The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHERRY A. WILEY, )
)
Plaintiff, )
) Civil Action Number
vs. ) 2:20-cv-00198-AKK
)
V.A. of BIRMINGHAM, et al.,
)
)
Defendants.
MEMORANDUM OPINION
Sherry A. Wiley, proceeding pro se, commenced this action against the V.A.
of Birmingham, the Birmingham Police Department, and many other defendants,1
alleging that the defendants violated her civil rights, her rights under HIPAA, and
various state laws by, among other things, trying to coerce Wiley into having a
physical exam and refusing to accept Wiley’s police reports. See docs. 1; 3. Based
on her allegations, Wiley asserts claims for monetary damages against the
defendants and seeks declaratory and injunctive relief. See doc. 3 at 24.
1 The Amended Complaint names the following defendants: the V.A. of Birmingham and fifteen
of its employees, Birmingham Headquarters and Police Department, Birmingham Housing
Authority (properly identified as the Housing Authority of the Birmingham District), Birmingham
Water Company (properly identified as the Birmingham Water Works Board), Alabama Power,
Priority Veterans, Lula Skowronek, Devin Young, and the Federal Bureau of Investigation—
Birmingham. Doc. 3 at 1.
This action is before the court on Wiley’s motion for leave to proceed in forma
pauperis, doc. 2, motion for appointment of counsel, doc. 4, and motion to add
defendants to her complaint, doc. 5. As an initial matter, Wiley’s motion for leave
to proceed in forma pauperis, doc. 2, is due to be granted to the extent Wiley seeks
to commence this action without prepayment of fees. But, because “[g]enerally,
there is no constitutional right to ‘effective assistance of counsel’ in civil cases,’”
U.S. v. Wade, 291 F. Supp. 2d 1314, 1316 (M.D. Fla. 2003) (quoting Mekdeci v.
Merrell Nat’l Laboratories, 711 F.2d 1510, 1522-23 (11th Cir. 1983)), Wiley’s
request for appointment of counsel, docs. 2; 4, is due to be denied.
Next, district courts must dismiss the complaint of any plaintiff proceeding in
forma pauperis if the complaint “(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 such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
“The standards governing dismissals under Rule 12(b)(6) apply to
§ 1915(e)(2)(B)(ii).” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008)
(citation omitted).
As explained below, while Wiley may have valid grievances against multiple
individuals or entities, none of the grievances Wiley identifies in her Complaint
implicates a right under the Constitution. Therefore, her claims are due to be
dismissed without prejudice.
I.
Federal Rule of Civil Procedure 8 requires that a complaint contain “a short
and plain statement of the claim showing that the pleader is entitled to relief,” and
that allegations in the complaint “must be simple, concise, and direct.” Fed. R. Civ.
P. 8(a)(2), (d)(1). And, Rule 10 requires a plaintiffs to state her claims “in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.
R. Civ. P. 10(b). “These rules work together ‘to require the pleader to present [her]
claims discretely and succinctly, so that [her] adversary can discern what [s]he is
claiming and frame a responsive pleading, [and] the court can determine which facts
support which claims and whether the plaintiff has stated any claims upon which
relief can be granted . . . .’” Fikes v. City of Daphne, 79 F.3d 1079, 1082 (11th Cir.
1996) (quotation omitted). And, Rule 12(b)(6) permits dismissal of a complaint for
failing to failing to state a claim for relief. Fed. R. Civ. P. 12(b)(6).
Under Rule 12(b)(6), dismissal is appropriate if a complaint does not “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) (quoting Bell Atlantic v.
Twombly, 550 U.S. 544, 570 (2007)). When determining if a complaint states a
plausible claim for relief, the court accepts “the allegations in the complaint as true
and construe[s] them in the light most favorable to the plaintiff,” Hunt v. Aimco
Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016), but the court is “not bound to
accept as true a legal conclusion couched as a factual allegation,” Wood v. Moss, 572
U.S. 744, 755 n.5 (2014) (citing Iqbal, 556 U.S. at 678). Ultimately, this inquiry is
a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. Additionally, because
Wiley is proceeding pro se, the court must construe her complaint more liberally
than it would pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980);
Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). “This leniency, however,
does not require or allow courts to rewrite an otherwise deficient pleading in order
to sustain an action.” Thomas v. Pentagon Fed. Credit Union, 393 F. App’x 635,
637 (11th Cir. 2010).
II.
