Simmons v. Coffee County et al

Filing 17

ORDER granting Defendants' 12 Motion to Dismiss. The Court dismisses Plaintiff's section 1983 takings claim for lack of subject matter jurisdiction. The Court need not to address Defendants' remaining basis for dismissal relating to the relevant statutes of limitations. Signed by Chief Judge Lisa G. Wood on 11/13/2014. (ca)

In the mutteh Atatto Abirtet Court
for tbe soutbern obarw of atoraw
Maptrou aitiOfl
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DAVID SIMMONS,

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Plaintiff,

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VS.

CV 514-19

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COFFEE COUNTY; WESLEY VICKERS; *
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JERRY POPE; DANIEL PAULK;
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TONY ROWELL; EARL BRICE, JR.;
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CHARLES DEAN; FRANK JACKSON;
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JIMMY KITCHENS; and TOM RICE,
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Defendants.

ORDER

Presently before the Court is Defendants' Motion to Dismiss
Complaint. Dkt. No. 12. For the reasons stated below,
Defendants' Motion is GRANTED.
BACKGROUND

This action involves Plaintiff's refiling of the same
claims that he asserted against the same state officials in
Simmons v. Vickers, No. CV 510-60 (S.D. Ga. May 3, 2012).' See
Dkt. No. 1, pp. 1 - 2; see also Dkt. No. 12, Ex. 1. In his prior

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The undersigned notes that Plaintiff has named Coffee County as an
additional Defendant in this case, See Dkt. No. 1, p. 1; however, as this
Order discusses more fully below, this addition makes no practical
difference. See discussion infra Part A.
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case, Plaintiff's allegations pertained to two underlying
disputes with Defendants: the first dispute concerned
Defendants' arrest and ten-day imprisonment of Plaintiff in
connection with a shootout, which Plaintiff claimed took away
his "freedom." Dkt. No. 12, Ex. 1, pp. 2, 3-4. The second was
a property dispute involving Defendants' use of a road leading
to Plaintiff's house in Coffee County, Georgia, which Plaintiff
claimed amounted to an illegal taking. Id. at p. 2.
Based on Plaintiff's allegations, this Court granted
summary judgment on his claims and entered judgment in favor of
Defendants. Id. at P. 12. In doing so, the undersigned
dismissed Defendants Vickers, Pope, and Paulk, citing the
absence of any evidence of their liability. Id.. at pp. 6-7. As
to the remaining Defendants, the undersigned noted that
Plaintiff arguably set forth a cognizable claim for relief under
42 U.S.C. § 1983 for a deprivation of his constitutional rights
based on Defendants having taken his property without just
compensation. See id. at p. 8. Even so, the undersigned
dismissed Plaintiff's takings claim based on a lack of subject
matter jurisdiction; the undersigned determined that such a
claim is not ripe for adjudication in this Court until the
property owner has exhausted Georgia's inverse condemnation
procedure in state Court and has been denied just compensation
in that forum. Id. at pp. 8-11. Finally, the undersigned
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concluded that any other potential claims for relief lacked
evidentiary support and therefore were not properly before this
Court. Id. at p. 11.
Plaintiff now has filed this lawsuit, in which he sets
forth the same factual allegations regarding the imprisonment
and property disputes that formed the basis of his previous
complaint. See generally Dkt. No. 1. Beyond those allegations,
Plaintiff also contends that on April 26, 2013, he sought to
file a complaint alleging inverse condemnation in the Coffee
County Superior Court, a copy of which Plaintiff has submitted
with the instant Complaint. Id. at pp. 2, 40-48. According to
Plaintiff, he requested permission to proceed in forma pauperis,
but "[t]he [j]udge of that court ignored Plaintiff's request,
effectively blocking [ 1 Plaintiff at the court house door."
Id. at p. 2. Plaintiff also maintains that Defendants have
continued to engage in the same conduct forming the basis of the
property dispute. Id. at p. 14. Based on these allegations,
Plaintiff seeks to refile his section 1983 claims alleging
constitutional deprivations arising out of both his imprisonment
and the taking of his property. Id. at pp. 1-2.
Defendants move for dismissal for failure to state a claim
upon which relief could be granted. Dkt. No. 12, p. 1 (citing
Fed. R. Civ. P. 12 (b) (6) ("Rule 12(b) (6)")) .

In support,

Defendants argue that the applicable statutes of limitations bar
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Plaintiff's claims, because Plaintiff filed outside the two-year
limitations period for section 1983 and four-year period for
inverse condemnation. Id. at pp. 2-3. Defendants also assert
that the doctrine of res judicata bars Plaintiff's claims,
because this Court's prior decision satisfies the four elements
of res judicata set forth in Ragsdale v. Rubbermaid, Inc., 193
F.3d 1235, 1238 (11th Cir. 1999). Id. at pp. 3-5. Defendants
have attached as an exhibit a copy of this Court's order in that
case. Id. at Ex. 1.
Plaintiff has filed a Response opposing Defendants' Motion
on the ground that he sought relief within the relevant
limitations periods. Dkt. No. 14, pp. 2-3. Plaintiff also
maintains that res judicata does not apply here, because this
Court's determination that his claims were not yet ripe for
jurisdiction did not constitute an adjudication of his claims,
as required under the res judicata elements. Id. at p. 3.
DISCUSSION

A Rule 12(b) (6) motion to dismiss attacks the legal
sufficiency of a complaint in stating a claim upon which relief
can be granted. See Fed. R. Civ. P. 12(b) (6). A complaint
"must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (interpreting Fed.
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R. Civ. P. 8(a) (2)) . When ruling on a motion to dismiss, a
court must accept the factual allegations in a complaint as true
and draw all reasonable inferences in the plaintiff's favor.
Id. at 678 (citing Bell Atl. Corp., 550 U.S. at 556, 570). A
court also must afford a pro se party, such as Plaintiff,
leniency in applying procedural rules. See GJR Invs., Inc. v.
Cnty. of Escarnbia, 132 F.3d 1359, 1369 (11th Cir. 1998).
When a party moving to dismiss pursuant to Rule 12(b) (6)
presents matters outside the pleadings, the court must treat the
motion to dismiss as a motion for summary judgment under Rule
56. Concordia v. Bendekovic, 693 F.2d 1073, 1075 (11th Cir.
1982) (citations omitted); see also Fed. R. Civ. P. 56.
"Matters outside the pleadings" includes oral or written
evidence that supports or opposes a pleading and provides some
substantiation therefor. Concordia, 693 F.2d at 1075 (citing 5
Wright & Miller, Federal Practice and Procedure § 1366 (1969)).
A court, however, may consider a document attached to a motion
to dismiss without converting such motion into a motion for
summary judgment if the document is "incorporated into the
complaint by reference" or concerns "matters of which a court
may take judicial notice." Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007).
In this case, Defendants have attached in support of their
Motion a copy of this Court's order in the prior case. See Dkt.
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No. 12, Ex. 1. Because the ruling in that case is central to
Plaintiff's Complaint and is within judicial notice, the
attached order is not a "matter outside the pleadings." The
Court thus will consider the order without converting
Defendants' Motion into a motion for summary judgment.
Defendants base their Rule 12(b) (6) Motion, in part, on a
res judicata defense. Res judicata, however, is not a defense
under Rule 12(b); rather, it is an affirmative defense that a
party should raise under Rule 8(c). See Fed. R. Civ. P. 8(c),
12(b); Concordia, 693 F.2d at 1075 (citations omitted). A party
nevertheless may assert a res judicata defense in a Rule 12(b)
motion when the defense's existence appears on the face of the
complaint or the record of the earlier case is received in
evidence. Concordia, 693 F.2d at 1075 (citations omitted).
Because such conditions are present here, Defendants have
properly raised a res judicata defense in the form of a Rule
12(b) (6) motion. The Court therefore must decide whether the
pleadings and exhibits provide sufficient information to support
dismissing Plaintiff's Complaint on res judicata grounds. See
id.
The doctrine of res judicata "bars the filing of claims
which were raised or could have been raised in an earlier
proceeding." Ragsdale, 193 F.3d at 1238 (citing Citibank, N.A.
v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir. 1990)).
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A claim is barred by prior litigation when all of the following
elements are present: "(1) there is a final judgment on the
merits; (2) the decision was rendered by a court of competent
jurisdiction; (3) the parties, or those in privity with them,
are identical in both suits; and (4) the same cause of action is
involved in both cases." Id.
As to the first element, a dismissal for lack of subject
matter jurisdiction does not constitute an adjudication on the
merits of a claim that would give rise to a res judicata
defense. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1188
(11th Cir. 2003) . But when a court reaches the merits of a
claim, finding that the plaintiff fails to state a claim for
relief, and also notes a lack of subject matter jurisdiction,
the resulting dismissal is a final judgment on the merits of the
substantive claim. Id. at 1188-89 ("[I]f the district court
truly had dismissed the case for lack of subject matter
jurisdiction it could not legitimately have reached the merits
of [a plaintiff's] contentions.")
Having dismissed Plaintiff's prior claims for reasons
specific to certain groups Defendants, the undersigned likewise
will discuss these groups of Defendants separately in
determining whether res judicata applies to their respective
dismissals.
A. Defendants Vickers, Pope, and Paulk
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All of the elements of res judicata are met with respect to
Plaintiff's claims against Defendants Vickers, Pope, and Paulk.
Regarding the first element, the undersigned fully analyzed the
merits of Plaintiff's section 1983 claims against these
Defendants in the prior suit, finding that Plaintiff failed to
state a claim for relief. Dkt. No. 12, Ex. 1,

