Sanders v. Zabuk et al

Filing 5

ORDER To Amend, by Magistrate Judge Boyd N. Boland on 05/01/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01239-BNB
EVELYN J. SANDERS,
Plaintiff,
v.
KAREN ZABUK, Property Manager, and
LIBERTY ACQUISITIONS SERVICING, LLC,
Defendants.

ORDER TO AMEND

Plaintiff, Evelyn J. Sanders, initiated this action by filing pro se a Complaint
pursuant to 42 U.S.C. § 1983 and a Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915. The Court must construe Plaintiff’s Complaint liberally because
she 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 an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Plaintiff
will be directed to file an Amended Complaint for the reasons stated below.
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).

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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[i]t 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.” Id.
The Court has reviewed Plaintiff’s Complaint and finds that she fails to provide a
short and plain statement of her claims in compliance with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure. Plaintiff fails to set forth a short and
concise statement under the Cause of Action section of the Complaint form that
identifies a specific constitutional violation, the nature of the violation, and how each
responsible defendant participated in the violation.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s
sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir.
1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). The Court,
however, will give Plaintiff an opportunity to cure the deficiencies in the Complaint by

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submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
To state a claim in federal court Plaintiff must explain (1) what a defendant did to
him; (2) when the defendant did it; (3) how the defendant’s action harmed him;
and (4) what specific legal right the defendant violated. Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff also must assert personal participation by each named defendant in the
alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). To establish personal participation, Plaintiff must show how each named
individual caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). There must be an affirmative link between the alleged constitutional
violation and each defendant’s participation, control or direction, or failure to supervise.
See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Finally, Plaintiff’s handwriting is either illegible or difficult to read, which makes
understanding her handwritten allegations difficult. Pursuant to Rule 10.1 of the Local
Rules of Practice for this Court Plaintiff is required to file legible papers.
See D.C.COLO.LCivR 10.1(g). Plaintiff is directed to file a legible Amended Complaint.
Accordingly, it is
ORDERED that Plaintiff shall have thirty days from the date of this Order to
file an Amended Complaint as directed above. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Complaint
form along with the applicable instructions at www.cod.uscourts.gov, to be used in filing
the Amended Complaint. It is

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FURTHER ORDERED that if Plaintiff fails to comply within the time allowed the
Court will address the claims pursuant to the Court’s local rules and the federal rules of
civil procedure and dismiss improper and insufficient claims accordingly.
DATED May 1, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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