Schmitt v. Craig et al

Filing 143

ORDER granting 115 Motion to Dismiss; granting 116 Motion to Dismiss; granting 119 Motion to Dismiss; granting 122 Motion to Dismiss; granting 123 Motion to Dismiss; granting 125 Motion to Dismiss; denying as moot 128 Motion for Entry of Default; granting 133 Motion to Dismiss; denying as moot 135 Motion to Set Aside Default; denying 137 Motion for Sanctions; granting 138 Motion to Dismiss; dismissing claims against Defendant Bellotte; and directing the Clerk to terminate all deadlines and motions, and close this case. Signed by Judge J. Randal Hall on 06/13/2012. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

MARK HERBERT SCHMITT,
Plaintiff,
V.
SUSAN M. REIMER, et al.,
Defendants.

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CV 110-102

ORDER

On August 2, 2010, Plaintiff Mark Herbert Schmitt filed a
complaint against sixteen named defendants based upon
allegations arising out of his prior state court divorce
proceedings. (Doc. no. 1.) Defendants subsequently filed
motions to dismiss. On August 17, 2011, Plaintiff's claims for
injunctive relief were dismissed with prejudice, and the
remaining claims were dismissed without prejudice.'

(Doc. no.

88.) The Court allowed Plaintiff fourteen days to file an
Amended Complaint to cure the deficiencies identified in the
Court's August 17, 2011 Order. 2 On September 28, 2011, Plaintiff

1

On November 15, 2011, the claims against Defendant Kilpatrick were
dismissed without prejudice for failure to timely effect service, and
Defendant Kilpatrick was dismissed from the case. (Doc. no. 100.)
2
In granting Plaintiff leave to amend his complaint, the Court stated
that "all claims must be supported by specific facts upon which the Court can
make a determination as to whether a plausible claim has been sufficiently
(Doc. no. 88 at 25.) The Court also warned that "[r]esubmission
alleged."

filed his Amended Complaint entitled "Complaint for RICO
Conspiracy and Civil Rights Violations." (Doc. no. 97.)
Presently pending before the Court are motions to dismiss
the Amended Complaint filed by fourteen of the fifteen remaining
Defendant

S3

(doc. nos. 115, 116, 119, 122, 123, 125, 133, 138),

and Defendant Reimer's Renewed Motion for Sanctions (doc. no.
137).
motions.

plaintiff has not responded to any of the pending
For the reasons set forth below, the motions to

dismiss are GRANTED, and the motion for sanctions is DENIED

.

4

of an identical or substantially similar amended complaint will result in
prompt dismissal and monetary sanctions." (Id.)
Defendant Staulcup's motion to dismiss was filed a month after he filed
an Answer to the Amended Complaint. (Doc. no. 120.) Once the answer was
filed, the pleadings were closed, and a Rule 12(b) (6) motion to dismiss,
which did not go to the jurisdiction of the Court, was inappropriate.
Hallberg v. Pasco Cnty., No. 95-1354, 1996 WL 153673, at *2 (M.D. Fla. 1996).
However, when a defendant files a Rule 12(b) (6) motion after filing an
answer, the motion can be treated as a Rule 12 (C) motion for judgment on the
pleadings so long as the motion is filed early enough not to delay trial.
Id.; Filo Am., Inc. v. Obhoss Trading Co., 321 F. Supp. 2d 1266, 1267-68
(M.D. Ala. 2004). Because the standards for dismissal under Rule 12(c) and
Rule 12(b) (6) are essentially the same, Defendant Staulcup's motion should be
granted for the reasons set forth in this Order regardless of whether the
motion is construed as a 12(b) (6) or 12(c) motion. See yolk v. Zeanah, No.
6:08-cv-94, 2012 WL 318261, at *1 (S.D. Ga. Jan. 25, 2010) ("The Court
therefore, applies the same standards to the Rule 12(c) motion as if it were
brought directly under Rule 12(b)(6)."); Roma Outdoor Creations, Inc. v.
City of Cumming, 558 F. Supp. 2d 1283, 1284 (N.D. Ga. 2008) ("A motion for
judgment on the pleadings is subject to the same standard as is a Rule
12(b) (6) motion to dismiss.") (internal quotation omitted).
(Doc.
On March 6, 2012, p laintiff filed a Motion for Entry of Default.
no. 128.) plaintiff sought, pursuant to Federal Rule of Civil Procedure
55(a), an entry of default against all Defendants because Defendants Myers,
Barbara Smith, Beth Smith, Glover, Bradford, and Schmitt failed to respond to
the Amended Complaint. On that same day, the Court issued a show cause order
providing those Defendants fourteen days to respond to the Amended Complaint.
(Doc. no. 130.) The Court also warned that failure to either show cause or
respond would result in an entry of default. (Id.) On March 13, 2012,
Defendants Myers, Barbara Smith, Beth Smith, Glover, Bradford, and Schmitt
filed an answer to the amended complaint and a motion to dismiss. (Doc. nos.
132 & 133.) As a result, p laintiff's Motion for Entry of Default (doc. no.

