United States District Court, D. Connecticut
MICHAEL P. SHEA U.S.D.J
Inkel and George Corey (jointly, “the
Plaintiffs”) filed the operative complaint on September
26, 2018, alleging a series of claims against a long list of
defendants. ECF No. 24. The State of Connecticut and
all Connecticut defendants (collectively, “State
Defendants”) filed a motion to dismiss on November 5,
2018. ECF No. 28. The United States and President Donald
Trump (together, “Federal Defendants”) filed a
motion to dismiss on November 6, 2018. ECF No. 30. For the
reasons set forth below, the motions to dismiss, ECF Nos. 28
& 30, are GRANTED. In addition, for the reasons set forth
below, all claims against the private defendants and any
other defendants who have not appeared or moved to dismiss
are also dismissed. Fitzgerald v. First E. Seventh St.
Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000)
(“[W]e hold that district courts may dismiss a
frivolous complaint sua sponte even when the plaintiff has
paid the required filing fee.”).
January 4, 2019, Mr. Inkel filed a second amended complaint,
a “supplement to complaint, ” and a
“supplement to amended complaint.” ECF Nos. 40,
43 & 44. The State Defendants filed a motion to strike
the amended complaint, ECF No. 46, and a motion to strike the
supplements, ECF No. 45. For the reasons set forth below, the
motions to strike, ECF Nos. 45 & 46, are GRANTED.
Plaintiffs also filed an omnibus motion regarding a host of
issues, ECF No. 20, a motion for a hearing and preliminary
restraining order, ECF No. 26, a motion for a hearing
regarding change of venue, ECF No. 39, a motion for
clarification regarding the order transferring the case, ECF
No. 42, and a motion to appoint counsel, ECF No. 49. For the
reasons set forth below, these motions, ECF Nos. 20, 26, 39,
42 & 49, are DENIED.
initial complaint was filed on August 17, 2017 and alleges
that the Plaintiffs were denied equal protection of the laws,
access to courts, and the ability to “live free and
raise a family.” ECF No. 1 at 2. It contains no
specific factual allegations but includes a request to enjoin
Dannel Malloy and Donald Trump from taking various actions.
ECF No. 1. It states that “this complaint is not
complete and will be continued.” Id. at 4. Mr.
Inkel and Mr. Corey then filed an amended complaint on
September 26, 2018. ECF No. 24. The amended complaint alleges
the following facts:
1993, Mr. Inkel witnessed two Colchester Police Officers
punch and choke a teenager in a McDonalds. ECF No. 24 at
¶ C. He reported this incident in June 1993.
Id. at ¶ D. In retaliation, police officers
forcibly entered his home on July 3, 1993, and threatened his
family. Id. at ¶¶ E-H. Law enforcement
filed false reports to cover up their illegal conduct and
continued to harass, threaten, and arrest Mr. Inkel.
Id. at ¶¶ I, P. In August 1993, Melody
Wolf conspired with law enforcement to punish Mr. Inkel and
was rewarded with custody of their children. Id. at
¶¶ M-O. Based on advice from Attorney Richard
Gifford, Mr. Inkel began investigating police violence and
fraud. Id. at ¶ K. In April 1994, he provided
evidence of police misconduct to various authorities and
subsequently faced more retaliation. Id. at
¶¶ Q, R. Also in April 1994, he provided
information about police brutality and dishonesty to
Assistant United States Attorney John Durham, who advised him
to continue collecting evidence, but alerted law enforcement
officers about Mr. Inkel's investigation. Id. at
¶¶ S-X. A No. of Colchester officers assaulted,
falsely arrested, and imprisoned Mr. Inkel in March 1994.
Id. at ¶ Z. They stole and destroyed his
evidence documenting their misconduct. Id. at
¶¶ AA, CC, GG. While incarcerated in May 1994, Mr.
Inkel was denied medical care, denied bail, and threatened
with violence. Id. at ¶¶ DD-FF. Witnesses
to police violence against Mr. Inkel were beaten, threatened,
and falsely arrested in an effort to cover up crimes against
Mr. Inkel. Id. at ¶¶ HH, JJ. In subsequent
months, various authorities sanctioned Mr. Inkel's
murder. Id. at ¶¶ II, KK-MM. In September
1994, Mr. Inkel traveled to Alaska for his safety.
