Hallcy v. Werholtz et al

Filing 7

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 07/25/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01693-BNB
BILLY VON HALLCY,
Plaintiff,
v.
INTERIM EX. DIRECTOR ROGER WERHOLTZ, et al.,
OFFICER DeHERRERA, Personal Capacity,
LIEUTENANT SCAVARDA (4439), Personal Capacity,
CAPTAIN VORWALD (1785), Personal Capacity,
OFFICER MILLER Personal Capacity, and
OFFICER DENNINGTON, Personal Capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Billy Von Hallcy, is a prisoner in the custody of the Colorado Department
of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Hallcy has
filed pro se a Prisoner Complaint (ECF No. 4) pursuant to 42 U.S.C. § 1983 claiming
that his rights under the United States Constitution have been violated. He seeks
damages as relief.
The court must construe the Prisoner Complaint liberally because Mr. Hallcy 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. Hallcy will be ordered to file an amended complaint if he wishes to pursue his
claims in this action.

The court has reviewed the Prisoner Complaint and finds that the Prisoner
Complaint is deficient. For one thing, it is not clear exactly who Mr. Hallcy is suing
because he improperly uses “et al.” in the caption of the Prisoner Complaint. Pursuant
to Rule 10(a) of the Federal Rules of Civil Procedure, “[t]he title of the complaint must
name all the parties.” Pursuant to Rule 10.1J. of the Local Rules of Practice of the
United States District Court for the District of Colorado-Civil, “[p]arties shall be listed in a
caption with one party per line. The proper name of a party shall be in capital letters,
and any identifying text shall be in upper and lower case immediately following the
proper name.”
The court also finds that the Prisoner Complaint 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
2

emphasis placed on clarity and brevity by the federal pleading rules. Prolix, vague, or
unintelligible pleadings violate Rule 8.
Mr. Hallcy fails to provide a short and plain statement of his claims showing he is
entitled to relief. Mr. Hallcy alleges that a lamp was taken from his property following a
shakedown of his cell in February 2013, that he filed a series of grievances regarding
the lamp following the shakedown, and that Defendants have harassed and threatened
him. However, it is not clear what specific claim or claims Mr. Hallcy is asserting
against each named Defendant, what specific constitutional rights allegedly have been
violated, and how each named Defendant personally participated in the asserted
constitutional violations. Mr. Hallcy is asserting § 1983 claims against Defendants in
their individual capacities, and “personal participation in the specific constitutional
violation complained of is essential.” Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir.
2011). Mr. Hallcy’s repetitive and conclusory allegations that Defendants are part of a
conspiracy and that various constitutional amendments have been violated are not
sufficient to identify the specific rights allegedly violated or to demonstrate personal
participation by each named Defendant.
For these reasons, Mr. Hallcy will be ordered to file an amended complaint. For
each claim he asserts in the amended complaint, Mr. Hallcy “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). “It 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.” New
3

Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957).
Furthermore, 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). Accordingly, it is
ORDERED that Mr. Hallcy file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Hallcy 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, if Mr. Hallcy fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED July 25, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

4