Brown v. Moore et al

Filing 6

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-00888-BNB
SHAUN A. BROWN,
Plaintiff,
v.
VAN CISE-SIMONET DETENTION CENTER,
MR. THAN, Division Chief, Van Cise-Simonet Detention Center,
CAPTAIN ROMERO, Captain, Van Cise-Simonet Detention Center,
CAPTAIN MOORE, Captain, Van Cise-Simonet Detention Center, and
SARGEANT JORDAN, Sargeant, Van Cise-Simonet Detention Center,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Shaun A. Brown, currently is incarcerated at the Denver County Jail. He
filed pro se a Prisoner Complaint (ECF No. 1) for injunctive relief and money damages.
and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 (ECF No. 3). He has been granted leave to proceed pursuant to § 1915.
The Court must construe the Prisoner Complaint liberally because Mr. Brown 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. Brown 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 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. Brown’s complaint is vague. He asserts three claims for relief, each of which
stems from his disciplinary conviction on charges of assaulting any person and
disrupting or interfering with the security or the orderly operation of the institution and
subsequent placement in punitive segregation. He fails to list in the caption to the
complaint each Defendant he is suing.
As his first claim, Mr. Brown complains that his Fourteenth Amendment due
process and equal protection rights were violated because the disposition of charges
failed to state the offenses for which he was charged and found guilty. He further
2

complains that the disposition of charges was altered after his disciplinary hearing and
after expiration of his appeal time to include these offenses. He asserts this claim
against Defendants Sergeant Jordan, Captain Romero, and Captain Moore. He fails to
explain how these incidents violated his due process and equal protection rights.
As his second claim, Mr. Brown alleges that his Eighth Amendment right to be
free from cruel and unusual punishment was violated because he spent thirty-five days
in punitive segregation instead of the thirty days to which he was sentenced. It is
unclear why he is suing Captain Romero and Sergeant Jordan for reviewing his
segregation status. He further complains that his release to a lower-custody unit placed
him in a potentially dangerous situation because the older brother of the victim of the
assault for which he was disciplined was in the same unit. He fails to allege what, if
any, serious physical injury he suffered as a result of this placement. See Farmer v.
Brennan, 511 U.S. 825 (1994); Whitley v. Albers, 475 U.S. 312, 320-21 (1986); see also
Hudson v. Palmer, 468 U.S. 517, 526-28 (1984).
As his third and final claim, Mr. Brown alleges that his Fourteenth Amendment
due process and equal protection rights were violated because a Sergeant Rutan, who
is not named as a party to this lawsuit, notified him publicly instead of privately that he
was under investigation for disciplinary charges. He fails to explain how the public
notification violated his due process and equal protection rights.
In order to state a claim in federal court Mr. Brown “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.
3

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
such deterrence fails.”). Therefore, Mr. Brown should name as defendants in his
amended complaint only those persons that he contends actually violated his federal
constitutional rights.
Mr. Brown appears to name supervisory officials as defendants. 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. Brown
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). With respect to supervisory officials, such as Defendant Mr. Than, jail division
chief, 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,
4

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.
Mr. Brown 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.
Brown 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. Brown is suing an improper party. He may not sue the Denver Van
Cise-Simonet Detention Center. The detention center 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 jail must be considered as asserted against Denver County.
In addition, municipalities 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
5

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). 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.
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. Brown
will be given an opportunity to cure the deficiencies in his complaint by submitting an
amended complaint that lists all parties in the caption, sues proper parties, 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.
Accordingly, it is
ORDERED that Plaintiff, Shaun Brown, 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. Brown 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

6

submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Brown fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the complaint 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

7