Meek v. Administrative Review Board et al

Filing 15

ORDER Directing Plaintiff to File Amended Complaint; The 13 Motion to Transfer Exhibits is denied, by Magistrate Judge Craig B. Shaffer on 7/31/14.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01335-BNB
TIMOTHY MEEK,
Plaintiff,
v.
VAN CISE SIMONET DOWNTOWN DETENTION CENTER
ADMINISTRATIVE REVIEW BOARD,
CAPTIN [sic] MS. KOONTZ,
SARGEANT MR. JORDAN (both defendants are being sued
in ther [sic] offical [sic] and individual capacities,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Timothy Meek, attempted to initiate the instant action by submitting pro
se a motion titled “Motion to Intent to Sue” (ECF No. 1) concerning his placement in
administrative segregation while confined at the Van Cise-Simonet Detention Center in
Denver, where he then was incarcerated. He since has informed the Court that he is a
prisoner in the custody of the Colorado Department of Corrections who currently is
incarcerated at the correctional facility in Limon, Colorado.
On May 13, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No.
3) directing Plaintiff to cure within thirty days certain deficiencies in the instant action.
Specifically, Mr. Meek was told to file a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 on the Court’s current form revised October 1,
2012, with an Authorization and Certificate of Prison Official and a certified copy of his
trust fund account statement for the six-month period immediately proceeding this filing.

