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Gist v. United States

June 2, 2010

DAVID L. GIST, SR., PLAINTIFF,
v.
UNITED STATES, ET AL.; DEFENDANTS.



The opinion of the court was delivered by: George H. Lowe, U.S. Magistrate Judge

REPORT-RECOMMENDATION AND ORDER

By way of background, pro se Plaintiff David L. Gist, Sr., originally submitted a complaint and application to proceed in forma pauperis. Dkt. No. 1, 3. After a review, the Court recommended that Plaintiff be allowed to file an amended complaint in light of his pro se status and in light of the fact that no party had been served. Dkt. No. 12. The Honorable Neal P. McCurn, Senior U.S. District Judge, adopted my recommendation. Dkt. No. 15. The application to proceed in forma pauperis was granted. Dkt. No. 12.

Presently before the Court is an amended complaint submitted byPlaintiff. Dkt. No. 14. Also before the Court is Plaintiff's motion to certify this action as a class action. Dkt. No. 16.

I. Amended Complaint

The amended complaint alleges that while Plaintiff was undergoing surgery at the Veterans Medical Hospital in Syracuse, New York, surgical clamps were improperly left in his body, causing him injuries. Dkt. No. 14.*fn1 Plaintiff alleges that he underwent surgery on September 26, 1981, but that he did not discover the alleged clamps until on or about December 6, 2006.*fn2 Id. at p. 3.

A. Rules 8 and 10 of the Federal Rules of Civil Procedure

Initially, it bears noting that the amended complaint fails to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief shall contain, among other things, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The purpose of this Rule "is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer [and] prepare an adequate defense." Hudson v. Artuz, No. 95 CIV 4768, 1998 WL 832708, *1 (S.D.N.Y. Nov. 30, 1998) (citations omitted). Moreover, Rule 10 of the Federal Rules of Civil Procedure provides, in pertinent part, (b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. Fed. R. Civ. P. 10(b).

The purpose of Rule 10 "is to 'provide an easy mode of identification for referring to a particular paragraph in a prior pleading . . . .'" Sandler v. Capanna, Civ. A. No. 92-4838, 1992 WL 392597, *3 (E.D. Pa. Dec. 17, 1992) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1323 at 735 (1990)).

A complaint that fails to comply with these Rules presents too heavy a burden for the defendants in shaping a comprehensive defense, provides no meaningful basis for the court to assess the sufficiency of the plaintiff's claims, and is properly subject to dismissal. See Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996). As the Second Circuit has stated, "[w]hen a complaint does not comply with the requirement that it be short and plain, the court has the power, on its own initiative . . . to dismiss the complaint." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). "Dismissal, however, is 'usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Hudson, 1998 WL 832708, at *2 (quotation omitted). Therefore, in those cases in which the court dismisses a pro se complaint for failure to comply with these Rules, it should afford the plaintiff leave to amend the complaint to state a claim that is on its face non-frivolous. See Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).

The amended complaint is difficult to interpret. It contains rambling legal arguments, numerous disjointed sentences, and repeated conclusory allegations, all of which are set forth in tight handwritten text on single-spaced lines. Dkt. No. 14. The allegations against the specific individuals that are named as defendants are vague, and buried in the text, making it difficult for the Court to determine the sufficiency of Plaintiff's allegations, and would be difficult for Defendants to shape a comprehensive defense.

Moreover, while the amended complaint contains numbered sections, the numbering is of limited value since some of the numbered sections contain numerous sentences, and/or contain multiple paragraphs. Id.

Thus, the amended complaint fails to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. However, the Court refrains from recommending dismissal on this basis because the amended complaint does not quite rise to the level of being "so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Accordingly, should Plaintiff file a second amended complaint, which will be discussed in the next section, any such submission must be in accordance with Rules 8 and 10.

B. 28 U.S.C. § 1915(e)

Title 28 U.S.C. § 1915(e) directs that when a plaintiff seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).*fn3 Although the court has the duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), there is a responsibility on the court to determine that a claim is not frivolous before permitting a plaintiff ...


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