Dailey v. Doizaki et al

Filing 29

ORDER Directing Plaintiff To File Second Amended Complaint, by Magistrate Judge Craig B. Shaffer on 02/25/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02798-BNB
MICHAEL ANTHONY DAILEY,
Plaintiff,
v.
SGT. DOIZAKI, #9537,
CAPTAIN PERERA,
DEP. VEITH, #10020,
DEP. LOFLAND, #06077,
DR. JASON GROPE, Medical,
NURSE PRACTITIONER PATTY KELLY, Medical,
ELAINE MEYER, H.S.A., Medical,
MILLER, #9927,
DEP. GANAWAY, Ct. Serv.,
BAKER, #08060,
LONGFELLOW, #06017,
FREEMAN, #9933,
WENZEL, #00234,
BREWER, #9526,
B. MOTT, #07071,
ACTING SGT. FOR DOIZAKI, #9036,
THOMPSON, #09073, and JOHN DOE(S) SORT, 12-28-11 EXTRACTION,
BANCROFT,
KRAUS, #01070,
BRISKI, #08032,
TERRY, #9919,
SEG. ORTON, #07058,
SEG. SHIELDS, #07020,
ROBINSON, #10068,
MOLLERUD, #9953,
ALBERCIE, #08040,
METCALF, #07051,
C. JONES, #10018,
LT. JD KNIGHT, 8626,
SGT. WISCAMB, #9750,
SGT. KELSO, #00205,
LT. FOGG, #02054,
LT. WHITAKER, #9042,
L. WESTBERG, #8727,
SHERIFF GRAYSON ROBINSON,
BRANDI, Class,

ERIN, Law Clerk,
L.S., Classification, 05088, and
TARA, Classification,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AMENDED COMPLAINT

Plaintiff, Michael Anthony Dailey, is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Four Mile Correctional Center in Cañon
City, Colorado. Plaintiff’s original Complaint, filed on October 22, 2012, was fifty-nine
pages long and named fifty-seven defendants. The original Complaint challenged the
conditions of his confinement while he was a pretrial detainee at the Patrick J. Sullivan
Detention Facility in Arapahoe County, Colorado, from August 2011 through July 2012.
On December 11, 2012, the Court ordered Plaintiff to file an Amended Complaint
that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure and asserted personal participation by each named defendant in the alleged
constitutional violation. On January 22, 2013, Plaintiff filed an Amended Complaint.
The Court must construe Plaintiff’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 should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Plaintiff will be directed to file a Second Amended Complaint.
Like the original Complaint, Plaintiff’s Amended Complaint generally fails to
comply with the pleading requirements of Rule 8 of the Federal Rules of Civil
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Procedure. The Amended Complaint names at least forty-one defendants. Rather than
assert a specific constitutional violation in each claim, the nature of the violation, and
how each responsible defendant participated in the violation identified in the claim,
Plaintiff has set forth a claim for each named defendant. Some of the forty-one claims
in part state a specific violation against the named defendant, but all of the claims
include conclusory statements that are unnecessary and do not comply with Rule 8.
The Court informed Plaintiff in the December 11 Order that 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). 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.
Generally, Plaintiff’s Amended Complaint is unmanageable as it is repetitive and
does not set forth the claims in a simple, concise, and direct manner. Plaintiff fails to
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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). It is Plaintiff’s responsibility to present his claims in a manageable
format. Plaintiff must allege, simply and concisely, his specific claims for relief,
including the specific rights that allegedly have been violated and the specific acts by
each defendant that allegedly support the specific constitutional violation. The Court or
defendants are not required to sift through Plaintiff’s verbose allegations to piece
together each claim of a constitutional violation. 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 . . . .” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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.
Plaintiff will be given one last opportunity to cure the deficiencies in his Amended
Complaint by submitting a Second Amended Complaint that states his claims clearly
and concisely in compliance with Fed. R. Civ. P. 8, and alleges in a manageable format
the specific facts that demonstrate how each named defendant personally participated
in the asserted constitutional violations. Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff file a
Second Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
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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 Plaintiff 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 February 25, 2013, at Denver, Colorado.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge

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