UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NO 15-1412
BRETT KIMBERLIN,
Appellant,

v.
NATIONAL BLOGGERS CLUB et ai,
Appellees.
APPELLANT'S LEAD BRIEF
Jurisdiction and Timeliness

Appellant Brett Kimberlin hereby appeals from a March 17, 2015 decision of the
District of Maryland, Greenbelt Division (The Honorable George Hazel) dismissing
two counts of his civil complaint ECF 264. That order was clarified on March 26,
2015. ECF 269.
Appellant is proceeding pro se and therefore does not have access to the Court's
ECF system. Therefore, he has placed this lead brief in the United States Mail on
May 15, 2015 with service to the Appellees the following day.
Issues Presented for Review
I.

Whether the District Court erred in dismissing two counts of the

Complaint without complying with well established Supreme Court and
Fourth Circuit precedent requiring liberal construction of pro se civil rights
complaints.

II.

Whether the District Court erred in dismissing two counts of the

Complaint under F.R. Cv. P. 12(b)(6) prior to discovery that would have
provided the evidentiary basis for the counts.

ISSUE 1
THE DISTRICT COURT FAILED TO FOLLOW THE DICTATES OF HAINES V.
KERNER, 404 U.S. 519 (1972) and GORDAN V. LEEKE, 574 F.2D 1147 (4TH CIR.
(978) WHICH REQUIRE DISTRICT COURTS TO LIBERALLY CONSTRUE PRO SE
COMPLAINTS

Pro se complaints are held to a less stringent standard than those drafted by
attorneys, and a federal district court is charged with liberally construing a
complaint filed by a pro se litigant to allow the development of a potentially
meritorious case. Haines v. Kerner, 404 U.S. 519 (1972) Hughes v. Rowe, 449 U.S. 5,9
(1980); Erickson v. Pardus, 551 U.S. 89 (2007) Cruz v. Beto, 405 U.S. 319
(1972); Gordon v. Leeke, 574 F.2d 1147,1151 (4th Cir.1978). When a federal court

is evaluating a pro se complaint, the plaintiffs factual allegations are assumed to be

true. Erickson, 551 U.S. at 93 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,55556 (2007)). The mandated liberal construction afforded to pro se pleadings means
that if the court can reasonably read the pleadings to state a valid claim on which
the plaintiff could prevail, it should do so.
In the instant case, the District Court dismissed two counts: Count 1 alleging RICO
under 18 U.S.c. 1962(c) and (d), and Count 3 alleging violation of 42 U.S.c. 1985,
Conspiracy to Deprive A Person of Civil Rights. These dismissals occurred prior to
discovery on Rule 12(b) (6) motions by various Defendants. The lower court found

that Appellant failed to "adequately plead" elements of RICO, and failed to

adequately plead either discriminatory animus or federal proceeding under Section
1985. This constitutes reversible error under Supreme Court and Fourth Circuit
case law.

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement
of the claim showing that the pleader is entitled to relief." Specific facts are not
necessary; the statement need only" 'give the defendant fair notice of what the ...
claim is and the grounds upon which it rests: " Bell Atlantic Corp. v. Twombly, 550 U.
S.

--1_

(2007) (slip op., at 7-8) (quoting Conley v. Gibson,355 U. S. 41, 47 (1957)).

In addition, when ruling on a defendant's motion to dismiss, a judge must accept as

true all of the factual allegations contained in the complaint. Bell Atlantic
Corp., supra, at_ (slip op., at 8-9) (citingSwierkiewiczv. Sorema N. A., 534 U. S. 506,

508, n. 1 (2002); Neitzke v. Williams, 490 U. S. 319,327 (1989); Scheuer v. Rhodes,

416 U. S. 232, 236 (1974)).
In the instant case, Appellant's Complaint gave the defendants fair notice of what
the claims were and the grounds on which they rested. Indeed, the lower court
stated those claims and grounds with great clarity on page 2-3 of its dismissal order.
ECF 264. In short, Appellant alleged and pleaded that the defendants violated RICO
by creating an association-in-fact enterprise with a specific structure and engaged in
widespread and continuous acts of racketeering, including mail and wire fraud,
extortion, and state law extortion, to harm Appellant's business interests. He
further alleged that the defendants violated the Ku Klux Klan Act, 42 U.S.c. 1985 by
conspiring to deprive Appellant of his civil rights in two ways-- one involving
discriminatory animus and the other involving using threats and intimidation to
deter Appellant from testifying before and cooperation with federal proceedings.
The defendants knew what the claims were and the grounds upon which they
rested, and in fact fully responded to those in their Motions to Dismiss.

