Faircloth v. Schwartz, et al
Filing
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ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 1/17/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02764-BNB
JAMES FAIRCLOTH,
Plaintiff,
v.
CELIA SCHWARTZ,
WARDEN J. DAVIS,
MAJOR D. COTTEN,
CAPTAIN R. FISHER,
LT. A. HYSJULIEN, and
OTHER KNOWN AND UNKNOWN C.D.O.C. EMPLOYEES,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT
Plaintiff, James Faircloth, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) at the Buena Vista Correctional Facility in Buena Vista, Colorado.
Mr. Faircloth initiated this action by filing pro se a Prisoner Complaint (ECF No. 1)
claiming that his rights have been violated. Mr. Faircloth subsequently filed at least four
requests to supplement or amend the Prisoner Complaint, but he did not submit an
amended Prisoner Complaint that included any of the supplements or amendments he
sought to make. On December 10, 2012, the court ordered Mr. Faircloth to file an
amended complaint that includes all of the claims he wishes to pursue in this action and
that names as Defendants all of the individuals he is asserting claims against. The
court also advised Mr. Faircloth that, for each claim he asserts, 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). On January 2, 2013, Mr. Faircloth filed an amended Prisoner Complaint (ECF
No. 42).
The court must construe the amended Prisoner Complaint liberally because Mr.
Faircloth 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. Faircloth will be ordered to file a second amended
complaint if he wishes to pursue his claims in this action.
The court has reviewed the amended Prisoner Complaint and finds that the
amended Prisoner Complaint is deficient. For one thing, the amended Prisoner
Complaint violates Rule 10(a) of the Federal Rules of Civil Procedure, which provides
that “[t]he title of the complaint must name all the parties.” Rather than listing all of the
Defendants in the caption of the amended Prisoner Complaint, Mr. Faircloth includes
within the amended Prisoner Complaint a list of additional individuals he apparently
intends to sue in this action. (See ECF No. 42 at 3.) In order to make clear who is
being sued in this action, Mr. Faircloth will be directed to file a second amended
complaint that includes the names of all of the Defendants in the caption. Mr. Faircloth
also must provide a complete address for each named Defendant so that they may be
served properly.
The court also finds that the amended Prisoner Complaint does not comply with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The twin
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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. Faircloth fails to provide a short and plain statement of his claims showing
that he is entitled to relief because he fails to identify which Defendant or Defendants he
is suing with respect to each asserted claim; fails to allege clearly and concisely what
each Defendant did that allegedly violated his rights; and fails to identify the specific
factual allegations that support each asserted claim. For example, Mr. Faircloth
references a number of distinct constitutional theories within his first claim for relief,
including due process, retaliation, and access to the courts, without providing a clear
statement of the facts that support each distinct claim. In short, it is not clear what
specific acts Mr. Faircloth is alleging were unconstitutional retaliation, how his
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constitutional right of access to the courts was violated, or how he was denied due
process. It also is not clear which Defendant or Defendants each distinct claim is being
asserted against. With respect to the retaliation claim, it is not enough for Mr. Faircloth
to allege that Defendants retaliated against him without providing specific allegations
that the “alleged retaliatory motives were the ‘but for’ cause of the defendants’ actions.”
Peterson, 149 F.3d at 1144; see also Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir.
1991) (“Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather
allege specific facts showing retaliation because of the exercise of the prisoner’s
constitutional rights.”). With respect to the access to the courts claim, Mr. Faircloth
must identify some actual injury with respect to his efforts to litigate his court cases.
See Lewis v. Casey, 518 U.S. 343, 349-55 (1996). With respect to the due process
claim, which apparently relates to a prison disciplinary hearing, Mr. Faircloth must clarify
how he was denied a constitutionally protected liberty interest without adequate due
process. See Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974) (discussing
requirements for prison disciplinary proceedings that implicate a constitutionally
protected liberty interest).
Mr. Faircloth’s other claims in the amended Prisoner Complaint similarly lack a
clear and concise statement of the specific legal claim being asserted, the specific facts
that support the legal claim being asserted, and the specific Defendant or Defendants
each claim is being asserted against. Mr. Faircloth also includes within each claim for
relief unnecessary and inappropriate legal argument. “It is sufficient, and indeed all that
is permissible, if the complaint concisely states facts upon which relief can be granted
upon any legally sustainable basis.” New Home Appliance Ctr., Inc., v. Thompson, 250
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F.2d 881, 883 (10th Cir. 1957).
For these reasons, Mr. Faircloth will be ordered to file a second amended
complaint. 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). Therefore, for each claim he asserts in the
amended complaint, Mr. Faircloth “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). However, Mr. Faircloth
should not include legal argument in the second amended complaint he is being ordered
to file.
The court also emphasizes that 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, Mr. Faircloth 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 their 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
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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. Accordingly, it is
ORDERED that Mr. Faircloth file, within thirty (30) days from the date of this
order, a second amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Faircloth 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. It is
FURTHER ORDERED that, if Mr. Faircloth fails to file a second amended
complaint that complies with this order within the time allowed, the action will be
dismissed without further notice.
DATED January 17, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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