Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 1 of 11
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF ALABAMA
`NORTHERN DIVISION
`
`
`CATHY RAY, and
`DEBBIE GONZALEZ
`
`
`
`v.
`
`PATE’S CHAPEL BAPTIST
`CHURCH AND CEMETERY,
`
`
`
`Plaintiffs,
`
`Defendant.
`
`)
`)
`)
`)
`) CASE NO. 2:18-cv-828-MHT-GMB
`)
`
`)
`)
`)
`)
`)
`
`REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
`
`
`
`
`
`Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to a United States
`
`Magistrate Judge for review and submission of a report with recommended findings of fact
`
`and conclusions of law. Doc. 3. Plaintiffs Cathy Ray and Debbie Gonzalez assert claims
`
`styled as negligence and intent to defraud, outrage, and civil rights and civil rights
`
`infringement against Defendant Pate’s Chapel Baptist Church and Cemetery (“Pate’s
`
`Chapel”). Doc. 5. Pending before the court is Defendant’s Motion to Dismiss. Doc. 6.
`
`After careful consideration of the parties’ submissions, the applicable law, and the record
`
`as a whole, the undersigned Magistrate Judge RECOMMENDS that the Motion to Dismiss
`
`(Doc. 6) be GRANTED in part and DENIED in part. The Magistrate Judge also
`
`RECOMMENDS that the pending Motion for Leave to Proceed in forma pauperis (Doc.
`
`2) be GRANTED.
`
`I. JURISDICTION AND VENUE
`
`The court has subject matter jurisdiction over the claims in this lawsuit pursuant to
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 2 of 11
`
`28 U.S.C. § 1332. The parties do not contest personal jurisdiction or that venue is proper
`
`in the Middle District of Alabama. The court finds adequate allegations to support both.
`
`II. FACTUAL AND PROCEDURAL BACKGROUND
`
`
`
`Pate’s Chapel Baptist Church operates and maintains Pate’s Chapel Cemetery in
`
`Chilton County, Alabama. Doc. 5 at 1. Ray, Gonzalez, and Theresa Zipler are sisters and
`
`the daughters of John Cecil Ray, who is buried in Pate’s Chapel Cemetery. Doc. 6-1 at 3.1
`
`Both Ray and Gonzalez live in Florida. Doc. 5 at 1.
`
`
`
`In July 2014, Ray called the head of the committee responsible for oversight of
`
`Pate’s Chapel, Howard Smith, and talked with him about placing a marker on her father’s
`
`grave. Doc. 5 at 2. Smith told Ray that her father was not buried in Pate’s Cemetery. Doc.
`
`5 at 2. Ray assured Smith that, in fact, her father had been buried in the cemetery, next to
`
`his mother, Margaret Ray. Doc. 5 at 2. Smith told Ray that a plot map of the cemetery did
`
`not list her father as having been buried there, nor did the map indicate that there was room
`
`for a grave next to Margaret Ray. Doc. 5 at 2. Despite the plot map, Smith did suggest that
`
`a grave could be located next to Margaret Ray because he knew that the ground had been
`
`disturbed in that area. Doc. 5 at 2–3. Smith also told Ray that she had his permission to
`
`place a marker on the gravesite that she believed to be her father’s final resting place. Doc.
`
`5 at 3.
`
`
`
`On November 20, 2014, Ray, Gonzalez, and their sister Theresa Zipler filed a
`
`
`1 “[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the
`plaintiff’s claim, then the Court may consider the documents part of the pleadings for purposes of Rule
`12(b)(6) dismissal, and the defendant’s attaching such documents to the motion to dismiss will not require
`conversion of the motion into a motion for summary judgment.” Brooks v. Blue Cross & Blue Shield of
`Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
`
`
`
`2
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 3 of 11
`
`complaint against Pate’s Chapel in the Circuit Court of Chilton County, Alabama. Doc. 6-
`
`1. They alleged a negligence and/or wantonness claim, an outrage claim, and a breach of
`
`contract claim. Doc. 6-1. The facts supporting these claims principally related to the July
`
`2014 conversation between Ray and Smith described above. See Doc. 6-1 at 4–6. While
`
`the case was ongoing, on January 31, 2015, some of the plaintiffs’ family members, Mary
`
`Alice Ray and her two daughters, placed a marker on what they believed to be Plaintiffs’
`
`father’s gravesite without the sisters’ permission. Doc. 5 at 4. Pate’s Chapel knew they
`
`planned to place the marker, and allowed Mary Alice and her daughters to place it on the
`
`wrong gravesite. Doc. 5 at 4. Pate’s never told Plaintiffs about the marker or asked for
`
`their permission to place the marker. Doc. 5 at 4.
`
`
`
`In October 2017, Pate’s Chapel filed a Motion for Summary Judgment in state court
`
`in response to the sisters’ claims. Doc. 1-6. On November 29, 2017, the Chilton County
`
`Circuit Court held a hearing on the Motion for Summary Judgment, and granted the motion
`
`as to all of the sisters’ claims. Doc. 1-6. The sisters appealed the case to the Alabama Court
`
`of Civil Appeals, who transferred the case to the Alabama Supreme Court on June 15, 2018
`
`for lack of jurisdiction. Doc. 5 at 7. The Supreme Court transferred the case back to the
`
`Court of Civil Appeals pursuant to Alabama Code § 12-2-7(6). Docs. 5 at 7 & 6-4 at 2.
`
`The Court of Civil Appeals ultimately affirmed the grant of summary judgment (Doc. 6-
`
`4), and issued a Certificate of Judgment on August 1, 2018. Case No. CV-14-900237,
`
`Chilton County Circuit Court, Doc. 134. The sisters did not take any further action in state
`
`court.
`
`
`
`
`
`Instead, on September 24, 2018, Ray and Gonzalez filed the instant action in this
`
`3
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 4 of 11
`
`court. They allege that Pate’s Chapel was negligent and intended to defraud them,
`
`exhibited outrageous conduct, and violated their civil rights. Doc. 5. They ask for damages
`
`including that the gravesite marker placed by their family members be removed,
`
`compensatory damages, punitive damages, attorney’s fees, and a new trial. Doc. 5.
`
`III. STANDARD OF REVIEW
`
`In considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
`
`of Civil Procedure, the court must “take the factual allegations in the complaint as true and
`
`construe them in the light most favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d
`
`1282, 1284 (11th Cir. 2008). To survive a motion to dismiss, a complaint must include
`
`“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
`
`Twombly, 550 U.S. 544, 570 (2007). A claim is “plausible on its face” if “the plaintiff
`
`pleads factual content that allows the court to draw the reasonable inference that the
`
`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
`
`The complaint “requires more than labels and conclusions, and a formulaic recitation of
`
`the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Factual
`
`allegations need not be detailed, but “must be enough to raise a right to relief above the
`
`speculative level,” Twombly, 550 U.S. at 555, and “unadorned, the-defendant-unlawfully-
`
`harmed-me accusation[s]” will not suffice. Iqbal, 556 U.S. at 678.
`
`
`
`In addition to the pleading requirements of Twombly and Iqbal, a plaintiff’s pro se
`
`status must be considered when evaluating the sufficiency of a complaint. “A document
`
`filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully
`
`pleaded, must be held to less stringent standards than formal pleadings drafted by
`
`
`
`4
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 5 of 11
`
`lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
`
`U.S. 97, 106 (1976)). Yet any leniency cannot serve as a substitute for pleading a proper
`
`cause of action. See Odion v. Google Inc., 628 F. App’x 635, 637 (11th Cir. 2015)
`
`(recognizing that although courts must show leniency to pro se litigants, “this leniency
`
`does not give a court license to serve as de facto counsel for a party, or to rewrite an
`
`otherwise deficient pleading in order to sustain an action”) (internal quotation marks
`
`omitted). “While the pleadings of pro se litigants are liberally construed, they must still
`
`comply with procedural rules governing the proper form of pleadings.” Hopkins v. St. Lucie
`
`Cnty. Sch. Bd., 399 F. App’x 563, 565 (11th Cir. 2010) (internal citations and quotation
`
`marks omitted).
`
`IV. DISCUSSION
`
`
`
`“The doctrine of res judicata prohibits the relitigation of all matter which was or
`
`could have been litigated in the prior action.” Families v. U.S. Dep’t of Army, 380 F. Supp.
`
`2d 1233, 1259 (N.D. Ala. 2005) (internal quotation and citation omitted). “When we are
`
`asked to give res judicata effect to a state court judgment, we must apply the res judicata
`
`principles of the law of the state whose decision is set up as a bar to further litigation.”
`
`Kizzire v. Baptist Health Sys., Inc., 441 F.3d 1306, 1308 (11th Cir. 2006) (internal
`
`quotation and citation omitted). Under Alabama law, the essential elements of res judicata
`
`are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction,
`
`(3) with substantial identity of the parties, and (4) with the same cause of action presented
`
`in both cases. Id. at 1308–09 (internal quotation and citation omitted). “If all four elements
`
`are met, any claim that was, or could have been, adjudicated in the prior action is barred
`
`
`
`5
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 6 of 11
`
`from future litigation.” Id. at 1309. In Alabama, therefore, res judicata applies when the
`
`same evidence substantially supports both actions. Id.
`
`
`
`In this case, the complaint’s inartful pleading complicates the court’s consideration
`
`of the res judicata doctrine.2 Specifically, the Amended Complaint does not clearly
`
`indicate whether Plaintiffs intend to bring claims relating to the July 2014 conversation
`
`with Smith or whether Plaintiffs merely include these factual allegations as background for
`
`their claims relating to Pate’s Chapel’s role in the placement of the gravesite headstone in
`
`January 2015. As a result, the court analyzes both set of potential claims independently,
`
`concluding that all of the elements of res judicata are satisfied as to the sisters’ claims
`
`stemming from Smith’s conversation with Ray in July 2014, but are not satisfied for any
`
`claims arising from the placement of the headstone on January 31, 2015.
`
`The court’s analysis of the first three elements is the same for either set of claims.
`
`A summary judgment decision is a prior judgment on the merits for purposes of Alabama’s
`
`res judicata doctrine, Duke v. Nationstar Mortgage, L.L.C., 893 F. Supp. 2d 1238, 1246
`
`(N.D. Ala 2012), and any argument against summary judgment should have been addressed
`
`in an appeal from the state court’s entry of summary judgment. Ex parte Jefferson Cnty.,
`
`656 So. 2d 382, 385 (Ala. 1995). Thus, when the Alabama Supreme Court transferred the
`
`state-court appeal to the Alabama Court of Civil Appeals and that court affirmed the
`
`Chilton County Circuit Court’s grant of summary judgment, the first prong of res judicata
`
`
`2 This commentary is not intended as a slight. Inartful pleading is an expected byproduct of pro se
`representation, and Plaintiffs’ amended complaint is more skillfully drafted than most pro se pleadings this
`court receives. The court nevertheless intends to order re-pleader to address certain deficiencies in the
`event the District Court adopts this recommendation and refers the matter back to the Magistrate Judge.
`
`
`
`6
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 7 of 11
`
`was met.
`
`
`
`The second prong also is satisfied because the Circuit Court of Chilton County is a
`
`court of competent jurisdiction. See Duke, 893 F. Supp. 2d at 1246 (“The Circuit Court of
`
`Shelby County was indisputably a court of competent jurisdiction.”); see also Greer-El v.
`
`Ala. Dep’t of Corr., 2018 WL 3639859, at *5 (M.D. Ala. July 6, 2018) (“Pursuant to Ala.
`
`Code § 12-11-30(1), circuit courts in Alabama ‘shall have exclusive original jurisdiction
`
`of all civil actions in which the matter in controversy exceeds ten thousand dollars.’”).
`
`Third, the element requiring substantial identity of the parties generally means that the
`
`parties must be identical. Duke, 893 F. Supp. 2d at 1246. Again, that prong is satisfied
`
`here. Cathy Ray and Debbie Gonzalez were both plaintiffs in the state-court action, and
`
`Pate’s Chapel was the defendant. Doc. 6-1. But the fourth prong is where the court’s
`
`application of the res judicata doctrine to Plaintiffs’ sets of potential claims diverges.
`
`A.
`
`The Conversation
`
`
`
` To the extent Plaintiffs seek to bring claims in this suit arising from the substance
`
`of the July 2014 conversation between Smith and Ray, this is the same cause of action that
`
`they presented in Chilton County Circuit Court. “In comparing causes of action, courts
`
`inquire whether the primary right and duty or wrong are the same in each action.” Burr &
`
`Forman v. Blair, 470 F.3d 1019, 1030 (11th Cir. 2006). Res judicata applies not only to
`
`those claims actually raised in state court, but also encompasses all claims that could have
`
`been raised from the same nucleus of operative facts. Id. Both this federal case and the
`
`former state case arise from many of the same facts. See Greer-El, 2018 WL 3639859, at
`
`*5. As in state court, some of Plaintiffs’ factual allegations relate to Smith’s representation
`
`
`
`7
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 8 of 11
`
`to Ray that her father was not buried in the cemetery. Doc. 5 at 2. And both the federal
`
`complaint and state complaint allege that Smith told Ray that there was no room for a grave
`
`next to her grandmother. Doc. 5 at 2; Doc. 6-1 at 4. To the extent Plaintiffs’ federal action
`
`stems from these wrongs, res judicata bars Plaintiffs from asserting these claims. See
`
`Manning v. City of Auburn, 953 F.2d 1355, 1359 (11th Cir. 1992) (holding that res judicata
`
`applies to all “claims arising out of the same ‘nucleus of operative fact’”) (citing NAACP
`
`v. Hunt, 891 F.2d 1555, 1561 (11th Cir 1990) (finding the same causes of action where the
`
`wrong in both suits involved flying a Confederate flag over the Alabama state capitol));
`
`Olmstead v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984) (holding that res judicata
`
`barred the second suit because both cases raised First Amendment challenges to the use of
`
`certain textbooks in schools); Mack v. Ala. Dep’t of Youth Servs., 106 F. Supp. 2d. 1256,
`
`1260 (concluding that res judicata barred second suit asserting federal claims, even though
`
`the state case only alleged state-law claims, because both cases arose from the same adverse
`
`employment action); Kizzire, 441 F.3d at 1309 (holding that res judicata barred second suit
`
`because claims in both cases related to unreasonable charges assessed to the plaintiffs for
`
`emergency medical care). Because the same evidence that supported the state action
`
`supports any federal claims regarding the July 2014 conversation, the fourth prong of the
`
`test is met. Accordingly, Ray and Gonzalez are estopped from reasserting any claims in
`
`federal court to the extent they arise from Smith’s conversation with Ray in July 2014.
`
`B.
