Case 2:13-cv-00387-MEF-WC Document 7 Filed 06/17/13 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

KARL LENTZ, )
)
Plaintiff, )
)
V. ) CASE NO.: 2:13-CV-00387-MEF-WC
)
ALABAMA DEPARTMENT OF )
HUMAN RESOURCES, )
)
Defendant. )

DEFENDANT’S MOTION TO DISMISS

COME NOW the Alabama Department of Human Resources (hereinafter

“Defendant”), by and through the undersigned counsel, and moves this Honorable Court

pursuant to Rule 12(b)(6) Fed. R. Civ. P. to dismiss Plaintiff’s Complaint in this action.

Defendant shows unto this Court as follows:

I. PLAINTIFF’S COMPLAINT

On May 28, 2013, Plaintiff, Karl Lentz filed a lawsuit against the Alabama

Department of Human Resources. Plaintiff served the Alabama Department of Human

Resources.

Plaintiff is seeking Three Hundred Seventy-One Million Five Hundred and

Twenty Thousand Dollars ($371,520,000.00)

II. RULE 12(b)(6) STANDARD

Under Rule 12(b)(6), Fed.R.Civ.P., dismissal of the complaint for failure to state a

cause of action is appropriate when no construction of the factual allegations of the

complaint will support the cause of action. Marshall County Board of Education v.

Marshall County Gas District, 992 F.2d 1171, 1174 (11th Cir. 1993). The Court may
 Case 2:13-cv-00387-MEF-WC Document 7 Filed 06/17/13 Page 2 of 7

dismiss the complaint only if it is clear that no relief could be granted under any set of facts

in support of its claims. Jackam v. Hospital Corp. of America Mideast, Ltd., 800 F.2d

1577, 1579 (11th Cir.1986).

This Court recently stated the rule as follows:

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Prior
to the Supreme Court’s recent decision in Bell Atl. Corp. v. Twombly, 127
S.Ct. 1955 (2007), a motion to dismiss could only be granted if a plaintiff
could prove “no set of facts … which would entitle him to relief.” See
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Hishon v. King &
Spalding,467 U.S. 69, 73 (1984); Wright v. Newsome, 795 F.2d 964, 967
(11th Cir.1986). Now, in order to survive a motion to dismiss for failure to
state a claim, the plaintiff must allege “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 127 S.Ct. at 1974. While the factual
allegations of a complaint need not be detailed, a plaintiff must nevertheless
“provide the ‘grounds’ of his ‘entitlement to relief’ and a formulaic
recitation of the elements of a cause of action will not do.” Id. at 1965. The
plaintiff’s “[f]actual allegations must be enough to raise a right to relief
above a speculative level on the assumption that the allegations in the
complaint are true.” Id. It is not sufficient that the pleadings merely
“le[ave] open the possibility that the plaintiff might later establish some set
of undisclosed facts to support recover.” Id. At 1968 (internal quotation and
altercation omitted). In considering a defendant’s motion to dismiss, a
district court will accept as true all well-pleaded factual allegations and view
them in a light most favorable to the plaintiff. See Am. United Life Ins. Co.
v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). Accord Nelson v.
Campbell, 541 U.S. 637, 640 (2004) (where a court is considering dismissal
of a complaint at the pleading stage, it must assume the allegations of the
complaint are true).

McClesky v. City of Dothan, Alabama, F.Supp. 2d , 2009 WL 4671454, 454 at

3 (M.D.Ala. December 3, 2009).

The Court is not required to accept a plaintiff’s legal conclusions, Ashcroft v.

Iqbal, 566 U.S. 662 (2009) (noting “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions”). In evaluating

the sufficiency of a plaintiff’s pleadings, the court makes reasonable inferences in the

2
 Case 2:13-cv-00387-MEF-WC Document 7 Filed 06/17/13 Page 3 of 7

plaintiff’s favor, “but [is] not required to draw plaintiff’s inference.” Aldana v. Del Monte

Fresh Produce, N.A., Inc., 416 F. 3d 1242, 1248 (11th Cir.2005). Similarly, “unwarranted

deductions of fact” in a complaint are not admitted as true for the purpose of testing the

sufficiency of plaintiff’s allegations. Id.; see also Iqbal, 129 S. Ct. at 1951 (stating

conclusory allegations are “not entitled to be assumed true”).

A pro se Plaintiff is held to a less stringent standard than those of attorneys

Tannenbaum v. United States, 148 F. 3d 1262, 1263 (11th Cir. 1998). However, the court

does not serve as de facto counsel for a pro se litigant. Hall v. Bellmon, 935 F. 2d 1106,

1109 (10th Cir. 1991). In addition the court cannot “rewrite an otherwise deficient pleading

in order to sustain an action.” GJR Investments, Inc. v. County of Escambia, Fla., 132 F. 3d

1359, 1369 (11th Cir. 1998). Moreover, this Court can only examine the four corners of the

complaint. Ricman v. Precisionaire, Inc., 902 F. Supp 232, 233 (M.D. Fla. 1995). The

Plaintiff is required to “specify the acts of each defendant which resulted in the alleged

constitutional violation.” Hayden v. Coppage, 533 F. Supp. 2d 1186, 1197 (M.D. Ala.

2008).

Ordinarily, a party must be given at least one opportunity to amend before

dismissal of a complaint. Bryant v. Dupree, 252 F. 3d 1161, 1163 (11th Cir. 2001).

