Enwonwu v. Fulton Cnty. Marshal

• Decision Date: 27 October 2016
• Docket Number: CIVIL ACTION NO. 1:16-CV-0797-WSD-JSA
• Parties: LEOPOLD O.V. ENWONWU, Plaintiff, v. FULTON COUNTY MARSHAL, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

LEOPOLD O.V. ENWONWU, Plaintiff, v. FULTON COUNTY MARSHAL, et al., Defendants.

CIVIL ACTION NO. 1:16-CV-0797-WSD-JSA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

October 27, 2016

ORDER AND FINAL REPORT AND RECOMMENDATION ON A MOTION TO DISMISS

Plaintiff Leopold O.V. Enwonwu, proceeding pro se, filed this action on March 7, 2016. Plaintiff claims that he and his family were wrongfully evicted from their home in Roswell, Georgia, and that Defendants, a bank, a judge, a law firm, and the Fulton County Marshals, conspired to evict him. Compl. [11] at 9-10.

The action is now before the Court on the Motion to Dismiss [33] filed by Defendants Aldridge Pite, LLP ("Aldridge Pite"), John G. Aldridge, Kimberly A. Rizzotti Weber, and Allison S. Giardina (collectively the "Aldridge Defendants"); the Motion to Dismiss Plaintiff's Complaint [38] filed by Wells Fargo, N.A. ("Wells Fargo"); and the Motion to Dismiss Plaintiff's Complaint [39] filed by Defendants Fulton County Marshal, Lieutenant P. Johnston, and Louis Levenson (collectively the "Motions to Dismiss").

For the reasons discussed below, the undersigned RECOMMENDS that the Defendants' Motions to Dismiss [33][38][39] be GRANTED, and that this action be DISMISSED in its entirety. The undersigned RECOMMENDS that all claims against Defendants Fulton County Marshal, Wells Fargo Bank, Aldridge Pite, Louis Levenson, John G. Aldridge, Kimberly A. Rizzotti Weber, Allison S. Giardina, and Lieutenant P. Johnston be DISMISSED for failure to state a claim for relief under Rule 12(b)(6). Additionally, but for Plaintiff's Fair Credit Reporting Act ("FCRA") and 42 U.S.C. section 1983 claims, Plaintiff's Complaint is barred by the Rooker-Feldman doctrine. In sum, the Court concludes that, as a matter of law, the Plaintiffs have failed to assert sufficient facts to state a plausible claim for relief under any of the legal theories presented in the Complaint.

The action is also before the Court on the following motions filed by the Plaintiff: the "Motion for an Order of Court that the Parties Engage in Discovery" [45] and the "Motion for an Order Extending or Enlarging the Time Within Which the Plaintiff May Respond to the Motions to the [sic] Dismiss Brought by the Defendants" [46]. For the reasons discussed below, Plaintiff's Motions [45] [46] are DENIED as moot.

I. BACKGROUND

Plaintiff Leopold O.V. Enwonwu filed the Complaint against eight named Defendants on May 20, 2016. See Compl. [11]. Plaintiff's Complaint is based on what he alleges to be a wrongful eviction and foreclosure action in which multiple parties,including the state court judge who issued the eviction order, conspired against him to take his home. The allegations below are taken from Plaintiff's Complaint [11].

Plaintiff's Complaint contains allegations explaining who the various Defendants are and spends some time recounting the procedural history of two separate actions, related to the same property, that took place in state court. See Compl. [11] at ¶¶ 5-13, 15, 17, 19. Plaintiff's discussion of the state court case(s) is unclear and incomplete, but Plaintiff's allegations are essentially as follows.

First, Plaintiff alleges that he "is a Black male, a U.S. citizen of Nigerian national origin on Social Security . . . who at all times material to instant action was jointly with his sons . . . in possession of the property . . . described as 1950 Branch Valley Drive, Roswell, Fulton County, Georgia." Id. at ¶ 4. According to Plaintiff, "Louis Levenson was a part-time Pro Hac Judge of the State Court of Fulton County and was also the Magistrate Court judge for dispossessory/landlord and tenant cases." Id. at ¶ 7. Defendants John G. Aldridge, Kimberly A. Rizzotti Weber, and Allison S. Giardina "were . . . attorneys-at-law employed by" the "Aldridge Connors law firm." Id. at ¶ 9. Aldridge Connors (now Aldridge Pite) was the law firm that, on behalf of Wells Fargo, provided notice of the scheduled foreclosure sale. Id. at 20. Furthermore, Plaintiff alleges that Defendant "Lieutenant P. Johnston . . . is an employee of the Fulton County Marshal's department." Id. at ¶ 10.

