Hickey v. Donahoe

Filing 48

ORDER Adopting in Part and Rejecting in Part 36 Report and Recommendations by Judge Christine M. Arguello on 11/29/13. The Complaint is dismissed without prejudice.(dkals, )

A.1

1IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-01054-CMA-BNB
LYNDA S. HICKEY,
Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General,
Defendant.

ORDER ADOPTING IN PART AND REJECTING IN PART NOVEMBER 4, 2013
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the November 4, 2013 Recommendation
by United States Magistrate Judge Boyd N. Boland that Defendant’s Motion to Dismiss
(Doc. # 22) be granted in part and denied in part. (Doc. # 36.) The Recommendation is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
On November 4, 2013, Plaintiff Lynda Hickey, who is proceeding pro se, filed an
objection to the Recommendation, (Doc. # 36.)1 followed on November 18, 2013, by a
partial objection filed by Defendant Patrick Donahoe. (Dkt. # 42.) For the reasons
stated below, this Court adopts in part but rejects in part the Recommendation of the
Magistrate Judge and dismisses this complaint in its entirety. If Plaintiff wishes to
continue pursuing this action, she is instructed to file an amended complaint by no later

1

The filing is referred to as a “response” but upon review, the Court construes it as an
objection. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

than December 30, 2013, in which she sets out clearly the claims she wishes to bring
against Defendant.
I.ANALYSIS
A.

FAILURE TO STATE A CLAIM
Defendant principally argued in his motion that the complaint should be

dismissed for failure to state a claim upon which relief can be granted. The standard of
review for this motion is covered in part by Federal Rule of Civil Procedure 8(a)(2). This
rule dictates that a pleading shall include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2). The basic point
of the rule is to put the parties and the Court on notice as to the nature of the plaintiff’s
claim. Further, for defendants, this requirement alerts them to the manner in which they
should prepare their defense. Cf. Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214 (10th Cir. 2011).
Even plaintiffs proceeding pro se are required to comply with the “plain
statement” rule. While this Court can liberally construe a complaint filed by a pro se
party, it may also dismiss a pro se complaint when, even liberally construed, it is
incomprehensible or presents claims in a disjointed manner. Carpenter v. Williams, 86
F.3d 1015, 1016 (10th Cir.1996); see also Ogden v. San Juan County, 32 F.3d 452, 455
(10th Cir. 1994) (“While we of course liberally construe pro se pleadings, an appellant's
pro se status does not excuse the obligation of any litigant to comply with the
fundamental requirements of the Federal Rules of Civil and Appellate Procedure.”);
Moser v. Oklahoma, 118 F. App’x 378, 380-81(10th Cir. 2004) (affirming dismissal
under Rule 8(a) where the complaint was vague and incomprehensible to the point that

the defendants could not discern the claims or prepare a defense); Whitehead v.
Shafer, 295 F. App’x 906, 908 (10th Cir. 2008) (same).
Here, the complaint potentially raises claims under Title VII, the Americans with
Disability Act (ADA),2 and the Rehabilitation Act. In particular, the complaint potentially
alleges, among other claims, a number relating to disability discrimination and hostile
work environment based on a hearing impairment, retaliation for prior EEOC activity,
and breach of contract. (Dkt. # 7)
There are two problems with the current complaint. First, it is difficult to
determine the specific legal claims that Plaintiff is raising. For example, the claims are
neither enumerated nor placed in any sort of logical list where one claim is fully
discussed before proceeding to discuss a second (and separate) legal claim. Further,
the claims are not explained sufficiently to put the defendant on notice as to how to
defend against any of the potential allegations referenced in the complaint.
Second, when filing the complaint, Plaintiff submitted a number of exhibits and
other documents, including a substantial amount of correspondence between Plaintiff
and civil rights attorneys. Plaintiff references some of these documents in her complaint
and appears to rely on the documents that she cross references to substantiate some of
the allegations she advances. While the Magistrate Judge correctly noted that such
cross-referencing can be appropriate in substantiating the allegations of a complaint,
see Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991), the complaint must still
satisfy the strictures of Rule 8.

2

For the reasons discussed below, the Court agrees with the Magistrate Judge that the claims
under the ADA are barred.

In its present form, the complaint violates Rule 8’s “plain statement” rule. Simply
put, the complaint contains too many cross references and not enough explanation of
the basis for relief from this Court to put the defendant on notice of how to present a
defense to the suit.
The Plaintiff, however, can file an amended complaint that complies with the
requirements of Rule 8. In preparing this filing, this Court suggests that the plaintiff use
language that sets forth clearly each separate claim or violation of the law. For each
separate claim, the Plaintiff should set forth reasoning for why the law has been
violated. For example, Plaintiff might use the following formula, with Plaintiff supplying
the necessary laws and reasoning listed below between the brackets:3
Claim 1 – Violation of __[Insert Law]___
Plaintiff alleges that Defendant violated ___[Insert Law]____ because he
__________[explain reasoning]______.
Claim 2 – Violation of __[Insert Law]___
The Plaintiff alleges that the Defendant _[committed the following
acts]__________ in violation of ____[Insert Law]____ because he
____[explain reasoning]__________.
If the Plaintiff wishes to, she may submit an amended complaint that complies with Rule
8. To the extent that the amended complaint does not comply with Rule 8, it may be
subject to dismissal on a renewed motion by Defendant. Further, to the extent that the

3

The Court provides this instruction to aid a pro se litigant. The Court, however, is mindful that
there might be a number of reasons why such claims as alleged could be subject to a renewed
motion to dismiss.

Magistrate Judge’s Report and Recommendation suggests that the complaint as
currently presented is sufficient, that portion of the report is overruled.
B.

ADA CLAIM
The Magistrate Judge also determined that the Plaintiff’s claim under the

Americans with Disabilities Act (ADA) should be dismissed because the federal
government does not fall within the definition of “employer” for purposes of this statute
and has not otherwise waived its sovereign immunity. The Plaintiff disagrees with this
determination, but the Defendant lodges no such objection.
“When a magistrate judge issues a recommendation on a dispositive matter,
Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part
of the magistrate judge’s [recommended] disposition that has been properly objected
to.” In conducting its review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.
The Court has conducted a de novo review of this matter, including reviewing
all relevant pleadings, the Recommendation, and Plaintiff’s objection thereto. Based
on this de novo review, the Court concludes that Judge Boland’s Recommendation is
not called into question by Plaintiff’s objection as to this matter. Accordingly, it is hereby
ORDERED that Plaintiff’s objection (Doc. # 41) is OVERRULED. See also Brown v.
Cantrell, No. 11-CV-00200-PAB-MEH, 2012 WL 4050300 (D. Colo. Sept. 14, 2012)
(similarly finding that a federal employee is barred from bringing an ADA claim against
the federal government). Plaintiff is therefore instructed that if she wishes to submit an
amended complaint, it should not include a claim under the ADA.

C.Conclusion

For the reasons stated above, it is ORDERED that the Recommendation of
United States Magistrate Judge Boland (Doc. # 36) is AFFIRMED and ADOPTED IN
PART as an order of this Court. It is FURTHER ORDERED that the Recommendation
is REJECTED IN PART and that the Complaint is DISMISSED WITHOUT PREJUDICE.
Plaintiff is instructed to amend her complaint in light of this order if she wishes to
continue with this action. If an amended complaint has not been filed by December 30,
2013, this case will be closed.
DATED: November 29, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge