Delihue et al. v. Mental Health, Cooperation of Denver et al.

Filing 13

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/21/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03257-BNB
SOVEREIGN-HEBREW-MASONIC KYLE LEE DELI HUE THE III,
Plaintiff,
v.
MENTAL-HEALTH CORPORATION OF DENVER & DR. CARL CLARK,
STEVE BOMMER,
JOHN CECILY,
ALEX MORGAN,
KEITH BAR,
FRANCES CARRILO,
LEAH BS KUITH,
TITUS DURU, and
SANDY TILLSON,
Defendants.

ORDER OF DISMISSAL

Plaintiff initiated this action by filing pro se a Title VII Complaint (ECF No. 1). On
December 9, 2013, Plaintiff filed an amended complaint (ECF No. 5) using the District of
Colorado Prisoner Complaint form. On January 15, 2014, Magistrate Judge Boyd N.
Boland ordered Plaintiff to file a second amended complaint that clarifies the claims he
is asserting in this action. Magistrate Judge Boland specifically determined that the
amended complaint, and the original Title VII Complaint, were incomprehensible and did
not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure. Magistrate Judge Boland warned Plaintiff that, if he failed to file a second
amended complaint that complies with the pleading requirements of Rule 8 within thirty

days, the action would be dismissed without further notice. On February 14, 2014,
Magistrate Judge Boland granted Plaintiff’s request for an extension of time to file a
second amended complaint. On March 11, 2014, Plaintiff filed a second amended
complaint (ECF No. 11) using the Prisoner Complaint form.
The Court must construe the second amended complaint liberally because
Plaintiff is 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). However, the Court
should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the
reasons discussed below, the action will be dismissed.
The Court has reviewed the second amended complaint and finds that Plaintiff
still fails to comply with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure. 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 him or her; when the defendant did it; how the
defendant’s action harmed him or her; and, what specific legal right the plaintiff believes
the defendant violated.”).
The requirements of Rule 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
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“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.” Furthermore, 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. As a result, prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8.
Despite the specific instructions provided by Magistrate Judge Boland, Plaintiff
fails to provide a short and plain statement of the grounds for the Court’s jurisdiction, a
short and plain statement of his claims showing he is entitled to relief, and a clear
statement of the relief he seeks. Like the original complaint and the first amended
complaint, the second amended complaint is incomprehensible. It is not clear what
specific claims Plaintiff is asserting in this action, the specific facts that support each
asserted claim, against which Defendant or Defendants he is asserting each claim, and
what each Defendant did that allegedly violated his rights. As a result, Plaintiff’s second
amended complaint does not give Defendants fair notice of the specific claims being
asserted against them. Instead, Plaintiff places 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 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 &
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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.”);
Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory
allegations that his rights have been violated does not entitle a pro se pleader to a day
in court regardless of how liberally the pleadings are construed), aff’d, 961 F.2d 916
(10th Cir. 1992). “[I]n analyzing the sufficiency of the plaintiff’s complaint, the court need
accept as true only the plaintiff’s well-pleaded factual contentions, not his conclusory
allegations.” Hall, 935 F.2d at 1110. Because Plaintiff fails to provide a clear and
concise statement of the claims he is asserting, the action will be dismissed for failure to
file an amended pleading that complies with Rule 8 as directed.
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 Plaintiff files a notice of appeal he also must pay the full $505
appellate filing fee or file a motion 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 (ECF No. 1), the amended complaint (ECF No. 5),
the second amended complaint (ECF No. 11), and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because
Plaintiff has failed to file a pleading that complies with the pleading requirements of the
Federal Rules of Civil Procedure. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

21st

day of

March

, 2014.

BY THE COURT:

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

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