The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Douglas E. Kampfer ("plaintiff" or "Kampfer"), proceeding pro se and in forma pauperis, brings this action against defendants John H. Buchanan ("Buchanan") and Bethany Schumann-McGhee ("Schumann-McGhee"), Buchanan's attorney. Plaintiff alleges that defendants discriminated against him in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the Civil Rights Act of 1871. Plaintiff seeks an injunction preventing his eviction from Buchanan's land and monetary relief for lost profits, court costs, and punitive damages.
Plaintiff initially filed his complaint and a motion for preliminary injunction on October 15, 2010. Defendants filed a motion to dismiss, which was subsequently withdrawn when Kampfer filed an amended complaint and motion for preliminary injunction on November 12, 2010. Defendants have since filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(c). Plaintiff opposes the motion and has cross-moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants responded in opposition to Kampfer's cross-motion. The motions were taken on submit.
The following facts, taken from plaintiff's amended complaint, are accepted as true for purposes of the motion to dismiss.
On November 16, 2007, plaintiff and Buchanan entered into a written agreement under which plaintiff provided Buchanan $10,000.00 to pay his property taxes and prevent foreclosure on his land. In return, Buchanan agreed to allow plaintiff to use at least seven parcels of his land for agricultural purposes. Although the writing does not specify how long plaintiff would be permitted to use the land, the parties verbally agreed that he could use the land for as long as he desired.*fn1 However, beginning on December 1, 2007, Buchanan has prevented plaintiff from tapping maple trees and using all seven parcels of land to bale hay and plant crops. Plaintiff was only permitted to use one barn and 1.5 of the over 200 acres of land.
Plaintiff kept a small herd of goats on one of the parcels of land but has been unable to utilize all of the land to its full economic potential. On March 22, 2009, plaintiff discovered Buchanan attempting to sell plaintiff's hay to a third party, and a heated argument ensued. During the verbal confrontation Buchanan stated, "I do not have to comply to a Mormon contract, if I allow you to bale hay on my property I can't make money to pay my taxes." Plaintiff maintains that he is not a Mormon but is instead a Latter-Day Saint.
In May 2009, Buchanan retained Schumann-McGhee, who sent a letter to plaintiff claiming that he no longer had a right to use the land as the November 16, 2007, agreement was invalid. Plaintiff and Schumann-McGhee exchanged several letters throughout May and June 2009, but failed to reach an agreement to settle the dispute. During this correspondence, Schumann-McGhee encouraged Kampfer to get an attorney and refused to engage in meaningful settlement discussions because plaintiff was proceeding pro se. On October 10, 2010, Schumann-McGhee informed plaintiff by letter that defendants were initiating legal action to have him removed from Buchanan's property. Schumann-McGhee again encouraged plaintiff to get an attorney who could contact her directly.
A. Motion to Dismiss-Legal Standard
To survive a 12(b)(6) motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009).
Dismissal is appropriate only where plaintiffs fail to provide some basis for the allegations that support the elements of their claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiffs' favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Additionally, particular deference should be ...