Dunlap v. Zavaras, et al

Filing 223

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 11/18/13. (nmmsl, ) Modified on 11/18/2013 to disregard this entry- this entry filed in incorrect case. (nmmsl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02899-BNB
DAWANE ARTHUR MALLETT,
Plaintiff,
v.
LT. GARNER, Co.,
T. GARDINER, Correctional Officer,
JOSEPH WADAS, Correctional Officer,
ALLEN GREGORY ARAGON, Correctional Officer,
BLAKE RANDY DAVIS, Complex Warden,
MIKE MCALISTER, SIS Tech.,
PATRICIA RANGEL, Unit Manager, and
DAVID B. BERKEBILE, Complex Warden,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Dawane Arthur Mallett, is a prisoner in the custody of the Federal
Bureau of Prisons (“BOP”) at the United States Penitentiary, Administrative Maximum,
at Florence, Colorado. Mr. Mallett has filed pro se a Prisoner Complaint (ECF No. 1)
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), claiming his rights under the United States Constitution have been
violated. As relief he seeks damages and the return of stolen documents.
The court must construe the Prisoner Complaint liberally because Mr. Mallett is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

The court has reviewed the Prisoner Complaint and finds that the Prisoner
Complaint does not comply with the pleading requirements of Rule 8 of the Federal
Rules of Civil Procedure. The twin purposes of a complaint are to give the opposing
parties fair notice of the basis for the claims against them so that they may respond and
to allow the court to conclude that the allegations, if proven, show that the plaintiff is
entitled to relief. See Monument Builders of Greater Kansas City, Inc. v. American
Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). The requirements of
Fed. R. Civ. P. 8 are designed to meet these purposes. See TV Communications
Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d
1022 (10th Cir. 1992). Specifically, Rule 8(a) provides that a complaint “must contain (1)
a short and plain statement of the grounds for the court’s jurisdiction, . . . (2) a short and
plain statement of the claim showing that the pleader is entitled to relief; and (3) a
demand for the relief sought.” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1),
which provides that “[e]ach allegation must be simple, concise, and direct.” Taken
together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity
by the federal pleading rules. Prolix, vague, or unintelligible pleadings violate Rule 8.
Mr. Mallett asserts three claims for relief in the Prisoner Complaint. However, he
fails to provide a short and plain statement of each claim showing he is entitled to relief
because he fails to allege clearly and concisely what each Defendant did that allegedly
violated his rights and he fails to identify the specific facts that support each asserted
claim.
For example, Mr. Mallett’s first claim is an Eighth Amendment claim against Allen
Gregory Aragon and Joseph Wadas. Mr. Mallett alleges in support of his first claim that
2

he was denied meals from January 23-27, 2012, apparently by Officer Wadas, and for
more than twenty consecutive days by Officer Wadas and Officer Aragon. Mr. Mallett
does not specify when he was denied meals for twenty consecutive days, however.
Mr. Mallett’s second claim is a First Amendment and retaliation claim against
Officer Wadas and David B. Berkebile. Mr. Mallett alleges in support of his second
claim that on March 26, 2013, legal documents he had given to another inmate to hold
were confiscated from the other inmate. Mr. Mallett specifically alleges that Defendant
Berkebile gave the order to confiscate the legal documents, but he does not allege how
Officer Wadas personally participated in the confiscation of his legal documents. Mr.
Mallett also fails to allege specific facts that demonstrate his First Amendment rights
were violated. To the extent Mr. Mallett may be asserting a First Amendment access to
the courts claim, he fails to allege specific facts that demonstrate he suffered an actual
injury in his ability to pursue a nonfrivolous legal claim. See Lewis v. Casey, 518 U.S.
343, 349-55 (1996). Mr. Mallett also fails to allege specific facts to support an arguable
retaliation claim with respect to the confiscation of his legal documents. See Gee v.
Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (discussing elements of a constitutional
retaliation claim).
Mr. Mallett’s third claim is an Eighth Amendment claim against Blake Randy
Davis, Mike McAlister, Patricia Rangel, Lt. Garner, and Officer T. Gardiner. Mr. Mallett
alleges in support of his third claim that Blake Randy Davis had an assistant reject or
destroy Mr. Mallett’s administrative complaints; that Mike McAlister opened outgoing
legal mail and removed complaints Mr. Mallett attempted to send to unspecified
government agencies; that Patricia Rangel failed to notify appropriate officials of
3

ongoing misconduct even though Mr. Mallett advised her in more than one hundred
letters of the abuse he has suffered; that Officer Gardiner spit in Mr. Mallett’s food and
deprived him of food more than ten days in January and February, 2013; and that Lt.
Garner “is working in the special housing unit and he is attempting to create a paper trial
of the conduct of staff and collecting declarations for staff and he is instructing the
correctional officers as to how to commit assaults and not get caught and incouraging
[sic] us to kill ourself! [sic].” (ECF No. 1 at 7.) With the possible exception of the
allegations against Officer Gardiner, these allegations are not sufficient to support an
Eighth Amendment claim against any Defendant because Mr. Mallett fails to allege
specific facts that demonstrate these Defendants acted with deliberate indifference to
his health or safety. See Farmer v. Brennan, 511 U.S. 825, 832-34 (1994). To the
extent Mr. Mallett may intend to assert a claim or claims against these Defendants that
is not an Eighth Amendment claim, he fails to identify the specific legal right he
contends has been violated.
For these reasons, Mr. Mallett will be directed to file an amended complaint that
clarifies the claims he is asserting in this action. Mr. Mallett must identify, clearly and
concisely, the specific claims he is asserting, the specific facts that support each
asserted claim, against which Defendant or Defendants he is asserting each claim, and
what each Defendant did that allegedly violated his rights. See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (noting that, to state a
claim in federal court, “a 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”); see also Henry v.
4

Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (allegations of “personal participation in the
specific constitutional violation complained of [are] essential”). The general rule that pro
se pleadings must be construed liberally has limits and “the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005).
Finally, the court will address the “Motion to Strike Defendants” (ECF No. 5) filed
by Mr. Mallett on November 6, 2013. Mr. Mallett asks “that the court strike each
defendant from this suit that it deems not appropriate for this action and further request
that Plaintiff be permitted to proceed against the remaining defendants.” (ECF No. 5 at
1.) The “Motion to Strike Defendants” will be denied, and Mr. Mallett will be given an
opportunity to clarify his claims as discussed in this order. Mr. Mallett may omit from the
amended complaint he will be ordered to file any Defendant against whom he does not
wish to pursue a claim. Accordingly, it is
ORDERED that Mr. Mallett shall have thirty (30) days from the date of this
order to file an amended complaint that clarifies the claims he is asserting in this action
as discussed in this order. It is
FURTHER ORDERED that Mr. Mallett shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov.

5

DATED November 18, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

6