However, the district court need not allow another amendment that would be futile and

whereby the Plaintiff has failed to correct the deficient complaint originally filed. Id. See

also Ziemba v. Casade International, Inc., 256 F.3d 1194 (11th Cir. 2001) (if more carefully

drafted complaint could not state claim, then dismissal with prejudice is proper).

Additionally, a court should not hesitate to dismiss a complaint when the Plaintiff’s

allegation fails as a matter of law. Phelps v. Kapnolas, 308 F.3d 180, 187 (2nd Cir. 2002).

3
 Case 2:13-cv-00387-MEF-WC Document 7 Filed 06/17/13 Page 4 of 7

III. ARGUMENTS

A. THE COMPLAINT FAILS TO STATE A CLAIM

The Federal Rules of Civil Procedure require that a complaint contain a “short and

plain statement of the claim that will give the defendant fair notice of what the plaintiff’s

claim is and the ground upon which it rests.” Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2

L.Ed.2d 80 (1957). Even under the notice rules of pleading, the complaint must state a

cause of action sufficient to affirmatively show that Plaintiffs are entitled to relief, for:

[I]t is not enough to indicate merely that the plaintiff has a grievance but
sufficient detail must be given so that the defendant, and the Court, can
obtain a fair idea of what the plaintiff is complaining, and can see that there
is some legal basis for recovery.

Moore’s Federal Practice, § 8.13 (2d ed. 1984).

In Ashcroft v. Iqbal, 566 U.S. 662, 129 S.Ct. 1937, 173 L.Ed. 868 (2004) the

Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does

not require detailed factual allegations, it does demand “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Igbal, 129 S.Ct. at 1949. A complaint must

state a plausible claim for relief, and “[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. The mere possibility the defendant

acted unlawfully is insufficient to survive a motion to dismiss. Id. The well-pled allegations

must nudge the claim “across the line from conceivable to plausible.” Bell Atlantic

Corporation v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

‘Unsupported conclusions of law or of mixed fact and law, have long been

recognized not to prevent a Rule 12(b)(6) dismissal.’ “Dalrymple v. Reno, 334 F.3d 991,

4
 Case 2:13-cv-00387-MEF-WC Document 7 Filed 06/17/13 Page 5 of 7

996 (11th Cir.2003) (quoting Marsh v. Butler County, 268 F.3d 1014, 1036 n. 16 (11th

Cir.2001)). The Complaint in this case contains many conclusory allegations, but, even

considered en gross, the conclusions of the Plaintiffs support no claim against the

Defendants. See, e.g., Dalrymple, 334 F.3d at 996-97; Gonzalez v. Reno, 325 F.3d at 1235.

B. PLAINTIFF’S CLAIMS ARE BARRED AGAINST THE ALABAMA

DEPARTMENT OF HUMAN RESOURCES

The Plaintiff has named the Department of Human Resources as a Defendant in this

civil action. The Department of Human Resources was created as a state agency by

statutory authority. See ALA. CODE § 38-2-1 (1975).

Where a party attempts to sue a State agency in federal court, the Eleventh

Amendment prohibits the federal court from exercising jurisdiction over the suit, except

where the State has consented to be sued or waived its immunity, or where Congress has

overridden the state’s immunity. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 98-100 (1984; Edelman v. Jordan, 415 U.S. 651, 677-78 (1974) ( Eleventh Amendment

immunity can be raised for the first time on appeal). In this case, the Alabama Department

of Human Resources has not consented nor waived immunity.

D. THE PLAINTIFF’S TRESPASS CLAIMS ARE TIME BARRED

The Plaintiff’s claims for trespass to property are time barred. Plaintiff alleges a

trespass to property commencing on August 14, 2011. Those claims are barred by the

expiration of the applicable six year statute of limitations provided by § 6-2-34(2) Code of

Alabama (1975).

WHEREFORE, THE ABOVE PREMISES CONSIDERED, Defendant Alabama

Department of Human Resources requests this Court:

5
 Case 2:13-cv-00387-MEF-WC Document 7 Filed 06/17/13 Page 6 of 7

A. dismiss Plaintiffs’ Complaint with prejudice and each and every count against

the Defendant; and

B. grant such other, further, and different relief as this Court may deem proper.

RESPECTFULLY SUBMITTED this the 17th day of June, 2013.

LUTHER STRANGE (STR003)

ATTORNEY GENERAL

SHARON E. FICQUETTE
GENERAL COUNSEL

/S/ Larry A. Lynn, Jr.

Larry A. Lynn, Jr. (LYN006)
Assistant Attorney General

COUNSEL FOR DEFENDANT

ALABAMA DEPARTMENT OF HUMAN
RESOURCES

OF COUNSEL:

State of Alabama Dept. of Human Resources

State Legal Office
P.O. Box 304000
Montgomery, Alabama 36130-4000
Tel: (334) 242-9330
Fax: (334) 242-0689
Email: [email protected]

6
 Case 2:13-cv-00387-MEF-WC Document 7 Filed 06/17/13 Page 7 of 7

CERTIFICATE OF SERVICE

I, the undersigned hereby certify that a true and correct copy of the above and

foregoing was filed via the CM/ECF system and a copy of the same mailed to the Plaintiff

via US Mail, postage prepaid on this the 17th day of June, 2013.

Karl Lentz
P.O. Box 440
Lexington, Virginia 24450

/s/ Larry A. Lynn, Jr.

Larry A. Lynn, Jr. (LYN006)
OF COUNSEL