Braithwaite v. Johnson County District Court et al

Filing 6

MEMORANDUM AND ORDER. Under Rule 41(b) of the Federal Rules of Civil Procedure, the False Claim[s] Act Complaint (Doc. 1 ) filed May 29, 2019 is DISMISSED without prejudice. The Clerk is directed to unseal the False Claim[s] Act Complaint (Doc. 1 ). Signed by District Judge Kathryn H. Vratil on 2/20/2020. Mailed to pro se party Scott Brathwaite by regular mail. (smc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA ex rel.
SCOTT BRATHWAITE,

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Plaintiff,
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v.
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STATE OF KANSAS, et al.,
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Defendants.
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____________________________________________)

CIVIL ACTION
No. 19-2265-KHV

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s sealed False Claim[s] Act Complaint
(Doc. #1) filed May 29, 2019. For reasons stated below, the Court unseals the complaint and
dismisses it without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure.
Legal Standards
A complaint must contain (1) a short and plain statement of the claim showing that the
pleader is entitled to relief; (2) a short and plain statement of the grounds upon which the district
court’s jurisdiction depends; and (3) the relief requested. Fed. R. Civ. P. 8(a)(2). In addition, each
allegation must be “simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). Rule 8 establishes a floor
and a ceiling: “[i]t is sufficient, and indeed all that is permissible, if the complaint concisely states
facts upon which relief can be granted upon any legally sustainable basis.” New Home Appliance
Ctr., Inc. v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). Rule 8 “serves the important purpose
of requiring plaintiffs to state their claims intelligibly so as to inform the defendants of the legal
claims being asserted.” Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007); see Conley v.
Gibson, 355 U.S. 41, 47 (1957) (purpose of Rule 8 to give defendants fair notice of claim and
grounds upon which it rests). If a plaintiff does not satisfy the pleading requirements of Rule 8,

the Court may sua sponte dismiss the complaint without prejudice under Rule 41(b). See Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007) (dismissal under
Rule 41(b) for failure to satisfy Rule 8); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)
(although Rule 41(b) language requires motion, courts permitted to dismiss actions sua sponte for
plaintiff’s failure to prosecute, to comply with rules of civil procedure or court orders).
The Court liberally construes the pleadings of a pro se plaintiff. See Jackson v. Integral
Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). Even so, the Court is not an advocate for the pro se
plaintiff. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Analysis
Plaintiff’s 2,001-page, single-spaced complaint does not satisfy the requirements of Rule 8
because it does not include “a short and plain statement” of his claims or factual allegations that
are “simple, concise and direct.” See Frazier v. Ortiz, No. 06-1286, 2007 WL 10765, at *2 (10th
Cir. Jan. 3, 2007) (136-page amended complaint insufficient under Rule 8 in part because it
included unnecessary detail and wasted dozens of pages on repetitive information). Among the
morass of allegations, plaintiff apparently asserts against 28 defendants, including several
governmental entities, claims of fraud involving Medicaid, the U.S. Crime Victims Fund, the FBI
Federal Fund and the FBI Terrorism Fund. He also alleges that defendants retaliated against him
because he reported the various instances of fraud. His allegations of retaliation apparently include
attempted murder and the FBI’s failure to hire him. Based on the sheer volume of material and
duplicative allegations throughout the complaint, defendants cannot readily ascertain the factual
allegations and legal theories against them.1 Accordingly, under Rule 41(b) of the Federal Rules