Turning to the specifics here, Wiley, an honorably-discharged veteran, alleges
that before she moved to Birmingham, Alabama from Hawaii, she spoke with Lula
Skowronek of Priority Veteran,2 who informed her that Priority Veteran would
temporarily place Wiley in a shelter until her Section 8 housing voucher transferred
to Birmingham. Doc. 3 at 5. But, according to Wiley, when she arrived in
Birmingham, Skowronek told her the Veterans Administration would house her
instead of Priority Veteran, and a Housing Authority of the Birmingham District
2 Priority Veteran is a partnership with the United Way of Central Alabama that serves military
veterans who are homeless or at immediate risk of becoming homeless, and it was created through
a grant from the U.S. Department of Veterans Affairs. See http://priorityveteran.org/about-us.
(“HABD”) employee then failed to process Wiley’s paperwork for a Section 8
voucher. Id. at 5-6. Wiley spent her first four days in Birmingham in a shelter, and
when she returned to a VA facility to meet with a case manager for the VA-HUD
Veterans Affairs Supportive Housing (“VASH”) program, VA medical staff
allegedly wrongfully observed Wiley in a waiting room. Id. at 6-7. Wiley further
alleges that the HABD conspired with Skowronek and VA employees to try to
coerce Wiley into undergoing a physical examination in order to be placed in the
VASH program even though a physical is not necessary for the program, and Wiley
was homeless for approximately a month after she refused to submit to a physical.3
See id. at 6-8.
Priority Veteran eventually placed Wiley in inadequate, dirty, and unsafe
housing while she waited for a Section 8 housing voucher, and it dropped Wiley
from its services when she moved to a new apartment approximately three months
later. Id. at 8-10. Wiley’s new apartment also proved inadequate, and she reported
many issues to HABD, and also reported harassment she experienced from her
neighbors and the building’s maintenance man to HABD and Dr. Sher Kannar, the
owner of her apartment.4 Id. at 10-13.
3 According to Wiley, the VA in Birmingham tried to force her to have a physical exam in order
to “manipulate the outcome” of a case Wiley had previously filed in the District of Hawaii. Doc.
3 at 6.
4 Wiley seeks to add her neighbor, Ted Bishop, Dr. Kannar, and Dr. Kannar’s maintenance man
as defendants to this action. Doc. 5.
According to Wiley, she has been the victim of repeated attempted break-ins,
theft, harassment, and stalking since moving to her new apartment, and her housing
stipend checks from HABD arrive open in the mail each month. Id. at 14-17. And,
allegedly, Birmingham police officers refused to take Wiley’s reports regarding
those incidents, but yet took false reports from Wiley’s neighbors about her. Id.
Wiley also contends that the Internal Affairs Department would not take her
complaint or give Wiley a copy of her neighbors’ reports against her, and that agents
at the FBI’s Birmingham office would not open a case regarding her complaints.
See id. at 17-20.
Finally, Wiley alleges that Birmingham Water Works supplied dirty, acidic
water to her apartment, and that her water bills were “extremely unusual” and higher
than they should have been. Id. at 20. And, Alabama Power allegedly wrongfully
turned off Wiley’s power on three occasions, then denied that any interruption had
occurred in Wiley’s service. Id. at 20-22. Neither Birmingham Water Works nor
Alabama Power would allow Wiley to speak with an upper manager regarding these
issues. Id.
III.
The court recognizes that Wiley is representing herself. Still, she is expected
to abide by the same rules as any other litigant. As explained below, her complaint
has several flaws that warrant dismissal of this lawsuit. Wiley is free to refile her
claims in this court if she can plead adequate federal claims, or to pursue her non-
federal claims in state court.
A.
The Amended Complaint fails to provide a short and plain statement of
Wiley’s claims as required by Rule 8, and fails to state Wiley’s claims separately in
numbered paragraphs as required by Rule 10. See doc. 3. Instead, the Complaint
lists Wiley’s claims in the case caption on the first page without identifying which
claims are asserted against which defendants, and it consists of twenty-four pages of
allegations that are largely conclusory and speculative, including allegations related
to a case Wiley previously filed in the District of Hawaii. Id. The Amended
Complaint also does not identify which alleged facts support each claim listed in the
caption. See id. In other words, the court and defendants must guess which claims
are asserted against each defendant and which allegations support Wiley’s different
claims for relief. As a result, the Amended Complaint is due to be dismissed for
failing to satisfy Rule 8. See Osahar v. U.S. Postal Serv., 297 F. App’x 863, 864
(11th Cir. 2008) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
B.
In addition, the Amended Complaint, even construed liberally, fails to state a
plausible federal claim, which is required for the court to exercise jurisdiction over
this dispute involving a plaintiff who is a citizen of Alabama and defendants from
Alabama.5 The Amended Complaint identifies Wiley’s claims as: “Civil Rights
Violation, HIPAA Rights Violation, Identify Theft, Abuse of Power, Human
Trafficking, Harassment, Stalking, Invasion of Privacy (audio/video illegally in
[Wiley’s] home), Slander, Libel, Actions Preventing [Wiley’s] human rights to start
a business, Defamation/Alienation, Negligence and Collusion, Medical Malpractice
and medical manipulation.” Doc. 3 at 1. But, “there is no private right of action for
a violation of HIPAA’s confidentiality provisions,” meaning that Wiley cannot file
a lawsuit for such an alleged violation. Bradley v. Pfizer, Inc., 440 F. App’x 805,
809-10 (11th Cir. 2011) (citing Acara v. Banks, 470 F.3d 569, 571-72 (5th Cir.
2006)); see also 42 U.S.C. § 1320d-5(a)(1). And, while Wiley’s identity theft and
human trafficking claims implicate federal criminal laws, no private right of action
exists to enforce those laws, and, again, that means Wiley cannot file a lawsuit to
seek redress for these violations. Moreover, to the extent that Wiley may assert
claims against VA employees in their official capacities under the Federal Tort
Claims Act (“FTCA”), the court cannot exercise jurisdiction over the claims because
Wiley has not alleged any facts to suggest that she first exhausted her administrative
5 Wiley contends that the court can exercise jurisdiction over this action on the basis of federal
question jurisdiction and because the United States is a party, and she does not allege the existence
of diversity jurisdiction. See docs. 1 at 5; 3.
remedies as required by the FTCA.6 See 28 U.S.C. § 2675(a); McNeill v. United
States, 508 U.S. 106, 113 (1993).
Turning to Wiley’s claims for alleged civil rights violations, Wiley seems to
assert claims against the defendants under 42 U.S.C. § 1983 and Bivens v. Six
Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). To state
a plausible claim under § 1983, a plaintiff must allege “(1) a violation of a
constitutional right; and (2) that the alleged violation was committed by a person
acting under the color of state law or a private individual who conspired with state
actors.” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (citations omitted).
And, to state a claim under Bivens, a plaintiff must allege facts showing a violation
of her constitutional rights committed by a Federal Government official “‘through
the official’s own individual actions . . . .’” Stevens v. Osuna, 877 F.3d 1293, 1309
(11th Cir. 2017) (quoting Iqbal, 556 U.S. at 676) (emphasis in original omitted).
1.
Wiley’s § 1983 claims against Alabama Power, Priority Veteran, Lula
Skowronek, and Devin Young fail as a matter of law because these defendants are
private individuals or entities.7 “Only in rare circumstances can a private party be
6 In addition, the FTCA does not waive a federal official’s immunity for claims arising out of
“libel, slander, misrepresentation, deceit, or interference with contract rights . . . .” 28 U.S.C.
§ 2680(h).
7 See Turner v. Alabama Power Co., Case No. , 2015 WL 873316, at *4 (N.D. Ala. Feb 27, 2015)
(“‘Alabama Power is a private, investor owned utility company,’ and “is not engaged in state action
viewed as a ‘state actor’ for section 1983 purposes.” Harvey v. Harvey, 241 F.3d
1341, 1347 (11th Cir. 1992). This entails showing that: “(1) the State has coerced
or at least significantly encouraged the action alleged to violate the Constitution [];
(2) the private parties performed a public function that was traditionally the
exclusive prerogative of the State []; or (3) the State had so far insinuated itself into
a position of interdependence with the [private parties] that it was a joint participant
in the enterprise [].” Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir. 2001)
(quotation omitted). Wiley has not alleged facts indicating that any of these three
tests have been satisfied with respect to the alleged actions of Alabama Power,
Priority Veteran, Skowronek, and Young. See doc. 3. As a result, Wiley’s claims
against these defendants for alleged civil rights violations are due to be dismissed.8
2.
As to Wiley’s civil rights claims against the governmental defendants—the
VA and its employees, the HABD, the Birmingham Police Department, the FBI, and
‘simply because it is engaged in a Government-regulated business.’”) (quoting McNeely v.
Crosswhite, 2014 WL 6903897, *3 (N.D. Ala. Dec. 8, 2014); Cobb v. Georgia Power Co., 757
F.2d 1248, 1250 (11th Cir. 1985)).
