United States District Court, D. Utah, Central Division
Benson District Judge
REPORT AND RECOMMENDATION
J FURSE UNITED STATES MAGISTRATE JUDGE
December 2018 pro se Plaintiff Cari Allen, proceeding in
forma pauperis, filed the Complaint in this matter. (ECF
No. 3.) The undersigned 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
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”).(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.
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.)
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.)
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).
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).
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