McDonald v. Zions First National Bank, N.A. et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/20/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03293-BNB
R. KIRK McDONALD,
Plaintiff,
v.
ZIONS FIRST NATIONAL BANK N.A.,
DIANE HARTZ WARSOFF, V.P., Zions First National Bank, individually & personally,
BLOOM MURR ACCOMAZZO & SILER, a Colorado Law Firm,
JOSEPH A. MURR, employee of “BMAS” individually & personally,
DANIEL R. DELANEY, employee of “BMAS” individually & personally,
MARIS S. DAVIES, employee of “BMAS” individually & personally,
SIOBHAN GEMBA, paralegal-office manager of “BMAS” individually & personally,
ROBERT THOMAS MOORHEAD, Chief Judge of Eagle County, individually &
personally,
RONDA HIGGINS, Eagle County, Clerk’s Office, Law Clerk for the Honorable, Robert
Thomas Moorhead individually & personally,
JACKIE COOPER, Eagle County, Clerk of the Court, individually & personally,
5th JUDICIAL DISTRICT-EAGLE COUNTY, Clerk of the Court-Eagle County, Jackie
Cooper in their Eagle County & official capacities as clerk of the court,
5TH JUDICIAL DISTRICT-EAGLE COUNTY, a governmental entity of the state of
Colorado, and
EAGLE COUNTY, a governmental entity for and of the state of Colorado,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, R. Kirk McDonald, has filed pro se a Complaint With Jury Demand (ECF
No. 1) that is ninety-five pages long and includes a total of fifty claims for relief under
federal and state law. Another seventeen pages of exhibits are attached to the
complaint. The court must construe the complaint liberally because Mr. McDonald 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 stated
below, Mr. McDonald will be ordered to file an amended complaint if he wishes to
pursue his claims in this action.
The complaint does not comply with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure. The twin purposes of a complaint 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). 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. Prolix, vague, or unintelligible pleadings
violate Rule 8.
Mr. McDonald fails to provide a short and plain statement of his claims showing
he is entitled to relief primarily because the complaint is prolix and repetitive. In
addition, despite the fact that the complaint is ninety-five pages long, Mr. McDonald fails
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to provide specific factual allegations in support of each asserted claim showing he is
entitled to relief. For example, Mr. McDonald fails to allege specific facts in support of
his federal constitutional claims that demonstrate each named Defendant personally
participated in the asserted constitutional violations. See Henry v. Storey, 658 F.3d
1235, 1241 (10th Cir. 2011) (allegations of “personal participation in the specific
constitutional violation complained of [are] essential”). Mr. McDonald also fails to allege
facts in support of his federal constitutional claims that demonstrate the named
Defendants were acting under color of state law. See Conn v. Gabbert, 526 U.S. 286,
290 (1999) (stating that § 1983 “provides a federal cause of action against any person
who, acting under color of state law, deprives another of his federal rights”); Wyatt v.
Cole, 504 U.S. 158, 161 (1992) (“[T]he purpose of § 1983 is to deter state actors from
using the badge of their authority to deprive individuals of their federally guaranteed
rights and to provide relief to victims if such deterrence fails.”). Mr. McDonald may
assert his § 1983 claims only against persons who acted under color of state law.
Mr. McDonald will be directed to file an amended complaint that clarifies the
claims he is asserting in this action. Mr. McDonald must identify, clearly and concisely,
the specific claims he is asserting, 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. See Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (noting that, to state a claim in federal
court, “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 general rule that pro se
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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 & Janer, 425 F.3d 836, 840
(10th Cir. 2005). Mr. McDonald should not include legal argument in the amended
complaint he will be ordered to file. “It 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). Accordingly, it is
ORDERED that Mr. McDonald file, within thirty (30) days from the date of this
order, an amended Complaint that complies with the pleading requirements of the
Federal Rules of Civil Procedure as discussed in this order. It is
FURTHER ORDERED that Mr. McDonald shall obtain the court-approved
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. McDonald fails to file an amended Complaint
that complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED December 20, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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