Lindsey v. John Doe

Filing 21

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 2/27/12. (lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02924-BNB
MAURICE E. LINDSEY,
Plaintiff,
v.
LIEUTENANT JOHN DOE,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Maurice E. Lindsey, is a prisoner in the custody of the United States
Bureau of Prisons who currently is incarcerated at the United States Penitentiary, High
Security, in Florence, Colorado. Mr. Lindsey initiated this action on November 9, 2011,
by filing pro se a Prisoner Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 288 (1971). On December 30,
2011, Mr. Lindsey filed an amended Bivens complaint (ECF No. 9).
The Court must construe the amended complaint liberally because Mr. Lindsey 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. Lindsey will be ordered to file a second amended complaint.
The Court has reviewed the amended complaint filed by Mr. Lindsey and finds
that it fails to 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.
The claims asserted in Mr. Lindsey’s amended complaint are vague. To state a
claim in federal court, Mr. Lindsey must explain in his amended complaint what each
defendant did to him, when the defendant did the action, how the 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 (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). The second amended complaint must provide "a generalized
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statement of the facts from which the defendant may form a responsive pleading." New
Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). For the
purposes of Rule 8(a), "[i]t is sufficient, and indeed all that is permissible, if the
complaint concisely states facts upon which relief can be granted upon any legally
sustainable basis." Id.
Therefore, Mr. Lindsey will be directed to file a second amended complaint that
complies with the pleading requirements of Rule 8. It is Mr. Lindsey’s responsibility to
present his claims in a manageable format that allows the Court and the defendants to
know what claims are being asserted and to be able to respond to those claims. The
Court will not consider any claims raised in separate amendments, supplements,
motions, or other documents not included in the second amended complaint.
In the second amended complaint, Mr. Lindsey must assert personal participation
by each named defendant. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.
1976). To establish personal participation, Mr. Lindsey must show how the named
defendants caused a deprivation of his federal rights. 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 that he or she causes. See Dodds v. Richardson, 614 F.3d
1185, 1211 (10th Cir. 2010).
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Mr. Lindsey 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.
Lindsey uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Mr. Lindsey, therefore, will be directed to file a second amended complaint on the
Court-approved complaint form that asserts his claims clearly and concisely, alleges
what rights were violated, and provides specific facts demonstrating how each named
defendant personally participated in the asserted constitutional violations.
Accordingly, it is
ORDERED that Plaintiff, Maurice E. Lindsey, file within thirty (30) days from
the date of this order a second amended complaint that complies with the directives of
this order. It is
FURTHER ORDERED that Mr. Lindsey shall obtain the Court-approved Prisoner
Complaint form (with the assistance of her 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. Lindsey fails to file a second amended
complaint that complies with this order to the Court’s satisfaction within the time
allowed, the Court will dismiss the amended complaint and the action without further
notice.

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DATED February 27, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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