Carbajal et al v. Morrissey et al

Filing 89

ORDER granting 86 Motion to Strike Plaintiff's 85 Second Amended Complaint. Plaintiff's Second Amended Complaint [# 85 ] is STRICKEN. Plaintiff shall file a Third Amended Complaint on or before 5/24/2013. By Magistrate Judge Kristen L. Mix on 4/23/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03231-REB-KLM
VICTORIA CARBAJAL,
DEAN CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
MITCHELL R. MORISSEY, District Attorney for the Second Judicial District, in his official
and individual capacities,
JEFFREY WATTS, Investigator for the Second Judicial District, in his official and individual
capacities,
ROBERT FULLER, Investigator for the Second Judicial District, in his official and individual
capacities,
REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, in her official
and individual capacities,
LARA MULLIN, Deputy District Attorney for the Second Judicial District, in her official and
individual capacities,
MILES FLESCHE, District Administrator and Clerk for the Second Judicial District, in his
official and individual capacities,
KEITH CRISWELL, Deputy Court Clerk for the Second Judicial District, in his official and
individual capacities,
ANNE MANSFIELD, District Court Judge for the Second Judicial District, in her official and
individual capacities,
KEEFER, Deputy Sheriff for the Denver Detention Center, in his official and individual
capacities,
MICHAEL SIMPSON, Detective for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Detective for the Denver Police Department, in his official and individual
capacities,
RICHARD HAGAN, Detective for the Denver Police Department, in his official and
individual capacities,
CAROL DWYER, a co-conspirator with the Second Judicial District Attorney’s Office, in her
official and individual capacities,
WELLS FARGO, a corporation,
BRIAN BERARDINI, a co-conspirator with the Second Judicial District Attorney’s Office,
in his individual capacity, and
JOHN SUTHERS, Attorney General for the State of Colorado, in his official and individual
capacities,
Defendants.
-1-

_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants John Miles Flesche, Adrian Keith
Criswell, and Anne Mansfield’s (collectively, the “State Defendants”) Motion to Strike
Plaintiff’s Second Amended Complaint [Docket No. 86; Filed April 18, 2013] (the
“Motion”). In the Motion, the State Defendants argue that Plaintiffs’ Second Amended
Complaint [#85] fails to comply with the Federal Rules of Civil Procedure and with the Local
Rules. Motion [#86] at 2. They specifically cite to alleged violations of Fed. R. Civ. P.
8(a)(2), D.C.COLO.LCivR 8.2, and D.C.COLO.LCivR 10.1.1 Id.
Local Rule 8.2A. states, in relevant part, “A pro se prisoner shall use the forms
established by this court to file an action.” The State Defendants aver that Plaintiffs’ failure
to use the appropriate form for the Second Amended Complaint is a ground on which the
filing may be stricken. The Court disagrees. Although the Second Amended Complaint is
clearly written in Plaintiff Dean Carbajal’s handwriting, and although Plaintiff Dean Carbajal
is incarcerated, this lawsuit involves two other, unincarcerated pro se Plaintiffs: Victoria
Carbajal and Luis Leal. Local Rule 8.2A. does not mandate that lawsuits involving both
unincarcerated pro se plaintiffs and incarcerated pro se plaintiffs must be submitted on
court-established forms for incarcerated pro se plaintiffs. Thus, the Court will not strike the
Second Amended Complaint on this basis.

1

Counsel for the State Defendants is advised to thoroughly check his citations in all
documents submitted to the Court in the future. Every citation in this short three-page filing is
incorrect except for the first citation to D.C.COLO.LCivR 7.1. For example, when citing to Fed. R.
Civ. P. 8(a)(2), the citation in the document reads “Fed.R.Civ.P. 8(2).” Motion [#86] at 2. Federal
Rule of Civil Procedure 8(2) does not exist.

-2-

Local Rule 10.1E. states, “All papers shall be double-spaced.”

While some

provisions of Local Rule 10.1 exempt pro se litigants from their mandates, Local Rule
10.1E. is not one of those provisions. Plaintiff’s tiny handwriting, which is not unique to the
Second Amended Complaint at issue here, is as small as and/or smaller than the 12-point
font from which pro se litigants are exempted for good cause shown. The Court agrees
with the State Defendants that Plaintiff’s filing violates Local Rule 10.1E. Regardless, the
Court does not strike this (or any other present filing) on that basis alone. However,
Plaintiff is warned that future filings that do not comply with the spacing requirement
of Local Rule 10.1E. shall be stricken sua sponte or on motion from opposing
counsel.
Local Rule 10.1G. states, “All papers and signatures shall be legible.” The State
Defendants aver that Plaintiff’s Second Amended Complaint “is handwritten in exceedingly
small and hard-to-decipher font [and that] [m]any lines or pages are faint and impossible
to read.” Motion [#86] at 2. They specifically direct the Court’s attention to page 15 of the
Second Amended Complaint. Id. The Court is very familiar with Plaintiff’s handwriting from
his numerous filings in multiple cases. Many of these filings are border-line illegible. While
the Court is willing to once overlook an issue such as failing to double-space, the Court is
troubled by the degree of legibility in the current Second Amended Complaint. Much of the
document can be read with care, but there are portions where only a few words can be
picked out, including but not limited to page 15. The Court cannot expect Defendants to
file proper responses to the Second Amended Complaint when the document cannot be
read in its entirety. The Court therefore finds that Plaintiff’s Second Amended Complaint
violates Local Rule 10.1G.

-3-

Accordingly,
IT IS HEREBY ORDERED that the Motion [#86] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Second Amended Complaint [#85] is
STRICKEN.
IT IS FURTHER ORDERED that Plaintiff shall a Third Amended Complaint on or
before May 24, 2013.
IT IS FURTHER ORDERED that Plaintiff’s Third Amended Complaint shall be
legible, in compliance with Local Rule 10.1G., and double-spaced, in compliance with Local
Rule 10.1E. Finally, although the Court does not address whether Plaintiff’s Second
Amended Complaint complied with Fed. R. Civ. P. 8(a),
IT IS FURTHER ORDERED that Plaintiff’s Third Amended Complaint shall comply
with Fed. R. Civ. P. 8(a), which specifies that a pleading which states a claim for relief must
contain a short and plain statement of the claim showing that the pleader is entitled to relief
and a demand for the relief sought. See Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (stating that pro se litigants must follow the same procedural rules that govern other
litigants).

Dated: April 23, 2013

-4-