Brown v. Maketa et al

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Craig B. Shaffer on 7/03/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01618-BNB
SHAUN BROWN, also known as
SHAUN ERIC BROWN,
Plaintiff,
v.
SHERIFF TERRY MAKETA,
DEPUTY CHAD JOHNSON, and
UNKNOWN AGENTS, et al.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Shaun Brown, also known as Shaun Eric Brown, currently is
incarcerated at the El Paso County Criminal Justice Center in Colorado Springs,
Colorado. Mr. Brown’s alias has been added to the caption of this order. The clerk of
the Court will be directed to add Mr. Brown’s alias to the Court’s docketing records for
this action. 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. Mr. Brown has been granted
leave to proceed pursuant to 28 U.S.C. § 1915.
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. 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). 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.
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. Brown makes allegations in the section of the Prisoner Complaint titled “C.
Nature of the Case” that are not clearly relevant to his asserted claims. It is unclear
whether Mr. Brown is attempting to challenge being held in custody for 180 days
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pending charges filed against him or the parole hold he alleges is the basis for his
current incarceration.
To the extent Mr. Brown may be asking the court to intervene in ongoing state
court proceedings, the Court may not do so absent extraordinary circumstances. See
Younger v. Harris, 401 U.S. 37 (1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir.
1997). To the extent he may be challenging his conviction and sentence, his claims for
money damages are 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
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. The rule in Heck also applies to claims that
challenge other forms of confinement. See Crow v. Penry, 102 F.3d 1086, 1087 (10th
Cir. 1996) (per curiam) (stating that Heck applies to proceedings related to parole and
probation). In short, a civil rights action filed by a state prisoner “is barred (absent prior
invalidation) – no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings) – if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
To the extent Mr. Brown seeks to challenge his criminal conviction or obtain his
release from incarceration, his sole federal remedy is a writ of habeas corpus, after he
has exhausted state court remedies. See Preiser v. Rodriguez, 411 U.S. 475, 504
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(1973). The merits of any habeas corpus claims asserted in this civil rights action will
not be considered.
Mr. Brown asserts three claims pursuant to the Fourth, Fifth, Sixth, Eighth, and
Fourteenth amendments, failing to clarifying how each asserted claim violates five
constitution amendments. In claim one, he asserts a claim that Defendant, Sheriff Terry
Maketa, breached a duty of care and was negligent in causing Plaintiff to suffer
unspecified personal injuries. However, he fails to assert any facts to support this claim.
In addition, negligence is insufficient to state a claim for relief under § 1983. County of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998); see also Farmer v. Brennan, 511 U.S.
825, 835 (1994).
In claim two, Mr. Brown asserts that Defendant, Sheriff Terry Maketa, failed to
train Defendant, Deputy Chad Johnson, who improperly conducted an investigation into
an assault Mr. Brown allegedly committed on a co-inmate in the El Paso County
Criminal Justice Center on November 21, 2013, and for which he was charged with
assault in the third degree, a class-one misdemeanor, and harassment, a class-three
misdemeanor. He fails to allege any facts that explain how Sheriff Maketa inadequately
trained Deputy Johnson. Again, to the extent Mr. Brown may be asking the Court to
intervene in ongoing state court proceedings or is challenging his conviction and
sentence, his claims for money damages are barred.
In claim three, he contends Deputy Johnson brought false assault and
harassment charges against him in connection with the incident of November 21, 2013.
Once again, to the extent Mr. Brown may be asking the Court to intervene in ongoing
state court proceedings or is challenging his conviction and sentence, his claims for
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money damages are barred.
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).
It is Mr. Brown’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. 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.
The Court does not require a long, chronological recitation of facts. Nor should the
Court or defendants be required to sift through Mr. Brown’s verbose allegations to
determine the heart of each claim.
The Prisoner Complaint also is deficient because Mr. Brown fails to allege facts
that demonstrate how each of the named defendants personally participated in the
asserted constitutional violations. In order to state a claim in federal court, Mr. Brown
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“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
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
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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. 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,
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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 act as a dismissal with prejudice 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 the clerk of the Court add the alias, Shaun Eric Brown, to the
Court’s docketing records for this action. It is
FURTHER ORDERED that Plaintiff, Shaun 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 July 3, 2014, at Denver, Colorado.
BY THE COURT:

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

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