Quinlan v. Clements et al

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/12/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02674-BNB

DAVID QUINLAN,
Plaintiff,
v.
TOM CLEMENTS,
STEVE HARTLEY,
DARYL VIGIL,
ANTHONY A. DECESARO,
CONNIE GARCIA, and
DENNIS DUNSMOOR,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, David Quinlan, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) who currently is incarcerated at the Arkansas Valley Correctional
Facility in Crowley, Colorado. Mr. Quinlan initiated this action by filing pro se a civil
rights complaint (ECF No. 1) for money damages and injunctive relief. He has paid the
$350.00 filing fee.
The Court must construe the complaint liberally because Mr. Quinlan 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. Quinlan will be ordered to file an amended complaint if he wishes to pursue
his claims in this action.

Mr. Quinlan asserts thirteen claims, the majority of which concern his belief that a
television antenna should be installed in every DOC prison facility so that inmates may
received unrestricted access to free digital television channels. However, he fails to cite
a constitutional right that is being violated by the DOC’s failure to provide such
unrestricted television access to prisoners. He cites to a violation of the
Communications Act, but fails to provide a statutory citation or explain how the
Communications Act applies to incarcerated persons. He also asserts claims for which
he does not appear to have suffered an injury. For example, claim three asserts a
violation of the Americans With Disabilities Act, but fails to allege that Mr. Quinlan is
disabled. He also cites to what he believes are unconstitutional administrative
regulations, such as an administrative regulation banning pornography, see ECF No. 1
at 15-20, but fails to allege how or if he has been injured by such a regulation.
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 some of Mr.
Quinlan’s claims fail to demonstrate any actual or threatened injury as a result of the
conditions of his confinement, he lacks standing to assert claims concerning those
conditions. See Citizens Concerned for Separation of Church & State v. City & County
of Denver, 628 F.2d 1289, 1295-96 (10th Cir. 1980).
The amended complaint Mr. Quinlan will be directed to file must comply with the
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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.
In order to comply with Rule 8, Mr. Quinlan 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 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
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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. Quinlan should name as defendants in his
amended complaint only those persons that he contends actually violated his federal
constitutional rights.
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. Quinlan 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). Supervisory officials 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.
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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.
Mr. Quinlan also is suing grievance officers. However, "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). Mr. Quinlan will
be given an opportunity to cure the deficiencies in his complaint by submitting an
amended complaint that states how his constitutional and statutory rights are being
violated, alleges an injury, 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.
Accordingly, it is
ORDERED that Plaintiff, David Quinlan, file, within thirty (30) days from the
date of this order, an amended Prisoner Complaint that complies with the directives of
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this order. It is
FURTHER ORDERED that Mr. Quinlan 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. Quinlan 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 12, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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