Preece v. Cooke et al

Filing 6

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/6/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03265-BNB
MARCEL C. PREECE,
Plaintiff,
v.
SHERIFF JOHN COOKE,
UNDER SHERIFF JACK McGRATH, and
BUREAU CHIEF STERLING GEESAMAN,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Marcel C. Preece, is an inmate at the Weld County Jail in Greeley,
Colorado. Mr. Preece has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42
U.S.C. § 1983 claiming that his rights under the United States Constitution have been
violated. He seeks damages as well as declaratory and injunctive relief.
The court must construe the Prisoner Complaint liberally because Mr. Preece 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. Preece 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 because Mr. Preece fails to allege with specificity how each

named Defendant personally participated in the asserted constitutional violations.
Section 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.”). As a result, “[i]ndividual liability under § 1983 must be based on
personal involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d
1416, 1423 (10th Cir. 1997). A defendant 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). Although a defendant can be liable in a § 1983 action
based on his or her supervisory responsibilities, a claim of supervisory liability must be
supported by allegations that demonstrate personal involvement, a causal connection to
the constitutional violation, and a culpable state of mind. See Schneider v. City of
Grand Junction Police Dept., 717 F.3d 760, 767-69 (10th Cir. 2013) (discussing
standards for supervisory liability).
The Prisoner Complaint also is deficient to the extent Mr. Preece is suing
Defendants in their official capacities because he fails to identify a municipal policy or
custom that caused the alleged violations of his rights. See Dodds v. Richardson, 614
F.3d 1185, 1202 (10th Cir. 2010) (discussing Supreme Court standards for municipal
liability); see also Schneider, 717 F.3d at 769-71.
For these reasons, Mr. Preece will be ordered to file an amended complaint. For
each claim he asserts in the amended complaint, Mr. Preece “must explain what each
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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). Accordingly, it is
ORDERED that Mr. Preece 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. Preece 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. Preece fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED December 6, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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