`
`The Headstone
`
`
`
`However, res judicata does not apply to any claims arising from Pate’s Chapel’s
`
`role in the placement of a gravesite marker on January 31, 2015. In Alabama, the principal
`
`
`
`8
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 9 of 11
`
`test for determining whether res judicata applies is whether the primary wrong is the same
`
`in each action. Old Republic Ins. Co. v. Lanier, 790 So. 2d 922, 928 (Ala. 2000) (internal
`
`citations and quotations omitted). “The scope of litigation is framed by the complaint at
`
`the time it is filed.” Manning, 953. F.2d at 1360 (internal citation omitted). “Res judicata
`
`is no defense where, between the first and second suits, there has been a modification of
`
`significant facts creating new legal conditions.” Id. at 1359 (internal citation and quotation
`
`marks omitted). And res judicata does not preclude claims that could have been brought
`
`in an earlier proceeding, but were not, where those claims arose after the original pleading
`
`filed in the earlier litigation. Id. at 1360. To permit otherwise would require that “every
`
`claim arising prior to entry of a final decree [] be brought into the pending litigation or
`
`lost.” Id.
`
`
`
`Here, the operative facts are different from those of the state court case and did not
`
`occur until after the original complaint was filed in Plaintiffs’ state case. The Chilton
`
`County case was initiated on November 20, 2014. Doc. 6-1. More than two months later,
`
`on January 31, 2015, Mary Alice Ray placed the new headstone in Pate’s Cemetery. Doc.
`
`5 at 4. Accordingly, res judicata does not bar Plaintiffs from asserting claims arising from
`
`the January 31, 2015 conduct, as that conduct occurred after the original pleading was filed
`
`in the earlier litigation and was not the basis for any of the claims in that suit. Manning,
`
`953 F.2d at 1360; see also Kilgoar v. Colbert Cnty. Bd. of Educ., 578 F.2d 1033 (5th Cir.
`
`1978) (holding that res judiciata did not preclude second suit where teachers’ claims were
`
`based on conduct occurring after the prior litigation commenced). Any claims stemming
`
`from this alleged wrong are not precluded from the instant action because the state-court
`
`
`
`9
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 10 of 11
`
`claims did not involve the same alleged wrong or conduct. See Green v. Jefferson Cnty.
`
`Comm’n, 563 F.3d 1243, 1253 (11th Cir. 20019) (finding that res judicata applies where
`
`claims arise out of the same operative facts or the same evidence is applicable in both
`
`actions). Consequently, Ray and Gonzalez are not estopped from asserting any claims in
`
`federal court that arise from the placement of the headstone in January 2015.
`
`V. CONCLUSION
`
`For the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge
`
`that Defendants’ Motion to Dismiss (Doc. 6) be GRANTED as to all claims arising from
`
`the July 2014 conversation between Smith and Ray, and that the Motion to Dismiss be
`
`DENIED as to all claims arising from the placement of the gravesite marker in January
`
`2015. Consistent with this recommendation, it is further RECOMMENDED that the
`
`Motion for Leave to Proceed in forma pauperis (Doc. 2) be GRANTED. The Magistrate
`
`Judge additionally RECOMMENDS that the case be referred back to the undersigned for
`
`further proceedings, as appropriate.
`
`The parties are additionally DIRECTED to file any objections to the report and
`
`recommendation no later than May 17, 2019. Any objections filed must specifically
`
`identify the findings in the Magistrate Judge’s report and recommendation to which the
`
`party is objecting. Frivolous, conclusive, or general objections will not be considered by
`
`the District Court. The parties are advised that this report and recommendation is not a
`
`final order of the court and, therefore, is not appealable.
`
`
`
`Failure to file written objections to the proposed findings and recommendations in
`
`the Magistrate Judge’s report and recommendation shall bar the party from a de novo
`
`
`
`10
`
`

`

`Case 2:18-cv-00828-MHT-WC Document 16 Filed 05/03/19 Page 11 of 11
`
`determination by the District Court of issues covered in the report and recommendation
`
`and shall bar the party from attacking on appeal factual findings in the report and
`
`recommendation accepted or adopted by the District Court, except upon grounds of plain
`
`error or manifest injustice. See Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); Stein
`
`v. Reynolds Sec., Inc., 667 F.2d 33 (11th Cir. 1982).
`
`DONE this 3rd day of May, 2019.
`
`
`
`
`
`11
`
`