WHITBY v. MACON BIBB COUNTY GEORGIA et al

Filing 18

ORDER granting 9 Motion to Dismiss 1 Complaint. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 9/15/2022. (ech)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ADONIS BERLE WHITBY,
Plaintiff,
v.
MACON-BIBB COUNTY, GEORGIA;
Mayor LESTER MILLER; The BOARD OF
COMMISSIONERS; HENRY C. FICKLIN;
Doctor KEITH MOFFETT; Director
CHARLES BROOKS; and Director TIM
WILDER,

CIVIL ACTION NO.
5:22-cv-00157-TES

Defendants.
ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Unsuccessful in his efforts to have a Georgia state judge compel Defendants Tim
Wilder and Charles Brooks—the public works director and engineer for Macon-Bibb
County, Georgia, respectively—to “clear, establish [a] right of way, repair, and
maintain” a road located within the county limits, Plaintiff Adonis Berle Whitby took to
the other judicial system—the federal courts—hoping to get a more favorable result.
[Doc. 1, p. 6]; [Doc. 9-1, pp. 2–3]; see generally [Doc. 9-3]. In fact, when the state judge
granted summary judgment against Plaintiff on April 18, 2022, only three short days
passed before he began his efforts in this court. However, as shown more clearly below,
once you get a ruling you don’t like in one court, you can’t just try, try again hoping the

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other court sees it another way. While Defendants rely on numerous paths to support
their contention that the discrimination claims asserted in this second suit ought to be
dismissed, the Court focuses on their arguments centered on res judicata because the
doctrine fully bars each and every one of them. Accordingly, the Court GRANTS
Defendants’ Motion to Dismiss [Doc. 9].
Although not listed in Federal Rule of Civil Procedure 12(b)’s list of defenses that
can be raised via a dismissal motion, res judicata is an affirmative defense listed in
Federal Rule of Civil Procedure 8(c). Therefore, if the existence of the defense can be
determined from the face of the complaint, it may be asserted under the guise of a
failure-to-state-a-claim defense. Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir.
1982).
A.

Plaintiff’s Claims

Complaints filed by pro se plaintiffs are construed liberally, and their allegations
are held to a less stringent standard than formal pleadings drafted by lawyers. Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). Heeding this requirement and accepting his
factual allegations as true, Plaintiff claims that the road in question was platted in 1955,
is 1,000 feet long, and is located in Lizella, Macon-Bibb County, Georgia. [Doc. 1, p. 6];
see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). With only 500 feet of it maintained, the
other half, “[o]ver the last 67 years . . . has fallen into disrepair” preventing him from

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“access[ing] property” and building a house. 1 [Doc. 1, p. 6]. In short, Plaintiff asserts in
this suit, that the road isn’t “fully maintained” for discriminatory reasons given that
most of the houses on the road are owned by African Americans. [Id.].
The ultimate relief Plaintiff seeks in this case, including his request of money
damages, 2 is no different than the relief he sought in the Superior Court of Bibb County.
Compare [Doc. 9-1, pp. 2–4]; [Doc. 9-2, pp. 17–21] with [Doc. 1, p. 6]. In his first suit,
Plaintiff tried to get the road “clear[ed] and maintain[ed]” through a “[w]ork order” to
Macon-Bibb County employees, and here, he tries to reach that same result—just using
different legal channels. [Doc. 9-1, pp. 2–3]. Although Plaintiff’s Complaint [Doc. 1], in
this case, may raise different claims or theories to recovery, as the Court will explain
below, asserting them now is too little, too late.
In addition to a Fourteenth Amendment equal protection claim, Plaintiff’s
Complaint lists several federal anti-discrimination statutes including, inter alia, 42
U.S.C. § 1983; the Fair Housing Act, 42 U.S.C. §§ 3601–3619; Title VI of the Civil Rights
Act, 42 U.S.C. § 2000d-1–2000d-7; Title II of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12131–12165; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794;

Even though Plaintiff lists his address as being on a different road than the road in question, the Court
assumes without deciding that he has standing to bring this suit on his own behalf. [Doc. 1, p. 1 (listing
Plaintiff’s address as “302 Juniper Lane”)].

1

Defendants filed a copy of Plaintiff’s motion for summary judgment from his first case as an exhibit, see
n.3, infra, to the instant dismissal motion. See, e.g., [Doc. 9-2, pp. 17–21]. And while Defendants failed to
ensure that all of this exhibit was legible, the part that is readable clearly shows Plaintiff’s request for
damages in his first case. See, e.g., [id. at p. 20].

