Watkins v. Tanner, et al
Filing
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ORDER Directing Plainitiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 6/05/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00833-BNB
ALLEN WATKINS,
Plaintiff,
v.
CAPT. D. TANNER,
SGT. T. VAUGHAN,
LT. J. NITSCH,
SGT. ARMSTRONG,
CO ROSS,
CO LARSON,
DENVER POLICE DEPARTMENT, and
ADREEN GREEN,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Allen Watkins, is a prisoner in the custody of the Colorado Department
of Corrections who currently is incarcerated at the Centennial Correctional Facility in
Cañon City, Colorado. He filed pro se a Prisoner Complaint (ECF No. 9) and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 8).
The Court must construe liberally Mr. Watkins’ filings 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. Watkins will be ordered to file an amended Prisoner Complaint if he wishes
to pursue his claims in this action.
The Court has reviewed the Prisoner Complaint 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. Watkins’ complaint fails to assert claims in a clear and concise fashion and,
as a result, the complaint is nearly unintelligible. In order to state a claim in federal
court, Mr. Watkins “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
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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
such deterrence fails.”). Therefore, Mr. Watkins 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. Watkins 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
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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.
Mr. Watkins 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.
Watkins uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Mr. Watkins may not sue the Denver Police Department. The police department
is not a separate entity from Denver County, and, therefore, is not a person 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 department must be considered
as asserted against Denver County.
In addition, municipalities, such as 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,
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385 (1989). Plaintiff cannot state a claim for relief against Denver County under § 1983
merely by pointing to isolated incidents. See Monell , 436 U.S. at 694.
Finally, 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. Watkins 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.
Watkins 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. 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 complaint.
Accordingly, it is
ORDERED that Plaintiff, Allen Watkins, 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 and Rule 10.1 of the
Local Rules of Practice for this Court as discussed in this order. It is
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FURTHER ORDERED that Mr. Watkins 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. Watkins fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the Prisoner Complaint
and the action will be dismissed without further notice.
DATED June 5, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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