Harvey v. Werholtz et al

Filing 11

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 6/25/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01574-BNB
NATHANIEL JAMES HARVEY III,
Plaintiff,
v.
ROGER WERHOLTZ, Deputy Director of DOC, official capacity,
LOU ARCHULETA, Head Administrative Warden, official capacity, and
OFFICER CATHERINE SEGURA, individual and official capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Nathaniel James Harvey III, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Fremont Correctional
Facility in Cañon City, Colorado. On June 14, 2013, he filed pro se a Prisoner
Complaint (ECF No. 1) with attachments for money damages and injunctive relief. On
June 17, 2013, he filed pro se an amended Prisoner Complaint (ECF No. 6) with the
other attachments for money damages and injunctive relief. Mr. Harvey has been
granted leave to proceed pursuant to 28 U.S.C. § 1915. He also has filed two
documents titled “Declaration.” ECF Nos. 4 and 5.
The Court must construe liberally the amended Prisoner Complaint because Mr.
Harvey 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. Harvey will be ordered to file a second amended Prisoner
Complaint if he wishes to pursue his claims in this action.
The Court has reviewed the amended 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. Harvey’s amended complaint is unnecessarily wordy. He asserts three
claims for relief concerning an alleged strip search. Mr. Harvey 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
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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).
Mr. Harvey also is advised that § 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. Harvey should name as
defendants in his second 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. Harvey 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
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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. Harvey 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.
Harvey uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Finally, Rule 10.1 of the Local Rules of Practice for this Court requires that all
papers filed in cases in this Court must be double-spaced, legible, and have margins
that are one and a half inches at the top and one inch at the left, right, and bottom. See
D.C.COLO.LCivR 10.1C., E., and G. Mr. Harvey’s complaint and amended complaint
do not have margins and, as a result, on the official electronic Court record of these
filings, words are cut off. The second amended complaint Mr. Thurston will be directed
to file, whether handwritten or typed, shall have appropriate margins and be
double-spaced and legible, in capital and lower-case letters, in compliance with
D.C.COLO.LCivR 10.1C., E., and G.
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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. Harvey will be given an opportunity to cure the deficiencies in his amended
complaint by submitting a second 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
declarations, attachments, amendments, supplements, motions, or other documents not
included in the second amended complaint. The second amended complaint also may
not refer to previously filed documents, but must stand on its own.
Accordingly, it is
ORDERED that Plaintiff, Nathaniel James Harvey III, file within thirty (30) days
from the date of this order a second 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. Harvey 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 amended complaint. It is
FURTHER ORDERED that, if Mr. Harvey fails to file a second amended Prisoner

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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 25, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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