Carrier v. Lundstedt et al

Filing 16

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 1/02/2014. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02933-BNB
JOSHUA D. CARRIER,
Plaintiff,
v.
MICHELLE LUNDSTEDT, sued in her individual capacity,
AMY FITCH, sued in her individual capacity,
ANDY BRYANT, sued in his individual capacity,
JOHN DOE JAIL COMMANDER, sued in his individual and official capacities,
JANE DOE JAIL UNDERSHERIFF, sued in her individual and official capacities,
DAN MAY, sued in his individual and official capacities, and
COUNTY OF EL PASO, sued in its official capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Joshua D. Carrier, is incarcerated at Old County Correctional Facility in
Bridgewater, Massachusetts. He submitted pro se an amended Complaint (ECF No.
10) for money damages pursuant to 42 U.S.C. § 1983. He has been granted leave to
proceed pursuant to § 1915.
The Court must construe the amended Complaint liberally because Mr. Carrier 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. Carrier will be ordered to file a second amended Complaint if he wishes to
pursue his claims in this action.

Mr. Carrier fails to list all Defendants in the caption to the amended Complaint,
which is not on the Court-approved form for filing a Prisoner Complaint that he was
directed to use in the order to cure of November 14, 2013. The November 14 order
specifically directed Mr. Carrier to obtain the Court-approved form for filing a Prisoner
Complaint (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov, to use that form in filing
the second amended Complaint. He has failed to do so.
Local Rules 1.2 and 5.1(c) of the Local Rules of Practice--Civil for this Court
require litigants to use the Court-approved forms found on the Court’s website. The
United States Court of Appeals for the Tenth Circuit repeatedly has upheld the
requirement that pro se litigants comply with local court rules requiring use of proper
Court-approved forms and rejected constitutional challenges to such rules. See
Georgacarakos v. Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (district court did
not abuse its discretion in dismissing civil rights action without prejudice for federal
prisoner's noncompliance with local rules requiring use of proper court-approved form to
file complaint and district court's order to comply), Durham v. Lappin, 346 F. App'x 330,
332-33 (10th Cir. 2009) (it was within district court's discretion to dismiss prisoner's
complaint for failure to comply with local rules requiring pro se litigants to use
court-approved forms, and local rule did not violate prisoner's equal protection rights);
Kosterow v. United States Marshal's Serv., 345 F. App'x 321, 322-33 (10th Cir. 2009) (it
was within district court's discretion to dismiss complaint for failure to use proper court
form); Young v. United States, 316 F. App'x 764, 769-71 (10th Cir. 2009) (district court
order dismissing federal prisoner's pro se civil rights complaint without prejudice to his
2

ability to refile, based on his repeated refusal to comply with district court order directing
him to file amended complaint on court-approved prisoner complaint form as required
by local district court rule, was not abuse of discretion or constitutional violation); Maunz
v. Denver Dist. Court, 160 F. App'x 719, 720-21 (10th Cir. 2005) (district court did not
abuse its discretion in dismissing inmate's federal action where inmate failed to file
habeas corpus application on proper form designated by district court); Daily v.
Municipality of Adams County, 117 F. App'x 669, 671-72 (10th Cir. 2004) (inmate's
failure to comply with local rule requiring pro se prisoners to use court's forms to file
action was not nonwillful, and inmate's failure to use required form supported dismissal
of action). Therefore, Mr. Carrier will be directed to file a second amended Complaint
on the proper, Court-approved Prisoner Complaint form.
The amended Complaint suffers from other deficiencies. Mr. Carrier appears to
be suing improper parties. Municipalities and municipal entities, such as the County of
El Paso, 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 El Paso County
under § 1983 merely by pointing to isolated incidents. See Monell , 436 U.S. at 694.
Mr. Carrier may not sue Defendants Amy Fitch, Andy Bryant, or Dan May under
§ 1983 because he may not sue individual prosecutors in a civil rights action. These

Defendants are entitled to absolute immunity. This is because state and federal
3

prosecutors are entitled to absolute immunity in suits pursuant to § 1983 and Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for
activities within the scope of their prosecutorial duties. See Imbler v. Pachtman, 424
U.S. 409, 420-24 (1976); see also Butz v. Economou, 438 U.S. 478, 504 (1978) Mr.
Carrier’s allegations against these Defendants involve no more than acts that are
“‘intimately associated with the judicial process’ such as initiating and pursuing a
Bivens-type suits criminal prosecution.” Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir.
1990) (quoting Imbler, 424 U.S. at 430), cert. denied sub nom. Swepston v. Snell, 499
U.S. 976 (1991).
The Court has reviewed the substance of the amended Complaint and finds that
the amended Complaint 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
4

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. Carrier alleges he was arrested in May 2011,
unable to post bond, and made twelve telephone calls to his attorney between his arrest
and October 25, 2011. He contends that the telephone calls were improperly recorded.
He also contends that at a court hearing on October 25, 2011, a state court judge
determined his attorney-client privilege was violated. He alleges that Michelle
Lundstedt, the jail telephone coordinator, had access to the recorded telephone calls
and testified at his state court proceeding that legal calls should not be recorded. He
fails to make clear which, if any, of his constitutional rights were violated by Ms.
Lundstedt.
In order to state a claim in federal court, Mr. Carrier “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 &
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,

5

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. Carrier 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). Mr. Carrier 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).
Supervisory officials, such as the jail commander and undersheriff, 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,
6

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. Carrier 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. Carrier will be given an opportunity to cure the deficiencies in his amended by
submitting a second amended Complaint on the Court-approved Prisoner Complaint
form that sues proper parties, states claims clearly and concisely in compliance with
Fed. R. Civ. P. 8, alleges specific facts that demonstrate how each named defendant
personally participated in the asserted constitutional violations, and lists all named
defendants in the caption.
Accordingly, it is
ORDERED that Plaintiff, Joshua D. Carrier, file within thirty (30) days from the
date of this order a second amended Complaint on the Court-approved Prisoner
Complaint form that complies with the pleading requirements of Rule 8 of the Federal
Rules of Civil Procedure as discussed in this order. It is

7

FURTHER ORDERED that Mr. Carrier 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. Carrier 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.
DATED January 2, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

8