Lash v. Casias et al
Filing
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ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 11/2/11. (lyg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02012-BNB
BILL LASH,
Plaintiff,
v.
JAMES CASIAS, Las Animas County Sheriff Department,
REYNALDO F. SANTISTEVAN, Las Animas County Sheriff Department,
DEREK NAVARETTE, Las Animas County Sheriff Department,
ERCOLE D’EROLE III, Las Animas County Sheriff Department, and
MANUAL NAVARETTE, Las Animas County Sheriff Department,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Bill Lash, has filed pro se a Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 and a Complaint for money damages in which he
complains he was falsely arrested and imprisoned and subjected to unreasonable and
excessive force. Mr. Lash was granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Lash’s filings liberally because he 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. For the reasons stated
below, Mr. Lash will be ordered to file an amended complaint if he wishes to pursue his
claims in this action.
The Court has reviewed the Complaint and finds that it is deficient because the
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. Lash fails to provide a short and plain statement of his claims showing that
he is entitled to relief or to make specific factual allegations in support of his claims.
The closest Mr. Lash comes to making specific factual allegations is his reference on
page 4 of the Complaint to the fact that the incident in question “occurred on September
3, 2009 at or about 9:30 am, on U.S. HWY 350, in unincorporated Las Animas County.”
See ECF No. 1 at 4.
For these reasons, Mr. Lash will be ordered to file an amended complaint on the
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Court-approved Complaint form that provides a short and plain statement of each claim
he is asserting if he wishes to pursue his claims in this action. Mr. Lash is advised that
in order to state a claim in federal court he “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.” Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). 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).
Personal participation is an essential allegation in a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Lash must show that each Defendant caused the deprivation of a
federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be an
affirmative link between the alleged constitutional violation and each Defendant’s
participation, control or direction, or failure to supervise. See Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993). A Defendant, such as James Casias, sheriff of
Las Animas County, may not be held liable for the unconstitutional conduct of his or her
subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 129 S. Ct.
1937, 1948 (2009). Furthermore,
when a plaintiff sues an official under . . . § 1983 for conduct
“arising from his or her superintendent responsibilities,” the
plaintiff must plausibly plead and eventually prove not only
that the official’s subordinates violated the Constitution, but
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that the official by virtue of his own conduct and state of
mind did so as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 129
S. Ct. at 1949). Therefore, in order to succeed in a § 1983 suit against a government
official for conduct that arises out of his or her supervisory responsibilities, a plaintiff
must allege and demonstrate that: “(1) the defendant promulgated, created,
implemented or possessed responsibility for the continued operation of a policy that (2)
caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Id. at 1199. Accordingly, it
is
ORDERED that Plaintiff, Bill Lash, file, within thirty (30) days from the date of
this order, an Amended Complaint that complies with the pleading requirements of
Fed. R. Civ. P. 8(a) as discussed in this order. It is
FURTHER ORDERED that Mr. Lash shall obtain and use the Court-approved
Complaint form, along with the applicable instructions, located at
www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Lash fails to file an Amended Complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
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DATED November 2, 2011, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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