Sherman v. Klenke et al

Filing 14

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 1/31/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03091-BNB
MATTHEW RYAN SHERMAN,
Plaintiff,
v.
N. P. KLENIKE,
MD CREANY,
HSA DOLORES MONTOYA,
WARDEN TEMMEE,
CHP (DOC Insurance Company, Medical),
MENTAL HEALTH DEPARTMENT,
DOC MAIL ROOM STAFF, and
ANY UNFORESEEN DEFENDANTS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Matthew Ryan Sherman, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Fremont
Correctional Facility in Cañon City, Colorado. Mr. Sherman filed pro se an amended
prisoner complaint pursuant to 42 U.S.C. § 1983. He asks for money damages and
injunctive relief. He has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Sherman’s filings liberally because he is
representing himself. 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 the
pro se litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Mr.
Sherman will be directed to file a second amended complaint.

Mr. Sherman asserts four claims. He alleges deliberate indifference to his
serious medical needs in violation of his Eighth Amendment rights based on his
disagreement with the medical treatment he received for a hernia (claim one). He
asserts the denial of due process of law by being denied surgery by the DOC’s
insurance company (claim two). He complains that after he informed mail room staff he
was suing the DOC because of his medical treatment, mail room staff excessively
screened his mail in violation of his free speech rights (claim three). Finally, he
complains that he was terminated from the Sex Offender Treatment program as a result
of the denial of medical care (claim four).
Mr. Sherman is suing an improper party. He may not sue the State of Colorado
or its entities, such as the mental health department of the Fremont Correctional
Facility. The State of Colorado and its entities are protected by Eleventh Amendment
immunity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Meade v.
Grubbs, 841 F.2d 1512, 1525-26 (10th Cir. 1988). "It is well established that absent an
unmistakable waiver by the state of its Eleventh Amendment immunity, or an
unmistakable abrogation of such immunity by Congress, the amendment provides
absolute immunity from suit in federal courts for states and their agencies." Ramirez v.
Oklahoma Dep't of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994), overrruled on
other grounds by Ellis v. University of Kansas Med. Ctr., 163 F.3d 1186 (10th Cir. 1998).
The State of Colorado has not waived its Eleventh Amendment immunity, see Griess v.
Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988), and congressional enactment of §
1983 did not abrogate Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S.
332, 340-345 (1979). The Eleventh Amendment applies to all suits against the state
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and its agencies, regardless of the relief sought. See Higganbotham v. Okla. Transp.
Comm'n, 328 F.3d 638, 644 (10th Cir. 2003).
In addition, the amended complaint Mr. Sherman filed is hard to read because it
is single-spaced and his handwriting is largely illegilble. Rule 10.1 of the Local Rules of
Practice for this Court requires that all papers filed in cases in this Court be
double-spaced and legible. See D.C.COLO.LCivR 10.1E. and G. The second
amended complaint Mr. Sherman is be directed to file, if handwritten, shall be
double-spaced and written legibly, in capital and lower-case letters.
Mr. Sherman’s amended complaint also 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).
Specifically, Rule 8(a) requires that a complaint "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
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rules. Prolix, vague, or unintelligible pleadings violate the requirements of Rule 8. In
order for Mr. Sherman to state a claim in federal court, his "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." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007).
Mr. Sherman fails to set forth a short and plain statement of his claims showing
that he is entitled to relief. The amended complaint is unnecessarily wordy, repetitive,
and vague. 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. Sherman will be directed to file
a second amended complaint that complies with the pleading requirements of Rule 8. It
is Mr. Sherman’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 second amended complaint must provide “a generalized
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).
In the second amended complaint, Mr. Sherman must assert personal
participation by each named defendant. See Bennett v. Passic, 545 F.2d 1260, 126263 (10th Cir. 1976). To establish personal participation, Mr. Sherman 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
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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).
Mr. Sherman 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. Sherman uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Mr. Sherman, therefore, will be directed to file a second amended complaint on
the Court-approved complaint form that sues the proper parties, 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, Matthew Ryan Sherman, 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. Sherman 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

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FURTHER ORDERED that, if Mr. Sherman fails to file a second amended
complaint that complies with this order within the time allowed, the Court will dismiss the
amended complaint and the action without further notice.
DATED January 31, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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