Id. at ¶ RR. In Alaska, he learned information
related to a rape and murder, and shared that information
with law enforcement. Id. at ¶ SS. Connecticut
officials gave false information about him to Alaska
officials. Id. In 1996, Attorney John Schoenhorn
represented Mr. Inkel in a civil rights lawsuit. Id.
at ¶¶ TT-UU. Mr. Inkel then learned that Attorney
Schoenhorn was corrupt and destroyed evidence. Id.
at ¶ VV.
March 2013, a group of private citizens and police officers
in the Town of East Haddam conspired to violate Mr.
Corey's rights. Id. at ¶ XX. On March 9,
2013, they kidnapped, restrained, and unlawfully charged him
with criminal activity. Id. at ¶ YY. These
events arose out of a dispute regarding Mr. Corey's
shared driveway with neighbors and his subsequent arrest.
See Corey v. Hawes, 2015 WL 5472507 (D.
Conn. Sept. 17, 2015). In 2014, Mr. Corey filed suit in the
District of Connecticut against his neighbors, various
individuals associated with the East Haddam Police
Department, and the Town of East Haddam based on this
dispute. Id.; ECF No. 24 at ¶ AAA. In the
course of that litigation, Mr. Corey filed an application for
prejudgment remedies against his neighbors. Corey, 2015 WL
5472507 at *1. In 2015, Judge Meyer referred this motion to
Magistrate Judge Margolis, who held a three-day hearing and
then denied the motion. Id. In 2016, Judge Meyer
granted the defendants' summary judgment motions and
closed the case. Civil Action No. 3:14cv1266(JAM), Dkt No.
168. Mr. Corey filed an appeal that was dismissed for lack of
jurisdiction. Id. at Dkt No. 195. Some of the
Plaintiffs' allegations in this case arise from their
dissatisfaction with the decisions by Judge Meyer and Judge
Margolis. They allege that the Defendants “filed false
pleadings before this court, suborned perjuries, destroyed
official documents and engaged in numerous misprisons of
felonies to conceal numerous unlawful governmental and
organizational acts.” ECF No. 24 at ¶ BBB. They
further allege that there was a “counterfeit or void
judgment, ” that they “were denied their rights
to present their claims in this Court to be heard and
honestly adjudicated, ” and that there was a
“miscarriage of justice” in the earlier action
brought by Mr. Corey. ECF No. 24 at ¶ CCC.
plaintiffs assert the following legal claims: (1) claims
under 42 U.S.C. §§ 1983 and 1985 for violation of
plaintiffs' First, Fourth, and Fourteenth Amendment
Rights, ECF No. 24 at 1-2, ECF No. 1 at 4; (2) claims under
the Racketeer Influenced and Corrupt Organizations (RICO)
Act, 18 U.S.C. § 1964, ECF No. 24 at 5; and (3) claims
of common-law fraud, ECF No. 24 at ¶¶ BBB-CCC.
Motions to Dismiss
State and Federal Defendants filed motions to dismiss this
action pursuant to Federal Rules of Civil Procedure 12(b)(1),
(b)(5), and (b)(6). ECF Nos. 28 & 30.
“case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate
it.” Nike, Inc. v. Already, LLC, 663 F.3d 89,
94 (2d Cir. 2011) (internal quotation marks omitted). The
party “asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it
exists.” Luckett v. Bure, 290 F.3d 493, 497
(2d Cir. 2002). “In resolving a motion to dismiss for
lack of subject matter jurisdiction under Rule 12(b)(1), a
district court . . . may refer to evidence outside the
pleadings.” Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). The court construes the
complaint liberally and accepts all factual allegations as
true. See Ford v. D.C. 37 Union Local 1549,
579 F.3d 187, 188 (2d Cir. 2009).
Rule 12(b)(5), a party may move for dismissal of a complaint
based on inadequate service of process. When proof of service
is challenged, “the plaintiff bears the burden of
establishing that service was sufficient.” Khan v.
Khan, 360 Fed.Appx. 202, 203 (2d Cir. 2010). In deciding
the issue, “a Court must look to Rule 4, which governs
the content, issuance, and service of a summons.”
DeLuca v. AccessIT Group, Inc., 695 F.Supp.2d 54, 64
(S.D.N.Y. 2010). “Technical errors in a summons
generally do not render service invalid, ” but
“where the error actually results in prejudice to the
defendant or demonstrates a flagrant disregard of Rule 4,
service will be considered invalid and amendment need not be
allowed.” Id. at 65.
plaintiff can avoid dismissal if he can demonstrate good
cause for his failure to effect proper service. Lab
Crafters, Inc. v. Flow Safe, Inc., 233 F.R.D. 282, 284
(E.D.N.Y. 2005). “Two factors are considered to
determine whether good cause exists: (1) the reasonableness
and diligence of Plaintiff's efforts to serve, and (2)
the prejudice to the Moving Defendants from the delay.”
