Flemming v. Wells Fargo Home Mortgage
ORDER re: 1 Complaint filed by Michael D. Flemming. IT IS HEREBY ORDERED that Plaintiff cure the deficiencies designated within thirty (30) days from the date of this order. IT IS FURTHER ORDERED that if Plaintiff fails to cure the designated deficiencies within thirty (30) days from the date of this Order the Complaint and the action will be dismissed without further notice by Magistrate Judge Kristen L. Mix on 3/7/14. (lag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00567-RM-KLM
MICHAEL D. FLEMMING,
WELLS FARGO HOME MORTGAGE,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Title VII Complaint [#1]1 (the
“Complaint”). In the Complaint Plaintiff states the following:
I have PTSD [and] was harrased [sic] and forced [to] re-seek medical attion
[sic] for my PTSD. . . . I was hired by Wells Fargo in 2010 as a mortgage
processor. After about 3 months on the job[,] I started to [be] verbally
harrased [sic] by my supervisoo[,] Daisy Perez. I finally had to take FMLA
[leave] and went to counciling [sic] to get back in control of my PTSD. When
I returned from FMLA [leave,] I was held to a standard unlike anyone else
regarding my work[.] Once I failed at that standard then I was fired.
Complaint [#1] at 2-3. Plaintiff seeks $42,000 in damages. Id. at 6. Plaintiff provides no
further detail regarding his claim against Defendant.
I. Legal Standard
“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
“[#1]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The complaint must
provide fair notice to the defendant sued of what the claims are and the grounds supporting
such claims, Twombly, 550 U.S. at 555, and allow the Court to conclude that the
allegations, if proven, show that the plaintiff is entitled to relief. Monument Builders of
Greater Kansas City, Inc. v. Am. Cemetery Ass’n of Kansas, 1480 (10th Cir. 1989). The
factual allegations in the complaint “must be enough to raise a right to relief above the
speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191
(10th Cir. 2009). A complaint that does not meet these requirements may be subject to
dismissal pursuant to Fed. R. Civ. P. 12.
In addition, Fed. R. Civ . P. 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 . . . .” Fed. R. Civ. P. 8. A complaint that does not comply with this may
also be subject to dismissal.
The Court must construe the 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 act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110.
The Tenth Circuit encourages district courts to “helpfully advise a pro se litigant 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.” Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007); see also Lazarov v. Kimmel, No.10cv-01238-CMA, 2010 WL 2301749 (D. Colo. June 8, 2010). Plaintiff’s Complaint fails to
clearly articulate the specific allegations as to Defendant and the corresponding basic
details, such as the date of any specific acts. For example, while Plaintiff brings his claim
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., he fails to
provide the date when his employment was terminated. Plaintiff also fails to provide
information regarding whether he is a member of a protected class or if he engaged in
opposition to an unlawful employment practice. See. e.g., 42 U.S.C. §§ 2000(e)-2(a)(1)
(discrimination), 2000(e)-3(a) (retaliation). In short, the Complaint fails to comply with the
Federal Rules of Civil Procedure and the Local Rules of Practice of the United States
District Court for the District of Colorado-Civil.
In order to secure the just, speedy, and inexpensive determination of this matter, as
dictated by Rule 1 of the Federal Rules of Civil Procedure, the Court finds it necessary to
sua sponte strike the Complaint due to its failures as set forth above. The Court grants
Plaintiff leave to file an Amended Complaint that complies with this Order, the Federal
Rules of Civil Procedure, and the Local Rules of Practice of the United States District Court
for the District of Colorado-Civil. Accordingly,
IT IS HEREBY ORDERED that Plaintiff cure the deficiencies designated above
within thirty (30) days from the date of this order.
IT IS FURTHER ORDERED that if Plaintiff fails to cure the designated deficiencies
within thirty (30) days from the date of this Order the Complaint and the action will be
dismissed without further notice.
Dated: March 7, 2014
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