Moore v. University of Utah et al
MEMORANDUM DECISION and ORDERdenying as moot 8 Motion to Appoint Counsel; denying 9 Motion for Service of Process. Signed by Judge Ted Stewart on 04/05/2012. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
DONALD MOORE, an individual
MEMORANDUM DECISION AND
ORDER PENDING MOTIONS
UNIVERSITY OF UTAH & NORTHWEST
COMMISSION ON COLLEGES AND
Case No. 2:12-CV-231 TS
This matter is before the Court for screening of Plaintiff’s Complaint. Plaintiff Donald
Moore is proceeding pro se and in forma pauperis. He filed his Complaint with the Court on
March 2, 2012. 1 On October 13, 2011, Plaintiff filed a Motion to Appoint Counsel 2 and a
Motion for Service of Process, 3 leading the Court to now screen his Complaint pursuant to 28
U.S.C. § 1915(e)(2).
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 1915(e)(2), a court must screen cases filed in forma pauperis and
must “dismiss the case at any time if the court determines that . . . the action or appeal (i) is
Docket No. 7.
Docket No. 8.
Docket No. 9.
frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.”
“Dismissal of a pro se complaint for failure to state a claim is proper only where it
is obvious that the plaintiff cannot prevail on the facts he has alleged and it would
be futile to give him an opportunity to amend.” “In determining whether a
dismissal is proper, we must accept the allegations of the complaint as true and
construe those allegations, and any reasonable inferences that might be drawn
from them, in the light most favorable to the plaintiff.” 4
We apply the same standard of review for dismissals under § 1915(e)(2)(B)(ii)
that we employ for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss
for failure to state a claim. . . . In the Rule 12(b)(6) context, “[w]e look for
plausibility in th[e] complaint.” In particular, we “look to the specific allegations
in the complaint to determine whether they plausibly support a legal claim for
relief.” Rather than adjudging whether a claim is “improbable,” “[f]actual
allegations [in a complaint] must be enough to raise a right to relief above the
speculative level.” 5
“In addition, we must construe a pro se appellant’s complaint liberally.” This
liberal treatment is not without limits, and “this court has repeatedly insisted that
pro se parties follow the same rules of procedure that govern other litigants.” 6
III. ALLEGATIONS IN PLAINTIFF’S COMPLAINT
Plaintiff’s Proposed Amended Complaint names as Defendants the University of Utah
and the Northwest Commission on Colleges and Universities (“NWCCU”). 7 Plaintiff alleges
that he was working towards a bachelor’s degree in English at the University of Utah, but had to
Kay v. Bemis, 500 F.3d 1214, 1217 (quoting Curley v. Perry, 246 F.3d 1278, 1281 (10th
Cir. 2001) (internal quotation omitted); Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
Id. at 1217-18 (quoting Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 & n.2 (10th
Cir. 2007); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007)).
Id. at 1218 (quoting Gaines v. Stenseng, 292 F.3d at 1224 (10th Cir. 2002); Garrett v.
Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (internal quotation
Docket No. 10 Ex. 1, at 1.
withdraw due to a medical condition. 8 Plaintiff now asks the court “to issue an order that
requires the University of Utah and the NWCCU to confer upon [Plaintiff] a bachelors [sic]
degree in English from the University of Utah even though [he] ha[s] not completed the
prescribed courses for the English major.” 9
Plaintiff has not alleged a violation of the Constitution or federal statute. Furthermore,
the Court finds no such violation even after accepting all allegations in Plaintiff’s Complaint as
true and construing those allegations, and any reasonable inferences that might be drawn from
them, in the light most favorable to the Plaintiff. Therefore, Plaintiff cannot prevail on the facts
he has alleged and the Court finds that it would be futile to give him an opportunity to amend.
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases
authorized and defined in the Constitution which have been entrusted to them under a
jurisdictional grant by Congress.” 10 As the Court finds no plausible claim and no basis for
jurisdiction, the Court will deny Plaintiff’s Motion for Service of Process and dismiss this case.
Based on the foregoing, it is hereby
ORDERED that Plaintiff Donald Moore’s Motion for Service of Process (Docket No. 9)
is DENIED. It is further
ORDERED that Plaintiff’s Motion to Appoint Counsel (Docket No. 8) is DENIED AS
MOOT. It is further
Docket No. 7, at 1-2.
Id. at 2.
Henry v. Office of Thrift Supervision, 43 F.3d 507, 511 (10th Cir. 1994) (citations
ORDERED that Plaintiff’s claims against all Defendants are DISMISSED. The Clerk of
the Court is directed close this case forthwith.
DATED April 5, 2012.
BY THE COURT:
United States District Judge