Rohn v. Nestor et al

Filing 8

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/17/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02117-BNB
RONALD ROHN,
Plaintiff,
v.
NESTOR, et al.,
TOM NESTOR, Sheriff,
CLINT TWEDEN, Captain,
CURTIS WYNESKY, Deputy Sheriff,
CARMELA NESTOR, Deputy Sheriff, and
THERESA DIXON, Deputy Sheriff,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Ronald Rohn, is a prisoner in the custody of the Colorado Department of
Corrections at the Arrowhead Correctional Center in Cañon City, Colorado. Mr. Rohn
initiated this action by filing pro se a Complaint Pursuant to 42 U.S.C. 1983 (ECF No. 1)
alleging that his rights under the United States Constitution have been violated. On
September 9, 2013, Mr. Rohn filed an amended complaint using the court-approved
Prisoner Complaint form. (See ECF No. 5.) He seeks damages and other relief.
The court must construe the Prisoner Complaint liberally because Mr. Rohn 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. Rohn will be ordered to file a second 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. Rohn 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 Prisoner Complaint also is deficient because the claims Mr. Rohn asserts
are vague and conclusory. Mr. Rohn contends that his home was burglarized at some
unspecified time while he was confined at the Lincoln County, Colorado, Detention
Center, resulting in a loss of more than $20,000.00 worth of personal property and that
he was prevented from filing a police report to initiate an investigation of the burglary.
According to Mr. Rohn, Lincoln County deputy sheriffs Curtis Wynesky, Carmela Nestor,
and Theresa Dixon ignored his requests to file a police report and initiate an
investigation and Lincoln County, Sheriff Tom Nestor, failed to respond to kites he wrote
seeking assistance. Mr. Rohn specifically claims that he was denied equal protection
and subjected to cruel and unusual punishment because he was prevented from filing a
police report regarding the burglary of his home. He asserts a third claim against
Defendants Clint Tweden and Curtis Wynesky because they allegedly threatened Mr.
Rohn with physical harm if he tried to pursue a complaint against them.
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Mere vague and conclusory allegations that federal constitutional rights have
been violated does not entitle a pro se pleader to a day in court, regardless of how
liberally the court construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399,
1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992). “[I]n analyzing the sufficiency
of the plaintiff’s complaint, the court need accept as true only the plaintiff’s well-pleaded
factual contentions, not his conclusory allegations.” Hall, 935 F.2d at 1110.
Mr. Rohn’s claims in the Prisoner Complaint are vague and conclusory because
he fails to allege specific facts in support of those claims. With respect to the equal
protection claim, it is not clear what any Defendant did to treat Mr. Rohn differently than
similarly situated inmates. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996).
With respect to the cruel and unusual punishment claim, Mr. Rohn fails to allege facts
that demonstrate he was subjected to inhumane conditions of confinement or that any
Defendant acted with deliberate indifference to his health or safety. See Farmer v.
Brennan, 511 U.S. 825 (1994). Similarly, Mr. Rohn fails to allege in support of his third
claim, which also appears to be an Eighth Amendment claim, that he was subjected to
inhumane conditions of confinement because verbal threats and harassment do not rise
to the level of cruel and unusual punishment. See Northington v. Jackson, 973 F.2d
1518, 1524 (10th Cir. 1992).
For these reasons, Mr. Rohn must file an amended complaint if he wishes to
pursue his claims in this action. For each claim he asserts in the amended complaint,
Mr. Rohn “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,
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492 F.3d 1158, 1163 (10th Cir. 2007). 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).
“Individual liability under § 1983 must be based on personal involvement in the
alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997).
Thus, a defendant 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). Although a defendant can be liable in a § 1983 action based on his or her
supervisory responsibilities, a claim of supervisory liability must be supported by
allegations that demonstrate personal involvement, a causal connection to the
constitutional violation, and a culpable state of mind. See Schneider v. City of Grand
Junction Police Dept., 717 F.3d 760, 767-69 (10th Cir. 2013) (discussing standards for
supervisory liability). Accordingly, it is
ORDERED that Mr. Rohn file, within thirty (30) days from the date of this
order, a second amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Rohn 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. Rohn fails to file a second amended complaint
that complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED September 17, 2013, at Denver, Colorado.
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BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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