Tena v. Davis

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 1/16/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03215-BNB
JORGE TENA,
Plaintiff,
v.
WARDEN JOHN DAVIS,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Jorge Tena, is a prisoner in the custody of the Colorado Department of
Corrections who currently is incarcerated at the correctional facility in Buena Vista,
Colorado. Mr. Tena filed pro se a prisoner complaint pursuant to 42 U.S.C. § 1983 for
money damages. Mr. Tena has been granted leave to proceed pursuant to 28 U.S.C. §
1915.
The Court must construe Mr. Tena’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. Tena will be
directed to file an amended complaint.
Plaintiff contends that on May 27, 2012, Correctional Officer Linza confiscated
his radio during a routine shakedown of his cell. He later learned through the response
to his step-three grievance that the radio was destroyed. On the basis of these
allegations, he asserts violations of his due process rights. He also complains that he

was not compensated for the destroyed radio and believes he has been discriminated
against because he is of Mexican descent.
Mr. Tena fails to name as defendants the individual or individuals who allegedly
violated his constitutional rights. In the amended complaint he will be directed to file,
Mr. Tena 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. Tena 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).
Further, "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).
Mr. Tena 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.
Tena 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. Tena 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. Tena 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. Tena 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 is
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permissible, if the complaint concisely states facts upon which relief can be granted
upon any legally sustainable basis.” Id.
It is Mr. Tena’s 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. Tena, therefore, will be directed to file an amended complaint on the Courtapproved 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, Jorge Tena, 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. Tena 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 the form to
submit the amended complaint. It is
FURTHER ORDERED that, if Mr. Tena fails to file an amended complaint that
complies with this order to the Court’s satisfaction within the time allowed, the Court will
dismiss the complaint and the action without further notice.

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DATED January 16, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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