Opinion
Civil Action 22-cv-00773-WJM-SKC
07-31-2023
EMILY COHEN, Plaintiff, v. ANDREW HARTMAN, in his official capacity, and ANNE KELLY, in her official capacity, Defendants.
RECOMMENDATION ON DEFENDANT KELLY'S MOTION TO DISMISS [#23], DEFENDANT HARTMAN'S MOTION TO DISMISS [#26], DEFENDANT HARTMAN'S MOTION FOR LEAVE TO SUPPLEMENT [#42], AND DEFENDANT HARTMAN'S SUPPLEMENTAL MOTION [#44]
S. KATO CREWS, UNITED STATES MAGISTRATE JUDGE
This case is one of several filed in this Court by Plaintiff Emily Cohen, who proceeds here pro se. Her allegations in this case, however, are muddied. While the Court understands that she is making claims that Defendant Andrew Hartman and Defendant Anne Kelly violated the Americans with Disabilities Act, Dkt. 1, pp.2-3, her Complaint is not a model of clarity. See generally Dkt. 1. The Complaint does not provide “a short and plain statement.” See Fed.R.Civ.P. 8(a).
The Court uses “Dkt. ” to refer to docket entries in CM/ECF.
This Recommendation addresses the following:
(i) Defendant Anne Kelly's Motion to Dismiss (Kelly MTD), Dkt. 23, along with Plaintiff's Response in Opposition to Kelly MTD, Dkt. 24, and Defendant Kelly's Reply in Support of Kelly MTD, Dkt. 29;
(ii) Defendant Hartman's Twentieth Judicial District's Motion to Dismiss or in the Alternative for a More Definite Statement (Hartman MTD), Dkt. 26, along with Plaintiff's Response in Opposition to Hartman MTD, Dkt. 28, and Defendant Hartman's Reply in Support of Hartman MTD, Dkt. 31;
(iii) Defendant Hartman's Motion for Leave to Supplement Motion to Dismiss (Leave Motion), Dkt. 42, along with Plaintiff's Response in Opposition to Leave Motion, Dkt. 43, and Defendant Hartman's Reply in Support of Leave Motion, Dkt. 47; and
(iv) Defendant Hartman's Twentieth Judicial District's Supplemental Motion to Dismiss Pursuant to Rule 12(b)(6) (Supplemental MTD), Dkt. 44, along with Plaintiff's Response in Opposition to Supplemental Motion, Dkt. 46, and Defendant Hartman's Reply in Support of Supplemental MTD, Dkt. 48.
Senior District Judge William J. Martinez referred each of the motions to the Magistrate Judge for a recommendation. See Dkts. 41, 45.
The parties should review Judge Martinez's Practice Standards. Although the Kelly MTD and Hartman MTD were filed prior to Judge Martinez's assignment to this case, the parties remain bound by his practice standards. The Court notes, for example, that although the Hartman MTD exceeds the page limits for a motion to dismiss, see WJM Revised Practice Standards §III.C.1, in the interest of judicial efficiency, and because this Court recommends that Plaintiff be required to file an amended complaint, the Court does not recommend that the Hartman MTD be stricken for exceeding Judge Martinez's page limitations. But this Court may not be so forgiving in the future should the parties fail to follow the practice standards of the assigned judicial officers.
The Court carefully reviewed the Motions and associated briefing, the Complaint, and applicable law. No hearing is necessary. For the reasons set forth below, and despite Plaintiff's muddled allegations, the Court RECOMMENDS that (i) the Hartman MTD be GRANTED IN PART and DENIED IN PART, (ii) the Kelly MTD be DENIED, (iii) the Leave Motion be DENIED, and (iv) the Supplemental MTD be DENIED. The Court FURTHER RECOMMENDS that Plaintiff be ORDERED to file an amended complaint, consistent with Rule 8, within thirty (30) days of the District Court's ruling on this Recommendation, if adopted.
