Kostenko v. U.S. Department of Health and Human Services

Filing 18

ORDER: The Court ORDERS that Defendant's 17 MOTION to Strike 16 First Amended Petition be GRANTED and that Plaintiff's First Amended Petition be STRICKEN from the record. Signed by Judge Irene C. Berger on 12/10/2012. (cc: attys; any unrepresented party) (slr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

MICHAEL MERRITT KOSTENKO,
Plaintiff,
v.

CIVIL ACTION NO. 5:12-cv-01882

U. S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES, and
SECRETARY KATHLEEN SEBELIUS,
Defendants.

ORDER

The Court has reviewed Defendant’s Motion to Strike First Amended Petition (Document
17), wherein Defendant argues that Plaintiff’s First Amended Petition (Document 16) should be
stricken from the record because Plaintiff neither received permission from the Court to amend his
petition nor obtained Defendant’s written consent as required by Rule 15(a)(2) of the Federal
Rules of Civil Procedure. Furthermore, Defendant contends that Plaintiff’s First Amended
Petition does not meet the requirements of Rule 8(a)(1) and (2) of the Federal Rules of Civil
Procedure, which require Plaintiff to present “a short and plain statement of the grounds for the
court’s jurisdiction” and “a short and plain statement of the claim showing that [he] is entitled to
relief.” Fed. R. Civ. P. 8(a)(1) and (2). Defendant also argues that to the extent Plaintiff asserts a
new cause of action against the National Institute for Occupational Safety and Health (“NIOSH”),
Plaintiff has not shown that the Court has proper subject matter jurisdiction over NIOSH as
NIOSH, a federal agency, has not waived its sovereign immunity.

Even if the Court were to construe Plaintiff’s Notice to Court of Petitioner’s Intent to
Amend Complaint (Document 14) as a motion and grant it, Plaintiff’s First Amended Petition does
not meet the requirements of the Federal Rule of Civil Procedure. Allegations “must be simple,
concise, and direct.” Fed.R.Civ.P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not
require

‘detailed

factual

allegations,’

but

it

demands

more

than

an

unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)).
Although Plaintiff is acting pro se, and, thus, his pleadings are entitled to liberal
construction, Estelle v. Gamble, 429 U.S. 97, 106 (1976), “the requirement of liberal construction
does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth
a claim currently cognizable in a federal district court.” Drummond v. South Carolina Dept. of
Corrections, 2012 WL 5077575 (D.S.C.2012 Oct. 1, 2012) (citing Weller v. Dep’t of Social Servs.,
901 F.2d 387, 390-91 (4th Cir.1990). Plaintiff’s First Amended Petition is filled with lists of
grievances, unsupported allegations, and conclusions of fact and law. Furthermore, it confuses
the issues and is barely comprehensible. “Rule [12(f)] is not only the appropriate remedy for the
striking of ‘any redundant, immaterial, impertinent, or scandalous matter,’ but ‘also is designed to
reinforce the requirements in Rule 8(e) that pleadings be simple, concise, and direct.’” In re
Merrill Lynch & Co, Inc. Research Reports Securities Litigation 218 F.R.D. 76, 78 (S.D.N.Y.
2003) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1380 (2d. ed.1990).

2

Therefore, after careful consideration and without objection, the Court ORDERS that
Defendant’s motion (Document 17) be GRANTED and that Plaintiff’s First Amended Petition
(Document 16) be STRICKEN from the record.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:

3

December 10, 2012