Conyac v. Noonan et al

Filing 8

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Craig B. Shaffer on 1/19/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02730-BNB
EDWARD PETER CONYAC,
Plaintiff,
v.
DR. NOONAN, D.R.D.C. General Practitioner,
DEANNE ROMERO, D.R.D.C. Physician Asst.,
JESSICA ZAINES, D.R.D.C. Nurse Practitioner,
FRED HUDSON, D.R.D.C. Nurse,
JANE DOE #1, D.R.D.C. Nurse,
JANE DOE #2, D.R.D.C. Nurse, and
JANE DOE #3, D.R.D.C. Nurse,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Edward Peter Conyac, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Limon, Colorado. He filed pro se a civil rights complaint for money damages pursuant
to 42 U.S.C. § 1983. Mr. Conyac has been granted leave to proceed pursuant to 28
U.S.C. § 1915.
The Court must construe Mr. Conyac’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. Conyac will be directed to file an amended complaint.

Mr. Conyac alleges that on October 14, 2009, apparently while incarcerated at
the Denver Reception and Diagnostic Center, he experienced a heart attack that was
mistaken by medical personnel as heartburn. He further alleges that, by the time he
was transported to a hospital, his heart allegedly was damaged sixty-two percent. He
asserts that he now suffers from congestive heart failure, is on a defibrillator, and only
twenty-five percent of his heart is functioning. On the basis of these allegations, he
contends that defendants have been deliberately indifferent to his serious medical
needs.
In the amended complaint he will be directed to file, Mr. Conyac must assert the
personal participation by each named defendant in the alleged constitutional violation.
See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Conyac must show how each named individual 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 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). A supervisor is only liable for constitutional violations he or she
causes. See Dodds v. Richardson, 614 F.3d 1185, 1211 (10th Cir. 2010).
Mr. Conyac may use fictitious names, such as "John or Jane Doe," if he does not
know the real names of the individuals who allegedly violated his rights. However, if Mr.
Conyac uses fictitious names he must provide sufficient information about each
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defendant so that he or she can be identified for purposes of service.
The amended complaint Mr. Conyac will be directed to file must 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). 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.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s
sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir.
1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). The Court will
give Mr. Conyac an opportunity to cure the deficiencies in his complaint by submitting
an amended complaint that alleges the personal participation of each named defendant,
and meets the requirements of Fed. R. Civ. P. 8.
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Accordingly, it is
ORDERED that Plaintiff, Edward Peter Conyac, within thirty (30) days from the
date of this order, file an amended complaint that complies with this order. It is
FURTHER ORDERED that Mr. Conyac 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 the amended complaint shall be titled “Amended
Prisoner Complaint,” and shall be filed with the Clerk of the Court, United States District
Court for the District of Colorado, Alfred A. Arraj United States Courthouse, 901
Nineteenth Street, A105, Denver, Colorado 80294. It is
FURTHER ORDERED that, if Mr. Conyac fails to file an amended complaint that
complies with this order to the Court’s satisfaction within the time allowed, the Court will
dismiss the complaint and the action without further notice.
DATED at Denver, Colorado, this 19th day of January, 2012.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

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