Hale v. Federal Bureau of Prisons et al

Filing 5

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 2/10/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00245-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.)
REVEREND MATT HALE,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
DAVID BERKEBILE (individually),
BLAKE DAVIS (individually),
CHRISTOPHER SYNSVALL (individually),
BENJAMIN BRIESCHKE (individually),
S. M. KUTA (individually),
L. MILUSNIC (individually),
PATRICIA RANGEL (individually),
WENDY HEIM (individually),
S. SMITH (individually),
H. REDDEN (individually),
DIANA KRIST (individually), and
A. TUTTOILMONDO (individually),
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Reverend Matt Hale, is a prisoner in the custody of the Federal Bureau
of Prisons (BOP) who currently is incarcerated at the United States Penitentiary,
Administrative Maximum (ADX), in Florence, Colorado. He has submitted pro se a
Prisoner Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Religious Freedom Restoration
Act (RFRA), 42 U.S.C. § 2000bb-1. He asks for money damages and declaratory and

injunctive relief. He has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe liberally the Prisoner Complaint because Mr. Hale 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. Hale will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
The Prisoner Complaint is not on the Court-approved Prisoner Complaint form.
Local Rules 1.2 and 5.1(c) of the Local Rules of Practice - Civil for this Court require
litigants to the Court-approved forms found on the Court’s website. The United States
Court of Appeals for the Tenth Circuit repeatedly has upheld the requirement that pro se
litigants comply with local court rules requiring use of proper Court-approved forms, and
rejected constitutional challenges to such rules. See Georgacarakos v. Watts, 368 F.
App'x 917, 918-19 (10th Cir. 2010) (district court did not abuse its discretion in
dismissing civil rights action without prejudice for federal prisoner's noncompliance with
local rules requiring use of proper court-approved form to file complaint and district
court's order to comply), Durham v. Lappin, 346 F. App'x 330, 332-33 (10th Cir. 2009) (it
was within district court's discretion to dismiss prisoner's complaint for failure to comply
with local rules requiring pro se litigants to use court-approved forms, and local rule did
not violate prisoner's equal protection rights); Kosterow v. United States Marshal's
Serv., 345 F. App'x 321, 322-33 (10th Cir. 2009) (it was within district court's discretion
to dismiss complaint for failure to use proper court form); Young v. United States, 316 F.
App'x 764, 769-71 (10th Cir. 2009) (district court order dismissing federal prisoner's pro
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se civil rights complaint without prejudice to his ability to refile, based on his repeated
refusal to comply with district court order directing him to file amended complaint on
court-approved prisoner complaint form as required by local district court rule, was not
abuse of discretion or constitutional violation); Maunz v. Denver Dist. Court, 160 F.
App'x 719, 720-21 (10th Cir. 2005) (district court did not abuse its discretion in
dismissing inmate's federal action where inmate failed to file habeas corpus application
on proper form designated by district court); Daily v. Municipality of Adams County, 117
F. App'x 669, 671-72 (10th Cir. 2004) (inmate's failure to comply with local rule requiring
pro se prisoners to use court's forms to file action was not nonwillful, and inmate's
failure to use required form supported dismissal of action).
Instead of stating his asserted claims clearly and concisely in the spaces
provided on the Court-approved form, Mr. Hale uses the complaint form to reference an
attached, thirty-page document that devotes an inordinate and unnecessary amount of
space in the first claim to explaining his religion and personal/professional background.
Mr. Hale asserts a total of eleven claims with verbose and rambling allegations
concerning his mail, right to free speech and freedom from cruel and unusual
punishment, and exercise of religion, including religious dietary requirements. Instead
of stating each claim and its supporting allegations clearly, he refers back to prior
allegations with each claim subsequent to claim one. This approach is unacceptable.
In order to state a claim in federal court, Mr. Hale “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.
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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).
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. Hale 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. Hale 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.
Hale uses fictitious names he must provide sufficient information about each defendant
so that he or she can be identified for purposes of service.
Mr. Hale may not sue the BOP in a Bivens action. The United States, as
sovereign, is immune from suit unless it expressly consents to be sued. United States
v. Testan, 424 U.S. 392, 399 (1976); Bivens, 403 U.S. at 410; Ascot Dinner Theatre,
Ltd. v. Small Business Admin., 887 F.2d 1024, 1027 (10th Cir. 1989). Congress has
unequivocally waived sovereign immunity as to RFRA, although the waiver applies only
to RFRA claims seeking injunctive relief. Crocker v. Durkin, 159 F. Supp. 2d 1258,
1269 (D. Kan. 2001); Webman v. Federal Bureau of Prisons, 441 F.3d 1022, 1026 (D.
D. Cir. 2006)
The amended Prisoner Complaint Mr. Hale files must 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
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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.
Neither the Court nor defendants are required to sift through or piece together
Mr. Hale’s allegations to determine the bases for his claims. It is Mr. Hale’s
responsibility to present his claims in a manageable and readable format that allows the
Court and defendants to be able to respond to those claims. In short, Mr. Hale 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.
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. Hale 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.
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Accordingly, it is
ORDERED that Plaintiff, Matt Hale, 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 and alleges the personal
participation of each named defendant as discussed in this order. It is
FURTHER ORDERED that Mr. Hale 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 must use that form
in submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Hale fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, some claims against
some defendants, or the entire the Prisoner Complaint and the action, may be
dismissed without further notice.
DATED February 7, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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