Terry v. Robinett (MAG+)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

STACY TERRY, )

)

v. ) NO. 2:20-cv-01058-RAH-SRW

)

MATT W. ROBINETT, et al., )

)

Defendants. )

REPORT AND RECOMMENDATION1

Before the court are the following motions: Defendants Lowe’s Home Centers, LLC,

Christopher B. Owens, and Joseph E. Stott’s motion to dismiss (Doc. 13); Defendants Henry Lewis

Gillis and Kristen Gillis’s motion to dismiss or, in the alternative, for more definite statement (Doc.

20); Defendant Judge Johnny Hardwick’s motion to dismiss (Doc. 22); Defendant Judge Brooke

Reid’s motion to dismiss (Doc. 23); Defendant Judge Tiffany McCord’s motion to dismiss (Doc.

24); Defendant Judge Gregg Griffin’s motion to dismiss (Doc. 25); Defendant Judge J.R. Gaines’s

motion to dismiss (Doc. 26); Defendant Matthew W. Robinett’s motion to dismiss (Doc. 29);

Defendant The Phoenix Insurance Company’s motion for a more definite statement (Doc. 31) and

motion to dismiss (Doc. 81); Defendant Amanda Beshear Cook’s motion to dismiss or, in the

alternative, motion for summary judgment (Doc. 35); and Defendant C. Mark Bain’s motion to

dismiss (Doc. 42).

For the reasons set forth below, the court concludes that Plaintiff’s complaint is due to be

dismissed without prejudice, that Plaintiff should be granted leave to file an amended complaint,

1 United States District Judge R. Austin Huffaker, Jr., referred this matter to the undersigned

Magistrate Judge for further proceedings and determination or recommendation as may be

appropriate pursuant to 28 U.S.C. § 636. See Doc. 4.

and that all of Defendants’ motions are due to be denied without prejudice.

I. Introduction and Background

Plaintiff Stacy Terry filed this pro se action against the following defendants: Lowe’s

Home Centers, LLC; Christopher B. Owens; Joseph E. Stott; Henry Lewis Gillis; Kristen Gillis;

Judge Johnny Hardwick; Judge Brooke Reid; Judge Tiffany McCord; Judge Gregg Griffin; Judge

J.R. Gaines; Matthew W. Robinett; The Phoenix Insurance Company; Amanda Beshear Cook; and

C. Mark Bain. Plaintiff alleges that the court has subject matter jurisdiction pursuant to 28 U.S.C.

§ 1331. The complaint asserts violations of some 48 different federal, state and foreign statutes,

rules, and canons including those relating to civil rights violations under 42 U.S.C. § 1983, breach

of contract, insurance fraud, criminal civil rights violations, wire fraud, criminal identity theft,

consumer law in the United Kingdom, Connecticut civil and criminal statutes of limitations, and

violations of the Alabama Rules of Professional Conduct.

Plaintiff’s complaint consists of 61 paragraphs and attaches 246 exhibits. Throughout her

complaint Plaintiff makes factual allegations but does not tie these specifically to the federal, state,

or local statutes or laws on which Plaintiff relies to assert her claims or specify which allegations

and claims apply to which defendant. The complaint is not divided by counts or causes of action

and indiscriminately groups defendants together. Plaintiff’s claims appear to arise out of previous

litigation in Alabama state court actions and proceedings involving Lowe’s, a used car dealer, an

apartment complex where she previously resided, and at least one lawyer who represented her in

the case against the apartment complex. The confused and vague nature of Plaintiff’s complaint is

best exemplified in her paragraph entitled, “In Closing,” which states:

The Defendant, under the Color of Law, under the Color of State Law in his or her

capacity as officers of the Court, and those Defendants that are governed by Canon

law, is complicit in their unlawful acts, via internet, social network, ex parte

communications, fraud upon the Court, manufactured, forged, altered documents

Court documents, fraudulent claims filed with Medicare (Medicaid), Duress, Legal

Malpractice Insurance, fraud, Breach of Contract under false pretenses, threats,

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intimidation, Identities Theft, harassment, Gross Incompetency, Legal malpractice,

discrimination, accost, conspired in concert to denies the right to Procedural Due

Process, Substantive Due Process, rights that are protected, guaranteed by the

United States Constitutional Amendments.

(Doc. 1, at 19-20).

