Eddins v. United States Air Force et al

Filing 22

Order: The 15 MOTION for More Definite Statement, construed as a motion to dismiss, is granted. The amended complaint is dismissed without prejudice to the plaintiff's ability to file a second amended complaint by 3/10/2016. Signed by Chief Judge William H. Steele on 2/18/2016. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARRY J. EDDINS,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 15-0350-WS-M
)
UNITED STATES AIR FORCE, et al., )
)
Defendants.
)
ORDER
This matter is before the Court on the defendants’ “motion for a more
definite statement.” (Doc. 15).1 Although the motion employs the language of
Rule 12(e), it attacks pleading deficiencies redressed by Rule 12(b)(6), it relies on
case law involving Rule 12(b)(6),2 and it expressly invokes Rule 12(b)(6). (Doc.
15 at 3). The Court therefore construes the motion as one to dismiss for failure to
state a claim pursuant to Rule 12(b)(6) rather than one for more definite statement
pursuant to Rule 12(e).3 The Court established a briefing schedule, (Doc. 16), but

1

The defendants say the United States is “likely the sole and proper Defendant,”
and they say they should be dismissed as defendants “[s]hould this case proceed.” (Doc.
15 at 1 n .1). Because the defendants have not moved for such relief, it will not be
considered at this time. Fed. R. Civ. P. 7(b)(1) (“A request for a court order must be
made by motion.”).
2

E.g., American Dental Association v. Cigna Corp., 605 F.3d 1283, 1289 (11th
Cir. 2010).
3

The defendants apparently understood they should seek as relief a more definite
statement, rather than dismissal, because any dismissal would be with leave to amend.
(Doc. 15 at 3). But the standard for relief under Rule 12(e) is different than that under
Rule 12(b)(6), and dismissal with leave to amend is still dismissal.

the plaintiff filed no responsive brief and the defendants filed no reply.
Accordingly, the motion came ripe without further briefing. (Doc. 21).4
Without citing Rule 12(b)(1) or Rule 8(a)(1),5 the defendants argue the
complaint fails to “assert a legal basis for the federal court’s jurisdiction.” (Doc.
15 at 4). As the Court reads the amended complaint, it alleges that the defendants
have “violated the civil rights” of the plaintiff and his family,6 “[s]pecifically, the
part of the Constitution about innocent until proven guilty.” (Doc. 7 at 5-6). Such
an assertion would at least suggest an effort to invoke federal question jurisdiction
under 28 U.S.C. § 1331. Given the defendants’ failure to address the complaint’s
allegations, the Court is unprepared to accept their ipse dixit that there is a “lack
subject matter jurisdiction.” (Doc. 15 at 4).
To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the
pleading requirements of Rule 8(a)(2),7 which rule provides that “[a] pleading that
states a claim for relief must contain … a short and plain statement of the claim
showing that the pleader is entitled to relief ….” While Rule 8 establishes a
regime of “notice pleading,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
513-14 (2002), it does not eliminate all pleading requirements.

4

For reasons unknown, the defendants’ motion challenges the adequacy of the
original complaint, (Doc. 1), rather than the amended complaint. (Doc. 7). Because the
amended complaint makes only minor tweaks in the original, and since it carries forward
all the problems of the original, the Court concludes that the motion adequately
challenges the amended complaint.
5

The defendants reference only Rules 8(a)(2) and 8(a)(3) in support of this
argument. (Doc. 15 at 5).
6

There is only one named plaintiff, (Doc. 7 at 1), so any violation of the rights of
his family members is not before the Court. Moreover, because the plaintiff is
proceeding without counsel and does not purport to be a lawyer himself, he cannot
represent the interests of anyone else – including his family members – even were they
named as plaintiffs. Devine v. Indian River County School Board, 121 F.3d 576, 581 &
n.17 (11th Cir. 1997); Whitehurst v. Wal-Mart, 306 Fed. Appx. 446, 449 (11th Cir. 2008).
7

