Coplen v. Osagie et al

Filing 9

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 06/24/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01429-BNB
SCOTT ALEX COPLEN,
Plaintiff,
v.
ANTHONY OSAGIE,
DAVID ALLRED,
C. DANIELS,
D. BERKEBILE,
LISA GREGORY,
PAUL HARVEY,
(FNU) NEHLS,
PAUL LAIRD,
(FNU) MCDERMOTT, and
FEDERAL BUREAU OF PRISONS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Scott Alex Coplen, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP) who currently is incarcerated at the United States Penitentiary,
Administrative Maximum, in Florence, Colorado. He has submitted pro se a Prisoner
Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). He has been granted leave to proceed
pursuant to 28 U.S.C. § 1915. He asks for money damages and injunctive relief.
The Court must construe liberally the Prisoner Complaint because Mr. Coplen 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. Coplen will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
Mr. Coplen is suing an improper party. He may not sue the BOP in a Bivens
action. The United States, as sovereign, is immune from suit unless it expressly
consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976); Bivens, 403
U.S. at 410; Ascot Dinner Theatre, Ltd. v. Small Business Admin., 887 F.2d 1024, 1027
(10th Cir. 1989).
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. Coplen 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 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 § 1983 suit against a government
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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. Coplen appears to be suing grievance officers whose only involvement in the
alleged constitutional violations was to deny a grievance. Such allegations are not
sufficient to hold a defendant liable under Bivens. The denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by plaintiff, does
not establish personal participation in the alleged constitutional violations. See Arocho
v. Nafziger, 367 F. App’x 942, 955 (10th Cir. 2010), citing Whitington v. Ortiz, 307 F.
App’x 179, 193 (10th Cir. 2009).
Mr. Coplen 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.
Coplen uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
The amended Prisoner Complaint Mr. Coplen files must 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.
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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. Coplen’s complaint is vague. He asserts three claims for relief, two
concerning a lack of medical treatment for a painful and degenerating back condition,
and one concerning an allegedly false incident report and transfer to the Special
Housing Unit, apparently in retaliation for filing grievances or lawsuits. In order to state
a claim in federal court, Mr. Coplen “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). 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).
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
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10.1E. and G. The amended complaint Mr. Coplen 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
finds that the complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr.
Coplen 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. Mr. Coplen
must provide the full address for each named defendant. 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, Scott Alex Coplen, 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. Coplen 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

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in submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Coplen 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 June 24, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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