Clervrain v. Scott

Filing 23

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion for reconsideration 18 is granted insofar as the order 16 and judgment 17 are amended to dismiss this matter without prejudice for failure to state a claim on which relief may be granted pu rsuant to 28 U.S.C. § 1915A(b)(1) and for failure to comply with a court order pursuant to Fed. R. Civ. P. 41(b). Signed by U.S. Senior District Judge Sam A. Crow on 07/17/18. Mailed to pro se party Manetirony Clervrain by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MANETIRONY CLERVRAIN,
Plaintiff,
v.

CASE NO. 18-3041-SAC

RICHARD SCOTT,
Defendant.

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s motion for reconsideration (Doc. 18). Mr.
Clervrain asks the Court to reconsider its order of June 28, 2018 (Doc. 16), dismissing the
complaint with prejudice for failure to state a claim on which relief may be granted pursuant to 28
U.S.C. § 1915A(b)(1) and for failure to comply with a court order pursuant to Fed. R. Civ. P.
41(b). Plaintiff primarily argues he should have been given more time to file an acceptable
complaint in this case. He also argues the dismissal should have been made without prejudice to
his refiling.
Having considered Plaintiff’s motion, the Court agrees that the dismissal should have been
made without prejudice. The Tenth Circuit has stated that a court should dismiss a pro se plaintiff’s
claim without prejudice where it is possible that the plaintiff could amend the complaint and state
a claim. See Staats v. Cobb, 455 F. App'x 816, 818 (10th Cir. 2011); see also Reynoldson v.
Shillinger, 907 F.2d 124, 126 (10th Cir. 1990) (applying “permissive standard” to pro se prisoner
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pleadings particularly where “deficiencies in a complaint” may stem from a “pro se litigant's
ignorance of special pleading requirements”). “Particularly in cases in which a party appears pro
se, the court should carefully assess whether it might appropriately impose some sanction other
than dismissal [with prejudice], so that the party does not unknowingly lose its right of access to
the courts because of a technical violation.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 n.3 (10th
Cir. 1992); see also Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492
F.3d 1158, 1163 (10th Cir. 2007).
The deficiencies in Plaintiff’s filings in this case, including the fact that he did not file an
actual complaint, make it exceedingly difficult to determine whether or not it is possible for Mr.
Clervrain to state an actionable claim. However, given Plaintiff’s pro se status, the Court finds it
is appropriate to give Plaintiff the benefit of the doubt. Consequently, the order and judgment
dismissing this case should be revised to order dismissal of the case without prejudice.
The Court cautions Plaintiff that if he chooses to refile his claim, he should only do so after
preparing a complaint on court-approved forms that complies with Federal Rule of Civil Procedure
8. Rule 8 requires a pleading to contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). His “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.” Nasious, 492 F.3d
at 1163. All of Plaintiff’s filings to date have been “too vague and unintelligible to inform the
named defendants of the legal claims being asserted” and failed to describe with any specificity or
coherence what action was taken or who took such action. See Galindo v. Lampela, 513 F. App'x
751, 752–53 (10th Cir. 2013); see also Mann v. Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007).

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IT IS THEREFORE ORDERED Plaintiff’s motion for reconsideration (Doc. 18) is
granted insofar as the order (Doc. 16) and judgment (Doc. 17) are amended to dismiss this matter
without prejudice for failure to state a claim on which relief may be granted pursuant to 28 U.S.C.
§ 1915A(b)(1) and for failure to comply with a court order pursuant to Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
DATED: This 17th day of July, 2018, at Topeka, Kansas.

s/_Sam A. Crow_____
SAM A. CROW
U.S. Senior District Judge

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