McClain v. Berkebile et al
Filing
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ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 7/22/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01742-BNB
CLAUDE McCLAIN,
Plaintiff,
v.
D. BERKEBILE, Warden, F.P.C. Florence,
FNU MNU LNU, Regional Medical Director, North Central Region, Federal Bureau of
Prisons, and
DR. SANTINI, Physician Care Provider, F.P.C. Florence,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Claude McClain, is a prisoner in the custody of the Federal Bureau of
Prisons at the Federal Prison Camp in Florence, Colorado. Mr. McClain has filed pro se
a Prisoner Complaint (ECF No. 5) claiming his rights under the United States
Constitution have been violated. He seeks damages as well as injunctive relief.
The court must construe the Prisoner Complaint liberally because Mr. McClain 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. McClain 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. McClain 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. Because Mr.
McClain is asserting constitutional claims against Defendants in their individual
capacities, allegations of “personal participation in the specific constitutional violation
complained of [are] essential.” Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011).
Mr. McClain’s vague and generic assertions that “Defendants” have been deliberately
indifferent to his serious medical needs is not sufficient to demonstrate personal
participation by each named Defendant. In addition, to the extent Mr. McClain may be
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seeking to hold one or more Defendants liable for denying administrative grievances,
the court notes “that a denial of a grievance, by itself without any connection to the
violation of constitutional rights alleged by plaintiff, does not establish personal
participation.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
For these reasons, Mr. McClain will be ordered to file an amended complaint.
For each claim he asserts in the amended complaint, Mr. McClain “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). 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). Finally, “[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.” New Home Appliance Ctr., Inc., v.
Thompson, 250 F.2d 881, 883 (10th Cir. 1957). Accordingly, it is
ORDERED that Mr. McClain 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. McClain 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. McClain fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
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further notice.
DATED August 22, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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