Johnson v. Broussard et al
MEMORANDUM OPINION AND ORDER DISMISSING CASE that defendants' motions to dismiss are GRANTED, and all of plaintiff's claims against all defendants are DISMISSED with prejudice; Plaintiff's motion for leave to amend her complaint is DENIED; Plaintiff's motions for intervention and for a restraining order are DENIED; Costs are taxed to plaintiff. Signed by Judge C Lynwood Smith, Jr on 6/22/2017. (AHI )
2017 Jun-22 AM 11:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
PAMELA T. JOHNSON,
ROBERT L. BROUSSARD, et al.,
Civil Action No. 5:17-cv-388-CLS
MEMORANDUM OPINION AND ORDER
Plaintiff, Pamela T. Johnson, who is proceeding pro se, filed this case on
March 13, 2017. Her complaint asserts claims against: Robert L. Broussard, the
District Attorney for Madison County, Alabama; Blake L. Dorning, the Sheriff of
Madison County; David K. Jernigan, a Madison County Deputy Sheriff; Richard T.
Lambruschi, an Alabama State Board of Pharmacy Inspector; and Larry R. Muncey,
the former Police Chief of the City of Madison, Alabama.1 The case currently is
before the court on the following pleadings: (1) a motion to dismiss filed by
defendants Dorning and Jernigan;2 (2) a motion to dismiss filed by defendant
Broussard;3 (3) a motion to dismiss filed by defendant Lambruschi;4 (4) plaintiff’s
Doc. no. 1 (Complaint).
Doc. no. 9.
Doc. no. 11.
Doc. no. 16.
motion to amend her complaint for the purpose of adding claims against Spencer
Collier and Stan Stabler, two former Secretaries of the Alabama Law Enforcement
Agency (“ALEA”);5 (5) plaintiff’s motion for intervention;6 and (6) plaintiff’s motion
for a restraining order.7
I. STANDARDS OF REVIEW
Motions to Dismiss
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This 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, 550 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted). As the Supreme Court stated in Iqbal:
A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” [Twombly,
550 U.S., at 555]. Nor does a complaint suffice if it tenders “naked
Doc. no. 25.
Doc. no. 28.
Doc. no. 38.
assertion[s]” devoid of “further factual enhancement.” Id., at 557.
To survive a motion to dismiss founded upon Federal Rule of
Civil Procedure 12(b)(6), [for failure to state a claim upon which relief
can be granted], a complaint must contain sufficient factual matter,
accepted as true, to “state a claim for relief that is plausible on its face.”
Id., 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).
Two working principles underlie our decision in Twombly. First,
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. Id., at 555 (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 a factual allegation” (internal quotation marks omitted)).
Rule 8 marks a notable and generous departure from the hyper-technical,
code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim for relief survives
a motion to dismiss. Id., at 556. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed,
be a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense. 490 F.3d, at 157-158. But
where the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged — but it
has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule
Civ. Proc. 8(a)(2).
In keeping with these principles 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.
While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. 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.
Iqbal, 556 U.S. at 678-79 (emphasis supplied, second and fourth alterations in
original, all other alterations supplied).
“‘Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys’ and are liberally construed.” Bingham v. Thomas, 654 F.3d 1171, 1175
(11th Cir. 2011) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998)). “‘Yet even in the case of pro se litigants this leniency does not give a
court license to serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.’” Campbell v. Air Jamaica Ltd., 760
F.3d 1165, 1168-69 (11th Cir. 2014) (quoting GJR Investments, Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998)).
Motion for Leave to Amend
Federal Rule of Civil Procedure 15 addresses amended and supplemental
pleadings, and states that a court should “freely give leave [to amend a pleading] when
justice so requires.” Fed. R. Civ. P. 15(a)(2) (alteration supplied).
A district court need not, however, allow an amendment (1) where there
has been undue delay, bad faith, dilatory motive, or repeated failure to
cure deficiencies by amendments previously allowed; (2) where allowing
amendment would cause undue prejudice to the opposing party; or (3)
where amendment would be futile. See Foman v. Davis, 371 U.S. 178,
182, 83 S. Ct. 227, 9 L. Ed.2d 222 (1962).
Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (emphasis supplied).
II. ALLEGATIONS OF PLAINTIFF’S COMPLAINT
Plaintiff’s complaint asserts nine claims. The first is based upon Article I,
Section 10 of the United States Constitution, which provides that:
No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit;
make any Thing but gold and silver Coin a Tender in Payment of Debts;
pass any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility.
U.S. Const. art. I, § 10. Plaintiff contends that defendants violated that provision by
“enter[ing] into treaties, alliances, and confederation against [her], [and by] granting
letters of marque and reprisal against [her] with” the District Attorney and Sheriff of
San Diego County, California. Doc. no. 1 (Complaint), ¶ 1, at ECF 8 (alterations
supplied).8 According to plaintiff, those actions constituted “guerilla warfare against
“ECF” is an acronym formed from the initial letters of the name of a filing system that
allows parties to file and serve documents electronically (i.e., “Electronic Case Filing”). Bluebook
Rule 7.1.4 allows citation to page numbers generated by the ECF header. The Bluebook: A Uniform
System of Citation, at 21 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). Even so, the
Bluebook recommends against citation to ECF pagination in lieu of original pagination.
Consequently, unless stated otherwise, this court will cite to the original pagination in the parties’
pleadings. When the court cites to pagination generated by the ECF header, it will, as here, precede
the page number(s) with the letters “ECF.”
[her] without the consent of Congress.” Id. (alteration supplied).
Plaintiff’s second claim alleges that defendants violated Article III, Section 3
of the United States Constitution, which contains two clauses. The first clause states:
Treason against the United States, shall consist only in levying
War against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in
U.S. Const. art. III, § 3, cl. 1. The second clause states: “The Congress shall have
Power to declare the Punishment of Treason, but no Attainder of Treason shall work
Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
Id., cl. 2. Plaintiff contends that defendants violated those clauses by levying guerilla
warfare upon her, even though she has not committed treason.
Doc. no. 1
(Complaint), ¶ 2, at ECF 8.
Plaintiff’s third claim alleges that defendants violated the Supremacy Clause of
the United States Constitution, which provides that:
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
U.S. Const. art. VI, cl. 2. Plaintiff contends that defendants violated that clause “with
wanton abandon against [her]” since January 13, 2013, when she moved to Alabama.
Doc. no. 1 (Complaint), ¶ 3, at ECF 8. (alteration supplied). She does not provide any
factual basis for that assertion, other than stating “[p]olice fifedoms are illegal.” Id.
Plaintiff’s fourth claim alleges that defendants violated her rights under the First
Amendment to the United States Constitution, i.e.:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.
U.S. Const. amend. I. Plaintiff’s claim reads as follows:
USC Amendment I allows me to petition the government for a
redress of grievances especially those that restrict in any way my choice
to worship and speak as I please and wherever I choose. This guerilla
warfare is designed to make me shut up, leave the church in which I
worship, that happens to be where the DA, Police Chief, and Deputy
attend, and at the very least move out of Alabama and at the very worst
commit suicide. I have been chemically attacked at Asbury United
Methodist Church on Hughes Rd in Madison and made to stop attending
because of it.
Doc. no. 1 (Complaint), ¶ 4, at ECF 8.
Plaintiff’s fifth claim asserts that defendants violated her rights under the Fourth
Amendment to the United States Constitution, i.e.:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. amend. IV. She contends that defendants violated that provision as
I claim my house, person, papers, effects, car, workplace, anything
that is mine, anywhere I go, anything I do whether at home, or church, or
on the road, or at work (I am a pharmacist for Walmart) everything about
me is under assault by the DA, Sheriff, Deputy, Police Chief, Pharmacy
Inspector and anyone they can convince or command to do the same
against me. I haven’t done anything wrong and there is no cause or
authority under which I and my property are constantly assaulted.
Doc. no. 1 (Complaint),¶ 5, at ECF 9.
Plaintiff’s sixth claim asserts that defendants violated her rights under the Fifth
Amendment to the United States Constitution, which provides:
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia, when
in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
U.S. Const. amend. V. She contends that defendants violated that provision by
wrongfully depriving her of life, liberty, and property, even though she has not
committed any crimes. Doc. no. 1 (Complaint), ¶ 6, at ECF 9.
Plaintiff’s seventh claim alleges that defendants violated her rights under the
Eighth Amendment to the United States Constitution, which provides: “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII. She contends that defendants violated that
provision as follows:
I am being chemically attacked everywhere I am, including
traveling while driving, and while trying to fill prescriptions safely for
the public, with chemicals designed from my DNA by the FBI that do a
variety of things among them being pain infliction, gastrointestinal pain,
pain in other places of my body, somnolence while driving, immediate
and explosive diarrhea, vaginal itching, insomnia while trying to fall
asleep, sleep deprivation, immediate and intense side ache. They also
aim a high frequency device at me. Most of all they do could be summed
up as Project Paperclip Cointelpro Shenanigans the FBI is famous for.
Doc. no. 1 (Complaint), ¶ 7, at ECF 9.
Plaintiff’s eighth claim alleges that defendants have violated the Eleventh
Amendment to the United States Constitution, which she construes as providing that
the “judicial power of one state cannot be commenced or prosecuted by citizens of
another state.” Id., ¶ 8, at ECF 10. Actually, the Eleventh Amendment 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 (alteration supplied).
