Thomas v. State of Colorado et al

Filing 9

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 1/11/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03078-BNB
DEMETRIUS THOMAS,
Plaintiff,
v.
STATE OF COLORADO, and
CDOC,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Demetrius Thomas, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Colorado State
Penitentiary in Cañon City, Colorado. Mr. Thomas filed pro se a prisoner complaint
pursuant to 42 U.S.C. § 1983 against the State of Colorado and DOC. He asks for
injunctive relief. Mr. Thomas has been granted leave to proceed pursuant to 28 U.S.C.
§ 1915 without payment of an initial partial filing fee.

The Court must construe Mr. Thomas’s filings liberally because he is
representing himself. 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 the
pro se litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Mr.
Thomas will be directed to file an amended complaint.
Plaintiff contends that, despite being labeled as a “snitch,” ECF No. 1 at 3, he
was denied placement in protective custody on May 24, 2012. He contends further that

his only options are either to be placed in the general population with a “‘snitch jacket,’”
id., or in administrative segregation, where he would be subject to restricted privileges,
for fourteen years. See also id. at 4. He contends these circumstances present an
atypical and significant hardship that violates his Fourteenth Amendment right to due
process and his Eighth Amendment right to be free from cruel and unusual punishment.
He asks to be placed in protective custody or in an out-of-state facility.
Mr. Thomas fails to name as defendants the individuals who allegedly denied his
placement in protective custody. In the amended complaint he will be directed to file,
Mr. Thomas must assert personal participation by each named defendant. See Bennett
v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation,
Mr. Thomas must name and show how the named defendants caused a deprivation of
his federal rights. 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 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 that he or she
causes. See Dodds v. Richardson, 614 F.3d 1185, 1211 (10th Cir. 2010).
Mr. Thomas 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.
Thomas uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
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The amended complaint Mr. Thomas files must 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) requires that a complaint "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 the requirements of Rule 8. In
order for Mr. Thomas to state a claim in federal court, his "complaint 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).
Mr. Thomas must set forth a short and plain statement of his claims showing that
he is entitled to relief. For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all that
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is permissible, if the complaint concisely states facts upon which relief can be granted
upon any legally sustainable basis.” Id.
It is Mr. Thomas’ responsibility to present his claims in a manageable format that
allows the Court and the defendants to know what claims are being asserted and to be
able to respond to those claims. The amended complaint 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).
Mr. Thomas, therefore, will be directed to file an amended complaint on the
Court-approved Prisoner Complaint form that asserts his claims clearly and concisely,
alleges what rights were violated, and provides specific facts demonstrating how each
named defendant personally participated in the asserted constitutional violations.
Accordingly, it is
ORDERED that Plaintiff, Demetrius Thomas, file within thirty (30) days from
the date of this order an amended complaint that complies with the directives of this
order. It is
FURTHER ORDERED that Mr. Thomas 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. Thomas fails to file an amended complaint that
complies with this order within the time allowed, the Court will dismiss the complaint and
the action without further notice.

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DATED January 11, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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