Nicholas v. Gossett et al

Filing 23

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 04/10/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03497-BNB
CLIFFORD DENNIS NICHOLAS,
Plaintiff,
v.
BARBRA GOSSETT - Medical Administrator (LCF),
DR. KUCHER - LCF,
DENISE ASHUER - Nurse, (LCF),
MISS BRIGGS, Nurse, (LCF),
JANE DOE - Dietician (CDOC),
LT. JACKSON, Hearing Officer (LCF),
MRS. INFINITE, Investigator - (LCF),
SGT. KELLY, (LCF),
CAPT. SMITH, Shift Commander (LCF),
LT. LAWSON, (FCF),
LT. REICH, (FCF),
LT. BALDERSTON, Housing (FCF),
MISS ROBINO - Sgt. Housing (FCF),
MRS. BORNS - Sgt. Unit 2 (FCF),
MISS SIMONS, Case Manager (FCF),
MISS STRICKLETT, CO Unit 2 (FCF),
MISS HERRARA - Case Manager (KCCF),
MISS BERNIE, Sgt. Faith Pod (KCCF),
MR. MCCALUM, Case Manager (LCF), and
MR. GILLIS, Case Manager (LCF),
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Clifford Dennis Nicholas, is in the custody of the Colorado Department of
Corrections at the Limon Correctional Facility in Limon, Colorado. He has filed, pro se,
a Prisoner Complaint (ECF No. 19) alleging deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983. Mr. Nicholas has been granted leave to proceed without

prepayment of the filing fee pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Mr. Nicholas 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 act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has reviewed
the complaint and has determined that it is deficient. For the reasons discussed below,
Mr. Nicholas will be ordered to file an amended complaint.
In the Complaint, Mr. Nicholas asserts claims concerning his medical needs and
treatment, retaliation, and conditions of confinement. He alleges that in 2003, he was
diagnosed with short bowel syndrome and prescribed “life-long” medical treatment,
including stress management, pain medication, exercise, and a special diet. Mr.
Nicholas alleges that since 2003, medical staff at Limon Correctional Facility, Fremont
Correctional Facility, Sterling Correctional Facility, and Kit Carson Correctional Facility
have denied him adequate medical care. Plaintiff further alleges that because of the
lack of medical treatment, his condition worsened, and on December 25, 2013, he was
diagnosed with inflammatory bowel disease. Mr. Nicholas also contends that prison
officials have retaliated against him because he filed a § 1983 claim in 2011.1 In
support of his claims for retaliation, he asserts that prison officials have written false
disciplinary reports and have denied him access to the court and the administrative
grievance process. Mr. Nicholas also complains about being placed in the restricted

1

Mr. Nicholas filed a previous action in which he raised substantially similar claims. See Case No.
11-cv-02642-LTB. The prior action was dismissed without prejudice for failure to comply with the pleading
requirements of Fed. R. Civ. P. 8 and the directives of the Court order for an amended complaint. See
ECF No. 18.

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privilege program. He seeks monetary damages and declaratory and injunctive relief.
The Court finds 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.
The Complaint is prolix, vague, and unintelligible. Moreover, Mr. Nicholas fails to
set forth a short and plain statement of his claims showing that he is entitled to relief.
The Complaint asserts six separate claims for relief and is a morass of confusing
allegations that Mr. Nicholas apparently expects the Court and Defendants to piece
together, which is neither the Defendants’ responsibility nor a judicial function. The
general rule that pro se pleadings must be construed liberally has limits, and “the Court
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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, the Court directs Mr. Nicholas to file an amended complaint on the
Court-approved form that complies with the pleading requirements of Rule 8. In the
amended complaint, Mr. Nicholas must allege, simply and concisely, his specific claims
for relief. He must not set forth any extended and unnecessary discussion of
insignificant details.
Moreover, to state a claim in federal court, Mr. Nicholas "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). Mr. Nicholas fails to allege specific facts to show the person participation of
each named Defendant in a violation of his constitutional rights. Personal participation
is an essential element of a civil rights action. See Bennett v. Passic, 545 F.2d 1260,
1262-63 (10th Cir. 1976); Kentucky v. Graham , 473 U.S. 159, 166 (1985). To establish
personal participation, 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).
Furthermore, supervisors can only be held liable for their own deliberate intentional
acts. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep’t of
Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006) ("Supervisors are only liable under §
1983 for their own culpable involvement in the violation of a person's constitutional
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rights."); see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) ("[Section]
1983 does not recognize a concept of strict supervisor liability; the defendant’s role
must be more than one of abstract authority over individuals who actually committed a
constitutional violation."). 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.
Of the twenty named Defendants in the caption of the Complaint, Mr. Nicholas
mentions only seven of them in the body of the Complaint. Mr. Nicholas, therefore, will
be directed to file an amended complaint on the Court-approved form that states his
claims clearly and concisely, asserts what rights were violated, and alleges specific
facts demonstrating the personal involvement of each named defendant in the asserted
violations.
Finally, Mr. Nicholas is advised that Rule 10.1 of the Local Rules of Practice for
this Court requires that all papers filed in cases in this Court be double-spaced and
legible. See D.C.COLO.LCivR 10.1(e), (g). The amended complaint Mr. Nicholas will
be directed to file, whether handwritten or typed, shall be double-spaced and legible, in
capital and lower-case letters, in compliance with D.C.COLO.LCivR 10.1.
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
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finds that the complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr.
Nicholas will be given an opportunity to cure the deficiencies in his complaint by
submitting an amended complaint that states claims clearly and concisely in compliance
with Fed. R. Civ. P. 8, and alleges specific facts that demonstrate how each named
defendant personally participated in the asserted constitutional violations. The Court
will not consider any claims raised in separate attachments, amendments, supplements,
motions, or other documents not included in the amended complaint. Accordingly, it is
ORDERED that Plaintiff, Clifford D. Nicholas, file within thirty (30) days from
the date of this order, an amended complaint that complies with the directives in this
order. It is
FURTHER ORDERED that Mr. Nicholas shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Nicholas fails to file an amended complaint that
complies with this order to the Court’s satisfaction within the time allowed, the Court
may dismiss some of the claims and defendants or the entire complaint and action
without further notice for the reasons discussed above.

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DATED April 10, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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