McConnell v. Lebmann et al

Filing 11

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 09/04/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01720-BNB
FRANKIE L. MCCONNELL,
Plaintiff,
v.
ISABELLA LEBMANN, and
MARSHALL MILLER,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Frankie L. McConnell, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Denver Women’s
Correctional Facility. Ms. McConnell has filed pro se a Prisoner Complaint pursuant to
42 U.S.C. § 1983 for money damages and injunctive relief. Ms. McConnell has been
granted leave to proceed pursuant to 28 U.S.C. § 1915 without payment of an initial
partial filing fee.
The Court must construe Ms. McConnell’s filings liberally because she 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, Ms. McConnell will be ordered to file an amended complaint.
The complaint Ms. McConnell submitted to the Court on July 2, 2012, is deficient.
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 handwritten complaint Ms. McConnell filed is difficult to read because it is singlespaced. The amended complaint Ms. McConnell will be directed to file, if handwritten,
shall be double-spaced and written legibly, in capital and lower-case letters.

Ms. McConnell asserts three claims concerning her medical treatment resulting
from a 2009 injury, organized by each individual she is suing. The Court finds that the
asserted claims do 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 the
requirements of Rule 8.
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Ms. McConnell fails to provide a short and plain statement of her claims showing
that she is entitled to relief. In order to state a claim in federal court, she “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). Therefore, Ms. McConnell will be ordered
to file an amended complaint that provides a short and plain statement of the claims she
wishes to pursue in this action, and asserts what, if any, constitutional rights she
believes were violated.
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, Ms. McConnell 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). 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).
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Accordingly, it is
ORDERED that Plaintiff, Frankie L. McConnell, file, within thirty (30) days from
the date of this order, an amended Prisoner Complaint that complies with the pleading
requirements of Fed. R. Civ. P. 8(a) as discussed in this order. It is
FURTHER ORDERED that Ms. McConnell 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, for use in
submitting the amended complaint. It is
FURTHER ORDERED that, if Ms. McConnell fails to file an amended Prisoner
Complaint that complies with the directives of this order within the time allowed, the
complaint and the action will be dismissed without further notice.
DATED September 4, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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