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Dumont v. United States

United States District Court, Second Circuit

December 3, 2013

DANIEL W. DUMONT, Plaintiff,

DANIEL W. DUMONT, Albany, NY, Plaintiff, Pro Se.

CHARLES E. ROBERTS, ESQ., HON. RICHARD S. HARTUNIAN, United States Attorney for the N.D.N.Y., Syracuse, NY, Counsel for Defendant, United States of America.

JAMES H. FERTIG, ESQ., FERTIG LAW OFFICE, Greene, NY, Defendant, Pro Se.

JOHN D. CAMERON, ESQ., JOHN D. CAMERON, ESQ., New Berlin, NY, Defendant, Pro Se.

CHARLES C. SPAGNOLI, ESQ., OFFICE OF FRANK W. MILLER, East Syracuse, NY, Counsel for Defendant, Chenango County Jail,

PETER N. SCOLAMIERO, ESQ., BURKE, SCOLAMIERO, MORTATI & HURD, LLP, Albany, NY, Counsel for Defendant, Dr. John Brereton.


GLENN T. SUDDABY, District Judge.

Currently before the Court is a civil rights complaint filed by pro se plaintiff, Daniel W. Dumont ("Plaintiff") against the ten above-captioned government entities, individuals, and decedent's estate ("Defendants") as well as two motions by Plaintiff to remove two civil proceedings filed against him in the Surrogate's Court of the State of New York, County of Chenango, Index Nos. 2013-6/B and XXXX-XXXXX. (Dkt. Nos. 1, 5, 8.) Also before the Court are motions to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure by defendants, Chenango County Jail, Attorney James H. Fertig[1], Attorney John D. Cameron and United States of America. (Dkt. Nos. 9, 19, 23, 24.) Finally, Plaintiff has filed a motion to supplement his complaint with three additional defendants and allegations regarding his arrest on November 14, 2013 as well as a separate letter motion seeking to add a fourth defendant. (Dkt. Nos. 36, 43.) Plaintiff has paid the filing fee required to commence this action. For the reasons set forth below, Plaintiff's motions to remove and to amend the complaint are denied, the motions to dismiss are granted and the remaining claims are sua sponte dismissed with prejudice.


In his complaint, Plaintiff alleges that his domestic partner of sixteen years, Walter L. McIntosh ("McIntosh"), passed away in January 2013 after a long illness. Plaintiff and McIntosh resided together at a home owned by McIntosh in Chenango County, New York ("the Property"). Plaintiff asserts that he and McIntosh executed wills and powers of attorney in 1998, but that, unbeknownst to Plaintiff, McIntosh executed another will in 2007, wherein Plaintiff received no interest in the Property. Plaintiff asserts that McIntosh was not competent to execute the 2007 will and that various of the defendants promoted and supported McIntosh's execution of the 2007 will despite knowing he lacked competence to do so.

On February 26, 2013, Plaintiff commenced an action in this court against many of the same defendants named in the current action. On June 17, 2013, Honorable Thomas J. McAvoy, Senior United States District Judge, dismissed that action for, among other reasons, Plaintiff's failure to state a claim against defendants upon which relief can be granted. See Dumont v. Fertig, No.13-CV-214, Dkt. No. 32. After the commencement of that action and prior to the commencement of the current action, Plaintiff served sixteen says in Chenango County Jail in April 2013 at the direction of the Surrogate's Court judge on a charge of civil contempt related to Plaintiff's refusal to vacate the Property or to allow the executors of McIntosh's estate to enter the Property to inventory McIntosh's personal property. While Plaintiff was in Chenango County Jail, the co-executors of the 2007 will - defendants John A. Hohl ("Hohl"), Thelma J. Adams ("Adams"), and Jose S. Aparicio ("Aparicio") (collectively "the Executors") - entered Plaintiff's home and took pictures of his personal belongings.

On July, 15, 2013, the Executors petitioned the Surrogate's Court for an order directing Plaintiff's eviction from the Property. On July 18, 2013, the Surrogate's Court issued Plaintiff an Order to Show cause why an order should not be made granting possession of the Property to McIntosh's estate.

Plaintiff now brings this civil action against the United States of America; McIntosh's estate; the Executors; John D. Cameron (the attorney who drafted McIntosh's 1998 will); James H. Fertig (the attorney who drafted McIntosh's 2007 will and currently represents McIntosh's estate) ("Fertig"); Chenango County Jail; Dr. John Brereton (a cardiologist at Chenango Hospital who apparently gave testimony to the Surrogate's Court regarding McIntosh's health condition); and Donna M. Minchew (a property appraiser for the County of Marion, Florida, who apparently made a false statement in 2005 in order to negatively affect Plaintiff's rights to property he coowned with McIntosh in Florida) ("Minchew").

