Stetzel v. Holubek

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Craig B. Shaffer on 7/29/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01875-BNB
PHILIP E. STETZEL,
Plaintiff,
v.
RICK RAEMISCH, Exec. Dir., CDOC,
RANDY LIND, Acting Warden, AVCF,
TIFFANY HOLUBEK, Legal Asst., AVCF,
MAJ. BUCHOLZ, Programs Supervisor, AVCF,
HARRISON WELTON, Investigator, CDOC,
YVETTE BROWN, Legal Asst., FCF,
RON WAGER, Associate Warden, FCF,
STEPHANIE GONZALES, Admin. Mgr., AVCF,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Philip E. Stetzel, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) who currently is incarcerated at the correctional facility in Buena
Vista, Colorado. Mr. Stetzel, acting pro se, filed a Prisoner Complaint (ECF No. 1)
pursuant to 42 U.S.C. § 1983 and other statutes, for money damages and declaratory
and injunctive relief. He has been granted leave to proceed pursuant to 28 U.S.C. §
1915.
The Court must construe the Prisoner Complaint liberally because Mr. Stetzel 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. The Court may take

judicial notice of its own records and files that are part of the Court’s public records.
See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172
(10th Cir. 1979). 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. For the reasons stated below, Mr. Stetzel will be ordered to file an
amended Prisoner Complaint.
Mr. Stetzel asserts four claims that are vague, conclusory, disorganized,
confusing, and unnecessarily verbose concerning his disciplinary convictions,
placement in segregation, and subsequent transfers, allegedly punitive, from the
Fremont Correctional Facility (FCF) to the Arkansas Valley Correctional Facility (AVCF)
to Buena Vista Correctional Facility (BVCF) as a result of the disciplinary convictions.
He persists in incorporating the allegations of each claim into the subsequent claims, a
technique that confuses rather than clarifies each claim.
His first claim of retaliation stems from two verbal confrontations with Tiffany
Holubek, an AVCF legal assistant, who he contends verbally abused him on November
12, 2013, and December 17, 2013. Three weeks later, he received a notice of
disciplinary charges for disobeying a lawful order, which he contends was in retaliation
for his filing a grievance against Ms. Holubek. Following a disciplinary hearing, he was
found not guilty as charged. He also contends he wrote a letter to the DOC’s Office of
2

Investigator General (OIG), and afterwards had a meeting with Major Bucholz, AVCF
programs supervisor, and Tiffany Holubek, who he alleges were angered by the letter
they received from the OIG in response to Plaintiff’s letter. Subsequently, he was taken
to the segregation unit allegedly for making “threats against staff.” ECF No. 1 at 10.
While in segregation, he received a notice of charges for a disciplinary offense he fails
to explain, and following a hearing was found guilty as charged “by a preponderance of
evidence,” ECF No. 10 at 22, and sanctioned by twenty days in punitive segregation.
He contends he was wrongfully convicted because the only evidence was Tiffany
Holubek’s false testimony. He further contends both disciplinary incidents subjected
him to cruel and unusual punishment under the Eighth Amendment, but fails to assert
facts that explain how.
As his second claim, he asserts defendants were deliberately indifferent to his
efforts to resolve problems suffered from events beginning on August 29, 2013, events
which he fails to explain and a date that he fails to mention previously in the complaint
and fails to explain in claim two. This vague-and-conclusory claim lacks any factual
allegations against any defendant.
As his third claim, Mr. Stetzel makes the vague and conclusory allegations that
all defendants have abused their discretion concerning: (1) the disciplinary convictions
that occurred on May 1, 2014, the second disciplinary proceeding Plaintiff discusses in
claim one, and a disciplinary conviction he received on September 13, 2013, which
Plaintiff fails to discuss; (2) the excessiveness of the claims of Yvette Brown, a FCF
legal assistant, and Tiffany Holubek, the former of which Plaintiff fails to explain and the
latter of which Plaintiff discusses in claim one; (3) his convictions on wrongful charges
3

he fails to identify clearly by individuals surnamed Gomez and Lawson, who are not
named defendants, and by Randy Lind and Ron Wager, AVCF acting warden and
associate warden respectively, all of whom allegedly upheld the charges; (4) the lack of
or fabricated evidence in disciplinary convictions he fails to discuss clearly or could have
discussed in claim one involving Yvette Brown, Ron Wager, Tiffany Holubek and
Stephanie Gonzales, AVCF administrative manager; (5) his current confinement at
BVCF when FCF and AVCF are the correctional facilities that offer the Sex Offender
Treatment and Monitoring Program, in which he is required to participate because he is
a convicted sex offender.
As his fourth and final claim, Mr. Stetzel makes the vague and conclusory
allegation that he intends to prove that defendants violated his rights to equal protection
and to be free from cruel and unusual punishment. He also contends Yvette Brown and
Tiffany Holubek, legal assistants and FCF and AVCF respectively, violated DOC
administrative regulations governing staff conduct and staff and offender
communication, and the remaining defendants violated grievance procedures and state
statutes, allegations which do not clearly relate to his asserted claim of equal protection
and cruel and unusual punishment violations.
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
4

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. Stetzel 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. Stetzel 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. Stetzel’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
5

asserted and to be able to respond to those claims. Mr. Stetzel 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. Stetzel’s vague, conclusory, and
verbose allegations to determine the heart of each claim.
The Prisoner Complaint also is deficient because Mr. Stetzel fails to allege facts
that demonstrate each of the named defendants personally participated in the asserted
constitutional violations. In order to state a claim in federal court, Mr. Stetzel “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. Stetzel 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
6

participation, Mr. Stetzel 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 [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.
Furthermore, 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);
7

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”).
Mr. Stetzel 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.
Stetzel 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. Stetzel 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,
motions, or other documents not included in the amended Prisoner Complaint.
Mr. Stetzel 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
8

prejudice if Mr. Stetzel 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.
DATED at Denver, Colorado, this 29th day of July, 2014.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

9