Graham v. Fisher et al
Filing
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ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 4/26/2012. (skssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00511-BNB
ALBERT M. GRAHAM,
Plaintiff,
v.
THOMAS C. FISHER, M.D., (in his personal and professional capacity),
CARMEN MEYER, M.D., (in his/her personal and professional capacity),
ANDREA WHITE, P.A., (in his/her personal and professional capacity),
MARYBETH KALAMEYER, P.A., (in his/her personal and professional capacity),
PAULA FRANTZ, M.D., (in his/her personal and professional capacity), and
PHYSICIANS HEALTH PARTNERS,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT
Plaintiff, Albert M. Graham, is a prisoner in the custody of the Colorado
Department of Corrections at the Four Mile Correctional Center in Cañon City,
Colorado. Mr. Graham initiated this action by filing pro se a civil rights complaint. On
March 26, 2012, Mr. Graham filed an amended complaint using the proper Prisoner
Complaint form. He asserts claims pursuant to 42 U.S.C. § 1983 alleging that his rights
under the United States Constitution have been violated.
The court must construe the Prisoner Complaint liberally because Mr. Graham 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. Graham will be ordered to file a second amended complaint if he wishes to
pursue his claims in this action.
The Court has reviewed the Prisoner Complaint and finds that the Prisoner
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. Graham asserts three claims for relief in which he alleges that he has been
denied proper medical treatment. However, Mr. Graham fails to provide a short and
plain statement of each of his claims showing that he is entitled to relief because he fails
to identify clearly which Defendant or Defendants he is asserting each of his claims
against and he fails to allege specific facts that demonstrate how each of the named
Defendants personally participated in the asserted claims. Mr. Graham does make a
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vague reference to Defendant Thomas C. Fisher in his first claim, but he makes no
allegations against any other Defendant in any of the claims. Furthermore, the vague
reference to Defendant Fisher does not provide a clear statement of the claim Mr.
Graham is asserting against him. Therefore, Mr. Graham will be ordered to file an
amended complaint that provides a short and plain statement of each claim he is
asserting if he wishes to pursue his claims in this action.
In order to state a claim in federal court Mr. Graham “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).
Section1983 “provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526
U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“[T]he purpose
of § 1983 is to deter state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to provide relief to victims if such
deterrence fails.”). Therefore, Mr. Graham should name as Defendants in his amended
complaint only those persons that he contends actually violated his federal
constitutional rights.
Because it appears that Mr. Graham may be naming a supervisory official as a
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Defendant, the Court also emphasizes that 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. Graham 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). With respect to
supervisory officials, a Defendant may not be held liable for the unconstitutional conduct
of his or her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). Furthermore,
when a plaintiff sues an official under Bivens or § 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 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, 556 U.S.
at 677). 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 Mr. Graham file, within thirty (30) days from the date of this
order, a second amended Prisoner Complaint that complies with the pleading
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requirements of Fed. R. Civ. P. 8(a) as discussed in this order. It is
FURTHER ORDERED that Mr. Graham 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. Graham fails to file a second amended
Prisoner Complaint that complies with this order within the time allowed, the action will
be dismissed without further notice.
DATED April 26, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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