Fowler v. McDougal
| Decision Date | 14 December 2016 |
| Docket Number | Case No. 2:16-cv-00163 |
| Parties | BONNIE R. FOWLER, Plaintiff, v. MARK R. MCDOUGAL, DON R. SCHOW, BRENT WAMSLEY, DOUGLAS C. MCDOUGAL and MARK R. MCDOUGAL & ASSOCIATES Defendants. |
| Court | U.S. District Court — District of Utah |
REPORT & RECOMMENDATION
On March 7, 2016, District Court Judge Dale Kimball referred this matter to Magistrate Judge Dustin Pead pursuant to 28 U.S.C. § 636(b)(1)(B) (ECF No. 5.) At the outset, the court notes that Plaintiff Bonnie Fowler (Plaintiff or Fowler) has been permitted to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (IFP Statute) (ECF No. 2.)
On August 26, 2016, this court issued a Ruling finding Fowler's original complaint deficient and granting her an additional fifteen (15) days within which to file an amended pleading (ECF No. 28.) Thereafter, Fowler timely filed her amended complaint naming Mark R. McDougal, Don R. Schow, Brent Wamsley, Douglas C. McDougal and Mark R. McDougal & Associates as Defendants (Defendants) and asserting civil rights violations totaling $2,976,515.00 in damages (ECF No. 30.) In response, Defendants filed individual motions to dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted (ECF Nos. 31, 32, 34, 35, 36.)
Also pending is Plaintiff's renewed motion to appoint counsel (ECF No. 38) and her motion to "Request To Respond To Defendant's Answers To Amended Civil Rights Complaint" (ECF No. 37.)
As addressed in its previous Order, the IFP Statute requires the court to screen Plaintiff's complaint to determine if it should be dismissed. 28 U.S.C. § 1915(e)(2)(B). Section 1915(e) provides that a court shall "dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). The court applies "the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that [it] employ[s] for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim." Kay v. Bemis, 500 F.33d 1214, 1217 (10th Cir. 2007) (citing Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Pursuant to Federal Rule 12(b)(6), a complaint should not be dismissed for failure to state a claim unless it "appears beyond a doubt that a plaintiff cannot prove any set of facts entitling [plaintiff] to relief." Gonzales v. City of Castle Rock, 366 F.3d 1093, 1096 (10th Cir. 2004), rev'd on other grounds, 545 U.S. 748 (2005); see also Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002).
When considering a motion for dismissal a court should "assume the factual allegations are true and ask whether it is plausible that the Plaintiff is entitled to relief." Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (citation omitted). A claim must be dismissed if the complaint does not contain enough facts to make the claim "plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that thedefendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). A court may only consider the facts actually alleged and should disregard conclusory allegations made without supporting factual averments. Moya v. Schollenbarger, 465 F.3d 444, 455-57 (10th Cir. 2006); Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319, 1321 (10th Cir. 1977) (); Twombly, 550 U.S. at 555 (2007) (). At a minimum, the complaint is required to "give the defendant fair notice of what the claim is . . . and the grounds upon which it rests." Id. (quotations and citation omitted) (alteration in original) (emphasis added).
Fowler proceeds pro se. As a pro se litigant, the court must construe her pleadings liberally and hold them "to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L.Ed. 2d 1081 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). Even under a less stringent standard, the court may not "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Fowler's amended complaint provides additional details that were not set forth in her original pleading. However, despite the inclusion of this added information, Plaintiff's amended pleading fails to comport with federal rules or to state a claim upon which relief may be granted. Accordingly, for the reasons set forth herein, the court recommends dismissal of Plaintiff's action.
Plaintiff's Amended Complaint Fails To Comply With Federal Rule Of Civil Procedure 8.
Rule 8 of the Federal Rules of Civil Procedure 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.") Rule 8's requirements are designed to guarantee that "defendants enjoy fair notice of what the claims against them are and the grounds upon which they rest." TV Commc'ns Network, Inc. v. ESPN, Inc., 767 F. Supp 1062, 1069 (D. Colo. 1991); see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) ().
Although Fowler's amended complaint provides information not set forth in her earlier pleading, the added detail lacks further clarity. Plaintiff's narrative style recitation of "facts" and "claims" makes it nearly impossible to determine the context in which any of the alleged events occurred. Further, it is unclear against whom Plaintiff makes her allegations as her causes of action reference named Defendants along with other individuals and entities not named as parties.
Overall, the court is unable to discern what specific actions are attributable to which of the named Defendants, or how and in what context those actions amount to a violation of Fowler's constitutional rights. The pleading fails to provide the Defendants with fair notice of the claims and the grounds upon which they rest. Based upon Plaintiff's failure to comply withfederal rule 8, the court recommends dismissal of her amended complaint.
Notwithstanding the above mentioned violations of rule 8, the court also recommends dismissal of Fowler's complaint for failure to state a claim under 42 USC § 1983, § 1985 and § 1986.
42 U.S.C. § 1983
To assert a cause of action under Section 1983, a plaintiff must plead "both the existence of a federally-protected right and 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); West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, L. Ed. 2d 40 (1988). In addition, a § 1983 plaintiff must establish "an affirmative link between a defendant's conduct and a constitutional violation, and that affirmative link 'must be alleged in the complaint as well as proven at trial.'" Auvaa v. City of Taylorsville, 506 F. Supp. 2d 903, 909-10 (D. Utah 2007) (citing Stidham v. Peace Officer Standards And Training, 265 F.3d 1144, 1157 (10th Cir. 2001).
Private conduct,"'no matter how discriminatory or wrongful' may not be redressed by a § 1983 claim." Espinoza v. Walgreen Co., 2009 U.S. Dist. LEXIS 79178 *4 (D. Aug. 25, 2009) (citing American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S. Ct. 977, 143 L.Ed. 2d 130 (1999). An exception to the rule may exist if a private party acts as a willful participant in a conspiracy or a "joint activity with the State or its agents" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995); see also Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1997) (internal quotation marks and brackets omitted); Tower v. Glover, 467 U.S. 914, 920 (1984) ().
Fowler's amended complaint fails to state a violation of 42 U.S.C. § 1983. Fowler neither alleges that any of the named Defendants were acting under color of law nor provides an affirmative link between Defendants and a violation of her constitutional rights.1 Moreover, to the extent Fowler attempts to claim some type of collusion between the Defendants and unnamed jurists or tribunals, she her fails to provide allegations of an agreement or concerted action between these groups.2 While claims of a conspiracy may form the basis of a § 1983 claim, a Plaintiff must set forth Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 533 (10th Cir. 1998) (quotations and citation omitted).
Additionally, as a law firm and private actor, Defendant Mark R. McDougal & Associates cannot not be held liable under § 1983 solely for the acts of its agent attorneys. See Auvaa 506 F. Supp. 2d at 909 (citing Monell v. Dep't. of Social Services of New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L.Ed. 2d...
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