Miric v. Gamma Express
MEMORANDUM DECISION and Order-Plaintiff shall file an amended complaint that complies with the requirements set forth in the above-referencedauthorities on or before February 11, 2013. Failure to do so will result in a recommendation toJudge Waddoups that this case be dismissed. Signed by Magistrate Judge Paul M. Warner on 1/11/13. (jmr)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
Case No. 2:12-cv-946-CW-PMW
GAMMA EXPRESS LLC,
District Judge Clark Waddoups
Magistrate Judge Paul M. Warner
District Judge Clark Waddoups referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(B).1 At the outset, the court notes that Milan Miric
(“Plaintiff”) has been permitted to proceed in forma pauperis in this case under 28 U.S.C. § 1915
(“IFP statute”).2 As such, the court will address the sufficiency of Plaintiff’s complaint under the
authority of the IFP statute. See 28 U.S.C. § 1915(e)(2)(B)(ii). The court also recognizes that
Plaintiff is proceeding pro se in this case. Consequently, the court will construe his pleadings
liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
Whenever the court authorizes a party to proceed without payment of fees under the IFP
statute, the court is required to “dismiss the case at any time if the court determines that . . . the
action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
See docket no. 6.
See docket nos. 1, 2.
In determining whether a complaint fails to state a claim for relief under the IFP statute, the court
employs the same standard used for analyzing motions to dismiss for failure to state a claim
under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Kay v. Bemis, 500 F.3d 1214,
1217-18 (10th Cir. 2007). Under that standard, the court “look[s] for plausibility in th[e]
complaint.” Id. at 1218 (quotations and citations omitted) (second alteration in original). More
specifically, the court “look[s] 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.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)) (other quotations and citation omitted) (second and third alterations in original).
In undertaking that analysis, the court is mindful that Plaintiff is proceeding pro se and
that “[a] pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see also, e.g., Ledbetter, 318 F.3d at 1187. At the same time, however, it is not “the
proper function of the district court to assume the role of advocate for the pro se litigant,”
Bellmon, 935 F.2d at 1110, and the court “will not supply additional facts, nor will [it] construct
a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.” Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam). Further,
[t]he broad reading of [a pro se] plaintiff’s complaint does not
relieve the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based. . . . [C]onclusory
allegations without supporting factual averments are insufficient to
state a claim on which relief can be based. This is so because a pro
se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if
the court is to determine whether he makes out a claim on which
relief can be granted. Moreover, in analyzing the sufficiency of the
plaintiff’s complaint, the court need accept as true only the
plaintiff’s well-pleaded factual contentions, not his conclusory
Bellmon, 935 F.2d at 1110 (citations omitted).
Even when the court liberally construes Plaintiff’s complaint, the court concludes that
Plaintiff has failed to provide any well-pleaded factual allegations to support his alleged claim for
relief. The preprinted civil rights complaint Plaintiff has filed fails to identify any basis for this
court’s jurisdiction and is almost entirely blank. Plaintiff has included only one allegation,
which, as best the court can tell, appears to be that he was somehow wrongfully deprived of
wages. Although Plaintiff has submitted several other filings,3 they are difficult to decipher.
Furthermore, Plaintiff has not attempted to explain how those filings have any relevance or
connection to his alleged claim.
For these reasons, the court concludes that Plaintiff’s current complaint fails to state a
claim on which relief can be granted. At the same time, however, the court recognizes that
“[d]ismissal 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.” Kay, 500 F.3d at 1217 (quotations and citation omitted). Accordingly,
Plaintiff is hereby provided with an opportunity to amend his current complaint. Plaintiff shall
See docket nos. 4, 5, 7.
file an amended complaint that complies with the requirements set forth in the above-referenced
authorities on or before February 11, 2013. Failure to do so will result in a recommendation to
Judge Waddoups that this case be dismissed.
IT IS SO ORDERED.
DATED this 11th day of January, 2013.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
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