bk's lead brief

8/9/2019 BK's Lead Brief

1/9

UNITED

STATES

COURT

OF

APPEALS

FOR THE FOURTH CIRCUIT

NO

15-1412

BRETT KIMBERLIN

Appellant,

NATIONAL BLOGGERS

CLUB

et

ai

Appellees.

PPELL NT S

LE D BRIEF

urisdi tion

and Timeliness

Appellant Brett Kimberlin hereby appeals from a March 17, 2015 decision of the

District of Maryland, Greenbelt Division The Honorable George Hazel) dismissing

two

counts of his civil

complaint

ECF 264.

hat

order was clarified

on

March 26,

2015. ECF 269.

Appellant is proceeding pro se and therefore does not have access to the Court s

ECF system. Therefore, he has placed this lead brief in the United States Mail on

May 15, 2015 with service

to the

Appellees the following day.

ssues resented

for

Review

hether the District Court erred in dismissing two counts

of

the

Complaint without complying with well established Supreme Court and

Fourth Circuit

precedent

requiring liberal construction of pr s civil rights

complaints.

II hether the District Court

erred

in dismissing two counts of the

Complaint under F R Cv

P

12 b) 6) prior to discovery that would have

provided

the evidentiary basis for the counts.


2/9

ISSUE

THE DISTRICT COURT FAILED TO FOLLOWTHE DICTATES OFH IN S

KERNER 404 U S 519 1972

and

GORD N LEEKE

574

F 2D

1147 4

TH

CIR

978

WHICH

REQUIRE DISTRICT COURTS TO LIBERALLY CONSTRUE PRO

S

COMPLAINTS

Pro se complaints

are

held to a less stringent standard than those drafted by

attorneys, and a federal district court is charged with liberally construing a

complaint filed by a pro se litigant to allow the development

of

a potentially

meritorious case. Haines

v

Kerner,

404 U.S.

519 1972) Hughes

v

Rowe, 449 U.S.

5 9

1980 ; Erickson v Pardus, 551 U.S. 89 2007) Cruz

v

Beto,

405 U.S.

319

1972 ; Gordon

v

Leeke,

574

F.2d

1147 1151

4th Cir.1978). When a federal court

is evaluatinga pro

se

complaint, the plaintiffs factual allegations are assumed to be

true. Erickson, 551 U.S. at 93 citing Bell Atlantic

orp

v Twombly, 550 U.S. 544 555

56 2007)). The mandated liberal construction afforded to pro se pleadings means

that

ifthe

court

can reasonably read the pleadings to state a valid claim on which

the plaintiff could prevail, it should do so.

In

the instant case, the District Court dismissed two counts: Count 1 alleging RICO

under

18

U.S.c.

1962

c

and d), and Count 3 alleging violation of42

U.S.c.

1985,

Conspiracy to Deprive APerson of Civil Rights. These dismissals occurred prior to

discovery on Rule 12 b) 6) motions by various Defendants. The lower court found

that Appellant failed to adequately plead elements of RICO and failed to

adequately plead either discriminatory animus

or

federal proceeding

under

Section

1985. This constitutes reversible

error under

Supreme Court and Fourth Circuit

case law.


3/9

Federal Rule

of

Civil Procedure 8 a)(2) requires only a short and plain statement

of the claim showing that the pleader is entitled to relief. Specific facts are not

necessary; the statement need only give the defendant fair notice ofwhat the

...

claim is and the grounds upon which it rests: BellAtlantic Corp v. Twombly 550 U.

S.

_

(2007) (slip op., at 7-8 (quoting Conley v. Gibson 355

U

S. 41, 47 (1957)).

In addition, when ruling on a defendant s motion to dismiss, a judgemust accept as

true all of

the factual allegations contained in the complaint.

BellAtlantic

Corp supra t (slip op., at 8-9 citingSwierkiewiczv. Sorema N

A

534 U.

S.

506,

508, n. 1 (2002);

Neitzke

v.

Williams

490 U. 319,327 (1989);

Scheuer

v

Rhodes

416 U. S. 232, 236 (1974)).

In the instant case, Appellant s Complaint gave the defendants fair notice of

what

the claimswere and the grounds on which they rested. Indeed, the lower court

stated those claims and grounds with great clarity on page 2-3 ofits dismissal order.

ECF 264. In short, Appellant alleged and pleaded that the defendants violated

RICO

by creating an association-in-fact enterprise with a specific structure and engaged in

widespread and continuous acts of racketeering, includingmail and wire fraud,

extortion,

and

state law extortion, to harmAppellant s business interests.

He

further alleged that the defendants violated

the Ku Klux Klan

Act 42

U.S.c.

