Meek v. Jordan, et al

Filing 10

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 04/17/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00659-BNB
TIMOTHY MEEK,
Plaintiff,
v.
DISCIPLANARY [sic] DUE PROCESS BOARD,
SARGENT JORDAN Badge #?
CAPTIN [sic] ROMERO Badge #?
SARGENT ROLANDO Badge # S04032, and
CAPTIN [sic] ? Badge #S90132,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Timothy Meek, currently is incarcerated at the Denver County Jail. He
filed pro se a Prisoner Complaint (ECF No. 1) for injunctive relief and an amendment
(ECF No. 6) to the complaint. He has been granted leave to proceed pursuant to 28
U.S.C. § 1915.
The Court must construe liberally the Prisoner Complaint and its amendment
because Mr. Meek 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. Meek will be ordered to file an amended complaint if
he wishes to pursue his claims in this action.
The Court has reviewed the Prisoner Complaint, as amended, and finds that it

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) 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. Meek’s complaint, as amended, is vague. He asserts two claims for relief. In
the original complaint, he alleges that after a sprinkler went off in pod 2D on February 2,
2013, he was charged with a Denver municipal code violation for damaging, defacing,
or destroying public property. See ECF No. 1 at 14. He further alleges that he was
charged and convicted on the disciplinary charges of resisting, interfering, or violently
threatening a deputy sheriff or sheriff’s department staff member: non-compliance with a
direct order during an emergency; disrupting or interfering with the security or the
orderly operation of the institution or encouraging others to do so; refusing to obey a
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direct order of any staff member; and flooding of a cell, pod or housing unit or the
tampering with a first sprinkler head. See id. at 13. He was sanctioned by sixty days of
punitive segregation. He appears to be suing two Defendants, Sargeant Jordan and
Captain Romero, for their responses to the administrative appeal of his disciplinary
convictions, and Sergeant Rolando for allegedly failing to serve him with a notice of
charges. It is unclear from the complaint the reason or reasons he is suing the
unnamed captain or the disciplinary due process board.
In the amendment to the complaint, Mr. Meek asserts a second claim that he was
sentenced illegally and complains about the privileges he allegedly is being denied. He
fails to allege against which Defendant or Defendants the second claim is asserted.
In order to state a claim in federal court, Mr. Meek “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).
In addition, § 1983 “provides a federal cause of action against any person who,
acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert,
526 U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“[T]he
purpose of § 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to victims if
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such deterrence fails.”). Therefore, Mr. Meek should name as defendants in his
amended complaint only those persons that he contends actually violated his federal
constitutional rights.
Personal participation is an essential allegation in a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Meek 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). A supervisory officials 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.
See 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.
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Mr. Meek appears to sue two officers--Sargeant Jordan and Captain Romero-whose only apparent involvement in the alleged constitutional violations was to deny his
administrative appeal of the disciplinary conviction and placement in punitive
segregation. See ECF No. 1 at 11. Such allegations are not sufficient to hold these
Defendants liable under § 1983. "[A] denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged by plaintiff, does not establish
personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir. 2009).
Mr. Meek 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.
Meek uses fictitious names he must provide sufficient information about each defendant
so that he or she can be identified for purposes of service.
Finally, Mr. Meek is advised that 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. Meek 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.
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. Mr. Meek
will be given an opportunity to cure the deficiencies in his complaint by submitting an
amended complaint that states claims clearly and concisely in compliance with Fed. R.
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Civ. P. 8, and alleges specific facts that demonstrate how each named defendant
personally participated in the asserted constitutional violations. The Court will not
consider any claims raised in separate attachments, amendments, supplements,
motions, or other documents not included in the amended application.
Accordingly, it is
ORDERED that Plaintiff, Timothy Meek, file, within thirty (30) days from the
date of this order, an amended Prisoner Complaint that complies with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure as discussed in this
order. It is
FURTHER ORDERED that Mr. Meek 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. Meek fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the complaint, as
amended, and the action will be dismissed without further notice.
DATED April 17, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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