Plaintiff contends that defendants violated that
everything happening to me here in Alabama began in California in San
Diego although I committed no wrongs. It was an evil DA and even
more evil Sheriff with a lifetime of FBI experience that initiated guerilla
warfare against me misusing and abusing his authority, knowledge, and
networking to the hilt. I claim they informed the DA and Sheriff here in
Alabama to do the same. I claim they have complied more than willingly.
All the defendants know each other and the Sheriff, Deputy, and Police
Chief have extensive FBI training like the San Diego Sheriff who was the
SAC9 for not only San Diego, but also at Ruby Ridge, ID, and Waco, TX
during those atrocities. I claim their culpability designed to murder
Doc. no. 1 (Complaint), ¶ 8, at ECF 10.
Plaintiff’s ninth claim asserts that defendants have violated her rights under the
Fourteenth Amendment to the United States Constitution, which provides, in pertinent
All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.
U.S. Const. amend. XIV, § 1. Plaintiff contends that defendants have violated that
provision by “misus[ing] and abus[ing] their power, authority, knowledge, and
networking to hunt me for sport.” Doc. no. 1 (Complaint), ¶ 9, at ECF 10. She asserts
The court presumes plaintiff intends this acronym to stand for “Special Agent in Charge.”
that those violations have been occurring “24/7 since Jan 13, 2013 when I fled San
In addition, plaintiff lodges the following allegations, untethered to any
I claim chemical assault and battery that is non-stop everywhere
I am, everywhere I go 24/7 at home, church, work, on the road. I claim
they are doing all this to my daughter, Ariana Johnson, now as well and
are influencing her teachers to drop her 4.0 gpa she’s had since the
beginning of 4th grade to make it harder or impossible for her to enter
nurse anesthetist school which is very competitive. I claim they bug our
homes, computers, phones, cars to listen & see what we are doing even
in the bedroom. I claim they stalk us, violate our privacy, break and enter
our cars and homes at will. I claim they sideswiped Ariana and have
caused me severe and intentional emotional distress. I claim they have
and still are indoctrinating our coworkers, bosses, and teachers to do the
same. I claim they have taken brake fluid out of my car, changed out my
tires so I had to buy more, influence[d] people with whom we affiliate
and/or do business. I claim attempted murder by the DA, Sheriff,
Deputy, Police Chief, and State Board Inspector whose son lives across
the street from me as does DA Broussard’s sister Sally Broussard Dobbs,
whose husband and son Christopher are also chemically attacking and
harassing me — especially Christopher and his louder than normal truck.
Doc. no. 1 (Complaint), at ECF 10 (alteration supplied, underlining in original).
As relief, plaintiff requests: (1) an injunction prohibiting defendants from
continuing to engage in the conduct described in her complaint; (2) an injunction
requiring the removal of tracking devices, cameras, listening devices, and mold
planted by defendants; (3) an injunction requiring defendants to issue letters of
apology to her and her daughter; (4) a requirement that defendants “restore to better
than new whatever has been damaged because of them,” including fixing the mold
problem they created at plaintiff’s residence; (5) a restraining order requiring
defendants to stay a minimum of ten miles away from plaintiff and her daughter; (6)
an order changing all of her daughter’s “B” grades to “As,” and directing her
daughter’s teachers to stop making her classes more difficult; (7) an order that “all
defendants be charged with and tried for attempted murder”; (8) an order that
defendants “reveal the source and distribution of the chemical agents used” against her
and her daughter, and that they cease using such agents; (9) an order relieving all
defendants of duty and preventing them from holding future public office; (10) an
order relieving defendants of their weapons and preventing them “from ever
purchasing weapons even for hunting”; and (11) a total of one billion dollars in
compensatory and punitive damages.10
Defendants Dorning, Jernigan, Broussard, and Lambruschi assert that plaintiff’s
claims against them should be dismissed because the allegations of her complaint “are
simply not plausible.”11 Defendants rely upon the Eleventh Circuit’s decision in
Id. at ECF 11-12.
Doc. no. 10 (Brief in Support of Motion to Dismiss of Sheriff Blake L. Dorning and Chief
Deputy David K. Jernigan), at 6; doc. no. 12 (Brief in Support of Motion to Dismiss of District
Attorney Robert L. Broussard). See also doc. no. 16 (Motion to Dismiss Filed on Behalf of Richard
Cofield v. Alabama Public Service Commission, 936 F.2d 512 (11th Cir. 1991),
holding that “a district court may dismiss a case for frivolity only when the legal claim
is indisputably meritless, the facts are far-fetched or baseless, or both.” Id. at 515.
The Cofield decision addressed the claims of a pro se plaintiff proceeding in forma
pauperis pursuant to 28 U.S.C. § 1915,12 Cofield, 936 F.2d at 514-15, but its holding
does not need to be limited to that context. As another district court within this Circuit
has held in an unpublished, but nonetheless persuasive opinion:
Dismissal under such circumstances has been extended to
situations in which a litigant paid the court’s filing fees. In such a
T. Lambruschi), at ¶ 3 (“The Complaint fails to include factual allegations plausibly giving rise to
the Plaintiff’s entitlement to any relief.”).
The relevant portion of 28 U.S.C. § 1915 is currently found at subsection (e), which states:
Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that –
(A) the allegation of poverty is untrue; or
(B) the action or appeal –
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from
28 U.S.C. § 1915(e)(2). On the date of the Eleventh Circuit’s decision in Cofield, the relevant
language was found in subsection (d) of 28 U.S.C. § 1915. See Cofield, 936 F.2d at 515 (“A district
judge, under the statute, ‘may dismiss [a] case . . . if satisfied that the action is frivolous or
malicious.’”) (quoting 28 U.S.C.A. § 1915(d)) (alteration and ellipsis in original); see also Rolle v.
Barkett, No. 410-CV-00153-MP-AK, 2010 WL 2402901, at *1 (N.D. Fla. June 15, 2010) (“28
U.S.C. § 1915(d) was redesignated § 1915(e) by the Prison Litigation Reform Act.”).
situation, the district court in the Southern District of New York held that
“[a] plaintiff asserting fantastic or delusional claims should not, by
payment of a filing fee, obtain a license to consume limited judicial
resources and put defendants to effort and expense.” Tyler v. Carter, 151
F.R.D. 537, 540 (S.D. N.Y.1993), affirmed 41 F.3d 1500 (2nd Cir.1994).
The policies arguing against sua sponte Rule 12(b)(6)
dismissals do not apply in these circumstances. The author
of claims as irrational as these cannot be regarded as subject
to the economic incentive to refrain from frivolous actions
imposed by filing fees and court costs upon rational paying
litigants. . . . If this Court cannot order sua sponte dismissal
of this complaint under Rule 12(b)(6), no district court can
ever dismiss sua sponte any complaint under the Rule. I do
not think that is the law.
Tyler, 151 F.R.D. at 540. Plaintiff in the case at bar has presented
conclusory allegations that are clearly baseless and are frivolous. No
Defendant should be put to the expense of answering such a complaint,
and there is no reason to permit Plaintiff to file an amended complaint.
Therefore, summary dismissal of this action is appropriate pursuant [to]
Fed. R. Civ. P. 12(b)(6).
Rolle v. Barkett, No. 410-CV-00153-MP-AK, 2010 WL 2402901, at *1-2 (N.D. Fla.
June 15, 2010) (Paul, J.) (second alteration supplied, first alteration and ellipsis in
Similarly, here, plaintiff’s conclusory allegations are clearly baseless, and her
claims are frivolous. Because dismissal here will not be sua sponte, but upon motion
of the defendants, plaintiff has been provided even more process than the plaintiff in
Rolle. There is no reason to require defendants to expend additional time and money
defending claims that cannot possibly succeed. Moreover, there is no reason to allow
plaintiff the opportunity to amend her complaint, because any amendment would be
futile. Finally, the court finds that the dismissal should also apply to plaintiff’s claims
against defendant Larry R. Muncey, even though Muncey has not filed a motion to
dismiss. The claims against Muncey would be due to be dismissed for the same
reasons as plaintiff’s other claims, so there is no point in retaining Muncey’s claims
and requiring him to later go through the act of filing a separate motion to dismiss.13
IV. CONCLUSION AND ORDERS
In accordance with the foregoing, it is ORDERED that defendants’ motions to
dismiss are GRANTED, and all of plaintiff’s claims against all defendants are
DISMISSED with prejudice. Plaintiff’s motion for leave to amend her complaint is
DENIED. Plaintiff’s motions for intervention and for a restraining order are DENIED.
Costs are taxed to plaintiff. The Clerk is directed to close this file.
Moreover, even if plaintiff’s claims against Muncey were not due to be dismissed on the
merits, they would be due to be dismissed without prejudice for failure to serve. This court entered
an order on May 17, 2017, quashing plaintiff’s attempt to serve Muncey with a copy of the summons
and complaint. Doc. no. 33. The court ordered plaintiff to serve Muncey “in full compliance with
Rule 4 of the Federal Rules of Civil Procedure on or before June 16, 2017, and provide proof of
service to the court, or her claims against Muncey may be dismissed for failure to serve.” Id. at 3
(emphasis supplied). As of the date of this order, plaintiff has not offered any proof that she has
accomplished service on Muncey.
DONE this 22nd day of June, 2017.
United States District Judge
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