Murphey v. Denver Sheriff Dept et al

Filing 15

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/3/13. (dkals, )

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 OF DISMISSAL

Plaintiff, Jerry Murphey, is incarcerated at the Denver County Jail. He filed pro
se an amended Prisoner Complaint (ECF No. 9) pursuant to 42 U.S.C. § 1983 and
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), 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 was granted leave to proceed pursuant to § 1915.
On October 16, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Murphey to
file within thirty days a second amended Prisoner Complaint that properly asserted his
claims pursuant to § 1983 only, sued the proper parties, complied with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure, and alleged the

personal participation of each named Defendant. The order warned Mr. Murphey that if
he failed to file a second amended Prisoner Complaint as directed within the time
allowed, some claims and Defendants, or the entire amended complaint and action,
may be dismissed without further notice. On October 28 and November 19, 2013,
partial payments of the filing fee were received by the Court. See ECF Nos. 13 and 14.
However, Mr. Murphey has failed within the time allowed to comply with the directives of
the October 16 order by filing a second amended complaint.
Mr. Murphey’s allegations in the amended complaint are vague and conclusory.
He alleges that he slipped on a wet floor and fell due to negligence by the sheriff’s
department, apparently injuring himself, and was unable to receive proper medical
attention. He also makes generally incomprehensible allegations which appear to
concern the medical care he believed he was denied, including pain medication, a
magnetic resonance imaging (MRI) test, and an X-ray. Mr. Murphey fails to assert what
injury, if any, he suffered from the fall. Merely making vague and conclusory allegations
that his 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. Murphey also may not sue the Denver city and county state entities named
as Defendants, and may not sue the state entity for money damages. Even treating the
Defendant identified only as “Doctor for Malpractice” as a John Doe, Mr. Murphey failed
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to allege sufficient facts to establish his personal participation in any constitutional
violation or provide sufficient information so that he or she can be identified for purposes
of service.
The amended Prisoner Complaint failed to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure for the reasons stated in
the October 16 order, and will be dismissed for failure to comply with Rule 8.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Murphey files a notice of appeal he also must pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the amended Prisoner Complaint filed on September 18, 2013,
and the action are dismissed without prejudice pursuant to Rules 8 and Rule 41(b) of
the Federal Rules of Civil Procedure for the failure of Plaintiff, Jerry Murphey, within the
time allowed to file a second amended Prisoner Complaint as directed in the order of
October 16, 2013 (ECF No. 12). It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED December 3, 2013, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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