Perrian v. Harms et al
ORDER Directing Plaintiff to File Amended Complaint by Magistrate Judge Boyd N. Boland on 11/5/13. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02951-BNB
LIEUTENANT ALLEN HARMS,
LIEUTENANT H. J. HENDERSON,
JAMES FALK, and
MAJOR USRY, all in their official and individual capacities,
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Randy Perrian, is a prisoner in the custody of the Colorado Department
of Corrections who currently is incarcerated at the correctional facility in Sterling,
Colorado. He has submitted pro se a Prisoner Complaint (ECF No. 1) pursuant to 42
U.S.C. § 1983, among other statutes. He asks for money damages and injunctive and
Mr. Perrian has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. The Court must construe liberally Mr. Perrian’s filings because he 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. Perrian will be ordered to file an amended complaint.
The Court has reviewed the Prisoner Complaint and has determined that the
complaint fails to 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. Perrian’s complaint is unnecessarily verbose and disorganized. Despite the
fact that he only asserts claims of retaliation (claim one) and cruel and unusual
punishment (claim two), he fails to provide a short and plain statement of these claims
showing that he is entitled to relief. For example, it is unclear whether Plaintiff is trying
to assert multiple acts of retaliation, including but not limited to (1) being subjected to
correctional officers applying handcuffs too tightly to his wrists in retaliation for his
request to use the bathroom and (2) being charged with and convicted of a disciplinary
offense in retaliation for filing a grievance. In short, Plaintiff has failed to make clear
what act or acts of retaliation form the basis for his first claim.
As a result, Mr. Perrian fails to assert his claims in a manner that is clear and
concise and allows the Court and defendants to understand and respond to each
asserted claim. 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 the amended complaint he will be ordered to file, Mr. Perrian must identify,
clearly and concisely and in plain language, who he is suing, the specific claims he is
asserting, the specific facts that support each asserted claim, against which defendant
or defendants he is asserting each claim, and what each defendant did that allegedly
violated his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007) (noting that, to state a claim in federal court, “a complaint 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
The complaint also is deficient because Mr. Perrian fails to allege facts that
demonstrate each of the named defendants personally participated in the asserted
constitutional violations. For example, some defendants, such as James Falk and the
late Tom Clements, appear to be sued only in a supervisory capacity. Mr. Falk, warden
of the Sterling Correctional Facility, specifically appears to be sued merely because he
was copied on correspondence.
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. Perrian should name as defendants only those
persons 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. Perrian 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 official 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. Perrian may not sue defendants whose only apparent involvement in the
alleged constitutional violations was to deny his grievances. Such allegations are not
sufficient to hold a defendant liable under § 1983. "[A] denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by plaintiff, does
not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009).
Mr. Perrian 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.
Perrian uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
In summary, Mr. Perrian will be directed to file an amended complaint that states
his claims clearly and concisely, asserts what constitutional rights were violated, and
alleges specific facts demonstrating how each named defendant personally participated
in the asserted constitutional violations. He must not set forth an unnecessary
discussion of insignificant details and legal argument in support of his claims rather than
providing “a generalized statement of the facts from which the defendant may form a
responsive pleading.” New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883
(10th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all that is
permissible, if the complaint concisely states facts upon which relief can be granted
upon any legally sustainable basis.” Id.
Accordingly, it is
ORDERED that Plaintiff, Randy Perrian, file within thirty days from the date of
this order an amended Prisoner Complaint that complies with the directives of this
order. It is
FURTHER ORDERED that Mr. Perrian 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 shall use that form
in submitting the amended complaint. It is
FURTHER ORDERED that if Mr. Perrian fails to file an amended complaint as
directed within the time allowed, some claims against some defendants, or the entire
complaint, may be dismissed without further notice.
DATED November 5, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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