Alexander v. Executive Director of Colorado Dept. of Corrections et al

Filing 9

ORDER Directing Plaintiff To File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 05/16/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00647-BNB
DARRICK ALEXANDER,
Plaintiff,
v.
EXECUTIVE DIRECTOR OF COLORADO DEPT. OF CORRECTIONS,
WARDEN OF STERLING CORRECTIONAL FACILITY,
ASS. WARDEN OF STERLING CORRECTIONAL FACILITY,
JANE & JOHN DOE ADMINISTRATIVE HEADS, S.C.F.,
C. SOARES, Administrative Head, S.C.F.,
LT. PRESTON TEN EYCK, S.C.F.,
CHAIRPERSON ALLEN HARMS, S.C.F.,
INITIATING D.O.C. EMPLOYEE JIMERSON, S.C.F.,
CM I RANDY NORRIS, S.C.F.,
CM III WESLEY WILSON, S.C.F.,
DAN CRANSFIELD & LAW LIBRARY STAFF, S.C.F.,
CM DARREL SNYDER, S.C.F.,
MAJOR REVORD & JANE & JOHN DOE, S.C.F. Kitchen,
LT. BYCKOWSKI, S.C.F.,
SGT. BELCHER, S.C.F.,
SGT. ARFSTEN, S.C.F.,
CDOC STEP 3 GRIEVANCE OFFICER ANTHONY A. DeCESARO,
SGT. JONES, S.C.F.,
CO HUX, S.C.F.,
CO HUFF, S.C.F.,
CO JANE & JOHN DOE, S.C.F. Mailroom & Staff,
CO BAXTON, S.C.F.,
CO ASH, S.C.F.,
CO DAVIDSON, S.C.F.,
CO ANDRIELLO, S.C.F.,
CO BRIGGS, S.C.F., and
JANE & JOHN DOE CORRECTIONAL OFFICERS, S.C.F. & CDOC,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Darrick Alexander, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Buena Vista Correctional Facility in Buena
Vista, Colorado. Mr. Alexander initiated this action by filing pro se a Prisoner Complaint
(ECF No. 1) pursuant to 42 U.S.C. § 1983 claiming that his rights under the United
States Constitution have been violated. On April 4, 2013, the court ordered Mr.
Alexander to file an amended complaint that complies with the District of Colorado local
rules and the pleading requirements of the Federal Rules of Civil Procedure. On May 7,
2013, Mr. Alexander filed an amended Prisoner Complaint (ECF No. 8).
The court must construe the amended Prisoner Complaint liberally because Mr.
Alexander 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. Alexander will be ordered to file a second amended
complaint if he wishes to pursue his claims in this action.
The court has reviewed the amended Prisoner Complaint and finds that the
amended Prisoner Complaint remains deficient because Mr. Alexander still fails to
comply with the District of Colorado local rules and the pleading requirements of the
Federal Rules of Civil Procedure. However, because it appears that Mr. Alexander has
made some effort to comply with the court’s prior order to amend, he will be given one
more opportunity to file a pleading that complies with the District of Colorado local rules
and the pleading requirements of the Federal Rules of Civil Procedure.
With respect to the District of Colorado local rules, it is not clear exactly who and
how many Defendants Mr. Alexander is suing because he still fails to list one party per
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line in the caption as required. See D.C.COLO.LCivR 10.1J. More specifically, Mr.
Alexander may not list in the caption Defendants such as “Jane & John Doe
Administrative Heads, S.C.F.,” “Dan Cransfield & Law Library Staff, S.C.F.,” “Major
Revord & Jane & John Doe, S.C.F. Kitchen,” “CO Jane & John Doe, S.C.F. Mailroom &
Staff,” and “Jane & John Doe Correctional Officers, S.C.F. & CDOC” because such
listings include multiple Defendants on a single line. Mr. Alexander may use fictitious
names, such as John and Jane Doe, if he does not know the real names of the
individuals he is suing, but he must make clear how many John and Jane Does are
being named as Defendants by listing only one Defendant per line in the caption, and
he must provide sufficient information about each defendant so that he or she can be
identified for purposes of service.
With respect to the pleading requirements of the Federal Rules of Civil
Procedure, Mr. Alexander still fails to identify which Defendant or Defendants he is
suing with respect to each asserted claim. For example, it is not clear which Defendant
or Defendants claims 12, 15, 16, 17, and 19 are asserted against. Mr. Alexander also
fails in the amended Prisoner Complaint to clarify specifically what each named
Defendant did that allegedly violated his rights. For example, Mr. Alexander’s
allegations in support of claims 9, 11, and 18 do not provide a clear and concise
statement of each named Defendant’s personal participation in the asserted
constitutional violations. Finally, Mr. Alexander still provides only vague and conclusory
allegations in support of claims 3, 4, 5, 6, 7, 9, 11, and 12 that are not sufficient to state
a cognizable claim for relief. For example, Mr. Alexander fails to allege in support of his
due process claims the nature of the constitutionally protected liberty or property
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interest supposedly violated or the specific process that was not provided. See, e.g.,
Wolff v. McDonnell, 418 U.S. 539, 563-66 (1974) (discussing requirements for prison
disciplinary proceedings that implicate a constitutionally protected liberty interest).
Similarly, Mr. Alexander alleges in various claims that his constitutional right of access
to the courts has been violated but he fails to identify any actual injury with respect to
his efforts to litigate his court cases. See Lewis v. Casey, 518 U.S. 343, 349-55 (1996).
For each claim Mr. Alexander asserts in the second amended complaint, he
“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). “It 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.” New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir.
1957). Furthermore, 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).
Personal participation is an essential allegation in a § 1983 action. See Bennett
v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation,
Mr. Alexander 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
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(10th Cir. 1993). Mr. Alexander cannot satisfy the requirement of alleging personal
participation by simply listing the names of one or more Defendants in each claim he
asserts without providing specific allegations regarding what each named Defendant did
that allegedly violated his rights.
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. Accordingly, it is
ORDERED that Mr. Alexander 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. Alexander 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
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FURTHER ORDERED that, if Mr. Alexander 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 May 16, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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