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2009).
2

First, the complaint must address all the elements that must be shown in
order to support recovery under one or more causes of action. “At a minimum,
notice pleading requires that a complaint contain inferential allegations from
which we can identify each of the material elements necessary to sustain a
recovery under some viable legal theory.” Wilchombe v. TeeVee Toons, Inc., 555
F.3d 949, 960 (11th Cir. 2009) (emphasis and internal quotes omitted).
Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2).
The rule “requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do” to satisfy that rule. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2009). There must in addition be a
pleading of facts. Though they need not be detailed, “[f]actual allegations must be
enough to raise a right to relief above the speculative level ....” Id. That is, the
complaint must allege “enough facts to state a claim for relief that is plausible on
its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The
plausibility standard … asks for more than a sheer possibility that the defendant
has acted unlawfully,” and “[w]here a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between possibility
and plausibility of entitlement to relief.” Id. (internal quotes omitted). A
complaint lacking “sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face” will not “survive a motion to dismiss.” Id. But
so long as the plausibility standard is met, the complaint “may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotes
omitted).
As the defendants correctly argue, the amended complaint fails this test at
multiple points. First, it does not clearly identify a “viable legal theory.” The
amended complaint invokes the presumption of innocence, which is “a basic
3

component of a fair trial under our system of criminal justice,” Estelle v. Williams,
425 U.S. 501, 503 (1976), but it does not allege or even faintly suggest that the
plaintiff has been subjected to a criminal trial at which this constitutional right was
impinged.
Nor do the amended complaint’s factual allegations coherently, much less
plausibly, suggest the defendants have violated the plaintiff’s right to a
presumption of innocence. It appears the plaintiff believes agents of the
defendants have engaged in a “private, ‘vigilante’ war” on him and his family,
(Doc. 7 at 1), by investigating him, placing him under surveillance (including by
moving spies into the house next to his), fabricating and destroying evidence, and
recruiting state and local officials (and private citizens) as part of the effort. The
amended complaint on its face explicitly concedes that many of its conclusory
allegations are merely “possible,”8 including those alleging the fabrication and
destruction of evidence, and other allegations certainly appear implausible based
on the facts alleged.9
The defendants also object that the complaint violates Rule 8(a)(2)’s “short
and plain statement” requirement because it “incorporate[s] a significant amount
of irrelevant or extraneous information.” (Doc. 15 at 3). The defendants,
however, identify no examples of such excess, and the Court does not detect any
gross defects in this regard (though certainly the pleading is more chatty and less
focused than the ideal).
The defendants next complain that the complaint “does not provide any
specific dates” on which any relevant conduct occurred, thereby preventing the
defendants from determining if any claim is “time-barred.” (Doc. 15 at 6).

8

The amended complaint employs the terms “possible” and “possibly” at least ten
times. (Doc. 7 at 1, 4-5).
9

For example, the plaintiff concludes that his neighbors are spies because they
moved in next door while his house was being built. (Doc. 7 at 3, 7).

4

Similarly, the defendants object that the complaint does not provide information
showing that the plaintiff has exhausted his administrative remedies, “if any.”
(Doc. 15 at 6, 9-10). Expiration of the statute of limitations, and failure to
exhaust, are generally considered to be affirmative defenses.10 The defendants
have cited no authority for the proposition that a plaintiff is obligated in his
complaint to plead facts negating an affirmative defense, and the law appears to be
otherwise. E.g., Jones v. Bock, 549 U.S. 199, 216 (2007) (“We conclude that
failure to exhaust is an affirmative defense under the PLRA, and that inmates are
not required to specially plead or demonstrate exhaustion in their complaints.”).
Better taken is the defendants’ objection that the complaint fails to comply
with Rule 10(b). (Doc. 15 at 8). That rule requires a plaintiff to employ
“numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” The first 3½ pages of the amended complaint contain no
numbered paragraphs, and both they and the subsequent numbered paragraphs are
unmanageably long (up to a full page).
The defendants also criticize the complaint’s failure to place each claim in a
separate count, as contemplated by Rule 10(b). (Doc. 15 at 8). It appears to the
Court that the plaintiff is bringing a single claim (for violation of the presumption
of innocence), in which case multiple counts would be inappropriate. However,
should the plaintiff assert multiple claims, he must separate them into separate
counts in accordance with Rule 10(b).
Finally, the defendants argue the complaint is an impermissible “shotgun
pleading.” (Doc. 15 at 7). They do not, however, explain how the amended
complaint falls within any of the “four rough types” of shotgun pleading

10

E.g., Jones v. Bock, 549 U.S. 199, 212 (2007) (“[T]he usual practice under the
Federal Rules is to regard exhaustion as an affirmative defense.”); Davenport Recycling
Associates v. Commissioner of Internal Revenue, 220 F.3d 1255, 1259 (11th Cir. 2000)
(“The expiration of a statute of limitations is an affirmative defense ….”).

