‘a private citizen lacks a judicially cognizable interest in the
16

Doc. no. 20, at 1 (alterations supplied).

17

See doc. no. 12 (Motion to Dismiss by Chip Alexander, Rick Archer, Nadis Carlisle,
Jeremy Hayes, Herman Marks, Larry Russell, George Silvestri, Don Stanford, and Ed Taylor); doc.
no. 19 (Motion to Dismiss by Jake Clairday), at 1-2.
18

Id. at 1 (quoting doc. no. 1 (Complaint), at 3) (alteration supplied).
7

prosecution or nonprosecution of another’”).
Further, defendants note that this action involves a crime that was allegedly
committed against plaintiff’s son, not against plaintiff.19 This court made the same
observation in its order denying plaintiff’s motion for leave to proceed in forma
pauperis, which was entered more than two months before the filing of the first
motion to dismiss.20 Specifically, the order stated that:
In his complaint, plaintiff asserts injuries suffered by his son, not
by plaintiff.
[A] “plaintiff generally must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.” Warth v. Seldin, 422
U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); see
also Miccosukee Tribe of Indians of Fla. v. Fla. State
Athletic Comm’n, 226 F.3d 1226, 1230 (11th Cir. 2000)
(“Absent exceptional circumstances, a third party does not
have standing to challenge injury to another party.”).
Cook v. Trinity Universal Insurance Co., 297 F. App’x 911, 913 (11th
Cir. 2008) (alteration supplied).
Even so, a parent may be able to assert the rights of his minor
child. See, e.g., J.S. v. Campbell, No. 2:05-cv-928-WKW (WO), 2006
WL 2864254, *1 (M.D. Ala. Oct. 5, 2006) (discussing the claims of a
minor child against a police officer “by and through his father and next
best friend”). However, plaintiff’s complaint does not state that his son
19

Doc. no. 12 (Motion to Dismiss by Chip Alexander, Rick Archer, Nadis Carlisle, Jeremy
Hayes, Herman Marks, Larry Russell, George Silvestri, Don Stanford, and Ed Taylor), at 2.
20

See doc. no. 5 (Order Denying Leave to Proceed in Forma Pauperis) (entered on April 17,
2013); doc. no. 12 (Motion to Dismiss by Chip Alexander, Rick Archer, Nadis Carlisle, Jeremy
Hayes, Herman Marks, Larry Russell, George Silvestri, Don Stanford, and Ed Taylor) (filed on June
25, 2013).
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is a minor.21
B.

Plaintiff’s Failure to Respond to the First Motion to Dismiss
This court ordered that any response to the first motion to dismiss (doc. no. 12)

was due by July 9, 2013.22 Several days after the expiration of that deadline, plaintiff
has neither responded to the motion to dismiss, nor amended his complaint to address
the issues raised in this court’s order denying his motion for leave to proceed in forma
pauperis.
Courts in the Eleventh Circuit and beyond have held that the failure of
a party to respond or oppose a pending motion may constitute an
abandonment of the claims at issue in that motion. See, e.g., Black v.
Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (finding that
plaintiff abandoned claim by failing to defend it in response to a motion
to dismiss); Coalition for the Abolition on Marijuana Prohibition v. City
of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (finding that a party’s
failure to brief and argue an issue before the district court is grounds for
declaring it abandoned); Hooper v. City of Montgomery, 482 F. Supp. 2d
1330, 1334 (M.D. Ala. 2007) (concluding that a plaintiff’s failure to
respond to claims in a defendant’s motion to dismiss resulted in
dismissal of those claims as abandoned) . . . [I]naction supports a finding
of abandonment. See, e.g., Hudson v. Norfolk Southern Ry. Co., 209 F.
Supp. 2d 1301, 1324 (N.D. Ga. 2001) (providing that “[w]hen a party
fails to respond to an argument or otherwise address a claim, the Court
deems such argument or claim abandoned[ ]” (citing Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)). Indeed, this
Court is not under a duty to exercise imagination or conjure what a party
might have argued, but did not argue; nor is this Court obliged to do [a
party’s] work for him. See Lyes v. City of Riviera Beach, Fla., 126 F.3d
1380, 1388 (11th Cir. 1997) (explaining that “the onus is upon the
21

Doc. no. 5 (Order Denying Leave to Proceed in Forma Pauperis), at 3 (emphasis in
original, footnotes omitted).
22

