Alexander v. Executive Director of Colorado Dept. of Corrections et al

Filing 8

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Craig B. Shaffer on 8/15/2012. (skssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01755-BNB
DARRICK ALEXANDER,
Plaintiff,
v.
EXECUTIVE DIRECTOR OF COLORADO DEPT. OF CORRECTIONS,
WARDEN OF STERLING CORRECTIONAL FACILITY,
ASS. WARDEN OF STERLING CORRECTIONAL FACILITY,
JANE & JOHN DOE ADMINISTRATIVE HEADS, S.C.F.,
C. SOARES, Administrative Head, S.C.F.,
LT. PRESTON TEN EYCK, S.C.F.,
CHAIRPERSON ALLEN HARMS, S.C.F.,
INITIATING D.O.C. EMPLOYEE JIMERSON, S.C.F.,
CM I RANDY NORRIS, S.C.F.,
CM III WESLEY WILSON, S.C.F.,
DAN CRANSFIELD & LAW LIBRARY STAFF, S.C.F.,
CM DARREL SNYDER, S.C.F.,
MAJOR REVORD & JANE & JOHN DOE, S.C.F. Kitchen,
LT. BYCKOWSKI, S.C.F.,
SGT. BELCHER, S.C.F.,
SGT. ARFSTEN, S.C.F.,
CDOC STEP 3 GRIEVANCE OFFICER ANTHONY A. DeCESARO,
SGT. JONES, S.C.F.,
CO HUX, S.C.F.,
CO HUFF, S.C.F.,
CO JANE & JOHN DOE, S.C.F. Mailroom & Staff,
CO BAXTON, S.C.F.,
CO ASH, S.C.F.,
CO DAVIDSON, S.C.F.,
CO ANDRIELLO, S.C.F.,
CO BRIGGS, S.C.F., and
JANE & JOHN DOE CORRECTIONAL OFFICERS, S.C.F. & CDOC,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Darrick Alexander, is a prisoner in the custody of the Colorado
Department of Corrections at the Buena Vista Correctional Facility in Buena Vista,
Colorado. Mr. Alexander has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to
42 U.S.C. § 1983 alleging that his rights under the United States Constitution have been
violated. Mr. Alexander specifically asserts nineteen claims against at least twentyseven Defendants. As relief he seeks damages and a transfer to the federal prison
system.
The court must construe the Prisoner Complaint liberally because Mr. Alexander
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. Alexander 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 is deficient. For one thing, it is not clear exactly who and how many
Defendants Mr. Alexander is suing because the manner in which Mr. Alexander lists the
Defendants in the caption of the Prisoner Complaint is confusing. Pursuant to Rule
10.1J. of the Local Rules of Practice of the United States District Court for the District of
Colorado-Civil, “[p]arties shall be listed in a caption with one party per line. The proper
name of a party shall be in capital letters, and any identifying text shall be in upper and
lower case immediately following the proper name.” Mr. Alexander may use fictitious
names, such as John and Jane Doe, if he does not know the real names of the
individuals who he is suing, but he still must make clear how many John and Jane Does
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are being named as Defendants and he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
The court also 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. Alexander fails to provide a short and plain statement of his claims showing
that he is entitled to relief for several reasons. First, he fails to identify which Defendant
or Defendants are being sued with respect to each asserted claim. In fact, a number of
Mr. Alexander’s claims are not asserted against any specific Defendants. Mr.
Alexander also fails to allege specifically what each named Defendant did that allegedly
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violated his rights even when he specifically links one or more Defendants to the claims
he is asserting. For example, Mr. Alexander asserts a series of due process claims
against various Defendants within claim 9 but he fails to allege specific facts regarding
what each named Defendant allegedly did to violate his due process rights. Finally, Mr.
Alexander fails to provide specific factual allegations in support of many of his claims.
Instead, he asserts a number of claims that are supported only with vague and
conclusory allegations that are not sufficient to state a cognizable claim for relief.
Because Mr. Alexander fails to provide a short and plain statement of each of his
claims, it also is not clear whether all of the named Defendants properly are joined in
one lawsuit. Pursuant to Rule 18(a) of the Federal Rules of Civil Procedure, “[a] party
asserting a claim . . . may join, as independent or alternative claims, as many claims as
it has against an opposing party.” However, the issue of whether multiple Defendants
may be joined in a single action is governed by Rule 20(a)(2) of the Federal Rules of
Civil Procedure, which provides:
(2) Defendants. Persons . . . may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same
transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a). If Mr. Alexander is not asserting claims against all of the
Defendants that arise out of the same transaction, occurrence, or series of transactions
or occurrences, and that raise a question of law or fact common to all Defendants, he
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may not sue all of the Defendants in one action.
For all of these reasons, Mr. Alexander must file an amended complaint if he
wishes to pursue any claims in this action. Mr. Alexander is advised that he must
identify, clearly and concisely, who he is suing, the specific claims he is asserting, the
specific facts that support each asserted claim, against which Defendant or Defendants
he is asserting each claim, and what each Defendant did that allegedly violated his
rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007) (noting that, to state a claim in federal court, “a complaint 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”). 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).
Mr. Alexander also is advised that § 1983 “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. Alexander should name as
Defendants in his amended complaint only those persons that he contends actually
violated his federal constitutional rights.
Because some of the named Defendants are supervisory officials, the Court also
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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. Alexander 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.
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. Alexander file, within thirty (30) days from the date of this
order, an amended Prisoner Complaint that complies with the pleading requirements of
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the Federal Rules of Civil Procedure as discussed in this order. It is
FURTHER ORDERED that Mr. Alexander 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. Alexander 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 15, 2012, at Denver, Colorado.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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