2

I. BACKGROUND
A. Overview

Plaintiff brings this pro se action under the Racketeer
Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §
1961 et seq., as well as 42 U.S.C. § 1983 and 1985, alleging
violations of his rights under the First, Fourth, Fifth, Eighth,
Ninth, and Fourteenth Amendments to the United States
Constitution. Plaintiff is suing nearly every individual who
played a role in his state court divorce proceedings including:
Judge Daniel J. Craig, the presiding judge over Plaintiff's
divorce proceeding; Linda Schmitt, Plaintiff's ex-wife; John
Garcia and Beth Smith, Plaintiff's divorce attorneys; Barbara
Ann Smith, Beth Smith's law partner; Edward Coleman, Linda
Schmitt's divorce attorney and his law partner Carl Surrett;
Amanda Bellotti, the attorney who presided over the mediation
between Plaintiff and his wife; Susan Reimer, the closing
attorney on Plaintiff's marital home; Dr. Joseph Frey, the
couple's custody evaluator; William Sams, an attorney who
appears to have consulted with Plaintiff and his ex-wife; Gene
Staulcup, a process server and/or private investigator; Kenneth
Glover and Joseph Bradford, two alleged lovers of Linda Schmitt;
and Susan Meyers, Linda Schmitt's sister.

128) and Defendants Myers, Barbara Smith, Beth Smith, Glover, Bradford, and
Schmitt's Motion to Set Aside Default (doc. no. 135) are DENIED AS MOOT.
3

Plaintiff alleges that Defendants are members of a
conspiracy he calls the "association of fact enterprise." (Am.
Compl. ¶ 21.) The "association of fact enterprise," according
to Plaintiff, "promotes the feminist agenda" by, among other
things, granting custody to women in divorce proceedings. (Id.
¶ 24.) Plaintiff claims that the Superior Court judges in
Columbia and Richmond Counties are the directors of the
"association of fact enterprise;" Defendants Beth Smith, Barbara
Smith, Sams, Garcia, and Coleman are its officers; and
Defendants Schmitt, Myers, Glover, Bradford, Frey, and Staulcup
are its hired employees. (Id. ¶ 21.) Plaintiff alleges that
each Defendant engaged in individual acts of misconduct, and
this misconduct, taken together, forms the predicate acts in a
pattern of racketeering.

(Id. ¶ 24.) The following statement

of claims forms the basis of Plaintiff's conspiracy theory.5
Plaintiff believes that Judge Craig and the divorce
attorneys involved in Plaintiff's divorce case conspired against
him in an effort to hinder his divorce and deprive him of his
fundamental rights. Plaintiff and his now former spouse, Linda
Schmitt, appeared before Judge Craig of the Superior Court of
Richmond County to initiate divorce proceedings. The
proceedings commenced on June 5, 2009, and concluded on October
15, 2010, with the entry of a final divorce decree. Throughout
Because Plaintiff's .mended Complaint contains numerous claims
against each individual Defendant, the following statement of claims is not
intended to be exhaustive.

4

the proceedings, Garcia, and subsequently Beth Smith, appeared
on behalf of Plaintiff, and Coleman appeared on behalf of Linda
Schmitt. According to Plaintiff, Judge Craig and Coleman
committed fraud via the divorce decree because they authorized
the transfer of $322,000.00 from Plaintiff's retirement account
to Linda Schmitt knowing that this "unusually large amount"
violated state and federal law. (Id. ¶ 1.) Plaintiff further
alleges that Beth Smith, the attorney retained after Plaintiff
fired Garcia, failed to reaffirm that Plaintiff wanted a jury
trial in his divorce proceedings.

(Id. ¶ 12.) He claims that

Beth Smith, and her partner Barbara Smith, defrauded him by
failing to refund $7,000 of his $8,400 retainer. (Id.) These
acts, according to the Amended Complaint, form part of the
conspiracy because the "financial gains go directly and
indirectly to the woman, the lengthy divorce proceedings garner
more court costs for the Courts, the attorneys get a lucrative
and steady flow of income, [and] the Bar Associations make more
donations to Judges . . . ." (Id. ¶ 24.)
Aside from raising claims against his divorce attorneys and
the presiding judge, Plaintiff alleges that a number of other
individuals performed acts in furtherance of the conspiracy.
For example, Plaintiff claims that Dr. Frey, his custody
evaluator, committed perjury "when he stated that he was never
appointed to do the custody evaluation" in Plaintiff's divorce
5

case. (Id. ¶ 6.) Bellotti allegedly conspired against
Plaintiff during mediation when she "intervened and stated [that
Plaintiff] wouldn't get very far with [his request for full
custody] here in the South." (Id. ¶ 7.) According to
Plaintiff, Bellotti also presented a "biased and stereotypical
view and supported Defendant Schmitt in trying to accomplish the
very same thing."

