Conkleton v. Raemisch et al

Filing 17

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 3/26/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01345-GPG
JAMES K. CONKLETON,
Plaintiff,
v.
RICK RAEMISCH, Executive Director of the Colorado Department of Corrections
(CDOC), in his official capacity,
BRANDON SHAFFER, Chairman, Colorado Board of Parole, in his official capacity,
ALFREDO PENA, Member, Colorado Board of Parole, in his official capacity,
DENISE BALAZIC, Member, Colorado Board of Parole, in her official capacity,
BART COX, Treatment Provider for the CDOC Sex Offender Treatment and
Management Program (SOTMP), in his official capacity,
MICHAEL FLOYD, Contract Polygrapher of Amich & Jenks, Inc., in his official capacity,
ANN NEWMAN, Treatment Provider for the CDOC SOTMP, in her official capacity,
SAMUEL DUNLAP, Treatment Provider for the CDOC SOTMP, in his official capacity,
LEONARD WOODSON, Treatment Provider for the CDOC SOTMP, in his official
capacity,
JEFF JENKS, Contract Polygrapher/Sex Offender Management Board (SOMB)
member, in his official capacity,
COLTON McNUTT, Treatment Provider for the CDOC SOTMP, in his official capacity,
and
SOTMP TREATMENT TEAM, in its official capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, James K. Conkleton, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Conkleton initiated this action by filing pro se a Prisoner
Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 claiming his rights under the
United States Constitution were violated. The Prisoner Complaint previously was
dismissed in its entirety but that order was reversed in part. In particular, the United

States Court of Appeals for the Tenth Circuit remanded to this court Mr. Conkleton’s
retaliation claim as it relates to prison officials.
The court must construe the Prisoner Complaint liberally because Mr. Conkleton
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 (10 th 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. Conkleton will be ordered to file an amended complaint that clarifies his
retaliation claim against prison officials.
The Prisoner 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 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 (10 th 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 (10 th 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
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pleadings violate Rule 8.
Mr. Conkleton alleges in support of his retaliation claim that Defendants
retaliated against him for filing administrative grievances by subjecting him to the
debilitating effects of maintenance polygraphs, denying pre-release classes, and
threatening his family. (See ECF No. 1 at p.21, ¶82.) However, he fails to provide a
short and plain statement of the retaliation claim showing he is entitled to relief because
he fails to allege specific facts that demonstrate he is entitled to relief on that claim. To
state a retaliation claim Mr. Conkleton must demonstrate: (1) he was engaged in
constitutionally protected activity, (2) Defendant’s actions caused him to suffer an injury
that would chill a person of ordinary firmness from continuing to engage in that activity,
and (3) Defendant’s adverse action was substantially motivated as a response to
Plaintiff’s constitutionally protected activity. See Allen v. Avance, 491 F. App’x 1, 6 (10th
Cir. 2012). Mr. Conkleton fails to allege facts that demonstrate he suffered an injury
that would chill a person of ordinary firmness from continuing to engage in
constitutionally protected activity. It also is not clear against which particular
Defendants Mr. Conkleton is asserting the retaliation claim or what any Defendant other
than Bart Cox did to personally participate in the alleged retaliatory actions.
Vague and conclusory allegations that his federal constitutional rights have been
violated do 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 (10 th Cir. 1992). Furthermore, 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
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searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). Thus, “in 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.
For these reasons, Mr. Conkleton will be directed to file an amended complaint.
Mr. Conkleton should name as Defendants only those prison officials he contends
actually retaliated against him and he must list each Defendant in the caption of the
amended complaint. Mr. Conkleton also must clarify what each Defendant did that
allegedly violated his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10 th Cir. 2007) (noting that, to state a claim in federal court, “a complaint
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”); see also Henry v. Storey, 658 F.3d 1235, 1241 (10 th Cir. 2011)
(allegations of “personal participation in the specific constitutional violation complained
of [are] essential”). A defendant 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). Although a defendant can be liable in a § 1983 action based on his
supervisory responsibilities, a claim of supervisory liability must be supported by
allegations that demonstrate personal involvement, a causal connection to the
constitutional violation, and a culpable state of mind. See Schneider v. City of Grand
Junction Police Dept., 717 F.3d 760, 767-69 (10 th Cir. 2013) (discussing standards for
supervisory liability). Accordingly, it is
ORDERED that Mr. Conkleton file, within thirty (30) days from the date of this
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order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Conkleton 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. It is
FURTHER ORDERED that, if Mr. Conkleton fails to file an amended complaint
that complies with this order within the time allowed, the action will be dismissed.
DATED March 26, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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