Smith v. Mauser
Filing
13
ORDER of Dismissal. ORDERED that the complaint, the amended complaint, and the action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 3/18/13. (sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00008-BNB
MATTHEW A. SMITH,
Plaintiff,
v.
MIKAYLA J. MAUSER,
Defendant.
ORDER OF DISMISSAL
Plaintiff, Matthew A. Smith, initiated this action by filing pro se a complaint (ECF
No. 1). On February 7, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Smith to
file an amended complaint that complies with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure. On March 1, 2013, Mr. Smith filed an amended
complaint (ECF No. 12).
The Court must construe the amended complaint liberally because Mr. Smith 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). Therefore, the amended
complaint is held to standards less stringent than those governing a formal pleading
drafted by lawyers. See id. 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 Court has reviewed the amended complaint and finds that the amended
complaint also fails to comply with the pleading requirements of Rule 8. As Mr. Smith
was advised, 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 Fed. R. Civ. P. 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 unintelligible pleadings violate the requirements of Rule 8.
Construing the amended complaint liberally, it appears that Defendant and Mr.
Smith were domestic partners and that Defendant sought and obtained a restraining
order against Mr. Smith in September 2011 based on allegations of domestic abuse,
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stalking, physical assault, and threats. Mr. Smith also refers to multiple state court
cases in the amended complaint in which he and Defendant apparently have litigated
issues regarding division of personal property and other matters. As relief in this action
Mr. Smith
would like the District Court to reverse, lessen, and or make
mutual the superior court’s decision in placement of a
permanent protection order against . . . Mr. Smith. Mr. Smith
would also like as part a dissolution proceeding based on the
relative economic circumstances of the parties in order to
equalize their status and to ensure that neither party suffers
further undue economic hardship as a result of the
proceedings. Lastly, Mr. Smith would like the court to make
possible time with pet Ruffles amongst both . . . Ms. Mauser
and Mr. Smith.
(ECF No. 12 at 7-8.)
As an initial matter, Mr. Smith is advised that he may not seek review in this
Court of any adverse judgments entered in state court cases because the RookerFeldman doctrine provides that federal courts, other than the United States Supreme
Court, lack jurisdiction to adjudicate claims seeking review of state court judgments.
See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983);
Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923). In essence, the RookerFeldman doctrine precludes “cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see also Johnson v.
De Grandy, 512 U.S. 997, 1005-06 (1994) (stating that the losing party in a state court
proceeding is generally “barred from seeking what in substance would be appellate
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review of the state court judgment in a United States district court, based on the losing
party’s claim that the state judgment itself violates the loser’s federal rights.”). Review
of the state court judgment must proceed to the state’s highest court and then to the
United States Supreme Court pursuant to 28 U.S.C. § 1257. See Facio v. Jones, 929
F.2d 541, 543 (10th Cir. 1991). However, because it is not clear what specific claims Mr.
Smith is asserting or whether final judgments have been entered in the state court
cases, the Court will not dismiss this action pursuant to the Rooker-Feldman doctrine.
Instead, the Court will dismiss the action for failure to comply with Rule 8.
Mr. Smith invokes the Court’s federal question jurisdiction pursuant to 28 U.S.C.
§ 1331. However, the Court agrees with Magistrate Judge Boland that Mr. Smith fails to
provide a short and plain statement of any federal claims showing that he is entitled to
relief. Pursuant to § 1331, “[t]he district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” “For a
case to arise under federal law within the meaning of § 1331, the plaintiff’s well-pleaded
complaint must establish one of two things: either that federal law creates the cause of
action or that the plaintiff’s right to relief necessarily depends on resolution of a
substantial question of federal law.” Firstenberg v. City of Santa Fe, 696 F.3d 1018,
1023 (10th Cir. 2012) (quotation marks omitted).
Mr. Smith does refer in the amended complaint to 42 U.S.C. § 1983, but he fails
to allege facts that might state a cognizable claim under § 1983. “Section 1983
provides a federal cause of action against any person who, acting under color of state
law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999).
“The purpose of § 1983 is to deter state actors from using the badge of their authority to
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deprive individuals of their federally guaranteed rights and to provide relief to victims if
such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992). “[T]he under-color-ofstate-law element of § 1983 excludes from its reach merely private conduct, no matter
how discriminatory or wrongful.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999) (internal quotation marks omitted). Therefore, the only proper defendants in a
§ 1983 action are those who “‘represent [the State] in some capacity, whether they act
in accordance with their authority or misuse it.’” NCAA v. Tarkanian, 488 U.S. 179, 191
(1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)).
Even construed liberally, there is no allegation or indication in the amended
complaint that Defendant was acting under color of state law. Furthermore, even if
Defendant was a state actor subject to suit under § 1983, Mr. Smith fails to provide a
short and plain statement of any facts to support a federal claim under § 1983. Despite
specific instructions from Magistrate Judge Boland, Mr. Smith does not explain what
Defendant did to him, when Defendant did it, how Defendant’s action harmed him, and
what specific legal right he believes Defendant violated. See Nasious, 492 F.3d at
1163. Therefore, the action will be dismissed for failure to file an amended pleading
that complies with Rule 8 as directed.
Furthermore, the Court 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 $455
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.
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P. 24. Accordingly, it is
ORDERED that the complaint, the amended complaint, and the action are
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure because Plaintiff 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.
DATED at Denver, Colorado, this 18th day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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