Johnson v. Wal Mart Stores, Inc., et al
MEMORANDUM OPINION AND ORDER DISMISSING CASE that both motions to dismiss are GRANTED, and all of plaintiff's claims against all defendants pursuant to 42 U.S.C. § 1983 are DISMISSED with prejudice; any state law claims are DISMISSED without prejudice to plaintiff's right to re-file them in an appropriate state court' Costs are taxed to plaintiff. Signed by Judge C Lynwood Smith, Jr on 6/22/2017. (AHI)
2017 Jun-22 AM 11:43
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
PAMELA T. JOHNSON,
WAL-MART STORES, INC., et al., )
Civil Action No. 5:17-cv-675-CLS
MEMORANDUM OPINION AND ORDER
Plaintiff, Pamela T. Johnson, who is proceeding pro se, filed this case on April
26, 2017. She asserts claims against defendants Wal-Mart Stores, Inc., her former
employer, and King Management Solutions, the company that manages the apartment
complex in which she resides.1 The case currently is before the court on both
defendants’ motions to dismiss.2
I. STANDARD OF REVIEW
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
See doc. no. 1 (Complaint).
Doc. no. 7 (Motion to Dismiss by King Management Solutions); doc. no. 10 (Motion to
Dismiss by Wal-Mart Stores, Inc.).
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
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, 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)).
II. ALLEGATIONS OF PLAINTIFF’S COMPLAINT
Plaintiff asserts that employees of King Management Solutions (“King”) entered
her apartment without permission, and also allowed law enforcement officers to enter
the apartment, for the following purposes: causing mold to grow; taking “trinkets”;
leaving lights and fans on; planting surveillance cameras; poisoning her toothpaste;
emitting dangerous aerosolized gases into the air; putting chemicals in her food;
waking her up in the middle of the night; sprinkling “itching powder” on her porch;
and marking the walls at eye level. She also asserts that King’s employees entered,
and allowed law enforcement officials to enter, her automobile for the purposes of
tracking her, harassing her, recording her, and removing brake fluid.
In addition, she asserts that employees of defendant Wal-Mart Stores, Inc.
(“Wal-Mart”) allowed law enforcement officers to stalk and chemically attack her
while she was working as a Wal-Mart pharmacist. After mentioning an alleged FBI
conspiracy to a Wal-Mart co-worker, plaintiff was placed on a paid six-week leave of
absence, and was required to seek psychological treatment and submit to a
psychological examination. That experience caused plaintiff’s co-workers to verbally
harass and attack her by making her feel as though she had done something wrong.
Plaintiff claims that both defendants have waged “war” on her, and violated a
treaty entered into between the United States and the Osage Indian Tribal Nation, of
which she is a member. She believes the intent of the harassment she has experienced
to be that of causing her to commit suicide.
Plaintiff also claims that her Wal-Mart supervisor threatened her and her job if
she spoke about God in the workplace. She also believes her job was threatened after
she lodged a complaint with the Alabama Law Enforcement Agency.3
Plaintiff asserts that defendants’ actions, and the wrongful actions of law
enforcement agents that defendants have permitted, have violated her rights under the
following provisions of the United States Constitution: Article I, Section 8; Article III,
Sections 2 & 3; Article IV, Section 2; and Article VI . She also claims violations of
her rights under Amendments I, IV, V, VI, VIII, XI, XIII, and XIV of the
Constitution.4 As relief for those wrongs, plaintiff seeks an injunction stopping all
harassment against her on Wal-Mart premises, an injunction stopping all harassment
Doc. no. 1 (Complaint), at ECF 6-10. “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.”
Id. at ECF 3.
by other Wal-Mart employees (and requiring a letter of apology from everyone who
has harassed her), an injunction requiring any supervisory Wal-Mart employees who
have been involved in harassing her to be tried for attempted murder, and a total of a
trillion dollars in compensatory and punitive damages.5
Claims under 42 U.S.C. § 1983
Defendants argue, and this court agrees, that plaintiff’s federal claims against
each of them cannot proceed because they are not state actors. 42 U.S.C. § 1983
provides, in pertinent part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . . [emphasis supplied]
“To establish a claim under 42 U.S.C. § 1983, a plaintiff must prove (1) a violation of
a constitutional right, and (2) that the alleged violation was committed by a person
acting under color of state law.” Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir.
2005) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Defendants undisputedly are
private companies, and not governmental entities. It also cannot be said for purposes
Id. at ECF 11.
of § 1983 that defendants were “acting under color of state law.” A private person or
entity acts “under color of” state law if, and only if, his or its “alleged actions are
‘fairly attributable to the State.’” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir.
1992) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)).
For a defendant’s actions to be fairly attributable to the state,
“[f]irst, the deprivation must be caused by the exercise of some right or
privilege created by the State or by a rule of conduct imposed by the
State or by a person for whom the State is responsible. . . . Second, the
party charged with the deprivation must be a person who may fairly be
said to be a state actor.” [Lugar, 457 U.S. at 937]. Mrs. Harvey’s
complaint survives the first part of the test: her commitment at Charter
was made possible by Georgia statute. Her complaint ultimately fails,
however, because Charter is no state actor.
