DuCharme v. Commissioner of Social Security
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 11/11/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02382-GPG
COMMISSIONER OF SOCIAL SECURITY,
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff Angela DuCharme 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 Amust 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
A[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
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 when and the reason her
administrative claim for social security disability 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
Athe 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 the 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 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 405(g) of the Social Security Act, a civil action must be commenced
by a plaintiff Awithin sixty days after the mailing to him 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 November 11, 2015, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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