In support of his complaint, Plaintiff identifies the various wrongs committed against him by each defendant. First, Plaintiff alleges that the United States (1) failed to recognize Plaintiff's civil rights under the Ninth Amendment to the United States Constitution, (2) failed to recognize Plaintiff's permanent residence status under the Immigration and Nationality Act during the proceedings in Surrogate's Court, (3) violated Plaintiff's civil rights by discriminating against him based on his sexual orientation and pro se status in violation of 18 U.S.C. § 245 and the Hate Crime Prevention Act, (4) failed to recognize Plaintiff's right to a trial under the Sixth Amendment when Plaintiff was arrested and incarcerated at the Chenango County Jail; (5) violated Plaintiff's rights under the Fourth Amendment when Defendants entered his home while Plaintiff was incarcerated; (6) violated Plaintiff's right to due process when Defendants let Plaintiff out of jail only three days prior to a hearing in Surrogate's Court, leaving Plaintiff unprepared for the hearing; and (7) violated Plaintiff Seventh Amendment right to a jury trial. Plaintiff asserts that he named the United States as a defendant to protect himself from bias in these judicial proceedings. Plaintiff seeks $21.00 in damages from the United States as well as an order (1) directing review of this Court's Local Rules and the Federal Rules regarding pro se litigants; (2) declaring that only human beings are protected under the United States Constitution; and (3) directing an amendment to the United States Constitution specifying that only human beings are protected by the United States Constitution.

Plaintiff alleges that McIntosh executed the 2007 will without giving notice to Plaintiff in violation of their 1998 agreement and that Plaintiff cared for McIntosh and paid expenses after McIntosh's death without knowledge of the 2007 will. Therefore, Plaintiff asserts that McIntosh's estate is liable to him for $1, 221, 000.

Plaintiff alleges that attorneys Fertig and Cameron conspired together to illegally discard the 1998 will. Plaintiff alleges that the Executors (defendants Hohl, Adams and Aparicio) (1) promoted and supported the 2007 will despite knowing McIntosh was not competent to execute that will, (2) opposed the 1998 will without bases to do so, (3) broke into Plaintiff's house on April 16, 2013 and took photos of Plaintiff's personal property, and (4) sent Plaintiff to jail on April 15, 2013. Plaintiff further alleges that in 2005, Hohl and defendant Minchew conspired with one another to negatively affect Plaintiff's rights to property Plaintiff owned with McIntosh as joint tenants with rights of survivorship in Florida. Plaintiff alleges that Dr. John Brereton gave false information to the Surrogate's Court regarding McIntosh's health. Finally, Plaintiff alleges that an officer or officers at the Chenango County Jail (1) refused to allow him a phone call as required by law; (2) failed to mail letters Plaintiff wrote to the President of the United States and the Prime Minister; and (3) became so angry at Plaintiff that Plaintiff felt he was in danger and, Plaintiff believes, if not for the presence of others, would have physically attacked Plaintiff.

Contemporaneously with the filing of his complaint, Plaintiff filed a motion for removal of two civil actions in the Chenango County Surrogate's Court. In the Surrogate's Court actions, the court issued orders to show cause why Plaintiff should not be evicted from the Property and why Plaintiff should not be required to pay rent until he vacates the Property. Plaintiff asserts that he will not survive without federal court intervention and that "removal appears the only adequate cause of action to take... to give us all[] the time to see what is going on in this case before my life is completely destroy[ed] by the Defendants." (Dkt. No. 5 [Pl's Mot. for Removal].) On August 6, 2013, Plaintiff filed a second motion to remove, seeking the same relief sought in his original motion to remove. ( Compare Dkt. No. 8 with Dkt. No. 5.)


A. Legal Standard Governing Dismissal for Failure to State Claim

It has long been understood that a complaint may be dismissed for failure to state a claim upon which relief can be granted on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed.R.Civ.P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F.Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).

Because such motions are often based on the first ground, a few words on that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). In the Court's view, this tension between permitting a "short and plain statement" and requiring that the statement "show[]" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed.R.Civ.P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed.R.Civ.P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F.Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing, " the pleading standard under Fed.R.Civ.P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F.Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).

The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F.Supp.2d at 212, n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F.Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits." 2 Moore's Federal Practice § 12.34(1)(b) at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak, 629 F.Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-83, 129 S.Ct. 1937, 1949-52 (2009).

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 550 U.S. at 561, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 556-70, 127 S.Ct. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based], " it does mean the pleading must contain at least "some factual allegation[s]." Id. at 555, 127 S.Ct. at 1965, n.3. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level], " assuming (of course) that all the allegations in the complaint are true. Id. at 554, 127 S.Ct. at1965.[2]

As for the nature of what is "plausible, " the Supreme Court explained that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). "[D]etermining whether a complaint states a plausible claim for relief... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully, " id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.

Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id., at 678, 129 S.Ct. at 1949.

This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.Civ.P. 8, 10 and 12. See Vega v. Artus, 610 F.Supp.2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases); Rusyniak, 629 F.Supp.2d at 214 & n.34 (citing Second Circuit cases). Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow. See Vega, 610 F.Supp.2d at 196, n.10 (citing Supreme Court and Second Circuit cases); Rusyniak, ...

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