Allen v. Hickenlooper et al

Filing 10

ORDER Directing Plaintiff To File An Amended Complaint, by Magistrate Judge Craig B. Shaffer on 06/09/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01176-BNB
EDWARD ALLEN, aka EDWARD CLUTTS,
Plaintiff,
v.
GOVERNOR HICKENLOOPER,
RICK RAEMISCH,
THE ENTIRE PAROLE BOARD,
THE ENTIRE COLORADO SEX OFFENDER MANAGEMENT BOARD,
MAGGIE LEIONON,
DENISE BALAZIC,
JOE MORALES,
BRANDON SHAFFER,
JOANIE SHOEMAKER,
JOHN W. SUTHERS, and
PATRIC SAYAS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
AN AMENDED COMPLAINT

Plaintiff, Edward Allen, aka Edward Clutts, is in the custody of the Colorado
Department of Corrections and currently is incarcerated at the Colorado Territorial
Correctional Facility in Cañon City, Colorado. Plaintiff initiated this action by filing pro se
a Prisoner Complaint and a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915. The Court granted the § 1915 Motion on June 3, 2014.
The Court must construe the Complaint liberally because Plaintiff 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). The Court, however, should not act as a pro se
litigant’s advocate. See Hall, 935 F.2d at 1110. The Court will direct Plaintiff to file an

Amended Prisoner Complaint for the following reasons.
The Court finds that the Complaint does not 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 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
Disassociate 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 pleadings violate the requirements of Rule 8.
Plaintiff fails to set forth a short and plain statement of his claims showing that he
is entitled to relief. Plaintiff’s Complaint is repetitive and a statement of events rather
than a statement of the claims showing that Plaintiff is entitled to relief. The Court,
therefore, will direct Plaintiff to file an Amended Complaint that complies with the
pleading requirements of Rule 8. Plaintiff is reminded that it is his responsibility to
present his claims in a manageable format that allows the Court and Defendants to
know what claims are being asserted and to be able to respond to those claims.
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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,
however, will give Plaintiff an opportunity to cure the deficiencies in the Complaint by
submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
To state a claim in federal court Plaintiff must explain (1) what a defendant did to
him; (2) when the defendant did it; (3) how the defendant’s action harmed him; and (4)
what specific legal right the defendant violated. Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff also must assert personal participation by each named defendant in the
alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). To establish personal participation, Plaintiff must show how each named
individual 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). A defendant may
not be held liable for the unconstitutional conduct of his or her subordinates on a 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.
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

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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, Plaintiff cannot maintain claims against prison officials or
administrators on the basis that they denied his grievances. 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. 07-1425, 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]
under § 1983”). Accordingly, it is
ORDERED that Plaintiff file an Amended Complaint that complies with the
directions above, within thirty days from the date of this Order. It is
FURTHER ORDERED that Plaintiff 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, to be used in filing the
Amended Complaint. It is

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FURTHER ORDERED that if Plaintiff fails to comply with this Order within the
time allowed the Court shall proceed to review the merits of only the claims that are
asserted against properly named defendants in the Complaint filed on April 25, 2014.
DATED June 9, 2014, at Denver, Colorado.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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