CASE 0:07-cv-01675-JRT-FLN Document 17 Filed 09/25/07 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`Christopher Roller,
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`Civil No. 07-1675 (JRT/FLN)
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`Plaintiff,
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`v.
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`George W. Bush and Richard Cheney
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`REPORT AND
`RECOMMENDATION
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`Defendants.
`___________________________________________________
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`Pro se Plaintiff.
`Patricia Cangemi for Defendants.
`___________________________________________________
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`THIS MATTER came before the undersigned United States Magistrate Judge on August
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`10, 2007, on Defendants’ motion to dismiss [#4] and Plaintiff’s motion for partial summary
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`judgment [#13]. The matter was referred to the undersigned for Report and Recommendation
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`pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons which follow, this Court
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`recommends Defendants’ motion be granted and Plaintiff’s motion denied.
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`I.
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`FINDINGS OF FACT
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`On March 27, 2007, Plaintiff filed a Complaint [#1]. Plaintiff’s Complaint alleged a patent
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`infringement claim against the Defendants. (See Compl., Docket No. 1.) Plaintiff’s claim is based
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`upon a patent application seeking a patent on godly powers.
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`The Defendants moved to dismiss the complaint on the ground that a patent infringement
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`claim cannot be brought until an actual patent has been granted. In response, Plaintiff agreed that
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`he does not have a viable patent claim and filed an Amended Complaint [#10] on June 18, 2007.
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`(See Pl.’s Mem. to Oppose Motion to Dismiss, Docket No. 11.) The Amended Complaint brings
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`claims under the Federal Tort Claims Act against the Defendant for attempts to kill Plaintiff. (See
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`CASE 0:07-cv-01675-JRT-FLN Document 17 Filed 09/25/07 Page 2 of 5
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`Am. Compl., Docket No. 10.) Plaintiff makes claims that the Defendants have conspired with
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`various government agencies to kill Plaintiff. (See Am. Compl.) The only specific factual allegation
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`is that “George Bush/Dick Cheney and fellow demons conspired a hit while I was at Red Lobster
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`on 16Apr2007. I believe someone put a huge bomb underneath the joint (or something of a big hit).
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`It didn’t go off, but instead, created the Virginia Tech shoot back-lash side-effect.” (Am. Compl.,
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`¶ 11.)
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`Plaintiff has moved for Partial Summary Judgment on the Amended Complaint [#13] and
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`the Defendants have extended their motion to dismiss to include the Amended Complaint. Since
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`the parties are in agreement that the original Complaint fails to state a viable claim, the Court will
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`only consider the Amended Complaint.1
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`II.
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`STANDARD OF REVIEW
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`Defendants move to dismiss the Complaint for failure to state a claim upon which relief may
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`be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In analyzing the adequacy of a
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`complaint under Rule 12(b)(6), the Court must construe the complaint liberally and afford the
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`plaintiff all reasonable inferences to be drawn from those facts. See Turner v. Holbrook, 278 F.3d
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`754, 757 (8th Cir. 2002). For the purpose of a motion to dismiss, facts in the complaint are assumed
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`to be true. In re Navarre Corp. Sec. Litig., 299 F.3d 735, 738 (8th Cir.2002).
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`Under Rule 8 of the Federal Rules of Civil Procedure, the Plaintiff must set forth in his
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`complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.”
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`1Plaintiff states in his Amended Complaint that he incorporates his original Complaint in
`its entirety. This is prohibited by Local Rule 15.1, which prohibits the incorporation of prior
`pleadings by reference. See Local Rule 15.1. Therefore, even if the Plaintiff had not agreed that
`the original Complaint should be dismissed, only the Amended Complaint would be properly
`before the Court; as the Amended Complaint supplants, not supplements, the original Complaint.
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`CASE 0:07-cv-01675-JRT-FLN Document 17 Filed 09/25/07 Page 3 of 5
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`Fed. R. Civ. P. 8(a)(2). The Supreme Court has determined that “Federal Rule of Civil Procedure
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`8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled
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`to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon
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`which it rests.’” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v.
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`Gibson, 355 U.S. 41, 47 (1957)).
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`Nevertheless, dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally
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`flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary
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`pretrial and trial activity. Neitzke v. Williams, 490 U.S. 319, 326-327 (1989). To avoid dismissal,
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`a complaint must allege facts sufficient to state a claim as a matter of law and not merely legal
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`conclusions. Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir.1998).
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`A plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the
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`elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief
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`about the speculative level on the assumption that all the allegations in the complaint are true.” Bell
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`Atlantic Corp., 127 S. Ct. at 1965 (internal citations omitted).
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`Pro se pleadings should be liberally construed, and are held to a less stringent standard when
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`challenged by motions to dismiss. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Horsey v. Asher,
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`741 F.2d 209, 211 n.3 (8th Cir. 1984). Although it is to be liberally construed, a pro se complaint
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`must still contain specific facts to support its conclusions. Kaylor v. Fields, 661 F.2d 1177, 1183
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`(8th Cir.1981).
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`III.
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`LEGAL ANALYSIS
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`CASE 0:07-cv-01675-JRT-FLN Document 17 Filed 09/25/07 Page 4 of 5
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`Plaintiff’s Amended Complaint fails to contain specific factual allegations to support its
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`conclusions, therefore it must be dismissed. Id. The Plaintiff has provided no information to permit
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`the inference that the Defendants have conspired to kill him. Plaintiff only states the ultimate legal
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`conclusion that the Defendants have conspired to kill him. Plaintiff’s only specific allegation relates
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`to a bomb being placed under a restaurant. However, he states that the bomb did not detonate.
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`Instead, he claims that the bomb caused the Virginia Tech shootings. Plaintiff has failed to alleged
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`sufficient facts to raise his claims above mere speculation as required by Bell Atlantic. Bell Atlantic
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`Corp., 127 S. Ct. at 1965.
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`Since the Defendants’ motion to dismiss should be granted, it must follow that the Plaintiff’s
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`motion for summary judgment be denied.
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`IV.
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`RECOMMENDATION
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`Based upon all
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`the files, records and proceedings herein, IT IS HEREBY
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`RECOMMENDED that Defendants’ motion to dismiss [#4] be GRANTED and Plaintiff’s motion
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`for partial summary judgment [#13] be DENIED.
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`DATED: September 24, 2007
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`s/ Franklin L. Noel
`FRANKLIN L. NOEL
`United States Magistrate Judge
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`Pursuant to the Local Rules, any party may object to this Report and Recommendation by filing with
`the Clerk of Court and serving on all parties, on or before October 12, 2007, written objections
`which specifically identify the portions of the proposed findings or recommendations to which
`objection is being made, and a brief in support thereof. A party may respond to the objecting party*s
`brief within ten days after service thereof. All briefs filed under the rules shall be limited to 3,500
`words. A judge shall make a de novo determination of those portions to which objection is made.
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`Unless the parties are prepared to stipulate that the District Court is not required by 28 U.S.C. § 636
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`CASE 0:07-cv-01675-JRT-FLN Document 17 Filed 09/25/07 Page 5 of 5
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`to review a transcript of the hearing in order to resolve all objections made to this Report and
`Recommendation, the party making the objections shall timely order and cause to be filed by
`October 12, 2007, a complete transcript of the hearing.
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`This Report and Recommendation does not constitute an order or judgment of the District Court,
`and it is, therefore, not appealable to the Circuit Court of Appeals.
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