(Id.)

Reiemer allegedly provided legal

advice to Linda Schmitt and Myers regarding ways to conceal
assets from Plaintiff during the divorce.

(Id. ¶ 19.)

Plaintiff hired Staulcup to conduct surveillance on the
relationship between Linda Schmitt and Glover. (Id. ¶ 16.)
According to Plaintiff, at the time Staulcup was hired, he was
already working for Linda Schmitt,, and therefore he knowingly
entered into a conflict of interest. (Id.)
Plaintiff's Amended Complaint also alleges that Linda
Schmitt along with her friends and family conspired to swindle
him out of his financial assets. Specifically, Plaintiff
alleges that Linda Schmitt stole $30,000.00 from him and used
this money to fund her business, Big Hit Gift Baskets, LLC.
(Id. ¶ 15.)

He alleges that Linda Schmitt's lover, Glover, and

her sister, Myers, conspired with Linda Schmitt to conceal
marital assets in Big Hit Gift Baskets, LLC. (Id.) Plaintiff
alleges that Glover "enjoyed the benefit of food and shelter" at
Plaintiff's expense, assisted Linda Schmitt in "concealing the
6

adulterous affair," and "benefited from the $30,000 that [Linda]
Schmitt stole [from Plaintiff]." (Id. ¶ 14.) Bradford, another
alleged adulterous lover of Linda Schmitt, is claimed to have
threatened Plaintiff over the phone regarding the divorce
proceedings. According to Plaintiff, this conduct amounted to
retaliation.

(Id. ¶ 9.)

Based upon the aforementioned claims, Plaintiff seeks
$5,000,000.00 in damages from each Defendant, as well as an
award of attorney's fees and declaratory relief "as this Court
deems appropriate and just." (Id. 1 30.)

II • MOTION TO DISMISS STANDARD
In considering a motion to dismiss under Rule 12(b) (6), the
court tests the legal sufficiency of the complaint, not whether
the plaintiff will ultimately prevail on the merits. Scheur v.
Rhodes, 416 U.S. 232, 236 (1974). The court must accept as true
all facts alleged in the complaint and construe all reasonable
inferences in the light most favorable to the plaintiff. See
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).
The court, however, need not accept the complaint's legal
conclusions as true, only its well-pled facts.

Ashcroft v.

Iqbal, 556 U.S. 662, 677-79 (2009)
A complaint also must "contain sufficient factual matter,
accepted as true, 'to state a claim to relief that is plausible
7

on its face.'" Id. at 678 (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). The plaintiff is required to plead
"factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. While there is no probability requirement at the
pleading stage, "something beyond . . . mere possibility
must be alleged."

Twombly, 550 U.S. at 557 (citing Durma

Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).

III. DISCUSSION
A.

Richmond County Superior Court Judge Daniel Craig's
Motion to Dismiss6

Given the unique issues raised as a result of his position
as a superior court judge, the frequency with which he appears
in the Amended Complaint, and the potential effect a ruling on
his motion to dismiss may have on the remaining claims, the
Court's analysis will begin with Plaintiff's claims against
Judge Craig. Judge Craig contends that he is entitled to
absolute judicial immunity as to those claims that arise
entirely from his conduct as a judicial officer during

6

On August 2, 2010, Plaintiff filed an almost identical suit against
Defendant Craig in this Court. (No. 1:10-CV-103). That suit was based on
Plaintiff's claims that Judge Craig "had him arrested" and incarcerated two
times, ordered a search of two residential properties, entered a temporary
restraining order and a final divorce decree which restricted his parental
rights, and awarded a percentage of Plaintiff's retirement account to his
wife as part of a final divorce decree. As in the present case, the Court
allowed Plaintiff the opportunity to amend his Complaint to cure certain
After filing an amended Complaint, the Court dismissed the
deficiencies.
case because the claims were barred by Judge Craig's judicial immunity.

8

Plaintiff's state court divorce proceedings. The Court agrees
and finds that all such claims should be dismissed.
"[l]t is a general principle of the highest importance to
the proper administration of justice that a judicial officer, in
exercising the authority vested in him, shall be free to act
upon his own convictions, without apprehension of personal
consequences to himself." Mireles v. Waco, 502 U.S. 9, 9 (1991)
(citation omitted). This doctrine, known as the doctrine of
judicial immunity, "entitles a judge to absolute immunity from
damages for actions taken in a judicial capacity unless the
action was taken in the 'clear absence of all jurisdiction.'"
Wilson V. Bush, 196 Fed. Appx. 796, 798 (11th Cir. 2006)
(quoting Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000))
In order to overcome judicial immunity, a plaintiff must
show that the judge's actions were either not judicial in nature
or were performed in the complete absence of jurisdiction.
Mireles, 502 U.S. at 11. In determining whether an action is
within a judge's judicial capacity, courts look to "the nature
of the act itself, i.e., whether it is a function normally
performed by a judge, and to the expectations of the parties,
i.e., whether they dealt with the judge in his judicial
capacity." Id. at 12. Notably, "[a] judge does not act in the
'clear absence of all jurisdiction' when he acts erroneously,
maliciously, or in excess of his authority, but rather only when
9

he acts without subject-matter jurisdiction." Wilson, 196 Fed.
Appx. at 799.
Plaintiff asserts that the actions of Judge Craig "were not
judicial in nature" and "were performed in the complete absence
of jurisdiction. 1,7 (Am Compl., Sec. V ¶ 1.) However, after a
careful review of the Amended Complaint, it appears that all of
Plaintiff's claims against Judge Craig arise exclusively from

judicial

actions taken by Craig during the course of Plaintiff's

divorce proceedings. For instance, Plaintiff contends that
Craig's issuance of a Qualified Domestic Relations Order
authorizing the transfer of $322,000.00 from Plaintiff's
retirement account to his wife as part of a division of marital
property violated Judge Craig's oath of office. (Id. ¶ 1.)
Plaintiff also alleges that Judge Craig failed to consider
certain relevant circumstances when determining how much
temporary alimony and child support Plaintiff should pay. (Id.
¶ 5.)

Plaintiff complains that Judge Craig failed to ensure

that orders issued in the divorce proceedings were reduced to

Although Plaintiff's first complaint did not specify whether Plaintiff
was bringing suit against Judge Craig in his official or individual capacity,
it is clear from Plaintiff's Amended Complaint that Defendant is being sued
in his individual capacity. (See Am. Compi., Sec. V ¶ 1 ("Plaintiff brings
suit pursuant . . . to Title 42 U.S. Code § 1983 and § 1985 for violations of
certain protections guaranteed to him by the. . . Federal Constitution by the
Defendant Craig under Color of Law operating outside his capacity as a Judge
in Superior Court of Richmond/Columbia County. . . .") (emphasis added)).
However, even if Plaintiff were suing Defendant Craig in his official
capacity, his claims for damages would be barred because Defendant is a
"state official." See Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir. 1996)
(finding award of damages against judge in his official capacity barred by
sovereign immunity).

10

writing and that Judge Craig's statement in extradition
paperwork regarding Plaintiff's arrest amounted to perjury.
(Id. ¶ 10, 18.) Finally, Plaintiff alleges that Judge Craig
committed wire fraud when he sent a letter pertaining to a
"monetary judgment against [Plaintiff]. ." (Id. ¶ 8.) The
very nature of these allegations demonstrates that Judge Craig's
involvement in the alleged "conspiracy" was judicial in nature.
Moreover, Plaintiff has failed to allege any facts
indicating that Judge Craig's actions were taken in the "clear
absence of all jurisdiction." There is no question that
Defendant Craig is a superior court judge and has jurisdiction
to preside over divorce proceedings, and, accordingly, to make
findings and issue orders in connection with such proceedings.
See O.C.G.A. § 15-6-8(1) (stating that "[t]he superior courts
have authority [t]o exercise original, exclusive, or concurrent
jurisdiction, as the case may be, of all causes, both civil and
criminal, granted to them by the Constitution and laws); Ga.
Const. Art. VI, Sec. IV, Par. I (stating that superior courts
have jurisdiction in all cases and exclusive jurisdiction in
divorce cases). Thus, it is clear that Judge Craig had subject
matter jurisdiction over Plaintiff's divorce proceedings.
In sum, Plaintiff's allegations fail to overcome Judge
Craig's judicial immunity. 8 Plaintiff's allegations are based
8
Moreover, Plaintiff cannot circumvent judicial immunity through a
RICO claim by characterizing a judge's judicial actions as general criminal

11

solely on Judge Craig's judicial conduct, and Plaintiff's bald
allegation that Judge Craig's actions were taken in the absence
of subject matter jurisdiction is unsupported by any facts or
law contained in the Amended Complaint. Because judicial
immunity shields Judge Craig from suits for damages based upon
his judicial actions, Plaintiff's claims for damages against
Judge Craig must be dismissed.
B. Remaining Defendants' Motions to Dismiss
Plaintiff's Amended Complaint also raises claims under the
RICO Act, as well as several civil rights statutes including 42
U.S.C. § 1983, which prohibits the deprivation of constitutional
rights by a state actor, and 42 U.S.C. § 1985, which prohibits
conspiracies to deprive a person of the equal protection of the
laws. These various claims will be addressed in turn below.
1. Federal RICO Claims
i. 18 U.S.C. 5 1962(c)

Plaintiff alleges that Defendants violated 18 U.S.C. §
1962 (c) . Section 1962 (c) of the RICO Act requires that a
plaintiff prove that a defendant participated in the conduct of
an enterprise's affairs "through a pattern of racketeering
activity."

