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Alston v. Pepper

United States District Court, Third Circuit

November 4, 2013

ESHED ALSTON, Plaintiff,
v.
WILLIAM W. PEPPER, SR., et al., Defendants.

Eshed Alston, Dover, Delaware. Pro se Plaintiff.

William W. Pepper, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware. Counsel for Defendants.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Plaintiff Eshed Alston ("plaintiff') proceeds pro se and has paid the filing fee. He filed this lawsuit on March 27, 2013 pursuant to 42 U.S.C. §§ 1981, 1983, and 1985. (D.I. 1) Presently before the court are defendants' motion to dismiss (D.I. 8) and plaintiff's motion for summary judgment (D.I. 10), motion for discovery (D.I. 12), and motion to sever (D.I. 15). The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the court will grant defendants' motion and will deny plaintiffs motions.

II. PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff alleges violations of his civil rights and right to due process, in part, pursuant to the Delaware Rules of Professional Conduct. The alleged violations are described as a "racially motivated disrespectful denial of freedom of religion and regarding other incorporated noted purposeful illegal acts and material twisted activities perpetrated by the defendant Kent County and its legal agent William Pepper and Schmittinger and Rodriguez a Delaware law firm." (D.I. 1, ¶ 1) More particularly, plaintiff alleges that defendant William W. Pepper ("Pepper") caused to be filed and sent to plaintiff's residence "documents known to be false and provocative and also to be [an] attack on [plaintiff's] religion and associated name Eshed."[1] ( Id. at ¶ 2) The complaint alleges that plaintiff's name has religious importance. While not clear, it appears that Pepper filed documents with plaintiff's former name of Jerry Lee Alston, not his current legal name of Eshed J. L. Alston. Plaintiff alleges this is discrimination based upon race. The complaint does not indicate when or where the alleged actions occurred. Plaintiff seeks five hundred million or one billion dollars in damages.

Defendants move to dismiss on the grounds of insufficiency of process and for failure to state a claim upon which relief may be granted. Plaintiff opposes the motion.

III. MOTION TO DISMISS LEGAL STANDARDS

A. Fed.R.Civ.P. 12(b)(5)

A defendant may file a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(5) when a plaintiff fails to properly serve him or her with the summons and complaint. See Fed.R.Civ.P. 12(b)(5). A plaintiff "is responsible for having the summons and complaint served within the time allowed by Rule 4(m)." Fed.R.Civ.P. 4(c)(1). Rule 4(m) imposes a 120-day time limit for perfection of service following the filing of a complaint. Fed.R.Civ.P. 4(m). If service is not completed within that time, the action is subject to dismissal without prejudice. Id. See also MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995).

B. Fed.R.Civ.P. 12(b)(6)

In reviewing a motion filed under Fed.R.Civ.P. 12(b)(6), the court must accept all factual allegations in a complaint as true and take them in the light most favorable to plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). A court may consider the pleadings, public record, orders, exhibits attached to the complaint, and documents incorporated into the complaint by reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (internal quotation marks omitted) (interpreting Fed.R.Civ.P. 8(a)). A complaint does not need detailed factual allegations; however, "a plaintiffs obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 545 (alteration in original) (citation omitted). The "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Id. Furthermore, "[w]hen there ...


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