1

In addition, plaintiff’s Medicaid fraud claims, which largely center around his
confinement in March and April of 2011, appear to be barred under the statute of limitations. If
(continued. . .)
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of Civil Procedure, the Court dismisses plaintiff’s complaint without prejudice. See Chavez v.
Huerfano Cty., 195 F. App’x 728, 730 (10th Cir. 2006) (pro se 26 page, single-spaced complaint
failed to meet “short and plain” requirements of Rule 8(a), even with liberal construction).
Under the False Claims Act, a relator must (1) provide the government with a copy of the
complaint and (2) file it under seal. 31 U.S.C. § 3730(b)(2); State Farm Fire & Cas. Co. v. United
States ex rel. Rigsby, ––– U.S. ––––, 137 S. Ct. 436, 442 (2016). These requirements are designed
“(1) to permit the United States to determine whether it already was investigating the fraud
allegations (either criminally or civilly); (2) to permit the United States to investigate the
allegations to decide whether to intervene; (3) to prevent an alleged fraudster from being tipped
off about an investigation; and, (4) to protect the reputation of a defendant in that the defendant is
named in a fraud action brought in the name of the United States, but the United States has not yet
decided whether to intervene.” Am. Civil Liberties Union v. Holder, 673 F.3d 245, 250 (4th Cir.
2011) (citing S. Rep. No. 99–345, p. 24–25 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5289–
90). Here, the relator has filed four related, unsealed civil lawsuits that involve similar allegations
so the governmental entities and individual defendants already are on notice of many of the
allegations. See Braithwaite v. U.S. Dep’t of Justice, D. Kan. No. 19-2689-CM, Compl. For
Employment Discrimination (Doc. #1) (claims related to FBI’s failure to hire and harassment);
Braithwaite v. Fed. Bureau of Investigation, D. Kan. No. 19-2363-CM, Compl. For Disability
Discrimination In Employment And Public Accommodation (Doc. #1) (401-page complaint
asserting claims related to FBI’s failure to hire and harassment); Braithwaite v. City of Lenexa, D.

1

(. . . continued)
plaintiff files another complaint, he should note that the statute of limitations under the False
Claims Act is (1) six years after a violation is committed or (2) three years after the date when
facts material to the right of action are known or reasonably should have been known, with an
outside limit of ten years. 31 U.S.C. § 3731(b).
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Kan. No. 12-2288-JTM, Compl. (Doc. #1) (65-page complaint asserting civil rights claims related
to his confinement in hospital in March and April of 2011); Braithwaite v. Rainbow Mental Health
Fac., D. Kan. No. 12-2405-JAR, Compl. (Doc. #1) (108-page complaint asserting civil rights
claims related to his confinement in hospital in March and April of 2011). Moreover, the relator
alleges that he has provided a copy of the complaint to the Assistant Attorney General of the Fraud
Division at the Office of the Attorney General in Washington, D.C. and the government has not
requested to intervene.2 As best the Court can ascertain, plaintiff’s allegations of fraud relate
largely to how law enforcement and other officials treated him during his hospital confinement in
2011 and his allegations of retaliation relate to his subsequent complaints about his treatment
including two civil lawsuits in 2012 against Rainbow Mental Health Facility and the City of
Lenexa, Kansas. Plaintiff has not asserted any ongoing fraud or retaliation related to a broad class
of individuals and it does not appear that any governmental interest is protected by sealing the

2

Under the False Claims Act, plaintiff was required to serve the government under
Rule 4(i) of the Federal Rules of Civil Procedure, which requires that plaintiff:
(A)
(i) deliver a copy of the summons and of the complaint to the United States
attorney for the district where the action is brought--or to an assistant United States
attorney or clerical employee whom the United States attorney designates in a
writing filed with the court clerk--or
(ii) send a copy of each by registered or certified mail to the civil-process
clerk at the United States attorney’s office;
(B)
send a copy of each by registered or certified mail to the Attorney General
of the United States at Washington, D.C.; and
(C)
if the action challenges an order of a nonparty agency or officer of the
United States, send a copy of each by registered or certified mail to the agency or
officer.
Fed. R. Civ. P. 4(i). While the record does not reflect that plaintiff fully complied with Rule 4(i),
the government appears to be on notice of his claims through the delivery of the complaint to an
Assistant Attorney General in Washington, D.C. and through plaintiff’s prior lawsuits against the
FBI.
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complaint. Accordingly, the Court directs the Clerk to unseal the complaint.
IT IS THEREFORE ORDERED that under Rule 41(b) of the Federal Rules of Civil
Procedure, the False Claim[s] Act Complaint (Doc. #1) filed May 29, 2019 is DISMISSED
without prejudice. The Clerk is directed to unseal the False Claim[s] Act Complaint (Doc. #1).
Dated this 20th day of February, 2020 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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