Ely v. Mobile Housing Board et al

Filing 21

Order granting the 19 MOTION for Continuance/Stay filed by Devin Ely. This action is STAYED through 4/27/2016. Plaintiff is ordered by 4/29/2016 to file a third amended complaint. Defendants' answer or renewed motion to dismiss is due by 5/13/2016. The 14 MOTION to Dismiss & 20 MOTION to Amend Complaint are moot. The Clerk is directed to add Plaintiff's email address ([e-mail]) to the e-notification list for this case. Signed by Chief Judge William H. Steele on 3/16/2016. Copy mailed & e-mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEVIN ELY,
Plaintiff,
v.
MOBILE HOUSING BOARD, et al.,
Defendants.

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CIVIL ACTION 15-0565-WS-B

ORDER
This matter comes before the Court on defendants’ Motion to Dismiss (doc. 14). A full
two weeks after expiration of his period for responding under the court-ordered briefing schedule
(see doc. 16), plaintiff, Devin Ely, who is proceeding pro se, filed a “Motion for
Continuance/Stay” (doc. 19) and a “Motion to Amend Complaint” (doc. 20).
As an initial matter, the Court addresses the issue of Ely’s untimeliness. In an Order
entered on February 12, 2016, the undersigned wrote as follows: “Ely is ordered to file a
response to the Motion to Dismiss, supported by legal authority as appropriate, on or before
February 29, 2016. … Failure to respond to the Motion in a timely and complete manner
may be grounds for dismissal of the Complaint.” (Doc. 16, at 2.) Ely did not respond to the
Motion by the specified deadline; in fact, he did not file anything at all until March 14, 2016. In
his submissions on that date, Ely explained that he is homeless, that he had been traveling out of
town and that had just received “both letters” from his grandmother, whose mailing address he
has apparently provided the Clerk of Court as his address of record herein. Ordinarily, a pro se
litigant’s explanation that he did not timely receive mail at the address he furnished the Clerk’s
Office is unsatisfactory. After all, the Local Rules require that “[a]ny person proceeding pro se
must, at all times during the pendency of the action …, keep the Clerk informed of his or her
current address and telephone number.” General L.R. 83.5(b). Here, however, there are
extenuating circumstances. Most notably, Ely represents that he is “homeless,” thus creating

logistical challenges to his ability to receive mail. For that reason, the Court will accept and
consider Ely’s recent filings, notwithstanding their substantial untimeliness.1
That said, it remains Ely’s sole responsibility to take all reasonable steps to ensure that he
receives timely notice of activity (including court orders, notices from the Clerk, and filings by
opposing counsel) in this case. If – as Ely has represented – his address of record is actually his
grandmother’s home address and he does not live there, then it is incumbent on Ely to make
appropriate arrangements with his grandmother to make certain that he receives immediate
notice of all court-related mail sent to him at that address. Court deadlines are important, and
timely compliance with court orders is mandatory. The Court cannot and will not tolerate a
situation in which the orderly, efficient progress of this litigation is disrupted repeatedly based on
representations from Ely that he “just now found out about” court mailings sent to his address of
record weeks or months earlier. It is Ely’s responsibility to devise a system in which he becomes
aware in a timely fashion of court mail delivered to his address of record. Additionally, Ely has
provided an email address, to-wit: [e-mail]. The Clerk’s Office is directed to add
this email address to the e-notification list for this case. As such, electronic notice of all activity
in the court file will be transmitted to Ely at that email address via the court’s CM/ECF system.
The Court trusts that this belt-and-suspenders arrangement will suffice to keep Ely duly informed
of all court activity, orders, filings and deadlines in this case; therefore, it is expected that Ely
will not miss any more deadlines because of lack of notice. Further requests for extension or
other accommodation on the ground that Ely “did not know” about a particular court obligation
or deadline because of his suboptimal mail situation may be summarily denied.
Moving on to the merits, defendants’ Motion to Dismiss points out substantial defects in
the Complaint. Even after taking into consideration Ely’s proposed amendment (doc. 20), his
pleadings are conclusory and fail to plead “enough facts to state a claim to relief that is plausible
on its face,” so as to “nudge[] [his] claims across the line from conceivable to plausible.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also
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In so doing, however, the Court categorically rejects the aspect of Ely’s untimely
submission in which he pleads, “Please don’t allow Defendant additional time to answer.” (Doc.
20, at 3.) A hat-in-hand litigant who is himself requesting forgiveness for failure to comply with
unambiguous court deadlines does not advance his cause by urging the Court to refuse to allow
the other side “additional time” to respond to his tardy submissions.

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Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“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.”) (citation omitted).
For example, Ely complains that “[e]ach time accommodations were requested they were
denied” (doc. 20, at 1), but he does not specify what accommodations he asked for; what he told
defendants in making these requests or how they responded; how the accommodations in
question would have accommodated his purported “physical and mental disabilities” such as
“sleep apnea, asthma, weight, depression, ADHD, skin problems etc.” (id.); or what he says
defendants could or should have done.
Potentially more troubling is the fact that Ely’s mother, Donavette Ely, litigated a
strikingly similar complaint against the Mobile Housing Board in this District Court three years
ago. Indeed, in an action styled Donavette Ely v. Mobile Housing Board, Civil Action 13-0105WS-B, Ely’s mother (who was represented by counsel at all relevant times) brought numerous
claims against the Board, including an Americans with Disabilities Act claim predicated on the
allegation that “[o]n numerous occasions the Plaintiff made written reasonable accommodation
request to the Defendant … due to her minor son’s disability. Each time the Defendant denied
the Plaintiff’s request.” (Civil Action 13-0105-WS-B, doc. 1, ¶ 39.) By all appearances, Ely is
the “minor son” to whom his mother’s pleading referred. After the close of discovery in Civil
Action 13-105, this Court granted summary judgment to the Mobile Housing Board on this
category of claims. (See Civil Action 13-0105-WS-B, doc. 80.) Ely’s mother’s ensuing appeal
of that ruling was unsuccessful. (See Civil Action 13-0105-WS-B, doc. 91.) Because of the
fragmentary, vague manner in which Ely has framed his Complaint, it is unclear whether his
claims are rooted in the same Board conduct about which his mother complained in Civil Action
13-0105-WS-B. If they are, then the doctrine of res judicata may pose a difficult, and perhaps
insuperable, obstacle to Ely’s ability to relitigate those claims here. See, e.g., Hart v. YamahaParts Distributors, Inc., 787 F.2d 1468, 1472 (11th Cir. 1986) (“Res judicata also applies to those
persons in privity with the parties. ‘Privity’ describes a relationship between one who is a party
of record and a nonparty that is sufficiently close so a judgment for or against the party should
bind or protect the nonparty,” such as “where the nonparty’s interests were represented
adequately by the party in the original suit”); N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1561 (11th Cir.

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1990) (“Privity also exists where a party to the original suit is so closely aligned to a nonparty’s
interest as to be his virtual representative.”) (citation and internal quotation marks omitted).
Notwithstanding all of the foregoing, Ely has requested a stay of these proceedings. In
his “Motion for Continuance / Stay” (doc. 19), Ely explains that he is “indigent and need[s] the
help of an Attorney,” and requests a period of “up to 6 weeks to hire an attorney to response [sic]
to motions and explain this process to me.” (Doc. 19, at 2.) In deference to Ely’s pro se status,
his stated desire to retain counsel, and the problematic posture of his claims (as documented
above), the Court will afford him a reasonable opportunity to seek out counsel. For those
reasons, in the undersigned’s discretion, the Motion for Continuance / Stay (doc. 19) is granted.
This action is hereby stayed through April 27, 2016, at which time the stay will expire by its
own terms. Ely is cautioned to put this time to good use; indeed, this case will not be stayed
indefinitely to allow him to search for a lawyer. If Ely succeeds in retaining counsel during this
period, such counsel must promptly file a notice of appearance providing the attorney’s name
and contact information. Ely (with or without the assistance of counsel) is ordered to file a third
amended complaint that addresses the above-described defects by no later than April 29, 2016.
Defendants’ answer or renewed motion to dismiss must be filed on or before May 13, 2016.
In light of the foregoing rulings, and specifically the Court’s directive that Ely file an
amended complaint, the pending Motion to Dismiss (doc. 14) and Motion to Amend (doc. 20)
are moot. Of course, defendants are authorized to renew their motion to dismiss on any grounds
they may deem appropriate upon the filing of Ely’s Third Amended Complaint.
DONE and ORDERED this 16th day of March, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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