Ingram v. Clements et al

Filing 9

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 6/19/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01024-BNB
MICHAEL RAY INGRAM,
Plaintiff,
v.
FRANK CLEMENTS,
R. WERHOLZ,
R. RAEMISCH,
JOHN AND JANE DOES AT THE COLORADO DEPARTMENT OF CORRECTIONS,
J. FALK,
J. CHAPDELAINE,
JOHN AND JANE DOES AT STERLING CORRECTIONAL FACILITY,
JOHN AND JANE DOES, Job Board at Sterling Correctional Facility,
K. MCKAY, Physician’s Assistant,
DR. CHRISTNER, and
PHYSICIANS HEALTH PARTNERS, INC., dba CORRECTIONAL HEALTH
PARTNERS, a Colorado Corporation, and
JOHN AND JANE DOES, Physicians Health Partners, Inc., dba Health Partners, a
Colorado Corporation,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Michael Ray Ingram, is a prisoner in the custody of the Colorado
Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr.
Ingram has filed pro se a forty-three page Prisoner Complaint (ECF No. 1) pursuant to
42 U.S.C. § 1983, the Americans With Disabilities Act (ADA), and the Rehabilitation Act,
and asserts supplemental jurisdiction over state law claims for breach of contract and
negligence.

The Court must construe the Prisoner Complaint liberally because Mr. Ingram 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. Ingram will be ordered to file an amended Prisoner Complaint if he wishes to
pursue claims against all of the named Defendants in this action.
The Prisoner Complaint is deficient in various respects. First, the Prisoner
Complaint fails to 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.
Mr. Ingram’s complaint is unnecessarily prolix. Plaintiff asserts six claims: cruel
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and unusual punishment; violations of the Fourteenth Amendment; violations of the
ADA; violations of the Rehabilitation Act; breach of contract; and negligence. He bases
each of his six claims on the same factual allegations. (See ECF No. 1 at 8-37). Those
assertions stem from Defendants alleged refusal to “provide appropriate housing
restrictions, work restrictions, and ADA and Rehabilitation Act accommodations.” (Id. at
7). Specifically, Mr. Ingram alleges that Defendants are forcing him to work in the
prison kitchen, which causes pain and suffering and a deterioration of his thirteen
medical conditions, including “nausea, light-sensitivity, arthritic neck pain, a chronic
choking, arthritic left shoulder, arthritis/tendinitis right elbow, lower back pain/spasms,
arthritic left hip, arthritic knee pain, right ankle pain, left ankle pain, deformed heels, and
foot and heel pain.” (Id. at 8-37). He also contends that since 2012, Defendants have
required him to move pursuant to housing assignment changes at least twelve times,
which further aggravates his medical conditions and disabilities. (Id. at 15).
Mr. Ingram fails to assert his claims in a manner that is clear and concise and
allows the Court and Defendants to understand and respond to each asserted claim.
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). In addition, despite the excessive length of the
Complaint, Mr. Ingram’s vague and conclusory factual allegations do not provide fair
notice of the specific claims he is asserting against each named Defendant.
The Complaint also is deficient because Mr. Ingram fails to allege facts that
demonstrate each of the named Defendants personally participated in the asserted
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constitutional violations. For example, although Mr. Ingram names Defendants J.
Chapdelaine and Dr. Christner in the caption of the Complaint, he does not assert any
allegations against them in the body of the Complaint.
In addition, Mr. Ingram may not assert claims against Defendants Frank
Clements, R. Werholz, R. Raemisch, and J. Falk based on a theory of respondeat
superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Instead,
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. Although, Mr.
Ingram alleges that Defendants Clements, Werholz, Raemisch, and Falk failed to
properly train and supervise prison staff, this conclusory allegation is insufficient to
establish personal participation for these Defendants. See e.g., Ketchum v. Cruz, 775
F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory allegations that his rights
have been violated does not entitle a pro se pleader to a day in court regardless of how
liberally the pleadings are construed), aff’d, 961 F.2d 916 (10th Cir. 1992). “[I]n
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analyzing the sufficiency of the plaintiff’s complaint, the court need accept as true only
the plaintiff’s well-pleaded factual contentions, not his conclusory allegations.” Hall, 935
F.2d at 1110.
Similarly, Mr. Ingram’s claims against Defendant Physicians Health Partners,
Inc., dba Correctional Health Partners, a Colorado Corporation, are supported by wholly
conclusory allegations that Defendant failed to provide “necessary and timely treatment”
for Mr. Ingram’s conditions. Again, conclusory allegations are insufficient. See
Ketchum, 775 F. Supp. at 1403; Hall, 935 F.2d at 1110.
If Mr. Ingram wishes to pursue claims against the named Defendants, he must
file an amended complaint that identifies what those Defendants did that allegedly
violated his constitutional rights. 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). In order to state a claim in federal
court, Mr. Ingram “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). Therefore, Mr. Ingram should name as
Defendants only those persons he contends actually violated his federal constitutional
rights. Moreover, Mr. Ingram’s use of the collective term “Defendants” throughout the
Complaint is insufficient. See e.g., Bridges v. Lane, 351 Fed. Appx. 284, 287 (10th Cir.
2009) (unpublished) (in § 1983 claims “it is particularly important . . . that the complaint
make clear exactly who is alleged to have done what to whom, to provide each
individual with fair notice as to the basis of the claims against him or her”); see also
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Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Given the complaint’s use
of [ ] the collective term ‘Defendants’ . . . with no distinction as to what acts are
attributable to whom, it is impossible for any of these individuals to ascertain what
particular unconstitutional acts that are alleged to have committed.”).
Mr. Ingram 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.
Ingram uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service. In the Complaint,
Mr. Ingram fails to provide any identifying information as to Defendants John and Jane
Does at the Colorado Department of Corrections, John and Jane Does at Sterling
Correctional Facility, and John and Jane Does, Physicians Health Partners, Inc., dba
Health Partners, a Colorado Corporation.
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. Ingram will be given an opportunity to cure the deficiencies in his complaint by
submitting an amended prisoner 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
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ORDERED that Plaintiff, Michael Ray Ingram, file within thirty (30) days from
the date of this order an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Ingram 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 use that form in
submitting the amended Prisoner Complaint. It is
FURTHER ORDERED that, if Mr. Ingram fails to file an amended complaint that
complies with this order within the time allowed, some or all of the claims against some
or all of the Defendants may be dismissed.
DATED June 19, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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