Williams v. Garcia et al

Filing 9

ORDER Directing Plaintiff To File Amended Complaint and DENYING as moot 3 Motion for Leave to Proceed in Forma Pauperis; and DENYING as premature 6 Motion for Summary Judgment, by Magistrate Judge Gordon P. Gallagher on 12/23/14.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02256-GPG
SHIROCCO MARQUISE WILLIAMS,
Plaintiff,
v.
RENE GARCIA,
DEBORAH DENHAM,
MR. CURRAN,
RICHARD W. SCHOOT, and
MR. TUCKER,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Shirocco Marquise Williams, is a prisoner in the custody of the Federal
Bureau of Prisons (BOP) who currently is incarcerated at the Federal Correctional
Institution at Englewood (FCI-Englewood), located in Littleton, Colorado. Plaintiff has
filed a fifteen-page Prisoner Complaint pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), with twenty-four pages of
attachments. He has paid the $400.00 filing fee.
The Court must construe the Prisoner 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 pro se litigants. See Hall, 935 F.2d at 1110. The Court has
reviewed the Prisoner Complaint and determined it is deficient. For the reasons

discussed below, Plaintiff will be directed to file an amended Prisoner Complaint.
Plaintiff asserts two claims. In his first claim, he alleges he placed an order on
March 18, 2013, with the Edward R. Hamilton Bookseller Company for five paperback
books totaling $34.25, and on April 9, 2013, he received a letter from Defendant, Rene
Garcia, former FCI-Englewood warden, denying delivery of the five books as sexually
explicit, and indicating that the books were returned to the publisher/sender. Plaintiff
contends the books should not have been returned to the bookseller company, which
apparently never received them. Plaintiff further alleges that Defendant, Mr. Curran,
the FCI-Englewood mailroom clerk, submitted a mail recovery center search request to
the United States Postal Service in search of the rejected and missing books, but the
books were not recovered and Plaintiff was not credited the $34.25 for their return. He
also names Deborah Denham, current FCI-Englewood warden, as a Defendant, but
fails to make any allegations against her. He asserts that he filed a claim pursuant to
the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, and was offered a
settlement of $34.25 but has yet to be reimbursed. On the basis of these allegations,
he contends his First Amendment rights have been violated.
As his second claim, he asserts that Defendant, Richard W. Scott of the Office of
Regional Counsel, who handled his FTCA claim and offered him $34.25 in full
settlement, has yet to provide him with the funds, even though Plaintiff completed and
submitted the “Judgment Fund Voucher for Payment.” He also names Mr. Garcia and
Ms. Denham as Defendants, but fails to allege any facts indicating their involvement in
the failure to reimburse him. On the basis of the allegations in his second claim,
Plaintiff contends his Fourteenth Amendment due process rights were violated,
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apparently because he has not yet received the property to which he believes he is
entitled, i.e., the $34.25.
The FTCA allows the United States to be sued for claims arising out of negligent
or wrongful acts or omissions of its employees, when such employees are acting within
the scope of their duties. 28 U.S.C. § 1346(b)(1). In Bivens, the Supreme Court held
that an injured plaintiff may bring a cause of action for damages against federal officers
based upon violations of the plaintiff’s constitutional rights. Bivens, 403 U.S. at 395-97.
“[T]he FTCA and a Bivens claim are alternative remedies.” Robbins v. Wilkie,
300 F.3d 1208, 1213 (10th Cir. 2002). “W hen a federal law enforcement officer
commits an intentional tort, the victim has two avenues of redress: 1) he may bring a
Bivens claim against the individual officer based on the constitutional violation, or 2) he
may bring a common law tort action against the United States pursuant to the FTCA.”
Engle v. Mecke, 24 F.3d 133, 135 (10th Cir.1994) (citations omitted). Accordingly, a
plaintiff can pursue a Bivens action against a federal official in his individual capacity
and an FTCA claim against the United States arising out of the same subject matter,
but a judgment against the United States under the FTCA precludes recovery against
the federal employee under Bivens. Engle, 24 F.3d at 135 (“Although the plaintiff may
elect initially to bring his action against either defendant, a judgment against the United
States under the FTCA constitutes ‘a complete bar to any action by the claimant, by
reason of the same subject matter, against the employee . . . whose act or omission
gave rise to the claim.’ ”) (quoting § 2676); see also Trentadue v. United States, 397
F.3d 840, 858-59 (10th Cir. 2005) (concluding that district court was required to vacate

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Bivens judgment where court later entered judgment on FTCA claims arising out of the
same subject matter, pursuant to § 2676). In the amended Prisoner Complaint he will
be directed to file, Plaintiff should clarify whether he has received the $34.25 judgment
against the United States under the FTCA.
Since Plaintiff desires to raise First and Fourteenth Amendment claims under
Bivens, he must explain in the amended Prisoner Complaint (1) what each 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). Plaintif f fails to do so in each of
his asserted claims, relying instead on the attachments to the Prisoner Complaint and
requiring the Court and Defendants to piece together his allegations based upon those
attachments.
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). A def endant 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
conduct “arising from his or her superintendent
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responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the of ficial 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 (Bivens) 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 fails to
allege clearly the personal participation of each named Defendant in each claim.
Finally, the amended Prisoner Complaint Mr. Williams will be directed to file must
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). T he 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
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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. Williams 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. Williams 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. Williams’ responsibility to present his claims in a manageable 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. Williams 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. Williams’ allegations and attachments to
determine the heart of each claim.
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Accordingly, It is
ORDERED that Plaintiff, Shirocco Marquise Williams, file within thirty (30) days
from the date of this order an amended Prisoner Complaint that complies with this
order. It is
FURTHER ORDERED that Plaintiff shall obtain a copy of the Court-approved
Prisoner Complaint form, along with the applicable instructions (with the assistance of
his case manager or the facility’s legal assistant), at www.cod.uscourt.gov, and use that
form in submitting the amended Prisoner Complaint. It is
FURTHER ORDERED that if Plaintiff fails to file an amended Prisoner Complaint
that complies with this order within the time allowed, some claims against some
Defendants, or the entire Prisoner Complaint and action, may be dismissed without
further notice. It is
FURTHER ORDERED that the motion for partial summary judgment (ECF No. 6)
that Plaintiff filed on October 9, 2014, is denied as premature. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3) f iled on
August 13, 2014, is denied as moot because Plaintiff paid the $400.00 filing fee.
DATED December 23, 2014, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher

GORDON P. GALLAGHER
United States Magistrate Judge

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