Healy v. Grand America Hotel et al - Document 9
MEMORANDUM DECISION AND ORDER: Plaintiff is hereby provided with an opportunity to amend her current complaint. Plaintiff shall file an amended complaint that complies with the requirements on or before February 17, 2012. Failure to do so will result in a recommendation to Judge Benson that this case be dismissed. Signed by Magistrate Judge Paul M. Warner on 1/20/12. (jlw)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CAROL E. HEALY,
Case No. 2:10-cv-1029-DB-PMW
GRAND AMERICA HOTEL, et al.,
District Judge Dee Benson
Magistrate Judge Paul M. Warner
District Judge Dee Benson referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(B).1 At the outset, the court notes that Carol E. Healy
(“Plaintiff”) has been permitted to proceed in forma pauperis (“IFP”) in this case under 28 U.S.C.
§ 1915 (“IFP statute”).2 Accordingly, the court will address the sufficiency of Plaintiff’s
complaint under the authority of the IFP statute. See 28 U.S.C. § 1915(e)(2)(B)(ii). The court
also recognizes that Plaintiff is proceeding pro se in this case. Consequently, the court will
construe her pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187
(10th Cir. 2003).
Whenever the court authorizes a party to proceed without the prepayment of fees under
the IFP statute, the court is required to “dismiss the case at any time if the court determines that
See docket no. 6.
See docket nos. 1, 2.
. . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C.
§ 1915(e)(2)(B)(ii). In determining whether a complaint fails to state a claim for relief under the
IFP statute, the court employs the same standard used for analyzing motions to dismiss for failure
to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Kay v. Bemis,
500 F.3d 1214, 1217-18 (10th Cir. 2007). Under that standard, the court “look[s] for plausibility
in th[e] complaint.” Id. at 1218 (quotations and citations omitted) (second alteration in original).
More specifically, the court “look[s] to the specific allegations in the complaint to determine
whether they plausibly support a legal claim for relief. Rather than adjudging whether a claim is
‘improbable,’ ‘[f]actual allegations [in a complaint] must be enough to raise a right to relief
above the speculative level.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007)) (other quotations and citation omitted) (second and third alterations in original).
In undertaking that analysis, the court is mindful that Plaintiff is proceeding pro se and
that “[a] pro se litigant’s pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Bellmon, 935 F.2d at 1110; see also, e.g.,
Ledbetter, 318 F.3d at 1187. At the same time, however, it is not “the proper function of the
district court to assume the role of advocate for the pro se litigant,” Bellmon, 935 F.2d at 1110,
and the court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se]
plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989) (per curiam). Further,
[t]he broad reading of [a pro se] plaintiff’s complaint does not
relieve the plaintiff of the burden of alleging sufficient facts on
which a recognized legal claim could be based. . . . [C]onclusory
allegations without supporting factual averments are insufficient to
state a claim on which relief can be based. This is so because a pro
se plaintiff requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such facts if
the court is to determine whether he makes out a claim on which
relief can be granted. Moreover, 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
Bellmon, 935 F.2d at 1110 (citations omitted).
Even when the court liberally construes Plaintiff’s complaint, the court concludes that
Plaintiff has failed to provide any well-pleaded factual allegations to support her alleged cause of
action. Indeed, the preprinted civil rights complaint Plaintiff has filed contains only a few
conclusory statements and allegations. Plaintiff has asserted only one cause of action for having
her employment terminated based on her gender and included only one sentence in her statement
of supporting facts.3
For these reasons, the court concludes that Plaintiff’s current complaint fails to state a
claim on which relief can be granted. At the same time, however, the court recognizes that
“[d]ismissal of a pro se complaint for failure to state a claim is proper only where it is obvious
that the plaintiff cannot prevail on the facts [she] has alleged and it would be futile to give [her]
an opportunity to amend.” Kay, 500 F.3d at 1217 (quotations and citation omitted).
Accordingly, Plaintiff is hereby provided with an opportunity to amend her current complaint.
Plaintiff shall file an amended complaint that complies with the requirements set forth in the
See docket no. 3.
above-referenced authorities on or before February 17, 2012. Failure to do so will result in a
recommendation to Judge Benson that this case be dismissed.
IT IS SO ORDERED.
DATED this 20th day of January, 2012.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge