Toevs v. Milyard et al
Filing
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ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/10/12. (lygsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02532-BNB
JANOS TOEVS,
Plaintiff,
v.
KEVIN MILYARD,
TOM CLEMENTS,
ARISTEDES ZAVARAS,
JAMES FALK,
ANTHONY DECESARO,
JOHN CHAPDELAINE,
MAJOR MARY COX,
CAPTAIN WHITNEY,
C.O. RALSTON,
C.O. MERRILL,
CASE MANAGER LONG, and
CASE MANAGER NICKELS, all in their official and individual capacities,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Janos Toevs, is a prisoner in the custody of the Colorado Department of
Corrections who currently is incarcerated at the correctional facility in Sterling,
Colorado. Mr. Toevs initiated this action by filing pro se a civil rights complaint for
money damages asserting claims pursuant to 42 U.S.C. § 1983 that his rights under the
United States Constitution have been violated.
The Court must construe the complaint liberally because Mr. Toevs 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. Toevs 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 it 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. Toevs asserts five claims for relief: the first two allege retaliation for
exercising his First Amendment rights to free speech and to seek redress for
grievances; the third alleges denial of access to the courts; the fourth alleges denial of
equal protection rights; and the fifth alleges violation of his right to be free from cruel
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and unusual punishment. Each claim is unnecessarily verbose and fails to make clear
in a concise manner the basis for each claim and the reason he is suing each individual
defendant. In the second claim, Mr. Toevs disagrees with a new rule in the Code of
Penal Discipline concerning false reporting to authorities; cites two alleged instances of
retaliation for false reporting relevant to co-inmates, ECF No. 1 at 6; contends that “my
sincere fear of retaliation presents me from filing any grievance which could be viewed
as a matter of credibility,” id. at 7; but does not appear to allege any retaliatory injury.
As a result, Mr. Toevs’ second claim fails to focus on how he has been injured.
The United States Constitution requires that a party seeking to invoke the jurisdiction of
the federal courts must demonstrate that he has suffered some actual or threatened
injury, that the injury was caused by the defendants, and that a favorable judicial
decision is likely to redress the injury. Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); Hackford v.
Babbitt, 14 F.3d 1457, 1464 (10th Cir. 1994). Because Mr. Toevs’ second claim fails to
demonstrate any actual or threatened injury as a result of the conditions of his
confinement, he lacks standing to assert those claims. See Citizens Concerned for
Separation of Church & State v. City & County of Denver, 628 F.2d 1289, 1295-96 (10th
Cir. 1980).
In order to comply with Rule 8, Mr. Toevs must provide "a generalized statement
of the facts from which the defendant may form a responsive pleading." New Home
Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). In particular, he
“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
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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).
In addition, § 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. Toevs should name as defendants in his
amended complaint only those persons who he contends actually violated his federal
constitutional rights.
Mr. Toevs names supervisory officials as defendants. However, 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. Toevs
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). A supervisory 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,
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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.
See 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.
Further, "a denial of a grievance, by itself without any connection to the violation
of constitutional rights alleged by plaintiff, does not establish personal participation
under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); see also
Whitington v. Ortiz, 307 Fed. App'x 179, 193 (10th Cir. 2009) (unpublished).
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). The Court finds
that the complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr. Toevs will
be given an opportunity to cure the deficiencies in his complaint by submitting an
amended complaint that states his claims clearly and concisely in compliance with Fed.
R. Civ. P. 8 and alleges specific facts that demonstrate how each named defendant
personally participated in the asserted constitutional violations.
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Accordingly, it is
ORDERED that Plaintiff, Janos Toevs, file, within thirty (30) days from the
date of this order, an amended Prisoner Complaint that complies with the pleading
requirements of Fed. R. Civ. P. 8(a) as discussed in this order. It is
FURTHER ORDERED that Mr. Toevs 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, and use that form in
submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Toevs fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the complaint and the
action will be dismissed without further notice.
DATED December 10, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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