Norman v. Norman
| Decision Date | 04 February 2014 |
| Docket Number | CASE NO.: CV-12-J-2136-S |
| Parties | PATRICK NOAH NORMAN, Plaintiff, v. TRACEY C. NORMAN, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This case comes before the court on the defendant Sams' and defendants Neill and Rector's motions for summary judgment, evidentiary submissions and memoranda of law (docs. 119-123). By Exhibit A to the Scheduling Order dated March 5, 2013 (doc. 79), the parties were informed of time limits for responding to dispositive motions. Pursuant to that Order, the plaintiff had until January 24, 2014, to respond to the outstanding motions, but to date no such response has been received. Although Tracey C. Norman is also a named defendant, all parties concede she cannot be located.1
Before delving into the merits of this case, which the court notes is a domestic dispute which has found its way to federal court, the court first addresses the filingof this action under Rule 11 of the Federal Rules of Civil Procedure as well as the concept of judicial estoppel.
Specifically, under the relevant portions of Rule 11, an attorney certifies to the court that, in presenting a pleading, to the best of his or her personal knowledge such pleading is not "being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation" and that "the factual contentions have evidentiary support." Rule 11 (b)(1) and (3), Fed.R.Civ.Pro. The court has reason to question whether the filing of the complaint and amended complaint in this action violated this Rule.
In relation to filing a bankruptcy action, the doctrine of judicial estoppel "protect[s] the integrity of the judicial process by prohibiting parties from changing positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). The Eleventh Circuit lists two "primary factors" for parties to establish when invoking the doctrine: " " Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir.2010) (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002)). The court again questions the filing of thecomplaint and amended complaint given the plaintiff's Chapter 7 bankruptcy.
The factual background necessary for disposition of this action is as follows:
Plaintiff married defendant Tracey Norman in January 2010. Doc. 123-2. They spent several years prior to this time and numerous months after that having each other arrested on claims of domestic violence and obtaining Protection From Abuse Orders against each other. See e.g., doc. 122-4, at 12; doc. 123-2, at 4, 8, 13, 14, 19-21, 35-39, 52-55. In May 2010 Tracey either left or was thrown out by plaintiff. Doc. 123-2 at 42. She immediately moved in with and began a relationship with Michael Wilkerson. She and plaintiff's harassment of each other continued. See e.g., doc. 123-2, at 41-42; plaintiff's amended complaint (doc. 61), ¶¶ 30-33. On July 20, 2010, plaintiff went to the Hoover Police to bring a charge against defendant Tracey Norman for a March 2010 knife fight between them in which they were both injured. Plaintiff depo. at 63-68; see also Incident Report, submitted as doc. 122-4. This report in July was the first time plaintiff met Detective Sams, an officer in the Family Services Unit for the City of Hoover. Sams' depo. at 8; Plaintiff depo. at 63-68.
Meanwhile, based on hearsay transcriptions of alleged text messages which plaintiff asserts were left on Michael Wilkerson's phone for Tracey Norman bydefendant Sams, plaintiff became convinced that at some unknown point in time Tracey Norman was having an inappropriate relationship with Detective Sams. See doc. 123-2, at 47, plaintiff depo. at 23-24, 36-37. In turn, based on this alleged inappropriate relationship, and disregarding that the plaintiff and Tracey Norman had already engaged in a stream of allegations and arrests against each other, plaintiff somehow became sure that Tracey Norman and Detective Sams conspired to violate his civil rights by having him arrested, even though the relevant arrest warrants were issued by counties and cities in which Detective Sams did not work.2 Plaintiff depo. at 38-44. Plaintiff took these allegations to Sams' supervisor, Captain Janie Neill, and when she did not respond as plaintiff thought she should, he went to Niell's supervisor, Captain D. Gregg Rector. Declaration of Neill, ¶¶ 10-12; declaraion of Rector, ¶¶ 10-15. Because neither defendant Neill nor Rector acted on plaintiff's unsubstantiated, loosely constructed allegations of conspiracy and wrongdoing between Detective Sams and Tracey Norman, the plaintiff sues them for deliberate indifference to the violation of his civil rights by Detective Sams. See AmendedComplaint, Count XVIII, ¶ 138.
The majority of plaintiff's claims are against defendant Tracey Norman. The Amended Complaint contains the following claims:
Meanwhile, during which this sordid sequence of events unfolded, the plaintiff filed for Chapter 7 bankruptcy on February 23, 2011. See In re Patrick N. Norman, Case No. 11-00942-TOM7, (submitted as doc. 122-9). In Schedule B of that filing, under the plaintiff checked "None." Id. at 11. He also represented himself as unmarried at the time the petition was filed. Id., at 40. These documents were all signed under penalty of perjury. Id., at 24, 45. Plaintiff was discharged from bankruptcy on May 31, 2011.
The court finds that at the time of filing his bankruptcy, the facts underlying plaintiff's claims here were fully developed. Lacking from the evidence before the court is any allegation that the plaintiff ever amended his Chapter 7 petition, moved to reopen his Bankruptcy case, or took any other action to notify the Bankruptcy Court that he had this action.
A moving party is entitled to summary judgment if there is no genuine issue of material fact, leaving final judgment to be decided as a matter of law. See Federal Ruleof Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1355-56 (1986). An issue is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997).
The facts, and any reasonable inferences therefrom, are to be viewed in the light most favorable to the non-moving party, with any doubt resolved in the nonmovant's favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 1609 (1970). Once met by the moving party, however, the burden shifts to the non-moving party to come forward with evidence to establish each element essential to that party's case sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th Cir.1990).
A party opposing a properly submitted motion for summary judgment may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir.1990). In addition, the non-moving party's evidence on rebuttal must be significantly probative and not based on mere assertion or be merely colorable. SeeRule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511 (1986). Speculation does not create a genuine issue of fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir.2005).
The court must consider the evidence in the light most favorable to the plaintiff and may not make credibility determinations nor weigh the parties' evidence. Frederick v. Sprint/United Management Co., 246 F.3d 1305, 1311 (11th Cir.2001); ...
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