Mallett v. Vargas et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/04/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02198-BNB
DAWANE ARTHUR MALLETT,
Plaintiff,
v.
K. VARGAS,
PAYNE,
DAVID B. BERKEBILE,
PATRICIA RANGEL,
R. MARTINEZ,
PAUL LAIRD,
A. ALVEREZ, and
J. MARTINEZ,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Dawane Arthur Mallett, is a prisoner in the custody of the Federal
Bureau of Prisons at the United States Penitentiary, Administrative Maximum, in
Florence, Colorado. Mr. Mallett has filed pro se a Prisoner Complaint (ECF No. 1). The
court must construe the Prisoner Complaint liberally because Mr. Mallett 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. For the reasons stated
below, Mr. Mallett will be ordered to file an amended complaint.
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 (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. Mallett asserts three claims for damages in the Prisoner Complaint pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). “Under Bivens, an individual has a cause of action against a federal official in
his individual capacity for damages arising out of the official’s violation of the United
States Constitution under color of federal law or authority.” See Dry v. United States,
235 F.3d 1249, 1255 (10th Cir. 2000) (emphasis in original).
Mr. Mallett contends in claim one in the Prisoner Complaint that his First
Amendment rights have been violated because federal prison officials have opened and
inspected his outgoing legal mail from 2012 to 2014 and destroyed the mail if it includes
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a grievance against BOP staff. He also contends that “a few similar grievances were
allowed out.” (ECF No. 1 at 6.) Although Mr. Mallett alleges that he has maintained a
log of the missing mail, he does not provide specific allegations regarding when his legal
mail has gone missing or been destroyed. Mr. Mallett also fails to provide specific
factual allegations that demonstrate how each Defendant he mentions in connection
with claim one personally participated in the alleged First Amendment violation.
Mr. Mallett similarly alleges in claim three in the Prisoner Complaint that his First
Amendment rights have been violated because prison officials have opened and
destroyed all legal mail addressed to the Fremont County Clerk and Recorder.
However, Mr. Mallett does not allege when his legal mail addressed to the Fremont
County Clerk and Record was opened and destroyed, and he fails to provide specific
factual allegations that demonstrate how each Defendant he mentions in connection
with claim three personally participated in the alleged First Amendment violation.
Mr. Mallet contends in his second claim in the Prisoner Complaint that his Eighth
Amendment rights were violated between January and March of an unspecified year
and in April and May 2014. He alleges in support of the Eighth Amendment claim that
he has been sexually assaulted on numerous occasions, hit with a metal baton, and
denied recreation on several occasions. Mr. Mallett apparently asserts the Eighth
Amendment claim against Defendant J. Martinez, although he also refers to another
Defendant in claim three without providing specific factual allegations that demonstrate
how anyone other than J. Martinez personally participated in the alleged Eighth
Amendment violation. Mr. Mallett also fails to provide specific factual allegations
regarding when the alleged Eighth Amendment violations occurred.
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Mere vague and conclusory allegations that 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.
Mr. Mallett will be ordered to file an amended complaint if he wishes to pursue
his claims in this action. Mr. Mallett should name as Defendants only those persons he
contends violated his federal constitutional rights. Mr. Mallett “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). 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). Accordingly, it is
ORDERED that Mr. Mallett file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Mallett 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. Mallett fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed.
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DATED September 4, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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