Smith-Kennedy v. Ramada Inn Colfax Denver et al

Filing 4

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 11/30/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02584-GPG
TRISTAN SMITH-KENNEDY,
Plaintiff,
v.
RAMADA INN, ET AL.,
Defendants.
____________________________________________________________________
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Tristan Smith-Kennedy resides in Las Vegas, Nevada. On November
24, he filed a complaint (ECF No. 1) against various entities and individuals. The Court
has granted leave to proceed pursuant to 28 U.S.C. § 1915.
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.
“Federal courts are courts of limited jurisdiction; they must have a statutory basis for
their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). There are
two statutory bases for federal subject matter jurisdiction: federal question jurisdiction
under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332.
The federal courts have an independent obligation to determine whether subject

matter jurisdiction exists. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
Because federal courts are courts of limited jurisdiction, there is a presumption against its
existence. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A federal
district court may therefore raise the objection that it lacks jurisdiction on its own initiative
at any stage of the litigation. See Fed. R. Civ. P. 12(h)(3) (“Whenever it appears by
suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter,
the court shall dismiss the action.”); see also McAlester v. United Air Lines, Inc., 851 F.2d
1249, 1252 (10th Cir. 1988) (“The issue of subject matter jurisdiction may be raised sua
sponte by the court at any time during the course of the proceedings.”).
In the Complaint, Plaintiff does not allege a statutory basis to invoke the Court’s
federal question jurisdiction pursuant to 28 U.S.C. § 1331. Moreover, the applicable
federal law does not support his claim.
Moreover, Plaintiff fails to plead facts to support jurisdiction pursuant to 28 U.S.C. §
1332. A plaintiff properly invokes § 1332 jurisdiction when he or she presents a claim
between parties of diverse citizenship that exceeds the required jurisdictional amount,
currently $75,000. See 28 U.S.C. § 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S.
500, 513 (2006). Both the requisite amount in controversy and the existence of diversity
must be affirmatively established by a preponderance of the evidence on the face of either
the complaint or the removal notice for purposes of diversity jurisdiction. Martin v. Franklin
Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001). Plaintiff’s claim does not appear to
request damages of $75,000.00. As a result, it appears “legally certain,” that the facts
Plaintiffs alleged could not support a demand for more than $75,000 in damages, which is
required to meet the statutory threshold for diversity jurisdiction. Thus, the allegations of
the Complaint are insufficient to invoke this Court’s diversity jurisdiction.

More importantly, the operative complaint is deficient because it does not comply
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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.
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. Plaintiff lists a number of federal
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statutes as the jurisdiction for his claims. Due to the vagueness of the claims, however,
Plaintiff fails to assert any factual basis that falls within the purview of these statutes.
Plaintiff’s claims, therefore, are nonsensical and do not state the proper statutory
authority for his claims. Moreover, he fails to adequately set forth the proper parties and
addresses as required.
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.
Plaintiff is required to assert personal participation by properly named defendants
in the alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir. 1976). To establish personal participation, Plaintiff must show in the Cause of
Action section of the complaint form how each named individual caused the deprivation
of a federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be
an affirmative link between the alleged constitutional violation and each
defendant’s participation, control or direction, or failure to supervise. See Butler v. City
of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Furthermore, 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.
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;
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and, what specific legal right the plaintiff believes the defendant violated").
A defendant also may not be held liable for the unconstitutional conduct of his or
her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order to succeed in a § 1983 suit, (the proper jurisdiction to address
constitutional violation claims), against a government official for conduct that arises out
of his or her supervisory responsibilities, a plaintiff must allege and demonstrate that:
“(1) the defendant promulgated, created, implemented or possessed responsibility for
the continued operation of a policy that (2) caused the complained of constitutional
harm, and (3) acted with the state of mind required to establish the alleged
constitutional deprivation.” Id. at 1199.
Section 1983 "provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526
U.S. 286, 290 (1999). Therefore, Plaintiff should name as Defendants only those
persons he contends actually violated his federal rights while acting under color of state
law. He may not include claims in his amended complaint against a county, state or
municipal entity unless he alleges he suffered an injury caused by a municipal policy or
custom. See Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 769-71
(10th Cir. 2013) (discussing Supreme Court standards for municipal liability); Dodds v.

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Richardson, 614 F.3d 1185, 1202 (10th Cir. 2010).
Moreover, judges are absolutely immune from liability in civil rights suits when
they act in their judicial capacity, unless they act in the clear absence of all jurisdiction.
See Morales v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Scarman, 435 U.S. 349,
356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994). In addition,
prosecutors are entitled to absolute immunity in § 1983 suits for activities within the
scope of prosecutorial duties. See Ambler v. Pachtman, 424 U.S. 409, 420-24 (1976);
The Tenth Circuit has found that state prosecutors’ “decisions to prosecute, their
investigatory or evidence–gathering actions, their evaluation of evidence, their
determination of whether probable cause exists, and their determination of what
information to show the court” are activities intimately associated with the judicial
process. See Nielander v. Bd. of County Comm’rs., 582 F.3d 1155, 1164 (10th Cir.
2009).
Moreover, private attorneys or public defenders are not state actors under § 1983
and are not proper parties to this action. Polk County v. Dodson, 454 U.S. 312, 318 and
325 (1981).
In addition, Plaintiff cannot assert liability for damages against the State of
Colorado. The Eleventh Amendment bars suits against the states absent an express
and unambiguous waiver or abrogation by Congress. See, e.g., Edelman v. Jordan,
415 U.S. 651, 662–63 (1974). State sovereign immunity is more than immunity from
liability—it actually deprives federal courts of subject-matter jurisdiction. Id. at 678. The
Eleventh Amendment does permit suits for prospective injunctive relief against state
officials for violations of federal law, but not for retrospective relief such as money
damages. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). Sovereign
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immunity is not confined to suits in which the State is named as defendant, Edelman,
415 U.S. at 663; state agencies are entitled to Eleventh Amendment immunity if they
are “arms of the state,” Ambus v. Granite Bd. of Educ., 995 F.2d 992, 994 (10th Cir.
1993) (en banc) (internal quotation marks and citation omitted). Also, probation and
parole officers are entitled to absolute immunity from suit in the performance of his or
her judicially-related functions. See Tripati v. INS, 784 F.2d 345, 348 (10th Cir.1986),
cert. denied, 484 U.S. 1028 (1988).
Finally, under C.R.S. § 13–80–102(1)(h), a two-year statute of limitations applies
to "[a]ll actions against any public or governmental entity or any employee of a public or
governmental entity, except as otherwise provided in ... section 13–80–103."
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
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 November 30, 2015, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge

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