The lower court held Appellant not only to the same standards applicable to
attorneys who file complaints, but also to the standards applicable to motions for
summary judgment For example, the lower court found that Appellant "failed to
plead" two elements of RICO, by failing to allege material facts about the enterprise's
structure or the relationships "between or among the RICO Defendants." ECF 264 at
page 5-6.
To the contrary, Appellant pleaded that the enterprise was the National Bloggers
Club and that the club was headed by Defendant and convicted fraudster Ali Akbar,
and the other Defendants were related to the club and Defendant Akbar in various
ways such as members, associates and board members.
Moreover, the lower court found that Appellant could not use the widespread
mail and wire fraud allegations to prove racketeering activity because Appellant did
not specify the "time, place, and contents of the false representations, as well as the
identity of the person making the representation and what he obtained thereby."
ECF 264 at page 8. But Appellant pleaded that Defendant Akbar repeatedly falsely
posted online that the National Bloggers Club was a SOl(c) (3) organization and that
donations to it were tax deductible. Appellant pleaded that the club raised tens of
thousands of dollars from this false statement, and that these funds were sent to
Defendant Akbar via mail and wire, and distributed to other members of the
criminal RICO enterprise.
The lower court also found that Appellant did not plead who funneled the
fraudulent donations "to Defendant Akbar or how those funds were allegedly
funneled to him," and therefore failed to "establish money laundering...." ECF 264

page 1~17. This despite the fact that Appellant did plead that Defendant Akbar
conned a great many people to give tens of thousands in donations to the National
Sloggers Club upon the fraudulent representations that it was a tax deductible non
profit and that the club was raising funds based on false accusations about
Appellant
The lower court found that Appellant failed to plead that there was a federal
court proceeding pending that the defendants deterred him from attending and
therefore did not properly plead a civil rights violation under section 2 of 42 V.S.c.
1985. ECF 269. However, Appellant did plead that 87 members of Congress had
sent a letter to the Attorney General requesting the criminal prosecution of the
persons involved with illegal swatting, and that Appellant had been visited by the
FBI and had offered to cooperate with the case. This obviously included testifying
before a federal grand jury or other federal criminal prosecution.
In short, the lower court, without even ever mentioning or noting that Appellant
was proceeding pro se, applied heightened pleading standards to his Complaint, all
without discovery and without giving Appellant the opportunity to file a RICO
Statement to provide any additional particularities the lower court would require.
This constitutes reversible error under the well-established law of the Supreme
Court and this Circuit
In Gordon v. Leeke, 574 F.2d 1147,1151 (4th Cir. 1978), this Court reversed two
cases where the district courts dismissed civil rights complaints that pleaded a great
deal less than Appellant pleaded in his Complaint In the words of this Court:

"T)he" Fourth Circuit takes the position that its district courts must be especially
solicitous of civil rights plaintiffs.
This solicitude for a civil rights plaintiff with counsel must be heightened when a
civil rights plaintiff appears pro se. In the great run of pro se cases, the issues are
faintly articulated and often only dimly perceived. There is, therefore, a greater
burden and a correlative greater responsibility upon the district court to insure
that constitutional deprivations are redressed and that justice is done. So,
although the Court of Appeals cannot mean that it expects the district courts to
assume the role of advocate for the pro se plaintiff, radiations from Burris
strongly suggest that the district court must examine the pro se complaint to see
whether the facts alleged, or the set of facts which the plaintiff might be able to
prove, could very well provide a basis for recovery under any of the civil rights
acts or heads of jurisdiction in the federal arsenal for redress of constitutional
deprivations. Accordingly, the Court in considering the defendants' motion to
dismiss will not permit technical pleading requirements to defeat the vindication
of any constitutional rights which the plaintiff alleges, however inartfully, to have
been infringed."
As the Supreme Court stated in Rowe, supra, quoting Haines, supra, "It is settled
law that the allegations of such a complaint, "however inartfully pleaded," are held
"to less stringent standards than formal pleadings drafted by lawyers....
In conclusion, the lower court erred in dismissing Appellant's pro se Complaint for
pleading inadequacies prior to discovery.
ISSUE 2
THE DISTRICT COURT ERRED BY DISMISSING THE COMPLAINT UNDER RULE

