Quaery v. Collegiate Housing Services

Filing 5

ORDER Directing Plaintiff to File Amended Complaint within 30 days. Signed by Magistrate Judge Gordon P. Gallagher on 01/04/16. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02818-GPG
RUSELBUSISINE QUAERY,
Plaintiff,
v.
COLLEGIATE HOUSING SERVICES
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

This action was initiated by Ruselbusisine Quaery, who submitted a Complaint and
an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)
on December 31, 2015. The Application has been granted.
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 act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed
below, Plaintiff will be directed to file an Amended Complaint that complies with the
Court=s directives.
In the Complaint, Applicant appears to assert that Defendant Collegiate Housing
Services has violated his rights under the Americans with Disabilities Act (ADA) because
a representative of the company has placed him in a residence in Arvada, Colorado, that,
due to his reliance on public transportation, is not conducive to his being able to work in
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Arvada and to attend a culinary arts school in Boulder. Plaintiff contends that he suffers
from a traumatic brain injury (TBI); and due to the traveling back and forth from school to
his job, he is only able to sleep 3-4 hours per day 4-5 days per week. Because of his TBI
Plaintiff asserts that chronic sleep deprivation is magnified.
Plaintiff further asserts that he has been promised to be moved closer to the school
he is attending in Boulder, Colorado, but, since July 2015 until the present, Defendant=s
representative has not accommodated Plaintiff=s request and as a result he has had to
quit his job, is not able to pay his rent, and now is subject to a state eviction proceeding.
Plaintiff further complains that his Social Security disability benefits have been
unlawfully reduced and will not be reinstated until January 2016. Plaintiff requests that
this Court order the Health and Human Services, either the Jefferson County Office or the
Regional Office, to notify Social Security of his updated AQMB@ status here in Colorado.
He also requests that the Court issue an injunction against the eviction Defendant is
seeking against him in state court.
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).
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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
rules. Prolix pleadings violate the requirements of Rule 8.
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 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 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), 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.
Plaintiff fails to provide a short and plain statement of his claims showing that he is
entitled to relief. The claims are repetitive, not stated in a clear and concise format, and
do not assert proper jurisdiction for the basis of the claims.
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 and complies with
the following directives.
First, Title II of the ADA provides that A[n]o qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by
such entity.@ 42 U.S.C. ' 12132. The Act defines a Apublic entity@ as any State or local
government, department, agency, special purpose district, or other instrumentality of a
State or States or local government; and the National Railroad Passenger Corporation,
and any commuter authority. 42 U.S.C. ' 12131(1); see also Robertson v. Las Animas
Cnty. Sheriff's Dep=t, 500 F.3d 1185, 1193 (10th Cir. 2007).
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To state a claim under Title

II, the plaintiff must allege that A(1) he is a qualified individual with a disability, (2) who was
excluded from participation in or denied the benefits of a public entity=s services,
programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by
reason of a disability.@ Robertson, 500 F.3d at 1193. Plaintiff does not assert that he is
a qualified individual with a disability under ADA or that Defendant is a public entity as
defined under the Act and as is applicable if filing a claim pursuant to Title II.
Title III of the ADA provides that A[n]o individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation by any
person who owns, leases (or leases to), or operates a place of public accommodation.@
42 U.S.C. ' 12182(a). Title III applies to discrimination in public accommodations by
private entities. The only remedy for violation of Title III of the ADA is injunctive. See 42
U.S.C. ' 12188(a).
Furthermore, the eviction claim alone is subject to dismissal based on the Younger
abstention doctrine. See Younger v. Harris, 401 U.S. 37 (1971) (federal court should
abstain from exercising jurisdiction over or interfering with ongoing state litigation). The
Court takes note that Plaintiff has an FED (Forcible Entry and Detainer) hearing in Case
No. 2015C44734, scheduled in Jefferson County Court for January 7, 2016, at 9:30 a.m.,
which pertains to his eviction. See https://www.courts.state.co.us/Courts/County.
Finally, Plaintiff=s request that the Court direct Health and Human Services to notify
Social Security of his updated AQMB@ status here in Colorado is without legal basis.
Plaintiff does not assert the statutory authority for this Court to address this claim.

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Plaintiff will be directed to file an amended complaint in accordance with the
directives outlined above. Plaintiff further is directed that in order to state a claim in
federal court, he must explain what each defendant did to him, when the defendant did it,
how the defendant=s action harmed him, and what specific legal right he believes the
defendant violated. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007). Accordingly, it is
ORDERED that Plaintiff file, within thirty days from the date of this Order, an
amended complaint that asserts proper claims and complies with Rule 8 of the Federal
Rules of Civil Procedure. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved complaint
form, along with the applicable instructions, at www.cod.uscourts.gov for use in filing the
amended complaint. It is
FURTHER ORDERED that if Plaintiff fails within the time allowed to file an
amended complaint that complies with this order the Complaint and the action will be
dismissed without further notice.
DATED January 4, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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