Moore v. United States Postal Service
Filing
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MEMORANDUM DECISION AND ORDER: Plaintiff, within twentydays from the date of this order, shall file a second amended complaint that includes the items listed in this order. The court admonishes Plaintiff that his failure to comply with Rule 8 pleading requirements for a third time will result in a recommendation to Judge Parrish that the case be dismissed. Signed by Magistrate Judge Dustin B. Pead on 7/23/18. (dla)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
DONALD K. MOORE,
MEMORANDUM DECISION AND
ORDER
Plaintiff,
Case No. 1:17-cv-00182-JNP-DBP
v.
UNITED STATES POSTAL SERVICE,
District Judge Jill N. Parrish
Defendant.
Magistrate Judge Dustin B. Pead
INTRODUCTION
On December 1, 2017, the court granted Donald K. Moore’s (“Plaintiff”) application for
leave to proceed in forma pauperis and waived the prepayment of filing fees pursuant to 28
U.S.C. § 1915 (“IFP Statute”). (ECF No. 2.) That same day, Plaintiff filed his initial complaint
against the United States Postal Service (“USPS”). (ECF No. 3.) Plaintiff’s initial complaint
was comprised of a few paragraphs and an attached letter from a coworker. Plaintiff asserted that
on September 6, 2017, he was on his route delivering mail for the USPS when a manager who
was observing him that day questioned his need to stop for a “sip of water.” (ECF No. 3 at 1.)
On December 12, 2017, Plaintiff filed a Motion to Appoint Counsel (“Motion”). (ECF
No. 5.) Shortly after the Motion was filed, District Judge Jill N. Parrish referred this case to
Magistrate Judge Dustin B. Pead pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 6.) In
reviewing the Motion, Magistrate Judge Pead undertook screening Plaintiff’s action as required
under the IFP Statute. See, e.g., Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th Cir.
2005).
The court issued a Memorandum Decision and Order instructing Plaintiff to file an
amended complaint that contained enough well-pleaded factual allegations to support his alleged
claims for relief. (ECF No. 7 at 4.) In addition, Magistrate Judge Pead denied Plaintiff’s
Motion. Plaintiff filed an amended complaint (“Amended Complaint”) on May 29, 2018. (ECF
No. 8.) Because Plaintiff is proceeding pro se in this case, the court will construe his pleadings
liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).
ANALYSIS
In order to state a proper claim, federal rule 8 requires that a pleading contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2); see also DUCivR 3-5 (the complaint “should state the basis for the court’s jurisdiction,
the basis for the plaintiff’s claim or cause for action, and the demand for relief.”). The
requirements of federal rule 8(a) are further reinforced under rule 8(d)(1), which provides that
“[e]ach allegation must be simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1).
As explained by the Tenth Circuit, compliance with rule 8 requires that a pleading
“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 v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). These
requirements are designed to provide the opposing party with fair notice of the claims against it
and allow the court to conclude that, if proven, the allegations show that plaintiff is entitled to
relief. See Monument Builders of Greater Kansas City, Inc. v. American Cemetery Assn. of
Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989) citing Perington Wholesale Inc. v. Burger King
Corp., 631 F.2d 1369, 1371 (10th Cir. 1979); see also Nasious, 492 F.3d 1163 (10th Cir. 2007) (a
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plain statement under rule 8 provides a Defendant with “sufficient notice to begin preparing its
defense and the court sufficient clarity to adjudicate the merits.”)
Plaintiff’s Amended Complaint is comprised of a few paragraphs and asserts that he has
heat intolerance, that on September 6, 2017 the USPS denied him water on his route, and that
this action violates “CFR 1926.51(a)(1).” 1 (ECF No. 8 at 1.) Even under the most liberal
reviews of the Amended Complaint, Plaintiff, for a second time, has failed to state the basis for
the court’s jurisdiction, clearly identify defendants who allegedly violated Plaintiff’s rights, and
how the alleged conduct harmed the Plaintiff.
Adhering to the requirements of Rule 8 while liberally construing the claims in the
Amended Complaint, the court finds Plaintiff’s Amended Complaint fails to satisfy even the
minimal pleading requirements. While Fed.R.Civ.P. 8(a) only requires that a complaint include
“a short and plain statement of the claim showing that the pleader is entitled to relief”, a
defendant faced with Plaintiff’s pleading would not have fair notice of the grounds on which
Plaintiff’s claims are based, how Plaintiff has been harmed, and the relief he is possibly entitled
to receive. Given Plaintiff’s pro se status, however, the court is not inclined at this juncture to
foreclose Plaintiff’s opportunity to properly plead his causes of action.
1
In the Amended Complaint, Plaintiff is claiming USPS has violated section 1926.51 of the
Occupational Safety and Health Act (“OSHA”). Section 1926 of OSHA, however, establishes
safety and health standards for the construction industry. See United States Department of Labor,
Occupational Safety and Health Administration at
https://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=STANDARDS&p_toc_le
vel=1&p_keyvalue=Construction; see also OSHA Safety Standards—How They Apply—An
Update, 2 Ann.2004 ATLA-CLE 1725 (2004).
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ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that Plaintiff, within twenty
days from the date of this order, shall file a second amended complaint that includes the
following:
1. A short, plain statement of each cause of action including reference to the specific statute
or legal right that was violated;
2. A short, succinct and specific factual allegations in support of each claim that are set forth
in numbered paragraph form;
3. Identification of what each defendant did, and when;
4. Identification of how a defendant’s conduct harmed the Plaintiff; and
5. Identification of any connection between any relevant exhibits and the specific claim
alleged.
The court admonishes Plaintiff that his failure to comply with Rule 8 pleading requirements
for a third time will result in a recommendation to Judge Parris that the case be dismissed.
DATED this 23rd day of July, 2018.
BY THE COURT:
DUSTIN B. PEAD
United States Magistrate Judge
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