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Kevin Eric Smith v. United States of America

December 18, 2012




On May 22, 2012, Plaintiff Kevin Eric Smith ("Plaintiff") filed a Complaint pro se against over fifty Defendants ranging from the U.S. government to federal agencies, courts, hospitals, states, and individuals (collectively, "Defendants"). See generally Dkt. No. 1 ("Complaint"). Plaintiff asserts, inter alia, tort claims, breach of contract claims, and claims under § 1983 arising from alleged constitutional violations. See generally id. On July 23, 2012, the State of New York and the New York Attorney General's Office (collectively, the "New York Defendants") filed a Motion to dismiss. Dkt. No. 5 (the "New York Motion"). Plaintiff filed a Response to the New York Motion on August 21, 2012. Dkt. No. 12 ("Response to New York Motion").

Prior to filing his Response, however, Plaintiff filed a Letter Motion on July 23, 2012 requesting an extension of time to serve the Complaint. Dkt. No. 7 ("Letter Motion"). By Text Order on July 24, 2012, the Honorable Randolph F. Treece, United States Magistrate Judge, denied the request as futile. Dkt. No. 8 ("July Order"). Subsequently, Plaintiff appealed the Order. Dkt. No. 10 ("Appeal"). The New York Defendants, in turn, filed a Response to the Appeal. Dkt. No. 11.

On August 27, 2012, Defendants City of Concord, New Hampshire and Concord, New Hampshire Police Department (collectively, "New Hampshire Defendants") filed their own Motion to dismiss. Dkt. No. 17 ("New Hampshire Motion"). And, on September 21, 2012, Plaintiff filed a Response to the New Hampshire Motion. Dkt. No. 26 ("Response to New Hampshire Motion").


Plaintiff's Complaint, put simply, is a massive and ambitious document. In the interests of judicial economy, the Court does not provide an exhaustive description of all factual allegations. For a more complete statement, reference is made to the Complaint. Nevertheless, the Court provides a general overview of the Complaint and the allegations contained therein in an effort to provide much-needed context to the legal analysis that follows. Further, the Court liberally construes Plaintiff's claims in light of his pro se status.*fn1 See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990)

Plaintiff begins his Complaint by acknowledging the vast -- and imposing -- array of named Defendants, before identifying other potential third parties to this action, ranging from Chili's Grill and Bar to Lehman Brothers Holdings, Inc. Compl. ¶ 1. The factual background section commences with an historical invocation: "[o]n or around 1613 the presumed daughter of 'James I,' insurgent leader of England, was married to styled 'Frederick V' who claimed to be elector of the Palatinate or something similar perhaps." Id. ¶ 3. Plaintiff goes on to provide a brief history of the last four centuries of western civilization, highlighting various events and culminating in a biographical account of his family and his own birth and upbringing. Id. ¶¶ 3-16.

The next 124 paragraphs and sixty-four pages resemble a memoir of sorts, over the course of which Plaintiff describes, inter alia, experiences at a high school basketball tournament, his tumultuous legal career, a failed romance, mental health issues, and more recent troubles with the law. See generally id. According to his Complaint, Plaintiff attended and played lacrosse at the College of the Holy Cross before earning a J.D. and an LL.M. from the Georgetown University Law Center. Id. ¶¶ 17-20. Plaintiff's legal career was marked by assorted personal and professional difficulties, and -- after beginning to hear voices while in college -- in recent years he has faced assorted legal and mental health-related issues. See generally id.

Throughout his meandering narrative, Plaintiff repeatedly refers to suspicious, unexplained phenomena and ongoing conspiracies that appear to have harmed him in some way. See generally id. He suggests that many inexplicable or undesirable events in his life are the work of "'Government Correlated Persons' or 'GCPs,'" and have been caused by "deployment of Targeted Sound (e.g., UPVs (unidentified/unconventional perceived/projected voices), UPS (unidentified/unconventional perceived/projected sound) against Kevin Eric Smith and without his consent including sometimes UTTs (unlicensed thought transfers)." Id. ¶ 2. He also frequently refers to his German and Irish heritage and appears to believe that some of these conspiracies against him and some of his legal problems may relate to perceived antisemitism or perceptions about his political and philosophical beliefs. See generally id. Further, Plaintiff repeatedly expresses concerns that his belongings are being taken or that unknown individuals are interfering with his work. See generally id. Notably, on numerous occasions in the Complaint, Plaintiff notes that drafts of his sentences have been "hacked" by "GCPs" or other unknown parties, but that Plaintiff has "corrected the possible hack." See, e.g., id. ¶¶ 19, 102, 136-38.


A. Motion to Dismiss

In order to survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). Such a determination "requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). A court must accept as true the factual allegations contained in the complaint and draw all inferences in favor of the plaintiff. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "[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." Id. at 678 (citing Twombly, 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that he or she is entitled to relief and the action is subject to dismissal. See Id. at 678-79.

B. Standard of Review for Appeal of a Magistrate Judge's Decision

Rule 72 of the Federal Rules of Civil Procedure sets out the standard for reviewing a ruling by a magistrate judge. In reviewing a magistrate judge's ruling on a nondispositive issue, a district court "must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary to law." FED. R. CIV. P. 72(a).When addressing dispositive matters, on the other hand, a district court "must determine de ...

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