Only in rare circumstances can a private party be viewed as a
“state actor” for section 1983 purposes. The Eleventh Circuit recognizes
three tests for establishing state action by what is otherwise a private
person or entity: the public function test, the state compulsion test, and
the nexus/joint action test. NBC v. Communication Workers of America,
AFL-CIO, 860 F.2d 1022, 1026 (11th Cir.1988).
Harvey, 949 F.2d at 1130 (footnote omitted, ellipsis and first alteration in original,
second alteration and emphasis supplied).
The public function test limits state action to instances where private
actors are performing functions “traditionally the exclusive prerogative
of the state.” NBC, 860 F.2d at 1026 (citations omitted). The state
compulsion test limits state action to instances where the government
“has coerced or at least significantly encouraged the action alleged to
violate the Constitution.” NBC, 860 F.2d at 1026 (citations omitted).
The nexus/joint action test applies where “the state has so far insinuated
itself into a position of interdependence with the [private party] that it
was a joint participant in the enterprise.” NBC, 860 F.2d at 1026-27
Willis v. University Health Services, Inc., 993 F.2d 837, 840 (11th Cir. 1993)
(alteration in original, emphasis supplied).
Plaintiff’s complaint does not contain any allegations that would support a claim
for relief under any of these tests. Instead, plaintiff only alleges that defendants acted
in their private capacities as her property manager and employer, respectively.
Moreover, even though plaintiff asserts that defendants’ employees allowed (or even
enabled) law enforcement officers to stalk and chemically assault her, and to trespass
on her property, there is no indication that either defendant’s functions were
sufficiently intertwined with those of government actors as to create a joint enterprise,
or that any government officials have coerced or encouraged defendants to violate the
Constitution, or that either defendant was carrying out functions traditionally reserved
to the government. As the Eleventh Circuit has acknowledged, “‘[m]ere approval of
or acquiescence in the initiatives of a private party is not sufficient. . . .’” NBC, 860
F.2d at 1025 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (alteration
supplied). Accordingly, neither defendant was acting “under color of state law” at the
time of the events leading to plaintiff’s complaint, and neither can be subjected to suit
under 42 U.S.C. § 1983.
Additionally, even if defendants could be considered state actors for purposes
of 42 U.S.C. § 1983, plaintiff’s claims still should be dismissed as implausible and
The Eleventh Circuit held in Cofield v. Alabama Public Service
Commission, 936 F.2d 512 (11th Cir. 1991), 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. §
1915,6 Cofield, 936 F.3d 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
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.”).
Dismissal under such circumstances has been extended to
situations in which a litigant paid the court’s filing fees. In such a
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 against claims that cannot succeed. Moreover, there is no reason to allow
plaintiff the opportunity to amend her complaint, because any amendment would be
State Law Claims
To the extent that plaintiff’s complaint can be construed as asserting state law
claims against defendants, jurisdiction over those claims would be based upon 28
U.S.C. § 1367, the statute governing supplemental jurisdiction over state law claims.
In cases where the court’s jurisdiction is based solely upon a federal question, the
district court has discretion to entertain state claims that are “supplemental” to the
federal claim. See 28 U.S.C. § 1367(a). The district court may decline to exercise
supplemental jurisdiction when:
the claim raises a novel or complex issue of state law,
(2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has
original jurisdiction, or
(4) in exceptional circumstances, there are other compelling
reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (alteration and emphasis supplied). The Supreme Court added a
gloss to this statutory language in Carnegie-Mellon University v. Cohill, 484 U.S. 343
(1988), when observing that
a federal court should consider and weigh in each case, and at every stage
of the litigation, the values of judicial economy, convenience, fairness,
and comity in order to decide whether to exercise jurisdiction over a case
brought in that court involving pendant [now “supplemental”] state-law
claims. When the balance of these factors indicates that a case properly
belongs in state court, as when the federal-law claims have dropped out
of the lawsuit in its early stages and only state-law claims remain, the
federal court should decline the exercise of jurisdiction by dismissing the
case without prejudice.
Id. at 349-50 (alteration and emphasis supplied) (citing United Mine Workers of
America v. Gibbs, 383 U.S. 715, 726-27 (1966)). “[I]n the usual case in which all
federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent [now supplemental] jurisdiction doctrine — judicial economy,
convenience, fairness, and comity — will point toward declining to exercise
jurisdiction over the remaining state-law claims.” Carnegie-Mellon, 484 U.S. at 350
n.7 (alterations supplied); see also L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735
F.2d 414, 428 (11th Cir. 1984) (stating that “if the federal claims are dismissed prior
to trial, Gibbs strongly encourages or even requires dismissal of state claims”)
Here, because all of plaintiff’s federal claims have been eliminated, this court
will decline supplemental jurisdiction over any remaining state law claims, and will
exercise its discretion to dismiss those claims.
IV. CONCLUSION AND ORDERS
In accordance with the foregoing, it is ORDERED that both motions to dismiss
are GRANTED, and all of plaintiff’s claims against all defendants pursuant to 42
U.S.C. § 1983 are DISMISSED with prejudice. Any state law claims are DISMISSED
without prejudice to plaintiff’s right to re-file them in an appropriate state court. Costs
are taxed to plaintiff. The Clerk is directed to close this file.
DONE this 22nd day of June, 2017.
United States District Judge
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