United States District Court, D. Utah, Central Division
Benson, District Judge
REPORT AND RECOMMENDATION
M. WARNER, UNITED STATES MAGISTRATE JUDGE
Judge Dee Benson referred this case to Chief Magistrate Judge
Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). The court recognizes that Plaintiff Ashlan
Lee Chidester (“Plaintiff”) has been permitted to
proceed in forma pauperis under 28 U.S.C. § 1915
(“IFP Statute”). The court also recognizes that
Plaintiff is proceeding pro se in this case. Consequently,
the court will construe Plaintiff's pleadings liberally.
See, e.g., Ledbetter v. City of Topeka, 318
F.3d 1183, 1187 (10th Cir. 2003).
outset, the court will provide an explanation of the
applicable standards for reviewing a complaint under the IFP
Statute. Whenever the court authorizes a party to proceed
without payment of fees under the IFP Statute, the court is
required to “dismiss the case at any time if the court
determines that . . . the action . . . fails to state a claim
on which relief may be granted.” 28 U.S.C. §
1915(e)(2)(B)(ii). In determining whether a complaint fails
to state a claim for relief under the IFP Statute, the court
employs the same standard used for analyzing motions to
dismiss for failure to state a claim under rule 12(b)(6) of
the Federal Rules of Civil Procedure. See Kay v.
Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). Under
that standard, the court “look[s] for plausibility in
th[e] complaint.” Id. at 1218 (quotations and
citations omitted) (second alteration in original). More
specifically, the court “look[s] to the specific
allegations in the complaint to determine whether they
plausibly support a legal claim for relief. Rather than
adjudging whether a claim is ‘improbable,'
‘[f]actual allegations [in a complaint] must be enough
to raise a right to relief above the speculative
level.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007)) (other
quotations and citation omitted) (second and third
alterations in original).
undertaking that analysis, the court must be mindful that
Plaintiff is proceeding pro se and that “[a] pro se
litigant's pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings
drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991); see also, e.g.,
Ledbetter, 318 F.3d at 1187. At the same time,
however, it is not “the proper function of the district
court to assume the role of advocate for the pro se litigant,
” Bellmon, 935 F.2d at 1110, and the court
“will not supply additional facts, nor will [it]
construct a legal theory for [a pro se] plaintiff that
assumes facts that have not been pleaded.” Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per
[t]he broad reading of [a pro se] plaintiff's complaint
does not relieve the plaintiff of the burden of alleging
sufficient facts on which a recognized legal claim could be
based. . . . [C]onclusory allegations without supporting
factual averments are insufficient to state a claim on which
relief can be based. This is so because a pro se plaintiff
requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such
facts if the court is to determine whether he makes out a
claim on which relief can be granted. Moreover, in 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.
Bellmon, 935 F.2d at 1110 (citations omitted).
October 12, 2018, this court issued an order addressing the
sufficiency of Plaintiff's complaint under the authority
of the IFP Statute. The court concluded that, even under a
liberal reading of Plaintiff's complaint, Plaintiff had
failed to provide enough well-pleaded factual allegations to
support Plaintiff's alleged claims for relief. The court
noted that Plaintiff had provided only conclusory allegations
and failed to provide any sufficiently detailed factual
allegations that would allow the court to determine whether
Plaintiff's claims should survive dismissal.
those reasons, the court concluded that Plaintiff's
complaint failed to state a claim on which relief can be
granted. At the same time, however, the court recognized that
“[d]ismissal of a pro se complaint for failure to state
a claim is proper only where it is obvious that the plaintiff
cannot prevail on the facts he has alleged and it would be
futile to give him an opportunity to amend.”
Kay, 500 F.3d at 1217 (quotations and citation
omitted). Accordingly, the court provided Plaintiff with an
opportunity to amend the complaint. The court directed
Plaintiff to file an amended complaint that complied with the
requirements set forth in the above-referenced authorities on
or before November 12, 2018. Plaintiff was warned that
failure to do so would result in a recommendation to Judge
Benson that this case be dismissed.
has failed to file an amended complaint by that November 12,
2018 deadline. Accordingly, and based on the reasoning set
forth above, IT IS HEREBY RECOMMENDED that this action be
of this Report and Recommendation are being sent to all
parties, who are hereby notified of their right to object.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
The parties must file any objection to this Report and
Recommendation within fourteen (14) days after being served
with a copy of it. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). Failure to object may constitute waiver
of objections upon subsequent review.
See docket no. 4.