Peterson v. Archuletta et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 7/14/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01916-BNB
BRUCE EDWARD PETERSON,
Plaintiff,
v.
LOU ARCHULETTA, F.C.F.-CDOC Warden,
DR. TIMOTHY P. CREANY, M.D.,
DR. FNU BEDDY (Phyc.),
DR. DAVID TESSIER,
JOHN DOE(S),
JANE DOE(S),
RICK MEICER, R.N.,
F.N.U. WEINHIMER, and
ATTENDING PHYSICIANS AT TERRITORIAL,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Bruce Edward Peterson, is a prisoner in the custody of the Colorado
Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado.
Mr. Peterson, acting pro se, filed a twenty-four page Prisoner Complaint (ECF No. 1)
pursuant to 42 U.S.C. § 1983 for money damages 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. Peterson
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). For the reasons stated below, Mr. Peterson will be ordered to file an
amended Prisoner Complaint.
Mr. Peterson alleges that he suffers from a number of physical ailments,
including but not limited to high blood pressure, a heart condition, cancer, poor
circulation, shortness of breath from exertion, and a chronic and painful medical
condition that results in burst blood vessels in his legs and bleeding from other body
parts and orifices. He also alleges that he wears knee-high, anti-embolism stockings; is
being denied helpful prescription medication; and, instead, is provided with medication
and ice that have aggravated his chronic medical condition. Although Mr. Peterson
asserts jurisdiction based upon § 1983, he styles his one asserted claim as a violation of
the Americans with Disabilities Act (ADA), apparently Title II of the ADA, which he fails
to reference in the Prisoner Complaint under additional jurisdiction. See ECF No. 1 at
5. He also fails to allege the involvement of each named defendant in the alleged
violations.
State prisoners are protected by the ADA. Hurtado v. Reno, 34 F. Supp. 2d
1261, 1264 (D. Colo. 1999) (citing Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 205
(1998). However, Mr. Peterson fails to allege facts indicating that he is a qualified
individual with a disability who was excluded from participation in or denied the benefits
of a public entity’s services, programs, or activities, and that exclusion, denial of
benefits, or discrimination was because of a disability. See Hurtado, 34 F. Supp. 2d at
1264; see also 42 U.S.C. § 12132. He appears to complain only about the quality and
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extent of medical services he received. See Breedlove v. Costner, 405 F. App’x 338,
341 (10th Cir. 2010) (state prisoner’s allegations of inadequate medical care failed to
state claim for ADA violation). In addition, the requirement that a prisoner who files a
civil action challenging the conditions of his confinement must first exhaust
administrative remedies applies to an inmate’s ADA claims. Jones v. Smith, 109 F.
App’x 304, 307-08 (10th Cir. 2004). Mr. Peterson fails to clarify whether he exhausted
both his § 1983 and ADA claims. See ECF No. 1 at 10.
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.
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Mr. Peterson 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. Peterson 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).
Mr. Peterson must 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. Peterson 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. A long,
chronological recitation of facts is not required. Nor should the Court or defendants be
required to sift through Mr. Peterson’s verbose allegations to determine the heart of
each claim.
The Prisoner Complaint also is deficient because Mr. Peterson 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. Peterson
“must explain what each defendant did to him or her; when the defendant did it; how the
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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. Peterson 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. Peterson 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
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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. Peterson 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. Peterson 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. Peterson 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.
Even if the Court dismisses the instant action without prejudice for failure to
comply with this order, the dismissal may bar recovery if Mr. Peterson seeks to refile in
this Court because the two-year statute of limitations may have run on his § 1983
claims. The limitation period for a § 1983 action is set by the personal injury statute in
the state where the cause of action accrues. Garcia v. Wilson, 731 F.2d 640, 650-51
(10th Cir. 1984). In Colorado, the limitations period for a personal injury action is two
years. Colo. Rev. Stat. § 13-80-102. Colorado’s general two-year state of limitations,
Colo. Rev. Stat. § 13-80-102, also applies to actions arising under Title II of the ADA.
Hughs v. Colo. Dep’t of Corrs, 594 F. Supp. 2d 1226, 1235 (D. Colo. 2009); see also
Rhodes v. Langston Univ., 462 F. App’x 774, 780 n.6 (10th Cir. 2011) (because the
ADA does not set forth a statute of limitations, the state’s general statute of limitations
applies).
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, the Prisoner Complaint and

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the action will be dismissed without further notice.
DATED July 14, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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