Myers v. Hummel

Filing 40

ORDER. Defendant's 19 Motion for More Definite Statement is granted. Plaintiff to file amended complaint on or before 4/29/11. Scheduling Conference set for 4/27/11 is vacated and reset to 6/7/2011 at 11:00 AM in Courtroom C204 before Magistrate Judge Kristen L. Mix, by Magistrate Judge Kristen L. Mix on 4/14/11.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00400-REB-KLM
BERNARD KENNETH MYERS,
Plaintiff,
v.
DORWIN DWAYNE HUMMEL,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion for a More Definite
Statement [Docket No. 19; Filed March 29, 2011] (the “Motion”). On April 7, 2011, Plaintiff
filed a Response [Docket No. 29] in opposition to the Motion. Defendant asserts that he
cannot answer or otherwise appropriately respond to Plaintiff’s Complaint [Docket No. 1]
because he “is unable to ascertain exactly what relief, if any, is sought by the Plaintiff and
under what legal theory he seeks such [relief].” Motion [#19] at 2; see also id. at 3 (“[I]t is
quite possible that the Plaintiff has failed to state a claim on which relief can be granted.”).
Accordingly, Defendant seeks an order directing Plaintiff to amend his Complaint. Plaintiff
asserts that amendment is not necessary, and he argues that the Motion is an attempt by
Defendant to prolong the case and force him to expend further resources. Response [#29]
at 1-2.
Because Plaintiff is proceeding pro se, the Court is mindful that it must construe his

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Complaint liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be Plaintiff’s
advocate, nor should it “supply additional factual allegations to round out [his] complaint or
construct a legal theory on [his] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74
(10th Cir. 1997) (citing Hall, 935 F.2d at 1110). Further, despite Plaintiff’s pro se status,
he must follow the same procedural rules that govern other litigants. Nielson v. Price, 17
F.3d 1276, 1277 (10th Cir. 1994).
After reviewing Plaintiff’s Complaint, the Court finds that it does not satisfy any of the
three essential pleading requirements set forth in Fed. R. Civ. P. 8(a) (“Rule 8(a)”). The
Complaint consists of the following: (1) six introductory pages that state only the parties’
names and addresses and an unsupported assertion of jurisdiction pursuant to 28 U.S.C.
§ 1332; (2) two pages of allegations, Complaint [#1] at 8-9; and (3) thirty-six pages of
various documents. Plaintiff has provided no explanation regarding how the incorporated
documents are related to the case. Defendant is correct that Plaintiff has not made a short
and plain statement of the grounds for the Court’s jurisdiction, his legal claim, and a
demand for the type of relief he seeks, as required by Rule 8(a). Accordingly,
IT IS HEREBY ORDERED that the Motion [#19] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint that
complies with Rule 8(a) on or before April 29, 2011.
IT IS FURTHER ORDERED that if Plaintiff wishes to submit supporting documents
with his amended complaint, he must separately label each document as a numbered
attachment to the amended complaint. Supporting documents are not to be included as

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part of the amended complaint itself. The text of the amended complaint must explain the
nature and relevance of any attached document.
IT IS FURTHER ORDERED that Plaintiff’s failure to comply with this Order will result
in the Court issuing a recommendation to dismiss this case without prejudice. See Nagim
v. State of Louisiana, et al., No. 08-cv-01115-ZLW-MEH, Docket No. 2 (D. Colo. June 6,
2008) (unreported decision) (Order of Dismissal) (noting that a plaintiff’s “failure to set forth
facts sufficient to show that he is entitled to legal relief, as required by Fed. R. Civ. P. 8” is
grounds for dismissing his case without prejudice).
IT IS FURTHER ORDERED that the Scheduling Conference set for April 27, 2011
at 11:00 a.m. is vacated and RESET to June 7, 2011 at 11:00 a.m. in Courtroom C-204
of the Byron G. Rogers United States Courthouse.
IT IS FURTHER ORDERED that the parties shall submit their proposed scheduling
order pursuant to the District of Colorado Electronic Case Filing (“ECF”) Procedures. The
parties shall submit the proposed scheduling order no later than June 2, 2011.
IT IS FURTHER ORDERED that each party shall submit a Confidential Settlement
Statement no later than June 2, 2011. Parties participating in the District of Colorado ECF
system shall submit their Confidential Settlement Statement in PDF format via email to
[e-mail]. Parties not participating in ECF shall submit their
Confidential Settlement Statement as a hard copy by delivering it to the Clerk of the Court
or by mailing it directly to Magistrate Judge Mix in an envelope marked “Confidential and
Private per Order of Magistrate Judge Mix.”
Courtroom C-204 is located on the second floor of the Byron G. Rogers United

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States Courthouse, 1929 Stout Street, Denver, Colorado 80294. The parties are reminded
that anyone seeking entry into the Byron G. Rogers United States Courthouse will be
required to show valid photo identification. See D.C.COLO.LCivR 83.2B.

DATED: April 14, 2011 at Denver, Colorado.

BY THE COURT:
s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

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