IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BARRY J. EDDINS, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 15-0350-WS-M

 )

UNITED STATES AIR FORCE, et al., )

 )

Defendants. )

 ORDER

This matter is before the Court on the defendants’ “motion for a more 

definite statement.” (Doc. 15).1 Although the motion employs the language of 

Rule 12(e), it attacks pleading deficiencies redressed by Rule 12(b)(6), it relies on 

case law involving Rule 12(b)(6),2 and it expressly invokes Rule 12(b)(6). (Doc. 

15 at 3). The Court therefore construes the motion as one to dismiss for failure to 

state a claim pursuant to Rule 12(b)(6) rather than one for more definite statement 

pursuant to Rule 12(e).3 The Court established a briefing schedule, (Doc. 16), but 

 1 The defendants say the United States is “likely the sole and proper Defendant,” 

and they say they should be dismissed as defendants “[s]hould this case proceed.” (Doc. 

15 at 1 n .1). Because the defendants have not moved for such relief, it will not be 

considered at this time. Fed. R. Civ. P. 7(b)(1) (“A request for a court order must be 

made by motion.”).

2 E.g., American Dental Association v. Cigna Corp., 605 F.3d 1283, 1289 (11th

Cir. 2010). 

3 The defendants apparently understood they should seek as relief a more definite 

statement, rather than dismissal, because any dismissal would be with leave to amend. 

(Doc. 15 at 3). But the standard for relief under Rule 12(e) is different than that under 

Rule 12(b)(6), and dismissal with leave to amend is still dismissal. 

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the plaintiff filed no responsive brief and the defendants filed no reply. 

Accordingly, the motion came ripe without further briefing. (Doc. 21).4 

Without citing Rule 12(b)(1) or Rule 8(a)(1),

5 the defendants argue the 

complaint fails to “assert a legal basis for the federal court’s jurisdiction.” (Doc. 

15 at 4). As the Court reads the amended complaint, it alleges that the defendants 

have “violated the civil rights” of the plaintiff and his family,6 “[s]pecifically, the 

part of the Constitution about innocent until proven guilty.” (Doc. 7 at 5-6). Such 

an assertion would at least suggest an effort to invoke federal question jurisdiction 

under 28 U.S.C. § 1331. Given the defendants’ failure to address the complaint’s 

allegations, the Court is unprepared to accept their ipse dixit that there is a “lack 

subject matter jurisdiction.” (Doc. 15 at 4). 

To survive dismissal under Rule 12(b)(6), a complaint must first satisfy the 

pleading requirements of Rule 8(a)(2),

7 which rule provides that “[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 ....” While Rule 8 establishes a 

regime of “notice pleading,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 

513-14 (2002), it does not eliminate all pleading requirements. 

 4 For reasons unknown, the defendants’ motion challenges the adequacy of the 

original complaint, (Doc. 1), rather than the amended complaint. (Doc. 7). Because the 

amended complaint makes only minor tweaks in the original, and since it carries forward 

all the problems of the original, the Court concludes that the motion adequately 

challenges the amended complaint.

5 The defendants reference only Rules 8(a)(2) and 8(a)(3) in support of this 

argument. (Doc. 15 at 5). 

6 There is only one named plaintiff, (Doc. 7 at 1), so any violation of the rights of 

his family members is not before the Court. Moreover, because the plaintiff is 

proceeding without counsel and does not purport to be a lawyer himself, he cannot 

represent the interests of anyone else – including his family members – even were they 

named as plaintiffs. Devine v. Indian River County School Board, 121 F.3d 576, 581 & 

n.17 (11th Cir. 1997); Whitehurst v. Wal-Mart, 306 Fed. Appx. 446, 449 (11th Cir. 2008).

7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2009).

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First, the complaint must address all the elements that must be shown in 

order to support recovery under one or more causes of action. “At a minimum, 

notice pleading requires that a complaint contain inferential allegations from 

which we can identify each of the material elements necessary to sustain a 

recovery under some viable legal theory.” Wilchombe v. TeeVee Toons, Inc., 555 

F.3d 949, 960 (11th Cir. 2009) (emphasis and internal quotes omitted). 

Pleading elements is necessary, but it is not enough to satisfy Rule 8(a)(2). 

