-PMW Healy v. Grand America Hotel et al, No. 2:2010cv01029 - Document 9 (D. Utah 2012)

Court Description: 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)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION CAROL E. HEALY, MEMORANDUM DECISION AND ORDER Plaintiff, Case No. 2:10-cv-1029-DB-PMW v. GRAND AMERICA HOTEL, et al., Defendants. 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 1 See docket no. 6. 2 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 2 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 allegations. 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 3 See docket no. 3. 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 4

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