                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


STANLEY SUMMER,

                          Plaintiff,

                          v.                               Civil Action No. 12-0907 (BAH)
                                                           Judge Beryl A. Howell
KIRK ANDREWS, et al.,

                          Defendants.




                                        MEMORANDUM OPINION

         On June 5, 2012, plaintiff Stanley Summer filed a pro se Complaint in this Court against

ten defendants, alleging violation of his constitutional rights stemming from an allegedly

fraudulent divorce proceeding between the plaintiff and his ex-wife. The plaintiff, however, has

already asserted the claims associated with his divorce proceeding in the Eastern District of

Tennessee, which granted motions to dismiss and for summary judgment in favor of the

defendants in that case. Consequently, for the reasons set forth below, the Court will dismiss,

sua sponte, the plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and

the doctrine of res judicata, which bars the plaintiff from re-litigating previously adjudicated

issues before this Court.

    I.    BACKGROUND

          The plaintiff alleges numerous constitutional violations against the ten named

defendants.1 Specifically, the plaintiff asserts claims against Blount County, Tennessee, and six

County officials, including Captain Randall Mercks, Sheriff James Lee Berrong, Officers Lisa

1
 The plaintiff’s Complaint also contains similar allegations against Judge W. Dale Young, the presiding judge
during the plaintiff’s divorce proceedings, even though the plaintiff has not named Judge Young as a defendant.

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Whitehead and James West of the Blount County Police Department, and Stephen Ogle and

Thomas Hatcher from the Blount County Clerk’s Office; as well as three private individuals, his

ex-wife Nancy Joan Summer and her two divorce attorneys, Kirk Andrews and Chris Ralls. The

factual allegations relevant to the plaintiff’s claims are difficult to decipher, but are generally

described below.

          On February 20, 2003, the plaintiff’s wife, defendant Nancy Summer, filed for divorce

in the Circuit Court for Blount County in Tennessee. Compl. at 8.2 Defendant Summer was

represented in the divorce proceeding by defendants Kirk Andrews and Chris Ralls. The

plaintiff alleges that these three defendants filed a fraudulent divorce petition in which

defendant Summer represented that she had been married only once before when in fact her

marriage to the plaintiff was her fourth. Id. at 8-11. It appears from the Complaint that at the

time of the divorce proceedings the plaintiff was unaware that defendant Summer had been

married on two other occasions.

          Defendant Summer successfully divorced the plaintiff, and the state court divided their

marital property, ordering the sale of some of the plaintiff’s asserts. Id. at 10-12. On June 22,

2009, the plaintiff’s house was sold at a Sheriff’s sale, and other personal items belonging to the

plaintiff were seized during the following two months. Id. at 13-14.

          The plaintiff alleges in the instant Complaint that the four Blount County police offers

who participated in the seizure and sale of the plaintiff’s property violated his constitutional

rights when they took his property. Id. at 15-18. He further asserts that defendant Summer and

her two divorce attorneys engaged in a fraudulent scheme to deprive him of property when they

filed a false divorce petition. Finally, the plaintiff alleges that two employees of the Blount

2
  While it is customary to cite to specific paragraphs in a complaint, the plaintiff has chosen to break his Complaint
into an excessive number of paragraphs in some parts, while declining to number other paragraphs entirely. Thus,
the Court will cite to the page number in the Complaint.

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County Clerk’s Office participated in the scheme to deprive the plaintiff of his constitutional

rights by failing to uncover the false statements in the divorce petition. In recompense for the

alleged violation of his rights, the plaintiff seeks $120 million in compensatory damages and

$10 million in punitive damages per defendant. Id. at 32.