See unnumbered order dated June 25, 2013.
9

parties to formulate arguments”); Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[t]here is no burden upon the
district court to distill every potential argument that could be made based
upon the materials before it”); Bowden ex rel. Bowden v. Wal-Mart
Stores, Inc., 124 F. Supp. 2d 1228, 1236 (M.D. Ala. 2000) (“[i]t is not
for the court to manufacture arguments on Plaintiff’s behalf”).
Accordingly, a party’s decision not to proffer argument or authority in
response to a dispositive motion is at his peril.
Kirkland v. County Commission of Elmore County, No. 2:08cv86-MEF, 2009 WL
596538, *3-6 (M.D. Ala. Mar. 6, 2009) (alterations in original, emphasis supplied).
C.

This Court’s Lack of Subject-Matter Jurisdiction
Federal district courts are tribunals of limited jurisdiction, “‘empowered to hear

only those cases within the judicial power of the United States as defined by Article
III of the Constitution,’ and which have been entrusted to them by a jurisdictional
grant authorized by Congress.” University of South Alabama v. American Tobacco
Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994)). Accordingly, an “Article III court must be sure of its own
jurisdiction before getting to the merits” of any action, Ortiz v. Fiberboard Corp., 527
U.S. 815, 831 (1999) (internal citation omitted), and “should inquire into whether it
has subject matter jurisdiction at the earliest stage in the proceedings.” University of
South Alabama, 168 F.3d at 410.
Further, a court must raise jurisdictional concerns on its own motion, and is
constitutionally obligated to satisfy itself of jurisdiction before proceeding. See, e.g.,
10

Freytag v. C.I.R., 501 U.S. 868, 896 (1991); Burr & Forman v. Blair, 470 F.3d 1019,
1035 (11th Cir. 2006) (“[F]ederal courts are duty bound to consider their subject
matter jurisdiction sua sponte.”) (alteration supplied); Galindo-Del Valle v. Attorney
General, 213 F.3d 594, 598 n.2 (11th Cir. 2000) (observing that federal courts are
“obligated to inquire into subject matter jurisdiction sua sponte whenever it may be
lacking”); University of South Alabama, 168 F.3d at 410 (“[I]t is well settled that a
federal court is obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.”) (alteration supplied).
Standing “is perhaps the most important of [the jurisdictional] doctrines.”
Bischoff v. Osceola County, 222 F.3d 874, 877-78 (11th Cir. 2000) (quoting United
States v. Hays, 515 U.S. 737, 742 (1995) (alteration in original) . The “party invoking
federal jurisdiction bears the burden of proving standing.” Bischoff, 222 F.3d at 878
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Therefore, Federal
Rule of Civil Procedure 8(a)(1) requires that a complaint contain “a short and plain
statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1). Indeed,
the “General Complaint Form for Pro Se Litigants” contains a section stating: “The
jurisdiction of this court is invoked pursuant to ___. (List statutes.)”23 Plaintiff left
that section blank.24

23

Doc. no. 1 (Complaint), at 2.

24

See id.
11

It is apparent that plaintiff has not borne his burden of establishing the existence
of standing. As explained above, “a citizen lacks standing to contest the policies of
the prosecuting authority when he himself is neither prosecuted nor threatened with
prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Thus, plaintiff
lacks standing to request the relief that “defendants [be] arrested and charged for their
crimes.”25 Further, a “plaintiff generally must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or interests of third parties.”
Cook v. Trinity Universal Insurance Co., 297 F. App’x 911, 913 (11th Cir. 2008).
Thus, plaintiff also lacks standing to request redress for a crime that was allegedly
committed against his son. Accordingly, this court lacks subject-matter jurisdiction
to hear plaintiff’s claims against any of the defendants, including those defendants
who did not move for dismissal.
IV. CONCLUSION
For the reasons explained above, all motions to dismiss are GRANTED, and the
motion to stay is DENIED as moot. Plaintiff’s claims against the remaining
defendants who, thus far, have not responded to his complaint, are, sua sponte,
DISMISSED for lack of subject-matter jurisdiction. Thus, all claims asserted in
plaintiff’s complaint are DISMISSED with prejudice. Costs are taxed to plaintiff.
The clerk is directed to close this file.
25

Id. at 3 (alteration supplied).
12

DONE and ORDERED this 12th day of July, 2013.

______________________________
United States District Judge

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