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Allen v. Smith's Fresh Marketplace

United States District Court, D. Utah, Central Division

April 22, 2019

CARI ALLEN, Plaintiff,
v.
SMITH'S FRESH MARKETPLACE, THE KROGER CO., JANE DOE NO. 1, JANE DOE NO. 2, and JOHN DOES NO. 1-5 Defendants.

          Dee Benson District Judge

          REPORT AND RECOMMENDATION

          EVELYN J FURSE UNITED STATES MAGISTRATE JUDGE

         In December 2018 pro se Plaintiff Cari Allen, proceeding in forma pauperis, filed the Complaint in this matter. (ECF No. 3.) The undersigned[1] has reviewed Ms. Allen's Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and finds it fails to state a claim for relief. Ms. Allen's 42 U.S.C. § 1983 claim fails because the Complaint fails to allege facts to support her claim that the offending actions occurred under color of state law. Ms. Allen's 42 U.S.C. § 1985 claim fails because the Complaint fails to allege the facts that would explain to what class she belongs and why she claims they took their actions on that basis. The undersigned also considered the potential that Ms. Allen really intended to bring a 42 U.S.C. § 1981, but that provision only applies to discrimination based on race, which Ms. Allen does not allege. Because none of Ms. Allen's federal claims survives, the Court should not exercise jurisdiction over her state claims. Accordingly, as more fully explained below, the undersigned RECOMMENDS the District Judge dismiss Ms. Allen's Complaint without prejudice.

         BACKGROUND

         On December 12, 2018, a magistrate judge granted Ms. Allen's request to proceed in forma pauperis in this matter. (ECF No. 2.) Ms. Allen's Complaint purports to bring claims under 42 U.S.C. §§ 1983 and 1985 against Smith's Fresh Marketplace (“Smith's Marketplace”), The Kroger Co. (“Kroger”), and two Smith's employees identified as Jane Does 1 and 2 (collectively, “Smith's Marketplace Defendants”).[2](Compl., ECF No. 3.) Ms. Allen alleges that on December 6, 2017, she went to the Smith's Marketplace store on 455 East 500 South in Salt Lake City, Utah to shop for groceries and personal items for herself and her family. (Id. at 3.) Ms. Allen claims that after she scanned her items at the register, which totaled $357, a Smith's Marketplace worker, identified in the Complaint as Jane Doe 1, approached her and asked to see her debit card and driver's license. (Id. at 4, 7.) Ms. Allen alleges that Jane Doe 1 then “refused to allow [her] to proceed with [her] purchase.” (Id. at 4.) Ms. Allen claims she then went to the ATM in the lower level of the store, and as she was proceeding to withdraw money to pay for the items in cash, a second store employee identified in the Complaint as Jane Doe 2, attempted to pull her card out of the ATM, and a struggle between them ensued. (Id. at 3-4.)

         Ms. Allen asserts that the Smith's Marketplace Defendants violated her “rights to freedom and privacy.” (Compl. 2, ECF No. 3.) She further alleges that the two Smith's Marketplace employees acted together and conspired against her by not letting her purchase the items she selected from the store and that they intended to have her arrested. (Id. at 2, 5.) Ms. Allen asserts that the employees entered the conspiracy “for a class-based reason socially and financially on both respects.” (Id. at 5.) She also asserts that they violated state law, which she claims prohibits them from asking for identification. (Id.) Finally, Ms. Allen claims that the Smith's Marketplace employee identified as Jane Doe 2 assaulted her. (Id. at 3, 7.)

         Ms. Allen alleges that these events affected her socially and that she remains afraid to go into any store. (Compl. 7, ECF No. 3.) In her request for relief, Ms. Allen seeks $357, 000 in damages. (Id. at 8.)

         LEGAL STANDARD

         Whenever the Court authorizes 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).

         Under 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).

         To 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).

         Because Ms. Allen proceeds pro se, the undersigned construes her filings liberally and holds them “to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110. Nonetheless, she 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, Ms. Allen “still has ‘the burden of alleging sufficient facts on which a recognized legal claim could be based.' ” Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (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, h[er] poor syntax and sentence construction, or h[er] 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 her. See, e.g., Smith, 561 F.3d at 1096.

         DISCUSSION

         1. ...


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