        The plaintiff’s Complaint before this Court, however, is not his first attempt to seek

redress for the alleged violation of his rights stemming from his divorce from defendant

Summer and the resulting sale of some of his assets. In 2010, the plaintiff initiated suit in the

Eastern District of Tennessee against numerous individuals, including Blount County, and

defendant police officers Mercks, Berrong, Whitehead, and West. That court granted summary

judgment in favor of these defendants after concluding that the officers were entitled to

immunity because they were acting in accordance with valid court orders. Summer v.

Cunningham, No. 3:10-cv-169, 2011 WL 52554, at *4-7 (E.D. Tenn. Jan. 7, 2011).

        Upon review of the ruling issued by the Eastern District of Tennessee in the plaintiff’s

previously filed case, this Court concludes that the plaintiff’s allegations against Blount County,

the defendant police officers – Mercks, Berrong, Whitehead, and West – as well as its claims

against defendants Ogle and Hatcher from the Blount County Clerk’s Office are barred by the

doctrine of res judicata. Moreover, the plaintiff’s allegations against defendant Summer,

Andrews, and Ralls fail to state cognizable claims for relief. Consequently, the Court will

dismiss the plaintiff’s Complaint sua sponte.

 II.    STANDARD OF REVIEW

       To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff

need only plead “enough facts to state a claim to relief that is plausible on its face” and to

“nudge[ ] [his or her] claims across the line from conceivable to plausible.” Bell Atl. Corp. v.



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Twombly, 550 U.S. 544, 570 (2007); FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice

if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S.

662, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (citing Twombly, 550 U.S.

at 557). Instead, the complaint must plead facts that are more than “merely consistent with” a

defendant’s liability; “the plaintiff [must plead] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1940, 1949;

Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir. 2012). The Court must “assume all the

allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the

benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21.

November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotations and

citations omitted).

        In this Circuit, “[c]omplaints may . . . be dismissed . . . sua sponte . . . under Rule

12(b)(6) whenever the plaintiff cannot possibly win relief.” Best v. Kelly, 39 F.3d 328, 331

(D.C. Cir. 1994) (internal quotations omitted); see also Klute v. Shinseki, 797 F. Supp. 2d 12, 17

(D.D.C. 2011) (citing Best in dismissing, sua sponte, the plaintiff’s Americans with Disabilities

Act (“ADA”) claims against the federal government because the ADA does not consider the

federal government an employer); Moore v. Motz, 437 F. Supp. 2d 88, 94 (D.D.C. 2006) (citing

Best in dismissing, sua sponte, the plaintiff’s claim against government officials for failure to

fulfill campaign promises, as such a cause of action does not exist). Complaints filed by pro se

plaintiffs, however, “must be held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even a pro se complainant, however,

must plead “factual matter” that permits the court to infer “more than the mere possibility of

misconduct.” Atherton v. D.C. Office of Mayor, 567 F.3d 672, 682 (D.C. Cir. 2009) (citing Iqbal,



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129 S.Ct. at 1950).

 III.    DISCUSSION

        “The doctrine of res judicata prevents repetitious litigation involving the same causes of

action or the same issues.” Sheppard v. District of Columbia, 791 F. Supp. 2d 1, 4 (D.D.C.

2011) (citing I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946 (D.C. Cir.

1983)). Under claim preclusion, a subsequent lawsuit will be barred if there has been prior

litigation (1) involving the same claims or cause of action, (2) between the same parties or their

privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of competent

jurisdiction. See Porter v. Shah, 606 F.3d 809, 813 (D.C. Cir. 2010); Smalls v. United States,

471 F.3d 186, 192 (D.C. Cir. 2006) (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found.,

402 U.S. 313, 323-24 (1971); Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948));

Herrion v. Children’s Hosp. Nat’l Med. Ctr., 786 F. Supp. 2d 359, 368 (D.D.C. 2011).