II. Legal Standards

A. Dismissal under Rule 12(b)(6)

To survive a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P.

12(b)(6), the plaintiff must allege “enough facts to state a claim for relief that is plausible on its

face.” Bell Atlantic Corp., v. Twombly, 550 U.S. 544, 570 (2007). The standard for a motion to

dismiss under Rule 12(b)(6) was explained in Twombly, and refined in Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009), as follows:

Two working principles underlie our decision in Twombly. First, the tenet that a

court must accept as true all the allegations contained in a complaint is inapplicable

to legal conclusions. Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice. Rule 8 marks a notable

and generous departure from the hypertechnical, code-pleading regime of a prior

era, but it does not unlock the doors of discovery for a plaintiff armed with nothing

more than conclusions. Second, only a complaint that states a plausible claim for

relief survives a motion to dismiss. Determining whether a complaint states a

plausible claim for relief will … be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense. But where

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 shown – that the pleader

is entitled to relief.

Iqbal, 556 U.S. at 678–79 (citations and internal edits omitted).

The Twombly-Iqbal two-step analysis begins “by identifying the allegations in the

complaint that are not entitled to the assumption of truth” because they are conclusory. Id. at 680;

Mamani v. Berzain, 654 F. 3d 1148, 1153 (11th Cir. 2011) (“Following the Supreme Court’s

approach in Iqbal, we begin by identifying conclusory allegations in the Complaint.”). After

conclusory statements are set aside, the Twombly-Iqbal analysis requires the Court to assume the

veracity of well-pleaded factual allegations, and then to determine whether they “possess enough

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heft to set forth ‘a plausible entitlement to relief.’” Mack v. City of High Springs, 486 F. App’x 3,

6 (11th Cir. 2012) (citation omitted.) “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’ …

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (citations omitted). Establishing facial plausibility, however,

requires more than stating facts that establish mere possibility. Mamani, 654 F. 3d at 1156 (“The

possibility that—if even a possibility has been alleged effectively—these defendants acted

unlawfully is not enough for a plausible claim.”) (emphasis in original). Plaintiffs are required to

“allege more by way of factual content to nudge [their] claim[s] … across the line from conceivable

to plausible.” Iqbal, 556 U.S. at 683 (internal editing and citation omitted.).

In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained

in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.

See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000). In considering a motion

to dismiss, this court accepts all of the allegations in the complaint as true and construes them in

the light most favorable to the plaintiff. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.

2008). Moreover, the court “presume[s] that general allegations embrace those specific facts that

are necessary to support the claim.” Nat’l Org. for Women v. Scheidler, 510 U.S. 249, 256 (1994)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). The court need not, however,

accept legal conclusions couched in the form of factual allegations. See Diverse Power, Inc. v. City

of LaGrange, Georgia, 934 F.3d 1270, 1273 (11th Cir. 2019) (citing Twombly, 550 U.S. at 555).

While pro se complaints are liberally construed and are held “to less stringent standards

than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), “that does

not give ‘a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient

pleading in order to sustain an action.’” Woodroffe v. Fla. Dep't of Fin. Servs., 774 F. App’x 553,

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554 (11th Cir. 2019) (citation omitted); Beckwith v. Bellsouth Telecommunications Inc., 146 F.

App’x 368, 371 (11th Cir. 2005) (“Although we construe them liberally, pro se complaints also

must comply with the procedural rules that govern pleadings.”).

B. Pleading-Rules 8(a)(2) and 10(b)

Federal Rule of Civil Procedure 8(a)(2) provides that a 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)(2). “Each allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). The purpose

of Rule 8(a)(2)’s pleading requirement is to “‘give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (citation omitted). Federal Rule

10(b) requires that “[a] party must state its claims . . . in numbered paragraphs, each limited as far

as practicable to a single set of circumstances,” and that “[i]f doing so would promote clarity, each

claim founded on a separate transaction or occurrence . . . must be stated in a separate count . . . .”

Fed. R. Civ. P. 10(b).

The purpose of [Rule 8(a)(2) and Rule 10(b)] is self-evident, to require the pleader

to present his claims discretely and succinctly, so that, his adversary can discern

what he is claiming and frame a responsive pleading, the court can determine which

facts support which claims and whether the plaintiff has stated any claims upon

which relief can be granted, and, at trial, the court can determine that evidence

which is relevant and that which is not.

