Gowadia v. BOP et al

Filing 12

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 3/07/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00077-BNB
NOSHIR GOWADIA,
Plaintiff,
v.
BOP, represented by:
WARDEN BOBBY L. MEEKS (FDC-H),
BLAKE R. DAVIS (Former Warden ADX),
WARDEN D. BERKEBILE (ADX),
R. J. BALLASH (Western Reg. Off.),
JOSE A. SANTANA (Des. and Sent. Comp.),
PAUL M. LAIRD (North Central Reg. Off.),
MR. GERALICH (FDC-H), and
MR. STERNS (FDC-H),
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Noshir Gowadia, is a prisoner in the custody of the United States Bureau
of Prisons at the United States Penitentiary, Administrative Maximum, in Florence,
Colorado. Mr. Gowadia initiated this action by filing pro se a Complaint (ECF No. 1).
On March 4, 2013, he filed an amended complaint using the court-approved Prisoner
Complaint form (ECF No. 11). Mr. Gowadia claims that his rights under the United
States Constitution have been violated. He seeks damages and injunctive relief.
The court must construe the Prisoner Complaint liberally because Mr. Gowadia 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. Gowadia will be ordered to file a second amended complaint if he wishes to
pursue his claims in this action.
The court has reviewed the Prisoner Complaint and finds that the Prisoner
Complaint is deficient. Fist, it is not clear whether Mr. Gowadia intends to sue the
Bureau of Prisons as a Defendant in addition to the individuals named as Defendants.
Pursuant to Rule 10(a) of the Federal Rules of Civil Procedure “[t]he title of the
complaint must name all the parties.” Pursuant to Rule 10.1J. of the Local Rules of
Practice of the United States District Court for the District of Colorado-Civil, “[p]arties
shall be listed in a caption with one party per line. The proper name of a party shall be
in capital letters, and any identifying text shall be in upper and lower case immediately
following the proper name.” Regardless of who Mr. Gowadia names as Defendants, he
must provide a complete address for each named Defendant so that they may be
served properly.
The court also 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)
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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.
Mr. Gowadia fails to provide a short and plain statement of his claims showing
that he is entitled to relief. In particular, he fails to identify which Defendant or
Defendants he is suing with respect to each asserted claim; he fails to allege clearly and
concisely what each Defendant did that allegedly violated his rights; and he fails to
identify the specific legal right allegedly violated with respect to each claim.
For these reasons, Mr. Gowadia will be ordered to file a second amended
complaint. For each claim he asserts in the second amended complaint, Mr. Gowadia
“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).
The court also emphasizes that personal participation is an essential allegation in
a § 1983 action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To
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establish personal participation, Mr. Gowadia must show that each Defendant 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). To the extent Mr. Gowadia may name
supervisory officials as defendants, the court notes that a defendant may not be held
liable for the unconstitutional conduct of his or her subordinates on a theory of
respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order to succeed in a § 1983 suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege
and demonstrate that “(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.” Id. at 1199.
Finally, although the precise claims Mr. Gowadia is raising in this action are not
clear for the reasons discussed in this order, the Court notes that there may be issues
regarding personal jurisdiction and proper venue under 28 U.S.C. § 1391 because only
one of the eight individual defendants is alleged to be a resident of Colorado and it

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appears that the actions giving rise to most of Mr. Gowadia’s claims occurred outside
Colorado. Therefore, even though Mr. Gowadia currently is incarcerated in Colorado, it
is not clear whether he may pursue all of his claims in the District of Colorado.
Accordingly, it is
ORDERED that Mr. Gowadia file, within thirty (30) days from the date of this
order, a second amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Gowadia 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. Gowadia 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 March 7, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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