pp. 6-7. This

holds true even though the undersigned, in discussing the other
Defendants, noted a lack of subject matter jurisdiction over the
takings claim. See Davila, 326 F.3d at 1188-89. Because the
Court reached the merits of Plaintiff's claims against these
Defendants, the resulting dismissal was a final judgment on the
merits of Plaintiff's substantive claims.
As to the remaining res judicata elements, this Court had
competent jurisdiction over the section 1983 claims pursuant to
28 U.S.C. § 1331 (2014) (federal question) . The parties in the
two suits are identical with the exception that Plaintiff has
added here Defendant Coffee County, who nevertheless satisfies
this element because it stands in privity with the previous
Defendants. Compare Dkt. No. 12, Ex. 1, p. 1, with Dkt. No. 1,
p. 1. See also Citibank, N.A., 904 F.2d at 1498 (holding that
employer-employee and principal-agent relationships create
privity). Finally, Plaintiff asserts the same causes of action
against these Defendants, because the two cases arise out of the
same nucleus of operative fact—Plaintiff's imprisonment
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following his arrest and the property dispute. See generally
Dkt. No. 12, Lx. 1; Dkt. No. 1; see also Citibank, N.A., 904
F.2d at 1503 (stating that two cases are the same "cause of
action" if they arise out of the same nucleus of operative
fact)
Because the four elements of res judicata are present, this
Court's prior decision as to Plaintiff's claims against
Defendants Vickers, Pope, and Paulk bars Plaintiff's claims here
against this same trio of Defendants. The Court DISMISSES
Plaintiff's claims against Defendants Vickers, Pope, and Paulk
on res judicata grounds.
B. Defendants Coffee County; Rowell; Brice, Jr.; Dean;
Jackson; Kitchens; and Rice

As against the remaining Defendants, res judicata bars
Plaintiff from filing a section 1983 claim based on his
imprisonment. In the prior suit, the undersigned noted
Plaintiff's attempt to claim a deprivation of his "freedom"
while in prison for ten days, Dkt. No. 12, Ex. 1, pp. 2-4, and
proceeded to grant summary judgment on all of his "potential
claims," other than his takings claim, as lacking evidentiary
support, Id. at p. 11. In doing so, the undersigned rendered a
final judgment as to the merits of Plaintiff's section 1983

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claim arising from his imprisonment, satisfying the first
element of res judicata. 2
The other res judicata elements also are present with
respect to Plaintiff's imprisonment claim: this Court had
competent jurisdiction over the underlying federal question, the
parties are identical or in privity, and the causes of action
arise out of the same facts involving Plaintiff's arrest and
imprisonment for ten days. See discussion supra Part A.
Because res judicata bars Plaintiff from filing another section
1983 claim alleging a deprivation of his "freedom" while in
prison, the Court DISMISSES such a claim here.
While res judicata does not bar Plaintiff's substantive
takings claim directly, the doctrine precludes this Court from
presently exercising jurisdiction over this claim. It is true
that the prior dismissal of Plaintiff's takings claim does not
satisfy the first res judicata element, because the dismissal
was solely on jurisdictional grounds and therefore was not a
final adjudication on the merits of the substantive takings
claim. See Davila, 326 F.3d at 1188. The Court, however, did
adjudicate at that time the issue of jurisdiction over
2

