Mendez v. Legendre

Filing 5

ORDER Directing Plaintiff To File Amended Complaint by Magistrate Judge Gordon P. Gallagher on 1/15/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03459-GPG
ANGEL L. MENDEZ,
Plaintiff,
v.
MARCY LEGENDRE,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Angel L. Mendez, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Mendez has filed pro se a Prisoner Complaint (ECF
No. 1). The court must construe the Prisoner Complaint liberally because Mr. Mendez
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 (10 th Cir. 1991). However, the court should not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Mr. Mendez will be
ordered to file an amended complaint if he wishes to pursue his claims in this action.
The Prisoner 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 (10 th

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 (10 th 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 statem ent 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.
Mr. Mendez fails to provide a short and plain statement of the grounds for the
court’s jurisdiction because he does not list any statutory authority for his claims in the
jurisdiction portion of the Prisoner Complaint.
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). Even construing the Prisoner Complaint liberally, it is not apparent that Mr.
Mendez is asserting any federal claims pursuant to 28 U.S.C. § 1331 (“[t]he district
courts shall have original jurisdiction of all civil actions arising under the Constitution,
laws, or treaties of the United States”) or that the court has diversity jurisdiction over his
claims pursuant to 28 U.S.C. § 1332(a) (“[t]he district courts shall have original
2

jurisdiction of all civil actions where the amount in controversy exceeds the sum or
value of $75,000 . . . and is between (1) citizens of different States”).
Mr. Mendez also fails to provide a short and plain statement of his claims
showing he is entitled to relief. Mr. Mendez alleges that a payroll check mailed to him
at a community corrections facility after he had been discharged from community
corrections was deposited into a closed account and the f unds were used to pay his
rent and restitution. These factual allegations are clear. What is not clear are the
specific legal claims Mr. Mendez is asserting against the named Defendant on the basis
of these factual allegations.
For these reasons, Mr. Mendez must file an amended complaint. Mr. Mendez
must identify, clearly and concisely, the specific claims he 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 he is asserting each
claim, and what each Defendant did that allegedly violated his rights. See Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 th 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 Mr. Mendez file, within thirty (30) days from the date of this
3

order, an amended complaint that complies with this order. It is
FURTHER ORDERED that Mr. Mendez shall obtain the appropriate courtapproved Complaint form, along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Mendez fails within the time allowed to file an
amended complaint that complies with this order, the action will be dismissed without
further notice.
DATED January 15, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

4