Farrel1 v. State of Colorado et al
ORDER to Amend; denying 3 Motion for Class Certification, by Magistrate Judge Boyd N. Boland on 7/18/2014.(slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01882-BNB
STATE OF COLORADO,
ESTATE OF TOM CLEMENTS,
ARISTEDES ZAVARIS, and
ORDER TO AMEND
Plaintiff, Terrance Farrell, III, a pro se prisoner litigant, initiated this action by
filing pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343
and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915. The Court reviewed the documents, determined they are deficient, and directed
Plaintiff to cure the deficiencies. On July 15, 2014, Plaintiff cured the deficiencies by
submitting a new Prisoner Complaint and Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915. The Court granted Plaintiff leave to proceed
pursuant to § 1915.
The assertions in the July 15 Complaint differ from those stated in the original
Complaint. “An amended complaint ‘supersedes the pleading it modifies and remains in
effect throughout the action unless it subsequently is modified. ’ ” See Hooten v. Ikard
Servi Gas, No. 12-2179, 2013 WL 1846840 at *4 (10th Cir. May 3, 2013) (quoting Giles
v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990)). The Court, therefore, will
address only the claims presented in the July 15 Complaint.
The Court must construe the July 15 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). However, the Court should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Plaintiff will be directed to
file an Amended Complaint for the reasons stated below.
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).
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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. 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 Court has reviewed Plaintiff’s Complaint and finds that he fails to provide a
short and plain statement of his claims in compliance with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure. Rather than state under the Cause of
Action section of the Complaint how each responsible defendant violated his
constitutional rights, Plaintiff makes generic statements regarding how the Colorado
Department of Corrections has intentionally denied prisoners earned time credit.
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).
Supervisors can only be held liable for their own misconduct. See Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). A supervisor cannot incur liability under § 1983 for his
mere knowledge of a subordinate’s wrongdoing. Id.; see also Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008) (“[Section] 1983 does not recognize a concept of strict
supervisor liability; the defendant’s role must be more than one of abstract authority
over individuals who actually committed a constitutional violation.”). 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
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.
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”).
Plaintiff also filed a Motion for Class Certification, ECF No. 3. Plaintiff does not
state in the Motion why he seeks class certification, but a review of the July 15
Complaint indicates that he seeks to certify a class of prisoners who allegedly have not
received earned time credit against their sentence. A prerequisite for class action
certification is a finding by a court that the representative party can “fairly and
adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Because a
layperson ordinarily does not possess the legal training and expertise necessary to
protect the interests of a proposed class, courts are reluctant to certify a class
represented by a pro se litigant. See 7A Wright, Miller & Kane, Federal Practice and
Procedure Civil 3d § 1769.1 & n.13 (3d ed. 2005 & Supp. 2009); see also Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (pro se prisoners are not adequate
representatives for a class). The Tenth Circuit has held that while a pro se litigant may
assert his own claims in federal court, his competence as a layperson is too limited to
protect the rights of others. See Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320,
1321 (10th Cir. 2000); see also Caputo v. Fauver, 800 F. Supp. 168, 170 (D.N.J. 1992)
(holding that “[e]very court that has considered the issue has held that a prisoner
proceeding pro se is inadequate to represent the interests of his fellow inmates in a
class action”) (citations omitted). The Court also must take note of the logistical and
administrative constraints pro se inmate litigants experience, which severely restricts
their ability to investigate class claims and contact class members. Because the
putative class representatives are proceeding pro se, the Court finds that class
certification is inappropriate. Accordingly, it is
ORDERED that Plaintiff shall have thirty days from the date of this Order to
file an Amended Complaint as directed above. 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, and shall use the form
for filing the Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to comply within the time allowed the
Court will dismiss the action without further notice. It is
FURTHER ORDERED that the Motion for Class Certification, ECF No. 3, is
DATED July 18, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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