Id. “Good cause is generally found only in
exceptional circumstances where the plaintiff's failure
to make timely service was the result of circumstances beyond
his control.” Myers v. Sec. of the Dept. of the
Treas., 173 F.R.D. 44, 46 (E.D.N.Y. 1997) (internal
quotation marks omitted).
12(b)(6) permits a party to move for dismissal based on
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation
marks omitted). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A court need
not accept legal conclusions as true and “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
reviewing a 12(b)(6) motion, a court must “construe the
complaint in the light most favorable to the plaintiff[s],
accepting the complaint's allegations as true.”
York v. Assn. of B. of City of New York, 286 F.3d
122, 125 (2d Cir. 2002). And when a plaintiff is pro se, the
court “must liberally construe his pleadings, and must
interpret his complaint to raise the strongest arguments it
suggests.” Abbas v. Dixon, 480 F.3d 636, 639
(2d Cir. 2007). In addition to the complaint, the court may
consider “any written instrument attached to the
complaint as an exhibit, any statements or documents
incorporated in it by reference, and any document upon which
the complaint heavily relies.” In re Thelen
LLP, 736 F.3d 213, 219 (2d Cir. 2013) (citation
omitted). In addition, “[m]atters judicially noticed by
the District Court are not considered matters outside the
pleadings.” Id. (citation omitted). “A
court may take judicial notice of a document filed in another
court not for the truth of the matters asserted in the other
litigation but rather to establish the fact of such
litigation and related filings.” Glob. Network
Commc'ns, Inc., 458 F.3d at 157 (citation omitted).
statutes of limitations and the doctrine of res judicata are
affirmative defenses, and therefore not typically considered
in a motion to dismiss, they “may be raised by a
pre-answer motion to dismiss under Rule 12(b)(6) . . . if the
defense[s] appear on the face of the complaint.”
Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,
74 (2d Cir. 1998); see also Day v. Moscow, 955 F.2d
807, 811 (2d Cir. 1992) (“[W]hen all relevant facts are
shown by the court's own records, of which the court
takes notice, the [res judicata] defense may be upheld on a
Rule 12(b)(6) motion without requiring an answer.”);
Ghartey v. St. John's Queens Hosp., 869 F.2d
160, 162 (2d Cir. 1989) (“Where the dates in a
complaint show that an action is barred by a statute of
limitations, a defendant may raise the affirmative defense in
a pre-answer motion to dismiss.”).
12(b)(1): Eleventh Amendment and Sovereign Immunity
State of Connecticut and Connecticut Officials
Eleventh Amendment provides states and state agencies
immunity from suit for monetary damages. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984).
“Eleventh Amendment immunity, however, is not
absolute.” Close v. State of N.Y., 125 F.3d
31, 36 (2d Cir. 1997). There are two ways a state may be
subject to suit: “(1) Congress may abrogate a
state's sovereign immunity through a statutory enactment,
and (2) a state may waive its immunity and agree to be sued
in federal court.” Id. (internal citations
in passing § 1983, had no intention to disturb the
States' Eleventh Amendment immunity.” Will v.
Michigan Dept. of State Police,491 U.S. 58, 66 (1989).
And Connecticut has not waived its sovereign immunity under
Section 1983. Wagner v. Connecticut Dept. of
Correction,599 F.Supp.2d 229, 238 (D. Conn. 2009).
Although there is limited case law regarding immunity to RICO
claims, the RICO statute contains no express abrogation of
Eleventh Amendment immunity, 18 U.S.C. § 1964, and
courts in this circuit have held that the immunity applies to
such claims. See, e.g., Jones v. King, 10
CIV. 0897 PKC, 2011 WL 4484360, at *4 (S.D.N.Y. Sept. 28,
2011); Molina v. State of N.Y.,956 F.Supp. 257, 260
(E.D.N.Y. 1995). As such, the Eleventh Amendment protects
both the State of Connecticut and Connecticut officials,
acting in their official capacity, from claims for money
damages brought pursuant to 42 U.S.C. § 1983 and RICO.
All such ...