United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
William P. Lynch, United States Magistrate Judge
Teddy Mitchell, proceeding pro se, filed an opposed motion to
amend the complaint (Doc. 33) and a memorandum purportedly
pursuant to Federal Rule of Civil Procedure 19 justifying the
joinder of Brad Davis as an additional pro se plaintiff (Doc.
34). Defendants filed a response on January 10, 2017 (Doc.
35), but Mitchell has filed neither a reply nor a notice of
briefing complete. See D.N.M.LR-Civ. 7.4(e)
(“Upon completion of briefing, the movant must file a
notice certifying that the motion is ready for decision and
identifying the motion and all related filings by date of
filing and docket number.”) Mitchell wants to amend his
complaint to include an additional pro se plaintiff, Davis,
who also signed the proposed amended complaint, and to add
additional facts. The Defendants oppose the motion because,
they contend, Mitchell would be representing Davis and thus
practicing law without a license, and because the motion
lacks good cause. Having reviewed the motion and the relevant
law, I grant in part and deny in part the motion to amend.
motion to amend is governed by Federal Rule of Civil
Procedure 15(a). After a responsive pleading has been
served, a party may amend his pleadings only by leave of
court or with written consent from the opposing party.
Fed.R.Civ.P. 15(a)(2). “The court should freely give
leave [to amend] when justice so requires.”
Id. A court may refuse to grant leave to amend when
the opposing party shows undue delay, undue prejudice, bad
faith or dilatory motive, failure to cure deficiencies by
previously granted amendments, or futility of amendment.
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th
Cir. 1993). “A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal.”
Jefferson Cty. Sch. Dist. No. R-1 v. Moody's
Inv'rs Servs., Inc., 175 F.3d 848, 859 (10th Cir.
Rule 8(a)(2) provides that a pleading must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief, ” the Supreme Court
clarified this standard in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Khalik v. United Air
Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). While the
Twombly/Iqbal standard does not require
significantly heightened fact-pleading in a complaint, the
standard is more than a minimal change from prior
jurisprudence and is instead a middle ground. Id. at
1191. Under this standard, to withstand a motion to dismiss,
a complaint must contain sufficient factual allegations,
accepted as true, “to state a claim for relief that is
plausible on its face.” Id. at 1190 (quoting
Twombly, 550 U.S. at 670). A court must first
identify those allegations in the complaint that are not
entitled to the assumption of truth. Id. Thus,
allegations which are legal conclusions, bare assertions,
conclusory statements or “‘a formulaic recitation
of the elements of a cause of action' will not
suffice.” Id. at 1191 (quoting
Twombly, 550 U.S. at 555). The court must then
determine “whether the remaining, factual allegations
plausibly suggest the defendant is liable.”
Id. In determining whether a complaint states a
plausible claim for relief, the court will consider the
nature and specificity of the allegations based on the claims
asserted in the case. Id.
Mitchell is a pro se litigant, I must construe his pleadings
liberally and hold them to a less stringent standard than is
required of a party represented by counsel. See Weinbaum
v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir.
2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991)). Liberal construction requires courts to
make some allowance for a pro se litigant's
“failure to cite proper legal authority, his confusion
of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading
requirements.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting
Hall, 935 F.2d at 1110) (alterations omitted).
However, “the court cannot take on the responsibility
of serving as the litigant's attorney in constructing
arguments and searching the record.” Id.
initial matter, I note that the Plaintiffs assert diversity
jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 33 at
12.) It is immaterial whether Defendant Jeffrey Hakes is a
citizen of New Mexico or of Indiana because the Plaintiffs
bring federal claims. Thus, I exercise federal question
jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiffs appear to assert criminal claims, including a
charge of federal tax evasion against Hakes. “[A]
private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another” and cannot
base a claim for which relief can be granted on criminal
statutes. Diamond v. Charles, 476 U.S. 54, 64 (1986)
(quotation omitted). No amount of factual amendment will
convert these claims from criminal charges into a civil cause
of action. To the extent that Plaintiffs attempt to assert
criminal claims in this case, the motion to amend is denied.
are three general categories of claims brought on behalf of
both Plaintiffs in the proposed amended complaint: federal
civil rights and employment claims, state employment claims,
and common law claims. (See generally Doc. 33.) I
address each in turn.
prove a claim for deprivation of rights under 42 U.S.C.
