Murphey v. Denver Sheriff Dept et al

Filing 12

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/16/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02241-BNB
JERRY MURPHEY,
Plaintiff,
v.
DENVER DETENTION CENTER [(] D.D.C.[)],
DENVER SHERRIFF [sic] DEPT. in,
CITY OF DENVER COUNTY OF DENVER in,
STATE OF COLORADO
COUNTY JAIL in,
CITY JAIL,
DENVER HEALTH MEDICAL, and
DOCTOR FOR MALPRACTICE,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Jerry Murphey, currently is incarcerated at the Denver County Jail. He
filed pro se an amended Prisoner Complaint (ECF No. 9) for injunctive relief and
unspecified money damages and an amended Prisoner’s Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 7). He has been granted leave to
proceed pursuant to § 1915.
The Court must construe the amended Prisoner Complaint liberally because Mr.
Murphey 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. Murphey will be ordered to file a second amended

complaint if he wishes to pursue his claims in this action.
Mr. Murphey improperly asserts his claims in the amended Prisoner Complaint
pursuant to both Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), and to 42 U.S.C. § 1983. See ECF No. 9 at 3. “Under Bivens, an
individual has a cause of action against a federal official in his individual capacity for
damages arising out of the official’s violation of the United States Constitution under
color of federal law or authority.” See Dry v. United States, 235 F.3d 1249, 1255 (10th
Cir. 2000) (emphasis in original). Because the defendants in the amended Prisoner
Complaint are Denver city and county and state entities, as well as a state official, it
appears that any federal claims Mr. Murphey may be asserting properly are asserted
pursuant to § 1983. Section 1983 “provides a federal cause of action against any
person who, acting under color of state law, deprives another of his federal rights.”
Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161
(1992) (“[T]he purpose of § 1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed rights and to provide relief
to victims if such deterrence fails.”).
Mr. Murphey also appears to be suing improper parties. He may not sue the
Denver Detention Center, Denver Sheriff’s Department, County Jail, or City Jail. These
defendants are not separate entities from Denver County and, therefore, are not
persons under § 1983. See Stump v. Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991),
aff'd, 986 F.2d 1429 (10th Cir. 1993). Any claims asserted against these entities must
be considered as asserted against the City and County of Denver.
In addition, municipalities and municipal entities, such as the City and County of
2

Denver, are not liable under § 1983 solely because their employees inflict injury on a
plaintiff. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978);
Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). To establish liability,
a plaintiff must show that a policy or custom exists and that there is a direct causal link
between the policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989). Plaintiff cannot state a claim for relief against Denver City and
County under § 1983 merely by pointing to isolated incidents. See Monell , 436 U.S. at
694.
Mr. Murphey also may not sue the State of Colorado or Denver Health Medical
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).
3

The Court has reviewed the substance of the amended Prisoner Complaint and
finds that it 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.
In his amended complaint, Mr. Murphey alleges that he slipped on a wet floor
and fell, apparently injured himself, and was unable to receive proper medical attention.
He also makes allegations which the Court finds difficult to understand but which appear
to concern the medical care he believes he was denied, including a magnetic resonance
imaging (MRI) test and X-ray. Mr. Murphey fails to assert what injury he suffered from
the alleged fall.
In order to state a claim in federal court, Mr. Murphey “must explain what each
4

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). 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 addition, § 1983 “provides a federal cause of action against any person who,
acting under color of state law, deprives another of his federal rights.” Conn v. Gabbert,
526 U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“[T]he
purpose of § 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to victims if
such deterrence fails.”). Therefore, Mr. Murphey should name as defendants in his
second amended complaint only those persons that he contends actually violated his
federal constitutional rights.
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. Murphey 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). With respect to supervisory officials, a defendant

5

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
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. Murphey 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. Murphey uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
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 amended complaint does not meet the requirements of Fed. R. Civ. P. 8.
Mr. Murphey will be given an opportunity to cure the deficiencies in his amended
6

complaint by submitting a second amended complaint that sues proper parties, 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.
Accordingly, it is
ORDERED that Plaintiff, Jerry Murphey, file, within thirty (30) days from the
date of this order, a second amended Prisoner Complaint that complies with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure as discussed in
this order. It is
FURTHER ORDERED that Mr. Murphey 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. Murphey fails to file a second amended
Prisoner Complaint that complies with this order within the time allowed, some claims
and defendants, or the entire amended complaint and action, may be dismissed without
further notice.

7

DATED October 16, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

8