Moreover, a “final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action.” Drake v. FAA, 291 F.3d

59, 66 (D.C. Cir. 2002) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)) (emphasis in

original). In order for issue preclusion to bar a claim, “(1), the same issue now being raised must

have been contested by the parties and submitted for judicial determination in the prior case; (2),

the issue must have been actually and necessarily determined by a court of competent

jurisdiction in that prior case; and (3), preclusion in the second case must not work a basic

unfairness to the party bound by the first determination.” Martin v. Dep’t of Justice, 488 F.3d

446, 454 (D.C. Cir. 2007).

        A. The Plaintiff’s Allegations Against Blount County and Defendants Mercks,
           Whitehead, Berrong, and West are Barred By Claim Preclusion

        The plaintiff alleges that defendants Mercks, Whitehead, Berrong, and West violated his


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constitutional rights when they unlawfully seized his personal property, and that defendant

Blount County is also liable for its officers’ illegal acts. Compl. at 31. The plaintiff, however,

has already litigated these claims in the Eastern District of Tennessee and is thus precluded from

asserting them before this Court.

       As stated above, claim preclusion applies (1) if there has been prior litigation involving

the same claims or cause of action, (2) between the same parties or their privies, and (3) there has

been a final, valid judgment on the merits, (4) by a court of competent jurisdiction. See Porter,

606 F.3d at 813. In this case, all four conditions are met.

       In the Eastern District of Tennessee, the plaintiff alleged that the defendant officers

“improperly ‘initiated direct attachment and seizure upon [plaintiff’s] private property,’ assaulted

and arrested plaintiff without probable cause, and deprived plaintiff of his ‘right to privacy, to be

left alone, [and] peaceful ownership of his property.’” Summer, 2011 WL 52554, at *4 (quoting

plaintiff’s complaint in the Eastern District of Tennessee). These are precisely the

constitutional violations he alleges in this case. The Eastern District of Tennessee entered

judgment in favor of the defendant officers after concluding that they had immunity from suit

because the actions that allegedly violated the plaintiff’s constitutional rights were undertaken

pursuant to valid court orders issued by Blount County courts. Id. at *5 (stating that the Court

“has found no indication that the orders under which defendants were acting were not validly

issued or were not issued by a judge acting in his judicial capacity. Further, the Court has no

indication, beyond plaintiff’s allegations, that defendants improperly carried out the court

orders.”). The Eastern District of Tennessee also dismissed the plaintiff’s claims against Blount

County, stating that “Plaintiff has not pled that his alleged injuries were the result of a policy or

custom of the county.” Summer v. Cunningham, No. 3:10-cv-169 (E.D. Tenn. 2010) (Order



                                              Page 6 of 9
dated July 20, 2010, ECF No. 41). Given that the Eastern District of Tennessee has already

concluded that the defendant officers are entitled to immunity, and dismissed the plaintiff’s

claims against Blount County, the plaintiff’s claims against these defendants must be dismissed.

       B. The Plaintiff’s Claims Against Defendants Hatcher and Ogle Are Barred by
          Issue Preclusion

       The plaintiff alleges that defendants Hatcher and Ogle, both of whom are employees at

the Blount County Clerk’s Office, are liable for, inter alia, fraud by “acting in concert and under

color of [state] law with Defendant [Summer] and Defendant Andrews to create a fraudulent

court case.” Compl. at 22, 27-28. The main thrust of the plaintiff’s argument is that these

defendants knew that the divorce proceedings were fraudulent and “with forethought and malice,

for a profit and a gain for [themselves],” signed papers in furtherance of the fraudulent scheme.

