United States District Court, D. Utah
Arlene R. Atherton, Plaintiff,
Salt Lake City Police Department, Defendant.
Benson District Judge
MEMORANDUM DECISION AND ORDER DENYING MOTIONS FOR
LEAVE TO FILE ADDITIONAL EXHIBITS AND ORDERING THE FILING OF
AN AMENDED COMPLAINT
B. PEAD UNITED STATES MAGISTRATE JUDGE.
matter was referred to the undersigned in accordance with 28
U.S.C. §636(b)(1)(B). (ECF 4). On June 3, 2019, the
court granted pro se Plaintiff Arlene Atherton leave
to proceed in forma pauperis. (ECF 2).
Plaintiff’s Complaint alleges that Defendant violated
her civil rights under 42 U.S.C. § 1983 for, among other
things, arresting her for trespassing after leaving the Hyatt
House. The case is presently before the court on two motions
for leave to file additional exhibits. (ECF 5, ECF
6). The court will deny Plaintiff’s motions for
leave to file the exhibits because the court is ordering
Plaintiff to file an amended complaint. If relevant, the
proposed additional exhibits may be attached to the amended
complaint. As set forth below the court orders Ms. Atherton
to file an amended complaint that complies with the Federal
Rule pleading requirements.
complaint outlines a series of events involving the Salt Lake
City Police Department. Plaintiff was allegedly visiting the
Hyatt House after submitting a supreme court case at the
nearby post office. After leaving the Hyatt House the police
seized her property and arrested Plaintiff for trespassing.
Plaintiff alleges she lost some of her property during this
arrest, although it is unclear exactly what property was lost
and whether it was eventually returned. Plaintiff further
asserts that there was some evidence tampering with her cell
also cites to “bodily harm” in violation of 18
U.S.C. § 1501. This section makes it unlawful for
someone to knowingly and willfully obstruct, resist or
“oppose any officer of the United States, or other
person duly authorized, in serving, or attempting to serve or
execute, any legal or judicial writ or process of any court
of the United States.” 18 U.S.C. § 1501. There is
no evidence in Plaintiff’s Complaint, however, that she
is an officer of the United States or someone who is duly
authorized to serve process.
the court notes the similarity of this complaint to the large
number of complaints Plaintiff has filed in a very short
time. Since May of this year, Plaintiff has filed seven cases
proceeding under 28 U.S.C. § 1915 in each of
them. Federal courts are required to dismiss an
IFP action if the complaint fails to state a claim upon which
relief may be granted, is legally “frivolous or
malicious, ” or seeks monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2).
Allegations are frivolous when they are “clearly
baseless” or lack an arguable basis in law and fact.
See Neitzke v. Williams, 490 U.S. 319, 325
(1989). “[R]epetitious litigation of virtually
identical causes of action” may also be dismissed under
§ 1915 as frivolous or malicious. Bailey v.
Johnson, 846 F.2d 1019, 1021 (5th Cir.1988) (internal
quotation marks omitted); see McWilliams v.
State of Colo. 121 F.3d 573, 574 (10th Cir. 1997)
(affirming district court dismissal of § 1983 claims
because they were duplicative); see also Aziz v.
Burrows, 976 F.2d 1158, 1158 (8th Cir. 1992)
(“district courts may dismiss a duplicative complaint
raising issues directly related to issues in another pending
action brought by the same party”); Adams v. Cal.
Dep't of Health Servs., 487 F.3d 684, 688 (9th Cir.
2007) (“Plaintiffs generally have no right to maintain
two separate actions involving the same subject matter at the
same time in the same court and against the same
defendant.”), overruled in part on other grounds by
Taylor v. Sturgell, 553 U.S. 880 (2008);
McWilliams v. State of Colorado, 121 F.3d 573, 574
(11th Cir. 1997) (holding that repetitious action may be
dismissed as frivolous or malicious). The court has briefly
looked at the complaints in the other cases and notes they
contain similar facts and allegations.
The court will deny Plaintiff’s motions for leave to
file additional exhibits
has filed two motions seeking leave to file additional
exhibits. In part, the proposed new exhibits duplicate what
is already attached to Plaintiff’s Complaint. For
example, Plaintiff’s booking sheet is already attached
to her complaint and is a proposed additional exhibit. As
such, the need to allow the filing of duplicative exhibits is
questionable. Further, because the court is ordering
Plaintiff to file an amended complaint, Plaintiff may attach
these exhibits, if they are relevant, to her amended
The court orders Plaintiff to amend her complaint
order to state a proper claim, federal rule 8 requires that a
pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2); see also DUCivR 3-5 (the
complaint “should state the basis for the court’s
jurisdiction, the basis for the plaintiff’s claim or
cause for action, and the demand for relief.”). The
requirements of federal rule 8(a) are further reinforced
under rule 8(d)(1), which provides that “[e]ach
allegation must be simple, concise, and direct.”
Fed.R.Civ.P. 8(d)(1). Separately, a party must state the
claims or defenses in numbered paragraphs. SeeFed.
R. Civ. P. 10(b). As explained by the Tenth Circuit,
compliance with rule 8 requires that 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). These requirements are designed to provide the
opposing party with fair notice of the claims against it and
allow the court to conclude that, if proven, the allegations
show that plaintiff is entitled to relief. See Monument
Builders of Greater Kansas City, Inc. v. American Cemetery
Assn. of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989)
citing Perington Wholesale Inc. v. Burger King
Corp., 631 F.2d 1369, 1371 (10th Cir. 1979); see
also Nasious, 492 F.3d 1163 (10th Cir. 2007) (a
plain statement under rule 8 provides a Defendant with
“sufficient notice to begin preparing its defense and
the court sufficient clarity to adjudicate the
complaint is comprised of a five-page free form narrative
that is not much more than an “unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), which
is insufficient. A pleading that offers “labels and
conclusions” or tenders “naked
assertion[s]” devoid of “further factual
enhancement” is also insufficient. Bell Atlantic
Corp. v. Twombly et al., 550 U.S. 544, 555-557 (2007).
to the requirements of Rules 8 and 10 while liberally
construing the Plaintiff’s claims, the court finds
Plaintiff’s complaint fails to satisfy the basic
pleading requirements. Given Plaintiff’s pro
se status and the nature of her factual allegations,
however, the court cannot be certain that Plaintiff is unable
to plead a cause of action and will thus afford her an
opportunity to amend. SeeReynoldson v.
Shillinger, 907 F.2d 124, 126 (10th Cir.
1990) (“[If] it is at all possible that the party
against whom the dismissal is directed can correct the defect
in the pleading or state a ...