Cone v. Whitman et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/24/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02555-BNB
EVELY C. CONE,
Plaintiff,
v.
GERALD WHITMAN,
GREG JONES, and
DENVER POLICE DEPT.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Evely C. Cone, has filed pro se a Complaint (ECF No. 1). The court
must construe the Complaint liberally because Ms. Cone 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. Ms. Cone will be ordered to file an amended
complaint if she wishes to pursue her claims in this action.
The Complaint is deficient. First, Ms. Cone fails to provide an address where
each Defendant may be served.
The Complaint also 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 the requirements of Rule 8.
Ms. Cone fails to provide a short and plain statement of the grounds for the
court’s jurisdiction. In other words, Ms. Cone fails to identify the statutory authority that
allows the court to consider the claims she is asserting in this action.
Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree. It is
to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
Ms. Cone does not list any specific statutory authority in the jurisdiction portion of
the Complaint. Construing the Complaint liberally, Ms. Cone may intend to assert her
claims pursuant to 42 U.S.C. § 1983. The court has subject matter jurisdiction over

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claims pursuant to § 1983, which “provides a federal cause of action against any person
who, acting under color of state law, deprives another of his federal rights.” Conn v.
Gabbert, 526 U.S. 286, 290 (1999); see also 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.”). If Ms. Cone intends to assert her claims pursuant to § 1983,
she should specify that she is asserting § 1983 claims in the amended complaint she
will be ordered to file. If Ms. Cone intends to assert jurisdiction pursuant to some other
statutory authority, she must identify what that statutory authority is in her amended
complaint.
Ms. Cone also fails to provide a short and plain statement of her claims showing
she is entitled to relief. In particular, Ms. Cone fails to identify the specific claims for
relief she is asserting and she fails to allege specific facts that demonstrate how her
rights allegedly have been violated and what each named Defendant did that allegedly
violated her rights. Her vague and conclusory allegations do not satisfy the pleading
requirements of Rule 8. See 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.
Furthermore, Ms. Cone may not include any § 1983 claims against a municipality unless
she can demonstrate she suffered an injury caused by a municipal policy or custom.
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See Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 769-71 (10th Cir.
2013) (discussing Supreme Court standards for municipal liability); Dodds v.
Richardson, 614 F.3d 1185, 1202 (10th Cir. 2010).
For these reasons, Ms. Cone must file an amended complaint. Ms. Cone must
identify, clearly and concisely, the specific claims she is asserting and the statutory
authority that allows the court to consider those claims, the specific facts that support
each asserted claim, against which Defendant or Defendants she is asserting each
claim, and what each Defendant did that allegedly violated her 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 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). Accordingly, it is
ORDERED that Ms. Cone file, within thirty (30) days from the date of this
order, an amended complaint that complies with this order. It is
FURTHER ORDERED that Ms. Cone shall obtain the appropriate court-approved
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Ms. Cone fails within the time allowed to file an
amended complaint that complies with this order, the action will be dismissed without
further notice.
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DATED September 24, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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