Id. at 22. The Eastern District of Tennessee evaluated the same documents at issue in these

allegations and determined that the documents were valid and legitimate. Summer, 2011 WL

52554, at *7 (“The Court has reviewed the court orders and finds no indication, on the face of

the orders, that the orders are invalid, improperly issued, or issued by a judge acting outside of

his jurisdiction.”). The plaintiff himself placed this factual issue before that court and it would

work no unfairness for him to be bound by that court’s conclusions. The plaintiff is therefore

precluded from asserting claims against defendants Hatcher and Ogle because the validity of the

Court orders associated with the plaintiff’s divorce was already raised, contested, and actually

and necessarily decided in Tennessee. Martin, 488 F.3d at 454 (stating that in order for issue

preclusion to bar a claim, “(1), the same issue now being raised must have been contested by the

parties and submitted for judicial determination in the prior case; (2), the issue must have been

actually and necessarily determined by a court of competent jurisdiction in that prior case; and

(3), preclusion in the second case must not work a basic unfairness to the party bound by the first


                                             Page 7 of 9
determination.”).

       C. The Plaintiff has Failed to State a Claim against Defendants Summer, Andrews,
          and Ralls

       The plaintiff’s allegations against defendant Summer, Andrews, and Ralls are difficult to

untangle, but he asserts that by filing a divorce petition that contained fraudulent statements, they

deprived him of his “due process rights and His rights as guaranteed by the Bill of Rights

Articles 1, 4, 5, 6, 8 . . .” Compl. at 21. “It is among the most basic tenets of constitutional law,”

however, “that the Bill of Rights protects individuals from governmental interference with

enumerated rights and does not apply to disputes between private parties.” Marshall v.

Honeywell Tech. Solutions, Inc., 536 F. Supp. 2d 59, 66 (D.D.C. 2008) (citing Pub. Util.

Comm’n of D.C. v. Pollak, 343 U.S. 451, 461-62 (1952) (holding that the Fifth Amendment

applies to and restricts only the Federal Government); Browning-Ferris Indus. of Vermont, Inc.

v. Kelco Disposal, Inc., 492 U.S. 257, 258 (1989) (holding that “the Eighth Amendment places

limits on the steps a government may take against an individual”)).

       In order to state a Section 1983 claim against defendants Summer, Andrews, and Ralls,

the plaintiff must show these defendants acted under color of state law. See West v. Atkins, 487

U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.”). There are certain

circumstances in which a private individual may act under color of state law for the purposes of

bringing a claim pursuant to Section 1983. The D.C. Circuit has held that private parties “may

be deemed to have acted under color of law in two circumstances: when they conspire with state

officials, and when they willfully engage in joint activity with a state or its agents.” Hoai v. Vo,

935 F.2d 308, 313 (D.C. Cir. 1991) (citations omitted); see also Garay v. Liriano, No. 11-cv-


                                             Page 8 of 9
1207, 2012 WL 898446, at *2 (D.D.C. Mar. 15, 2012) (finding that a private party had not

willfully engaged in joint activity with police officers).

       Here, the plaintiff alleges that defendants Summer, Andrews, and Ralls “operating in

concert” with members of the Blount County Clerk’s Office “under the color of state law”

submitted a fraudulent divorce petition “for the purpose of generating a revenue.” Compl. at 10-

12. Nonetheless, the plaintiff supplies no factual allegations to support these conclusory

assertions. As discussed above, the Eastern District of Tennessee already concluded that

members of the Blount County Clerk’s Office were operating pursuant to valid court orders.

Accordingly, the plaintiff’s barebones allegations that defendants Summer, Andrews, and Ralls

operated in concert with these state officials to deprive him of his constitutional rights lacks any

foundation. The plaintiff’s claims against defendant Summer, Andrews, and Ralls must

therefore be dismissed because the plaintiff fails to plead facts sufficient for the Court to infer

“more than the mere possibility of misconduct.” See Atherton, 567 F.3d at 682. Given the

plaintiff’s failure to state cognizable claims against these defendants, his claims must be

dismissed.

IV.      CONCLUSION

         For the reasons explained above, the plaintiff’s Complaint is hereby dismissed, sua

 sponte, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon

 which relief may be granted. An appropriate Order will accompany this Memorandum

 Opinion.


 DATED: JULY 6, 2012                                            Beryl A. Howell
                                                                BERYL A. HOWELL
                                                                United States District Judge




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