Stutson v. Cozza-Rhodes et al

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 3/07/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00686-BNB

EFREM STUTSON,
Plaintiff,
v.
T.K. COZZA-RHODES, Warden,
BLUDWORTH, Assistant Warden, and
MS. GREEN,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Efrem Stutson, a federal prisoner incarcerated at the Federal
Correctional Institution in Florence, Colorado, 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). He asks for money damages 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. Stutson 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. Stutson will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
In the Complaint, Mr. Stutson asserts a First Amendment retaliation claim, Eighth

Amendment cruel and unusual punishment claim, and Fourteenth Amendment
discrimination claim. Instead of stating each claim and its supporting allegations clearly
and concisely in the spaces provided on the Court-approved Prisoner Complaint form,
however, Mr. Stutson simply refers to supporting facts found in thirty-five pages of
attachments that he included with the Prisoner Complaint. This approach is
unacceptable.
In order to state a claim in federal court, Mr. Stutson “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). 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. Stutson 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). Supervisory officials, such as Warden CozzaRhodes and Assistant Warden Bludworth may not be held liable for the unconstitutional
conduct of their subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal,
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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
required to establish the alleged constitutional deprivation.” Id. at 1199.
Furthermore, Defendants Cozza-Rhodes and Bludworth cannot be held liable for
denying Plaintiff’s grievances at different levels of administrative review. The "denial of
a grievance, by itself without any connection to the violation of constitutional rights
alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); see also Whitington v. Ortiz , No. 071425, 307 F. App’x. 179, 193 (10th Cir. Jan. 13, 2009) (unpublished) (stating that "the
denial of the grievances alone is insufficient to establish personal participation in the
alleged constitutional violations.") (internal quotation marks and citation omitted); Davis
v. Ark. Valley Corr. Facility, No. 02-1486, 99 F. App’x. 838, 843 (10th Cir. May 20, 2004)
(unpublished) (sending "correspondence [to high-ranking prison official] outlining [a]
complaint . . . without more, does not sufficiently implicate the [supervisory official]
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under § 1983").
Finally, the amended Prisoner Complaint Mr. Stutson 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 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. Stutson’s allegations to determine the basis for his claims. It is Mr. Stutson’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. Stutson 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
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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. Stutson 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.
Accordingly, it is
ORDERED that Plaintiff, Efrem Stutson, 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. Stutson 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. Stutson fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, some claims against

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some defendants, or the entire the Prisoner Complaint and the action, may be
dismissed without further notice.
DATED March 7, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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