Jones v. City and County of Denver, The et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Craig B. Shaffer on 08/13/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01977-BNB
STEVEN KELLY KEVIN JONES,
Plaintiff,
v.
THE CITY AND COUNTY OF DENVER,
THE DENVER POLICE DEPT. DET. JOHN DONOHUE #0047,
THE DENVER SHERIFF DEPT. UNDERSHERIFF GARY WILSON, and
THE DISTRICT ATTORNEY’S OFFICE MITCHELL MORRISSEY #13784,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Steven Kelly Kevin Jones, has filed pro se a Complaint (ECF No. 1)
asserting claims of false arrest, false imprisonment, and malicious prosecution. The
court must construe the Complaint liberally because Mr. Jones 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. Jones will be
ordered to file an amended complaint if he wishes to pursue his claims in this action.
The court has reviewed the Complaint and finds that the 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. Jones alleges in the Complaint that he was illegally detained for ninety-seven
days after he was falsely arrested on October 29, 2011. However, he fails to provide a
short and plain statement of the grounds for the court’s jurisdiction in this action. In
other words, Mr. Jones fails to identify the statutory authority that allows the court to
consider the claims he is asserting against Defendants.
Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree. It is
to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
Construing the Complaint liberally, it appears that Mr. Jones is asserting constitutional
tort claims pursuant to 42 U.S.C. § 1983, which “provides a federal cause of action

2

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.”). If Mr. Jones is asserting claims pursuant to §
1983, the court has subject matter jurisdiction over those claims pursuant to 28 U.S.C. §
1331 and 1343(a)(3). However, if Mr. Jones intends to assert jurisdiction pursuant to
some other statutory authority, he must identify that statutory authority in his amended
complaint.
Mr. Jones also fails to provide a short and plain statement of his claims showing
that he is entitled to relief because he fails to identify, clearly and concisely, the specific
claims he is asserting against each Defendant and what each named Defendant did that
allegedly violated his rights. In order to state a claim in federal court, Mr. Jones “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). 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).
The court emphasizes that personal participation is an essential allegation in a §
1983 action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To
establish personal participation, Mr. Jones must show that each Defendant caused the
3

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). To the extent Mr. Jones may name a
supervisory official as a defendant, the court notes that 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.
Finally, because Mr. Jones has named the City and County of Denver as a
Defendant, the Court notes that a municipality also may not be held liable on a theory of
respondeat superior. See Monell v. Department of Social Services, 436 U.S. 658, 691
(1978). In order to state a claim against the City and County of Denver, Mr. Jones must
identify a municipal policy or custom that caused the alleged violations of his rights.

4

See Dodds, 614 F.3d at 1202 (discussing Supreme Court standards for municipal
liability). Accordingly, it is
ORDERED that Mr. Jones file, within thirty (30) days from the date of this
order, an amended Complaint as directed in this order. It is
FURTHER ORDERED that Mr. Jones shall obtain the court-approved Complaint
form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Jones fails to file an amended 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

5