Folsom v. Fremont County Sheriff Office 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 2/18/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00398-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.)
MICHAEL THOMAS FOLSOM,
Plaintiff,
v.
FREMONT COUNTY SHERIFF OFFICE (F.C.S.O.)
SHERIFF BEICKER,
CAPTAIN RANCON,
SGT GREEN,
SGT. MILLER,
DEP. S. CARTER, and
ALL OF THE FREMONT COUNTY SHERIFF’S OFFICE EMPLOYEES,
Defendants.

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

Plaintiff, Michael Thomas Folsom, currently is incarcerated at the Fremont
County Detention Center in Cañon City, Colorado. He submitted pro se a Prisoner
Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983, among other statutes, and a
Prisoner’s 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 8.1(b), 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:

(1)
(2)
(3)

X

(4)
(5)
(6)
(7)
(8)

X

(9)
(10)

X

is not submitted
is missing affidavit
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
is missing certificate showing current balance in prison account
is missing required financial information
is missing an original signature by the prisoner
is not on proper form
names in caption do not match names in caption of complaint, petition or
habeas application
An original and a copy have not been received by the Court.
Only an original has been received.
other: Plaintiff may pay $400.00 (the $350.00 filing fee plus a $50.00
administrative fee) in lieu of filing a certified copy of his six months’ trust
fund statement.

Complaint, Petition or Application:
(11)
is not submitted
is not on proper form (must use the Court’s current form)
(12)
(13)
is missing an original signature by the prisoner
(14)
is missing page no.
(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. Folsom’s Prisoner Complaint fails to comply with the pleading requirements
of Rule 8 of the Federal Rules of Civil Procedure. The Prisoner Complaint, which
contends Plaintiff is being sexually harassed, fails to assert any claims or request any
relief.
The amended Prisoner Complaint Mr. Folsom 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

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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.
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. Folsom “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. Folsom 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 long, chronological recitation of
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facts is not required. The Court and defendants should not be required to sift through
Mr. Folsom’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. Folsom 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)

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caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Id. at 1199.
Mr. Folsom 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.
Folsom uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
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. Folsom will be given an opportunity to cure the deficiencies in the Prisoner
Complaint by submitting an amended Prisoner 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. Folsom 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
Prisoner Complaint.
Accordingly, it is
ORDERED that Plaintiff, Michael Thomas Folsom, 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 (with the assistance of his case
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manager or the facility’s legal assistant) the Court-approved forms for filing a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner
Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use all pages of those forms in curing the designated deficiencies and filing an
amended Prisoner 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
and file an amended Prisoner Complaint as directed within thirty days from the date
of this order, some claims against some defendants or the entire Prisoner Complaint
and action may be dismissed without further notice.
DATED February 18, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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