Plaintiff alleges that "[o]n October 2, 2012 Plaintiff's appeal from the judgment of the Magistrate Court . . . had been docketed, de novo, in the Superior Court of Fulton County as CAFN 2012CV222250." Id. at ¶ 19. Then, "[o]n December 7, 2012, the Superior Court of Fulton County, Georgia entered an order dated December 6, 2012 by Judge Campbell dismissing the de novo appeal in Civil Action File No. 2012CV222250 - Wells Fargo Bank, NA, et al., v. Edith Enwonwu, Leopold Enwonwu and all others." Id. at ¶ 11. Plaintiff attached this Order to the Complaint. See id. at 18. From Plaintiff's own attachment, it appears that Wells Fargo had initiated a dispossessory action against Plaintiff in the Magistrate Court of Fulton County and was granted default judgment. See id. Then, Plaintiff sought to appeal the default judgment, and the state court dismissed the action because "no appeal lies from a default judgment in Magistrate Court." Id. Plaintiff alleges that "Louis Levenson, [Judge of the Fulton County State/Magistrate Court(s) as he then was], lost the default judgment he had entered in favor of Wells Fargo in denial of herein Plaintiff's due process right to proper hearing notice." Id. at ¶ 21 (brackets in original).

Plaintiff further states that "[t]he Superior Court also entered a Final order, which granted the motions to dismiss brought by the Defendant in Civil Action File No. 2011CV207330 - Leopold Enwonwu v. Wells Fargo Bank, NA, et al.," id. at ¶ 12, and attached a copy of the Order as Exhibit 3, id. at 19. Plaintiff's attachment showsthat Plaintiff had alleged a claim of wrongful foreclosure because "(1) he did not execute the security deed; (2) notice was improper; and (3) the original deed and/or note have not been produced." Id. at 20. Because both Plaintiff and Defendants "supported their motion with evidence outside their original pleadings," the state court judge "converted Wells Fargo's Motion to Dismiss to a Motion for Summary Judgment" and found that there were no genuine issues of material fact, granting Wells Fargo's Motion for Summary Judgment. Id. at 20-21.

Plaintiff alleges that "[i]n granting the motions to dismiss brought by the Defendants in [case number] 2012CV207330, the Superior Court had placed reliance on the false Affidavit of William Eve Fair III, who claimed to be the closing attorney to the purported 2009 mortgage by Avelo Mortgage, LLC." Id. at ¶ 13. However, Plaintiff alleges that the affidavit is "a fraud" because the "signature . . . differed materially" and "William Eve Fair III could not have been the closing attorney as he did not drafted [sic], neither did he have possession or custody of the purported mortgage documents." Id. at ¶ 14. Plaintiff continues to explain the procedural history of the state court case (number "2011CV207330"), alleging that he "filed a timely notice of appeal as well as . . . served a poverty affidavit." Id. at ¶¶ 15-16. Plaintiff claims that "[o]n July 25, 2014, the Superior Court ruled on the motion by BakerDonelson & Co." Id. at ¶ 17. Apparently, Baker Donelson are Wells Fargo's attorneys. See id. at ¶ 6. According to Plaintiff, the poverty affidavit was granted. Id. at ¶ 17.

Plaintiff claims that "[o]n or about November 6, 2013, without jurisdiction and/or a judgment to enforce, Louis Levenson conspired with the attorneys of the law firm of Aldridge Connors¹ to willfully interfere with and deny Plaintiff's due process right of appeal by issuing a void order to effectuate the wrongful and unlawful eviction of Plaintiff's premises." Id. at ¶ 22. Plaintiff alleges that the order "was void as there was no case then pending in [Judge Levenson's] court between the parties." Id. Furthermore, "the Superior Court had dismissed CAFN: 2012CV222250, while Plaintiff had appealed CAFN: 2011CV207330." Id. Plaintiff contends that "Wells Fargo was obligated to firstly reinstitute proceedings to recover possession of property following exercise of a power of sale under a deed of mortgage as is mandated by OCGA §§ 44-14-161 et seq." Id. Moreover, Plaintiff alleges that "Defendants were precluded by public policy from evicting Plaintiff's premises as following the judgment in CAFN: 2011CV207330, the Social Security Administration withhold from Plaintiff's monthly stipend the sum of $260.33 for occupation of the premises." Id. Plaintiff requests the "Court . . . take judicial notice that on July 25, 2014 the Superior Court of Fulton County determined that Plaintiff's timely filing of notice ofappeal and as Wells Fargo failed to effectively traverse Plaintiff's poverty affidavit, it constituted supersedeas in satisfaction of the appeal bond set by the judgment in CAFN: 2011CV207330." Id.

Plaintiff alleges that he was "wrongfully evict[ed] . . . on December 12, 2013 from the premises at 1950 Branch Valley Drive, Roswell, Georgia 30076," id. at ¶ 16, and the eviction constituted a "knowing[] and malicious[] interfere[nce] with Plaintiff's right of appeal," id. at ¶ 23. Specifically, Plaintiff alleges that "[a]t the instance [sic] of the Defendants, Lieutenant Johnston leading other officers from the Fulton County Marshal's department knocked on the door and demanded entry into Plaintiff's home in the name of the State of Georgia at about 7 a.m. on December 12, 2013; and ready to use force, if necessary." Id. at ¶ 25. Plaintiff then "opened the door, protesting the fact that the eviction was wrongful . . . [but] Plaintiff's protest fell on deaf ears." Id. at ¶ 26. Thereafter, "Plaintiff was afforded the choice of one set of clothing, then told to get the other residents to step outside the house" and "the Wells Fargo eviction crew . . . took over the removal and wanton destruction of Plaintiff's property." Id. at ¶ 27. Plaintiff "suffer[ed] the loss of property both...