Vivo v. Brenda

Filing 11

ORDER re: 9 Second Claim for Relief. Because plaintiff has thus far failed to sufficiently allege the Court's subject matter jurisdiction, the Court finds no reason to reconsider its previous order dismissing plaintiff's complaint. By Judge Philip A. Brimmer on 7/9/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01695-PAB
ZITA M. VIVO,
Plaintiff,
v.
BRENDA,
Defendant.

ORDER

This matter is before the Court on the Second Claim for Relief [Docket No. 9]
filed by plaintiff Zita M. Vivo.1 On July 8, 2013, the Court dismissed plaintiff’s complaint
without prejudice due to plaintiff’s failure to show cause why her complaint should not
be dismissed due to various pleading deficiencies and a failure to state the basis of
subject matter jurisdiction. See Docket No. 8. Shortly after the Court’s order of
dismissal, plaintiff filed on the Court’s electronic filing system the above-referenced
second claim for relief,2 which was promptly followed by the entry of Final Judgment
[Docket No. 10].

1

Because plaintiff is proceeding pro se, the Court construes her pleadings
liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). However, it is not the proper function of the Court to
assume the role of advocate for the pro se plaintiff. Hall, 935 F.2d at 1110.
2

Although plaintiff filed her second claim for relief with the Court on July 5, 2013,
due to a Court holiday, the document was not entered on the Court’s electronic filing
system until July 9, 2013. See Docket No. 9.

In her second claim for relief, plaintiff alleges that an unidentified defendant
subjected her to some physical abuse.3 Docket No. 9 at 1. Although plaintiff asserts a
wrong committed through the physical abuse, she does not identify the specific nature
of her claim arising from this abuse. Moreover, plaintiff’s second claim for relief fails to
state any basis for the Court’s subject matter jurisdiction. See Cunningham v. BHP
Petroleum Great Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005) (noting that absent
an assurance that jurisdiction exists, a court may not proceed in a case). Where a
plaintiff fails to properly establish the subject matter jurisdiction of this Court, plaintiff’s
case must be dismissed. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
Accordingly, because plaintiff has thus far failed to sufficiently allege the Court’s subject
matter jurisdiction, the Court finds no reason to reconsider its previous order dismissing
plaintiff’s complaint.

DATED July 9, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

3

Because plaintiff filed her second claim for relief before the entry of final
judgment, the Court will liberally construe her second claim for relief as an interlocutory
document “invoking the [Court’s] general discretionary authority to review and revise
interlocutory rulings prior to entry of final judgment,” and not a motion to alter or amend
judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure. Wagoner v.
Wagoner, 938 F.2d 1120, 1122 n. 1 (10th Cir. 1991).
2