Brown v. Bach et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint by Magistrate Judge Boyd N. Boland on 4/17/2014. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01015-BNB
SHAUN ERIC BROWN,
Plaintiff,
v.
MAYOR STEVE BACH,
CHIEF PETER CARIEY,
S. WORLEY (1123),
J. RAGLAND (1709), and
UNKNOWN AGENTS, et al.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Shaun Eric Brown, currently is incarcerated at the El Paso County
Criminal Justice Center in Colorado Springs, Colorado. Mr. Brown initiated this action
by filing pro se a Prisoner Complaint (ECF No. 1) for money damages pursuant to 42
U.S.C. § 1983, as well as 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Brown has been granted leave to
proceed pursuant to 28 U.S.C. § 1915.
Although Plaintiff identifies both § 1983 and Bivens as the jurisdictional bases for
his claims, the Court construed the action against state officials as if it were brought
under § 1983 only. Under § 1983, a plaintiff must allege that the defendants have
violated his or her rights under the Constitution and laws of the United States while they
acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970).

The Court must construe Mr. Brown’s Prisoner Complaint 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
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Mr. Brown will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
Mr. Brown contends that on December 10 and 11, 2012, while he was on parole,
a traffic accident occurred at the intersection of Pikes Peak Avenue and Chelton Road in
Colorado Springs, Colorado. He further alleges that, after investigation of the accident
and the license plate of the vehicle that fled the scene, he was arrested on January 10,
2013, and criminal charges were brought against him in El Paso County District Court
Case No. 13CR000156 for seven traffic offenses, including driving after revocation
prohibited and reckless driving. He contends the charges were false. He also contends
Defendants were negligent, improperly trained, conducted an improper investigation, and
violated his constitutional rights because proper procedures were not followed, including
at a photo lineup where he was falsely identified.
It is unclear which conviction underlies Mr. Brown’s current incarceration. Mr.
Brown will be directed to inform the Court in his amended Prisoner Complaint if he is
challenging his conviction in No. 13CR000156 or a different conviction. Assuming he is
challenging his conviction and sentence in No. 13CR000156, his claims for money
damages were barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck,
the Supreme Court held that if a judgment for damages favorable to a prisoner in a §
1983 action necessarily would imply the invalidity of his or her criminal conviction or
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sentence, the § 1983 action does not arise until the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by an
authorized state tribunal, or called into question by the issuance of a federal habeas writ.
See Heck, 512 U.S. at 486-87. Mr. Brown does not allege that he has invalidated the
conviction or sentence pertinent to the incident at issue. Therefore, any claims for
damages challenging the validity of his criminal conviction were barred by Heck.
To the extent Mr. Brown seeks to challenge his criminal conviction or obtain his
release from incarceration, his sole federal remedy was a writ of habeas corpus, after he
has exhausted state court remedies. See Preiser v. Rodriguez, 411 U.S. 475, 504
(1973). The Court will not consider the merits of any habeas corpus claims asserted in
this civil rights action.
The amended Prisoner Complaint Mr. Brown will be directed to file 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
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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.
Mr. Brown fails to assert his claims in a manner that is clear and concise and
allows the Court and each Respondent to understand and respond to each asserted
claim. Generally, Mr. Brown fails to provide “a generalized statement of the facts from
which the defendant may form a responsive pleading.” 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. 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).
Mr. Brown must present his claims in a manageable and readable format that
allows the Court and the defendants to know what claims are being asserted and to be
able to respond to those claims. Mr. Brown 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 facts is not required. Nor should the Court or defendants be
required to sift through Mr. Brown’s verbose allegations to determine the heart of each
claim.
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The Prisoner Complaint also is deficient because Mr. Brown fails to allege facts
that demonstrate each of the named defendants personally participated in the asserted
constitutional violations. In order to state a claim in federal court, Mr. Brown “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).
Section 1983 “provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526
U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) (“[T]he purpose
of § 1983 is to deter state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to provide relief to victims if such
deterrence fails.”). Therefore, Mr. Brown should name as defendants in his amended
Prisoner Complaint only those persons that he contends actually violated his federal
constitutional rights.
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. Brown 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). With respect to supervisory officials, a defendant
may not be held liable for the unconstitutional conduct of his or her subordinates on a
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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) 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. Brown 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.
Brown 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.
Brown will be given an opportunity to cure the deficiencies by submitting an amended
Prisoner Complaint that states claims clearly and concisely in compliance with Fed. R.
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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 Prisoner Complaint. Mr.
Brown is warned that, even if the Court dismisses the instant action without prejudice for
failure to comply with this order, the dismissal may bar recovery if Mr. Brown seeks to
refile in this Court because the two-year statute of limitations may have run on his § 1983
claims.
Accordingly, it is
ORDERED that Plaintiff, Shaun Eric Brown, 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. It is
FURTHER ORDERED that Plaintiff shall obtain (with the assistance of his case
manager or the facility’s legal assistant) the Court-approved form for filing a Prisoner
Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use the form in filing an amended Prisoner Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to file an amended Prisoner Complaint
as directed within thirty days from the date of this order, the Prisoner Complaint and
action may be dismissed without further notice.

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DATED April 17, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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