Ross v. Clark

Filing 8

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 01/15/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03399-GPG
DELISE ROSS, a/k/a DELAREE ROSS,
Plaintiff,
v.
DANIEL CLARK, Aurora Police Officer,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Delise Ross, a/k/a Delaree Ross, resides at 3290 Dahlia Street in
Denver, Colorado. Ms. Ross has filed pro se a Complaint pursuant to 28 U.S.C. § 1343
and 42 U.S.C. § 1983 asserting a deprivation of her constitutional rights. She has been
granted leave to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Ms. Ross 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 pro se litigants. See Hall, 935 F.2d at 1110. The Court has
reviewed the complaint and has determined that it is deficient. For the reasons
discussed below, Ms. Ross will be ordered to file an amended complaint.
Plaintiff alleges in the Complaint that on September 17, 2011, she was arrested
by Defendant, Daniel Clark, an Aurora Police Officer, without probable cause, for
robbery and assault. Ms. Ross asserts that Defendant Clark arrested her, knowing that
she did not fit the description of the alleged female suspect, as described to him by the

victim. Plaintiff states that the criminal action against her was dismissed by the district
attorney on July 3, 2013 for lack of evidence. (See also ECF No. 5). She asserts
claims of “mental distress,” “emotional distress,” and “physical distress.” (ECF No. 1, at
3-6). Ms. Ross seeks monetary relief.
The Complaint is deficient because broad and vague assertions of “mental
distress,” “emotional distress,” and “physical distress,” do not constitute legally
cognizable claims. “To state a claim in federal court, a complaint must explain what
each defendant did [to the plaintiff]; when the defendant did it; how the defendant’s
actions harmed [the plaintiff], 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). Under 42 U.S.C. § 1983, “a plaintif f must allege the violation of a right
secured by the Constitution and laws of the United States.” West v. Atkins, 487 U.S.
42, 48 (1988).
A liberal construction of the Complaint indicates that Ms. Ross may be asserting
a § 1983 malicious prosecution claim against the Defendant. To state an arguable
claim for relief, Ms. Ross must allege facts to show that: “(1) the defendant caused the
plaintiff's continued confinement or prosecution; (2) the original action terminated in
favor of the plaintiff; (3) no probable cause supported the original arrest, continued
confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff
sustained damages.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008).
Ms. Ross will be allowed an opportunity to remedy the defects in her pleading to
assert the deprivation of a constitutional right, actionable under 42 U.S.C. § 1983, with
supporting factual allegations. Accordingly, it is
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ORDERED that Plaintiff, Delise Ross, file within thirty (30) days from the date
of this order, an amended complaint that complies with the directives in this order. It is
FURTHER ORDERED that Ms. Ross shall obtain the court-approved Complaint
form at www.cod.uscourts.gov. Alternatively, Ms. Ross can obtain a copy of the
Complaint form at the United States District Court Clerk’s Office, 901 19th St., Denver,
Colorado. It is
FURTHER ORDERED that, if Ms. Ross fails to file an amended complaint within
the time allowed, the Court may dismiss this action without further notice for the
reasons discussed above.
DATED January 15, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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