Alternatively, Mr. Meek was informed he could pay the $400.00 filing fee. In addition,
Mr. Meek was directed to file a Prisoner Complaint on the Court-approved form. Finally,
he was directed to obtain the correct forms (with the assistance of his case manager or
the facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov.
On May 22, 2014, Mr. Meek submitted an Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 4) asserting civil rights claims and a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas
Corpus Action (ECF No. 5). On May 23, 2014, Magistrate Judge Boland entered an
order (ECF No. 6) directing Mr. Meek to show cause within thirty days why the habeas
corpus application should not be denied because he failed to assert habeas corpus
claims.
On June 27, 2014, instead of showing cause as directed, Mr. Meek filed a
Prisoner Complaint (ECF No. 11) pursuant to 42 U.S.C. § 1983 concerning his
placement in administrative segregation while confined at the Van Cise-Simonet
Detention Center and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 (ECF No. 12). He also filed a motion (ECF No. 13) titled “Motion to
Transfer Exhibits.” On July 25, 2014, the Court granted Plaintiff leave to proceed
pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915. In the Prisoner
Complaint, Mr. Meek failed to allege whether he was a pretrial detainee or a convicted
felon while incarcerated at the Van Cise-Simonet Detention Center.
The Court must construe Mr. Meek’s Prisoner Complaint liberally because he is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
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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. Merely making vague
and conclusory allegations that his federal constitutional rights have been violated does
not entitle a pro se pleader to a day in court, regardless of how liberally the court
construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo.
1991), aff’d, 961 F.2d 916 (10th Cir. 1992). “[I]n 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. The Court
may disregard conclusory allegations, which are not entitled to a presumption of
truthfulness. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Meek v. Jordan, 534 F. App’x
762, 764 (10th Cir. 2013). For the reasons stated below, Mr. Meek will be ordered to
file an amended Prisoner Complaint.
Mr. Meek may not sue the administrative review board of the Van Cise-Simonet
Detention Center. The Van Cise-Simonet Detention Center and its administrative
review board are not separate entities from the City and County of Denver, and,
therefore, are not persons under § 1983. See Stump v. Gates, 777 F. Supp. 808,
814-16 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993). Any claims asserted
against the Van Cise-Simonet Detention Center and its administrative review board
must be considered as asserted against the City and County of Denver.
In addition, municipalities, such as the City and County of Denver, and municipal
entities are not liable under § 1983 solely because their employees inflict injury on a
plaintiff. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978);
Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). To establish liability,
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a plaintiff must show that a policy or custom exists and that there is a direct causal link
between the policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489
U.S. 378, 385 (1989). Plaintiff cannot state a claim for relief against El Paso County
under § 1983 merely by pointing to isolated incidents. See Monell, 436 U.S. at 694.
Mr. Meek generally alleges that on April 24, 2014, while he was incarcerated at
the Van Cise-Simonet Detention Center in Denver, he was removed from the general
population and placed in punitive segregation as a result of an alleged rule infraction.
He further alleges that on April 30, 2014, he was “cleared of any wrong doing.” ECF
No. 11 at 3. He contends on the same day he was informed by a Captain Brown, who
is not a named defendant, he would be returned to the general population and all his
privileges restored. He further contends that later the same day he was informed by a
Deputy White, who is not a named defendant, that Defendants, Captain Ms. Koontz and
Sergeant Mr. Jordan, had decided not to return him to the general population, but rather
to place him in administrative segregation, where he remained for thirty days. He
complains about the conditions of his confinement in administrative segregation,
including but not limited to lack of personal privacy, cell confinement twenty-three hours
daily, deprivation of human and social contact and mental stimulation, exposure to
bright lights twenty-four hours daily, and inability to purchase personal hygiene items.
He alleges that after thirty days in segregation, he was transferred to the DOC and
placed in administrative segregation. He asserts that he suffered various physical and
mental ailments as a result of his detention center administrative segregation.
As his first claim, he complains his due process rights were violated by Captain
Koontz and Sergeant Jordan because he was not provided with a hearing before being
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placed in administrative segregation. However, he fails to allege specific facts indicating
whether his transfer to administrative segregation necessitated a prior hearing.
If the purpose is punishment, “[s]egregation of a prisoner without a prior hearing
may violate due process if the postponement of procedural protections is not justified by
apprehended emergency conditions.” Frazier v. Dubois, 922 F.2d 560, 563 (10th Cir.
1990) (quoting Hughes v. Rowe, 449 U.S. 5, 11 (1980)). If the segregation is nonpunitive in nature and is done for administrative or supervisory reasons, the inmate has
no due process rights prior to administrative confinement unless prison regulations
provide him with a liberty interest. Frazier, 922 F.2d at 563 (citing Hewitt v. Helms, 459
U.S. 460, 476 (1983)). Based on the facts alleged in claim one, Mr. Meek does not
appear to be challenging his initial punitive segregation, but rather the decision to place
him in administrative segregation after the rule infraction was overturned.
The due process clause does not protect an inmate from being transferred from
one institution to another, and placing an inmate into administrative segregation does
not “involve deprivation of a liberty interest independently protected by the Due Process
Clause.” Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006). However, prison
conditions that “impose[ ] atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life” may create a liberty interest protected by the Due
Process Clause. Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995). The current
record does not allege facts demonstrating atypical and significant hardship.
As his second claim, Mr. Meek complains that because he was denied the due
process procedural safeguards of written notice of the charges against him and an
opportunity to present a defense, he is being treated differently than other similarly
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situated inmates. As his third and final claim, he alleges that by not being allowed these
due process safeguards and by being treated in a manner that is capricious, arbitrary,
and discriminatory, he has been subjected to cruel and unusual punishment.
Mr. Meek’s second and third claims are vague and conclusory. Both claims are
based on his assertion that his due process rights were violated. A person’s right to
equal protection is violated when the government or its officials treat him or her
differently than others who are similarly situated. See City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Penrod v. Zavaras, 94 F.3d 1399, 1406
(10th Cir. 1996). However, Mr. Meek fails to assert any facts demonstrating how he
was treated differently than similarly situated inmates and by whom, or identify the
similarly situated inmates.
“The Eighth Amendment's prohibition of cruel and unusual punishment imposes a
duty on prison officials to provide humane conditions of confinement, including
adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from
bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). “[E]xtreme
deprivations are required to make out a conditions-of-confinement claim.” Hudson v.
McMillian, 503 U.S. 1, 9 (1992). The Eighth Amendment is not violated unless the
conditions deprive a prisoner of “‘the minimal civilized measure of life's necessities.’”
Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337,
347 (1981)). Mr. Meek cannot assert a cognizable claim under the Eighth Amendment
unless he alleges that prison officials were deliberately indifferent to a substantial risk of
serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Stated another way,
Mr. Meek must demonstrate both that the injury he suffered was sufficiently serious and
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that prison officials acted with deliberate indifference. See Tafoya, 516 F.3d at 916.
Deliberate indifference means that “a prison official may be held liable . . . only if he
knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847. That is, “the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
“To the extent that [prison] conditions are restrictive and even harsh, they are part of the
penalty that criminal offenders pay for their offense against society.” Rhodes v.
Chapman, 452 U.S. 337, 346-47 (1981); see also Battle v. Anderson, 788 F.2d 1421,
1427-28 (10th Cir. 1986) (affirming that a prison is “not a nursery school” but a place for
confining convicted felons). Mr. Meek fails to assert any facts demonstrating how he
was subjected to cruel and unusual punishment and by whom.
The amended Prisoner Complaint Mr. Meek 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
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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. Meek fails to assert his claims in a manner that is clear and concise and
allows the Court and each defendant to understand and respond to each asserted
claim. Generally, Mr. Meek 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).
It is Mr. Meek’s responsibility to 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. Meek 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. The
Court does not require a long, chronological recitation of facts. Nor should the Court or
defendants be required to sift through Mr. Meek’s vague and conclusory allegations to
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determine the heart of each claim.
The Prisoner Complaint also is deficient because Mr. Meek fails to allege facts
that demonstrate each of the named defendants personally participated in the
constitutional violations asserted in claims two and three. In order to state a claim in
federal court, Mr. Meek “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. Meek 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. Meek 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
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may not be held liable for the unconstitutional conduct of his or her subordinates on a
theory of respondeat superior. See Iqbal, 556 U.S. at 676. Furthermore,
when a plaintiff sues an official under Bivens [v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971),] 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 civil rights 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. Meek 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.
Meek 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. Meek will be given an opportunity to cure the deficiencies by submitting an
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amended Prisoner Complaint that sues the proper parties, 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 Prisoner Complaint.
Mr. Meek is warned that, even if the Court dismisses the instant action without
prejudice for failure to comply with this order, the dismissal may act as a dismissal with
prejudice if Mr. Meek seeks to refile in this Court because the two-year limitations
periods may have run on his § 1983 claims.
Accordingly, it is
ORDERED that within thirty (30) days from the date of this order Plaintiff file
an amended Prisoner Complaint that complies with the directives of this order. 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 the 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, some claims against some
defendants or the entire Prisoner Complaint and the action may be dismissed without
further notice. It is
FURTHER ORDERED that the motion (ECF No. 13) titled “Motion to Transfer

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Exhibits” is denied.
DATED at Denver, Colorado, this 31st day of July, 2014.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

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