United States District Court, D. Utah, Central Division
Stewart District Judge
REPORT AND RECOMMENDATION
B. Pead United States Magistrate Judge
matter was referred to the undersigned pursuant to 28 U.S.C.
§ 636(b)(1)(B). (ECF Nos. 4, 7.) On July 19, 2016, Ms.
Montoya filed her complaint and an application to proceed in
forma pauperis. (ECF No. 1.) Ms. Montoya's Complaint
alleges that Postmaster Renee Kern and Postmaster General
Megan Brennen violated various federal statutes.
(See ECF No. 3.) The matter is presently before the
court on sua sponte review pursuant to 28 U.S.C. § 1915.
Ms. Montoya's claim should be dismissed because it
lacks sufficient factual matter to
support a claim and does not allege that any party is a Utah
citizen or that any act alleged in the Complaint occurred in
Montoya's Complaint should be dismissed for two reasons.
First, the Complaint does not allege sufficient factual
matter to support any claim. Second, the few details alleged
in the Complaint demonstrate the court is not the proper
Ms. Montoya's complaint is devoid of factual
Montoya does not allege any facts that could support her
statutory claims. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. “Nevertheless,
conclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be
based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). “[T]o state a claim in federal court,
a complaint must explain what each defendant did to [the
plaintiff]; when the defendant did it; how the
defendant's action harmed [the plaintiff]; 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). While a
pro se complaint must be construed liberally, a court must
avoid acting as an advocate for a pro se litigant.
Montoya's complaint is remarkable for its lack of detail.
Ms. Montoya recites several legal standards and
constitutional principles, but sets forth almost no facts
regarding this case. The only factual allegation that appears
relevant to this case states: “Mrs. Renee Kern,
Postmaster at the Rocky Ford Post Office, has a higher
threshold than La Junta, Las Animas, [and] Pueblo Post
Offices they [sic] just require one time showing of post
office holder of mail box.” (ECF No. 3 at 4). This
allegation does not state any viable claim and Ms.
Montoya's other unrelated allegations (including her
thoughts on the cause of high utility bills in Colorado) do
not provide the court or defendants with sufficient notice of
Additionally, the Complaint should be dismissed because Ms.
Montoya does not allege the District of Utah has any
connection to the events and parties described in the
Complaint and the claims alleged are not likely to have
Ms. Montoya's Complaint suffers an obvious defect
Montoya affirmatively alleges that all parties are citizens
of states other than Utah and she suggests all relevant
events occurred outside of this District. Section 1915 allows
the court the “unusual power” to pierce the
complaint's factual allegations to consider whether a
complaint should be dismissed on the basis of an affirmative
defense such as lack of personal jurisdiction or improper
venue. Trujillo v. Williams, 465 F.3d 1210, 1216
(10th Cir. 2006) Yet the court may do so “only when the
defense is obvious from the face of the complaint and no
further factual record is required to be developed.”
Id. at 1217. Here, the defect is obvious. Ms.
Montoya alleges that she and Defendant Kern both reside in
Rocky Ford, Colorado, and Defendant Brennen resides in
Washington D.C. Likewise, the single factual allegation, as
best as the court can tell, relates to conduct in Colorado.
This raises several questions about personal jurisdiction and
Ms. Montoya may not bring an action in the District of
claims against the United States may be brought in a judicial
district where a defendant resides, a substantial part of the
events giving rise to the claim occurred, or where the
plaintiff resides so long as no real property is involved in
the action. See 28 U.S.C. § 1391(e)(1).
Additionally, while Ms. Montoya does not expressly invoke the
Federal Tort Claims Act, any such claims brought against the
United States may only be prosecuted in the judicial district
where the plaintiff resides. See 28 U.S.C.A. §
1402. Here, Ms. Montoya alleges she resides in Rocky Ford,
Colorado. (ECF No. 3 at 1). She alleges Defendants reside in
Colorado and Washington D.C. (Id. at 2). The only
discernable factual allegation relates to conduct in
Colorado. Accordingly, Ms. Montoya may not bring her action
in the District of Utah because this District does not
include Colorado or Washington D.C. within its boundaries.
Likewise, Ms. Montoya's Complaint does not suggest the
District of Utah has any connection to the events alleged
therein or to the parties.
Dismissal, rather than transfer, is appropriate because the
Complaint does not ...