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Levesque v. State

United States District Court, D. Vermont

September 12, 2014

ANDRE LEVESQUE, Plaintiff,
v.
STATE OF VERMONT, VERMONT STATE HOSPITAL, MAYOR'S OFFICE BURLINGTON, VT, PUBLIC DEFENDER'S OFFICE VT, SUPREME COURT OF VT, VERMONT ATTORNEY GENERAL'S OFFICE, SOUTH BURLINGTON POLICE DEPARTMENT, BURLINGTON POLICE DEPARTMENT, SHELBURNE POLICE DEPARTMENT, VT STATE POLICE, FLETCHER ALLEN HEALTHCARE, RUTLAND REGIONAL MEDICAL CENTER, WASHINGTON COUNTY SHERIFF'S DEPARTMENT, VERMONT GOVERNOR'S OFFICE, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, EDWARD SOYCHEK, SCOTT KLINE, PUBLIC DEFENDER BACHUS, BERNIE SANDERS, ROBERT WOLFORD, DR. PELITIER, DR. MONSUN, DR. DUNKEN, DR. SYMPATICO, DR. SANDRA STEINGARD, HOWARD DEAN, PLOOSTIENERS, PUBLIC DEFENDER HESSLER, HOWARD CENTER, INC., Defendants.

ENTRY ORDER GRANTING DEFENDANTS' PENDING MOTIONS TO DISMISS (DOCS. 34, 35, 41, 45, 47, 67, 69, 74, 76, 79, 80)

CHRISTINA REISS, Chief District Judge.

Plaintiff Andre Levesque ("Mr. Levesque") brings this action pursuant to 42 U.S.C. § 1983, alleging various forms of mistreatment by the following Defendants: Washington County Sheriff's Department ("WCSD"); Burlington Police Department ("BPD"); Mayor's Office Burlington, VT ("the Burlington Mayor's Office"); Rutland Regional Medical Center ("RRMC"); Shelburne Police Department ("SPD"); South Burlington Police Department ("SBPD"); Edward Soychek ("Sergeant Soychek"); Howard Center, Inc. ("Howard Center"); Robert Wolford ("Mr. Wolford"); Dr. Sandra Steingard ("Dr. Steingard"); Bernie Sanders ("Senator Sanders"); Fletcher Allen Healthcare ("FAHC"); United States Department of Homeland Security ("DHS"); Public Defender's Office VT ("Defender General"); Supreme Court of Vermont ("VSC"); Vermont Attorney General's Office ("VTAG"); Vermont State Police ("VSP"), Vermont Governor's Office ("VGO"); Scott Kline ("Mr. Kline"); Public Defender Bachus ("Mr. Bachus"); Public Defender Hessler ("Mr. Hessler"); Dr. Pelitier; Dr. Monsun; Dr. Dunken; Howard Dean; and Ploosteiniers. All claims against Defendants State of Vermont (the "State") and Vermont State Hospital ("VSH") have been dismissed pursuant to this court's January 29, 2014 Opinion and Order. (Doc. 27.)

The following motions are now pending: WCSD's Motion to Dismiss for Failure to State a Claim (Doc. 34); Burlington Mayor's Office and BPD's Motion to Dismiss for Failure to State a Claim (Doc. 35); RRMC's Motion to Dismiss for Failure to State a Claim (Doc. 41); SPD, SBPD, and Sergeant Soychek's Motion to Dismiss for Failure to State a Claim (Doc. 45); Howard Center's Motion for a More Definite Statement (Doc. 47); Senator Sanders's Motion to Dismiss for Failure to State a Claim (Doc. 67); FAHC's Motion to Dismiss for Failure to State a Claim (Doc. 69), Mr. Wolford's Motion to Dismiss for Failure to State a Claim (Doc. 74); Dr. Steingard's Motion to Dismiss for Failure to State a Claim (Doc. 76); DHS's Motion to Dismiss for Failure to Establish a Waiver of Sovereign Immunity and Failure to State a Claim (Doc. 79); and State Defendants' Second Motion to Dismiss Amended Complaint for Lack of Subject Matter Jurisdiction (Doc. 80). These motions are unopposed.

I. Factual Background and Procedural History.

On July 20, 2012, Mr. Levesque filed an initial Complaint in this matter, alleging among other claims that the State and VSH "threatened, har[]assed, intimidated, tortured and poisoned" him in retaliation for "speaking out" against a state employee who allegedly attacked him in 1976. (Doc. 1 at 2.) On February 28, 2013, the court granted the State and VSH's motion to dismiss the initial Complaint. The court granted Mr. Levesque leave to amend the initial Complaint to supplement his allegations with respect to his denial of court access claim.[1]

In his 48-page Amended Complaint, filed on March 25, 2013, Mr. Levesque alleges new claims against new Defendants which are generally unrelated to his denial of court access claim. For example, Mr. Levesque alleges that police officers ordered him to "kill children" (Doc. 13 at 12) and charged him with crimes he did not commit, and he alleges that various medical professionals and institutions have threatened and coerced him. He claims that Defendants violated his constitutional rights under the First, Second, Fourth, Eighth, and Fourteenth Amendments. He also claims Defendants violated the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101-213, and the Crime Victims' Rights Act of 2004 ("CVRA"), 18 U.S.C. § 3771. The Amended Complaint demands the following relief: (1) reinstatement of Mr. Levesque's driver's license; (2) a "pardon"; (3) medical marijuana; (4) an end to his "exile from Vermont"; (5) $100 million in damages; and (6) $1.6 trillion in "lost revenue." (Doc. 13 at 32.)

On January 29, 2014, the court granted the State's and VSH's second motion to dismiss and denied without prejudice Mr. Levesque's motion for service of the Amended Complaint by the U.S. Marshals Service. After the court granted Mr. Levesque's application for leave to proceed in forma pauperis on February 18, 2014, the court directed the U.S. Marshals Service to serve the Amended Complaint on all newly-named Defendants.

II. Conclusions of Law and Analysis.

A. Standard of Review.

Defendants seek dismissal of the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. It is well-settled that the "plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002)). A facially-sufficient complaint may be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In reviewing a Rule 12(b)(1) motion to dismiss, the court "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiff [ ]." J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).

On a motion to dismiss pursuant to Rule 12(b)(6), the court accepts all factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.

When a motion to dismiss cites Rule 12(b)(1) in conjunction with other grounds for dismissal, "the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (citation omitted).

Although the pending motions to dismiss are unopposed, Mr. Levesque's lack of opposition is not dispositive. See McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) ("If [the] complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to [the] Rule 12(b)(6) motion[s] does not warrant dismissal."). Because Mr. Levesque is self-represented, his "complaint[] must be construed liberally and interpreted to raise the strongest arguments that [it] suggest[s]." Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted). "Nonetheless, a pro se complaint must state a plausible claim for relief." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).

B. Rule 12(b)(1) Motions.

1. DHS's Motion to ...


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