Dicino v. Mink et al
Filing
12
ORDER Directing Plaintiff to File Second and Final Amended Complaint, by Magistrate Judge Boyd N. Boland on 7/19/2012. (skssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01274-BNB
MICHAEL DICINO,
Plaintiff,
v.
TED MINK, Sheriff, in his official capacity,
SEAN RENFRO, Administrative Sergeant, in his individual and official capacity,
ALEXANDRA GARCIA, LPN, in her individual and official capacity, and
PARKS, Deputy, whose first name is unknown, in his official capacity,
WEBB, Sergeant, whose first name is unknown, in his official and individual capacity,
and
JOHN DOE #1, Deputy, whose true name is unknown, in his official capacity,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE
SECOND AND FINAL AMENDED COMPLAINT
Plaintiff, Michael Dicino, is a pretrial detainee who was confined in the Jefferson
County Jail in Golden, Colorado, when he initiated the instant action pro se against
defendants at the Jefferson County Jail. Mr. Dicino’s Prisoner Complaint is brought
under 42 U.S.C. § 1983 and is fifty-six pages long, including numerous attachments.
He asked for money damages and declaratory and injunctive relief. Mr. Dicino
subsequently informed the Court that he is incarcerated at the Arapahoe County Jail in
Centennial, Colorado.
On June 14, 2012, the Court ordered Mr. Dicino to file an amended complaint
that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure and with this Court’s Local Rules 10.1 E. and G. concerning legibility of filed
papers. On July 9, 2012, Mr. Dicino filed an amended complaint.
The Court must construe Mr. Dicino’s amended complaint 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. Dicino will be directed to file a second and final amended complaint.
Like his original complaint, Mr. Dicino’s amended complaint generally fails to
provide a short and plain statement of his claims in compliance with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. The amended
complaint is verbose, unnecessarily repetitive, and fails to demonstrate clearly and
succinctly the personal participation of each named defendant in the alleged
constitutional violations. Mr. Dicino’s first claim concerning a rash on his body is
unnecessarily wordy; his second claim resorts to a vague recitation of the conditions of
confinement in administrative segregation with which he disagrees; and his third claim
complaining he was not allowed to see his attorney fails to allege any injury. The United
States Constitution requires that a party seeking to invoke the jurisdiction of the federal
courts must demonstrate that he has suffered some actual or threatened injury, that the
injury was caused by the defendants, and that a favorable judicial decision is likely to
redress the injury. Valley Forge Christian College v. Americans United for Separation of
Church & State, Inc., 454 U.S. 464, 472 (1982); Hackford v. Babbitt, 14 F.3d 1457, 1464
(10th Cir. 1994).
The Court informed Mr. Dicino in the June 14 order for an amended complaint
that the twin purposes of a complaint are to give the opposing parties fair notice of the
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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.
Generally, Mr. Dicino’s amended complaint fails to 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). 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.
Mr. Dicino’s must 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. Mr. Dicino must allege, simply and concisely, his specific
claims for relief, including the specific rights that allegedly have been violated and the
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specific acts of each defendant that allegedly violated his rights. A long, chronological
recitation of facts is not necessary. Nor should the Court or defendants be required to
sift through Mr. Dicino’s verbose allegations to locate the heart of each claim. 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).
In the second and final amended complaint he will be directed to file, Mr. Dicino
must clearly 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. Dicino 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. Dicino 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.
Dicino uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
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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 finds
that the amended complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr.
Dicino will be given an opportunity to cure the deficiencies in his amended complaint by
submitting a second and final amended complaint that states his claims clearly and
concisely in compliance with Fed. R. Civ. P. 8, and alleges specific facts that
demonstrate how each named defendant personally participated in the asserted
constitutional violations.
Accordingly, it is
ORDERED that Plaintiff, Michael Dicino, within thirty (30) days from the date
of this order, file a second and final amended complaint that complies with this order.
It is
FURTHER ORDERED that the second and final amended complaint shall be
titled “Second and Final 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 Mr. Dicino 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. Dicino fails to file a second and final amended
complaint that complies with this order within the time allowed, the amended complaint
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and the action will be dismissed without further notice.
DATED July 19, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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