FACTUAL BACKGROUND
Suffice it to say, the Complaint is the beginning of one of many lawsuits involving the Plaintiff and her disputes, generally, with various Colorado government actors. Plaintiff was an attorney who was disbarred January 11, 2016, by the Colorado Supreme Court. See People v. Cohen, 369 P.3d 289 (Colo. O.P.D.J. 2016).
The Court takes judicial notice of the other lawsuits and documents filed in those cases. See Armstrong v. JPMorgan Chase Bank Nat'l Ass'n, 633 Fed.Appx. 909, 911 (10th Cir. 2015) (citation omitted) (“A court may consider facts subject to judicial notice-including facts that are a matter of public record, such as documents filed in other litigation-without converting a motion to dismiss into a motion for summary judgment.”).
The disbarment proceedings stemmed from her criminal conviction for theft. See People v. Cohen, 440 P.3d 1256, 1259 (Colo.App. 2019) (appellate court providing history of criminal proceeding that began in 2014). The Colorado Court of Appeals, however, reversed her conviction and remanded for a new trial. Id. at 1265. The Colorado district court apparently then proceeded to prepare to hold a new trial.
The matter now before this Court appears to arise from these later criminal proceedings, but that fact is unclear. During this time, Plaintiff has also filed two other civil actions in this District that appear to relate to her state criminal and/or her professional disciplinary cases. See Cohen v. Colorado, 21-cv-01782-LTB-GPG; Cohen v. Roth Law LLC, 21-cv-01568-RMR-SBP.
STANDARD OF REVIEW
Pro Se Litigants
Plaintiff proceeds pro se; thus, the Court liberally construes her pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the Court does not act as her advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Although Plaintiff has a legal education and was formerly licensed to practice law, the Court nevertheless reviews her pleadings under the standard appropriate to pro se litigants and liberally construes them. Plaintiff is no longer a licensed attorney, and despite her prior licensure, her pleadings are not a model of clarity, as the Court has mentioned.
Rule 12(e)
Under Federal Rule of Civil Procedure 12(e), “[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). The party moving for a more definite statement “must point out the defects complained of and the details desired.” Id.
Motions under this rule are proper “only in cases where the movant cannot reasonably be required to frame an answer or other responsive pleading to the pleading in question.” Fed.R.Civ.P. 12(e) advisory committee's note (1946 amend.). Requiring a more definite statement is also appropriate when addressing unintelligible or confusing pleadings. May v. Rottinghaus Co., Inc., 394 F.Supp.3d 1334, 1338 (D. Kan. 2019). However, a motion for a more definite statement should not be granted merely because the pleading lacks detail; rather, “the standard to be applied is whether the claims alleged are sufficiently specific to enable a responsive pleading in the form of a denial or admission.” Emp'rs Mut. Cas. Co. v. DowneyExcavation, Inc., 10-cv-02043-MSK-KMT, 2011 WL 1335839, at *1 (D. Colo. Apr. 7, 2011) (quoting Advantage Homebuilding, LLC v. Assurance Co. of Am., 03-2426-KHV, 2004 WL 433914, at *1 (D. Kan. Mar. 5, 2004)). The decision whether to grant or deny a motion under Rule 12(e), however, is within the sound discretion of the court. Graham v. Prudential Home Mortg. Co., Inc., 186 F.R.D. 651, 653 (D. Kan. 1999). And ultimately, courts have authority to order a more definite statement sua sponte. Fleites v. MindGeek SAR.L., 617 F.Supp.3d 1146, 1167 (C.D. Cal. 2022) (citing Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014) (“[N]othing should stop District Courts from demanding, on their own initiative, that the parties replead the case.”)); see also Pinson v. U.S. Dept. of Justice, 975 F.Supp.2d 20, 27-28 (D.D.C. 2013).
