Opinion
Civil Action No. 07-cv-01597-BNB.
October 9, 2007
ORDER
Plaintiff, Jacques Ward, is a prisoner in the custody of the Colorado Department of Corrections at the Colorado State Penitentiary at Canon City, Colorado. Mr. Ward initiated this action by filing pro se a document titled "Civil Investigative Demand Per 28 U.S.C. § 535." In an order filed on July 30, 2007, the court directed the clerk of the court to commence a civil action and directed Mr. Ward to cure certain deficiencies if he wished to pursue his claims. One of the deficiencies was the fact that Mr. Ward had not filed a complaint. After requesting and being granted an extension of time, Mr. Ward filed a Prisoner Complaint on September 28, 2007. Mr. Ward primarily asserts claims in the Prisoner Complaint pursuant to the False Claims Act, although he also asserts one or more claims that his own civil rights have been violated. Pursuant to 31 U.S.C. § 3730(b)(2), the clerk of the court will be directed to file the complaint under seal. However, the government will not be served with a copy of the complaint because Mr. Ward will be ordered to file an amended complaint. If Mr. Ward files an amended complaint that complies with this order, the amended complaint will be served on the government pursuant to 31 U.S.C. § 3730(b)(2).
The court has reviewed the Prisoner Complaint filed by Mr. Ward in this qui tam action and finds that it is deficient. First, Mr. Ward has violated the court's local rules. Pursuant to Rule 10.1J. of the Local Rules of Practice of the United States District Court for the District of Colorado-Civil, "[p]arties shall be listed in a caption with one party per line. The proper name of a party shall be in capital letters, and any identifying text shall be in upper and lower case immediately following the proper name." Mr. Ward does not list each named Defendant on a separate line. In addition, because Mr. Ward lists only three of the named Defendants in Section A of the Prisoner Complaint, the section that describes the parties to the action, he has failed to provide an address for each named Defendant.
The complaint also is deficient because Mr. Ward improperly includes claims that his own civil rights have been violated. A complaint asserting claims under the False Claims Act "shall be brought in the name of the Government." 31 U.S.C. § 3730(b)(1). Therefore, the only proper claims in this action are those claims asserted by Mr. Ward on behalf of the Government and not his claims that his own civil rights have been violated. Mr. Ward's claims that his own rights have been violated must be raised in a separate action brought by Mr. Ward in his own name.
Finally, and most importantly, the court finds that the fraud claims being raised in the Prisoner Complaint fail to comply with Rule 9(b) of the Federal Rules of Civil Procedure. Rule 9(b) provides that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." The heightened pleading requirements of Rule 9(b) apply to this qui tam action under the False Claims Act. See, e.g., United States ex. rel. Russell v. Epic Healthcare Management Group , 193 F.3d 304, 308 (5th Cir. 1999). Pursuant to Rule 9(b), a complaint alleging fraud must set forth the time, place, and contents of the false representation, the identity of the party making the false statements, and the consequences of the false statements. See Koch v. Koch Indus., Inc. , 203 F.3d 1202, 1236 (10th Cir. 2000).
Mr. Ward clearly believes that improper accounting practices have been employed regarding the funds in his inmate account and he provides substantial detail regarding transactions relating to his inmate account over a period of years. However, he fails to allege with particularity how the alleged improper accounting practices have resulted in fraud in violation of the False Claims Act. There are no allegations to demonstrate with particularity how any of the numerous Defendants violated the provisions of 31 U.S.C. § 3729 or any of the other statutes cited by Mr. Ward. Therefore, Mr. Ward will be ordered to file an amended complaint that complies with Rule 9(b) if he wishes to pursue his claims. Accordingly, it is
ORDERED that the clerk of the court file the Prisoner Complaint under seal. It is
FURTHER ORDERED that Mr. Ward file within thirty (30) days from the date of this order an amended complaint that complies with this order if he wishes to pursue his claims. It is
FURTHER ORDERED that, if Mr. Ward fails to file an amended complaint that complies with this order within the time allowed, the action will be dismissed without further notice.