Samuels v. Davis et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 11/14/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03073-BNB
KENDRICK SAMUELS,
Plaintiff,
v.
JOHN DAVIS, Warden,
SGT. BYNES, Recreation Officer (BVCF) Buena Vista Correctional Facility, et al.,
DR. THOMAS CHARLES FISHER, Medical Provider (BVCF),
MEDICAL SERVICES, et al., CDOC Colorado Department of Corrections, and
CORRECTIONAL HEALTH PLAN, Department of Colorado Corrections Health Care
Provider, Denver, CO,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Kendrick Samuels, is a prisoner in the custody of the Colorado
Department of Corrections at the Delta Correctional Center in Delta, Colorado. Mr.
Samuels has filed pro se a Prisoner Complaint (ECF No. 2) pursuant to 42 U.S.C. §
1983 claiming that his rights under the United States Constitution have been violated.
He seeks damages as relief.
The court must construe the Prisoner Complaint liberally because Mr. Samuels 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. Samuels will be ordered to file an amended complaint.
The court has reviewed the Prisoner Complaint and finds that the Prisoner

Complaint is deficient. For one thing, it is not clear exactly who Mr. Samuels is suing
because he improperly uses “et al.” in the caption of the Prisoner Complaint. Pursuant
to Rule 10(a) of the Federal Rules of Civil Procedure, “[t]he title of the complaint must
name all the parties.” Pursuant to Rule 10.1J. of the Local Rules of Practice of the
United States District Court for the District of Colorado-Civil, “[p]arties shall be listed in a
caption with one party per line. The proper name of a party shall be in capital letters,
and any identifying text shall be in upper and lower case immediately following the
proper name.”
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
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unintelligible pleadings violate Rule 8.
Mr. Samuels asserts an Eighth Amendment claim in the Prisoner Complaint
premised on an alleged failure to provide adequate medical care in a timely manner for
his broken hand. He specifically alleges that Defendant Dr. Thomas Charles Fisher was
deliberately indifferent to his serious medical needs. However, he fails to provide a
short and plain statement of his Eighth Amendment claim showing he is entitled to relief
against the other Defendants because he fails to allege specific facts that demonstrate
any other Defendant personally participated in the asserted Eighth Amendment
violation. See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (“personal
participation in the specific constitutional violation complained of is essential”). If Mr.
Samuels intends to pursue his Eighth Amendment claim against any other Defendant,
he must allege facts that demonstrate those Defendants also were deliberately
indifferent to his serious medical needs. Deliberate indifference means that “a prison
official may be held liable . . . only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate
it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
For these reasons, Mr. Samuels will be ordered to file an amended complaint if
he wishes to pursue an Eighth Amendment claim against any Defendant other than Dr.
Fisher. Mr. Samuels should name as Defendants only those persons who actually
violated his rights because § 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). Mr. Samuels “must explain what each
defendant did to him or her; when the defendant did it; how the defendant’s action
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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). Accordingly, it is
ORDERED that Mr. Samuels file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Samuels 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. Samuels fails to file an amended complaint
that complies with this order within the time allowed, the court will dismiss as parties to
this action all Defendants other than Dr. Thomas Charles Fisher.
DATED November 14, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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