Thurston v. Stringari, et al

Filing 7

ORDER Directing Plaintiff To File Second and Final Amended Complaint, by Magistrate Judge Boyd N. Boland on 6/6/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01038-BNB
DONALD S. THURSTON,
Plaintiff,
v.
ROY HAVENS for Clinical Services,
SGT. STRINGARI, C.D.O.C. Officer,
CPT. RODNEY ACHEN, C.D.O.C. Officer,
UNKNOWN COLORADO DEPARTMENT OF CORRECTIONS STAFF,
UNKNOWN PHYSICIAN HEALTH PARTNERS STAFF,
UNKNOWN CLINICAL SERVICES STAFF AND PROVIDERS,
B. WOODCOCK, R.N. for Clinical Services,
E. WHITTAKER, R.N. for Clinical Services, and
CHARLES J. SCHOEPHOERSTER, PA for Clinical Services
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AND FINAL 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.
On April 29, 2013, the Court ordered Mr. Thurston to file within thirty days an
amended complaint on the Court-approved Prisoner Complaint form that complied with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, alleged the

personal participation of each named Defendant in the asserted constitutional violations,
and sued the proper parties. On May 28, 2013, Mr. Thurston submitted an amended
Prisoner Complaint.
The Court must construe liberally the amended 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 a second and final
amended Prisoner Complaint if he wishes to pursue his claims in this action.
The Court has reviewed the amended Prisoner Complaint and finds that, like the
Prisoner Complaint Mr. Thurston originally filed, it does not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. As the Court informed
Mr. Thurston in the April 29 order, 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
2

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 amended complaint is vague and conclusory. He again asserts
three claims for relief concerning an injury and lack of medical treatment for the injury.
However, he has failed to “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). As the Court previously explained, 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. Thurston must explain how each Defendant
allegedly violated his constitutional rights. He may not simply name Defendants in the
caption or body of the complaint, or make generalizations in the text of his claims as to
Defendants’ supposed involvement in constitutional violations.
As the April 29 order made clear, 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
3

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).
Although the April 29 order explained that Mr. Thurston may use fictitious names,
such as “John or Jane Doe,” Mr. Thurston has failed to provide sufficient information
about each defendant so that the defendant can be identified for purposes of service.
Mr. Thurston’s vague references to Defendants such as “Unknown Colorado Dept. of
Corrections Staff,” “Unknown Physician Health Partners Staff,” and “Unknown Clinical
Services Staff and Providers” fail to provide the Court with sufficient information to effect
service. These references also are insufficient to demonstrate personal participation.
Moreover, Mr. Thurston also must provide an address for each named Defendant in
order for the Court to effect service.
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 amended Prisoner Complaint does not meet the requirements of Fed. R.
Civ. P. 8. Mr. Thurston will be given a final opportunity to cure the deficiencies in his
amended complaint by submitting a second and final amended Prisoner 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 second and final amended Prisoner Complaint.
4

Accordingly, it is
ORDERED that Plaintiff, Donald S. Thurston, file within thirty (30) days from
the date of this order a second and final 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. 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 shall
use that form in submitting the second and final amended Prisoner Complaint. It is
FURTHER ORDERED that, if Mr. Thurston fails to file a second and final
amended Prisoner Complaint that complies with this order within the time allowed, the
amended Prisoner Complaint and the action will be dismissed without further notice.
DATED June 6, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

5