Sensabaugh v. Hickenlooper

Filing 13

ORDER by Magistrate Judge Boyd N. Boland on 04/16/13, Directing Plaintiff to File Second and Final Amended Complaint. FURTHER ORDERED that the clerk of the Court mail to Mr. Sensabaugh, together with a copy of this order, the Court-approved Prisoner Complaint form along with the applicable instructions. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02619-BNB
GERALD SENSABAUGH,
Plaintiff,
v.
JOHN HICKENLOOPER,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AND FINAL AMENDED COMPLAINT

Plaintiff, Gerald Sensabaugh, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Colorado
Territorial Correctional Facility in Cañon City, Colorado. He initiated this action by filing
pro se on October 2, 2012, a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. §
1983, among other statutory authority, for money damages and injunctive relief and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 3). Mr. Sensabaugh has been granted leave to proceed in forma pauperis
pursuant to § 1915.
On March 6, 2013, the Court ordered Mr. Sensabaugh to file within thirty days an
amended complaint that stood on its own without reliance on Montez v. Hickenlooper,
No. 92-cv-00870-CMA-OES; complied with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure; named each individual defendant being sued in the
caption of the complaint and alleged facts in the text of the complaint to show each

defendant’s personal participation in the deprivation of his constitutional rights; and was
on the Court-approved Prisoner Complaint form he was directed to obtain, along with
the applicable instructions, with the assistance of his case manager or the prison
facility’s legal assistant at www.cod.uscourts.gov. On April 5, 2013, Mr. Sensabaugh
filed an amended Prisoner Complaint (ECF No. 12) not on the Court-approved Prisoner
Complaint form, which he contends prison officials refused to provide him.
The Court must construe Mr. Sensabaugh’s amended complaint liberally
because he 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 cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, Mr. Sensabaugh will be ordered to file a second and final
amended complaint on the Court-approved Prisoner Complaint form, which the clerk of
the Court will be directed to mail to him together with a copy of this order.
On May 23, 2006, the Special Master in Montez ordered that Mr. Sensabaugh be
provided with “a new four-inch thick mattress or egg crate mattress,” “proper fitting
tennis shoes,” and “be awarded the sum of $250.00.” See ECF No. 1987 (Final Order
of Special Master) at 5-6 in No. 92-cv-00870-CMA-OES. "[T]he court is permitted to
take judicial notice of its own files and records, as well as facts which are a matter of
public record." Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 568 (10th
Cir.2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th
Cir. 2001).
The amended complaint is not clear, but the Court has done its best to
understand Plaintiff’s allegations. Mr. Sensabaugh alleges he received a new mattress
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and tennis shoes while he was incarcerated at the Colorado State Penitentiary (CSP) in
Cañon City, Colorado. He later was transferred to the correctional facility in Sterling,
Colorado, where he sought to replace the worn-out tennis shoes and mattress. He
apparently alleges that he did not receive either replacement tennis shoes or a
replacement mattress, nor did he receive a response to the grievances he filed. Since
his transfer to the Colorado Territorial Correctional Facility, he does not appear to have
received replacements for the worn-out tennis shoes and mattress. He complains that
he only received from the DOC $200.00 of the $250.00 he is owed under the Special
Master’s May 2006 Final Order. Mr. Sensabaugh contends his right to be free from
cruel and unusual punishment under the Eighth Amendment to the United States
Constitution have been violated for the failure to provide replacement tennis shoes,
mattress, and the balance of $50.00 in compliance with the Special Master’s Final
Order.
On February 11, 2013, the Special Master in Montez entered an order
concerning Mr. Sensabaugh and the claims he raises here. See ECF No. 5362 in No.
92-cv-00870-CMA-OES. In particular, the February 11 order of the Special Master
notes that each of sixteen claimants who received medical appliances or other items in
addition to or in lieu of money damages and who remain in DOC custody or under DOC
supervision, including Mr. Sensabaugh, “presumably ha[ve] a right to seek the
assistance of the Court to ensure compliance with his Final Order.” Id. at 4. The
Special Master ordered additional briefing by March 4, 2013, by defendants in Montez
about the Court’s continuing jurisdiction over non-damages requests to ensure
compliance with each claimant’s Final Order. Id. at 5. The Special Master also has
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allowed the sixteen claimants until April 1, 2013, to respond.
Mr. Sensabaugh initiated the instant action before the February 11 order,
apparently in lieu of filing a motion in Montez to enforce or for compliance with his Final
Order. A review of the docket in No. 92-cv-00870-CMA-OES reveals that Mr.
Sensabaugh did not file any response in Montez prior to the April 1 deadline. With
respect to the $50.00 Mr. Sensabaugh claims he is owed, he may file a motion in the
Montez case, alerting the Special Master that he has not yet received this payment.
See No. 92-cv-00870 at ECF Nos. 4960 at 2-3, 5370. With respect to any non-money
