Rudkin v. Allred et al

Filing 12

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Craig B. Shaffer on 08/10/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01471-BNB
MICHAEL RUDKIN,
Plaintiff,
v.
DAVID ALLRED,
GREEN,
LOPEZ,
ANTHONY OSAGIE,
C.A. WILSON, and
BUREAU OF PRISONS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Michael Rudkin, is a prisoner in the custody of the United States Bureau
of Prisons at the United States Penitentiary, Administrative Maximum, in Florence,
Colorado. Mr. Rudkin has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), claiming that his rights under the United States Constitution have been violated.
The court must construe the Prisoner Complaint liberally because Mr. Rudkin 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. Rudkin will be ordered to file an 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 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) 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 the
requirements of Rule 8.
Mr. Rudkin fails to provide a short and plain statement of his claims showing that
he is entitled to relief because the Prisoner Complaint consists primarily of conclusory
legal arguments without any supporting factual allegations. It is clear that Mr. Rudkin is
asserting two Eighth Amendment claims that relate to the medical treatment he has
received for his shoulders and ankle. It also is clear that Mr. Rudkin believes he needs
an MRI and other unspecified medical treatment and that the individual Defendants in
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general have denied an MRI and provided only pain medication. However, Mr. Rudkin
fails to allege in support of his Eighth Amendment claims specifically when each
Defendant acted or failed to act or what each Defendant did that allegedly violated his
rights. Mr. Rudkin cannot state an arguable claim for relief by alleging in conclusory
fashion that three of the individual Defendants have told him at unspecified times in the
last year that he does not need an MRI and that the other two individual Defendants
have told him at some unspecified time in the past, perhaps when Mr. Rudkin was
incarcerated at a different prison, that an MRI would be too expensive. It also is not
clear what claim, if any, Mr. Rudkin is asserting against the Bureau of Prisons.
Therefore, Mr. Rudkin will be ordered to file an amended complaint if he wishes
to pursue his claims in this action. In order to state a claim in federal court, Mr. Rudkin
“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). Legal argument is not necessary or appropriate. Instead, Mr.
Rudkin 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). “It 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. Furthermore, 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). Accordingly, it is
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ORDERED that Mr. Rudkin file, within thirty (30) days from the date of this
order, an amended Prisoner Complaint as directed in this order. It is
FURTHER ORDERED that Mr. Rudkin 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. Rudkin fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the action will be
dismissed without further notice.
DATED August 13, 2012, at Denver, Colorado.
BY THE COURT:

s/ Craig B. Shaffer
United States Magistrate Judge

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