Savannah v. Collins et al

Filing 9

ORDER to Dismiss in Part and to Draw Case to a District Judge and to a Magistrate Judge. ORDERED that claims two and three in the Prisoner Complaint are dismissed without prejudice. FURTHER ORDERED that Defendants John W. Suthers, John Hutto, James Byrne, and the Larimer County Attorney Office are dismissed as parties to this action. FURTHER ORDERED that this case shall be drawn to a district judge and to a magistrate judge, by Judge Lewis T. Babcock on 11/26/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02403-BNB
ERNIE J. SAVANNAH,
Plaintiff,
v.
JOHN W. SUTHERS,
JOHN HUTTO,
BILL COLLINS,
ROBERT KNAB,
JAMES BYRNE, and
LARIMER COUNTY ATTORNEY OFFICE,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Ernie J. Savannah, is a prisoner in the custody of the Colorado
Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado.
Mr. Savannah initiated this action by filing pro se a Prisoner Complaint (ECF No. 1). On
October 2, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr.
Savannah to file an amended complaint within thirty days that complies with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure because certain
claims in the Prisoner Complaint were not clear. Mr. Savannah has not filed an
amended complaint as directed within the time allowed.
The Court must construe the Prisoner Complaint liberally because Mr. Savannah
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). If the Prisoner Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
should not be an advocate for a pro se litigant. See id. For the reasons stated below,
the Prisoner Complaint will be dismissed in part for failure to comply with the pleading
requirements of Rule 8.
The twin purposes of a pleading 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); see also Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (stating that 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 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.” Furthermore, the philosophy of
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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. As a result, prolix,
vague, or unintelligible pleadings violate the requirements of Rule 8.
Mr. Savannah asserts three claims for relief in the Prisoner Complaint that arise
out of his arrest by Fort Collins, Colorado, police officers in August 2011 and his
subsequent detention. Mr. Savannah alleges in support of his first claim that Defendant
Robert Knab, a Fort Collins police officer, used excessive force by deploying his police
dog on Mr. Savannah without justification in violation of his Fourth Amendment rights.
Mr. Savannah alleges elsewhere in the Prisoner Complaint that he actually was
arrested by Defendant Bill Collins, another Fort Collins police officer, and that Officer
Collins allegedly failed to intervene and stop the excessive force. However, Magistrate
Judge Boland noted in the order directing Mr. Savannah to file an amended complaint
that it was not clear whether Mr. Savannah was asserting his excessive force claim
against any Defendant other than Officer Knab.
Mr. Savannah alleges in his second claim, which he describes as a Fourteenth
Amendment claim, that Defendant James Byrne, a Fort Collins police officer, used Mr.
Savannah’s telephone to access his Facebook page and harass his family and friends
for eight days after Mr. Savannah was arrested. With respect to this claim, Magistrate
Judge Boland noted that Mr. Savannah failed to identify how his own rights were
violated in any way.
Mr. Savannah alleges in his third claim that his constitutional rights were violated
because he was locked in administrative segregation for two months following his
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arrest, he was not allowed contact with anyone while in segregation, and his injuries
from the dog bites were not treated while he was in segregation. Magistrate Judge
Boland determined that this claim was deficient because Mr. Savannah failed to assert
the claim against any particular Defendant and he failed to identify what any particular
Defendant did or failed to do that violated his rights in connection with the third claim for
relief.
As noted above, Mr. Savannah has failed to file an amended complaint to correct
these deficiencies. Therefore, the claims Magistrate Judge Boland identified as
deficient will be dismissed. More specifically, claim two in the Prisoner Complaint will be
dismissed because Mr. Savannah fails to allege specific facts in support of a claim that
his own constitutional rights have been violated in any way as a result of Officer Byne’s
alleged harassment of Mr. Savannah’s family and friends. Mr. Savannah’s third claim
for relief will be dismissed because the claim is not asserted against any particular
Defendant.
The Court will not address at this time the merits of Mr. Savannah’s first claim for
relief in the Prisoner Complaint, the excessive force claim specifically asserted against
Officer Knab. Construing the Prisoner Complaint liberally, it appears that Mr. Savannah
also may be asserting the excessive force claim against Officer Collins. Therefore, the
Court also will not dismiss Officer Collins as a party to this action. However, the
Defendants other than Officers Knab and Collins will be dismissed as parties to this
action because Mr. Savannah fails to assert any cognizable claims against those
Defendants. The remaining excessive force claim against Officers Knab and Collins will
be drawn to a district judge and to a magistrate judge as provided in D.C.COLO.LCivR
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8.2D because the Court has completed its review pursuant to D.C.COLO.LCivR 8.2C.
Accordingly, it is
ORDERED that claims two and three in the Prisoner Complaint are dismissed
without prejudice for failure to comply with the pleading requirements of Rule 8. It is
FURTHER ORDERED that Defendants John W. Suthers, John Hutto, James
Byrne, and the Larimer County Attorney Office are dismissed as parties to this action. It
is
FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
DATED at Denver, Colorado, this 26th day of

November

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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