Smith v. Werth et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/02/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02978-BNB
NICKY L. SMITH,
Plaintiff,
v.
SGT. WERTH,
CAPTAIN MIASHARIA,
MRS. MICHELLE RUSSOM,
SERGEANT NELSON, and
UNNAMED SHIFT COMMANDER ON DUTY 10:30 p.m. 10-26-12,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Nicky L. Smith, is a prisoner in the custody of the Colorado Department
of Corrections at the Buena Vista Correctional Facility in Buena Vista, Colorado. Mr.
Smith has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983
claiming that his rights were violated when he was incarcerated at the Sterling
Correctional Facility. He seeks damages as relief.
The court must construe the Prisoner Complaint liberally because Mr. Smith 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. Smith will be ordered to file an amended complaint if he wishes to pursue his
claims in this action.

The court has reviewed the Prisoner Complaint and finds that the Prisoner
Complaint is deficient. First, Mr. Smith fails to provide an address for each Defendant.
He must provide a complete address for each named Defendant so that each
Defendant properly may be served.
The Court also finds that the Prisoner 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 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. Smith asserts three claims for relief in the Prisoner Complaint, but he fails to
provide a short and plain statement of each claim showing he is entitled to relief. For
example, Mr. Smith identifies his first claim as a claim of “Deliberate Indifference (Denial
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of Food),” and he alleges in support of this claim that he was denied lunch on August 3,
2012, when he refused to walk around a 1/4 mile track. (See ECF No. 1 at 4.) It
appears that Mr. Smith’s first claim is an Eighth Amendment claim premised on the
denial of lunch on August 3, 2012, asserted against Sgt. Werth and Captain Miasharia.
However, Mr. Smith also alleges in support of his first claim that he “did 16 days in the
hole and lost 20 days good time” (id.), apparently as a result of a prison disciplinary
conviction for disobeying a lawful order. It is not clear how this allegation relates to the
Eighth Amendment denial of food claim or whether Mr. Smith may intend to assert some
other claim relevant to the disciplinary conviction.
Mr. Smith identifies his second claim, which appears to be an Eighth Amendment
claim asserted against mental health interviewer Michelle Russom, as “Deliberate
Ind[i]ff[er]ence Violation of Confidentiality Contract.” (ECF No. 1 at 5.) Mr. Smith
alleges in support of his second claim that Defendant Russom interviewed him for
approximately fifty-five minutes on August 10, 2012, regarding ongoing issues about
which Mr. Smith was concerned and that Defendant Russom wrote statements to a
hearing officer revealing details of her confidential session with Mr. Smith that subjected
him to “Hole Time and Loss of Good Time.” (Id.) These allegations will not support an
Eighth Amendment claim against Defendant Russom because Mr. Smith fails to allege
facts that demonstrate Defendant Russom acted with deliberate indifference to his
health or safety. See Farmer v. Brennan, 511 U.S. 825 (1994).
Mr. Smith identifies his third claim as “Deliberate Indifference Retaliation for filing
Grievance” (ECF No. 1 at 6), and he alleges in support of his third claim that he was
removed from population on or about October 26, 2012, after he filed a step II
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grievance. Mr. Smith asserts that he “was in the hole for 13 days and 30 days good
time was taken.” (Id.) Mr. Smith also asserts that “[a]fter a conference with the
associate warden, C.O.P.D. conviction Case NO. 13-0788 was expunged and Good
time was restored.” (Id.) Construing the Prisoner Complaint liberally, it appears that Mr.
Smith’s third claim is a constitutional retaliation claim. However, Mr. Smith fails to
allege specific facts to support an arguable retaliation claim with respect to his
placement in the hole. See Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010)
(discussing elements of a constitutional retaliation 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). Therefore, Mr. Smith must clarify the claims
he is asserting in this action and he will be given an opportunity to file an amended
complaint to do so. For each claim he asserts in the amended complaint, Mr. Smith
must identify, clearly and concisely, 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 defendant
violated”). Accordingly, it is
ORDERED that Mr. Smith file, within thirty (30) days from the date of this
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order, an amended Prisoner Complaint that complies with the pleading requirements of
the Federal Rules of Civil Procedure as discussed in this order. It is
FURTHER ORDERED that Mr. Smith 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. It is
FURTHER ORDERED that, if Mr. Smith fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the action will be
dismissed without further notice.
DATED December 2, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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