United States District Court, D. Colorado
RECOMMENDATION REGARDING AMENDED COMPLAINT
GORDON
P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE
This
matter comes before the Court on the Amended Employment
Discrimination Complaint (ECF No. 7)[1] filed pro se by
Plaintiff, Abigail Gail Padilla, on April 5, 2019. The matter
has been referred to this Magistrate Judge for recommendation
(ECF No. 9.)[2]
The
Court must construe the Amended Employment Discrimination
Complaint and other papers filed by Ms. Padilla liberally
because she 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
Ms.
Padilla initiated this action by filing pro se an
Employment Discrimination Complaint (ECF No. 1) asserting
claims pursuant to Title VII, the Americans with Disabilities
Act (“ADA”), the Whistleblower Protection Act
(“WPA”), and the Family and Medical Leave Act
(“FMLA”). On March 15, 2019, the Court directed
Ms. Padilla to file an amended complaint that clarifies her
claims. The Court determined the Employment Discrimination
Complaint did not comply with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure because Ms.
Padilla failed to provide a short and plain statement of her
claims showing she is entitled to relief. As noted above, the
Amended Employment Discrimination Complaint was filed on
April 5, 2019.
The
Amended Employment Discrimination Complaint does not provide
a clear statement of the claims Ms. Padilla is asserting and
does not comply with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure. 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 (10thCir. 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.
Ms.
Padilla asserts three claims in the amended Employment
Discrimination Complaint pursuant to Title VII, the ADA, and
the WPA, although she also refers to violations of other
statutes and constitutional provisions within each of her
claims. Ms. Padilla indicates in the amended Employment
Discrimination Complaint that she filed an administrative
charge of discrimination and that she received a notice of
right to sue, but she has not attached copies of those
documents to the amended Employment Discrimination Complaint
as directed on the complaint form. (See ECF No. 7 at
p.19.) However, the Court notes that Plaintiff did submit
documents with the original Employment Discrimination
Complaint relevant to her efforts to exhaust administrative
remedies, including a Decision on Request for Reconsideration
dated February 6, 2019, that advises Ms. Padilla of her right
to sue. (See ECF No. 1-1 at pp.5-7.) The Decision on
Request for Reconsideration relates to “a formal EEO
complaint in which [Ms. Padilla] alleged that the Agency
discriminated against her based on race (mixed), national
origin (Hispanic), sex (female), religion (Jewish), color
(mixed), disability, [and] age (over 40) when she was issued
a harmful mid-year performance review on July 31,
2014.” (ECF No. 1-1 at 5.)
As the
Court noted in the order directing Ms. Padilla to file an
amended complaint, she did not include in the original
complaint specific factual allegations in support of her
claims that relate to a harmful mid-year performance review
in July 2014. The Court's review of the amended
Employment Discrimination Complaint reveals that Ms. Padilla
still fails to provide a short and plain statement of any
claims that relate to a harmful mid-year performance review
in July 2014. In addition, even if Ms. Padilla's claims
in this action relate to employment discrimination unrelated
to a harmful mid-year performance review in July 2014, she
still fails to provide a short and plain statement of any
claims that demonstrate she is entitled to relief. Instead,
the amended Employment Discrimination Complaint consists of
vague, conclusory, disjointed, and confusing factual
allegations that do not provide a clear and concise statement
of each claim Ms. Padilla is asserting. For example, Ms.
Padilla fails to link her factual allegations to the specific
claims she indicates she is asserting. In other words,
whatever Title VII claim Ms. Padilla may be asserting is not
supported by specific factual allegations based on race,
color, religion, sex, or national origin, see 42
U.S.C. § 2000e-2(a)(1), and she similarly fails to
provide specific factual allegations regarding
disability-based discrimination in her ADA claim or specific
factual allegations that would support a claim under the WPA.
Confusing the issues in this action further, Ms. Padilla
repeats allegations from a separate employment discrimination
case she recently filed that remains pending in the District
of Colorado. See Padilla v. Mnuchin, No.
18-cv-02302-NRN (D. Colo. filed Sept. 7, 2018). In short,
despite the Court's specific instructions, the amended
Employment Discrimination Complaint does not provide a short
and plain statement of any federal claims showing Ms. Padilla
is entitled to relief.
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.
Ms.
Padilla fails to provide Defendants fair notice of the
specific claims being asserted against them 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. 7) and the action be dismissed without
prejudice pursuant to Rule 41(b) of the Federal Rules of
Civil ...