Lee v. Banuelos et al
Filing
7
ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 07/19/13. (nmmsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01895-BNB
MARIO ANTON LEE,
Plaintiff,
v.
CHARLES DANIELS, Warden,
BERRY, Lieutenant,
BENUELOS, Lieutenant,
HAROLD WATTS, Administrator Remedy Coordinator,
UNKNOWN NAMED CENTRAL REGIONAL OFFICE ADMINISTRATIVE
REMEDY COORDINATOR,
S. JARDIN, Administrative Remedy Coordinator,
J. WISEMAN, Officer,
M. EBENHART, Officer,
ERPS, Officer,
MOHLER, Officer,
UNKNOWN NAME INVESTIGATOR,
LITVAN, Lieutenant,
UNKNOWN NAMED TEAM MEMBERS,
THOMPSON, Nurse,
LEE, Officer,
SHORT, Officer,
MARTÍNEZ, Lieutenant,
COREY, Officer,
UNKNOWN NAME, Nurse Team Member,
SYNDER, Captain, and
ROY, Officer,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Mario Anton Lee, is a prisoner in the custody of the Federal Bureau of
Prisons who currently is incarcerated at the United States Penitentiary, High Security, in
Florence, Colorado. He submitted pro se a Prisoner Complaint (ECF No. 1) for money
damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). He was granted leave to proceed
pursuant to 28 U.S.C. § 1915.
The Court must construe liberally the Prisoner Complaint because Mr. Lee 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. Lee will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
Mr. Lee’s complaint fails to comply with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure. The complaint is verbose, disorganized, and
vague. Mr. Lee asserts eight claims for relief, only some of which assert constitutional
violations and each of which is contained in a separate document titled “Application of
Excessive Inappropriate Use and Abuse of Force.” ECF No. 4. The claims concern
excessive force, inadequate medical care, and interference with the grievance process.
The amended Prisoner Complaint Mr. Lee files must comply with the pleading
requirements of Rule 8. 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
2
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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[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.” Id.
In order to state a claim in federal court, Mr. Lee “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). However, in so doing, he should not repeat facts over and over, succeeding only
in confusing the Court and Defendants as to his asserted claims.
Mr. Lee must present his claims in a manageable and readable format that
allows the Court and Defendants to know what claims are being asserted and to be able
3
to respond to those claims. Mr. Lee must allege, simply and concisely, his specific
claims for relief, including the specific rights that allegedly have been violated and the
specific acts of each Defendant that allegedly violated his rights. A long, chronological
recitation of facts is not required. Nor should the Court or Defendants be required to sift
through Mr. Lee’s verbose allegations to locate the heart of each claim. 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).
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. Lee 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
4
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. Lee appears to be suing grievance officers whose only apparent 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. Lee 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.
Lee 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 be double-spaced and legible. See D.C.COLO.LCivR
10.1E. and G. The amended complaint Mr. Lee 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
5
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. Lee
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. Lee 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, Mario Anton Lee, 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. Lee 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
in submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Lee 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.
6
DATED July 19, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?