Browning v. Davis et al

Filing 15

ORDER Directing Plaintiff to File Second and Final Amended Complaint, by Magistrate Judge Craig B. Shaffer on 7/08/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01203-BNB
ELRADER BROWNING, JR.,
Plaintiff,
v.
BLAKE DAVIS, Warden,
LOUIS MILUSNIC, Associate Warden,
MARK MUNSON, Associate Warden,
MARK COLLINS, Warden Assistant,
RUSS KRIST, Captain,
DAN SPROUL, Unit Manager, and
JEFF GEORGE, Discipline Hearing Off.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AND FINAL AMENDED COMPLAINT

Plaintiff, Elrader Browning, Jr., is a prisoner in the custody of the Federal Bureau
of Prisons who currently is incarcerated at the United States Penitentiary, Administrative
Maximum, in Florence, Colorado. He filed pro se a Prisoner Complaint (ECF No. 1)
apparently pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). He paid the $400.00 filing fee.
On June 5, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Browning to file
an amended Bivens complaint that complied with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure and alleged the personal participation of each
named Defendant. On June 28, 2013, Mr. Browning filed an amended complaint (ECF
No. 13) for money damages and injunctive relief.

The Court must construe liberally the amended Prisoner Complaint because Mr.
Browning 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. Browning will be ordered to file a second and final
amended Prisoner Complaint if he wishes to pursue his claims in this action.
Although the amended complaint is not the model of conciseness and clarity, the
Court has done its best to summarize Mr. Browning’s allegations. Mr. Browning asserts
that he received an incident report on September 14, 2010, for refusing a program
assignment. Specifically, Mr. Browning refused to participate in the double-cell
occupancy program in the step-down program by refusing to take a cell mate. As a
result of his conviction on the incident report, he received thirty days’ loss of commissary
and was removed from the step-down unit for one year. He alleges he was returned to
the general population until late September or early October 2010, when he was placed
in the Special Housing Unit (SHU) for eighteen months. He contends he was placed in
the SHU without an incident report and because he is black.
He also alleges he received a second incident report, apparently for refusing to
participate in the double-cell occupancy program, was convicted and received fifteen
days of disciplinary segregation and ninety days’ loss of telephone, commissary, and
property, and that the conviction was dismissed, apparently after he served the fifteen
days in disciplinary segregation, because he no longer was in the step-down unit. On
the basis of all these allegations, Mr. Browning contends Defendants conspired against
him to violate his due process and equal protection rights (claims one and two) and

2

falsely imprisoned him (claim three) by holding him in the SHU longer than necessary.
He asks for money damages and injunctive relief.

The amended Prisoner Complaint does not comply with the pleading
requirements of Rule 8. Mr. Browning’s amended complaint is verbose, repetitive,
vague, disorganized, and requires the Court to piece together his allegations in an
attempt to make sense of the amended complaint. For example, instead of concisely
asserting facts that demonstrate the personal participation of each Defendant within the
discussion of claim one, he creates separate subsections, divided by Defendant, under
the heading of claim one, and makes confusing, piecemeal, and repetitive allegations in
a wordy attempt to explain each Defendant’s involvement in the asserted constitutional
violations.
As Mr. Browning previously was informed in the June 5 order for an amended
complaint, 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
3

“[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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all
that is permissible, if the complaint concisely states facts upon which relief can be
granted upon any legally sustainable basis.” Id.
Mr. Browning again is advised that, in order to state a claim in federal court, he
“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). However, in so doing, he should not repeat facts over and over,
succeeding only in confusing the Court and Defendants as to his asserted claims.
It is Mr. Browning’s responsibility to present his claims in a manageable and
readable format that allows the Court and Defendants to know what claims are being
asserted and to be able to respond to those claims. Mr. Browning must allege, simply
and concisely, his specific claims for relief, including the specific rights that allegedly
have been violated and the specific acts of each Defendant that allegedly violated his
rights. The Court does not require a long, chronological recitation of facts. Nor should
the Court or Defendants be required to sift through Mr. Browning’s verbose allegations
to locate the heart of each claim. The general rule that pro se pleadings must be
4

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).
The Court again emphasizes that 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. Browning 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 official,
such as Warden Blake Davis, 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
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 Bivens or § 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
5

required to establish the alleged constitutional deprivation.” Id. at 1199.
Mr. Browning 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. Browning uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of 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 complaint does not meet the requirements of Fed. R. Civ. P. 8.
Mr. Browning will be given a final opportunity to cure the deficiencies in his amended
complaint by submitting a second and final 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, Elrader Browning, Jr., 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. Browning shall obtain the Court-approved

6

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 complaint. It is
FURTHER ORDERED that, if Mr. Browning 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 July 8, 2013, at Denver, Colorado.
BY THE COURT:

s/Craig B. Shaffer
CRAIG B. SHAFFER
United States Magistrate Judge

7