United States District Court, D. Utah, Central Division
N. Parrish District Judge.
REPORT AND RECOMMENDATION
J. FURSE United States Magistrate Judge.
Plaintiff Ricky Haws, proceeding in forma pauperis,
filed the Complaint in this matter in October 2018. (ECF No.
3.) Subsequently, the undersigned set a status conference for
January 15, 2019 to give Mr. Haws the opportunity explain the
claims he attempts to assert and the bases for those claims.
(ECF No. 6.) Mr. Haws did not appear at the status
conference. (ECF No. 7.)
Court has reviewed Mr. Haws's Complaint pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and finds that it fails to
state a plausible claim for relief. Accordingly, the
undersigned RECOMMENDS the District Judge dismiss Mr.
Haws's Complaint without prejudice.
November 1, 2018, the undersigned granted Mr. Haws's
request to proceed in forma pauperis in this matter.
(ECF No. 2.) While not entirely clear, Mr. Haws's
Complaint names as defendants some combination of the United
States, the Atomic Energy Commission, the Department of
Defense, the Department of the Air Force, Nevada Test Site,
the State of Nevada, the State Department, and Joint Test
Organization. (Compl., ECF No. 3.) The Complaint and its
attachment allege that the Defendants exposed Mr. Haws and
certain members of his family to nuclear testing at some
point in time, but the Complaint does not identify when this
occurred or provide other details that would put the
Defendants on notice of what they each did that resulted in
this lawsuit. (Id. at 4, 8.) Mr. Haws's
Complaint asserts a conspiracy claim under 42 U.S.C. §
1985, alleging that “[t]hey all benefitted and
conspired to blow the weapons up on my parents myself,
” and “[t]hey never let me know about it.”
(Id. at 4.) In the attachment to the Complaint, Mr.
Haws also alleges a violation of civil rights and refers to
intentional infliction of emotional distress in both the
Complaint and attachment. (Id. at 4, 8.) Among other
things, Mr. Haws claims he suffered injury because he has no
children and because he has Iodine 131 in his thyroid,
alcoholism, and mental health issues. (Id. at 5.) He
also alleges five miscarriages. (Id.) Mr. Haws seeks
$40, 000, 000 in damages. (Id. at 6.)
the Court authorizes a party to proceed in forma pauperis,
the Court must “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 this 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).
this standard, “ ‘[t]he court's function . .
. is . . . to assess whether the plaintiff's complaint
alone is legally sufficient to state a claim for which relief
may be granted.' ” Smith v. United States,
561 F.3d 1090, 1098 (10th Cir. 2009) (quoting Sutton v.
Utah State Sch. For Deaf & blind, 173 F.3d 1226,
1236 (10th Cir. 1999)). Federal Rule of Civil Procedure 8
requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), and further provides
that “[e]ach allegation must be simple, concise, and
direct. Fed.R.Civ.P. 8(d)(1). “Rule 8 serves the
important purpose of requiring plaintiffs to state their
claims intelligibly so as to inform the defendants of the
legal claims being asserted.” Mann v.
Boatright, 477 F.3d 1140, 1148 (10th Cir. 2007).
avoid dismissal, a complaint must allege “
‘enough facts to state a claim to relief that is
plausible on its face.' ” Hogan v. Winder,
762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 547 (2007)). “
‘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. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In
reviewing a complaint, the court accepts as true the
well-pled factual allegations and views the allegations in
the light most favorable to the plaintiff, drawing all
reasonable inferences in the plaintiff's favor.
Wilson v. Montano, 715 F.3d 847, 852 (10th Cir.
2013). The Court need not accept the plaintiff's
conclusory allegations as true. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). “[A] plaintiff must
offer specific factual allegations to support each
claim.” Kan. Penn Gaming, LLC v. Collins, 656
F.3d 1210, 1214 (10th Cir. 2011) (citing Twombly,
550 U.S. at 555). A complaint survives only if it “
‘states a plausible claim for relief,' ”
though courts recognize that “[t]he nature and
specificity of the allegations required to state a plausible
claim will vary based on context.” Id. at
1214- 15 (quoting Iqbal, 556 U.S. at 679).
court construes the filings of a pro se plaintiff liberally
and holds them “to a less stringent standard than
formal pleadings drafted by lawyers, ” Hall,
935 F.2d at 1110, a pro se plaintiff must “
‘follow the same rules of procedure that govern other
litigants.' ” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994)). Thus, a pro se “plaintiff still has ‘the
burden of alleging sufficient facts on which a recognized
legal claim could be based.' ” Jenkins,
514 F.3d at 1032 (quoting Hall, 935 F.2d at 1110).
While a court must make some allowances for “the [pro
se] plaintiff's failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements[, ]” Hall, 935 F.2d at 1110, the
court cannot act as the litigant's advocate, supply
additional factual allegations, or develop a legal theory for
him/her, see, e.g., Smith, 561 F.3d at
Haws's Complaint falls well short of satisfying Rule
8's pleading standard. First, Mr. Haws's Complaint
fails to indicate how the defendants, some of which he only
identifies in the caption and not in the body of the
Complaint, bear responsibility for the actions described in
the Complaint or how they allegedly harmed him. The Tenth
Circuit has held that
to state a claim in federal court, 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 ...