OPINIONS

OF THE

TRIAL DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2012)

HUBERT VERGARA, 
laintiff,

v.

american samoa government, and DOES I through X,
Defendants.
___________________________________

High Court of American Samoa
Trial Division

CA No. 86-11

Feb. 9, 2012

[1] The court is not constrained to view complaints penned by an attorney as laxly as the court would one authored by a pro se litigant. 

[2] “A pleading which sets forth a claim for relief...shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” T.C.R.C.P. 8(a). Under T.C.R.C.P. 8(a), a plaintiff must allege enough facts to sustain a claim; additionally, the plaintiff’s complaint (composed of such claims) must be plausible. 

[3] A defendant may challenge a complaint’s plausibility under a T.C.R.C.P. 12(b)(6) motion.

[4] The test employed when determining the plausibility of a complaint is two-fold. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts (“naked assertions”). Accordingly, if the facts are “naked assertions,” the court need not consider those facts as true. Secondly, only a complaint that states a plausible claim for relief survives a T.C.R.C.P. 12(b)(6) motion. The second prong is “context specific” and the court draws from its own experience and common sense when making this determination. Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only the possibility of misconduct, and nothing more, the complaint fails because it [**5**] alleges but does not show its pleader is entitled to relief. 

[5] When the plausibility of a complaint is questioned and shown by an opposing party to be lacking, the pleader’s failure to show entitlement to relief violates T.C.R.C.P. 8(a) and the complaint is subject to dismissal under T.C.R.C.P. 12(b)(6).

[6] Where a plaintiff’s complaint is muddled with “naked assertions” the court need not consider those assertions true, and where the claims are so distorted that they permit the court at most to infer the mere “possibility of misconduct;” the Complaint fails the plausibility standard and is subject to dismissal under T.C.R.C.P. 12(b)(6).

[7] An action for damages premised under 42 U.S.C. §§ 1983 & 1985 cannot lie against the American Samoa Government as the government is not a “person” within the meaning of those federal statutes. 

[8] The elements of negligence are: (1) Duty—a duty to use reasonable care; (2) Breach—a failure to conform to the required standard of care; (3) Causation—a reasonably close causal connection between the conduct and the resulting injury; and (4) Damages—an actual loss or damage resulting to the interests of another. 

Before KRUSE, Chief Justice, and FA’AMAUSILI, Associate Judge.

Counsel:		For Plaintiff, Mark F. Ude, 
			For Defendant, Daniel M. Woods, Assistant Attorney General 

ORDER ON DEFENDANT’S MOTION TO DISMISS

BACKGROUND

Plaintiff Hubert Vergara (“Vergara”) is a prisoner currently incarcerated at the Territorial Correctional Facility (“TCF”) for a previous felony conviction. His present action against American Samoa Government (“ASG”) and other unnamed defendants is for a slew of perceived wrongs with his confinement: denial of visitation, denial of transportation to a medical facility for an unnamed ailment, being housed in an overcrowded cell, denial of work release, etc. While Vergara requests legal (money) damages, curiously he does not seek a special writ curing these perceived wrongs--wrongs Vergara premises on indistinct torts and constitutional challenges. In a previous civil action filed in [**2**] 2009, Vergara attempted a habeas corpus petition to cure many of the wrongs alleged in this present action; the previous court found that Vergara was violating various (and constitutionally justifiable) prison rules which led to prisoner privilege-revocations—accordingly, Vergara’s habeas corpus petition was dismissed. See generally, Vergara v. Am. Samoa Gov’t, CA No. 36-09, slip op. (Trial Div. Oct. 16, 2009). 

On June 2, 2011, Vergara allegedly filed his Administrative Claim Letter with the Attorney General’s Office, asserting indistinct torts and constitutional challenges—claims Vergara assumes may be availed under Government Tort Liability Act, A.S.C.A. §§ 43.1201, et seq. Three months later, the Attorney General failed to respond, amounting to a denial of the Administrative Claim Letter. This inaction, thereby granted this Court putative jurisdiction over Vergara’s December 6, 2011 Complaint (pursuant to A.S.C.A. § 43.1205(b) and A.S.C.A. § 43.1209). However, Vergara’s Complaint, (as addressed infra) is totally deficient. 

On December 22, 2011, ASG filed a T.C.R.C.P. 12(b)(6) motion (failure to state a claim upon which relief can be granted) challenging the sufficiency of three of Vergara’s four claims. [**3**] On January 9, 2012, Vergara filed an Opposition. On January 12, 2012, ASG’s motion came on for hearing, with both parties appearing through counsel.

