Tennyson v. Carpenter et al

Filing 10

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 4/02/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00648-BNB
AUDREY LEE TENNYSON,
Plaintiff,
v.
MATTHEW CARPENTER, Chief of Unit Managers,
ROBERT SPARKS, Unit Manager,
“THE SUPERIORS,” Identities Not Yet Known,
VANCE EVERETT, K.C.C.C. Warden,
KIT CARSON CORRECTIONAL CENTER,
TOM CLEMENTS, C.D.O.C. Executive Director, and
COLORADO DEPARTMENT OF CORRECTIONS,
Individually and In Their Official Capacities,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Audrey Lee Tennyson, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Kit Carson Correctional
Center in Burlington, Colorado. He submitted pro se a Prisoner Complaint (ECF No. 1)
and an amended Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 (ECF No. 8). Mr. Tennyson has been granted leave to proceed pursuant
to § 1915.
The Court must construe Mr. Tennyson’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. Tennyson will be directed to file an amended complaint.
Mr. Tennyson is suing improper parties. Mr. Tennyson may not sue the Colorado
Department of Corrections or the Kit Carson Correctional Center 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).
Mr. Tennyson may not cite to incidents involving other inmates as support for his
claims. Mr. Tennyson’s conditions-of-confinement claims must focus solely on how he
has been injured and may not rely on allegations concerning other prisoners. The
United States Constitution requires that a party seeking to invoke the jurisdiction of the
federal courts must demonstrate that he has suffered some actual or threatened injury,
that the injury was caused by the defendants, and that a favorable judicial decision is
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likely to redress the injury. Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); Hackford v. Babbitt, 14
F.3d 1457, 1464 (10th Cir. 1994). Because Mr. Tennyson, in his allegations concerning
other prisoners, fails to demonstrate any actual or threatened injury as a result of the
conditions of his confinement, he lacks standing to assert claims concerning those
conditions. See Citizens Concerned for Separation of Church & State v. City & County
of Denver, 628 F.2d 1289, 1295-96 (10th Cir. 1980).
In addition, Mr. Tennyson’s complaint is difficult to read because it is singlespaced and written in all capital letters. 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 amended complaint Mr. Tennyson 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 amended complaint also must comply with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure. The complaint Mr. Tennyson filed is
verbose, unnecessarily repetitive, fails to clarify which claim is asserted pursuant to
which statute, and fails to demonstrate clearly and succinctly the personal participation
of each named defendant in the alleged constitutional violations.
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
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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. Tennyson 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. Tennyson’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. Tennyson 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 Court does not require a long, chronological recitation of facts. Nor should
the Court or defendants be required to sift through Mr. Tennyson’s verbose allegations
to locate the heart of each claim. The general rule that pro se pleadings must be
construed liberally has limits and “the Court cannot take on the responsibility of serving
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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 amended complaint he will be directed to file, Mr. Tennyson 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. Tennyson 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. Tennyson 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. Tennyson 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
D.C.COLO.LCivR 10.1. Mr. Tennyson will be given an opportunity to cure the
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deficiencies in his complaint by submitting a legible amended complaint that asserts
appropriate claims, states them clearly and concisely in compliance with Fed. R. Civ. P.
8, asserts which claims are asserts pursuant to which statute, and alleges specific facts
that demonstrate how each named defendant personally participated in the asserted
constitutional violations.
Accordingly, it is
ORDERED that Plaintiff, Audrey Lee Tennyson, within thirty (30) days from the
date of this order, file an amended complaint that complies with this order. It is
FURTHER ORDERED that the amended complaint shall be titled “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. Tennyson 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 that
form in submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Tennyson fails to file an amended complaint
that complies with this order within the time allowed, the complaint and the action will be
dismissed without further notice.
DATED April 2, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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