The undersigned recognizes that the previous order states, "The Court also
notes that other potential claims are alluded to by the Plaintiff at various
points in the record, such as elder abuse, malicious prosecution, and
harassment." Dkt. No. 12, Ex. 1, p. 11. In using this construction, the
undersigned set forth a nonexclusive list of potential claims. Accordingly,
this Court's decision as to all "potential claims," although not specifically
mentioning the potential imprisonment claim, encompassed this claim
nonetheless.
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Plaintiff's takings claim. See Dkt. No. 12, Ex. 1, pp. 8-11;
Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (citations
omitted) (recognizing the preclusive effect of a decision on the
merits of a jurisdictional claim) . As such, the Court today may
exercise jurisdiction over Plaintiff's section 1983 takings
claim only if Plaintiff has pursued his state-court remedies and
been denied just compensation. See Dkt. No. 12, Ex. 1, pp. 1011 (citing Ga. Const. art. I, § 3, para. 1(a) (state equivalent
of the takings clause)); see also Adams v. City of Atl., 322
S.E.2d 730, 732-33 (Ga. 1984) (holding that the Georgia
procedure for claiming a taking through inverse condemnation
involves filing an action in the superior court in the county
where the land lies).
Even taking the facts in Plaintiff's Complaint as true,
Plaintiff has not shown that he has pursued his state-court
remedies. In his Complaint, Plaintiff avers that he sought to
file an inverse condemnation proceeding in the Coffee County
Superior Court but that the judge ignored his request to file in
forma pauperis. Dkt. No. 1, p. 2. See generally Ga. Code Ann.
§ 9-15-2(a) (1) (2014) (stating that a plaintiff may a file
petition to proceed in forma pauperis and an affidavit of
indigency showing that he has insufficient funds to pay the
court's filing fee and requesting a waiver).

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While the basis for denying Plaintiff's filing is unclear,
it appears that Plaintiff could have taken further steps in
order to comply with the filing procedure under Georgia law.
For example, if the judge denied Plaintiff's request based on
the merits of his complaint, Plaintiff could have appealed the
denial. See Ga. Code Ann. § 9-15-2(d) (stating that a trial
court judge must review a pro se litigant's request to file in
forma pauperis to determine whether he states a claim for
relief); Romano v. Ga. Dep't of Corrs., 693 S.E.2d 521, 523 (Ga.
App. 2010) (showing that a denial of such a request is
appealable and that the appellate court reviews the findings as
to the merits in a light favorable to the plaintiff).
Alternatively, if the judge denied his request based on a
finding that Plaintiff is not indigent, Plaintiff could have
filed his action in the superior court by paying the filing fee.
Indeed, it is within the trial court judge's discretion to
determine a plaintiff's ability to pay that court's fee. See
generally Saylors v. Emory Univ., 370 S.E.2d 625, 626 (Ga. App.
1988) (citations omitted) (stating that an appellate court
cannot review a trial court's finding on indigency and therefore
its denial of a petition to proceed in forma pauperis on this
basis). If the judge here found that Plaintiff has sufficient
resources to pay the Coffee County Superior Court fee, Plaintiff
must do so in order to file his inverse condemnation action.
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Moreover, if Plaintiff is impatient with the timing of his
state-court requests, there are actions, requests for hearing,
and petitions for mandamus available to him. What is not
possible is for Plaintiff alone to decide that he can opt out of
pursuing the state path simply because it is taking more time
than he would like it to take. 3
Because Plaintiff's Complaint does not plausibly suggest
that he took these available steps to pursue the inverse
condemnation procedure under Georgia law, the Court DISMISSES
Plaintiff's section 1983 takings claim for lack of subject
matter jurisdiction. The Court need not address Defendants'
remaining basis for dismissal relating to the relevant statutes
of limitations.
CONCLUSION

For the foregoing reasons, Defendants' Motion is GRANTED.
SO ORDERED, this 13TH day of November, 2014.

LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

In giving examples of available remedies, the Court in no way implies that
Plaintiff's takings claim is meritorious or that Plaintiff's pursuit of any
given remedy will prove successful.
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