DISCUSSION

[1] We initially note that the Court is not constrained to view complaints penned by an attorney as laxly as we would one authored by a pro se litigant. See, e.g., Siamau v. Am. Samoa Gov’t, 7 A.S.R.3d 130, 131 (Trial Div. 2003) (“We examine the pro se pleadings in this case as broadly as possible without regard to the technical niceties demanded of attorney-drafted pleadings.”); Am. Samoa Gov’t v. Agasiva, 6 A.S.R.2d 32, 34 (Trial Div. 1987) (Court adopts a “flexible approach to construction of [pro se plaintiff’s pleadings because] the pleadings [came] from the cell of a pro se defendant rather than from the pen of a schooled attorney.”). Indeed, we dismiss Vergara’s entire Complaint because of the pleading’s [**4**] deficiencies. 

[2,3] “A pleading which sets forth a claim for relief...shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” T.C.R.C.P. 8(a). Under T.C.R.C.P. 8(a), a plaintiff must allege enough facts to sustain a claim; additionally, the plaintiff’s complaint (composed of such claims) must be plausible. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007). Indeed, a defendant may challenge a complaint’s plausibility under a T.C.R.C.P. 12(b)(6) motion (as ASG has done here). 

[4] The test employed when determining the plausibility of a complaint is two-fold. First, the court must accept all allegations contained in a complaint as true provided the facts are not merely legal conclusions veiled as facts (“naked assertions”). Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949-50 (2009) (citations omitted). Accordingly, if the facts are “naked assertions,” the court need not consider those facts as true. Id. Secondly, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950 (citations omitted). The second prong is “context specific” and the court draws from its own “experience and common sense” when making this determination. Id. (citations omitted). Therefore, when the court looks upon the well-pleaded facts and those facts permit the court to infer only “the possibility of misconduct,” and nothing more, the complaint fails because it [**5**] alleges but does not show its pleader is entitled to relief. Id. 

[5] The Trial Court Rules of Civil Procedure parallel the Federal Court Rules of Civil Procedure under evaluation in Iqbal and Twombly. We find the plausibility standard employed in Iqbal and Twombly highly persuasive and adopt it here. Consequently, when raised by an opposing party, the pleader’s failure to show entitlement to relief violates T.C.R.C.P. 8(a) and is subject to dismissal.

[6-8] Vergara’s entire Complaint is muddled with “naked assertions” we need not consider true, and Vergara’s claims are so distorted that they permit this court at most to infer the mere “possibility of misconduct;” the Complaint therefore fails the plausibility standard articulated in Iqbal and Twombly. Vergara’s claims are entitled thusly: (1) “Breach of Contract;” (2) “Negligent Assumption of a Duty;” (3) “Overcrowding;” and (4) “Plaintiff Denied Work Release.” Plaintiff assumes a contract exists in his first claim, yet provides no facts to sustain such an assumption (only “naked assertions”). Vergara’s “Overcrowding” claim contains vague torts and alleges constitutional violations premised under 28 [**6**] U.S.C. §§ 1983 & 1985 against ASG, where no such claim can lie. Ferstle v. Am. Samoa Gov’t, 4 A.S.R.2d 160, 166-67 (Trial Div. 1987) (an action for damages premised under 42 U.S.C. §§ 1983 & 1985 cannot lie against the American Samoa Government as the government is not a “person” within the meaning of those federal statutes). Vergara’s fourth claim nonchalantly assumes that the revocation of work release when previously granted is inherently “negligent.” Along with ASG, we too are nonplused as to what Vergara premises his “Plaintiff Denied Work Release” claim upon. Additionally, the casualness with which Vergara’s counsel throws about the term “negligence” is particularly disconcerting. Indeed, Vergara’s second claim is entitled “Negligent Assumption of a Duty.” This heading beguilingly poses as a legal phrase, but is not. The phrase, at most, amounts to an element of negligence (duty), and is not per se a cognizable claim. Though a lesson in simple negligence hardly befits a practicing and licensed attorney, we nevertheless print its elements here: (1) Duty—“a duty to use reasonable care;” (2) Breach—“a failure to conform to the required standard [of care];” (3) Causation—“a reasonably close causal connection between the conduct and the resulting injury;” and (4) Damages—“an actual loss or damage resulting to the interests of another.” Victor E. Schwartz et al., Prosser, Wade and Schwartz’s Torts Cases and Materials 132 (11th ed. [**7**] 2005). When making future negligence claims before this Court, Plaintiff’s counsel would do well to actually contemplate and allege facts that satisfy the elements of negligence (along with outlining the elements themselves). More importantly, we caution that counsel to organize his pleadings clearly; state legal claims premised upon facts and not “naked assertions;” name proper defendants so as to afford notice to opposing parties; and articulate a legal posture plainly so that this Court can address proper relief. 

For reasons discussed, the Complaint is dismissed without prejudice.

It is so ordered.