1985 by

conspiring to deprive Appellantof his civil rights in two ways-- one involving

discriminatory animus and

the other

involving using threats and intimidation to

deter

Appellant from testifying before and cooperation with federal proceedings.

The defendants knew

what the

claims were and the grounds upon which they

rested,

and

in fact fully responded to those in their Motions to Dismiss.


4/9

The lower court held Appellant

no t

onlyto the s me st nd rds applicable to

attorneys wh o file complaints,

bu t

also to the

st nd rds

applicable to motions for

summ ry judgment For example, th e lower court found th t Appellant failed to

plead two elements of

RICO

by failing to allege material facts

bout the enterprise s

structure or the relationships between or among the RICO Defendants. ECF 264 t

page 5-6.

To th e contrary, Appellant pleaded th t th e enterprise w s the National Bloggers

Club

nd

th t the club was headed by Defendant

nd

convicted fraudster Ali Akbar,

n d th e

other

Defendants were related to the club ndDefendantAkbar in various

ways such as members, associates

nd bo r d

members.

Moreover, th e lower court found th t Appellant could no t use th e widespread

mail and wire fraud allegations

to

prove racketeering activity because Appellant did

no t

specify the time, place, and contents

ofthe

false representations, as well

s

th e

identity

of

the person making the representation and

wh t

he obtained thereby.

ECF

264

t

page

8.

But Appellant pleaded

th t

Defendant Akbar repeatedly falsely

posted online

th t

th e National Bloggers Club was a SOl

c

3) organization

n d t h t

donations to

it were

tax deductible. Appellant pleaded

th t

the club raised tens

of

thousands of dollars from this false statement, and

th t

these funds were

sent

to

DefendantAkbar via mail

nd

wire, and distributed to

other

members of th e

criminal

RICO

enterprise.

The lower court also found

th t

Appellant did no t plead wh o funneled the

fraudulent donations to DefendantAkbar or w those funds

were

allegedly

funneled to him, and therefore failed to establish money laundering...

ECF

264


5/9

page ~ 7 This despite the fact that Appellant did plead that DefendantAkbar

conned a

great

many people to give tens

of

thousands

in

donations to the National

Sloggers Club upon the fraudulent representations that it was a x deductible non

profit and that the club was raising funds based on false accusations about

Appellant

The lower court found

that Appellant failed to plead that there was a federal

court proceeding pending that the defendants deterred him from attending and

therefore did

not

properly plead a civil rights violation under section 2 of42

V S c

1985.

ECF

269. However, Appellant did plead

that

87 members ofCongress had

sent a letter to

the

AttorneyGeneral requesting the criminal prosecution of the

persons involved with illegal swatting, and that Appellant had been visited by the

F I

and had offered to cooperate with the case. This obviously included testifying

before a federal grand jury or other federal criminal prosecution.

In

short, the lower court, without even ever mentioning

or

noting that Appellant

was proceeding r

se

applied heightened pleading standards to his Complaint, all

without discovery and withoutgiving Appellant the opportunity

to file

a

RICO

Statement to provide any additional particularities the lower courtwould require.

This constitutes reversible error under

the

well-established law

of

the Supreme

Court and this Circuit

In

ordon

v

eeke

574 F.2d

47 5

4th

Cir

1978 , this Court reversed two

cases where the district courts dismissed civil rights complaints that pleaded a great

deal less than Appellant pleaded in his Complaint In the words of this Court:


6/9

T he

Fourth Circuit takes the position

th t

its district courts

must

be especially

solicitous of civil rights plaintiffs.

This solicitude for a civil rights plaintiffwith counsel must be heightened when a

civil rights plaintiff appears pro se. In the gre t run ofpro se cases, the issues re

faintly articulated and often only dimly perceived. There

is,

therefore, a greater

burden and a correlative gre ter responsibility upon the district court to insure

th t

constitutional deprivations re redressed and th t justice is done.

So,

although the Court ofAppeals cannot mean

th t

it expects the district courts to

assume

the

role ofadvocate for the pro

se

plaintiff, radiations from Burris

strongly suggest

th t the

district court must examine the pro se complaint to see

whether the facts alleged,

or

the se t offacts which the plaintiff might be able to

prove, could very well provide a basis for recovery under any ofthe civil rights

acts or heads of jurisdiction in

the

federal arsenal for redress ofconstitutional

deprivations. Accordingly, the Court in considering the defendants motion to

dismiss will not

permit

technical pleading requirements to defeat the vindication

of any constitutional rights which the plaintiff alleges, however inartfully, to have

been infringed.

As

the Supreme Court stated in

Rowe

supra, quoting

aines

supra, It is settled

law th t the allegations ofsuch a complaint, however inartfully pleaded,

re

held

to less stringent

st nd rds

than formal pleadings drafted by lawyers

In

conclusion, the lower court

erred

in dismissingAppellant s pro se Complaint for

pleading inadequacies prior to discovery.

ISSUE 2

THE

DISTRICT

COURT

ERRED

Y DISMISSING

THE

COMPL INT UNDER RULE

12 B 6

As set forth above, the lower court dismissed two counts ofthe Complaint

under Rule 12(b)(6). Such a motion is made prior to discovery and therefore should

not be granted unless the Complaint is patently frivolous. (Federal Rule of Civil

Procedure 12(b)(6) only provides for the dismissal of a complaint if it fails to state

a claim upon which reliefcan be granted. ) The question is whether in the light


7/9

most favorable to the Plaintiff, and with every doubt resolved in his behalf, the

Complaint states any valid claim for relief. 5A Wright Miller, Federal Practice and

Procedure: Civil 2d § 1357, at 336. The purpose

of

Rule 12(b)(6) is to

test

the

sufficiency

of

a complaint

and not

to resolve contests surrounding the facts, the

merits

of

a claim, or the applicability

of

defenses. Edward

v

City ofGoldsboro, 178

F.3d 231, 243 (4th

Cir

1999). The court, when deciding a motion to dismiss, must

consider weII-pled allegations in a complaint as true and must construe those

allegations in favor

ofthe

plaintiff. Scheuer

v

Rhodes, 416 U S 232, 236 (1974). The

office ofa motion to dismiss is merely to assess the legal feasibility of the complaint,

not to assay the weight

ofthe

evidence in support. This rule s purpose is to test

the

sufficiency of a complaint and not to resolve contests surrounding

the

facts, the

merits ofa claim, or the applicability

of

defenses. Presley v City of

Charlottesville, 464 F.3d 48 483 4th

ir

2006 . Specifically, a complaintmust

contain a short and plain

statement of

the claim showing

that

the pleader is entitled

to relief, Fed. Civ P 8(a) (2), and must state a plausible claim for relief. Bell

Atlantic

orp v

Twombly,

550 U S 544 (2007), and

Ashcroft v.lqbal,

U S

662

(2009). A claim has facial plausibility when the plaintiff pleads factual content that

aIIows the court to draw the reasonable inference

that

the defendant is liable for the

misconduct alleged. Iqbal, 556 U S at 663.

In

the instant case, the lower court applied heightened pleadingstandards to

the

Complaint as if it were a Motion for Summary Judgment (or trial) and as ifAppellant

was not proceeding pro se. In doing so it failed to follow

Presley, Bell,

or

Iqbal.


8/9

Clearly, the Complaint was plausible enough to give the defendants notice of the

claims and the grounds upon which they rested, and the lower court admitted as

much. However, the lower court found

th t

since Appellant had

not

proven his case

by detailing every aspectof the RI O and 1985 claims, the case could not proceed.

This puts the cart before the horse and placesAppellant in the position of proving

his case prior to getting discovery. For example, with discovery, Appellant could

show who sentmoney to the fraudulent National Bloggers

lub

and what Defendant

Akbar did with th t money. He could show the structure of the

RI O

enterprise and

the relationships

of

the Defendants.

He

could show

th t

there was a federal grand

jury taking testimony about the Defendants and th t Plaintiffwas an intended

witness. Indeed, he could show all the elements th t the court found th tAppellant

did not adequately plead.

ARule 12 b) 6) motion should not be granted unless it appears beyond doubt

th t

the plaintiff can prove no

set

of facts in support of his claim which would entitle

him to relief.

Conley

v

Gibson 355

U S

41, 45-46 1957); see also Swierkiewicz v

Sorema N A 534 U S 506, 514 2002) explaining

th t

a court may dismiss a

complaint only if it is clear

th t

no reliefcould be granted un er any set of facts th t

could be proved consistent with the allegations Moreover, as this Court stated,

when, as here, a defendant seeks dismissal of a civil rights complaint, we must be

especially solicitous

ofthe

wrongs alleged and

must not dismiss the complaint

unless it appears to a certainty that the plaintiffwould not be entitled to reliefunder

any legal theory which might plausibly be suggested by thefacts alleged. Edward 8

F.3d t 244. emphasis added).


9/9

n

the instant case the lower

court

dismissed Appellant s civil rights complaint

based on

what it

perceived were pleading inadequacies. It did not find that the

Complaint was frivolous

or

that Appellant could not prove his claims even with

discovery. Instead the lower court contrary to binding precedent in this Court and

the Supreme Court simply dismissed this very serious Complaint pre-discovery.

This constitutes reversible error.

on lusion

For the foregoing reasons this Court should reverse the lower court s March 17 L

2015 dismissal

of

the

two counts

as

clarified on March

26 2015

Brett i

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