The rule “requires more than labels and conclusions, and a formulaic recitation of 

the elements of a cause of action will not do” to satisfy that rule. Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 555 (2009). There must in addition be a 

pleading of facts. Though they need not be detailed, “[f]actual allegations must be 

enough to raise a right to relief above the speculative level ....” Id. That is, the 

complaint must allege “enough facts to state a claim for relief that is plausible on 

its face.” Id. at 570. “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, 129 S. Ct. at 1949. “The 

plausibility standard ... asks for more than a sheer possibility that the defendant 

has acted unlawfully,” and “[w]here a complaint pleads facts that are merely 

consistent with a defendant’s liability, it stops short of the line between possibility 

and plausibility of entitlement to relief.” Id. (internal quotes omitted). A 

complaint lacking “sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face” will not “survive a motion to dismiss.” Id. But 

so long as the plausibility standard is met, the complaint “may proceed even if it 

strikes a savvy judge that actual proof of those facts is improbable, and that a 

recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotes 

omitted). 

As the defendants correctly argue, the amended complaint fails this test at 

multiple points. First, it does not clearly identify a “viable legal theory.” The 

amended complaint invokes the presumption of innocence, which is “a basic 

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component of a fair trial under our system of criminal justice,” Estelle v. Williams, 

425 U.S. 501, 503 (1976), but it does not allege or even faintly suggest that the 

plaintiff has been subjected to a criminal trial at which this constitutional right was 

impinged. 

Nor do the amended complaint’s factual allegations coherently, much less 

plausibly, suggest the defendants have violated the plaintiff’s right to a 

presumption of innocence. It appears the plaintiff believes agents of the 

defendants have engaged in a “private, ‘vigilante’ war” on him and his family, 

(Doc. 7 at 1), by investigating him, placing him under surveillance (including by 

moving spies into the house next to his), fabricating and destroying evidence, and 

recruiting state and local officials (and private citizens) as part of the effort. The 

amended complaint on its face explicitly concedes that many of its conclusory 

allegations are merely “possible,”

8 including those alleging the fabrication and 

destruction of evidence, and other allegations certainly appear implausible based 

on the facts alleged.9

The defendants also object that the complaint violates Rule 8(a)(2)’s “short 

and plain statement” requirement because it “incorporate[s] a significant amount 

of irrelevant or extraneous information.” (Doc. 15 at 3). The defendants, 

however, identify no examples of such excess, and the Court does not detect any 

gross defects in this regard (though certainly the pleading is more chatty and less 

focused than the ideal). 

The defendants next complain that the complaint “does not provide any 

specific dates” on which any relevant conduct occurred, thereby preventing the 

defendants from determining if any claim is “time-barred.” (Doc. 15 at 6). 

 8 The amended complaint employs the terms “possible” and “possibly” at least ten 

times. (Doc. 7 at 1, 4-5). 

9 For example, the plaintiff concludes that his neighbors are spies because they 

moved in next door while his house was being built. (Doc. 7 at 3, 7). 

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Similarly, the defendants object that the complaint does not provide information 

showing that the plaintiff has exhausted his administrative remedies, “if any.” 

(Doc. 15 at 6, 9-10). Expiration of the statute of limitations, and failure to 

exhaust, are generally considered to be affirmative defenses.10 The defendants 

have cited no authority for the proposition that a plaintiff is obligated in his 

complaint to plead facts negating an affirmative defense, and the law appears to be 

otherwise. E.g., Jones v. Bock, 549 U.S. 199, 216 (2007) (“We conclude that 

failure to exhaust is an affirmative defense under the PLRA, and that inmates are 

not required to specially plead or demonstrate exhaustion in their complaints.”). 

Better taken is the defendants’ objection that the complaint fails to comply 

with Rule 10(b). (Doc. 15 at 8). That rule requires a plaintiff to employ 

“numbered paragraphs, each limited as far as practicable to a single set of 

circumstances.” The first 31⁄2 pages of the amended complaint contain no 

numbered paragraphs, and both they and the subsequent numbered paragraphs are 

unmanageably long (up to a full page). 

The defendants also criticize the complaint’s failure to place each claim in a 

separate count, as contemplated by Rule 10(b). (Doc. 15 at 8). It appears to the 

Court that the plaintiff is bringing a single claim (for violation of the presumption 

of innocence), in which case multiple counts would be inappropriate. However, 

should the plaintiff assert multiple claims, he must separate them into separate 

counts in accordance with Rule 10(b). 

Finally, the defendants argue the complaint is an impermissible “shotgun 

pleading.” (Doc. 15 at 7). They do not, however, explain how the amended 

complaint falls within any of the “four rough types” of shotgun pleading 

 10 E.g., Jones v. Bock, 549 U.S. 199, 212 (2007) (“[T]he usual practice under the 

Federal Rules is to regard exhaustion as an affirmative defense.”); Davenport Recycling 

Associates v. Commissioner of Internal Revenue, 220 F.3d 1255, 1259 (11th Cir. 2000) 

(“The expiration of a statute of limitations is an affirmative defense ....”).

