Carbajal et al v. City and County of Denver et al

Filing 27

ORDER of Dismissal. The complaint, the amended complaint, the second amendedcomplaint, and the action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. All pending motions are denied as moot ( 24 Motion to Dismiss; 26 Motion to Dismiss for Failure to State a Claim; 21 Motion to Dismiss for Lack of Jurisdiction, by Judge Lewis T. Babcock on 2/23/12.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02826-BNB
VICTORIA CARBAJAL,
DEAN CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
MITCHELL R. MORRISSEY, District Attorney for the Second Judicial District, in his
individual and official capacity,
ANNE M. MANSFIELD, District Court Judge for the Second Judicial District, in her
individual and official capacity,
REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, in her
individual and official capacity,
LARA MULLIN, Deputy District Attorney for the Second Judicial District, in her individual
and official capacity,
ROBERT FULLER, Investigator for the Second Judicial District, in his individual and
official capacity,
EDWARD D. BROFIN, Magistrate Judge for the Second Judicial District, in his
individual and official capacity,
UNKNOWN COURT REPORTER, Court Reporter for the Second Judicial District, in her
individual and official capacity, and
UNKNOWN TRANSCRIBER, Transcriber for the Second Judicial District, in her
individual and official capacity,
Defendants.

ORDER OF DISMISSAL

Dean Carbajal, a named Plaintiff in this action, is a prisoner in the custody of the
Colorado Department of Corrections at the Centennial Correctional Facility in Cañon
City, Colorado. Victoria Carbajal, who also is a named Plaintiff, is Dean Carbajal’s
mother. The Carbajals initiated this action by filing pro se a Complaint and Jury

Demand (ECF No. 1). On November 14, 2011, the Carbajals filed an amended
complaint (ECF No. 5). On November 21, 2011, Magistrate Judge Boyd N. Boland
ordered the Carbajals to file a second amended complaint that complies with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and to show
cause why the claims asserted by Victoria Carbajal should not be severed pursuant to
Rule 21 of the Federal Rules of Civil Procedure. On January 30, 2012, the Carbajals,
joined by a third Plaintiff, Luis Leal, filed a Second Amended Complaint and Jury
Demand (ECF No. 19).
The Court must construe the second amended complaint liberally because
Plaintiffs are not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Therefore, the
second amended complaint is held to standards less stringent than those governing a
formal pleading drafted by lawyers. See id. However, the Court should not be an
advocate for pro se litigants. See Hall, 935 F.2d at 1110.
The Court has reviewed the second amended complaint and finds that the
second amended complaint also fails to comply with the pleading requirements of Rule
8. As Plaintiffs were advised, the twin purposes of a pleading are to give the opposing
parties fair notice of the basis for the claims against them so that they may respond and
to allow the Court to conclude that the allegations, if proven, show that the plaintiff is
entitled to relief. See Monument Builders of Greater Kansas City, Inc. v. American
Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989); see also Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (stating that a
complaint “must explain what each defendant did to [each Plaintiff]; when the defendant
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did it; how the defendant’s action harmed [each Plaintiff]; and, what specific legal right
[each plaintiff] believes the defendant violated.”
The requirements of Fed. R. Civ. P. 8 are designed to meet these purposes. See
TV Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo.
1991), aff’d, 964 F.2d 1022 (10th Cir. 1992). Specifically, Rule 8(a) provides that a
complaint “must contain (1) a short and plain statement of the grounds for the court’s
jurisdiction, . . . (2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and (3) a demand for the relief sought.”
The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that
“[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and
(d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading
rules. For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all that is permissible,
if the complaint concisely states facts upon which relief can be granted upon any legally
sustainable basis.” New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883
(10th Cir. 1957). As a result, prolix, vague, or unintelligible pleadings violate the
requirements of Rule 8.
Magistrate Judge Boland determined that the amended complaint in this action
did not comply with Rule 8 because the amended complaint did not include a short and
plain statement of the claims being asserted. Magistrate Judge Boland specifically
noted that the claims in the amended complaint were repetitive and unduly prolix and
that, like a prior case initiated by the Carbajals, see Carbajal v. Serra, No. 10-cv-02862REB-KLM (D. Colo. filed Nov. 23, 2010), the amended complaint included a confusing
mix of relevant facts and political and legal argument. Magistrate Judge Boland also
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noted that the Carbajals “have been instructed previously and in detail [in 10-cv-02862REB-KLM] regarding the requirements of Rule 8 and the consequences of not
complying with the rule.” (ECF No. 6 at 2-3.) Magistrate Judge Boland specifically
advised the Carbajals that they “must present their claims in a manageable format that
allows the Court and Defendants to know what claims are being asserted and to be able
to respond to those claims.” (ECF No. 6 at 3.)
Despite these instructions, Plaintiffs’ second amended complaint filed on January
30 similarly fails to comply with the pleading requirements of Rule 8. The second
amended complaint consists of a few relevant facts, a multitude of repetitive, prolix, and
conclusory factual allegations, and political and legal argument that combine to form a
pleading that is confusing and falls far short of the short and plain statement
requirement in Rule 8. Even when Plaintiffs’ factual allegations are relevant, they
routinely assert those factual allegations generally against various combinations of
Defendants without differentiating among the Defendants and providing specific
allegations that demonstrate how each named Defendant allegedly violated their rights.
Ascertaining the specific claims being asserted against each named Defendant in the
second amended complaint also is complicated by the fact that Plaintiffs incorporate the
entire second amended complaint into each claim being asserted.
In short, Plaintiffs’ second amended complaint does not give Defendants fair
notice of the specific claims being asserted against them. Instead, Plaintiffs place an
unreasonable burden on the Court and Defendants to identify both the specific claims
for relief that are being asserted against each Defendant and what specific factual
allegations support each asserted claim. The general rule that pro se pleadings must
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be construed liberally has limits and “the court cannot take on the responsibility of
serving as the litigant’s attorney in constructing arguments and searching the record.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); see also
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs,
hunting for truffles buried in briefs.”).
For all of these reasons, the Court finds that the second amended complaint fails
to comply with the pleading requirements of Rule 8 and the action will be dismissed for
that reason. Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good faith and therefore in forma
pauperis status will be denied for the purpose of appeal. See Coppedge v. United
States, 369 U.S. 438 (1962). If Plaintiffs file a notice of appeal they also must pay the
full $455 appellate filing fee or file individual motions to proceed in forma pauperis in the
United States Court of Appeals for the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the complaint, the amended complaint, the second amended
complaint, and the action are dismissed without prejudice pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure because Plaintiffs have failed to file a pleading that
complies with the pleading requirements of the Federal Rules of Civil Procedure. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is

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FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this

23rd

day of

February

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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