Wilson v. Suthers et al

Filing 5

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 04/03/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00817-BNB
DOUGLAS WILSON,
Plaintiff,
v.
JOHN SUTHERS, Colorado Attorney General,
COLORADO DEPARTMENT OF CORRECTIONS,
TRAVIS TRANI, CSP Warden,
KEVIN MILYARD, CDOC Deputy Director,
TONY CAROUCHY, CDOC Director,
TWELVE (UNNAMED) CDOC STAFF/OFFICIALS,
DR. J. LAMPELA, OMI/RTP Director, and
JAMES OLSON, Case Manager III,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Douglas Wilson, is a prisoner in the custody of the Colorado Department
of Corrections at the Colorado State Penitentiary in Cañon City, Colorado. Mr. Wilson
has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 alleging
that his rights under the United States Constitution have been violated. He seeks
damages as relief.
The court must construe the Prisoner Complaint liberally because Mr. Wilson 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. Wilson 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 and finds that it is deficient. For
one thing, Mr. Wilson fails to list the names of each Defendant he is suing in the caption
of the Prisoner Complaint. Pursuant to Rule 10(a) of the Federal Rules of Civil
Procedure, “[t]he title of the complaint must name all the parties.” Pursuant to Rule
10.1J. of the Local Rules of Practice of the United States District Court for the District of
Colorado-Civil, “[p]arties shall be listed in a caption with one party per line. The proper
name of a party shall be in capital letters, and any identifying text shall be in upper and
lower case immediately following the proper name.” Regardless of who Mr. Wilson
names as Defendants, he must provide a complete address for each named Defendant
so that they may be served properly.
The court also finds that the Prisoner Complaint 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
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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. Wilson fails to provide a short and plain statement of his claims showing that
he is entitled to relief because he fails to identify which Defendant or Defendants he is
suing with respect to each asserted claim, fails to allege clearly and concisely what
each Defendant did that allegedly violated his rights, and fails to identify the specific
legal right allegedly violated with respect to each claim.
In addition, because Mr. Wilson fails to provide a short and plain statement of his
claims, it also is not clear whether all of the named Defendants properly are joined in
one lawsuit. Pursuant to Rule 18(a) of the Federal Rules of Civil Procedure, “[a] party
asserting a claim . . . may join, as independent or alternative claims, as many claims as
it has against an opposing party.” However, the issue of whether multiple Defendants
may be joined in a single action is governed by Rule 20(a)(2) of the Federal Rules of
Civil Procedure, which provides:
(2) Defendants. Persons . . . may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same
transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a). If Mr. Wilson is not asserting claims against all of the Defendants
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that arise out of the same transaction, occurrence, or series of transactions or
occurrences, and that raise a question of law or fact common to all Defendants, he may
not sue all of the Defendants in one action. As one example, it does not appear that Mr.
Wilson’s claim regarding an assault that allegedly occurred in February 2005 properly is
raised in the same lawsuit as any other claim in this action.
For all of these reasons, Mr. Wilson must file an amended complaint if he wishes
to pursue any claims in this action. Mr. Wilson must identify, clearly and concisely, who
he is suing, the specific claims he is asserting, the specific facts that support each
asserted claim, against which Defendant or Defendants he is asserting each claim, and
what each Defendant did that allegedly violated his rights. See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (noting that, to state a
claim in federal court, “a complaint 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”). 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. Wilson 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
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or direction, or failure to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055
(10th Cir. 1993). Mr. Wilson has named a number of supervisory officials as defendants.
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. Wilson file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Wilson 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
FURTHER ORDERED that, if Mr. Wilson fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
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further notice.
DATED April 3, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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