Thurston v. Stringari, et al

Filing 5

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 04/29/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01038-BNB
DONALD S. THURSTON,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS (entity),
UNKNOWN COLORADO DEPARTMENT OF CORRECTIONS SUPERVISOR,
CAPTAIN RODNEY ACHEN (D.O.C. Supervisor),
PHYSICIAN HEALTH PARTNERS (Entity),
UNKNOWN PHYSICIAN HEALTH PARTNERS STAFF,
C.D.O.C. CLINICAL SERVICES DEPARTMENT (Entity),
UNKNOWN C.D.O.C. CLINICAL SERVICES DEPARTMENT STAFF AND
PROVIDERS,
CHARLES J. SCHOEPHOERSTER, PA, Provider, Clinical Services,
ROY HAVENS, Provider, Clinical Services,
ANTHONY A. DECESARO, Grievance Officer, C.D.O.C., and
LANCE MIKLICH, Officer, C.D.O.C.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Donald S. Thurston, currently is incarcerated at the Arizona State Prison
Complex in San Luis, Arizona. He filed pro se a Prisoner Complaint (ECF No. 1, ex. 1)
for money damages in the United States District Court for the District of Arizona (District
of Arizona), which transferred the case to this Court on April 17, 2013, where it was filed
on April 19, 2013. The District of Arizona granted Mr. Thurston leave to proceed
pursuant to 28 U.S.C. § 1915.
The Court must construe liberally the Prisoner Complaint because Mr. Thurston
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. Thurston 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. Thurston’s complaint is unnecessarily prolix. He asserts three claims for
relief concerning an injury and lack of medical treatment for the injury. In order to state
a claim in federal court, Mr. Thurston “must explain what each defendant did to him or
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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).
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. Thurston 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. Thurston 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
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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
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. Thurston is suing a grievance officer, Anthony A. DeCesaro, whose only
apparent involvement in the alleged constitutional violations was to deny a grievance.
Such allegations are not sufficient to hold this Defendant liable under § 1983. "[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."
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
Mr. Thurston 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.
Thurston uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Mr. Thurston is suing improper parties. He may not sue the DOC or its clinical
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services department for money damages. The State of Colorado and its entities are
protected by Eleventh Amendment immunity. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir.
1988). "It is well established that absent an unmistakable waiver by the state of its
Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by
Congress, the amendment provides absolute immunity from suit in federal courts for
states and their agencies." Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584,
588 (10th Cir. 1994), overrruled on other grounds by Ellis v. University of Kansas Med.
Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh
Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment
immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The Eleventh
Amendment applies to all suits against the state and its agencies, regardless of the
relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th
Cir. 2003).
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. Thurston 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
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finds that the complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr.
Thurston 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, Donald S. Thurston, 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
FURTHER ORDERED that Mr. Thurston 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 must
use that form in submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Thurston 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 April 29, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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