Aragon v. Erlanger et al

Filing 5

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 07/02/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01726-BNB
RUBEN ARAGON,
Plaintiff,
v.
RABBI ROSSKAMM ERLANGER,
CAPTAIN GUY EDMONDS,
LT. JEFFREY HILL, and
SGT. MITCHELL BUTTERFIELD,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Ruben Aragon, is a prisoner in the custody of the Colorado Department
of Corrections at the Buena Vista Correctional Complex in Buena Vista, Colorado. Mr.
Aragon has filed pro se a Prisoner Complaint (ECF No. 1) claiming his rights under the
United States Constitution and the Religious Land Use and Institutionalized Persons Act
have been violated. He seeks damages as well as declaratory and injunctive relief.
The court must construe the Prisoner Complaint liberally because Mr. Aragon 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. Aragon 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 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. Aragon fails to provide a short and plain statement of his claims showing that
he is entitled to relief because he fails to allege clearly and concisely how each
Defendant personally participated in the asserted violations of his rights. To the extent
Mr. Aragon is asserting § 1983 claims against Defendants in their individual capacities,
“personal participation in the specific constitutional violation complained of is essential.”
Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). Mr. Aragon’s repetitive and
conclusory allegations that Defendants conspired to violate his constitutional rights is
not sufficient to demonstrate personal participation by each named Defendant.
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Therefore, Mr. Aragon will be ordered to file an amended complaint. For each
claim he asserts in the amended complaint, Mr. Aragon “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
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. Aragon 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. Aragon 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. Aragon fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.

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DATED July 2, 2013, at Denver, Colorado.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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