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Patterson v. McCormick

United States District Court, E.D. Virginia, Norfolk Division

May 15, 2014

JOHN McCORMICK, et al., Defendants.


REBECCA BEACH SMITH, Chief District Judge.

This matter comes before the court on the Defendants' Motion to Dismiss for Failure to State a Claim ("Motion to Dismiss"), ECF No. 19, filed on January 2, 2014, and on numerous motions filed by the Plaintiff: "Motion to Quash Entries (#19-22)" ("Motion to Quash"), ECF No. 24, filed January 13, 2014; "Motion for Extension of Time to Respond to Defendants' Motion 19-22 [sic]" ("Motion for Extension of Time"), ECF No. 26, filed January 13, 2014; "Motion for Leave to (Re)Amend the Complaint" ("Motion to Re-amend"), ECF No. 30, filed January 27, 2014; "Motion for Entry of Default" ("Motion for Default Judgment"), filed January 31, 2014; "Notice of Error and Correction on Proposed Amended Complaint" ("Motion to Correct"), ECF No. 33, filed January 31, 2014; "Motion and Motion for Leave to Have All Motions Decided Without Hearings/Oral Arguments [sic]" ("Motion to Waive Hearing"), ECF No. 31, filed February 5, 2014; and "Motion and Motion for Leave Requiring Electronic Service [sic]" ("Motion for Electronic Service"), ECF No. 32 filed February 5, 2014.


On June 4, 2012, the Plaintiff was evicted from a home located at 1102 Park Avenue in Chesapeake, Virginia, by James Dunlap, the Chesapeake Police Captain. James Dunlap was accompanied by the Defendants, John McCormick and Lisa Bridges, employees of First Family Realty, which served as the property manager of the property in question. Am. Compl. ¶ 6; Mem. Supp. Mot. Dismiss at 1. At the time of the eviction, the Plaintiff was making improvements and redecorating the home because he "had persons who were interested in renting it from him." Am. Compl. ¶ 6. The Plaintiff claimed to own the home and produced a deed, which was examined by Ronald Hallman, the Chesapeake City Attorney.[1] Mr. Hallman correctly found that the Plaintiff did not, in fact, own the home, or have title to the property.[2] Mem. in Supp. of Mot. to Dismiss 6. Thus, the Plaintiff was trespassing. This information was relayed to the Plaintiff by Mr. Dunlap, and the Plaintiff was then asked to leave, or be evicted from the property. The Plaintiff was given time to remove his personal belongings from the property, and was subsequently evicted.

On August 5, 2013, the Plaintiff, Erwin B. Patterson, proceeding pro se, [3] filed an Amended Complaint against the Defendants alleging "interference/deprivations/violations of (42 USC 1985, 42 USC 1986), " Am. Compl. ¶ 6, and "violat[ion] of my civil rights not limited to [42 U.S.C. §§ 1981, 1985 and] Equal Protection." Id . ¶ 7, ECF No. 11. Specifically, the Plaintiff alleges that the Defendants "conspired against the Plaintiff and his real property, " and conducted an "illegal/unlawful eviction from and/or seizure of the real property" because of "hate, discrimination and/or negative demeanor toward one or more of my race/color/gender (protected classes)." Id . The Plaintiff also alleges that the Defendants "failed to, and refused and neglected to 1) withdraw from the conspiracy to interfere with and/or violate civil rights; 2) reasonably attempt to prevent, and/or prevent the continuation and/or culmination of the conspiracy of interference & violation of my civil rights; and 3) notify a proper authority that they were aware of the conspiracy." Id.

The Defendants filed their Motion to Dismiss on January 2, 2014, and the Plaintiff filed his Response on January 8, 2014, and an "Objection" to the Motion to Dismiss on January 13, 2014. The Plaintiff also filed various motions, see Infra Part III.A-F, to which the Defendants replied. See ECF Nos. 28, 29, 35, 36, and 37.


Federal Rule of Civil Procedure 8(a) provides, in pertinent part, "[a] pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint need not have detailed factual allegations, but Rule 8 "requires more than labels and conclusions.... [A] formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). "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) (quoting Twombly , 550 U.S. at 570). Facial plausibility means that a "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (citing Twombly , 550 U.S. at 556). It is, therefore, not enough for a plaintiff to allege facts demonstrating a "sheer possibility" or "mere[] consist[ency]" with unlawful conduct. Id . (citing Twombly , 550 U.S. at 557).

The Supreme Court, in Twombly and Iqbal, offered guidance to courts evaluating a motion to dismiss:

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying 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.

Iqbal , 556 U.S. at 679. That is, the court accepts facts alleged in the complaint as true and views those facts in the light most favorable to the plaintiff. Venkatraman v. REI Sys. , 417 F.3d 418, 420 (4th Cir. 2005). Overall, "[d]etermining 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." Iqbal , 556 U.S. at 679.


The Plaintiff has filed numerous motions with the court. Each will be considered in turn.

A. Motion to Quash

The Plaintiff filed the Motion to Quash on January 13, 2014. In the Motion to Quash, the Plaintiff seeks to quash ECF Nos. 19 and 22, which are the Defendants' Motion to Dismiss, Memorandum in Support, Waiver of Hearing, and "Roseboro Notice, " which advised the Plaintiff of the potentially dispositive nature of the Motion to Dismiss, and of his opportunity to file a response.

In his Motion, the Plaintiff alleges that the Defendants' filings are "rhetoric, without merit, frivolous, hearsay, late violating FRCP 11(b), " as well as other allegations. Mot. to Quash ¶ 3. The Motion to Quash is identical in substance to his Response to the Defendant's Motion to Dismiss, filed on January 13, 2014. See Objection to Mot. to Dismiss, ECF No. 25. The only material difference is a change in the title of the document. As such, the court will construe his Motion to Quash as ...

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