United States District Court, E.D. Virginia, Richmond Division
A. GIBNEY, JR UNITED STATES DISTRICT JUDGE
Schaeffer Cox, a federal inmate proceeding pro se
and in forma pauperis, filed this Complaint against
Eberle Associates, Tammy Cali, William D. Griffins, and Mike
Murray ("Defendants"). The matter is before the
Court for evaluation pursuant to 28 U.S.C. § 1915(e)(2).
to the Prison Litigation Reform Act ("PLRA") this
Court must dismiss any action filed by a prisoner if the
Court determines the action (1) "is frivolous" or
(2) "fails to state a claim on which relief may be
granted." 28 U.S.C. § 1915(e)(2); see 28
U.S.C. § 1915A. The first standard includes claims based
upon '"an indisputably meritless legal theory,
'" or claims where the "'factual
contentions are clearly baseless.'" Clay v.
Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992) (quoting
Neitzkev. Williams, 490 U.S. 319, 327 (1989)). The
second standard is the familiar standard for a motion to
dismiss under Fed.R.Civ.P. 12(b)(6).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure § 1356 (1990)). In
considering a motion to dismiss for failure to state a claim,
a plaintiffs well-pleaded allegations are taken as true and
the complaint is viewed in the light most favorable to the
plaintiff. Mylan Labs., Inc. v. Matkari, 1 F.3d
1130, 1134 (4th Cir. 1993); see also Martin, 980
F.2d at 952. This principle applies only to factual
allegations, however, and "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." Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009).
Federal Rules of Civil Procedure "require only '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."' BellAtl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (second alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). Plaintiffs cannot satisfy this standard with
complaints containing only "labels and conclusions"
or a "formulaic recitation of the elements of a cause of
action." Id. (citations omitted). Instead, a
plaintiff must allege facts sufficient "to raise a right
to relief above the speculative level," id.
(citation omitted), stating a claim that is "plausible
on its face," id. at 570, rather than merely
"conceivable." Id. "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."
Iqbal, 556 U.S. at 678 (citing Bell Ad.
Corp., 550 U.S. at 556). In order for a claim or
complaint to survive dismissal for failure to state a claim,
the plaintiff must "allege facts sufficient to state all
the elements of [his or] her claim." Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
2003) (citing Dickson v. Microsoft Corp., 309 F.3d
193, 213 (4th Cir. 2002); Iodice v. United States,
289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court
liberally construes pro se complaints, Gordon v.
Leeke, SI A F.2d 1147, 1151 (4th Cir. 1978), it will not
act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that the
inmate failed to clearly raise on the face of his complaint.
See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir.
1997) (Luttig, J., concurring); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
SUMMARY OF ALLEGATIONS
Complaint, Cox alleges:
7. On February 23, 2015, Defendant Eberle Associates had its
Agent, Direct Mail Processors issue a check in the amount of
$38, 000 to Free Schaeffer Cox. This check was sent, along
with a letter, to Maria Rensel, who claimed to be the
"Project Manager" of the Free Schaeffer Cox
"Project," with an address of 1676 Taroka Drive,
Fairbanks, AK 99709. This $38, 000 was the proceeds of a test
mailing created by Eberle Associates, allegedly on behalf of
Free Schaeffer Cox. However, Maria Rensel, and Eberle and
Associates did not have lawful authorization to raise funds
in the name of Schaeffer Cox or Free Schaeffer Cox.
8. On March 18, 2015, Defendant Eberle Associates, through
its President/CEO Tammy Cali, and Vice President William D.
Griffins, agreed and signed a contract with Maria Rensel, who
signed as "Project Manager," and Richard Neff who
signed as an Officer of the organization as "Vice
Chairman." The parties appearing on this contract were
Eberle Associates and Free Schaeffer Cox, which was said to
be a "Project of Alaskans for Liberty." 9. The
contract stated that the Defendant Eberle Associates would
provide services by advising the Client on issues related to
the Client's direct mail fundraising program, as well as
services of conducting the actual direct mail mailings, which
sought donations to Free Schaeffer Cox.
10. On March 18, 2015, Defendant Eberle Associates had their
Agent, Mile Murray, who is alleged by the Defendants to be
the President of Direct Mail Processors, agree and sign a
contract with Maria Rensel, who claimed to be the Project
Manager of Free Schaeffer Cox. This agreement was also signed
by Bill Rensel, who did not identify himself as an Officer of
this so-called project, or of Alaskans for Liberty.
11. Defendant Eberle Associates issued Free Schaeffer Cox
post-test projections stating that the first year would gross
revenue of $1, 050, 880; the second year would gross revenue
of $1, 538, 385, and the third year would gross revenue $1,
705, 353. The agreement was signed for 36 months, and
approximately 24 months of the agreement was completed before
Eberle Associates ceased all mailings in November 2016.
Defendant Eberle Associates did advise that Free Schaeffer
Cox donations far surpassed their projections of gross
revenue for the first approximately 24 months.
12. During the time of the direct mail program, Defendants
Eberle Associates, Tammy Cali, and William D. Griffins did,
in fact, commit acts that are considered fraud under the law
-despite the fact that there was an absence of intent to
deceive- because of violations of a public or private trust
or confidence. There was a clear misrepresentation and a
breach of fiduciary duty, and the use of undue influence
committed by Eberle Associates, when Tammy Cali, and William
D. Griffins assured Plaintiff that all monies would remain in
the Direct Mail Account, after Plaintiff notified Defendants
that those who claim to be Officers of Alaskans for Liberty
and Free Schaeffer Cox Project were in fact frauds, and not
only was Plaintiff not receiving the funds raised for his
legal defense fund, but he also never authorized any of ...