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SMITH v. GMAC MORTGAGE, 13-cv-01817-BNB. (2013)

Court: District Court, D. Colorado Number: infdco20130820894 Visitors: 5
Filed: Aug. 19, 2013
Latest Update: Aug. 19, 2013
Summary: ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT BOYD N. BOLAND, Magistrate Judge. Plaintiff, Matthew A. Smith, has filed pro se a Complaint (ECF No. 1). The court must construe the Complaint liberally because Mr. Smith 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 (10 th Cir. 1991). However, the court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
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ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

BOYD N. BOLAND, Magistrate Judge.

Plaintiff, Matthew A. Smith, has filed pro se a Complaint (ECF No. 1). The court must construe the Complaint liberally because Mr. Smith 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. For the reasons stated below, Mr. Smith will be ordered to file an amended complaint if he wishes to pursue his claims in this action.

The court has reviewed the Complaint and finds that the Complaint is deficient. For one thing, the Defendant listed as a party on page 2 of the Complaint is not the same Defendant listed in the caption.

The court also finds that the Complaint is deficient because the Complaint does not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The twin purposes of a complaint 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). The requirements of Fed. R. Civ. P. 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." 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. Prolix, vague, or unintelligible pleadings violate the requirements of Rule 8.

Mr. Smith is asserting claims in the Complaint pursuant to the Fair Housing Act (FHA), 42 U.S.C. §§ 3601, et seq. However, Mr. Smith fails to provide a short and plain statement of any claims under the FHA showing he is entitled to relief because he makes only vague and conclusory allegations that he suffered discrimination on the basis of his race, sex, and marital status. Mr. Smith does not provide a clear and concise statement of his claims that includes specific facts explaining how he was subjected to discrimination in violation of the FHA. Merely repeating the conclusory allegation that Defendant discriminated against him is not sufficient to state a cognizable claim.

Therefore, Mr. Smith will be ordered to file an amended complaint that clarifies the claims he is asserting. In order to state a claim in federal court, Mr. Smith "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." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). 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). In addition, "[i]t is sufficient, and indeed all that is permissible, if the complaint concisely states facts upon which relief can be granted upon any legally sustainable basis." New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). Accordingly, it is

ORDERED that Mr. Smith file, within thirty (30) days from the date of this order, an amended complaint that complies with the pleading requirements of Fed. R. Civ. P. 8 as discussed in this order. It is

FURTHER ORDERED that Mr. Smith shall obtain the appropriate court-approved Complaint form, along with the applicable instructions, at www.cod.uscourts.gov. It is

FURTHER ORDERED that, if Mr. Smith fails within the time allowed to file an amended complaint that complies with this order, the action will be dismissed without further notice.

Source:  Leagle

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