Nunn v. Miller et al

Filing 10

ORDER Directing Plaintiff to File Second Amended Complaint; granting 9 Motion to Amend Complaint, by Magistrate Judge Boyd N. Boland on 5/06/2014.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00978-BNB
RAY NUNN,
Plaintiff,
v.
MIKE MILLER, Warden of Crowley County Correctional Facility,
STATE OF COLORADO,
RICK RAEMISCH,
ROGER WERHOLZ,
TONY CAROCHI,
TOM CLEMENTS, in His or Her Official Capacity as Executive Director of the Colorado
Department of Corrections, and in His or Her Individual Capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Ray Nunn, is in the custody of the Colorado Department of Corrections
at the Fremont Correctional Facility in Canón City, Colorado. Mr. Nunn initiated this
action by filing pro se a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C.
§ 1983 asserting a deprivation of his constitutional rights. He has been granted leave to
proceed in forma pauperis, pursuant to 28 U.S.C. § 1915.
On April 14, 2014, the Court reviewed the allegations of the Complaint and
determined that they were deficient because it failed to comply with Fed. R. Civ. P. 8
and did not allege the personal participation of each named Defendant in an arguable
deprivation of the Plaintiff’s constitutional rights. The Court thus ordered Mr. Nunn to
file an amended complaint, on the court-approved Prisoner Complaint form, within thirty
(30) days of the April 14 Order. Plaintiff filed an Amended Complaint on April 14, 2014.

The Amended Complaint dismisses several of the Defendants named in the original
Complaint and names additional Defendants. On April 30, 2014, Mr. Nunn filed a
Motion to Amend Complaint (ECF No. 9), again changing the names of the Defendants.
The Court must construe Mr. Nunn’s filings liberally because he 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 act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110.
Mr. Nunn will be directed to file a second amended complaint that includes all of
his allegations against the Defendants and proposed Defendants. An amended
complaint supercedes and replaces the original and all other prior complaints. Mink v.
Suthers, 482 F.3d 1244 (10th Cir. 2007) (citing In re Atlas Van Lines, Inc., 209 F.3d
1064, 1067 (8th Cir.2000)); Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir.1990)
(“[A] pleading that has been amended under Rule 15(a) supersedes the pleading it
modifies . . . . ”) (internal quotation marks omitted).
Mr. Nunn’s second amended complaint must comply with the pleading
requirements of Fed. R. Civ. P. 8. These requirements are set forth in detail in the April
14 Order. In order for Mr. Nunn to state a claim in federal court, his "complaint must
explain what each defendant did to him . . . ; when the defendant did it; how the
defendant’s action harmed him . . . ; 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).
Further, Mr. Nunn must allege specific facts to show the personal participation of
each named Defendant in a violation of his constitutional rights. See Bennett v. Passic,
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545 F.2d 1260, 1262-63 (10th Cir. 1976); 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); see also Dodds v.
Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010) (“[D]efendant-supervisors may
be liable under § 1983 where an ‘affirmative’ link exists between the unconstitutional
acts by their subordinates and their ‘adoption of any plan or policy. . .–express or
otherwise–showing their authorization or approval of such ‘misconduct.’”) (quoting Rizzo
v. Goode, 423 U.S. 362, 371 (1976)). Supervisory defendants may not be held liable for
the unconstitutional conduct of his subordinates on a theory of respondeat superior.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This is because Ҥ 1983 does not
recognize a concept of strict supervisor liability; the defendant’s role must be more than
one of abstract authority over individuals who actually committed a constitutional
violation.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
Finally, in the second amended complaint, Mr. Nunn must allege sufficient facts
to show the arguable violation of one or more of his constitutional rights, as discussed in
the April 14 Order. Accordingly, it is
ORDERED that Plaintiff’s Motion to Amend Complaint (ECF No. 9), filed on April
30, 2014, is GRANTED. It is
FURTHER ORDERED that Plaintiff, Ray Nunn, file within thirty (30) days from
the date of this order, a second amended complaint, on the court-approved Prisoner
Complaint form, that complies with the directives in this order. It is

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FURTHER ORDERED that Mr. Nunn shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Nunn fails to file a second amended complaint
that complies with this order within the time allowed, the Court may dismiss all or part of
this action without further notice for the reasons discussed in this Order and in the April
14, 2014 Order.
DATED May 6, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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