Garcia v. Dist. 6 Police Dept. et al

Filing 4

ORDER Directing Plaintiff To Cure Deficiencies and File Amended Complaint that Complies with Rule 8, by Magistrate Judge Boyd N. Boland on 01/07/14. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00038-BNB
(The above civil action number must appear on all future papers
sent to the Court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
GERALD GARCIA, named as
GERALD/GOLDIE GARCIA,
Plaintiff,
v.
DISTRICT 6 POLICE DEPT., and
CSL MACDONALD,
Defendants.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND
FILE AMENDED COMPLAINT THAT COMPLIES WITH RULE 8

Plaintiff, Gerald Garcia, alleges that he is homeless. He submitted pro se a
Complaint (ECF No. 1) that only he signed and a Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). As part of the Court’s review
pursuant to D.C.COLO.LCivR 8.2, the Court has determined that the documents are
deficient as described in this order. Plaintiff will be directed to cure the following if he
wishes to pursue his claims. Any papers that Plaintiff files in response to this order
must include the civil action number noted above in the caption of this order.
28 U.S.C. § 1915 Motion and Affidavit:
is not submitted (by Goldie Garcia, if she intends to proceed as a Plaintiff
(1)
X
in this action)
(2)
is missing affidavit
(3)
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
(4)
is missing certificate showing current balance in prison account
is missing required financial information
(5)
(6)
is missing an original signature by the prisoner

(7)
(8)

X

(9)
(10)

X

is not on proper form
names in caption do not match names in caption of complaint, petition or
habeas application (Plaintiff fails to list any parties)
An original and a copy have not been received by the Court.
Only an original has been received.
other: Plaintiff fails to indicate on page one whether he wants the United
States Marshals Service to serve process. Plaintiff may pay $400.00 (the
$350.00 filing fee plus a $50.00 administrative fee) in lieu ot filing an
amended 28 U.S.C. § 1915 motion.

Complaint, Petition or Application:
is not submitted
(11)
(12)
is not on proper form (must use the Court’s current form)
is missing an original signature by the prisoner
(13)
(14)
X
is missing page no. 1
(15)
uses et al. instead of listing all parties in caption
(16)
An original and a copy have not been received by the Court. Only an
original has been received.
Sufficient copies to serve each defendant/respondent have not been
(17)
received by the Court.
(18)
names in caption do not match names in text
(19)
other:
Mr. Garcia’s Complaint fails to comply with the pleading requirements of Rule 8
of the Federal Rules of Civil Procedure. The Complaint, which apparently challenges
his arrest, fails to assert any claims or federal statutory authority as a basis for
jurisdiction, and fails to request any relief. Plaintiff’s handwriting is barely legible.
The amended Complaint Mr. Garcia files must comply with the pleading
requirements of Rule 8. 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

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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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all
that is permissible, if the complaint concisely states facts upon which relief can be
granted upon any legally sustainable basis.” Id.
In order to state a claim in federal court, Mr. Garcia “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).
It is Mr. Garcia’s responsibility to present his claims in a manageable and
readable format that allows the Court and defendants to know what claims are being
asserted and to be able to respond to those claims. Mr. Garcia must allege, simply and
concisely, his specific claims for relief, including the specific rights that allegedly have
been violated and the specific acts of each defendant that allegedly violated his rights.
The Court does not require a long, chronological recitation of facts. Nor should the
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Court or defendants be required to sift through Mr. Garcia’s allegations to locate the
heart of each 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).
Personal participation is an essential allegation in a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Garcia must show that each defendant caused the deprivation of a
federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). 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). A supervisory official 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). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556
U.S. at 677). 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

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required to establish the alleged constitutional deprivation.” Id. at 1199.
Mr. Garcia 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.
Garcia uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
To the extent Mr. Garcia intends to bring a civil rights action, he may not sue the
Denver Police Department, named as the “Dist. 6 Police Dept.” The police department
is not a separate entity from the City and County of Denver and, therefore, is not a
person under 42 U.S.C. § 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 the
police department must be considered as asserted against the City and County of
Denver.
Municipalities, such as the City and County of Denver, and municipal entities 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 the City and County of
Denver under § 1983 merely by pointing to isolated incidents. See Monell , 436 U.S. at
694.
Finally, Rule 10.1 of the Local Rules of Practice for this Court requires that all
papers filed in cases in this Court be in a 12-point font, double-spaced, and legible. See
D.C.COLO.LCivR 10.1. The amended Complaint Mr. Garcia will be directed to file,
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whether handwritten or typed, shall be in a 12-point font, double-spaced and legible,
using upper 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
finds that the Complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr.
Garcia 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. Mr.
Garcia must provide the full address for each named defendant. 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, Gerald Garcia, cure the deficiencies designated above
within thirty (30) days from the date of this order. Any papers that Plaintiff files in
response to this order must include the civil action number on this order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved forms for
filing a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and a
Complaint, along with the applicable instructions, from the Office of the Clerk or at
www.cod.uscourts.gov, and shall use those forms in curing the designated deficiencies
and filing an amended complaint that complies with Rule 8 of the Federal Rules of Civil
Procedure. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies
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within thirty days from the date of this order, some claims against some defendants
or the entire Complaint and action may be dismissed without further notice.
DATED January 7, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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