18 U.S.C. § 1962(c).

Thus, to establish a federal

wrongdoing. See Blackburn v. Calhoun, No. 2:07-cv-166, 2008 WL 850191, at
*21 (N.D. Ala. Mar. 4, 2008) ("[Judicial] immunity applies where the RICOchallenged acts are 'judicial in nature.' . . . That means that merely
alleging criminal wrongdoing is not enough."); see also Hollis-Arrington v.
PHH Mortg. Corp., 205 Fed. Appx. 48, 51 (3d Cir. 2006) (finding judicial
immunity barred homeowners' RICO case against judicial defendants because
allegations all involved acts performed in a judicial capacity).

12

civil RICO violation, a plaintiff must show "(1) conduct (2) of
an enterprise (3) through a pattern (4) of racketeering
activity." Abele v. Tolbert, 172 Fed. Appx. 967, 969 (11th Cir.
2006) (citation omitted)
In order to make the requisite showing of a "pattern of
racketeering activity," Plaintiff must demonstrate that
Defendants performed at least two related acts listed in 18
U.S.C. § 1961(1), which may include "any act or threat involving
murder, kidnapping, gambling, arson, robbery, bribery, [and]
extortion," among others. Therefore, to survive a motion to
dismiss, Plaintiff must allege facts sufficient to support each
of the statutory elements for at least two of the pleaded
predicate acts.

See Republic of Panama v. BCCI Holdings, 119

F.3d 935, 949 (11th Cir. 1997)
Although Plaintiff has identified some predicate acts by
name, he has not set forth any facts showing they are related,
and, more importantly, the allegations surrounding the predicate
acts identified are far too conclusory to survive a motion to
dismiss. See Andela v. Univ. of Miami, 692 F. Supp. 2d 1356,
1377 (S.D. Fla. 2010) ("To survive a motion to dismiss, a
plaintiff must allege facts sufficient to support each of the
statutory elements for at least two of the pleaded predicate
acts." (quoting Rogers v. Nacchio, 241 Fed. Appx. 602, 607 (11th
Cir. 2007))); see also Levitan v. Patti, No. 3:09-cv-321, 2011
13

WL 1299947, at *6 (N.D. Fla. Feb. 8, 2011) ("The Rules require a
heightened pleading standard for claims involving RICO and civil
rights violations based on fraud."). For instance, although
Plaintiff alleges that various Defendants committed mail fraud,
wire fraud, robbery, and retaliation, he does not provide the
Court with facts supporting the statutory elements of these
acts. 9 As a result, the claims brought pursuant to § 1962(c)
must be dismissed.
ii. 18 U.S.C. 5 1962(d)

Plaintiff's Amended Complaint also asserts a claim under 18
U.S.C. § 1962(d). Section 1962(d) of the RICO Act makes it
illegal for anyone to conspire to violate one of the substantive
provisions of RICO, including § 1962(c). 18 U.S.C. § 1962(d).
"A plaintiff can establish a RICO conspiracy claim in one of two
ways: (1) by showing that the defendant agreed to the overall
objective of the conspiracy; or (2) by showing that the
defendant agreed to commit two predicate acts." Am. Dental
Ass'n v. Cigna Corp., 605 F.3d 1283, 1293 (11th Cir. 2011)
(internal citation and quotation omitted).
Although Plaintiff alleges that all Defendants conspired
against him, his Amended Complaint does not contain specific
allegations that Defendants agreed to commit illegal acts or
Plaintiff also alleges that Defendants violated a number of statutes
(Am. compi. ¶[ 4, 6, 7, 11, 13,
including 18 U.S.C. H 241, 242, 1001, 1621.
14, 15, 18, 19, 20.) However, violations of these provisions are not
included within the definition of "racketeering activity" and thus cannot be
predicate acts that support a RICO violation.
14

agreed to engage in racketeering. Because Plaintiff's
allegations were insufficient to support a claim under §
1962(c), they are also insufficient under § 1962(d) to support a
claim that Defendants conspired to violate § 1962(c).

See

("[W]here a plaintiff fails to

Rogers, 241 Fed. Appx. at 609

state a RICO claim and the conspiracy count does not contain
additional allegations,
fails.").

the conspiracy claim necessarily

As such, the claims under § 1962(d) should be

dismissed.
2. Section 1983 Conspiracy
Aside from a RICO conspiracy, Plaintiff alleges that
Defendants conspired against him in violation of 42 U.S.C. §
1983. (Am. Compl. V.) To succeed on a 42 U.S.C. § 1983 claim,
a party must establish that the offending conduct was committed
by a person acting under color of state law and that the conduct
deprived him of rights secured by the Constitution or laws of
the United States. Fuilman v. Graddick, 739 F.2d 553, 561 (11th
Cir. 1984). A plaintiff claiming a conspiracy under § 1983 must
make particularized allegations that a conspiracy exists. See
Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir. 1984)
Following Iqbal, "complaints in § 1983 cases must now contain
either direct or inferential allegations respecting all the
material elements necessary to sustain a recovery under some
viable legal theory." Randall v. Scott, 610 F.3d 701, 708 n. 2
15

(11th Cir. 2010) (quotation omitted); see also Aibra v. City of
Fort Lauderdale, 232 Fed. Appx. 885, 891 (11th Cir. 2007)
(finding plaintiff did not sufficiently state § 1983 conspiracy
claim because plaintiff only made "vague allegations that a
conspiracy existed" and failed to allege that defendants agreed
to violate his rights); Eubank v. Leslie, 210 Fed. Appx. 837,
842 (11th Cir. 2006) (granting motion to dismiss as to § 1983
conspiracy claim because in complaint plaintiff only
acknowledged the existence of a conspiracy and otherwise failed
to allege how defendants conspired among themselves to violate
his rights)
Plaintiff's allegations "merely string together" incidents
that occurred during his marriage and subsequent divorce
proceedings "without showing contacts between [Defendants] that
could prove private and alleged state actors had 'reached an
understanding' to violate [Plaintiff's] rights." See Harvey v.
Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992) . Although
Plaintiff repeatedly alleges that the parties "conspired" to
perform various acts, 10 he has provided no specific facts
demonstrating an underlying agreement. These vague allegations

10

For the most part, Plaintiff's conclusory allegations of a
"conspiracy" are asserted in conjunction with various judicial actions taken
by Judge Craig during the divorce proceedings. Importantly, the Supreme
Court has held "merely resorting to the courts and being on the winning side
of a lawsuit does not make a party a co-conspirator or a joint actor with [a]
judge." Dennis v. Sparks, 449 U.S. 24, 28 (1980).

16

of conspiracy, without supporting facts, are not enough to avoid
dismissal.
Additionally, even if Plaintiff did provide sufficient
facts, his § 1983 would still fail as he cannot establish that
he was deprived a federal right by a person acting under color
of

state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303

(11th Cir. 2001) (emphasis added). Plaintiff has not and cannot
allege that any of the Defendants, other than Judge Craig, are
state actors. 1 ' Thus, to the extent that Plaintiff alleges
Defendants conspired to violate his constitutional rights, these
claims should be dismissed.
3.

Section 1985 Conspira

Plaintiff also alleges that Defendants conspired against
him in violation of 42 U.S.C. § 1985. To establish a § 1985
conspiracy claim, a plaintiff must show an agreement between two
or more persons to deprive him of his civil rights. 42 U.S.C. §
1985; Dickerson v. Alachua Cnty. Comm'n, 200 F.3d 761, 767 (11th
Cir. 2000) . Specifically, a plaintiff must show: "(1) a
conspiracy, (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal
"

Defendants are private individuals, and Plaintiff has not alleged
sufficient facts to satisfy any of the three tests whereby their actions as
private actors would be considered state action. They do not partake in
traditional functions of the state sufficient to satisfy the public function
test. See Focus on the Family v. Pinellas Suncoast Transit Auth, 344 F.3d
1263, 1277 (11th dr. 2003) . Further, their alleged actions were not coerced
or encouraged by the government so as to satisfy the state-compulsion test.
Id. Finally, the government was not in a position of interdependence with
any of the Defendants to satisfy the nexus joint-action test. Id.

17

protection of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the conspiracy,
(4) whereby a person is either injured in his person or property
or deprived of any right or privilege of a citizen of the United
States." Childree v. UAP/GA AG Chem, Inc., 92 F.3d 1140, 114647 (11th Cir. 1996) (citing Lucero v. Operation Rescue, 954 F.2d
624, 627 (11th Cir. 1992)); see also Park v. Atlanta, 120 F. 3d
1157, 1161 (11th Cir. 1997) . To state a claim, a plaintiff's
complaint must inform the defendant of the nature of the alleged
conspiracy, beyond a mere allegation that a conspiracy existed.
Fullman, 739 F.2d at 557 (citations omitted). "A complaint may
justifiably be dismissed because of the conclusory, vague, and
general nature of the allegations of conspiracy." Id. (citation
omitted)
Apart from listing 42 U.S.C. § 1985 as a basis for
jurisdiction, Plaintiff only alleges that Defendants, as members
of the "association of fact enterprise," conspired to deprive
him of his civil rights. However, these generalized allegations
of a conspiracy are not sufficient to inform Defendants of the
nature of the alleged conspiracy. See Id. at 557. Even
accepting the allegations as true and viewing the allegations in
the light most favorable to Plaintiff, Plaintiff has not pled
facts sufficient to support a claim for a violation of § 1985.

18

Additionally, as with his § 1983 claims, Plaintiff cannot
establish that Defendants are state actors, a necessary element
of his § 1985 claim. See Terry Props., Inc. v. Standard Oil
Co., 799 F.2d 1523, 1533-34 (11th Cir. 1986) (private actors may
be liable for infringement of 14th Amendment rights only through
conspiracy with state actors in violation of 42 U.S.C. §
1985(3)). Moreover, Plaintiff has not alleged that Defendants
engaged in a conspiracy that was aimed at one of the few serious
rights that are constitutionally protected against private
impairment.

