Lornes the III v. Arapho Police Department, et al

Filing 40

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/24/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00714-BNB
WILLIAM LEE LORNES THE III, also known as
WILLIAM LEE LORNES, also known as
WILLIAM,
Plaintiff,
v.
ARAPHO [sic] POLICE DEPARTMENT/“CORT HOUSE” [sic] (Jane Doe, Supervisor),
DENVER POLICE DEPARTMENT/ “HEAD-QORTERS” [sic], and
GALARDO,
Defendants.

ORDER OF DISMISSAL

Plaintiff, William Lee Lornes the III, also known as William Lee Lornes and as
William, currently is incarcerated at the Denver County Jail. On March 18, 2013, he
submitted pro se a Prisoner Complaint (ECF No. 1). On April 2, 2013, he filed amended
complaints. See ECF Nos. 22 and 23. Mr. Lornes was granted leave to proceed
pursuant to 28 U.S.C. § 1915 without payment of an initial partial filing fee.
Magistrate Judge Boyd N. Boland did not consider in this civil rights action
pursuant to 42 U.S.C. § 1983 the motion to vacate sentence pursuant to 28 U.S.C. §
2255 (ECF No. 21) or the habeas corpus applications filed pursuant to 28 U.S.C. §§
2241 and 2254 (ECF Nos. 25, 26, 27, 28, 29, 30, and 31) because Mr. Lornes may not
pursue §§ 2255, 2241, or 2254 claims in a civil rights action. See McIntosh v. United
States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) ("Petitions under § 2241 are

used to attack the execution of a sentence, . . . [while] § 2254 habeas and § 2255
proceedings, . . . are used to collaterally attack the validity of a conviction and
sentence.").
Instead, on April 25, 2013, Magistrate Judge Boland entered an order (ECF No.
37) directing Mr. Lornes to file within thirty days a final amended Prisoner Complaint
pursuant to 42 U.S.C. § 1983 that complied with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure on the Court-approved Prisoner Complaint form
the clerk of the Court mailed to him together with a copy of the April 25 order.
Magistrate Judge Boland warned Mr. Lornes that if he failed to file a final amended
Prisoner Complaint on the form he was provided that complied with the April 25 order as
directed within the time allowed, the action would be dismissed without further notice.
On May 21, 2013, Mr. Lornes filed the final amended Prisoner Complaint (ECF No. 39).
The Court must construe liberally Mr. Lornes’ final amended Prisoner Complaint
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, the final amended complaint and the action will be dismissed.
The Court has reviewed the final amended Prisoner Complaint (ECF No.39), and
finds that it does not comply with the pleading requirements of Rule 8 of the Federal
Rules of Civil Procedure. As Mr. Lornes was informed in the April 25 order for a final
amended Prisoner Complaint, 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
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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. Lornes’ final amended Prisoner Complaint is vague, nearly unintelligible, and
fails to list the named Defendants clearly in the caption. In the April 25 order for a final
amended complaint, Magistrate Judge Boland advised Mr. Lornes that in order to state
a claim in federal court 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). 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).
Mr. Lornes also was advised that § 1983 “provides a federal cause of action
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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 such deterrence fails.”). Therefore, Mr. Lornes was directed to name
as defendants in his final amended complaint only those persons that he contended
actually violated his federal constitutional rights.
Magistrate Judge Boland emphasized that 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. Lornes 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
official 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
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official for conduct that arises out of his or her supervisory responsibilities, Mr. Lornes
was advised he 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.
Nonetheless, Mr. Lornes failed to allege sufficient facts in the final amended Prisoner
Complaint to indicate Mr. Galardo’s personal participation in any constitutional
violations.
In the April 25 order, Magistrate Judge Boland noted that Mr. Lornes may use
fictitious names, such as "John or Jane Doe," if he did not know the real names of the
individuals who allegedly violated his rights. However, Magistrate Judge warned Mr.
Lornes that if he used fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
It is not clear from the caption of the final amended Prisoner Complaint whether
Mr. Lornes is suing Jane Does from the Arapahoe and Denver county police
departments, or the departments themselves, or both. In any case, he has failed to
provide sufficient information about the Jane Does so that they may be identified for
service. To the extent he is suing the Arapahoe and Denver county police departments,
he is suing improper parties. The police departments are not separate entities from
Arapahoe County or Denver County, and, therefore, are not persons under § 1983. See
Stump v. Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th
Cir. 1993). Any claims asserted against the police departments must be considered as
asserted against their appropriate counties.
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In addition, municipalities, such as Arapahoe or Denver county, and municipal
entities are not liable under § 1983 solely because their employees inflict injury on a
plaintiff. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978);
Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). To establish liability,
a plaintiff must show that a policy or custom exists and that there is a direct causal link
between the policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989). Mr. Lornes cannot state a claim for relief against Arapahoe or
Denver county under § 1983 merely by pointing to isolated incidents. See Monell , 436
U.S. at 694. He has failed to allege a policy or custom that lead to any injury alleged.
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 final amended Prisoner Complaint does not meet the requirements of Fed.
R. Civ. P. 8, and must be dismissed for that reason.
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. Lornes 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 final amended Prisoner Complaint (ECF No. 39) and the
action are dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal
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Rules of Civil Procedure for the failure of Plaintiff, William Lee Lornes the III, to file a
final amended Prisoner Complaint that complies with the pleading requirements of Rule
8 and the directives of the order of April 25, 2013 (ECF No. 37). 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.
DATED at Denver, Colorado, this 24th day of

May

, 2013.

BY THE COURT:

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

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