Hammond v. I.C.C.S. et al

Filing 13

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 3/03/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00242-BNB

ANDREA HAMMOND, J.D.,
Plaintiff,
v.
ICCS (Intervention Community Correction Services),
GREG KILDOW, ICCS CEO,
ALL BOARD MEMBERS OF ICCS,
JEFF GEIST,
GERI ANNA, Last Name Unknown, Case Manager at ICCS),
SUSAN KELLER, Parole Officer,
DEPARTMENT OF CORRECTIONS, and
STATE OF COLORADO,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Andrea Hammond, is in the custody of the Colorado Department of
Corrections at the La Vista Correctional Facility in Pueblo, Colorado. On January 28,
2014, Plaintiff filed pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983 but did
not use a proper Court-approved form. Pursuant to the Court’s January 28, 2014 Order
directing Plaintiff to cure certain deficiencies, she submitted her claims on a proper form
on February 26, 2014.
The Court must construe Plaintiff’s February 26 Complaint liberally because she
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 cannot act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Plaintiff will be
directed to file an Amended Complaint for the following reasons.

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).
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.
Plaintiff’s claims are not organized in a manner that allows the Court and
defendants to determine the supporting facts for each of his claims. Plaintiff, for the
most part, fails to identify, clearly and concisely, the defendants she is suing with
respect to each asserted claim and what each named defendant did that allegedly
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violated her rights. Plaintiff’s Complaint includes repetitive and prolix factual allegations
and unnecessary legal argument and asserts claims against individuals not named as
parties to the action.
Furthermore, Defendants Colorado Department of Corrections and the State of
Colorado are improper parties to this action. The State of Colorado and its entities are
protected by Eleventh Amendment immunity. See Will v. Michigan Dep't of State
Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir.
1988). “It is well established that absent an unmistakable waiver by the state of its
Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by
Congress, the amendment provides absolute immunity from suit in federal courts for
states and their agencies.” Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584,
588 (10th Cir. 1994), overrruled on other grounds by Ellis v. University of Kansas Med.
Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh
Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment
immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979).
To state a claim in federal court Plaintiff must explain (1) what a named
defendant did to her; (2) when the defendant did it; (3) how the defendant’s action
harmed her; and (4) what specific legal right the defendant violated. Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff also must assert personal participation by each named defendant in the
alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). To establish personal participation, Plaintiff must show how each named
individual caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
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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 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). 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.
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). 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.
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). This Court,
however, will give Plaintiff an opportunity to cure the deficiencies in the Complaint by
submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
Plaintiff also must identify each defendant under the Parties section of the
Prisoner Complaint form and provide an address for the named defendant in this
section. Plaintiff also is not required to submit a copy of the Prisoner Complaint, only

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the original is needed. Finally, the Prisoner Complaint does not comply with the Local
Rules of Practice for the United States District Court for the District of Colorado, which
require that all papers presented for filing be legible and double-spaced and include
appropriate margins. See D.C.COLO.LCivR 10.1. Because the Prisoner Complaint
lacks adequate margins and spacing between lines, it is difficult to read and understand.
Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Plaintiff 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 Plaintiff fails to file an Amended Complaint that
complies with this Order within the time allowed, and to the Court’s satisfaction, the
Court will dismiss the Complaint and the action without further notice.
DATED March 3, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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