Opinion
Civil Action No. 18-cv-03336-GPG
05-13-2019
STEVEN WORTHMAN, Plaintiff, v. PROSPECT AIRPORT SERVICES, INC., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the amended Employment Discrimination Complaint (ECF No. 8) filed pro se by Plaintiff, Steven Worthman, on February 6, 2019. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 19.)
"(ECF # 8)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
The Court must construe the amended Employment Discrimination Complaint and other papers filed by Mr. Worthman liberally because he 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). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the amended Employment Discrimination Complaint be dismissed.
I. DISCUSSION
Mr. Worthman initiated this action by filing an Employment Discrimination Complaint. On January 7, 2019, the Court ordered Mr. Worthman to file an amended complaint that complies with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. As noted above, the amended Employment Discrimination Complaint was filed on February 6, 2019. Mr. Worthman claims in the amended Employment Discrimination Complaint that he was discriminated against due to a disability and his religion.
On February 8, 2019, the court ordered Mr. Worthman to file a second amended complaint because the amended Employment Discrimination Complaint also does not comply with the pleading requirements of Rule 8. On March 22, 2019, Mr. Worthman filed a document (ECF No. 16) requesting an extension of time. On March 27, 2019, the Court entered a Minute Order (ECF No. 17) granting the request and extending the time until April 26, 2019, to file a second amended complaint. Mr. Worthman has not filed a second amended complaint within the time allowed.
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 Rule 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.
As noted in the order directing Mr. Worthman to file a second amended complaint, the amended Employment Discrimination Complaint does not include specific factual allegations that demonstrate he was discriminated against in the terms and conditions of his employment on the basis of a disability or his religion. For example, the entirety of Mr. Worthman's first claim, the disability discrimination claim, is the following:
I am a member of protected Act, Title VII, the Americans with Disability Act of 1990. I have had over twenty years of customer service experience before starting work at Prospect Airport Services. I have always been a responsible & loyal employee at all my jobs successfully despite my disability.(ECF No. 8 at p.4 (some capitalization altered).) Similarly, the entirety of his second claim, the religious discrimination claim, is the following:
I have been discriminated against because of my religion (Catholic); in violation of Title VII of the Civil Rights Act of 1964. I have had over twenty years of customer service experience before starting work at Prospect Airport Services. I have always been a responsible & loyal employee at all my jobs successfully despite my religious beliefs.(ECF No. 8. at p.5 (some capitalization altered).) Although Mr. Worthman indicates in both claims that the claim continues, there is no continuation of either claim. As a result, he fails to provide a short and plain statement of either claim showing he is entitled to relief. The documentation attached to the amended Employment Discrimination Complaint also does not include a short and plain statement of the claims Mr. Worthman is asserting. Furthermore, despite the specific instructions provided by the Court, Mr. Worthman has failed to file a second amended complaint that clarifies his claims.
The general rule that pro se pleadings must be construed liberally has limits and "the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."); Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory allegations that his rights have been violated does not entitle a pro se pleader to a day in court regardless of how liberally the pleadings are construed), aff'd, 961 F.2d 916 (10th Cir. 1992). "[I]n 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." Hall, 935 F.2d at 1110.
Mr. Worthman fails to provide Defendant fair notice of the specific claims being asserted and the specific factual allegations that support each claim. Therefore, the amended Employment Discrimination Complaint does not comply with the pleading requirements of Rule 8.
II. RECOMMENDATION
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the amended Employment Discrimination Complaint (ECF No. 8) and the action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with the pleading requirements of Rule 8.
DATED at Grand Junction, Colorado, this 13th day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge