Horton v. Fenlon et al

Filing 14

ORDER to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 8/14/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01089-BNB
WILLIE HORTON,
Plaintiff,
v.
BLAKE DAVIS, Warden,
MARK COLLINS, Admin. Remedy Coordinator,
P. RANGEL, Unit Manager,
D. FOSTER, Counselor, and
A. FENLON, Case Manager,
Defendants.

ORDER TO FILE AMENDED COMPLAINT

Plaintiff, Willie Horton, is in the custody of the United States Bureau of Prisons
and currently is incarcerated at ADX in Florence, Colorado. Plaintiff, acting pro se,
initiated this action by filing a Prisoner Complaint pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau Of Narcotics, 403 U.S. 388 (1971), and various other
federal statutes.
On April 25, 2013, the Court directed Plaintiff to file his claims on a Courtapproved form used in filing prisoner complaints and either to pay the filing fee in full or
submit a request to proceed pursuant to 28 U.S.C. § 1915. After being granted an
extension of time to comply, Plaintiff, on May 28, 2013, paid the $350 filing fee and filed
his claims on a Court-approved form.

The Court must construe the Complaint liberally because Plaintiff is a pro se
litigant. 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 act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110.
Under Section D., “Cause of Action,” Plaintiff identifies three claims. Under each
of these claims, Plaintiff states, “Plaintiff would like to incorporate and adopt by
reference paragraphs 1 thru 25, the cause of action section of Complaint No.: 12-cv00349-REB-BNB and the amendment to that complaint.” Compl., ECF No. 11, at 8.
The Court has reviewed Case No. 12-cv-00349. There are only thirteen paragraphs
identified in the complaint filed on February 9, 2012, in that case. Also in Case 12-cv00349, Judge Lewis T. Babcock reviewed the complaint and dismissed Plaintiff’s court
access and photocopy claims as legally frivolous. Plaintiff then filed an amendment,
which was accepted. The action ultimately was dismissed, including Plaintiff’s
retaliation and court access claims, for failure to exhaust administrative remedies. For
the following reasons, the Court will direct Plaintiff to file a Second Amended Complaint
that states specifically the claims he is challenging in this action.
Although under Fed. R. Civ. P. 10(c) a “statement in a pleading may be adopted
by reference elsewhere in the same pleading or in any other pleading or motion,” Rule
10(c) does not indicate that references to a previous action are included in this
provision. Even if the Court were to allow references to entries in a previous action, the
later pleading should be specific and clear as to what portions of the pleading in the
previous action are incorporated. See U.S. Fidelity and Guarantee Co. v. U.S. Sports
Specialty Ass’n, No. 07-cv-00996-TS (D. Utah June 25, 2012) (citing Gen. Accident Ins.
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Co. of Am. v. Fidelity & Deposit Co. of Md., 598 F. Supp. 1223, 1229 (E. D. Pa. 1984)).
Plaintiff’s references are not clear. Furthermore, “[a]n amended complaint ‘supersedes
the pleading it modifies and remains in effect throughout the action unless it
subsequently is modified.’ ” See Hooten v. Ikard Servi Gas, No. 12-2179, 2013 WL
1846840 at *4 (10th Cir. May 3, 2013) (quoting Giles v. United States, 906 F.2d 1386,
1389 (10th Cir. 1990)). Finally, it is not the responsibility of the Court or Defendants to
refer to previous actions to determine what claims Plaintiff seeks to raise in this action.
Plaintiff, therefore, will be directed to amend the Complaint and state all claims
he seeks to raise in this action. Plaintiff again is directed, as he was in the May 21,
2013 Minute Order, if he needs photocopies of previous filings to complete the
Amended Complaint the reproduction of any record or paper is $.50 per page.
Accordingly, it is
ORDERED that Plaintiff file within thirty days from the date of this Order an
Amended Complaint that is in keeping with this Order. It is
FURTHER ORDERED that Plaintiff 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 the action will be dismissed without further notice if
Plaintiff fails within the time allowed to file an Amended Complaint that complies with
this Order.

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DATED August 14, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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