United States District Court, D. Massachusetts
KEVIN M. FOURNIER, Plaintiff,
GOVERNOR CHARLIE BAKER, Defendant.
H. HENNESSY UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant Governor
Baker's motion to dismiss. (Docket #14). Pro se plaintiff
Kevin M. Fournier has filed an opposition to the motion.
(Dockets #16, 19). This matter is now ripe for adjudication.
For the reasons that follow, the motion to dismiss (Docket
#14) is ALLOWED.
of the Federal Rules of Civil Procedure provides, in relevant
part, that “[a] pleading that states a claim for relief
must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The statement must “give the
defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests.” Phelps v.
Local 0222, No. 09-11218-JLT, 2010 U.S. Dist. LEXIS
88007, at *13 (D. Mass. Aug. 20, 2010) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002)). In addition, the pleadings must afford the
defendants “a meaningful opportunity to mount a
defense.” Diaz-Rivera v. Rivera-Rodriguez, 377
F.3d 119, 123 (1st Cir. 2004) (quotation omitted). At a
minimum, “the complaint should at least set forth
minimal facts as to who did what to whom, when, where, and
why - although why, when why means the actor's state of
mind, can be averred generally.” Educadores
Puertorriquenos En Accion v. Hernandez, 367 F.3d 61, 68
(1st Cir. 2004). While the “First Circuit holds a pro
se litigant to a standard of pleading less stringent than
that for lawyers, ” “this cannot be taken to mean
that pro se complaints are held to no standard at all.”
Green v. Massachusetts, 108 F.R.D. 217, 218 (D.
motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court
“must assume the truth of all well-plead[ed] facts and
give the plaintiff the benefit of all reasonable inferences
therefrom.” Ruiz v. Bally Total Fitness Holding
Corp., 496 F.3d 1, 5 (1st Cir. 2007). “Under Rule
12(b)(6), the district court may properly consider only facts
and documents that are part of or incorporated into the
complaint; if matters outside the pleadings are considered,
the motion must be decided under the more stringent standards
applicable to a Rule 56 motion for summary judgment.”
Rivera v. Centro Medico de Turabo, Inc., 575 F.3d
10, 15 (1st Cir. 2009) (quoting Trans-Spec Truck Serv.,
Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir.
2008)). There lies an exception to this rule “for
documents the authenticity of which are not disputed by the
parties; for official public records; for documents central
to plaintiffs' claim; or for documents sufficiently
referred to in the complaint.” Id. (quoting
Alternative Energy, Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).
survive a motion to dismiss, a plaintiff must “state a
claim that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555 (internal
citations omitted). “The plausibility standard is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 556).
Despite this generous standard, “Rule 12(b)(6) is not
entirely a toothless tiger . . . [t]he threshold for stating
a claim may be low, but it is real.” Dartmouth Rev.
v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir. 1989)
(quotation omitted). The complaint must therefore “set
forth factual allegations, either direct or inferential,
respecting each material element necessary to sustain
recovery under some actionable legal theory.”
Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st
Cir. 1988); see DM Research, Inc. v. Coll. Of Am.
Pathologists, 170 F.3d 53, 55 (1st Cir. 1999)
(explaining that the complaint must “allege a
factual predicate concrete enough to warrant further
the complaint need not provide “detailed factual
allegations, ” Twombly, 550 U.S. at 555, it
must “amplify a claim with some factual allegations . .
. to render the claim plausible, ” Iqbal v.
Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). Thus, the
complaint must provide “the grounds upon which [the
plaintiff's] claim rests through factual allegations
sufficient ‘to raise a right to relief above the
speculative level.'” ATSI Commc'ns v. Shaar
Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 555). “A pleading that
offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555). Dismissal is
appropriate if a plaintiff's well-pleaded facts do not
“possess enough heft to show that [the] plaintiff is
entitled to relief.” Ruiz Rivera v. Pfizer Pharms.,
LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and
original alterations omitted).
complaint, Fournier alleges claims of medical malpractice,
improper surveillance, and defamation. (Docket #3). In the
caption of his complaint, he names as the defendant the
“U.S. Government.” (Id. at 1).
Underneath the caption, it states: “attention: Governor
Charlie Baker.” (Id.). On the sixth page of
his complaint, Fournier writes the caption as
“Defendant(s) = Governor Charlie Baker” and
underneath that line “United States Government.”
(Id. at 6). None of the allegations in the complaint
identifies or refers to Governor Baker. (See id.).
Instead they refer to the actions of the “United States
Government, ” or, in one case, “The
Government.” (See id.).
Baker now moves to dismiss this action arguing that Fournier
had failed to make any factual allegations against him.
(Docket #15 at 1). In his opposition to the motion, Fournier
states that he “repeatedly used the term Government as
a pronoun to take place of the noun Charlie Baker.”
(Docket #19 at 1-2). He submits the same in his Motion to
alter or amend. (Docket #16). However, it is clear that
the Government to which he refers is the United States
Government, an entity which Governor Baker, the Governor of
the Commonwealth of Massachusetts, does not represent.
Thus, Fournier has failed to offer factual allegations
sufficient to raise a right to relief against Governor Baker
above the speculative level, and, therefore, the complaint
must be dismissed. See Twombly, 550 U.S. at 555.
foregoing reasons, I ORDER that the Motion to Dismiss (Docket
#14) be ALLOWED WITHOUT PREJUDICE. Having dismissed the
complaint without prejudice, I also hereby ORDER that the
Motions to Appoint Counsel (Dockets #13, 18), the Motion for
Leave to Proceed in forma pauperis (Docket #17), and the
Motion to Schedule a Pretrial Conference (Docket #20) are
hereby DISMISSED AS MOOT.