Fleshner v. Tiedt et al

Filing 31

ORDER denying as moot 30 Pro Se Motion for Default Entry Against Kenneth Wayne Wiley. The Clerk of Court is directed to dismiss Defendant Wiley from the instant action. Signed by Chief Judge Linda R Reade on 4/6/2016 (copy w/NEF mailed to Plt). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

BILLY DUANE CARD FLESHNER,
Plaintiff,

No. 15-CV-2033-LRR

vs.

ORDER

KENNETH WAYNE WILEY et al.,
Defendants.
____________________
The matter before the court is Plaintiff Billy Duane Card Fleshner’s “Motion for
Certificate of Default to Issue Against Kenneth Wayne Wiley” (“Motion”) (docket no. 30),
which Fleshner filed on April 1, 2016. In the Motion, Fleshner requests that the Clerk of
Court enter default against Defendant Kenneth Wayne Wiley. Motion at 1.
On March 10, 2016, the court entered an Order directing Fleshner to “take
appropriate action with respect to Defendant Wiley . . . includ[ing] . . . filing a brief
showing cause as to why Wiley should not be dismissed from the instant action.” March
10, 2016 Order (docket no. 27) at 2. The court noted that Fleshner had failed to take
timely action against Wiley. Id. at 1. The court further expressed concern that Fleshner’s
abuse of process claim against Wiley was barred as a matter of law because merely making
a report to police does not constitute use of “legal process” as required to support a claim
of abuse of process under Iowa law. Id. at 2 (citing Fuller v. Local Union No. 106 of
United Bhd. of Carpenters & Joiners of Am., 567 N.W.2d 419, 422 (Iowa 1997)).
On April 1, 2016, Fleshner filed a “Response to Court Order to Show Cause”
(“Response”) (docket no. 29). In the Response, Fleshner does not argue that the court’s
analysis of the abuse of process claim and Fuller was incorrect, but instead states that
“[t]his is an extreme case” that warrants an alternate ground for relief, as contemplated by

Fuller. Response at 1-2. Fleshner does not specifically allege any such alternate claim but
instead states that he “must rely on th[e] [c]ourt for assistance” in crafting one. Id. at 2.
In the instant action, the court is guided by the fact that Fleshner is appearing pro
se. A pro se party’s pleadings are to be liberally construed and are held “to less stringent
standards than formal pleadings drafted by lawyers.” Jackson v. Nixon, 747 F.3d 537,
541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
Liberal construction requires that, “if the essence of an allegation is discernible . . . then
the district court should construe the complaint in a way that permits the layperson’s claim
to be considered within the proper legal framework.” Solomon v. Petray, 795 F.3d 777,
787 (8th Cir. 2015) (quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004)).
“Although pro se complaints are to be construed liberally, ‘they still must allege sufficient
facts to support the claims advanced.’” Stringer v. St. James R-1 Sch. Dist., 446 F.3d 799,
802 (8th Cir. 2006) (quoting Stone, 364 F.3d at 914). Additionally, the court is not
permitted to act as counsel to either party. See Burgs v. Sissel, 745 F.2d 526, 528 (8th
Cir. 1984) (“A pro se litigant should receive meaningful notice of what is expected of him,
but the court is not permitted to act as counsel for either party.”). Therefore, the court is
not permitted to construct claims on behalf of the pro se party, even though it has a duty
to liberally construe his pleadings. Cf. id.; Farnsworth v. United States, 106 Fed. Cl. 513,
518 (Fed. Cl. 2012) (noting that a pro se plaintiff is entitled to liberal construction of his
or her pleadings; however, there is no duty on the part of the court to create a claim which
the pro se party has not asserted in his or her pleading). Likewise, the court will not
rewrite deficient pleadings to save them. See Smith v. United States, 561 F.3d 1090, 1096
(10th Cir. 2009) (“Th[e] court, however, will not supply additional factual allegations to
round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”
(quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)); Dawkins v.

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Glover, 308 Fed. App’x 394, 395 (11th Cir. 2009) (“However, [the court] will not act as
de facto counsel for pro se parties or rewrite a deficient pleading.” (formatting omitted)).
Here, Fleshner readily admits that he does not know on what other basis Wiley’s
conduct may be actionable. Response at 2. Instead, he merely states that some alternate
grounds for recovery may exist. Id. However, the court cannot assert Fleshner’s claims
for him. The bounds of liberal construction of pro se pleadings do not permit the court to
draft a plaintiff’s complaint for him. This is especially true when the court placed the pro
se party on notice of the specific nature of the complaint’s deficiency and the plaintiff has
taken insufficient steps to cure it.
Furthermore, Fleshner has not supported his assertion that this is an “extreme” case
with any facts that allow the court to discern the essence of his allegation, or even outline
an alternate cause of action. In short, the court finds that Fleshner has not demonstrated
cause to retain Wiley in the instant action. The abuse of process claim is barred as a
matter of law, and Fleshner has not proposed an alternative cause of action based on
Wiley’s conduct. Accordingly, the court shall dismiss Wiley from the instant action.
Because the court has determined that Wiley should be dismissed, the Motion is rendered
moot.
For the foregoing reasons, it is hereby ORDERED:
(1)

The Clerk of Court is DIRECTED to DISMISS Defendant Wiley from the
instant action; and

(2)

The Motion (docket no. 30) is DENIED AS MOOT.

IT IS SO ORDERED.

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DATED this 6th day of April, 2016.

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