Dicino v. Mink et al

Filing 8

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 6/14/2012. (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,
PATSY MUNDELL, Chief, in her official capacity,
KATHERINE FEROE, Hearings Officer, in her individual and official capacity,
SEAN RENFRO, Administrative Seargeant [sic], in his individual and official capacity,
SEARGEANT [sic] WEBB, in his individual and official capacity,
ALEXANDRA GARCIA, Nurse, in her individual and official capacity, and
DEPUTY PARKS, in his official capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Michael Dicino, is a pretrial detainee confined in the Jefferson County
Jail in Golden, Colorado. He has filed pro se a fifty-six-page Prisoner Complaint
pursuant to 42 U.S.C. § 1983, including numerous attachments, against defendants at
the Jefferson County Jail. He asks for money damages and declaratory and injunctive
relief. Mr. Dicino has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Dicino’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. Dicino will be directed to file an amended complaint.
Mr. Dicino’s 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). 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. Dicino’s complaint is verbose and the allegations in section “C. Nature of the
Case” are disjointed, rambling, and disorganized. In addition, his single-spaced
handwriting in all capital letters makes reading and understanding his allegations
difficult. 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.
Generally, Mr. Diciono 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
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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.
It is Mr. Dicino’s responsibility to present his claims in a manageable and
readable 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 specific acts of each defendant that allegedly violated his rights.
The Court does not require a long, chronological recitation of facts. Nor should the
Court or defendants be required to sift through Mr. Dicino’s verbose introduction to his
claims to determine which allegations go with which claims. 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 amended complaint he will be directed to file, Mr. Dicino 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. 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,
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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.
Lastly, the amended complaint Mr. Dicino will be directed to file, whether
handwritten or typed, shall be double-spaced and legible, in capital and lower-case
letters, in compliance with D.C.COLO.LCivR 10.1E. and G.
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 complaint does not meet the requirements of Fed. R. Civ. P. 8 and
D.C.COLO.LCivR 10.1. Mr. Dicino will be given an opportunity to cure the deficiencies
in his complaint by submitting a legible 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 an amended complaint that complies with this order. It is

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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 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 an amended complaint that
complies with this order within the time allowed, the complaint and the action will be
dismissed without further notice.
DATED June 14, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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