Fountain v. USA

Filing 7

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/8/16. 6 Motion is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00243-GPG
RONALD JOEL FOUNTAIN,
Plaintiff,
v.
UNITED STATES,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Ronald Joel Fountain, a resident of Philadelphia, Pennsylvania, initiated
this action by filing pro se a Complaint (ECF No. 1). On February 2, 2015, Magistrate
Judge Gordon P. Gallagher ordered Mr. Fountain to file an amended complaint that
clarifies the claims he is asserting. Magistrate Judge Gallagher determined the
Complaint did not comply with the pleading requirements of Rule 8 of the Federal Rules of
Civil Procedure because Mr. Fountain failed to provide a short and plain statement of his
claims showing he is entitled to relief. Magistrate Judge Gallagher warned Mr. Fountain
that, if he failed to file an amended complaint that complies with the pleading
requirements of Rule 8 within thirty days, the action would be dismissed without further
notice.
Mr. Fountain has not filed an amended complaint as directed. Instead, he has
filed on February 11, 2016, a motion (ECF No. 6) requesting appointment of counsel,
alternative dispute resolution, and summary judgment.

The Court must construe the papers filed by Mr. Fountain liberally because he 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
discussed below, the action will be dismissed.
The twin purposes of a pleading 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); see also Nasious v. Two Unknown B.I.C.E. Agents,
492 F.3d 1158, 1163 (10th Cir. 2007) (stating that 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 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
“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.” Furthermore, 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. As a result, prolix, vague, or

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unintelligible pleadings violate the requirements of Rule 8.
As Magistrate Judge Gallagher noted, Mr. Fountain’s Complaint consists of a list of
federal statutes without any supporting factual allegations that demonstrate his rights
have been violated or that he is entitled to any relief. The 120 pages of exhibits attached
to the Complaint, which include copies of docket sheets, filings from other actions, letters,
printouts of website pages, certified mail receipts, and other material, also do not provide
a short and plain statement of whatever claims Mr. Fountain intends to assert in this
action. The 259 pages of similar material attached to the motion filed on February 11
also do not provide a short and plain statement of any claims for relief. As a result, Mr.
Fountain fails to provide Defendant fair notice of whatever claims he may be asserting.
The general rule that pro se pleadings must be construed liberally 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 (10th Cir. 2005); see also United States v. Dunkel, 927 F.2d 955,
956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”);
Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory
allegations that his rights have been violated does not entitle a pro se pleader to a day in
court regardless of how liberally the pleadings are construed), aff’d, 961 F.2d 916 (10th
Cir. 1992). “[I]n analyzing the sufficiency of the plaintiff’s complaint, the court need
accept as true only the plaintiff’s well-pleaded factual contentions, not his conclusory
allegations.” Hall, 935 F.2d at 1110.
The action will be dismissed for failure to file an amended pleading that complies

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with Rule 8 as directed. In addition, because Mr. Fountain fails to provide a clear and
concise statement of the claims he is asserting, the requests in the motion filed on
February 11 must be denied. The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this order would not be taken in good faith and therefore in forma
pauperis status will be denied for the purpose of appeal. See Coppedge v. United
States, 369 U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full
$505 appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P.
24. Accordingly, it is
ORDERED that the Complaint (ECF No. 1) and the action are dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr.
Fountain has failed to file a pleading that complies with the pleading requirements of the
Federal Rules of Civil Procedure. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied
without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on
appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that the pending motion (ECF No. 6) is denied.
DATED at Denver, Colorado, this

8th

day of

March

, 2016.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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