12(B)(6)
As set forth above, the lower court dismissed two counts of the Complaint
under Rule 12(b)(6). Such a motion is made prior to discovery and therefore should
not be granted unless the Complaint is patently frivolous. (Federal Rule of Civil
Procedure 12(b)(6) only provides for "the dismissal of a complaint if it fails to state
a claim upon which relief can be granted.") "The question is whether in the light

most favorable to the Plaintiff, and with every doubt resolved in his behalf, the
Complaint states any valid claim for relief." 5A Wright & Miller, Federal Practice and
Procedure: Civil 2d 1357, at 336. The purpose of Rule 12(b)(6) is to test the
sufficiency of a complaint and not to "resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses." Edward v. City ofGoldsboro, 178
F.3d 231, 243 (4th Cir. 1999). The court, when deciding a motion to dismiss, must
consider weII-pled allegations in a complaint as true and must construe those
allegations in favor ofthe plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The
office of a motion to dismiss is merely to assess the legal feasibility of the complaint,
not to assay the weight of the evidence in support. This rule's purpose '''is to test the
sufficiency of a complaint and not to resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.''' Presley v. City of
Charlottesville, 464 F.3d 480,483 (4th Cir. 2006). Specifically, a complaint must

contain "a short and plain statement of the claim showing that the pleader is entitled
to relief," Fed. R. Civ. P. 8(a) (2), and must state "a plausible claim for relief." Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.lqbal, 556 U.S. 662

(2009). "A claim has facial plausibility when the plaintiff pleads factual content that
aIIows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 663.
In the instant case, the lower court applied heightened pleading standards to the
Complaint as if it were a Motion for Summary Judgment (or trial) and as if Appellant
was not proceeding pro se. In doing so it failed to follow Presley, Bell, or Iqbal.

Clearly, the Complaint was plausible enough to give the defendants notice of the
claims and the grounds upon which they rested, and the lower court admitted as
much. However, the lower court found that since Appellant had not proven his case
by detailing every aspect of the RICO and 1985 claims, the case could not proceed.
This puts the cart before the horse and places Appellant in the position of proving
his case prior to getting discovery. For example, with discovery, Appellant could
show who sent money to the fraudulent National Bloggers Club and what Defendant
Akbar did with that money. He could show the structure of the RICO enterprise and
the relationships of the Defendants. He could show that there was a federal grand
jury taking testimony about the Defendants and that Plaintiff was an intended
witness. Indeed, he could show all the elements that the court found that Appellant
did not adequately plead.
A Rule 12(b)(6) motion should not be granted "unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514 (2002) (explaining that a "court may dismiss a

complaint only if it is clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations" Moreover, as this Court stated,
when, as here, a defendant seeks dismissal of a civil rights complaint, "we must be
especially solicitous of the wrongs alleged" and "must not dismiss the complaint
unless it appears to a certainty that the plaintiffwould not be entitled to reliefunder
any legal theory which might plausibly be suggested by the facts alleged." Edward, 178

F.3d at 244. (emphasis added).

In the' instant case, the lower court dismissed Appellant's civil rights complaint
based on what it perceived were pleading inadequacies. It did not find that the
Complaint was frivolous or that Appellant could not prove his claims even with
discovery. Instead, the lower court, contrary to binding precedent in this Court and
the Supreme Court, simply dismissed this very serious Complaint pre-discovery.
This constitutes reversible error.

Conclusion

L
&J

For the foregoing reasons, this Court should reverse the lower court's March 17,
2015 dismissal of the two counts, as clarified on March 26,2015..

Brett Ki