Myers v. State of Colorado

Filing 5

ORDER Directing Plaintiff to File Amended Title VII Complaint, by Magistrate Judge Gordon P. Gallagher on 5/4/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00931-GPG
ROBIN MYERS,
Plaintiff,
v.
STATE OF COLORADO, et al.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED TITLE VII COMPLAINT

Plaintiff, Robin Myers, has filed pro se a Title VII Complaint (ECF No. 1). She
has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The court must construe the Title VII Complaint liberally because Ms. Myers 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. For the reasons
discussed below, Ms. Myers will be ordered to file an amended complaint.
The court has reviewed the Title VII Complaint and finds that the document fails
to 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
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.
Ms. Myers fails to provide a short and plain statement of her claims showing she
is entitled to relief. Although Plaintiff indicates in the Title VII Complaint that she was
discriminated against because of her race and religion (see ECF No. 1, at 2), she fails
to allege specific facts to demonstrate that she was discriminated against in the terms
and conditions of her employment because of her race and religion. Ms. Myers also
fails to indicate whether she has exhausted administrative remedies.
Furthermore, Ms. Myers is reminded that the only proper defendant in a Title VII
action is her employer or former employer. See Haynes v. Williams, 88 F.3d 898,
899-901 (10th Cir.1996) recognizing that Title VII creates a private right of action
against employers who allegedly performed unlawful employment practices); McBride v.
Gallegos, No. 02-4216, 72 F. App’x 786, 788 (10th Cir. July 30, 2003) (unpublished)
(affirming dismissal of defendant in Title VII action who was not the plaintiff’s employer).
As such, the additional nine defendants listed in the Title VII Complaint (see ECF No. 1,
at 4-5) should not be named as defendants in the Amended Complaint.
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Finally, the claims asserted in the Title VII Complaint appear to be duplicative of
the § 1983 claims Ms. Myers asserted in a previous action – Robin Myers v. State of
Colorado, et al., 14-cv-03005-LTB. In that action, all of the federal claims were
dismissed with prejudice on December 17, 2014, and the Court declined to exercise
supplemental jurisdiction over any state law claims. Claims may be dismissed as
frivolous or malicious under 28 U.S.C. § 1915(e)(2) if they duplicate previous litigation.
See McWIlliams v. State of Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997) (citing
Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)); see also Griffin v. Zavaras,
No. 09-1165, 336 F. App’x 846, 849 (10th Cir. July 14, 2009) (unpublished).
Furthermore, res judicata, or claim preclusion, applies to limit a party from bringing
before the court a matter that has been or could have been raised in an earlier
proceeding. See Allen v. McCurry, 449 U.S. 90, 94 (1980) (“Under res judicata, a final
judgment on the merits of an action precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.”). The federal claims
brought in the prior action should not be re-asserted in Plaintif f’s Amended Complaint.
Ms. Myers must file an amended complaint against an employer or former
employer if she wishes to pursue Title VII claims in this action. Plaintiff must allege
specific facts to support claims that she was discriminated against on the basis of her
race or religion. 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
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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 (10 th Cir. 2005). Accordingly, it is
ORDERED that Ms. Myers file, within thirty (30) days from the date of this
order, an Amended Title VII Complaint that complies with the pleading requirements of
the Federal Rules of Civil Procedure as discussed in this order. It is
FURTHER ORDERED that Ms. Myers shall obtain the court-approved Title VII
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Ms. Myers fails to file an Amended Title VII
Complaint that complies with this order within the time allowed, the action will be
dismissed without further notice.
DATED May 4, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

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