United States District Court, D. Utah, Central Division
Waddoups United States District Court Judge
REPORT & RECOMMENDATION
B. Pead United States Magistrate Judge
matter was referred to Magistrate Judge Dustin Pead pursuant
to 28 U.S.C. §636(b)(1)(B) referral from the District
Court. (ECF No. 6.) On August 29, 2018, the court granted pro
se Plaintiff Kathy Sherrer (“Plaintiff” or
“Sherrer”) leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 (the “IFP
Statute”). (ECF No. 2.) On September 18, 2018, the
court issued an Order denying motions for service of process
and appointment of counsel and requiring Plaintiff to file an
amended complaint addressing deficiencies in her original
pleading, as identified by the court. (ECF No. 7 at 3.)
October 9, 2018, Sherrer filed her Amended Complaint. (ECF
No. 9.) The court reviews Plaintiff's amended pleading
under the authority of the IFP Statute. See 28
U.S.C. § 1915.
following standards are relevant to the court's review of
Plaintiff's amended complaint under the IFP Statute.
the court authorizes a party to proceed without the payment
of fees, the court must “dismiss the case at any time
if the court determines that . . . the action or appeal is
frivolous or malicious; [or] fails to state a claim or which
relief may be granted.” 28 U.S.C. § 1915
(e)(2)(B)(i-iii). In reviewing the sufficiency of a
complaint, the court presumes all factual allegations as true
and “construes them in the light most favorable to the
plaintiff.” Hall v. Bellmon, 935 F.2d 1106,
1109 (10th Cir. 1991). Because she proceeds pro
se, the court construes Sherrer's pleadings
“liberally” and holds them “to a less
stringent standard than formal pleadings drafted by
lawyers.” Id. at 1110. Nonetheless, a broad
reading of her complaint does not relieve Plaintiff of the
burden to allege “sufficient facts on which a
recognized legal claim could be based.” Id.
Amended Complaint Fails To Comply With Federal Rule Of Civil
explained by the Tenth Circuit, compliance with Rule 8
requires a pleading “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);
Fed.R.Civ.P. 8(a)(2) (pleading must include “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”). The purpose of the rule is to
provide opposing parties with fair notice of the claims and
allow the court to determine whether plaintiff is entitled to
relief. See Monument Builders of Greater Kan. City Inc.
v. Am. Cemetery Assn of Kan., 891 F.2d 1473, 1480
(10th Cir. 1989) (citing Perrington Wholesale,
Inc. v. Burger King Corp., 631 F.2d 1369, 1371
(10th Cir. 1979)).
amended complaint is difficult to summarize. (ECF No. 9.)
While sufficiently similar to Plaintiff's original
pleading (ECF No. 3), it includes a hand-written paragraph
attached to the standardized civil rights complaint form.
(ECF No. 9 at 9.) The body of the document itself consists
largely of sentence fragments, untethered to any specific
individual or allegation. (See generally Id.,
emphasis added) (“They stole my son with
them saying that they would return all
kids.”); (“These guys have stated that
since I was in front of [J]udge [L]und the second time I
would lose all kids.”); (“They have no
grounds in taking my son.”); (“They have
never been able to prove anything.”). Piecing together
phrases, it appears Sherrer's parental rights were
terminated and that she no longer has custody of her son.
(See generally Id.) Plaintiff names Jason A.
Pietryga (“Pietryga”), Kelly Paluso
(“Paluso”) and Jaynie Palmer
(“Palmer”) as Defendants. (Id., at 4.)
Yet, other than identifying Pietryga as an attorney and
alluding to Paluso and Palmer as “case-workers, ”
it is unclear how these Defendants are connected to Sherrer
or how they were involved in her claims for “Violat[ion
of] Court Orders” and “Abduction”.
(Id., at 4-5.) As noted above, under Rule 8 a
complaint must contain a “short and plaint statement of
the claim” and connect each Defendant to a violation.
Fed.R.Civ.P. 8(a)(2). Plaintiff's amended complaint does
not satisfy these requirements, and accordingly the court
recommends dismissal on this basis alone.
Fails To State Cognizable Claims For Violation Of Her Civil
the above-mentioned violations of Rule 8, the court also
recommends dismissal of Sherrer's amended complaint for
failure to state a claim upon which relief may be granted
under 42 U.S.C. §§ 1983 or 1985. See 28
U.S.C. § 1915 (e)(2)(B)(ii).
assert a claim under Section 1983, Plaintiff must set forth
both: (1) “the existence of a federally-protected
right” and (2) “the deprivation of that right by
a person acting under color of state law.” Wittner
v. Banner Health,720 F.3d 770, 773 (10th
Cir. 2013). Plaintiff alleges neither. First, Sherrer does
not identify any state actor. Further, in order to attribute
a private citizen's conduct to the state, a
“complaint must show that the private party is ‘a
person who may fairly be said to be a state actor. This may
be because he is a state official, because he has acted
together with or has obtained significant aid from state
officials, or because his conduct is otherwise chargeable to
the State.'” Walton v. U.S. Bank, No.
2:09-cv-931, 2010 WL 3928507, at *2 (D. Utah Oct. 4, 2018)
(quoting Lugar v. Edmonson Oil Co.,457 U.S. 922,
937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). Other than
identifying Pietryga as an attorney and Paluso and Palmer as
caseworkers, there are no ...