United States District Court, D. Vermont
ORDER (DOCS. 5, 6, 7, 9, 13, 14, 16, 18, 19)
Honorable J. Garvan Murtha United States District Judge
Stephens, proceeding pro se, filed a complaint against at
least twenty defendants on October 17, 2016. (Doc. 1
(“Compl.”).) On November 23, 2016, Defendants
Anne Baylock and Kathy McVey moved to dismiss the complaint.
(Doc. 5.) Stephens filed a motion for service of the summons
and complaint. (Doc. 6.) Defendants Joyce Stevens and Roger
Stevens also moved to dismiss. (Doc. 7.) On December 15,
Stephens filed a document purporting to be an amended
complaint, motion for order of protection, and opposition to
the motions to dismiss. See Docs. 8, 9, 10 (same
document). On the same day, Defendants Patricia Haskins, Town
Clerk for the Town of Pittsfield, and Heath Plemmons, City of
Rutland Police Officer, moved to dismiss the complaint.
(Docs. 13, 14.) On December 19, Defendants City of Rutland,
Town of Pittsfield, and Deborah Picarello also moved to
dismiss the complaint. (Docs. 16, 18, 19.) For the following
reasons, Defendants Baylock and McVey's motion to dismiss
is granted and the case is sua sponte dismissed.
Court is normally required to read a pro se plaintiff's
complaint liberally and to construe it to raise the strongest
arguments it suggests. See, e.g., McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Here,
Stephens signed her purported amended complaint with her
Georgia Bar number. (Doc. 8 at 3.) She is listed on the State
Bar of Georgia's website as an active member in good
standing. Given that Plaintiff Stephens is an attorney, her
pleadings are not entitled to the special consideration
ordinarily given to pro se plaintiffs. See Maloney v.
Cuomo, 470 F.Supp.2d 205 (E.D.N.Y. 2007),
aff'd, 554 F.3d 56 (2d Cir. 2009), vacated
on other grounds, 561 U.S. 1040 (2010); Kuriakose v.
City of Mount Vernon, 41 F.Supp.2d 460, 465 (S.D.N.Y.
original twenty-page complaint asserts claims such as
“refusing to make services available, ”
“demanding to follow me to my place of residence,
” “pressuring me and quizzing me, ”
“yelling at me, ” “looking for fight
against me, ” “demanding that I pay using cash,
” “blocking my movement, ” “calling
my place of residence, ” and “giving me his
card.” (Compl. at 1-4.)
adding defendants and conclusory claims of unlawful
retaliation, Stephens' amended complaint does little to
expound on her claims. She simply attaches her original
complaint. (Doc. 8 at 2 (“For the convenience of the
Court, a copy of the Civil Rights Complaint and Jury Demand
in the matter of Kalyn Stephens v. Chief of Police of Vermont
State Police et. [sic] al, [sic] district court Case Number
1:16-cv-270, is attached hereto as Exhibit A.”).) The
three-page amended complaint, which also serves as a motion
for order of protection and opposition to motions to dismiss,
demands a jury trial, orders prohibiting
“Defendant” from removing her from her residence
and from harassing or intimidating her, a tree be removed
from the premises of her residence, and $100, 000, 000 as
well as punitive damages, costs and fees. (Doc. 8.)
Rule 15 of the Federal Rules of Civil Procedure, a
“party may amend its pleading once as a matter of
course within . . . 21 days after service of a motion under
Rule 12(b). Fed.R.Civ.P. 15(a)(B). Therefore, Stephens'
purported amended complaint is likely timely as it was filed
on December 15, 22 days after Baylock and McVey's motion
to dismiss was filed and served on her via first class mail.
See Doc. 5-2. The amended complaint, however, is in
violation of the Court's Local Rules requiring it be
consecutively numbered, D. Vt. L.R. 10(a)(5), and prohibiting
incorporation of a prior filing by reference without prior
authorization of the Court, D. Vt. L.R. 15(b). It is also in
violation of Federal Rules of Civil Procedure 8 and 10.
See Rule 8 discussion infra. Rule 10
requires a party state its claims in numbered paragraphs.
Fed.R.Civ.P. 10(b). Accordingly, the purported amended
complaint (Doc. 8) is insufficient and the Court does not
consider it as a pleading.
motion to dismiss tests the legal rather than the factual
sufficiency of a complaint. See, e.g., Sims v.
Ortiz, 230 F.3d 14, 20 (2d Cir. 2000). The Court will
grant a motion to dismiss only if the pleader fails to show a
“plausible entitlement to relief.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court
must accept all facts alleged in the pleading as true and
draw all reasonable inferences in favor of the pleader.
Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171
(2d Cir. 2006). Though the court must accept as true all
factual allegations, this requirement “is inapplicable
to legal conclusions.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “[T]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.; see also
Turkmen v. Hasty, 789 F.3d 218, 233 (2d Cir. 2015).
Irrespective of whether they are drafted pro se, all
complaints must contain at least “some minimum level of
factual support for their claims.” Alfaro Motors,
Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
Baylock and McVey move to dismiss the original complaint
(Doc. 1) under Federal Rules of Civil Procedure 8 and
12(b)(6). (Doc. 5.) The claims against McVey, in their
entirety, are “Looking for fight against me[;] Calling
where I live despite my protests[; and] Pressuring me.”
(Compl. at 11.) The claims against Baylock are “Looking
for flight against me[;] Calling where I live despite my
protests[;] Pressuring me and demanding that I meet with
others[;] Demanding that I communicate by telephone[;]
Demanding that I compromise my Christian convictions[;]
Encouraging me to kill myself[; and] Demanding that I meet
with others who are looking for fight against me.”
Id. at 15. Defendants McVey and Baylock argue the
complaint fails to state a claim because the complaint does
not contain any allegations of fact. (Doc. 5-1 at 2.)
of the Federal Rules of Civil Procedure, provides, in
relevant part, that a complaint “must contain . . . a
short and plain statement of the grounds for the court's
jurisdiction, . . . a short and plain statement of the claim
showing that the pleader is entitled to relief, ” and
“[e]ach allegation must be simple, concise, and
direct.” Fed.R.Civ.P. 8(a), (d). Essentially, Rule 8
ensures a complaint provides a defendant with sufficient
notice of the claims against him. See id.;
Ashcroft v. Iqbal, 556 U.S. 662 (2009). “When
a complaint fails to comply with these requirements
[contained in Rule 8], the district court has the power, on
motion or sua sponte, to dismiss the complaint or to strike
such parts as are redundant or immaterial.” Simmons
v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995).
Stephens' complaint does not satisfy Rule
In the absence of factual allegations, the Court cannot
determine whether she has a plausible entitlement to relief.
As noted above, complaints must contain at least “some
minimum level of factual support for their claims.”
Alfaro Motors, 814 F.2d at 887. Because the
complaint fails to state a claim against them, Defendants
McVey and Baylock's motion to dismiss is granted.
the complaint fails to satisfy Rule 8 with regard to the
remaining defendants, against whom no facts are alleged, it
is sua sponte dismissed. See Simmons, 49 F.3d at 86.
reasons set forth above, Defendants McVey and Baylock's
motion to dismiss (Doc. 5) is GRANTED and the claims against
them are dismissed without prejudice. The Court sua sponte
dismisses without prejudice the claims against the remaining
defendants. Plaintiff may file an amended complaint compliant
with Federal Rules of Civil Procedure, specifically Rules 8
and 10, and this Court's Local ...