Jimenez v. Wellstar Health Sys., 596 F.3d 1304,

1312 (11th Cir. 2010) (emphasis added). The only rights that
the Supreme Court has stated are enforceable against private
conspirators under § 1985 are the rights of intrastate travel
and involuntary servitude, rights which are not implicated under
the facts of this case. Id. Plaintiff's conclusory allegations
of conspiracy are therefore insufficient to withstand a motion
to dismiss.
4.

42 U.S.C. § 1986

Construing the Amended Complaint liberally, it appears that
Plaintiff also alleges a violation of 42 U.S.C. § 1986. (Am.
Compi. ¶ 3 ("Defendant Craig, Defendant Coleman, and Defendant
Schmitt all had the power to either prevent, or try to prevent
the commission of such a wrong is negligent under 42 U.S.C.
1986.")) However, § 1986 conspiracy claims are "derivative of §
19

1985 violations." Park, 120 F.3d at 1160. Because Plaintiff's
Amended Complaint fails to state a § 1985 claim, Plaintiff's §
1986 claim necessarily fails. See id. (noting a § 1986 claim
"requires the existence of a § 1985 conspiracy")
5.

18 U.S.C. H 241 and 242 Claims

Plaintiff alleges that several Defendants violated 18
U.S.C. H 241 and 242. Under 18 U.S.C. § 241, individuals who
conspire to "injure, oppress, threaten, or intimidate" another
person's "free exercise or enjoyment of any right or privilege
secured to him by the Constitution" shall be fined, or
imprisoned, or both. 18 U.S.C. § 241. In addition, under 18
U.S.C. § 242, any individual, who, while acting under color of
any law, willfully deprives a person of his constitutional
rights based upon that person's race shall be fined, or
imprisoned, or both.

18 U.S.C. § 242.

However, these two

provisions apply in the criminal forum only and therefore do not
create a private right of action in this case. See In re
Estelle, 516 F.2d 480, 486 (5th Cir. 1975)12 (finding § 1983
"provides for private relief in civil actions from the
deprivation of rights secured by the Constitution and its laws,"
whereas H 241 and 242 "provide for criminal penalties for the
deprivation of such rights."); see also Lewis v. Brautigam, 227
F.2d 124, 128 (5th Cir. 1955) (characterizing 18 U.S.C. § 242 as
12

See Bonner v. city of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.
1981) (holding Fifth Circuit decisions made on or before September 30, 1981,
are binding precedent in Eleventh Circuit).

20

"the criminal counterpart of § 1983"); Cohen v. Carmel, No. 1022244, 2010 WL 2991558, at *1 (S.D. Fla. 2010) ("The Plaintiff's
claims arising out of 18 U.S.C. § 241 and 242 must be dismissed
because there is no private cause of acti[on] arising from these
criminal statutes."). As a result, Plaintiff's § 241 and 242
claims are dismissed.
6.

18 U.S.C. § 1621 Claim Against Defendant Frey

In the Amended Complaint, Plaintiff asserts a perjury claim
against Defendant Frey pursuant to 18 U.S.C. § 1621 for Frey's
alleged statement that he was never appointed to perform a
custody evaluation. (.Am. Compl. ¶ 6.) However like H 241 and
242, § 1621 is a criminal provision and thus cannot form the
basis of a civil cause of action. See U.S. v. Dunnigan, 507
U.S. 87, 94 (1993) ("In determining what constitutes perjury, we
rely upon the definition that has gained general acceptance and
common understanding under the federal criminal perjury statute,
18 U.S.C. § 1621."); Davis v. Shinseki, No. 3:09-CV-382364, 2011
WL 382364, at *7 n. 10 (M.D. Ala. 2011)

("'[A]s criminal

statutes, [18 U.S.C. § 1621, 1512] do not convey a private
right of action' nor do they authorize an individual to initiate
criminal proceedings."). Therefore, this claim is dismissed.

21

C. Motion for Sanctions
In conjunction with her motion to dismiss, Defendant Reimer
filed a renewed motion for sanctions. (Doc. no. l37.)' She
contends that, like the original Complaint, the Amended
Complaint has no evidentiary support and was filed for improper
purposes and in bad faith.

14

"Sanctions pursuant to Fed. R. Civ. P. 11 may be imposed
against an attorney or a party who files a pleading that (1) has
no reasonable legal basis; (2) has no reasonable factual basis;
or (3) is filed for an improper purpose." Harris v. Heinrich,
919 F.2d 1515, 1516 (11th Cir. 1990). Rule il's purpose is to
"discourage dilatory or abusive tactics and help to streamline
the litigation process by lessening frivolous claims or
defendants." Id. (internal citation and quotation omitted).
Although a plaintiff's pro se status does not prevent the Court
from awarding sanctions, a court must consider it and must make
a "case-by-case determination of whether a pro se plaintiff's
actions in bringing a complaint were objectively unreasonable."
Id. at 1517.

In determining "objective reasonableness," the

13

In the Court's August 17, 2011 Order, Defendant Reimer's first
motion for sanctions was denied in light of Plaintiff's pro se status. (Doc.
no- 88 at 25-27). The Court found it prudent to first provide Plaintiff with
notice of his Complaint's deficiencies and allow him an opportunity to amend
the Complaint. The Court, however, warned Plaintiff of the requirements of
Rule 11 and that failure to draft an amended complaint in accordance with
those rules may result in monetary sanctions.
14

In accordance with Rule 11(c) (2), Defendant Reimer served the motion
for sanctions on Plaintiff and allowed him twenty-one days after service to
withdraw his ?mended Complaint before she filed the motion with the Court.

22

Eleventh Circuit mandates that district courts inquire as to
"(1) whether the party's claims are objectively frivolous; and
(2) whether the person who signed the pleadings should have been
aware that they were frivolous." Baker v. Alderman, 158 F.3d
516, 524 (11th Cir. 1998)
Although the Court previously advised Plaintiff that any
Amended Complaint must be drafted in accordance with Rule 11,
and that a failure to do so may result in sanctions, the Court
does not believe that sanctions are appropriate in this case.
While a Court's patience with pro se litigants has its limits,
the Court "should show [some] leniency to pro se litigants not
enjoyed by those with the benefit of a legal education." GJR
Invs., Inc. v. Cnt y . of Escambia, Fla., 132 F.3d 1359, 1369
(11th Cir. 1998). As stated before, Plaintiff's allegations are
somewhat incredible and the Amended Complaint, as a whole,
appears to be based upon Plaintiff's desire to retaliate against
all those who he perceives played a role, no matter how minor,
in causing the deterioration of his personal and financial
situation. However, it appears that Plaintiff's Amended
Complaint is a good faith effort to comply with the Court's
August 17, 2011 Order and the Court is unwilling to find that
Plaintiff signed the pleadings knowing they were frivolous. As
a result, Defendant Reimer's motion for sanctions is denied.

23

IV. CONCLUSION
Based upon the foregoing, Defendants' motions to dismiss
(doc. nos. 115, 116, 119, 122, 123, 125, 133, 138) are GRANTED.

15

Defendant Reimer's Renewed Motion for Sanctions (doc. no. 137)
is DENIED. The Clerk is DIRECTED to terminate all deadlines and
motions, and CLOSE this case.
ORDER ENTERED at Augusta, Georgia, this

day of June,

2012.
HONOR?jB2T7RANL HALL
UNIThTATES DISTRICT JUDGE
SOUTHRN DISTRICT OF GEORGIA
15

Although Defendant Belotti did not file a motion to dismiss, the Court
finds it appropriate to dismiss the claims against her. It is within a
district court's reserve of power to sua sponte dismiss a lawsuit for failure
to state a claim upon which relief can be granted, pursuant to Rule 12 (b) (6)
of the Federal Rules of Civil Procedure, "'as long as the procedure employed
is fair.'"
Helton v. Hawkins, 12 F. Supp. 2d 1276, 1283 (M.D. Ala. 1998)
(quoting Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)). Such fair
procedure includes allowing service of the complaint on the defendant, notice
to all parties of the court's intention to dismiss, a statement of the
reasons for the dismissal, and providing the plaintiff with an opportunity to
either amend her complaint or respond to the basis for dismissal. See
Jefferson Fourteenth Assoc. v. Wometco de Puerto Rico, Inc., 695 F.2d 524,
526-27 (11th Cir. 1983); see also Wyatt v. City of Boston, 35 F.3d 13, 14-15
(1st Cir. 1994) ("[A] district court may, in appropriate circumstances, note
the inadequacy of the complaint and, on its own initiative, dismiss the
complaint. Yet a court may not do so without at least giving plaintiffs
notice of the proposed action and affording them an opportunity to address
the issue.").
In this case, Plaintiff was provided an opportunity to amend his Complaint,
yet the Amended Complaint failed to cure many of the deficiencies identified
in this Court's August 17, 2011 Order. Additionally, the claims asserted
against Defendant Belotti are nearly identical to the claims asserted against
the other Defendants. Specifically, Defendant Belotti allegedly violated 18
U.S.C. §5 241 and 242, 18 U.S.C. § 1962, and 42 U.S.C. §5 1983, 1985, and
1986. Because the other Defendants filed motions to dismiss as to those
claims, Plaintiff had an opportunity to respond to the basis for dismissal,
which Plaintiff failed to do. Finally, for the reasons stated in this Order,
Plaintiff cannot maintain a cause of action under any of the above listed
statutes, and therefore the claims against Defendant Bellotti should be
DISMISSED.

24