26 Jan Federal Wrongful Death Suit Review – a Lawyer’s Sufficiency (FRCP 12)
The sufficiency of §1983 civil rights wrongful death and other federal suits is scrutinized in the light most favorable to the plaintiff, particularly when the initial complainant is pro se. Avery T. “Sandy” Waterman, Jr., Esq. recently prevailed on the point against Rule 12Motions to Dismiss in Webb v. Stevens, 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983.
The United States Supreme Court has declared that the general “inartfully pleaded” allegations of a pro se §1983 civil rights complaint are held to “less stringent standards”. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-521 (1972) (reversing Fed. R. Civ. P. 12dismissal). “It is now established doctrine that pleadings should not be scrutinized with such technical nicety that a meritorious claim should be defeated, and even if the claim is insufficient in substance, it be amended to achieve justice. [A] complaint, especially a pro se complaint, should not be dismissed summarily 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….” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.), cert. denied, 439 U.S. 970 (1978) (emphasis in original) (reversing Rule 12 dismissal of pro se §1983 civil rights complaints). “The Fourth Circuit takes the position that its district courts must be especially solicitous of civil rights plaintiffs….This solicitude for a civil rights plaintiff with counsel must be heightened when a civil rights plaintiff appear pro se.” Id.
Since “a pro se complaint must be read liberally,” the “power summarily to dismiss…is limited”. See, e.g., Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978) (reversing Rule 12 dismissal of pro se §1983 civil rights complaint). See also, e.g., Bolding v. Hoshouser, 575 F.2d 461 (4th Cir.), cert. denied, 439 U.S. 837 (1978)(manifest that broad sweeping pro se complaint of constitutional deprivations is immune from Rule 12 dismissal). “Pro se complaints and petitions should be construed liberally by this court. Such pro se complaints and petitions are held to a less stringent standard than those drafted by attorneys. A federal district court is charged with liberally construing a complaint or petition file by a pro se litigant to allow the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 66 L.Ed.2d. 163 (1980).” Phomphackdi v. Spartanburg County, 2007 U.S. Dist. LEXIS 19895, *4 (D.S.C. Mar. 20, 2007)(citation omitted).
Rule 12 tests the sufficiency of a Complaint. On 12(b)(6) motion, “we accept as true the allegations of the complaint.” Adams v. Bain, 697 F.2d 1213, 1217 (4th Cir. 1982) (reversing and remanding dismissal of §1983 civil rights action). In addition, the court also may consider “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.” Wu v. Tseng, 2007 U.S. Dist. LEXIS 5025 (E.D. Va. 2007)(quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §1357 (1990). See, Anheuser Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995), vacated on other grounds, 517 U.S. 1206 (1996). “The same standard is applied to a Rule 12(c) motion as for a Rule 12(b)(6) motion to dismiss.” See, e.g., Syngenta Crop Protection, Inc. v. United States, 444 F.Supp.2d 435, 444 (M.D. N.C. 2006).
It is hornbook law that the Court cannot consider Exhibits submitted by Defendant without converting the 12(b)(6) motion to a Rule 56 motion, giving Plaintiff sufficient advance notice of the same, and permitting full discovery with which to oppose it. A 12(b)(1)motion is “critically different” than a 12(b)(6) motion: “Unlike the procedure in a 12(b)(6) motion where there is a presumption reserving the truth finding role to the ultimate fact finder, the court in 12(b)(1) hearing weighs the evidence to determine jurisdiction.” See, e.g., Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (§1983 civil rights dismissal reversed and remanded). “A trial court may consider evidence [on a 12(b)(1) motion] by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Id. Significantly, however, 12(b)(1) motions should be denied where underlying “jurisdictional facts are intertwined with the facts central to the merits of the dispute. It is the better view that in such cases the entire factual dispute is appropriately resolved only be a proceeding on the merits.” Adams.