5

recognized by the Eleventh Circuit.11 Simply saying that “no specific acts are
identified with clarity, nor are any legitimate causes of action alleged,” (id.), does
not implicate the doctrine.
It is plain from the foregoing discussion that the amended complaint fails to
satisfy Rule 8(a)(2) and is therefore subject to dismissal under Rule 12(b)(6) for
failure to state a claim. However, and as the defendants recognize, (Doc. 15 at 9),
before an action is dismissed with prejudice for failure to state a claim, a pro se
plaintiff must be given an opportunity to amend the complaint if a more carefully
drafted version might state a claim. E.g., Lee v. Alachua County, 461 Fed. Appx.
859, 860 (11th Cir. 2012); Schmitt v. United States Office of Personnel
Management, 403 Fed. Appx. 460, 462 (11th Cir. 2010).12
As the plaintiff has previously been warned:
All litigants, including those representing themselves, “shall be
bound by and comply with all local rules of this Court, and the Federal
Rules of Civil … Procedure, unless otherwise excused from operation
of the rules by court order.” Local Rule 83.9(b). Moreover, “both the
Supreme Court and [the Eleventh Circuit] have concluded that a [litigant’s]
pro se status in civil litigation generally will not excuse mistakes he makes
regarding procedural rules.” Nelson v. Barden, 145 Fed. Appx. 303, 311
n.10 (11th Cir. 2005); accord Albra v. Advan, Inc., 490 F.3d 826, 829 (11th
Cir. 2007) (“[W]e … have required [pro se litigants] to conform to procedural
rules.”) (internal quotes omitted); cf. United States v. Hung Thien Ly, 646
F.3d 1307, 1315 (11th Cir. 2011) (“[I]gnorance is no hidden virtue; a pro se
[criminal] defendant must follow the rules of procedure ….”). The plaintiff
is cautioned to familiarize himself with, and to follow, the applicable rules.

(Doc. 5 at 1 n.1).13 The plaintiff ignores this warning at his peril.

11

See Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1321-22
(11 Cir. 2015).
th

12

Because the Court cannot tell whether the statute of limitations would bar the
plaintiff from filing another lawsuit should this one be dismissed without prejudice, it
cannot tell whether such a dismissal would effectively be with prejudice. Because the
defendants assume it would be, the Court does so as well.
13

Former Local Rule 83.9(b) is now found at General Local Rule 83.5(a).
6

Moreover, “even in the case of pro se litigants … a court [does not have]
license to serve as de facto counsel for a party, [citation omitted], or to rewrite an
otherwise deficient pleading to sustain an action ….” GJR Investments, Inc. v.
County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). The plaintiff must
adequately comply with pleading rules or face dismissal of this action without
discovery or consideration of the merits.
The pleading requirements in federal court are neither onerous nor hidden,
and the rules and cases cited and explained herein contain most of them. The
plaintiff would be well served to review these rules and cases, as well as actual
complaints in other cases, before attempting to file a second amended complaint.
He will discover that successful plaintiffs present crisp complaints that: expressly
identify the basis or bases of the Court’s subject matter jurisdiction; clearly allege
– in brief, focused, numbered paragraphs – necessary facts as to what each
defendant or defendant’s representative did; clearly identify each legal claim
presented, each under a separate heading called a “Count”; clearly state under each
count which defendant(s) is (are) sued under such count; clearly list under each
count which specific numbered factual paragraphs apply to that count; clearly
explain under each count how the legal right implicated by that count was violated
(including how each element of the cause of action is alleged); and clearly
articulate the relief requested – all with statements of relevant facts rendering the
claims plausible but without excessive tangential or irrelevant material. Other
attributes of proper pleading exist, but adherence to these would vastly improve
the plaintiff’s chances of withstanding a motion to dismiss the second amended
complaint.
For the reasons set forth above, the defendants’ motion for more definite
statement, construed as a motion to dismiss, is granted. The amended complaint
is dismissed, without prejudice to the plaintiff’s ability to file and serve a second
amended complaint on or before March 10, 2016, failing which the dismissal of
this action will become final without further order of Court.
7

DONE and ORDERED this 18th day of February, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

8