Lewis v. Kenneth William Lewis

Filing 8

ORDER DIRECTING PLAINTIFF TO AMEND COMPLAINT by Magistrate Judge Gordon P. Gallagher on 4/11/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00620-GPG
KENNETH-WILLIAM LEWIS,
Plaintiff,
v.
KENNETH WILLIAM LEWIS, et al.,
Defendant(s).

ORDER DIRECTING PLAINTIFF TO AMEND COMPLAINT

Plaintiff, Kenneth-William Lewis, is currently living in Colorado Springs, Colorado.
He initiated this action on March 16, 2016 by filing pro se a “Notice of and Bill of
Demand for Declaratory Relief and Preliminary Injunction by Special Term” (ECF No. 1)
and a “Declaration by Affidavit for Waiver of Court Fees” (ECF No. 3). This case was
initiated the day after his previous case in this court, Lewis v. Lewis, 16-mc-00027-MEH,
was dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to
prosecute or comply with the rules of civil procedure. See Lewis, 16-mc-000-27-MEH
(ECF No. 10).
As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(a), the Court
determined that the submitted documents were deficient. On March 17, 2016, the Court
ordered Plaintiff to cure certain designated deficiencies if he wished to pursue any
claims in this action. (ECF No. 4). Specifically, Plaintiff was ordered to submit an
Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)

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on the court-approved form or else pay the $400.00 filing fee. Additionally, the Court
ordered Mr. Lewis to file his Complaint on the proper court-approved form.
In response to the Court’s March 17, 2016 Order, Plaintiff submitted an IFP
Motion (ECF No. 5) and Amended Complaint (ECF No. 6) on the court-approved forms.
He has been granted leave to proceed in forma pauperis. (ECF No. 7).
The court must construe the amended complaint liberally because Mr. Lewis is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
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Hall v. Bellmon, 935 F.2d 1106, 1110 (10 Cir. 1991). However, the court should not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Mr. Lewis will be ordered
to file a second amended complaint if he wishes to pursue his claims in this action.
The Amended Complaint fails to 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 (10

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Cir. 1989). The

pleading 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),
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aff’d, 964 F.2d 1022 (10 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.” The philosophy of Rule 8(a) is reinforced
by Rule 8(d)(1), which provides that “[e]ach allegation must be simple, concise, and

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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. The Amended Complaint is vague and unintelligible.
As an initial matter, Mr. Lewis has not met his burden of establishing federal
subject matter jurisdiction. “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: diversity jurisdiction under 28 U.S.C. § 1332 and federal question
jurisdiction under 28 U.S.C. § 1331. It is to be presumed that a cause lies outside this
limited jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994) (citations omitted).
Mr. Lewis states that jurisdiction is based on “Article 3, section 2, subdivision 1 of
the U.S.A. Constitution, Court of Equity, Uniform Declaratory Judgements Act, Rule 57
of the F.R.C.P., Judiciary Act 1789, Judicature Act 1873.”
Liberally construing the jurisdictional statement by Mr. Lewis, it indicates he is
asserting claims pursuant to 28 U.S.C. § 1331, which provides that “[t]he district courts
shall have original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” However, it is unclear what federal or constitutional right
the Defendant, which is a simple trust that has the same name and is for the benefit of
the Plaintiff, violated.
Additionally, Mr. Lewis does not allege facts that demonstrate the court has
diversity jurisdiction over any state law claims pursuant to 28 U.S.C. § 1332(a), which

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provides that “[t]he district courts shall have original jurisdiction of all civil actions where
the amount in controversy exceeds the sum or value of $75,000 . . . and is between (1)
citizens of different States.” Therefore, Mr. Lewis must file a second amended
complaint that identifies the statutory authority that allows the court to consider his
claims in this action.
Furthermore, in order to state a cognizable claim in federal court, Mr. Lewis must
identify the specific factual allegations that support each claim and what each
Defendant did that allegedly violated his rights. See Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10

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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”). 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
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(10 Cir. 2005). Thus, “in 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. Neither the court nor the Defendants
are required to guess in order to determine what claims are being asserted and what
specific factual allegations support each asserted claim.
Accordingly, it is

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ORDERED that Plaintiff file a Second Amended complaint that complies with
Rule 8 of the Federal Rules of Civil Procedure and the directives in this Order within
thirty days from the date of this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the proper Court-approved
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov.
Plaintiff must use the Court-approved form to file a Second Amended Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to file a Second Amended Complaint
within the time allowed as directed, the action will be dismissed without further notice.
DATED April 11, 2016, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge

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