Rizzo v. Biden

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JUSTICIA RIZZO, )

)

Plaintiff, )

)

v. ) No. 3:22-cv-00151

)

SENATOR CHUCK )

SCHUMER, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Justicia Rizzo filed a Motion for Preliminary Injunction against President Joseph R. Biden,

Jr., Senator Chuck Schumer, and Speaker of the House Nancy Pelosi. (Doc. No. 1). On March 4,

2022, the Court ordered Rizzo to properly initiate this action by submitting a signed Complaint.

(Doc. No. 5). Thereafter, Rizzo submitted an “Amended Motion for Preliminary Injunction.” (Doc.

No. 6). The Court denied Rizzo’s Amended Motion without prejudice for failure to comply with

the mandatory requirements of Federal Rule of Civil Procedure 65 and Local Rule 65.01. (Doc.

No. 10). In addition, the Court ordered Rizzo to “comply with the Court’s March 4 Order by timely

submitting a signed Complaint or face dismissal of this action.” Id. In response, Rizzo submitted

a “Complaint with Request for Preliminary Injunction and Temporary Restraining Order” against

Senator Chuck Schumer, Speaker of the House Nancy Pelosi, and Senator Mitch McConnell.1

(Doc. No. 11).

1 This document is accompanied by a Motion to Amend Defendants. Plaintiff, however, had not initiated

this action prior to submission of the Complaint. As the master of her Complaint, Rizzo may sue the

defendants of her choice. Thus, the Moton to Amend Defendants (Doc. No. 12) is DENIED AS MOOT.

Federal Rule of Civil Procedure 8 directs that the Complaint must contain a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1).

Thus, the Court twice ordered Rizzo to “set forth . . . specific legal claims against Defendants and

include factual allegations sufficient to demonstrate a plausible, non-speculative right to right to

relief.” (Doc. Nos. 5, 10). Although the Complaint is difficult to parse, the gravamen appears to

be that Rizzo was wrongfully terminated by the U.S. Department of Veteran’s Affairs in 2014 and

suffered rights violations in connection with proceedings before the U.S. Merit Systems Protection

Board (“MSPB”). (Doc. No. 11 at 8). The Complaint, however, neither brings a discernable claim

against Defendants Schumer, Pelosi, or McConnell, nor alleges that Defendants knew about or

participated in the complained-of events. (See Doc. No. 11). Rather, Defendants appear to have

been named because they are involved in the confirmation of Judge Ketanji Brown Jackson to the

U.S. Supreme Court that Rizzo seeks to enjoin.2 Id. at 10-11. Accordingly, the Complaint is

speculative and fails to satisfy the requirements of Federal Rule of Civil Procedure 8(a). See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (explaining that, under Rule 8(a), a complaint

must raise a right to relief above the speculative level). Moreover, the Court cannot discern what

cause of action Rizzo may wish to bring against Defendants because the rambling Complaint is to

difficult to parse. See Brown v. Mastauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a

court “cannot create a claim which [a plaintiff] has not spelled out in his pleading”); Young Bok

2 The Complaint appears to suggest that Defendants violated Rizzo’s due process rights by failing to confirm

certain nominees in a timely fashion. (See Doc. No. 11 at 7). However, Rizzo does not plausibly allege that

the pace of confirmations has deprived her of a constitutionally protected property interest or liberty

interest, Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989), or show that the rapid

confirmation of MSPB nominees “rise[s] to more than ‘an abstract need or desire’” based on “unilateral

hope.” Id. (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Conn. Bd. of Pardons v. Dumschat,

452 U.S. 458, 465 (1981)); see also Compl. at 11 (explaining that Rizzo seeks to “force the hand of the US

Senate to do their job”).

Song v. Gipson, 423 F. App’x 506, 510 (6th Cir. 2011) (explaining that the Court’s role is not “to

ferret out the strongest cause of action on behalf of” pro se litigants or advise “as to what legal

theories they should pursue”).

Accordingly, to proceed in this matter Rizzo MUST submit an Amended Complaint that,

at a minimum, puts Defendants on notice of the legal basis of each claim and includes factual

allegations sufficient to demonstrate a plausible right to right to relief against Defendants that rises

above the speculative level. If appropriate, Rizzo may name additional Defendants. In any event,

Rizzo should set forth, in a short, plain, and understandable manner, the “who, what, where, when,

why, and how” of events giving rise to her specific claims. The Clerk SHALL mail Plaintiff a

blank Complaint for a Civil Case (Pro Se 1). The Court MUST receive the Amended Complaint

within 30 DAYS of the date this Order is entered on the docket. Failure to comply or request an

extension by the deadline will result in dismissal of the Complaint. Fed. R. Civ. P. 41(b).

Finally, the request for temporary injunctive relief under Rule 65(b) included in the

Complaint is DENIED WITHOUT PREJUDICE, because Rizzo has failed to comply with the

mandatory requirements of Federal Rule of Civil Procedure 65(b)(1)(A) and (B) and Local Rule

65.01(b) and (c). As previously explained by the Court, these rules require a party seeking a

temporary restraining order to provide (a) specific facts in a separately-filed affidavit or a verified

complaint that clearly show immediate and irreparable injury, loss, or damage will result to the

movant before the adverse party can be heard in opposition; and (b) explain in writing efforts made

to give notice to the adverse party and the reasons why it should not be required. See Fed. R. Civ.

P. 65(b); M.D. Tenn. L. R. 65.01(b).

IT IS SO ORDERED.

WAVERLY é RENSHAW. JR.

CHIEF UNITED STATES DISTRICT JUDGE