Meek v. Jordan, et al

Filing 16

ORDER of Dismissal. it is ORDERED that the amended Prisoner Complaint ECF No. 15 and the action are dismissed without prejudice. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is FURTHER ORDERED that any pending motions are denied as moot, by Judge Lewis T. Babcock (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00659-BNB
TIMOTHY MEEK,
Plaintiff,
v.
SARGEANT MR. JORDAN,
CAPTIN [sic] MR. ROMERO,
SARGEANT MR. ROLANDO, and
CAPTIN [sic] MOORE, each Defendant is sued individually and in his official capacity.
At all times mentioned in this complaint each Defendant acted under the color of
state law,
Defendants.

ORDER OF DISMISSAL

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 was granted leave to proceed pursuant to 28 U.S.C. §
1915. On April 17, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Meek to file an
amended Prisoner Complaint that complied with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure and alleged the personal participation of each
named Defendant. On May 7, 2013, Mr. Meek filed an amended Prisoner Complaint.
The Court must construe liberally the amended Prisoner Complaint 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, the amended Prisoner Complaint and the action will be
dismissed.
The Court has reviewed the amended Prisoner Complaint and finds that, like the
complaint Mr. Meek originally filed, the amended complaint does not comply with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. As Mr. Meek
was advised, 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 amended complaint is more vague than the complaint he originally
filed. He asserts one claim that he was denied equal protection and due process. He
discusses both a court hearing and conviction for destruction of public property in
relation to an incident involving a prison sprinkler and a disciplinary hearing involving the
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same incident, and fails to make clear which proceeding – the court or the disciplinary
proceeding or both – he is challenging in the instant action.
In his original complaint, Mr. Meek asserts more facts concerning the sprinkler
incident, summarized by Magistrate Judge Boland in the April 17 order for an amended
complaint as follows:
[H]e 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 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.
ECF No. 10 at 2-3.
In the amended complaint, Mr. Meek argues he was denied due process in the
disciplinary hearing because he never received a notice of charges and was not allowed
to present evidence, call witnesses, or attend his hearing for security reasons. He further
alleges he was treated unequally by not being allowed to attend the disciplinary hearing
or by having Defendant Captain Moore enter pod 2D to conduct the hearing, as he has
on other occasions for other inmates. Mr. Meek does not allege that his prison
disciplinary hearing may have resulted in the loss of good-time credits to trigger the
minimal safeguards afforded by the Due Process Clause. See Wolff v. McDonnell, 418

U.S. 539, 563-66 (1974) (Adequate due process in a disciplinary proceeding that

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implicates a protected liberty interest requires advance written notice of the charges, an
opportunity to call witnesses and present documentary evidence, and a written
statement by the factfinders of the reasons for the decision and the evidence on which
they relied.). Nor does he allege that the disciplinary conviction and resulting
segregation imposed an “atypical and significant hardship on [him] in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In the
instant action, he appears only to challenge the disciplinary – and possibly state court –
proceedings.
Mr. Meek still fails to make clear whether he is suing Sargeant Jordan and

Captain Romero only because they denied his administrative appeal of the disciplinary
conviction and placement in punitive segregation. If so, Magistrate Judge Boland
already informed Mr. Meek that such allegations are insufficient to hold these
Defendants liable under § 1983. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir. 2009) ("[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.").
Finally, to the extent Mr. Meek may be attempting to challenge the state court

conviction for destruction of public property, his damages claims are barred by the rule
in Heck v. Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a judgment for
damages necessarily would imply the invalidity of a criminal conviction or sentence, the
action does not arise until the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by an authorized state tribunal, or
called into question by the issuance of a federal habeas writ. See Heck , 512 U.S. at
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486-87. Mr. Meek does allege that he has invalidated his conviction and sentence
through a writ of habeas corpus.
Because it is not clear what specific claims Mr. Meek is asserting, the Court will
dismiss the action for failure to comply with Rule 8. Despite specific instructions from
Magistrate Judge Boland, Mr. Meek fails to provide a short and plain statement of facts
to support a federal claim under § 1983 and does not explain what each Defendant did
to him, when each Defendant did it, how each Defendant’s action harmed him, and what
specific legal right he believes each Defendant violated. See Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Therefore, the action will be
dismissed for failure to file an amended Prisoner Complaint that complies with Rule 8 as
directed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Meek files a notice of appeal he also must pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the amended Prisoner Complaint (ECF No. 15) and the action
are dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of
Civil Procedure for the failure of Plaintiff, Timothy Meek, to file an amended Prisoner
Complaint that complies with the pleading requirements of Rule 8 and the directives of
the order of April 17, 2013 (ECF No. 10). It is
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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 13th day of

May

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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