2

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and the statute concerning age discrimination in federally assisted programs, 42 U.S.C.
§§ 6101–6107. [Id. at p. 4]. To the extent Plaintiff seeks to assert race-, disability-, sex-,
and age-based discrimination claims under the Fourteenth Amendment as well as the
federal statutes and provisions listed in his Complaint on behalf of his fellow
homeowners, federal law prohibits him from doing so as a pro se litigant. 28 U.S.C. §
1654; see also [Doc. 1, p. 6 (noting that some of the African American male and female
homeowners “on the [r]oad” are “over and under the age of 60” and have disabilities)].
While Plaintiff has the right to appear pro se and represent his own interests, that right
does not extend to him the ability to “represent[] the interests of others.” Grappell v.
Carvalho, 847 F. App’x 698, 701 (11th Cir. 2021).
B.

Defendants’ Motion to Dismiss

In Plaintiff’s first suit, Defendants Wilder and Brooks argued that summary
judgment should be granted in their favor because they did “not have the authority to
accept [the road] under the guidelines established by [Macon-Bibb County] in order for
it to be a registered [c]ounty [r]oad [to] be maintained by [Macon-Bibb County].” 3 [Doc.
9-2, p. 9]. Succinctly put, Defendants Wilder and Brooks argued that they were “not the
proper parties for the relief [Plaintiff] request[ed].” [Id. at p. 15]. The state judge
seemingly agreed with and adopted their arguments because she “dismissed [them]

Courts may take judicial notice of publicly filed documents that are “not subject to reasonable dispute”
because they are “capable of accurate and ready determination by resort to sources whose accuracy could
not reasonably be questioned.” Horne v. Potter, 392 F. App’x 800, 802 (11th Cir. 2010); Fed. R. Evid. 201(b).
3

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with prejudice[.]” [Doc. 9-3, p. 2]. To combat Plaintiff’s discrimination claims asserted in
this suit, Defendants contend that the doctrine of res judicata acts as a complete bar.
[Doc. 9, pp, 4–6].
While the term “res judicata”—in its broadest sense—may be commonly
understood as something that has “preclusive effect [because of] a prior adjudication,”
the actual application of its rules can be quite intricate. 18 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure: §§ 4401–02 (3d ed. 2004), pp. 1, 6. Broadly
speaking, “[r]es judicata principles commonly involve the relationship between two
separate lawsuits.” Id. at p. 1. In Plaintiff’s first suit, Defendants Wilder and Brooks had
a judgment entered in their favor with respect to Plaintiff’s “end game”—his remedy—
to “clear, establish [a] right of way, repair and maintain the road[.]” [Doc. 9-1, p. 3];
[Doc. 9-3, p. 2].
So, when dealing with res judicata, “[t]he most important task . . . is to
distinguish clearly between two very different effects” that a previous judgment can
have. 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: § 4402
(3d ed. 2004), p. 5. First, a previous judgment can “foreclos[e] any litigation of matters
that never have been litigated, because of a determination that they should have been
advanced in [the previous] suit.” Id. Second, a previous judgment can have the “effect
of foreclosing relitigation of matters that have once been litigated and decided.” Id.
Plaintiff’s discrimination claims brought in this suit fall neatly within the first effect.

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“[O]nce rendered,” res judicata “treats a [previous] judgment as the full measure
of relief to be accorded between the same parties on the same ‘claim’ or cause of
action.’” Id. at p. 6. More commonly referred to as “claim preclusion,” when Defendants
Wilder and Brooks obtained a judgment in their favor in Plaintiff’s first suit, his
overarching claim “[was] extinguished; th[at] judgment then act[ed] as a ’bar[]’” to the
discrimination claims he seeks to assert in this suit. Id. “Under the[] rules of claim
preclusion, the effect of a [previous] judgment extends to the litigation of all issues
relevant to the same claim between the parties whether or not [previously] raised . . . .”
Id. “But wait a minute,” you may say, “some of the defendants named in this suit are
different.“ While that may be true, res judicata’s preclusive effects can be harsh—
“mak[ing] the crooked straight and the straight crooked.” 4 The drastic remedy
accomplished by claim preclusion “achieves the goals of repose and consistency ‘by
forcing a plaintiff to raise all possible theories of recovery and to demand all desired
remedies 5 in one proceeding at peril of losing all not raised in it.” 18 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure: § 4408 N.6 (3d ed. 2004) (citing
Dionne v. Mayor and City Council of Baltimore, 40 F.3d 677, 681–85 (4th Cir. 1994)), p. 199.

