Dunann v. Raemisch et al

Filing 7

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/16/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02295-BNB
DENNIS DUNANN,
Plaintiff,
v.
RICK RAEMISCH, Executive Director Colo. Dept. of Corrections,
WARDEN FALK, Warden of Sterling Correctional Facility, and
LIEUTENANT SCOTT, A.D.A. Coordinator, Sterling Correctional Facility,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Dennis Dunann, is a prisoner in the custody of the Colorado Department
of Corrections who currently is incarcerated at the correctional facility in Sterling,
Colorado. He filed pro se a Prisoner Complaint (ECF No. 1) that fails to state a request
for relief in a clear manner, see ECF No. 1 at 13, although he does appear to seek
injunctive relief, see ECF No. 1 at 3, 6, 11, and may also seek money damages. See
ECF No. 1 at 6. He has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Prisoner Complaint liberally because Mr. Dunann 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. Dunann will be ordered to file an amended Prisoner Complaint if he wishes
to pursue his claims in this action.

The Court has reviewed the 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.
Mr. Dunann fails to state a request for relief in a clear manner in the section of
the Prisoner Complaint form designated for such request. He alleges that he is 65
years old, dependent on a wheelchair for mobility, and requires two hearing aids to help
him hear at a minimal level. He further alleges that he was a claimant in Montez v.
Hickenlooper, No. 92-cv-00870-CMA-OES, and was approved for a wheelchair, hearing
aids, and assignment to an accessible cell. He does not complain that he has been
denied a wheelchair, hearing aids, or assignment to an accessible cell. Instead, he
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claims that his Eighth Amendment right to be free from cruel and unusual punishment
has been violated because he has been placed in a too-small handicapped cell with
another inmate. He alleges that he was threatened by a former inmate, see ECF No. 1
at 9, but not the inmate with whom he currently shares a cell.
Mr. Dunann apparently disagrees with the conditions of his confinement because
he contends his cell is too small to accommodate two co-inmates. The Supreme Court
of the United States has observed that “[t]o the extent that [prison] conditions are
restrictive and even harsh, they are part of the penalty that criminal offenders pay for
their offense against society.” Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981); see
also Battle v. Anderson, 788 F.2d 1421, 1427-28 (10th Cir. 1986) (affirming that a prison
is “not a nursery school” but a place for confining convicted felons). In addition, Plaintiff
must demonstrate that he has suffered some actual or threatened injury, that the injury
was caused by the defendants, and that a favorable judicial decision is likely to redress
the injury. Valley Forge Christian College v. Americans United for Separation of Church
& State, Inc., 454 U.S. 464, 472 (1982); Hackford v. Babbitt, 14 F.3d 1457, 1464 (10th
Cir. 1994).
In order to state a claim in federal court, Mr. Dunann “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). 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 &
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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. Dunann should name as defendants in his
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. Dunann 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 officials 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
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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. Dunann 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.
Dunann 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 complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr.
Dunann 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. 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, Dennis Dunann, file, within thirty (30) days from the
date of this order, an amended Prisoner Complaint that complies with the pleading
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requirements of Rule 8 of the Federal Rules of Civil Procedure and alleges the personal
participation of each named defendant. It is
FURTHER ORDERED that Mr. Dunann 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 amended complaint. It is
FURTHER ORDERED that, if Mr. Dunann fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, some claims against
some defendants, or the entire action, may be dismissed without further notice.
DATED October 16, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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