Dittimus v. Bond, et al

Filing 8

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/03/2012. (sks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03010-BNB
CORRI DITTIMUS, a/k/a DERRICK ANDERSON,
Plaintiff,
v.
CORRECTIONAL EDUCATION CENTERS,
CHEYENNE MOUNTAIN RE-ENTRY CENTER,
MS. BOND, Director, Individual Capacity,
MR. QUIRLS, Case Manager, Individual Capacity,
SARGENT #1 (UNKNOWN), Individual Capacity,
SARGENT #2 (UNKNOWN), Individual Capacity,
MR. LA LONDE, Case Manager III, Individual Capacity, and
MS. HARMON, Case Manager, Individual Capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Corri Dittimus, also known as Derrick Anderson, is a prisoner in the
custody of the Colorado Department of Corrections at the Crowley County Correctional
Facility in Olney Springs, Colorado. Mr. Dittimus has filed pro se a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 alleging that his rights under the United States
Constitution were violated while he was incarcerated at the Cheyenne Mounty Re-entry
Center in Colorado Springs, Colorado. He seeks damages as relief.
The court must construe the Prisoner Complaint liberally because Mr. Dittimus 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. Dittimus will be ordered to file an amended complaint.
The Court has reviewed the Prisoner Complaint and finds that the Prisoner
Complaint 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.
The Prisoner Complaint does not comply with the pleading requirements of Rule
8 because it is not clear which Defendant or Defendants Mr. Dittimus is asserting each
claim against and it is not clear what each named Defendant did that allegedly violated
Mr. Dittimus’ constitutional rights. To the extent Mr. Dittimus is asserting an Eighth
Amendment claim, he fails to allege what any Defendant or Defendants did or failed to
do that subjected him to inhumane conditions of confinement. See Farmer v. Brennan,
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511 U.S. 825, 832 (1994). To the extent he is asserting a due process claim, it is not
clear what each Defendant did that allegedly deprived Mr. Dittimus of a constitutionally
protected interest in life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367,
369 (10th Cir. 1994). To the extent he is claiming he was denied equal protection, it is
not clear how Mr. Dittimus was treated differently than any similarly situated inmates.
See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). Construing the Prisoner
Complaint liberally, it appears that Mr. Dittimus claims he was subjected to retaliation for
exercising his constitutional right to file a grievance, see Peterson v. Shanks, 149 F.3d
1140, 1144 (10th Cir. 1998), but it is not clear what each named Defendant did or failed
to do that would support a cognizable retaliation claim.
For these reasons, Mr. Dittimus will be ordered to file an amended complaint if he
wishes to pursue his claims in this action. For each claim he asserts, Mr. Dittimus “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 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).
Mr. Dittimus also is advised that § 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
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of their authority to deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.”). Therefore, Mr. Dittimus should name as
Defendants in his amended complaint only those persons that he contends actually
violated his federal constitutional rights.
Finally, the court notes that two of the Defendants identified in the caption of the
Prisoner Complaint, Correctional Education Centers and Cheyenne Mountain Re-Entry
Center, do not appear persons subject to suit under 42 U.S.C. § 1983. It is not clear
what Correctional Education Centers may be and Mr. Dittimus may not sue the
Cheyenne Mountain Re-Entry Center itself for alleged violations of his constitutional
rights committed by individuals who work at that facility. Accordingly, it is
ORDERED that Mr. Dittimus 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. Dittimus 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. Dittimus fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the action will be
dismissed without further notice.

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DATED December 3, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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