Bradley v. Levin

• Decision Date: 12 June 2015
• Docket Number: Case No.: 3:15cv53/LAC/EMT
• Parties: RUSSELL WILLIAM BRADLEY, Plaintiff, v. FRED GERSON LEVIN, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

RUSSELL WILLIAM BRADLEY, Plaintiff, v. FRED GERSON LEVIN, et al., Defendants.

Case No.: 3:15cv53/LAC/EMT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

June 12, 2015

REPORT AND RECOMMENDATION

Plaintiff Russell William Bradley ("Bradley"), proceeding pro se and in forma pauperis, commenced this action by filing a civil rights complaint under 42 U.S.C. § 1983 (doc. 1).

The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N. D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B), (C); and Fed. R. Civ. P. 72(b). After careful consideration of all issues raised by Bradley, it is the opinion of the undersigned that dismissal of this action is warranted.

I. BACKGROUND

Bradley was an inmate of the Escambia County Jail when he commenced this case (see doc. 1 at 1). He names the following persons as Defendants: Fred Gerson Levin, a shareholder of the Levin Papantonio law firm in Pensacola, Florida; Bruce Miller, the public defender for the First Judicial Circuit of Florida; Jessica Lenderman, an assistant public defender; Jennifer Frydrychowicz, a County Judge in Escambia County, Florida; and Bill Eddins, the State Attorney for the First Judicial Circuit of Florida (id. at 1-2). In the Statement of Facts section of the complaint, Bradley lists several "witnesses" and then states the following, verbatim:

Plaintiff, Mr. Russell W. Bradley has been abused by the internationally $$ influential Fred McClauren Dierks $ and is being abused by the very $ influential Fred G. Levin of Los Costa Natra and Roy Jones Junior and Pablo Escobar and Vince Whibbs Junior and the Sandshaker Bar affiliations because the notoriousbillionaire Fred M. Dierks could not bribe Russell William Bradley and Russell W. Bradley protected and nurtured his #1 yoga and Chi-gong student/prodigy Brian James Hooper and Russell William Bradley being very well educated in law and very gifted at and in law Russell William Bradley got Mr. Joseph J. Gazzoli, President of the Wealth Management Division of the UMB to see the vast volumonous [sic] res ipsa locquitur [sic] and direct evidence which Sifa Russell William Bradley had accumulated for over 8 years proving the U.M.B. Bank: 800-545-6101 and also got Mr. Joseph J. Gazzoli to turn whistleblower against Fred Dierks and his many bribers: quasi-trustees in the U.M.B. Bank and Synovus and many bribed corrupt lawyers and accountants from Dierks Arkansas to Levin Beach Fla. and from Kansas City, Mo. to Pensacola Courthouse and Pensacola lawyers whom committed and some still are committing felonies and $$ torts $ for Fred Dierks and Fred Levin against Brian James Hooper and Russell William Bradley. Both are being abused with R.I.C.O. $ corrupted lawyers and officials now!

(doc. 1 at 5-6).

Bradley claims that Mr. Levin committed "litanies of very felonious crime [sic] of moral turpitude," including RICO violations, duress, embezzlement, unspecified civil rights violations, malicious abuse of process, and false imprisonment (doc. 1 at 7). As relief, Bradley seeks an injunction "disbarring" Assistant Public Defender Lenderman and Judge Frydrychowicz (id.). He also seeks one hundred million dollars (id.).

II. ANALYSIS

Because Bradley is proceeding in forma pauperis, the court may dismiss the case if satisfied that the action is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Dismissals for failure to state a claim are governed by the same standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The allegations of the complaint are taken as true and are construed in the light most favorable to Bradley. Davis v. Monroe Cnty. Bd. Of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). To survive § 1915(e)(2)(B)(ii), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation marks omitted). A claim is plausible on its face where "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility means "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that aremerely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks omitted).

The determination of whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679 (citation omitted). The pleader is not entitled to relief "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Id. (citing Fed. R. Civ. P. 8(a)(2)). The court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 678 (quotation and citation omitted). And "bare assertions" that "amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Id. at 681 (quotation and citation omitted). Stated succinctly:

Pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679. Finally, in civil rights cases, "[m]ore than mere conclusory notice pleading is required . . . . A complaint will be dismissed as insufficient where the allegations it contains are vague and conclusory." Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (quotation marks and alteration omitted).

A. RICO

Bradley peppers his complaint with references to RICO. However, his conclusory and vague references are insufficient to state a plausible claim under the civil RICO statutes. Section 1962(c) of the RICO statutes requires that a plaintiff prove that a defendant participated in the conduct of an enterprise's affairs "through a pattern of racketeering activity." 18 U.S.C. § 1962(c). Thus, to establish a federal civil RICO violation, the plaintiff must show "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Williams v. Mohawk Indus. Inc., 465 F.3d 1277, 1282 (11th Cir. 2006) (quotation omitted). In addition, the plaintiff in a civil RICO action must also satisfy the requirements of § 1964(c), which requires (1) a showing of an injury to "business or property," and (2) that such injury was "by reason of" the substantive RICO violation. Id.; 18 U.S.C. § 1964(c); Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). "Racketeering activity"is defined to include specified predicate acts. See 18 U.S.C. § 1961(1). In order to prove a pattern of racketeering in a civil RICO case, "a plaintiff must show at least two racketeering predicates that are related, and that they amount to or pose a threat of continued criminal activity." Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1290-91 (11th Cir. 2010). The predicate acts must also be related to each other, such as having the same or similar purposes, results, participants, victims, or methods of commission. See Design Pallets, Inc. v. GrayRobinson, P.A., 515 F. Supp. 2d 1246, 1256 (M.D. Fla. 2007) (quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989)). The predicate acts must also be continuous, which can be shown by a series of related acts committed over a substantial period of time. See Design Pallets, Inc., 515 F. Supp. 2d at 1256; see also Anderson v. Smithfield Foods, Inc., 209 F. Supp. 2d 1270, 1276 (M.D. Fla. 2002) (continuity is satisfied by a closed period of repeated conduct or past conduct posing a future threat, but not by isolated events). Importantly, the Supreme Court has noted that "requiring" two acts does not mean that two acts will always constitute a "pattern." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n.14, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985) ("[Two] isolated acts of racketeering activity do not constitute a pattern."). "The target of [RICO] is thus not sporadic activity . . . . It is this factor of continuity plus relationship which combines to produce a pattern." Id. (quoting S. Rep. No. 91-617, p. 158 (1969)); see also Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1397 (11th Cir. 1994) (each monthly pension payment based on defendants' illegal request was a separate, related predicate act).

Additionally, a plaintiff must plead a RICO claim with the specificity required in Federal Rule of Civil Procedure 9(b), which sets forth the pleading standard for claims of fraud. Under Rule 9(b), a plaintiff must allege (1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled them; and (4) what Defendants gained by the alleged fraud. See Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997) (citation omitted). Because fair notice is the most basic consideration underlying Rule 9(b), the plaintiff who pleads fraud must reasonably notify the defendants of their purported role in the scheme. See id., 116 F.3d at 1381 (citing Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 778 (7th Cir. 1994)).Therefore, in a case involving multiple defendants,...