Dillard v. Clark et al

Filing 20

ORDER Directing Plaintiff to File Amended Complaint and Discharging 6 Show Cause Order, by Magistrate Judge Boyd N. Boland on 01/28/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02266-BNB
VICKI DILLARD,
Plaintiff,
v.
SGT. MATT CLARK,
LT. DAVID AFSHAR,
SGT. RICHARD SEELEY.
OFFICER ABEITA, In Their Official & Individual Capacities, and
THE CITY AND COUNTY OF DENVER, A Municipality,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
AND DISCHARGING SHOW CAUSE ORDER

Plaintiff, Vicki Dillard, currently is incarcerated in a prison facility in Fort Worth,
Texas. Originally, Plaintiff filed a Complaint when she resided in Denver, Colorado.
The Court reviewed the Complaint and entered an order on September 4, 2012,
instructing Plaintiff to respond and show cause why the action should not be dismissed
as repetitive of the claims she raised in Dillard, et al. v. Gregory, et al., No. 11-cv01928-RBJ-BNB (D. Colo. Oct. 18, 2012). After several requests for extension of time
to respond, Plaintiff filed a Response on December 12, 2012. Based on the Response,
and Plaintiff’s claim that she is challenging a different incident than the one involved in
Case No. 11-cv-01928-RBJ-BNB, the Court will discharge the order to show cause.
Plaintiff, on January 2, 2013, filed a Supplement in which she asserts additional
injuries. The Court must construe the Complaint and other pleadings filed by Plaintiff

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 act as an advocate for a pro se litigant. See Hall, 935
F.2d at 1110. For the reasons stated below, Plaintiff will be ordered to file an Amended
Complaint.
Plaintiff may not amend the Complaint in piecemeal fashion. She must submit to
the Court an Amended Complaint that includes all claims on a Court-approved form.
The Court, therefore, will direct Plaintiff to file an amended complaint that includes all of
the claims she wishes to pursue and that names as Defendants all of the individuals she
is asserting those claims against. If Plaintiff does not file an Amended Complaint the
Court will proceed to review only the claims asserted in the Complaint filed on August
24, 2012.
In addition, for each claim she asserts, Plaintiff “must explain what each
defendant did to [ ] her; when the defendant did it; how the defendant’s action harmed [
] her; and, what specific legal right [she] 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).
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,
Plaintiff must show that each defendant caused the deprivation of a federal right. See
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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 Plaintiff may name supervisory individuals, 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, municipalities and municipal entities are not liable under 42 U.S.C.
§ 1983 solely because their employees inflict injury on a plaintiff. Monell v. New York
City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, Kan.,
997 F.2d 774, 782 (10th Cir. 1993). To establish liability, a plaintiff must show that a
policy or custom exists and that there is a direct causal link between the policy or

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custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
Plaintiff cannot state a claim for relief against the City and County of Denver under §
1983 merely by pointing to isolated incidents. See Monell , 436 U.S. at 694.
Accordingly, it is
ORDERED that within thirty days from the date of this Order Plaintiff shall file
an Amended Complaint as directed in this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved 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 Plaintiff fails to file an Amended Complaint that
complies with this Order within the time allowed, the Court will proceed to review the
Complaint filed on August 24, 2012. It is
FURTHER ORDERED that the Order to Show Cause, ECF No. 6, is discharged.
DATED January 28, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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