§ 1983, Mitchell and Davis must show prove that 1)
someone acting under color of law 2) deprived them of
“any rights, privileges, or immunities secured by the
Constitution and laws.” The proposed amended complaint
does not include an allegation of any action taken by any
person who could be construed as acting under color of law.
That is, no one purportedly acted with state authority.
Because the proposed amended complaint lacks this critical
element, it would not survive a motion to dismiss.
Accordingly, the motion to amend is denied as to this claim.
and Davis also attempt to bring a claim under 42 U.S.C.
§ 1981. Section 1981 prohibits “racial
discrimination [and] retaliation against those who oppose
it.” U. of Tex. S.W. Med. Ctr. v. Nassar, __
U.S. __, __, 133 S.Ct. 2517, 2529 (2013) (citing CBOCS
West, Inc. v. Humphries, 553 U.S. 442, 445 (2008)). To
establish a claim under § 1981, Plaintiffs must show
that they are 1) members of a racial minority; 2) that the
defendants intended to discriminate on the basis of race; and
3) that the discrimination concerned an activity enumerated
by the statute, such as the ability to make and enforce
contracts, enjoy the full and equal benefit of the laws, etc.
Shawl v. Dillard's Inc., 17 F. App'x 908,
910-11 (10th Cir. 2001) (unpublished); Mian v. Donaldson,
Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d
Cir. 1993). The Plaintiffs allege that they are both white
men (Doc. 33 at 18) and are thus not members of a racial
minority. Because the Plaintiffs do not allege the first
element of a § 1981 claim, their claim fails as a matter
of law. The motion to amend is thus denied as to this claim.
Mitchell and Davis purport to bring gender or sex based
discrimination claims under Title VII of the Civil Rights Act
of 1964. (See Doc. 33 at 15.) I construe this as a
claim brought under 42 U.S.C. § 2000e-5 for sex based
discrimination of the disparate treatment type in violation
of § 2000e-2 and discrimination for making charges of or
opposing purportedly unlawful employment practices in
violation of § 2000e-3.
claims pursuant to § 2000e-2, “[i]t is unlawful
for employers to deprive an individual of employment
opportunities based on his . . . sex.” Daniels v.
United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir.
2012). When, as is generally the case, a plaintiff
“cannot produce direct evidence of discrimination, . .
. the burden-shifting framework announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 . . .
(1972), applies.” Id. The plaintiff bears the
burden of establishing a prima facie case of discrimination
by showing 1) membership in a protected class, 2) an adverse
employment action, and 3) that the adverse employment action
took place under circumstances giving rise to an inference of
discrimination. Id. (citing EEOC v. PVNF,
LLC, 487 F.3d 790, 800 (10th Cir. 2007)). The burden
then shifts to the employer to assert a legitimate,
nondiscriminatory reason for its actions. Id. If
such a showing is made, the burden shifts back to the
plaintiff to produce evidence that the stated
nondiscriminatory reason is mere pretext for discriminatory
stage, however, the question is whether the proposed amended
complaint presents sufficient factual allegations to
establish a prima facie case of discrimination. Mitchell and
Davis, both men, allege that they were treated differently
than a similarly situated female employee. Mitchell alleges
that the female employee was held to a lower standard, was
given preferential treatment in her schedule, was not
required to follow the same licensing requirements, was given
preferential treatment in terms of “leads” and
travel reimbursement, and was given a more favorable
compensation package. (Doc. 33 at 14-18.) Davis alleges that
the female employee was not required to follow the same
licensing requirements, was given a more favorable
compensation package, was given preferential treatment in her
schedule, and was given preferential treatment in terms of
“leads” and travel reimbursement. (Id.
at 16-18.) The adverse employment action, allegedly, is that
Plaintiffs were not given the same opportunity to make as
much money as the female employee and that Mitchell was
either forced to quit or was fired.
Defendants do not address the merits of the amended complaint
in their response to the motion to amend, and thus have
offered no reason to conclude that this rather meager factual
predicate is insufficient to sustain the motion to amend as
to the Plaintiffs' claims ...