8 The defendants Wiley seeks to add to the Amended Complaint—Dr. Sher Kannar, who owns her
apartment building; Thomas, Dr. Kannar’s maintenance man, and Ted Bishop, a neighbor—are
private citizens, and Wiley does not allege any facts to suggest they may be considered state actors.
See docs. 3; 5. Thus, Wiley does not state plausible claims against these three individuals for civil
rights violations.
the Birmingham Water Works9—Wiley has not plausibly alleged that any of these
defendants violated her constitutional rights. First, Wiley alleges that the VA and
HABD wrongfully observed her in the waiting room or conference room of a VA
facility. However, such behavior would not violate Wiley’s Fourth Amendment
rights, or her right to privacy, because Wiley does not have an objectively reasonable
expectation of privacy in a public waiting room. And, even assuming Wiley may
plausibly allege a HIPAA violation, HIPAA does not create “rights that are
enforceable through § 1983.” Sneed v. Pan American Hospital, 370 F. App’x 47, 50
(11th Cir. 2010).
Second, to the extent that Wiley asserts a § 1983 or Bivens claims for an
alleged violation of her right to due process based on HABD’s alleged failure to
timely process her Section 8 paperwork, Wiley has not alleged a deprivation of a
constitutionally-protected property interest.10 Indeed, Wiley does not allege that
HABD ever terminated her benefits under Section 8, but alleges that she still receives
9 The Birmingham Water Works Board “is a public corporation created under Alabama Code § 11-
50-230, et seq.” Scruggs v. Water Works Bd. of the City of Birmingham, 2014 WL 5325750, at *6
(N.D. Ala. Oct. 20, 2014) (citing Water Works and Sewer Bd. of the City of Birmingham v. Shelby
Cnty., 624 So. 2d 1047, 1048 (Ala. 1993)).
10 To plead a plausible civil rights claim for an alleged violation of a right to due process, a
plaintiffs must allege “(1) a deprivation of a constitutionally-protected liberty or property interest;
(2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225,
1232 (11th Cir. 2003) (citation omitted).
a benefits check from HABD in the mail every month, albeit in an open envelope
tampered with by the HABD or one of her neighbors. See doc. 3 at 15.
Third, the alleged failure of the Birmingham Police Department and the FBI
to accept or investigate Wiley’s reports is not a violation of Wiley’s constitutional
rights. The Constitution does not give any of us an explicit right to file complaints
with law enforcement. While we all expect and want these agencies to take our
complaints seriously, their failure to do so does not implicate the Constitution.
Finally, the alleged issues regarding Wiley’s water service and her bills from
the Birmingham Water Works Board do not violate Wiley’s constitutional rights.
These are private contractual matters Wiley may pursue in state court if she is so
inclined.
To summarize, because Wiley has not alleged a violation of her constitutional
rights, her § 1983 and Bivens claims for alleged civil rights violations are due to be
dismissed.
IV.
When a more carefully drafted complaint might state a claim, a pro se plaintiff
“must be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice.” Woldeab v. Dekalb Cty. Bd. of Educ., 885 F.3d
1289, 1291 (11th Cir. 2018) (quotation omitted). But, a court may properly dismiss
a pro se complaint if “a more carefully drafted complaint could not state a claim.”
Id. In this case, Wiley has already amended her complaint once, doc. 3, and she
seeks leave to amend her complaint again, doc. 5. But, Wiley’s Amended Complaint
still fails to state a plausible claim for relief under Federal law, and Wiley’s proposed
addition of new defendants does not save her claims. In addition, giving Wiley an
Opportunity to amend her claims would be futile because the deficiencies in Wiley’s
federal claims could not be cured by a more carefully drafted complaint. Thus, the
court will dismiss Wiley’s federal claims without prejudice without giving her
another chance to amend her complaint.
Finally, “federal courts are courts of limited jurisdiction,” U.S. v. Rivera, 613
F.3d 1046, 1049 (11th Cir. 2010), and the Eleventh Circuit has “encouraged district
courts to dismiss any remaining state claims when, as here, the federal claims have
been dismissed prior to trial,” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088 (11th
Cir. 2004) (citation omitted). Thus, in light of Wiley’s failure to plead a plausible
federal claim, the court declines to exercise supplemental jurisdiction over Wiley’s
state law claims, see 28 U.S.C. § 1367(c), and this action is due to be dismissed
without prejudice. A separate order will be issued.
DONE the 29th day of April, 2020.
Apo bho te
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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