Bowens v. Sterling Correctional Facility, et al
Filing
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ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 2/05/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00081-BNB
SOLOMON BOWENS,
Plaintiff,
v.
STERLING CORRECTIONAL FACILITY, and
THE WARDEN, in his individual capacity, Sterling Correctional [Facility],
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT
Plaintiff, Solomon Bowens, currently is incarcerated at the Denver Van CiseSimonet Detention Center. He has filed pro se an amended Prisoner Complaint (ECF
No. 7) pursuant to 42 U.S.C. § 1983 for money damages. Mr. Bowens has been
granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Bowen’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. Bowens will be directed to file a second amended complaint.
Mr. Bowens is suing an improper party. Mr. Bowens may not sue the Sterling
Correctional Facility for money damages. The State of Colorado and its entities are
protected by Eleventh Amendment immunity. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir.
1988). "It is well established that absent an unmistakable waiver by the state of its
Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by
Congress, the amendment provides absolute immunity from suit in federal courts for
states and their agencies." Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584,
588 (10th Cir. 1994), overrruled on other grounds by Ellis v. University of Kansas Med.
Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh
Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment
immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The Eleventh
Amendment applies to all suits against the state and its agencies, regardless of the
relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th
Cir. 2003).
In addition, Mr. Bowen’s handwriting is generally illegible, which makes
understanding his handwritten allegations difficult. Rule 10.1 of the Local Rules of
Practice for this Court requires that all papers filed in cases in this Court be
double-spaced and legible. See D.C.COLO.LCivR 10.1E. and G. The second
amended complaint Mr. Bowen will be directed to file, whether handwritten or typed,
shall be double-spaced and legible, in capital and lower-case letters, in compliance with
D.C.COLO.LCivR 10.1E. and G.
The second amended complaint also 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
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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 federal pleading rules. Prolix, vague, or unintelligible pleadings
violate Rule 8.
Mr. Bowen 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. Bowen’s responsibility to present his claims in a manageable and
readable 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. Bowen 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 her rights.
The general rule that pro se pleadings must be construed liberally has limits and “the
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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. Bowen 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. Bowen
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
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. Bowen 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.
Bowen 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 complaint does not meet the requirements of Fed. R. Civ. P. 8 and
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D.C.COLO.LCivR 10.1. Mr. Bowen will be given an opportunity to cure the deficiencies
in his amended complaint by submitting a legible second amended complaint that
asserts appropriate claims, states them 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, Solomon Bowens, 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,
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. Bowens 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. Bowens 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.
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DATED February 5, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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