# Green v. State Board of Medical Examiners (CONSENT)

> District Court, M.D. Alabama · March 12, 2020

URL: https://www.frixlaw.com/law-library/cases/9987015

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** March 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

NORRIS W. GREEN, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO.:
) 2:18-cv-719-SMD
STATE BOARD OF MEDICAL )
EXAMINERS, et al., )
)
Defendants. )

MEMORANDUM OPINION & ORDER
I. INTRODUCTION
Plaintiff Norris W. Green (“Green”) brings constitutional and state-law claims
arising from his alleged termination as Executive Director of the Alabama State Board of
Medical Examiners (the “Board”). He sues the Board, the Medical Association of
Alabama, and fourteen named current and/or former members and/or employees of the
Board in their individual and official capacities seeking in excess of $10,000,000 in
punitive and compensatory damages as well as declaratory and injunctive relief. By order
dated April 20, 2019 (Doc. 73), the Court held that plaintiff’s 54-page “First Amended
Complaint for $10,000,00.00 Compensatory and Punitive Damages” (Doc. 48) (“first
amended complaint”) was a shotgun pleading that violated Rule 8’s pleading standard and
granted defendants’ motions for a more definite statement (Docs. 55, 56). Plaintiff timely
filed a “Second Amended Complaint for $10,000,000” (Doc. 74) (“second amended
complaint”), but this 35-page second amended complaint utterly fails to cure the pleading
deficiencies noted in plaintiff’s first amended complaint and actually makes them worse.
Pending before the Court are four motions to dismiss plaintiff’s second amended complaint
raising, among other defenses, Eleventh Amendment immunity, qualified immunity, and

state agent immunity. (Docs. 77, 78, 79, 80). Because the Court cannot make heads or tails
of plaintiff’s prolix and confusing second amended complaint (Doc. 74), it cannot rule on
the substance of defendants’ motions. Rather, plaintiff’s second amended complaint (Doc.
74) is hereby DISMISSED in its entirety WITH PREJUDICE as a shotgun pleading
pursuant to Fed. R. Civ. P. 8(a)(1), 8(d)(1), and 10(b) for failing to comply with the federal

pleading standard and pursuant to Rule 12(b)(6) for failure to state a claim.
II. DISCUSSION
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain a
short and plain statement of the claim showing that the plaintiff 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). In addition, Rule 10 requires a plaintiff to “state its claims [] in numbered
paragraphs, each limited as far as practicable to a single set of circumstances.” Fed. R.
Civ. P. 10(b). The Supreme Court explains that “the pleading standard Rule 8 announces
does not require ‘detailed factual allegations, but it demands more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” are
insufficient. Id. (internal quotes omitted). A complaint must contain enough well-pleaded
facts to “allow[] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain factual

allegations sufficient “to raise a right to relief beyond the speculative level.” Twombly,
550 U.S. at 555. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements” are insufficient to state a claim. Iqbal, 566 U.S. at 678
(quoting Twombly, 556 U.S. at 555). The Eleventh Circuit explains that “complaints . . .
must now contain either direct or inferential [factual] allegations respecting all the material

elements necessary to sustain a recovery under some viable legal theory.” Randall v. Scott,
610 F.3d 701, 707 n. 2 (11th Cir. 2010) (internal quotes and citation omitted). Rule 8 “does
not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Iqbal, 556 U.S. at 678.
To determine whether plaintiff has stated a claim, a court should first “eliminate any

allegations in the complaint that are merely legal conclusions,” and then, if there are any
well-pleaded factual allegations remaining, assume their veracity and decide “whether they
plausibly give rise to an entitlement to relief.” Amer. Dental Assoc. v. Cigna Corp., 605
F.3d 1283, 1290 (11th Cir. 2010) (internal quotes and citation omitted). “The plausibility
standard is met only where the facts alleged enable ‘the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.’” Franklin v. Curry, 738
F.3d 1246, 1251 (11th Cir. 2013) (quoting Twombly, 550 U.S. at 556).
It appears that plaintiff here is attempting to prevent the Court from effectively
engaging in the threshold analysis required by Iqbal and American Dental Association by
filing a rambling and incomprehensible second amended complaint that does not separate
the factual wheat from the conclusory chaff (Doc. 74). The Court will not allow this tactic
to succeed and refuses to spend valuable judicial resources attempting to untangle and

decipher a convoluted and intentionally opaque pleading. In fact, the Eleventh Circuit
observes that, “[b]y attempting to prosecute an incomprehensible pleading to judgment, the
plaintiff[] obstruct[s] the due administration of justice in the District Court,” and
“[t]olerating such behavior constitutes toleration of obstruction of justice.” Jackson v.
Bank of Am., N.A., 898 F.3d 1348, 1352, 1357 (11th Cir. 2018). The undersigned does not

intend to tolerate obstruction of justice, and the Eleventh Circuit holds that a “district court
does not abuse its discretion in dismissing [a] case with prejudice on shotgun pleading
grounds” when a plaintiff fails to remedy the defects in a complaint after fair notice and an
opportunity to replead through an order for a more definite statement or similar order. Id.
at 1358 (emphasis added).

Here, the Court gave plaintiff notice of the deficiencies in the first amended
complaint and ordered him to replead. (Doc. 73). Among the deficiencies noted were (1)
that plaintiff’s 47-paragraph “Factual Allegations” were incorporated by reference in each
of the five causes of action (2) that much of the narrative contained within the five causes
of action is confusing and argumentative, and a significant portion of the alleged facts

seems irrelevant to the claim asserted, and (3) that it was unclear which claims were
asserted against which defendants. (Doc. 73) at 3-7. The Court specifically ordered
plaintiff to file a second amended complaint that, among other requirements, “set forth, in
separately numbered paragraphs, allegations of fact that are simple, concise, direct,
sufficiently detailed, and material to Plaintiff’s claims. Plaintiff must allege facts showing
each Defendant’s involvement in each claim and how each Defendant violated Plaintiff’s
rights. Legal arguments shall not be included in the factual allegations.” (Doc. 73) at p. 7

¶ b.
Incredibly, rather than drafting new factual allegations as ordered, plaintiff simply
deleted the entire “Factual Allegations” section from his first amended complaint. (Doc.
74). The second amended complaint now jumps straight from the “Parties” section to the
five numbered causes of action. (Doc. 74) at 7-8. There are certainly no separately

numbered paragraphs setting forth simple, concise, and direct allegations of fact as ordered
by the Court. Well-pleaded facts are the basic five W’s: who; what; where; when; why;
and how. They appear nowhere in this complaint. With respect to the “Parties” section, it
is virtually unchanged from the previous complaint and is still “peppered with purported
facts and allegations of wrongdoing” as pointed out in the Court’s previous order (Doc. 73)

at 3. Compare (Doc. 48) at 5-10 with (Doc. 74) at 3-8. The same is true for the five
numbered causes of action which still contain page after page of rambling conclusory
allegations and legal arguments. (Doc. 74) at 8-33.
To decipher this pleading the Court would have to sift through every line in 35 pages
searching for any factual nuggets hidden among the lengthy conclusory statements, naked

assertions, and legal arguments. The Court has no obligation to do so and cannot
reasonably perform its duty of eliminating mere legal conclusions and separating them
from any well-pleaded facts on the basis of this shotgun pleading. Iqbal, 566 U.S. at 679;
Amer. Dental Assoc., 605 F.3d at 1290. This is the underlying problem with this complaint,
and it appears intentionally calculated to stave off dismissal for failure to state a claim by
making it impossible to perform the Iqbal analysis.
The Court is also troubled by a new sentence added to plaintiff’s “Statement of the

Case” that “[d]ue to the inherent nature of conspiracies, and the delay in obtaining
discovery in federal courts, the allegations which follow are based upon factual
information, reasonable belief, and the reasonable and logical inferences drawn therefrom.”
(Doc. 74) at 2. This in an apparent attempt to avoid Rule 11’s requirement that “factual
contentions have evidentiary support or, if specifically so identified, will likely have

evidentiary support after a reasonable opportunity for further investigation or discovery[.]”
Fed. R. Civ. P. 11(b)(3) (emphasis added). Plaintiff’s blanket disclaimer does not satisfy
Rule 11 because it does not specifically identify which factual contentions, if any, have
evidentiary support and which are based upon information and belief. The Court reads the
disclaimer as tantamount to an admission that there is no evidentiary support for anything

asserted in the pleading.
Finally, the Court notes that plaintiff here is counsel represented, and his pleadings
are not entitled to the same leniency afforded to pleadings drafted by pro se parties. Hughes
v. Rowe, 449 U.S. 5, 9 (1980); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). This is now plaintiff’s third complaint. (Docs. 1, 48, 74). The Court has

pointed out the deficiencies in plaintiff’s first amended complaint and ordered him to
correct them. (Doc. 73). Plaintiff has failed to do so and has instead filed yet another
shotgun pleading that violates the federal pleading standard and has forced defendants to
expend considerable resources in responding to it. It is time to stop this abuse of the judicial
process.
III. CONCLUSION

ACCORDINGLY, for the above-stated reasons, plaintiff’s second amended
complaint (Doc. 74) is hereby DISMISSED in its entirety WITH PREJUDICE pursuant to
Fed. R. Civ. P. 8(a)(1), 8(d)(1), and 10(b) for failing to comply with the federal pleading
standard and pursuant to Rule 12(b)(6) for failure to state a claim.
Further, it is

ORDERED that defendants’ motions to dismiss (Doc. 77, 78, 79, and 80) are
DENIED as MOOT.
A separate judgment shall be entered.
DONE this 12th day of March, 2020.

/s/ Stephen M. Doyle
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9987015. Public record. Not legal advice.