Opinion
Civil Action No. 3:01-CV-0717-N
February 18, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Mark Lippman's Motion to Dismiss, filed May 15, 2002, and Federal Defendants "Motion to Dismiss", filed July 22, 2002, which were referred to the undersigned United States Magistrate Judge for findings and recommendation pursuant to 28 U.S.C. § 636 (b) and the District Court's Order of Reference, filed October 3, 2002. The Court recommends that Moses Ramirez and Carmen Ramirez be allowed an opportunity to file a First Amended Complaint, and that Mark Lippman's Motion to Dismiss and Federal Defendants' Motion to Dismiss both be DENIED without prejudice to reassert the motions if an amended complaint is filed.
I. Background
Plaintiff, an inmate at the Federal Correctional Institution ("FCI") in Seagoville, Texas, and his wife ("Plaintiffs") filed this pro se civil rights lawsuit pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), 28 U.S.C. § 1331, 1651, and 18 U.S.C. § 1961, on April 12, 2001. (Compl. at 1.) Plaintiffs seek damages against the United States of America; FBI Special Agent James Kendall; FCI Warden John Tombone; FCI Special Investigations Supervisor Ronald Secrease; FCI Captain B.A. Corbett; and court-appointed attorney Mark Lippman. (Compl. at 3-4; Defs. Br. at 9.)
Although the Bureau of Prisons and the Federal Bureau of Investigations are named in the caption, it appears from Plaintiffs' listing of defendants that Plaintiffs intended to clarify each defendant's employer and that neither agency is a defendant. (Compl. at 1, 3-4.)
Under the section entitled "Claims," Plaintiffs allege the following civil rights violations:
due process, discrimination, cruel and unusual punishment, child abandonment, trespassing, surreptitious invasions, unauthorizes [sic] interception of private communications, unlawful actions, mental suffering, embarrassment, humiliation, conspiracy to deprive of my liberty, false imprisonment, false arrest, unlawful search and seizure and all these claims have been violated under my U.S. CONSTITUTION under my AMENDMENT, 4, 5, 6, 8, 14.
(Compl. at 5.) In those places of the Complaint where Plaintiffs are requested to explain how each defendant was acting under color of law, Plaintiffs merely claim that each defendant engaged in a "conspiracy to deprive us of our liberty." (Compl. at 3-4.) Plaintiffs have failed to allege any facts, jurisdictional or otherwise, to support their case.
On May 15, 2002, Mark Lippman moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(4) and (5) for insufficient process and insufficient service of process. On July 22, 2002, the United States of America, FBI Special Agent Kendall, and Federal Correctional Officers Tombone, Secrease, and Corbett jointly moved to dismiss the Complaint under Federal Rules of Civil Procedure 12(b)(1), (5), and (6). Plaintiffs failed to respond to either motion.
II. Analysis
Federal Rule of Civil Procedure 8(a)(1) requires that all pleadings "shall contain . . . a short and plain statement of the grounds upon which the court's jurisdiction depends. . . ." Because Plaintiffs are proceeding pro se, their pleadings shall be "held to less stringent standards than formal pleadings drafted by lawyers." Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981) (citing Haines v. Kerner, 404 U.S. 519 (1972)). Plaintiffs attempt to invoke jurisdiction by merely citing Bivens and federal statutes (Compl. at 1, 4), without alleging how those authorities apply to their claims. However, it is clear that even with a liberal interpretation, the jurisdictional allegations are not supported by any facts and are therefore defective. FED. R. CIV. P. 8(a)(1).
When faced with defective allegations, the Court "should freely give a complainant, especially a pro se complainant, leave to amend[.]" McClellon v. Lone Star Gas Co., 66 F.3d 98, 103 (5th Cir. 1995) (citing Rule 15(a) as grounds for allowing amendment to cure defective allegations in a pleading). In Miller, the district court adopted the recommendation of the magistrate judge that a pro se complaint be dismissed, even though the plaintiffs had requested leave to amend their complaint before the district court adopted the recommendation. The Fifth Circuit Court of Appeals found that, because the amendment would not have unduly prejudiced the defendants and was not sought in bad faith, the district court abused its discretion by not allowing it. Miller, 636 F.2d at 988, 990.
In this case, Plaintiffs have not yet requested an opportunity to amend. Nevertheless, the Court has inherent power to order such an amendment. See McClellon, 66 F.3d at 100 (quoting the magistrate judge's sua sponte order requiring an amended complaint); Foster v. Henson, 2001 WL 167959, *1 (N.D. Tex. Jan. 19, 2001) (ordering, sua sponte, the plaintiff to file "a short and plain statement of the grounds upon which this court's jurisdiction depends[,]" before the Court ruled on a Rule 12(b)(1) motion). The appropriate remedy when granting a motion to dismiss based on deficient pleadings is to grant the complainant time to amend the complaint; if the complainant fails to do so, then the district court may strike the pleadings or dismiss the case. McClellon, 66 F.3d at 103. Thus, it is in the interest of orderly procedure to allow Plaintiffs an opportunity to amend their Complaint before weighing the merits of the pending motions to dismiss. E.g. Neal v. State of Ga., 469 F.2d 446, 448-50 (5th Cir. 1972) (reasoning that the trial court should have allowed amendment under 28 U.S.C. § 1653, and vacating the finding that the pro se plaintiffs complaint was "frivolous").
III. Recommendation
For the foregoing reasons, the Court RECOMMENDS that Plaintiffs be ordered to file a short and plain statement of the grounds upon which their claims rest and the Court's jurisdiction depends. If the Plaintiffs fail to do so, the Court recommends that this case be subject to dismissal without further notice. The Court further RECOMMENDS that defendant Mark Lippman's Motion to Dismiss and Federal Defendants' Motion to Dismiss both be DENIED without prejudice to reassert the motions if an amended complaint is filed.