damages, including claims involving the mattress and tennis shoes he contends he is
due pursuant to the Final Order in Montez, Mr. Sensabaugh may contact class counsel
to petition for relief in Montez.
As the Court informed Mr. Sensabaugh in the March 6 order for an amended
complaint, the instant action must stand on its own, separate from Montez, and comply
with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The
amended complaint fails to comply with these requirements. Therefore, if Mr.
Sensabaugh wishes to proceed in the instant action, he must file a second and final
amended complaint that complies with Fed. R. Civ. P. 8 as discussed below. Mr.
Sensabaugh may not raise in the instant action any claims that he could or should have
raised in Montez. He may only raise new claims for money damages or injunctive relief
unrelated to his claims in Montez.
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
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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).
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.
In order to comply with Rule 8, Mr. Sensabaugh 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). 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 particular, Mr. Sensabaugh "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). At the same time, "[i]t is sufficient, and indeed all that is permissible, if the
complaint concisely states facts upon which relief can be granted upon any legally
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sustainable basis." Id.
Therefore, Mr. Sensabaugh must ensure that his second and final amended
complaint provides a clear and concise statement of the claims he is asserting. It is Mr.
Sensabaugh’s responsibility to present his claims in a manageable and readable format
that allows the Court and the defendants to know what claims are being asserted and to
be able to respond to those claims. Mr. Sensabaugh must allege, simply and concisely,
his specific claims for relief, including the specific rights that allegedly have been
violated and the specific acts of each defendant that allegedly violated his rights. The
Court will not consider any claims raised in separate amendments, supplements,
motions, or other documents that are not included in the amended complaint.
Mr. Sensabaugh fails to name any specific defendants in the caption to the
amended complaint. His vague reference to “Unknown Person(s) Employed by the
State Government of Colorado” fails to provide individual names and addresses, i.e.,
information that is sufficient for service of the amended complaint. In his second and
final amended complaint, Mr. Sensabaugh must name the defendants he intends to sue
in the caption of the complaint and allege facts in the text of the complaint to show each
individual defendant's personal participation in a deprivation of his constitutional rights.
See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Sensabaugh must show how each named individual 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 defendant may not be held liable
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on a theory of respondeat superior merely because of his or her supervisory position.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703
F.2d 479, 483 (10th Cir. 1983). A supervisor is only liable for constitutional violations he
or she causes. See Dodds v. Richardson, 614 F.3d 1185, 1211 (10th Cir. 2010).
Mr. Sensabaugh may use fictitious names, such as "John or Jane Doe," if he
does not know the real names of the individuals who allegedly violated his rights.
However, if Mr. Sensabaugh uses fictitious names he must provide sufficient
information about each defendant so that he or she can be identified for purposes of
service.
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 amended complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr.
Sensabaugh will be given one final opportunity to cure the deficiencies in his amended
complaint by submitting a second and final amended complaint on the Court-approved
Prisoner Complaint form that states his constitutional claims clearly and concisely in
compliance with Fed. R. Civ. P. 8, names each defendant in the caption to and text of
the complaint; and alleges specific facts that demonstrate how each named defendant
personally participated in the asserted constitutional violations.
Accordingly, it is
ORDERED that Plaintiff, Gerald Sensabaugh, within thirty (30) days from the
date of this order, file a second and final amended complaint that complies with this

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order. It is
FURTHER ORDERED that the second and final amended complaint shall be
titled "Second and Final Amended Prisoner Complaint," and shall be filed with the Clerk
of the Court, United States District Court for the District of Colorado, Alfred A. Arraj
United States Courthouse, 901 Nineteenth Street, A105, Denver, Colorado 80294. It is
FURTHER ORDERED that the clerk of the Court mail to Mr. Sensabaugh,
together with a copy of this order, the Court-approved Prisoner Complaint form along
with the applicable instructions. It is
FURTHER ORDERED that Mr. Sensabaugh used the Court-approved Prisoner
Complaint form to submit the second and final amended complaint. It is
FURTHER ORDERED that, if Mr. Sensabaugh fails to file a second and final
amended complaint that complies with this order within the time allowed, the amended
complaint and the action will be dismissed without further notice.
DATED April 16, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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