Weiland v. Palm Beach Cty. Sheriff’s Office, 792 F.3d 1313, 1320 (11th Cir. 2015) (citation

omitted).

C. Pleading Fraud-Rule 9(b)

Further, when a complaint alleges fraud, Rule 9(b) of the Federal Rules of Civil Procedure

requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances

constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind

may be alleged generally.” Fed. R. Civ. P. 9(b). “The particularity rule serves an important purpose

in fraud actions by alerting defendants to the ‘precise misconduct with which they are charged’

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and protecting defendants ‘against spurious charges of immoral and fraudulent behavior.’”

Durham v. Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988) (citation omitted). According

to the Eleventh Circuit:

Rule 9(b) is satisfied if the complaint sets forth “(1) precisely what statements were

made in what documents or oral representations or what omissions were made, and

(2) the time and place of each such statement and the person responsible for making

(or, in the case of omissions, not making) same, and (3) the content of such

statements and the manner in which they misled the plaintiff, and (4) what the

defendants obtained as a consequence of the fraud.”

Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (citation omitted); Am. Dental

Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010). “Furthermore, Rule 9(b) requires

more than conclusory allegations that certain statements were fraudulent; it requires that a

complaint plead facts giving rise to an inference of fraud.” W. Coast Roofing & Waterproofing,

Inc. v. Johns Manville, Inc., 287 F. App’x 81, 86 (11th Cir. 2008). Thus, while not every element

must be stated with particularity, the plaintiff must plead more than generalized or conclusory

statements setting out the fraud. Knight v. Insulspan, Inc., No. 7:05-CV-02461-LSC, 2008 WL

11422535, at *4 (N.D. Ala. Jan. 17, 2008). “The particularity requirement of Rule 9(b) . . . still

applies to pro se litigants, even though courts generally will allow pro se litigants some leniency.”

Shabazz v. Bank of Am., No. 1:10-CV-0813-RWS-AJB, 2010 WL 11647333, at *12 (N.D. Ga.

Oct. 26, 2010), report and recommendation adopted, No. 1:10-CV-0813-RWS, 2010 WL

11647469 (N.D. Ga. Nov. 29, 2010).

D. Shotgun Pleading

“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often disparagingly

referred to as ‘shotgun pleadings.’” Weiland, 792 F.3d at 1320. “Courts in the Eleventh Circuit

have little tolerance for shotgun pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295

(11th Cir. 2018); Nurse v. Sheraton Atlanta Hotel, 618 F. App’x 987, 990 (11th Cir. 2015) (“We

have condemned shotgun pleadings for decades.”). “A shotgun pleading is one where ‘it is

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virtually impossible to know which allegations of fact are intended to support which claim(s) for

relief.’” Nurse, 618 F. App’x at 990 (quoting Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty.

Coll., 77 F.3d 364, 366 (11th Cir. 1996)); Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x

274, 277 (11th Cir. 2008) (citation omitted) (“A complaint that fails to articulate claims with

sufficient clarity to allow the defendant to frame a responsive pleading constitutes a ‘shotgun

pleading.’”). Shotgun pleadings present courts with “‘the cumbersome task of sifting through

myriad claims, many of which [may be] foreclosed by [various] defenses.’” Anderson, 77 F.3d at

367 (citation omitted); Beckwith, 146 F. App’x at 372 (citation omitted) (“We do not require the

district court, or the defendants, to ‘sift through the facts presented and decide for [itself] which

were material to the particular cause of action asserted.’”); Byrne v. Nezhat, 261 F.3d 1075, 1130

(11th Cir. 2001), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S.

639 (2008), as recognized in Tarcoronte v. Cohen, 654 F. App’x 445, 449 (11th Cir. 2016)

(“[S]hotgun pleadings wreak havoc on the judicial system.”). “Such pleadings divert already

stretched judicial resources into disputes that are not structurally prepared to use those resources

efficiently.” Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273, 1279 (11th Cir. 2006); PVC

Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 806 n.4 (11th Cir. 2010) (“Shotgun

pleadings impede the administration of the district courts’ civil dockets in countless ways. The

district court, faced with a crowded docket and ‘whose time is constrained by the press of other

business, is unable to squeeze the case down to its essentials.’”) (citation omitted). “Experience

teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not

controlled, the trial court’s docket becomes unmanageable, the litigants suffer, and society loses

confidence in the court’s ability to administer justice.” Anderson, 77 F.3d at 367.