ANALYSIS
While the Court can perceive certain themes from the Complaint, the Court cannot understand the Complaint's allegations and the story of liability they attempt to tell. Moreover, discerning the factual allegations from the Complaint is difficult. The Complaint is 49 pages of largely single-spaced text; it contains 349 numbered paragraphs containing purported “factual allegations,” but many of which instead contain legal argument and legal authority. See Dkt. 1. And many of the “factual allegations” are conclusory, inappropriate for a complaint, or are legal argument better suited to motions. See, e.g., id. at ¶¶64-70, 72-74 (these paragraphs are merely a sampling of inappropriate “factual allegations”).
Plaintiff does make factual allegations in the Complaint that the Court must take as true for purposes of deciding the Motions. For example, she alleges her “first neurological diagnosis as a child was a migraine disorder. She experienced painful headaches, dizziness, and extreme sensitivity to light. She was unable to attend school regularly.” Id. at ¶207. “While in high school, she was also treated for depression, anxiety, and an auditory processing disorder. Her medical records show that she was often unable to sleep or to concentrate when awake.” Id. at ¶208. “She developed anxiety attacks and a panic disorder during law school, and after graduation her medical records show a ‘rule out' diagnosis of bipolar disorder from several physicians. Notes from her doctors indicate that she was having difficulty breathing throughout the day due to bouts of severe panic.” Id. at ¶209. In approximately 2014, Plaintiff was examined by Dr. David Stevens, who was retained by the Colorado Office of Attorney Regulation Counsel. Id. at ¶222. Plaintiff avers that Dr. Stevens's report stated that she “live[d] with major, permanent neurocognitive deficits which substantially limit her day-to-day life activities . . .,” id. at 220, and that she “‘suffer[ed] from a medical disability that prevents her from practicing law' without reasonable accommodations,” id. at 223 (emphasis removed). At some time after 2014, “records show that [Plaintiff's] physical and mental states deteriorated .... Records from that time show that she suffered blackouts, hallucinations, and was unable to eat or sleep for weeks at a time, many times.” Id. at ¶215. Despite these averments of her claimed disabilities, these factual allegations are lost in the 49-page Complaint and are drowned out by the plethora of legal argument and other conclusory statements throughout. In addition, these allegations of disability start when she was a child, but it is unclear for which of these disabilities Plaintiff claims she should have received accommodations under the ADA.
Similarly, Plaintiff makes numerous averments (but without any temporal context) concerning Defendants' alleged statements. For example, “Defendant Hartman sa[id] that disability is ‘irrelevant and embarrassing.'” Id. at ¶201. “Defendants say they don't think her disability is ‘real.' Defendant Hartman ruled from the bench that ‘depression isn't real' ....” Id. at ¶227. But her criminal case apparently began as early as 2014. Without understanding when such statements were allegedly made, the Court cannot reasonably evaluate Plaintiff's Complaint.
Similarly, Plaintiff makes allegations that attempt to tie Defendants' actions to her claimed damages, but her allegations are too general or conclusory. For example, “Defendants have caused her [damages] by denying her access to the courts and retaliating against her, including holding her in solitary confinement without medications for five weeks in November and December 2021 ....” Id. at ¶114.
“Defendants in this case acted knowingly and with intent to discriminate against [Plaintiff] on the basis of her disability.” Id. at 139.
The Court understands Plaintiff drafted the Complaint without legal representation, but the Complaint is a confusing stream-of-conscious that spans almost ten years of a state criminal proceeding. Despite this Court's obligation to construe the Complaint liberally, for the reasons stated, the Court will not wade through the morass of this particular Complaint to try to discern what factual allegations plausibly give rise to Plaintiff's alleged claims. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (the 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 the plaintiff believes the defendant violated.”).