4

Bourrer’s Institute of American Law, quoted in Black’s Law Dictionary 1471 (4th ed. 1945).

Even if Plaintiff had not sought damages in his first suit, see n. 2, supra, Defendants would still be
entitled to dismissal of Plaintiff’s discrimination claims asserted here. See 18 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure: §§ 4408 N.6 (3d ed. 2004) (citing Huck ex rel Sea Air Shuttle
Corp. v. Dawson, 106 F.3d 45, 50 (3rd Cir. 1997)) (“Claim prelusion could not be defeated by pursuing
injunctive relief in the first action and damages relief in the second action.”), p. 199.
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Res judicata’s main “desire[] [is] to force the parties to raise [all relevant] matters in
their first suit on the pain of subsequent forfeiture.” 18 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure: § 4406 (3d ed. 2004), p. 152.
So, what does all of this legalese mean for Plaintiff’s discrimination claims
asserted in this suit? It means that res judicata bars them. If Plaintiff wanted to assert
the discrimination claims he seeks to assert against Defendants in this suit, the
principles of res judicata required him to bring those discrimination-based theories of
recovery in the first one. Just because the new claims raised in this suit are federal
claims, doesn’t mean that a federal court had to adjudicate them. State courts can
undoubtedly hear federal claims. “The general principle of state-court jurisdiction over
cases arising under federal laws is straightforward: state courts may assume subjectmatter jurisdiction over a federal cause of action absent provision by Congress to the
contrary or disabling incompatibility between the federal claim and state-court
adjudication.” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477–78 (1981).
Long story short, the law required Plaintiff to assert his discrimination claims in
his first suit. He simply can’t try different theories of recovery scattered throughout
different suits to reach his end goal of getting the road “opened, cleared, paved, and
maintained.” [Doc. 1, p. 6]. Generally speaking, the law only gives litigants one chance
to stake their claim, and Plaintiff’s failure to raise, assert, or litigate discrimination
claims in his first suit is detrimental to his efforts to do so now. “Foreclosure of matters

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that never have been litigated has traditionally been expressed by stating that a single
cause of action’ cannot be ‘split’ by advancing one part in a first suit and reserving some
other part for a later suit.” 18 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure: § 4402 (3d ed. 2004), pp. 11–13.
“Claim-preclusion rules are most easily applied when an unsuccessful plaintiff
seeks to reopen basically the same theories in search of basically the same remed[y] or
pursues a clearly separate claim.” 18 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure: § 4408 (3d ed. 2004), pp. 197–98. The underlying major function of
claim preclusion is “to force a plaintiff to explore all the facts, develop all the theories
[of recovery], and demand all the remedies in the first suit.” Id. at pp. 199–200. Clearly,
Plaintiff had “a full and fair opportunity to litigate” discrimination claims in the first
suit, he just didn’t raise them. Federer v. Zurich Am. Ins. Co., 701 F. App’x 835, 840 (11th
Cir. 2017) (citing Bostick v. CMM Props., 772 S.E.2d 671, 673 (Ga. 2015)).
As the party asserting the affirmative defense of res judicata’s preclusive effects,
Defendants “must carry the burden of establishing all necessary elements.” 18 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure: § 4405 (3d ed. 2004), p. 89
(first citing Fed. R. Civ. P. 8(c) and then citing Puerto Ricans for Puerto Rico Party v.
Dalmau, 544 F.3d 58, 67 (1st Cir. 2008)). Here, Georgia res judicata law controls the
analysis. See Federer, 701 F. App’x at 840.
“Under Georgia law, ‘there are three requirements which must be satisfied in

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order for res judicata to apply: there must be identity of the cause of action, identity of
the parties or their privies, and previous adjudication on the merits by a court of
competent jurisdiction.’” Id. (quoting Bostick, 772 S.E.2d at 673); O.C.G.A. § 9-12-40;
[Doc. 9, pp. 4–6]. Given that Plaintiff could have—but didn’t—raise discrimination
claims against Defendants Wilder and Brooks in his first lawsuit, he cannot try that
route now, in federal court. When looking at the exhibits submitted by Defendants, it is
clear that “Plaintiff’s claims regarding the [r]oad [were] adjudicated” by the state judge.
[Id. at p. 5]. And although there is no precise formula or definition for determining
whether a “cause of action” is the same between a first suit and a later one, there is,
however, “a predisposition . . . toward taking a broad view”—looking for essential
similarities of the underlying events that give rise to the various legal claims. 18 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure: § 4407 N. 53 (3d ed. 2004)
(citing U.S. v. Althone Indus., Inc., 746 F.2d 977, 983–84 (3d Cir. 1984)), pp. 195–96.
Consistent with that predisposition, the Court looks to “whether the act
complained of and the relief demanded are the same.” Id. Here, they undoubtedly are.
In his first suit, Plaintiff requested that the road be “clear[ed], . . . repair[ed], and
maintain[ed]. [Doc. 9-1, p. 3]. In this suit, he requests that the road be “opened, cleared,
paved, and maintained.” [Doc. 1, p. 6]. Not only is the demanded relief the exact same,
but Plaintiff’s arguments in his Response [Doc. 11] to Defendants’ dismissal motion
(aside from his inclusion of 42 U.S.C. § 1983’s text) are the same as those put to the state

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judge. See generally [Doc. 11] in connection with [Doc. 9-1, pp. 2–4]. These “essential
similarit[ies]” underscore and speak directly to the Court’s conclusion that this suit is
simply Plaintiff’s efforts to try, try again. 18 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure: § 4407 N. 53 (3d ed. 2004) (citing Davis v. U.S. Steel Corp.,
688 F.2d 166, 171 (3d Cir. 1982)), p. 196.
Since Plaintiff lost in his first suit, his efforts to get the other 500 feet of the road
“opened, cleared, paved, and maintained” are barred by that judgment. See 18 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure: § 4406 (3d ed. 2004), p.
155; [Doc. 1, p. 6]. Plaintiff’s new theories of recovery—his allegations that the road isn’t
fully maintained because of “race, disability, sex[,] and age” discrimination—“should
have been advanced in [his] first [suit].” 18 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure: § 4406 (3d ed. 2004), p. 155; Migra v. Warren City Sch. Dist.
Bd. of Educ., 465 U.S. 75, 77 n.1 (1984); [Doc. 1, p. 6]. Without question, Plaintiff’s
allegations of discrimination were “equally relevant” to his first attempt to get the road
paved as they are to his attempt to get it paved via this suit. See 18 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure: § 4406 (3d ed. 2004), pp. 155–56.
The judgment issued by the state judge, absent a timely appeal to the appropriate
state appellate court, ended Plaintiff’s attempts to get the road paved though courtordered injunctive relief. Under the rules that govern the doctrine of res judicata, “when
a court of competent jurisdiction has entered a final judgment on the merits of a cause

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of action, the parties to the suit and their privies are thereafter bound ‘not only as to
every matter which was offered and received to sustain or defeat the claim or demand,
but as to any other admissible matter which might have been offered for that purpose.’”
C.I.R. v. Sunnen, 333 U.S. 591, 597 (1948) (quoting Cromwell v. Cnty. of Sac, 94 U.S. 351,
352 (1876)) (emphasis added).
In other words, when the judgment from Plaintiff’s first suit became final, it
“put[] an end to [his] cause of action[.]” C.I.R., 333 U.S. at 597. His attempt to get the
road “opened, cleared, paved[,] and maintained,” through judicial action, “cannot again
be brought into litigation between the parties upon any ground whatever, absent fraud
or some other factor invalidating the judgment.” Id. (citation omitted); [Doc. 1, p. 6].
Based on the “essential similarit[ies] between Plaintiff’s first suit and this one, res
judicata bars his discrimination claims asserted against Defendants Wilder and Brooks,
and their privies—other representatives or officials of the local government—
Defendants Macon-Bibb County, Mayor Lester Miller, the Board of Commissioners, and
Doctor Keith Moffett. Federer, 701 F. App’x at 840–41 (citing McIver v. Jones, 434 S.E.2d
504, 506 (1993)); 18 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure: § 4407 N. 53 (3d ed. 2004) (citing Davis, 688 F.2d at 171), p. 196.
For the reasons discussed above, the Court GRANTS Defendants’ Motion to
Dismiss [Doc. 9] and DIRECTS the Clerk of Court to ENTER Judgment in their favor
and CLOSE this case.

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SO ORDERED, this 15th day of September, 2022.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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