Fresquez v. Minks et al

Filing 14

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 1/6/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02712-BNB
LEROY DAMASIO FRESQUEZ,
Plaintiff,
v.
SHERIFF TED MINKS,
MICHAEL FISH, Detention Service Manager,
JOHN DOE (CAPTAIN), March 5, 2010,
LT. MARTINALLI,
LT. G. GITTIN,
LT. J. LUCAS,
ADMINISTRATIVE SGT. RENFRO,
SGT. TROY BETKA,
SGT. SCOTT HAPP,
SGT. STEVEN WYGANT,
OFFICER KATHRINE FEROE,
DEPUTY SHERIFF CRUMBAKER,
DEPUTY SHERIFF RYAN VIERS,
DEPUTY SHERIFF DUSTIN DYELING,
DEPUTY SHERIFF ANTHONY KOTRIS,
DEPUTY SHERIFF DONALD SPRINGFIELD,
DEPUTY SHERIFF HOLLEY,
DEPUTY SHERIFF JAMES GELEUDE,
DEPUTY SHERIFF JASON RICHARDSON,
DEPUTY SHERIFF REID PERRY,
DEPUTY SHERIFF WILLIAM BOHM,
DEPUTY SHERIFF ERIK BOUGHAM,
DEPUTY SHERIFF HERBERT LONGSHORE,
DEPUTY SHERIFF #1958 (Name Unknown),
COUNSELOR MIKE COLLINS,
COUNSELOR SUPERVISOR DEBRA ELUDO,
CHANTEL CORKLE, Atty,
DOUGLAS K. WILSON, Atty,
DENNIS HALL, Jefferson County Judge,
WRITER MOTT, Atty,
LAURA WASSMUTH, Atty,
CORRECTIONAL HEALTHCARE MANAGEMENT,
CLAUDIA VAN BUREN/HSA,
RAYMOND HERR, Responsible Physician,
TRACY HAINES, LPN, and
KATHERINE BECERRA, RN,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Leroy Damasio Fresquez, is in the custody of the Colorado Department
of Corrections and currently is incarcerated at the Centennial Correctional Facility in
Cañon City, Colorado. On November 16, 2011, the Court entered an order directing Mr.
Fresquez to file an Amended Complaint that stated how each named defendant
personally participated in violating his constitutional rights. Mr. Fresquez also was
instructed to state what each defendant did to him, when the defendant engaged in the
action, how the action harmed him, and what specific legal right he believes the
defendant violated. Mr. Fresquez filed an Amended Complaint on December 12, 2011.
The Amended Complaint is twenty-one pages long and is written in small lettering,
single-spaced. Mr. Fresquez names thirty-six defendants.
The Court must construe the Amended Complaint liberally because Mr. Fresquez
is a pro se litigant. 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 act as a pro se
litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Fresquez
will be ordered to file a Second Amended Complaint.
The Court has reviewed the Amended Complaint filed by Mr. Fresquez and finds
that 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.

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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
"shall 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.
Mr. Fresquez fails to set forth a short and plain statement of his claims showing
that he is entitled to relief and has presented his claims in a narrative chronological
format that is repetitive rather than asserting the claims in a short and concise format.
Furthermore, although Mr. Fresquez specifically states what certain named defendants
did to violate his constitutional rights, for the most part his claims are conclusory and
vague and rely on supervisory responsibility. Therefore, Mr. Fresquez will be directed
to file a Second Amended Complaint that complies with the pleading requirements of
Rule 8. It is Mr. Fresquez’ responsibility to present his claims in a short and concise
format.
Mr. Fresquez must allege specific facts in his Second Amended Complaint that
demonstrate how each named defendant personally participated in the asserted
constitutional violations. 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. Fresquez must show that each defendant caused the
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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 may not be held liable
on a theory of respondeat superior merely because of his or her supervisory position.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703
F.2d 479, 483 (10th Cir. 1983).
To state a claim in federal court, the Second Amended “[C]omplaint must
explain what each defendant did to [the plaintiff] . . .; when the defendant did it; how
the defendant’s action harmed him . . . ; and, what specific legal right [he] believes the
defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10thCir. 2007) (emphasis added). Accordingly, it is
ORDERED that Mr. Fresquez file, within thirty days from the date of this
Order, a Second Amended Complaint that complies with the particulars of this
Order. It is
FURTHER ORDERED that Mr. Fresquez 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. It is
FURTHER ORDERED that if Mr. Fresquez fails to comply with this Order within
the time allowed the action will be dismissed without further notice.
DATED January 6, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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