McClellan v. Colvin

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 12/4/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03253-GPG
SALLY ANNE McCLELLAN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Sally Anne McClellan has filed pro se a Complaint. 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 be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the reasons stated below , Plaintiff will be
ordered to file an amended complaint if she wishes to pursue her claims in this action.
The Court finds that the Complaint is deficient because it 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 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 “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.
Plaintiff fails to provide a short and plain statement of her claims showing that
she is entitled to relief. In particular, Plaintiff fails to allege the reason her
administrative claim was denied and why she believes that decision was erroneous.
Assuming Plaintiff is proceeding under 42 U.S.C. § 405(g) and seeking judicial review
of a decision by the Commissioner of Social Security denying her claim for social
security disability benefits, she fails to assert the reason her claim was denied, whether
she received a decision on her appeal, and why she believes the decision was
erroneous.
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). Therefore, Plaintiff will be ordered to file an
amended complaint if she wishes to pursue her claims. If available, Plaintiff should
attach to her amended complaint a copy of the administrative law judge’s (ALJ’s)
decision denying her claim and when she received notification that the Appeals Council

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would not review the ALJ’s decision.
If Plaintiff fails within the time allowed to file an amended complaint that complies
with this order and the pleading requirements of the Federal Rules of Civil Procedure,
the instant action may be dismissed without prejudice. However, Plaintiff is warned
that, even if the action is dismissed without prejudice, the dismissal may act as a
dismissal with prejudice if the time for filing an action seeking review of the denial of
social security benefits expires. See Rodriguez v. Colorado, 521 F. App’x 670, 671-72
(10th Cir. 2013). Pursuant to Section 205(g) of the Social Security Act, a civil action
must be commenced “within sixty days after the mailing to her of notice of [any final
decision of the Commission of Social Security] or within such further time as the
Commissioner of Social Security may allow.” 42 U.S.C. § 405(g). Accordingly, it is
ORDERED that Plaintiff file, within thirty days from the date of this Order, an
amended complaint that complies with the pleading requirements of Fed. R. Civ. P. 8
as discussed in this order. It is
FURTHER ORDERED that Plaintiff shall obtain the appropriate court-approved
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails within the time allowed to file an
amended complaint that complies with this order as directed, the action may be
dismissed without further notice.
DATED December 4, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge
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