The Eleventh Circuit has identified four types of shotgun pleadings: (1) pleadings that

“contain[ ] multiple counts where each count adopts the allegations of all preceding counts, causing

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each successive count to carry all that came before and the last count to be a combination of the

entire complaint;” (2) pleadings that are “guilty of the venial sin of being replete with conclusory,

vague, and immaterial facts not obviously connected to any particular cause of action;” (3)

pleadings that “commit[ ] the sin of not separating into a different count each cause of action or

claim for relief;” and (4) pleadings that commit “the relatively rare sin of asserting multiple claims

against multiple defendants without specifying which of the defendants are responsible for which

acts or omissions, or which of the defendants the claim is brought against.” Weiland, 792 F.3d at

1321-23 (footnotes omitted).

“Under the Federal Rules of Civil Procedure, a defendant faced with a [shotgun] complaint

. . . is not expected to frame a responsive pleading. Rather, the defendant is expected to move the

court, pursuant to Rule 12(e), to require the plaintiff to file a more definite statement.” Anderson,

77 F.3d at 366; see Fed. R. Civ. P. 12(e) (“A party may move for a more definite statement of a

pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the

party cannot reasonably prepare a response.”). “[I]f, in the face of a shotgun complaint, the

defendant does not move the district court to require a more definite statement, the court, in the

exercise of its inherent power, must intervene sua sponte and order a repleader.” Byrne, 261 F.3d

at 1133. “A district court has the ‘inherent authority to control its docket and ensure the prompt

resolution of lawsuits,’ which includes the ability to dismiss a complaint on shotgun pleading

grounds.” Vibe Micro, 878 F.3d at 1295 (citation omitted). “‘This is so even when the other party

does not move to strike the pleading.’” Novero v. Duke Energy, 753 F. App’x 759, 765 (11th Cir.

2018) (quoting Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358 (11th Cir. 2018)). “This

authority includes the ability to strike sua sponte a complaint that does not comply with the

pleading standards in Federal Rule of Civil Procedure 8(a) and to order the plaintiff to file an

amended complaint curing the deficiencies.” Adeniji v. Att’y Gen. Middle Dist. of Fla., 786 F.

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App’x 1002 (11th Cir. 2019) (citing Vibe Micro, 878 F.3d at 1295); see also Wagner, 464 F.3d at

1280 (“Given the district court’s proper conclusions that the complaint was a shotgun pleading

and that plaintiffs[ ] failed to connect their causes of action to the facts alleged [in a manner

sufficient to satisfy Rule 9(b)], the proper remedy was to order repleading sua sponte.”).

“[I]n a case in which a party, plaintiff or defendant, files a shotgun pleading, the district

court ‘should strike the [pleading] and instruct [the party] to replead the case—if [the party] could

in good faith make the representations required by Fed. R. Civ. P. 11(b).’” Jackson, 898 F.3d at

1357 (citation omitted).2, 3 “This initial repleading order comes with an implicit ‘notion that if the

2 Rule 11(b) provides:

By presenting to the court a pleading, written motion, or other paper--whether by

signing, filing, submitting, or later advocating it--an attorney or unrepresented party

certifies that to the best of the person's knowledge, information, and belief, formed

after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law

or by a nonfrivolous argument for extending, modifying, or reversing existing law

or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified,

will likely have evidentiary support after a reasonable opportunity for further

investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if

specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b).

3 In Isaac v. United States, 809 F. App’x 595 (11th Cir. 2020), the Eleventh Circuit found that the

district court abused its discretion when it dismissed without prejudice the pro se plaintiff’s

complaint sua sponte because it failed to give the plaintiff an opportunity to replead his claims. Id.

at 599. The Court cited Vibe Micro, 878 F.3d at 1295-96 for the proposition that “district courts

should give litigants one opportunity to remedy a deficient pleading,” noting that “[w]hile this

Court said that Vibe Micro applied to counseled parties, there is no indication that it would not

apply to pro se litigants, especially since pro se parties are entitled to more leniency.” Isaac, 809

F. App’x at 599.

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plaintiff fails to comply with the court’s order—by filing a repleader with the same deficiency—

the court should strike his pleading or, depending on the circumstances, dismiss his case and

consider the imposition of monetary sanctions.’” Vibe Micro, 878 F.3d at 1295 (citation omitted).

Also, “[i]n the repleading order, the district court should explain how the offending pleading

violates the shotgun pleading rule so that the party may properly avoid future shotgun pleadings.”

Id. at 1296. “A chance to amend a complaint does not need to come in the form of a dismissal

without prejudice or the striking of a portion of the complaint’s allegations. It can also be

accomplished by ordering the party to file a more definite statement. . . . [T]he key is whether the

plaintiff had fair notice of the defects and a meaningful chance to fix them.” Jackson, 898 F.3d at

1358.

III. Discussion

Defendants have filed their respective motions to dismiss under various grounds. However,

in addition to their motions to dismiss for failure to state a claim, some defendants, namely Henry

Gillis, Kristen Gillis, Judge Hardwick, Judge Reid, Judge McCord, Judge Griffin, Judge Gaines,

and The Phoenix Insurance Company, have also moved for a more definite statement. See Docs.

20; 22, at 4; 23, at 4; 24, at 4; 25, at 4; 26, at 4; and 31. Although Plaintiff did not file a separate

motion seeking leave to amend her complaint, she has requested in some of her responses the

opportunity to do so. See Docs. 37, at 2; 38, at 8.

Plaintiff’s 21-page, 61-numbered paragraph complaint with 246 exhibits is a textbook

example of a shotgun pleading, as the complaint is “replete with conclusory, vague, and immaterial

facts not obviously connected to any particular cause of action”; does not separate “into a different

count each cause of action or claim for relief”; and asserts “multiple claims against multiple

defendants without specifying which of the defendants are responsible for which acts or omissions,

or which of the defendants the claim is brought against.” Weiland, 792 F.3d at 1322-23. At the

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beginning of her complaint, Plaintiff names numerous federal and state statutes, rules, and canons

under which she requests relief. (Doc. 1, at 1, 5). However, Plaintiff thereafter makes factual

allegations with no reference to the specific federal, state, or local statutes or laws on which she

bases her claims. The complaint “does not separate h[er] claims by cause of action, draw any clear

lines between the legal and factual bases for h[er] claims, or set forth the elements of any of h[er]

claims.” Toth v. Antonacci, 788 F. App’x 688, 691 (11th Cir. 2019), cert. denied, 140 S. Ct. 2723

(2020), reh’g denied, 141 S. Ct. 211 (2020). Further, the complaint is not clear as to which

allegations of fact are intended to support the claims cited at the beginning of the complaint.

Instead, Plaintiff appears to rely upon every preceding paragraph of the 21-page complaint as

support for her claims. As Plaintiff does not identify which “allegations of fact are intended to

support which claim(s) for relief,” she makes it “virtually impossible to know” from her complaint

which facts support which claims. Anderson, 77 F.3d at 366; Weiland, 792 F.3d at 1320.

Moreover, Plaintiff does not attempt to identify the specific federal or state laws under

which she asserts her specific claims, her supporting factual allegations are rambling and vague,

and her legal assertions are incomprehensible and conclusory. “Only a few of her claims [are]

specific as to any defendant, and the relevant facts [are] not segregated to each of their respective

claims. It is virtually impossible to ascertain what factual allegations correspond with each claim

and which claim is directed at which defendant.” Beckwith, 146 F. App’x at 372; Brown v.

Alabama Dep’t of Corr., No. 2:19-cv-91-WKW, 2019 WL 4780801, at *3 (M.D. Ala. Sept. 30,

2019) (in identifying the complaint as a shotgun pleading, the court noted, “The count does not

specify under what theory each Defendant allegedly is liable or what conduct forms the basis of

liability.”). Plaintiff does not allege how each Defendant is responsible for or was the cause of

each of the alleged statutory and constitutional violations that she asserts. The result is confusion

both for Defendants in trying to frame a responsive pleading and for the court in trying to determine

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the scope of Plaintiff’s claims. Further, in light of the fact that Plaintiff asserts allegations sounding

in fraud throughout her complaint, she fails to make clear factual allegations that satisfy the

particularity requirement of Federal Rule of Civil Procedure 9(b). She also appears to make claims

under criminal laws and other statutes and rules that are not cognizable in a civil complaint brought

before this court.