Moreover, each of the Defendants recognizes the Rule 8 failings of the Complaint. See Dkt. 26, pp.22-23 (moving in the alternative for a more definite statement); Dkt. 23, pp.15-16 (Complaint violates Rule 8). Indeed, Defendant
Hartman's reply briefs to his Leave Motion and Supplemental MTD further confirm the Rule 8 failings of the Complaint. The Complaint states that he is being sued in his official capacity. Dkt. 1, p.1. Yet, in his reply briefs in support of the Leave Motion and the Supplemental MTD, Defendant Hartman argues that Plaintiff, in her response briefs to those motions, makes clear for the first time that she is suing Defendant Hartman in his individual capacity, which he states was unclear from the Complaint. Dkt. 47, pp.2-4; Dkt. 48, pp.2-4. Thus, he filed the Leave Motion and the Supplemental MTD to address his misperception of the Complaint that resulted from Plaintiff's poor drafting. Here, the Court will exercise its discretion and require a more definite statement of the factual allegations directed against each specific defendant. Cf. Veltmann v. Walpole Pharmacy, Inc., 928 F.Supp. 1161, 1163-64 (M.D. Fla. 1996) (motion for more definite statement appropriate where complaint made only general allegations against all named defendants); Gleichauf v. Ginsberg, 859 F.Supp. 229, 233 (S.D.W.Va. 1994) (more definite statement required where complaint against state officials failed to identify specific acts allegedly undertaken by particular defendants). Plaintiff should draft her amended complaint without any legal argument. She should make allegations of fact (not conclusory statements). And she should make sure that Defendants and the Court know “what each defendant did to [her]; when the defendant did it; how the defendant's action harmed [her], and, what specific legal right the plaintiff believes the defendant violated.” See Nasious, 492 F.3d at 1163.
Defendant Hartman also moves in the Hartman MTD for dismissal based upon Rule 12(b)(1) resulting from Eleventh Amendment immunity and Rule 12(b)(6). As Defendant Hartman points out, however, determining Eleventh Amendment immunity for ADA claims requires the Court to analyze whether Plaintiff has stated an ADA claim (i.e., whether the Complaint survives a Rule 12(b)(6) motion). See Dkt. 26, pp.11-12, 21. But the Complaint is not drafted with sufficient clarity for the Court to undertake such an endeavor. Defendant Kelly similarly moves for dismissal based upon Rule 12(b)(1) resulting from Eleventh Amendment immunity and Rule 12(b)(6). She also moved for dismissal based upon Rule 12(b)(1) stemming from application of the Rooker-Feldman doctrine. See Dkt. 23, pp.6-9. The Rooker-Feldman doctrine is inapplicable at this juncture of the litigation, however, because the underlying state court action is not yet final. See Guttman v. Khalsa, 446 F.3d 1027, 1030 (10th Cir. 2006) (Rooker-Feldman doctrine inapplicable when state court proceedings are not final).
If Plaintiff continues pro se, the Court strongly encourages her to avail herself of the available pro se resources, such as the Federal Pro Se Clinic.
The Court notes that each of Defendants' factual backgrounds provided in their motions, while more helpful than the Complaint, still left the Court searching for an understanding of what has occurred. Indeed, it was Plaintiff's opening brief prepared by counsel in her current state court criminal appeal that made clear Plaintiff's position that, at the November 2, 2021, hearing at which the state district court issued a bench warrant for Plaintiff's failure to appear, Plaintiff had indeed participated in the hearing for approximately one hour by WebEx, in contravention of the court's apparent order to appear in person. Dkt. 43, Ex. 1 at p.37. Defendants' briefing, however, obfuscates the fact that Plaintiff attended that hearing and made arguments at the hearing, just not in person as previously ordered. The obfuscation is troubling and raises concerns over Defendants' candor to this Court. See, e.g., CO ST RPC Rule 3.3; D.C.COLO.LAttyR 2(a).
* * *
For the reasons shared above, the Court RECOMMENDS that (i) the Hartman MTD be GRANTED IN PART and DENIED IN PART, (ii) the Kelly MTD be DENIED, (iii) the Leave Motion be DENIED, and (iv) the Supplemental MTD be DENIED. The Court FURTHER RECOMMENDS that Plaintiff be ORDERED to file an amended complaint, consistent with Rule 8, within thirty (30) days of the District Court's ruling on this Recommendation, if adopted.
Be advised the parties have 14 days after service of this recommendation to serve and file any written objections to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within 14 days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).