Silva v. Brown et al

Filing 9

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 3/21/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03283-BNB
FRANCISCO PASILLAS SILVA, also known as
FRANCISCO PASILLAS-SILVA,
Plaintiff,
v.
STEVEN L. BROWN, Administrative Head,
NANETTE THOMAS, Case Manager, Bent County Correctional, and
JACK CHAPMAN, Hearing Officer,
in their individual and official capacities.
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Francisco Pasillas Silva, also known as Francisco Pasillas-Silva, is a
prisoner in the custody of the Colorado Department of Corrections (DOC) who currently
is incarcerated at the correctional facility in Buena Vista, Colorado. He has filed pro se
an amended Prisoner Complaint (ECF No. 7) pursuant to 42 U.S.C. § 1983 for
unspecified declaratory relief and money damages. Mr. Silva has been granted leave to
proceed pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Silva’s filings 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, Mr. Silva will be directed to file a second amended complaint.
Mr. Silva asserts three claims. As his first claim, he generally complains that the

defendants violated his First Amendment rights because he was transferred in response
to his complaint that grievances challenging disciplinary convictions are prohibited by
DOC policy. He also complains that he was retaliated against by being prohibited from
presenting a security video as evidence at his disciplinary hearing and refused
reinstatement of lost good-time credits. As his second claim, he makes similar
allegations and contends the charges and evidence against him were fabricated. As his
third claim, he maintains that the refusal to reinstate his good-time credits subjected him
to cruel and unusual punishment under the Eighth Amendment.
Mr. Silva’s amended complaint is vague and repetitive. As such, the amended
complaint fails to 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). 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
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federal pleading rules. Prolix, vague, or unintelligible pleadings violate Rule 8.
Generally, Mr. Silva fails to 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). For the purposes of Rule 8(a), “[i]t 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.” Id.
It is Mr. Silva’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. Mr. Silva must allege, simply and concisely, his
specific claims for relief, including the specific rights that allegedly have been violated
and the specific acts of each defendant that allegedly violated his rights. 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).
In the second amended complaint he will be directed to file, Mr. Silva 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. Silva must
show how each named individual 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). A defendant may not be held liable on a theory of respondeat superior
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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 he or she causes. See Dodds v.
Richardson, 614 F.3d 1185, 1211 (10th Cir. 2010).
Mr. Silva 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.
Silva uses fictitious names he must provide sufficient information about each defendant
so that he or she can be identified for purposes of service.
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. Mr.
Silva will be given an 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 specific facts that demonstrate how each
named defendant personally participated in the asserted constitutional violations.
Accordingly, it is
ORDERED that Plaintiff, Francisco Pasillas Silva, within thirty (30) days from
the date of this order, file a second amended complaint that complies with this order.
It is
FURTHER ORDERED that the second amended complaint shall be titled
“Second Amended Prisoner Complaint,” and shall be filed with the Clerk of the Court,

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United States District Court for the District of Colorado, Alfred A. Arraj United States
Courthouse, 901 Nineteenth Street, A105, Denver, Colorado 80294. It is
FURTHER ORDERED that Mr. Silva 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. Silva fails to file a second amended complaint
that complies with this order within the time allowed, the amended complaint and the
action will be dismissed without further notice.
DATED March 21, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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