Given the deficiencies in the pro se Plaintiff’s complaint, the court concludes that, based

upon the District Court’s inherent authority to manage its docket, the appropriate remedy for this

shotgun pleading is to dismiss all of Plaintiff’s claims without prejudice and to allow Plaintiff to

replead her claims, especially where (as here) Plaintiff has requested the opportunity to do so. Ross

v. Sejin Am., Inc., No. 3:18-CV-537, 2019 WL 404174, at *3 (M.D. Ala. Jan. 31, 2019); Conner

v. Marriott Hotel Servs., Inc., No. 220CV840FTM38NPM, 2020 WL 6873374, at *2 (M.D. Fla.

Nov. 23, 2020). Plaintiff is cautioned that if she chooses to file an amended complaint, she must

do the following to avoid dismissal: (1) address the shortcomings of her first complaint noted in

this report and recommendation; (2) provide a short and plain statement of the grounds for the

court’s jurisdiction; (3) comply with the pleading requirements of Federal Rule of Civil Procedure

Rule 8 by setting forth, with clarity, short and plain statements showing that she is entitled to relief,

(4) comply with the requirements of Federal Rule of Civil Procedure Rule 9(b) by pleading with

particularity factual allegations that satisfy the heightened pleading requirement of Rule 9(b); (5)

include a factual background section that clearly and concisely sets forth specific factual

allegations in support of each claim which directly pertains to her case; (6) state her claims “in

numbered paragraphs, each limited as far as practicable to a single set of circumstances,” Fed. R.

Civ. P. 10(b), and “[i]f doing so would promote clarity, each claim founded on a separate

transaction or occurrence . . . must be stated in a separate count.” id.; (7) identify the specific

factual allegations and acts by the specific defendant(s) supporting each cause of action within

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each count of her amended complaint; (8) clearly specify which defendant is responsible for the

alleged unlawful acts referenced within the amended complaint; (9) clearly indicate the specific

defendant or defendants against whom she is bringing each cause of action and fully identify each

defendant’s role with regard to any alleged cause of action; (10) clearly identify by specific

reference the applicable federal, state or local law or laws within each cause of action asserted by

her and the specific defendant(s) against whom she is asserting that claim; and (11) exclude all

generalized and immaterial facts, statements and allegations not specifically related to her claims

of relief.

Accordingly, the court RECOMMENDS that Plaintiff’s claims be DISMISSED

WITHOUT PREJUDICE; that Plaintiff be GRANTED LEAVE to file an amended complaint

under Federal Rule of Civil Procedure 15(a)(2); that all of Defendants’ motions be DENIED

WITHOUT PREJUDICE to refiling and reasserting any arguments that may be relevant to the

amended complaint; that Plaintiff be afforded 14 days from the date of the District Court’s ruling

on this report and recommendation to file an amended complaint that complies with Rules 8, 9,

and 10 of the Federal Rules of Civil Procedure; and that if, after Plaintiff is provided an opportunity

to file a properly amended complaint consistent with the District Court’s ruling, but Plaintiff fails

to do so, then Plaintiff’s complaint be dismissed with prejudice given that the current complaint is

a shotgun pleading.

IV. Conclusion

For the reasons stated above and consistent with the discussion herein, it is the

RECOMMENDATION of the Magistrate Judge that Plaintiff’s claims be DISMISSED

WITHOUT PREJUDICE; that Plaintiff be GRANTED LEAVE to file an amended complaint; and

that Defendants’ motions (Docs. 13, 20, 22, 23, 24, 25, 26, 29, 31, 35, 42 and 81) be DENIED

WITHOUT PREJUDICE. It is further

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ORDERED that the parties shall file any objections to the said Recommendation on or

before September 7, 2021. Any objections filed must specifically identify the findings in the

Magistrate Judge’s recommendation to which the party objects. Frivolous, conclusive or general

objections will not be considered by the District Court. The parties are advised that this

recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and recommendations in the

magistrate judge’s report shall bar the party from a de novo determination by the District Court of

issues covered in the report and shall bar the party from attacking on appeal factual findings in the

report accepted or adopted by the District Court except upon grounds of plain error or manifest

injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities,

Inc., 667 F.2d 33 (11th Cir. 1982).

DONE, on this the 23rd day of August, 2021.

/s/ Susan Russ Walker

Susan Russ Walker

United States Magistrate Judge

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