Aurelio v. City and County of Denver et al
Filing
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ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 2/20/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00413-BNB
NICHOLAS J. AURELIO,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
DIRECTOR/SHERIFF WILSON,
CHIEF THAN,
CAPTAIN/MAJOR ROMERO,
SERGEANT JORDAN,
SERGEANT DOHERTY,
DEPUTY HERNANDEZ,
DETECTIVE H. HOHNOLU,
DEPUTY SPROCK,
DEPUTY PEREZ,
DEPUTY NESS,
DEPUTY SHAFER,
DEPUTY ARELLANO,
DEPUTY McLAIN, and
DEPUTY MARTINEZ, All Deputies Work for Denver Sheriff’s Department at the Denver
Detention Center,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Nicholas J. Aurelio, is detained at the Denver County Jail in Denver,
Colorado. On February 6, 2014, Plaintiff filed pro se a Prisoner Complaint pursuant to
28 U.S.C. § 1331 and 42 U.S.C. § 1983.
The Court must construe the Complaint liberally because Plaintiff 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 fails to provide a short and plain statement of his claims in compliance
with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The
Complaint is sixty-eight pages long. The Complaint is repetitive, in part conclusory and
vague, and even includes parts of two 28 U.S.C. § 1915 Motions and Affidavits and his
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account statement, which the Court directed the Clerk of the Court to enter on the
Docket separately. Plaintiff, therefore, has not organized his Complaint in a manner
that allows the Court and defendants to determine the supporting facts for each of his
claims.
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,
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.
To state a claim in federal court Plaintiff must explain (1) what a 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.
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
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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). 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 required to
establish the alleged constitutional deprivation.” Id. at 1199. 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, the Court will dismiss the Complaint
and the action without further notice.
DATED February 20, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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