Cary v. Hickenlooper et al

Filing 17

ORDER Directing Plaintiff to File Second and Final Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/04/2012. (sks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02072-BNB
ARNOLD A. CARY,
Plaintiff,
v.
JOHN HICKENLOOPER, Governor, State of Colorado,
TOM CLEMENTS, Executive Director, CDOC,
REA TIMME, Warden, CTCF,
DAVID TESSLER, Health Services Administrator, CTCF,
SUSAN M. TIONA, M.D., Health Services Physician, CTCF,
JOHN V. BUGLEWICZ, M.D., Health Services Physician, CTCF, and
Fremont County Commissioner,
LINSEY FISH DEPENA, M.D., Former Health Services Physician,
MIKE STIEHL, Fremont County Commissioner,
ALANO MAYES, City Attorney, Cañon City,
RODNEY ACHEN, Captain, Food Services, CTCF,
RONOLD WILLIAMS, Lieutenant, CTCF,
CHRISTINA TURNER, Sergeant, CTCF,
ROBERT BURNS, Correctional Officer, CTCF,
DANIEL BRATINA, Correctional Officer, CTCF,
JOHN DOE #1, President, J-Cor Mechanical,
JOHN DOE #2, President, Mountain Masonry,
JOHN DOE #3, Warden, BVCF,
RENA WOOD, Sergeant, BVCF, and
GENEA WOODS, Sergeant, BVCF,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AND FINAL AMENDED COMPLAINT

Plaintiff, Arnold A. Cary, is a prisoner in the custody of the Colorado Department
of Corrections who currently is incarcerated at the Colorado Territorial Correctional
Facility (CTCF) in Cañon City, Colorado. Mr. Cary filed pro se a forty-one-page prisoner

complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1) for declaratory and injunctive relief,
including the immediate evacuation and closure of CTCF, and money damages. He was
granted leave to proceed pursuant to 28 U.S.C. § 1915 without an initial partial filing fee
(ECF No. 13) and later paid the $350.00 filing fee (ECF No. 15) in this action.
On August 24, 2012, the Court entered an order (ECF No. 14) directing Mr. Cary
to file an amended complaint because the complaint was unnecessarily verbose,
repetitive, failed to demonstrate clearly and succinctly the personal participation of each
named defendant in the alleged constitutional violations, and failed to provide a short
and plain statement of his claims in compliance with the pleading requirements of Rule 8
of the Federal Rules of Civil Procedure. On September 27, 2012, Mr. Cary filed a fortyseven-page amended Prisoner Complaint (ECF No. 16) pursuant to § 1983 and other
statutory authority seeking declaratory and injunctive relief, including the immediate
evacuation and closure of CTCF, and money damages.
The Court must construe the amended complaint liberally because Mr. Cary 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. Under § 1983, a plaintiff must
allege that the defendants have violated his or her rights under the Constitution and laws
of the United States while they acted under color of state law. Adickes v. S. H. Kress &
Co., 398 U.S. 144, 150 (1970). For the reasons stated below, Mr. Cary will be ordered to
file a second and final amended complaint.
The amended complaint filed on September 27 (ECF No. 16) does not cure the
deficiencies discussed in the August 24 order (ECF No. 14). The amended complaint
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purports to assert three Eighth Amendment claims of cruel and unusual punishment, but
the claims contain repetitive and verbose allegations and generally fail to assert in the
body of each claim the supporting facts or or identify the defendants who personally
participated in the alleged violations. In addition, Mr. Cary improperly includes a
separate section at the end of the complaint for his “legal claims,” see ECF No. 16 at 4344, instead of incorporating those legal claims into his three asserted claims.
As his first claim, Mr. Cary contends he has been exposed to a wide variety of airand water-born toxins that have affected his health and rendered him permanently
disabled. He contends that Defendant, Alano Mayes, city attorney of Cañon City, is
aware of the health risks but has not warned the CTCF inmates.
As his second claim, he contends he has intentionally been denied appropriate
medical care for health problems that have developed as a result of his exposure to airand water-born toxins, and well as other medical problems that have risen independently
during his incarceration over the past six years. He complains he suffers from radiation
and toxic chemical exposure, reduced red blood cell production, neuropathy, capillary
hemorrhage, pulmonary fibrosis, edema and other gastrointestinal symptoms, kidney
and thyroid dysfunction, lumbar spinal stenosis, a cyst on his kidney and the back of his
neck, a chronic fungal skin infection, and atrophy of his forearm muscles, among other
maladies. He further complains that he is dependent on bottled oxygen, and repeatedly
has been denied bottled oxygen in a timely manner by prisoner staff members, the
Defendants, Lieutenant Ronald Williams, Sergeant Christina Turner, and Correctional
Officer Robert Burns. He contends that Lieutenant Williams ordered him to be housed
on the second floor, causing him to climb four flights of steps with a heavy oxygen bottle.
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He also complains that Correctional Officer Burns ordered him to the cell house when he
was out of oxygen and attempting to obtain a replacement bottle.
As his third claim, Mr. Cary contends the conditions of his confinement are unsafe
and put his health at risk, including but not limited to living in a 150-year-old prison with
cramped cells, double-bunking, asbestos released during renovation and repair,
substandard food services, and the presence of cockroaches and mice.
Mr. Cary fails to identify in each claim the defendants involved in the alleged
wrongdoing. Mr. Cary must make clear what claims are asserted against which
defendants.
In addition, Mr. Cary’s attempts to demonstrate personal participation are, for the
most part, vague and conclusory. He generally fails to allege specifics, except for his
naming three defendants in claim two who allegedly deprived him of necessary oxygen
bottles. As Mr. Cary was informed in the August 24 order for an amended complaint,
vague and conclusory allegations will not suffice. He must assert facts, not tenuous
allegations, to establish the requisite personal participation on the part of each
defendant. See ECF No. 14 at 4-5.
The amended complaint is vague, conclusory, unnecessarily verbose, repetitive,
and violates the Fed. R. Civ. P. 8 requirement that a complaint contain a short and plain
statement of the claims showing that the pleader is entitled to relief, as discussed in the
August 24 order. The second and final amended complaint Mr. Cary will be directed to
file must not exceed fifteen double-spaced pages in a 12-point type. No documents
other than the amended complaint will be considered. The Court will not consider any
claims raised in separate amendments, supplements, motions, or other documents that
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are not included in the amended complaint.
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). Mr. Cary will be
allowed one final opportunity to file an amended complaint that complies with the
directives of the August 24 order and the instant order. Failure to do so in the time
allowed will result in the dismissal of the instant action.
Accordingly, it is
ORDERED that Plaintiff, Arnold A. Cary, file within thirty days from the date of
this order a second and final amended complaint that complies with the directives of the
order of August 24, 2012 (ECF No. 14), and this order. It is
FURTHER ORDERED that Mr. Cary shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his or their case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov, and use that
form in submitting the second and final amended complaint. It is
FURTHER ORDERED that, if Mr. Cary fails to file an amended complaint that
complies with this order and the August 24 order within the time allowed, the Court will
dismiss the action without further notice.

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DATED December 4, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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