Shepard v. Colorado Department of Corrections, The

Filing 9

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 8/15/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01962-BNB
KENNETH L. SHEPARD,
Plaintiff,
v.
THE COLORADO DEPARTMENT OF CORRECTIONS,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Kenneth L. Shepard, currently is incarcerated at the Denver County Jail.
He submitted pro se an amended Prisoner Complaint (ECF No. 6) for money damages
and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 (ECF No. 5). Mr. Shepard has been granted leave to proceed pursuant to § 1915.
The Court must construe Mr. Shepard’s filings liberally because he 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. Shepard will be directed to file a second amended complaint.
Mr. Shepard is suing an improper party. Mr. Shepard may not sue the Colorado
Department of Corrections for money damages. The State of Colorado and its entities
are protected by Eleventh Amendment immunity. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir.
1988). "It is well established that absent an unmistakable waiver by the state of its

Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by
Congress, the amendment provides absolute immunity from suit in federal courts for
states and their agencies." Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584,
588 (10th Cir. 1994), overrruled on other grounds by Ellis v. University of Kansas Med.
Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh
Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment
immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The Eleventh
Amendment applies to all suits against the state and its agencies, regardless of the
relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th
Cir. 2003).
The second amended complaint must 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). 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),
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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. Shepard fails to provide “a generalized statement of the facts from which the
defendant may form a responsive pleading.” 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.
Mr. Shepard must present his claims in a manageable and readable format that
allows the Court and the defendants to know what claims are being asserted and to be
able to respond to those claims. Mr. Shepard 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. The Court
does not require a long, chronological recitation of facts. Nor should the Court or
defendants be required to sift through Mr. Shepard’s 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).
In the second amended complaint he will be directed to file, Mr. Shepard must
assert personal participation by each named defendant. See Bennett v. Passic, 545
F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation, Mr. Shepard
must show how each named individual caused the deprivation of a federal right. See
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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 defendant may not be held liable on a theory of respondeat superior
merely because of his or her supervisory position. See Pembaur v. City of Cincinnati,
475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). A
supervisor is only liable for constitutional violations he or she causes. See Dodds v.
Richardson, 614 F.3d 1185, 1211 (10th Cir. 2010).
Mr. Shepard 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. Shepard uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Finally, the second amended complaint must comply with Rule 10.1 of the Local
Rules of Practice for this Court, which 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 second
amended complaint Mr. Shepard 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
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 and
D.C.COLO.LCivR 10.1. Mr. Shepard will be given an opportunity to cure the
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deficiencies in his amended complaint by submitting a second amended complaint that
asserts clear and concise claims 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.
Accordingly, it is
ORDERED that Plaintiff, Kenneth L. Shepard, within thirty (30) days from the
date of this order, file a second amended complaint that complies with this order. It is
FURTHER ORDERED that the second amended complaint shall be titled
“Second Amended Prisoner Complaint,” and shall be filed with the Clerk of the Court,
United States District Court for the District of Colorado, Alfred A. Arraj United States
Courthouse, 901 Nineteenth Street, A105, Denver, Colorado 80294. It is
FURTHER ORDERED that Mr. Shepard 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 use that form in
submitting the second amended complaint. It is
FURTHER ORDERED that, if Mr. Shepard fails to file a second amended
complaint that complies with this order within the time allowed, the amended complaint
and the action will be dismissed without further notice.
DATED August 15, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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