Thelen v. 18th Judicial Courts et al

Filing 5

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 02/12/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00375-BNB
MICHEL THELEN,
Plaintiff,
v.
18TH JUDICIAL COURTS, et al.,
18TH JUDICIAL DISTRICT ATTORNEY, et al.,
LINCOLN COUNTY, et al.,
WILLIAM SYLVESTER,
DOUGLAS TALLMAN,
CAROL CHAMBERS,
JAMES BARTKUS, and
TRUSTEN FISHER,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Michel Thelen, filed a Complaint (ECF No. 1) pro se. The court must
construe the Complaint liberally because Mr. Thelen 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.
The Complaint is deficient. First, it is not clear exactly who Mr. Thelen is suing
because he improperly uses “et al.” in the caption of the Complaint. Pursuant to Rule
10(a) of the Federal Rules of Civil Procedure, “[t]he title of the complaint must name all
the parties.” Regardless of who Mr. Thelen names as Defendants, he must provide a
complete address for each named Defendant so that they may be served properly.

The Complaint also 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
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.
Mr. Thelen indicates that he is asserting constitutional claims pursuant to 42
U.S.C. § 1983. However, he fails to provide a short and plain statement of any
constitutional claims showing he is entitled to relief because he fails to identify the
specific constitutional claims he is asserting, the specific factual allegations that support
each claim, against which Defendant or Defendants he is asserting each claim, and
what each Defendant did that allegedly violated his rights. See Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (noting that, to state a
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claim in federal court, “a complaint 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”); see also Henry v.
Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (allegations of “personal participation in the
specific constitutional violation complained of [are] essential”). 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). Finally, “[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.” New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883
(10th Cir. 1957).
For these reasons, Mr. Thelen must file an amended complaint if he wishes to
pursue his claims in this action. Section 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). Therefore, Mr. Thelen should
name as Defendants only those persons he contends actually violated his federal
constitutional rights. Mr. Thelen may not include in his amended complaint claims
against the State of Colorado or any state agencies or state entities because they are
protected by Eleventh Amendment immunity. See Steadfast Ins. Co. v. Agricultural Ins.
Co., 507 F.3d 1250, 1252-53 (10th Cir. 2007) (noting that the Eleventh Amendment
protects states and state entities regardless of whether a plaintiff seeks declaratory or
injunctive relief or monetary damages). Mr. Thelen also may not include claims against
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a county or other municipality unless he can demonstrate he suffered an injury caused
by a municipal policy or custom. See Schneider v. City of Grand Junction Police Dept.,
717 F.3d 760, 769-71 (10th Cir. 2013) (discussing Supreme Court standards for
municipal liability); Dodds v. Richardson, 614 F.3d 1185, 1202 (10th Cir. 2010).
Accordingly, it is
ORDERED that Mr. Thelen file, within thirty (30) days from the date of this
order, an amended complaint that complies with this order. It is
FURTHER ORDERED that Mr. Thelen shall obtain the appropriate courtapproved Complaint form, along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Thelen fails within the time allowed to file an
amended complaint that complies with this order, the action will be dismissed without
further notice.
DATED February 12, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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