Martinez v. Denver Sheriff Department-Health Services

Filing 10

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 01/15/14. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03337-BNB
CHARLES JOHN MARTINEZ
Plaintiff,
v.
DENVER SHERIFF DEPARTMENT, Health Services
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Charles John Martinez, is a prisoner incarcerated at the Denver County
Jail. He filed pro se a Prisoner Complaint (ECF No. 1) and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). He has been
granted leave to proceed pursuant to § 1915.
The Court must construe the Prisoner Complaint liberally because Mr. Martinez
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. Martinez will be ordered to file an amended complaint if he wishes to pursue
his claims in this action.
In the Prisoner Complaint, Mr. Martinez asserts an Eighth Amendment claim
against the Denver Sheriff Department - Health Services pursuant to 42 U.S.C. § 1983.
Mr. Martinez alleges that Defendant has refused to provide him with a C-Pap machine

and medication for his medical conditions.
Mr. Martinez appears to be suing an improper party. He may not sue the Denver
Sheriff’s Department because it is not separate entity from Denver County and,
therefore, is not a person under § 1983. See Stump v. Gates, 777 F. Supp. 808, 814-16
(D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993). Any claims asserted against this
entity must be considered as asserted against the City and County of Denver.
In addition, municipalities and municipal entities, such as the City and County of
Denver, 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 Denver City and
County under § 1983 merely by pointing to isolated incidents. See Monell, 436 U.S. at
694.
The Court also has reviewed the substance of the Prisoner Complaint and 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
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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.
In order to state a claim in federal court, Mr. Martinez “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,
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. Martinez should name as defendants in his
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amended complaint only those persons that he contends actually violated his federal
constitutional rights.
Mr. Martinez 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. Martinez 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 Prisoner Complaint does not meet the requirements of Fed. R. Civ. P. 8.
Mr. Martinez will be given an opportunity to cure the deficiencies in his Prisoner
Complaint by submitting an amended complaint that sues proper parties, states claims
clearly and concisely in compliance with Rule 8, and alleges specific facts that
demonstrate how each named defendant violated his federal constitutional rights.
Accordingly, it is
ORDERED that Plaintiff, Charles John Martinez, file, within thirty (30) days
from the date of this order, an amended prisoner complaint that complies with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure as discussed in
this order. It is
FURTHER ORDERED that Mr. Martinez 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

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submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Martinez fails to file an amended prisoner
complaint that complies with this order within the time allowed, the Prisoner Complaint
and action may be dismissed without further notice.
DATED January 15, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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