Daniel v. Steiner

Filing 20

ORDER. The plaintiff's attempt to amend his Complaint is DENIED WITHOUTPREJUDICE, and the Amended Petition [Doc. # 16 ] is not accepted. The Motion for Service [Doc. # 17 ] is DENIED. The Petition for Damages in a 42 U.S.C. § 1983 & E xtension of Time [Doc. # 18 ] is STRICKEN. The plaintiff shall serve defendant Steiner with a summons and a copy of the initial Complaint and file proof of that service on or before 10/20/2014. Failure to comply with this order may result in dismissal of this case. Dismissal may result in an expiration of the applicable statute of limitation and bar re-filing of the complaint. By Magistrate Judge Boyd N. Boland on 10/09/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 14-cv-00834-CMA-BNB
ARLUS DANIEL, JR.,
Plaintiff,
v.
SARGENT STEINER,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following, filed by the plaintiff:
(1) Amended Petition for Damages in a 42 U.S.C. § 1983 [Doc. #16, filed
09/26/2014] (the “Amended Petition”);
(2) Motion for Service of Amended 42 U.S.C. § 1983 . . . & Summons by U.S.
Marshalls [sic] [Doc. #17, filed 10/06/2014] (the “Motion for Service”); and
(3)

Petition for Damages in a 42 U.S.C. § 1983 & Extension of Time [Doc. # 18,

filed 10/06/2014].
I construe the Amended Petition as a request to amend the Complaint. That request is
DENIED WITHOUT PREJUDICE. The Motion for Service is DENIED AS MOOT. The
“Petition for Damages in a 42 U.S.C. § 1983 & Extension of Time” is STRICKEN.
The plaintiff is proceeding pro se, and I must liberally construe his pleadings. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). I cannot act as advocate for a pro se litigant, however,

who must comply with the fundamental requirements of the Federal Rules of Civil Procedure.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The plaintiff initiated this case by filing a document titled “Petition for Damages in a 42
U.S.C. §1983 & Extension of Time” [Doc. #1, filed 3/21/2014] (the “Complaint”). The
Complaint asserts a violation of the First Amendment based on the defendant’s alleged
retaliation against the plaintiff for filing an Application for a Writ of Habeas Corpus. The
Complaint also seeks relief from the statute of limitations because “[o]n March 29, 2014, the
statute of limitation for Daniel’s ability to seek relief through the courts with regards to this
injustice will expire.”
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, I ordered the plaintiff to serve
the defendant with a summons and a copy of the Complaint, and to file proof of that service on
or before July 21, 2014. After granting the plaintiff two extensions of time, I ordered the
plaintiff to serve the defendant with a summons and a copy of the Complaint and file proof of
that service on or before September 30, 2014. I warned the plaintiff that failure to comply with
my order would result in a recommendation that the Complaint be dismissed. The plaintiff did
not file proof of service on the defendant. Instead, he filed the Amended Petition.
The Amended Petition adds 16 defendants and asserts one claim for retaliation in
violation of the plaintiff’s First Amendment rights. The Amended Petition suffers many
deficiencies. The Amended Petition is not submitted on the court’s standard complaint form.
An unrepresented party must use the forms established by this court to file an action.
D.C.COLO.LCivR 5.1(c). The Amended Petition contains legal argument, which is not
appropriate in a complaint.

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The Amended Petition contains substantially the same allegations as the Complaint,
except for an additional allegation against Parole Officer Janet Russell. Attached to the
Amended Petition is a copy of the Complaint. That attachment is redundant. The plaintiff also
attaches a copy of an unexecuted summons for each defendant, which should not be attached to a
complaint, but should be filed separately after they are executed.
The plaintiff attaches to the Amended Petition an “Affidavit of Sequence Events” which
consists of eight single-spaced, type written pages detailing the alleged retaliatory actions. The
affidavit is not sworn under penalty of perjury as required by 28 U.S.C. § 1746.1 The affidavit
does not contain any allegations against at least half of the proposed defendants.
The Federal Rules of Civil Procedure require that a complaint “shall 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 .
. . .” Fed. R. Civ. P. 8(a). “[T]he only permissible pleading is a short and plain statement of the
claim showing that the pleader is entitled to relief on any legally sustainable grounds.” Blazer v.
Black, 196 F.2d 139, 144 (10th Cir. 1952). “[T]o state a 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.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
The requirements of Rule 8(a) guarantee “that defendants enjoy fair notice of what the claims
against them are and the grounds upon which they rest.” TV Communications Network, Inc. v.

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Section 1746 provides that whenever any rule requires that a matter be supported by affidavit,
such matter may be supported by an unsworn declaration which is subscribed by the author as true under
penalty of perjury and dated.

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ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff'd, 964 F.2d 1022 (10th Cir. 1992). 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.
Any further attempts to amend the Complaint must comply with Rule 8 and with this
order. Any proposed amended complaint shall be submitted on the court’s form. The
background statement shall briefly summarize the plaintiff’s case and shall not exceed one
double-spaced typewritten page. Each claim shall be stated separately. Each claim shall state
which defendant(s) the claim is brought against and shall briefly allege facts sufficient to state a
claim for relief against each defendant. Each claim shall not exceed two typewritten pages,
double-spaced. The proposed amended complaint shall be titled “Amended Complaint.” The
plaintiff may not incorporate by reference his original Complaint into the proposed amended
complaint. The proposed amended complaint must stand alone; it must contain all of the
plaintiff’s claims. Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007) (stating that “an
amended complaint supercedes an original complaint and renders the original complaint without
legal effect”). The plaintiff shall not attach to a proposed amended complaint materials that are
not directly related to the allegations of the proposed amended complaint.
The plaintiff has also filed a “Petition for Damages in a 42 U.S.C. § 1983 & Extension of
Time” [Doc. # 18]. That document is a copy of the Complaint. The plaintiff shall cease filing
redundant documents.
Finally, in his Motion for Service, the plaintiff requests that the court direct the United
States Marshal to serve each of the proposed defendants named in the Amended Petition. That

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request is now moot. However, I note that the plaintiff does not cite any authority to support his
request for service by the Marshal, and I am not aware of any. The plaintiff is not proceeding in
forma pauperis, and he must effect service on all named defendants.
IT IS ORDERED:
(1) The plaintiff’s attempt to amend his Complaint is DENIED WITHOUT
PREJUDICE, and the Amended Petition [Doc. #16] is not accepted;
(2) Any further attempts to amend the Complaint shall comply with Rule 8 and with this
order;
(3) The Clerk of the Court shall enclose with this Order a copy of the court’s prisoner
complaint form with instructions;
(4) The Motion for Service [Doc. #17] is DENIED;
(5)

The Petition for Damages in a 42 U.S.C. § 1983 & Extension of Time [Doc. # 18] is

STRICKEN;
(6) The plaintiff shall cease filing redundant documents;
(7) The plaintiff shall serve defendant Steiner with a summons and a copy of the initial
Complaint and file proof of that service on or before October 20, 2014; and
(7) Failure to comply with this order may result in dismissal of this case. Dismissal may
result in an expiration of the applicable statute of limitation and bar re-filing of the complaint.
Dated October 9, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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