Marner v. Swedish Medical Center

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 6/16/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1270-GPG
ZACHARY MARNER,
Plaintiff,
v.
SWEDISH MEDICAL CENTER;
MARY M. WHITE;
WAKEFIELD AND ASSOCIATES, INC.
JAMES H. TERRELL;
BEACON MEDICAL SERVICES, LLC; and
DENNIS M. BECK,
Defendants.
___________________________________________________________________

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff Zachary Marner resides in Wheat Ridge, Colorado. On June 15, he filed
a complaint against six entities and individuals alleging violations of the Fair Debt
Collection Practices Act (FDCPA) as well as Health fraud under 18 U.S.C. § 3282. The
Court now has granted leave to proceed pursuant to 28 U.S.C. § 1915 (ECF No. 4).
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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. As part of the court’s review
pursuant to D.C.COLO.LCivR 8.1(b), the court has determined that the operative
complaint is deficient. For the reasons stated below, Plaintiff will be directed to file an
amended complaint.
As an initial matter, the Court notes that Plaintiff has cited the wrong statute as
the Health Care Fraud Statute. The correct citation is 18 U.S.C. § 1347. More

importantly however, this is a criminal statute. Plaintiff has no legal basis to pursue
criminal charges through this civil action because private parties may not enforce
criminal statutes. See, e.g., Florance v. Buchmeyer, 500 F.Supp.2d 618, 626 (N.D.
Tex. 2007). In addition, there is no constitutional right to have someone criminally
prosecuted. See Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Private citizens
simply lack standing to use a civil forum to criminally prosecute anyone. See Linda R.S.
v. Richard D., 410 U.S. 614, 619 (1973). Plaintiff may not seek redress for alleged
unlawful conduct by pursuing criminal charges through this civil rights action.
Finally, the operative 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 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). 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.
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Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed
all that is permissible, if the complaint concisely states facts upon which relief can be
granted upon any legally sustainable basis.” Id.
The Court has reviewed the Complaint and finds that Plaintiff fails to provide a
short and plain statement of his claims in compliance with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure. A decision to dismiss a complaint
pursuant to Rule 8 is within the trial court’s sound discretion. See Atkins v. Northwest
Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of Richmond, 417
F.2d 426, 431 (9th Cir. 1969). The Court, however, will give Plaintiff an opportunity to
cure the deficiencies in the Complaint by submitting an Amended Complaint that meets
the requirements of Fed. R. Civ. P. 8.
To state a claim in federal court Plaintiff must explain (1) what a defendant did to
him; (2) when the defendant did it; (3) how the defendant’s action harmed him; and (4)
what specific legal right the defendant violated AS TO EACH AND EVERY CLAIM.
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"). Accordingly,
it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an amended complaint that complies with this Order. It is
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FURTHER ORDERED that Plaintiff shall obtain the Court-approved Complaint
form, along with the applicable instructions, at www.cod.uscourts.gov, to be used in
filing the amended complaint. It is
FURTHER ORDERED that if Plaintiff fails to comply with this Order within the
time allowed the Court will dismiss the action without further notice.
DATED June 16, 2015, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge

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