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recognized by the Eleventh Circuit.11 Simply saying that “no specific acts are 

identified with clarity, nor are any legitimate causes of action alleged,” (id.), does 

not implicate the doctrine. 

It is plain from the foregoing discussion that the amended complaint fails to 

satisfy Rule 8(a)(2) and is therefore subject to dismissal under Rule 12(b)(6) for 

failure to state a claim. However, and as the defendants recognize, (Doc. 15 at 9), 

before an action is dismissed with prejudice for failure to state a claim, a pro se 

plaintiff must be given an opportunity to amend the complaint if a more carefully 

drafted version might state a claim. E.g., Lee v. Alachua County, 461 Fed. Appx. 

859, 860 (11th Cir. 2012); Schmitt v. United States Office of Personnel 

Management, 403 Fed. Appx. 460, 462 (11th Cir. 2010).12 

As the plaintiff has previously been warned:

All litigants, including those representing themselves, “shall be 

bound by and comply with all local rules of this Court, and the Federal 

Rules of Civil ... Procedure, unless otherwise excused from operation 

of the rules by court order.” Local Rule 83.9(b). Moreover, “both the 

Supreme Court and [the Eleventh Circuit] have concluded that a [litigant’s] 

pro se status in civil litigation generally will not excuse mistakes he makes 

regarding procedural rules.” Nelson v. Barden, 145 Fed. Appx. 303, 311 

n.10 (11th Cir. 2005); accord Albra v. Advan, Inc., 490 F.3d 826, 829 (11th

Cir. 2007) (“[W]e ... have required [pro se litigants] to conform to procedural 

rules.”) (internal quotes omitted); cf. United States v. Hung Thien Ly, 646 

F.3d 1307, 1315 (11th Cir. 2011) (“[I]gnorance is no hidden virtue; a pro se 

[criminal] defendant must follow the rules of procedure ....”). The plaintiff 

is cautioned to familiarize himself with, and to follow, the applicable rules.

(Doc. 5 at 1 n.1).13 The plaintiff ignores this warning at his peril.

 11 See Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313, 1321-22 

(11th Cir. 2015).

12 Because the Court cannot tell whether the statute of limitations would bar the 

plaintiff from filing another lawsuit should this one be dismissed without prejudice, it 

cannot tell whether such a dismissal would effectively be with prejudice. Because the 

defendants assume it would be, the Court does so as well. 

13 Former Local Rule 83.9(b) is now found at General Local Rule 83.5(a).

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Moreover, “even in the case of pro se litigants ... a court [does not have] 

license to serve as de facto counsel for a party, [citation omitted], or to rewrite an 

otherwise deficient pleading to sustain an action ....” GJR Investments, Inc. v. 

County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998). The plaintiff must 

adequately comply with pleading rules or face dismissal of this action without 

discovery or consideration of the merits. 

The pleading requirements in federal court are neither onerous nor hidden, 

and the rules and cases cited and explained herein contain most of them. The 

plaintiff would be well served to review these rules and cases, as well as actual 

complaints in other cases, before attempting to file a second amended complaint. 

He will discover that successful plaintiffs present crisp complaints that: expressly 

identify the basis or bases of the Court’s subject matter jurisdiction; clearly allege 

– in brief, focused, numbered paragraphs – necessary facts as to what each 

defendant or defendant’s representative did; clearly identify each legal claim 

presented, each under a separate heading called a “Count”; clearly state under each 

count which defendant(s) is (are) sued under such count; clearly list under each 

count which specific numbered factual paragraphs apply to that count; clearly 

explain under each count how the legal right implicated by that count was violated

(including how each element of the cause of action is alleged); and clearly 

articulate the relief requested – all with statements of relevant facts rendering the 

claims plausible but without excessive tangential or irrelevant material. Other 

attributes of proper pleading exist, but adherence to these would vastly improve 

the plaintiff’s chances of withstanding a motion to dismiss the second amended 

complaint.

For the reasons set forth above, the defendants’ motion for more definite 

statement, construed as a motion to dismiss, is granted. The amended complaint 

is dismissed, without prejudice to the plaintiff’s ability to file and serve a second 

amended complaint on or before March 10, 2016, failing which the dismissal of 

this action will become final without further order of Court.

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DONE and ORDERED this 18th day of February, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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