Toney, Jr. v. Berkebile et al

Filing 21

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/11/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02343-GPG
JOE M. TONEY, JR.,
Plaintiff,
v.
WARDEN BERKEBILE,
A. W. MS. HALL,
MS. RANGEL,
MR. GRIGGS,
MS. SUDLOW,
MS. REDDEN,
MR. CEDENO, and
MR. C. COX,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Joe M. Toney, Jr., is a prisoner in the custody of the Federal Bureau of
Prisons who currently is incarcerated at the United States Penitentiary, Administrative
Maximum, in Florence, Colorado. Mr. Toney filed pro se a Prisoner Complaint (ECF
No. 1) pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), as well as other statutory authority, for
money damages and injunctive and declaratory relief. He also filed a Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2). Mr.
Toney has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
On August 28, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 5) explaining that the allegations in the Prisoner Complaint were vague, conclusory,

and rambling. Mr. Toney generally alleged that Defendants were (1) interfering with the
grievances he filed, (2) interfering in his relationship with an Alice Sanders apparently by
interfering with their correspondence, (3) tampering with his food, and (4) denying him a
job. He also made various other assertions that were difficult to comprehend. On the
basis of these allegations, he asserted violations of his rights of access to the courts, to
be free from searches and seizures, to be free from cruel and unusual punishment, to
be free from retaliation, and to equal protection.
In the August 28 order, Magistrate Judge Boland directed Mr. Toney to file within
thirty days an amended Prisoner Complaint that complied with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and alleged the personal
participation of each named Defendant. Magistrate Judge Boland pointed out that, even
if the Court dismissed this action without prejudice for failure to comply with the August
28 order, the dismissal may bar recovery if Mr. Toney sought to refile in this Court
because the two-year statute of limitations may have run on his Bivens claims.
On October 6, 2014, after being granted an extension of time, Mr. Toney filed an
amended Prisoner Complaint (ECF No. 13) pursuant to Bivens for money damages. On
October 15, 2014, after being granted an extension of time, Mr. Toney filed exhibits
(ECF No. 15) in support of the amended Prisoner Complaint. The Court must construe
Mr. Toney’s amended Prisoner Complaint liberally because he 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.
Merely making vague and conclusory allegations that his federal constitutional
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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. A court may disregard conclusory allegations, which are not entitled to a
presumption of truthfulness. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Meek v.
Jordan, 534 F. App’x 762, 764 (10th Cir. 2013). For the reasons stated below, the
amended Prisoner Complaint will be dismissed.
Like the Prisoner Complaint Mr. Toney originally filed, the allegations in the
Prisoner Complaint are vague, conclusory, and rambling. Mr. Toney fails to understand
that he must assert, simply and concisely, the specific acts by each Defendant that
allegedly violated his rights. As Magistrate Judge Boland informed Mr. Toney in the
August 28 order for an amended Prisoner Complaint, in order “to state a claim in federal
court, a complaint 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). Simply labeling conclusory allegations
as facts, as Mr. Toney attempts to do within each asserted claim, does not make them
facts. Vague and conclusory allegations are not a substitute for specific factual
allegations.
Mr. Toney asserts three claims. His first and second claims asserting violations
of the First and Fifth amendments are as follows:
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1. Staff unit team Ms. Rangel and Cedeno, w/abuse
of authority, enforce multiple remedies, censor and
obstructed Remedy No. 743895-R2, filed 10/8/13, violated
Plaintiff’s rights, of due process under the Fifth Amendment,
and access to the Court under the First Amendment. See
Exh. (A).
2. Facts: Mang. Supervisor Griggs, censor and
obstructed a BP(8), filed 7/2/13, violated Plaintiff’s rights of
due process under the Fifth Amendment, and access to the
Court under the First Amend. See Exh. (A).
3. Counsel Cedeno, unit team, with deliberate
indifference, had not return the BP,(8), filed 7/2/13, and
mention:
“What you want me to do, put him in the choke hold,
head lock,” violated Plaintiff’s rights of due process under the
Fifth Amendment, and access to the Court under the First
Amend. See Exh. (A).
4. Facts: SIS Redden, mailroom, censor Plaintiff’s
mail, w/deliberate indifference, and mention on 6/26/13, “She
knew what was going on with Ms. Sanders,” violated
Plaintiff’s rights against ‘censorship’ under the First
Amendment. See Exh. (A).
5. Facts: Ms. Sudlow, case manager, censor
Plaintiff’s mail, Jan. 2013, w/deliberate indifference and
mention; “I’m mad with you,” (in reference to Ms. Sanders);
violated Plaintiff’s rights against censorship under the First
Amend. See Exh. (A).
ECF No. 13 at 6-7.
Claims one and two are deficient for various reasons. Mr. Toney refers only to
exhibit A without explaining to which of the twenty exhibits comprising exhibit A he is
referring. He fails to explain with specificity what acts Ms. Rangel and Mr. Cedeno
performed, or failed to perform, that allegedly violated his rights of due process and
access to the courts. He fails to make factual allegations to support his conclusion that
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Mr. Griggs censored and obstructed his informal BP-8 grievance and Ms. Redden
censored his mail. He fails to explain in a manner understandable to the Court the
connection between the failure to return his informal BP-8 grievance and Mr. Cedeno’s
question about putting him in a choke hold or head lock. Mr. Toney fails to explain
what, if anything, Ms. Sudlow did to censor his mail or how her comment about being
mad at him relates to any alleged act of censorship.
In claim three, Mr. Toney alleges as follows:
On 8/3/13, C.O., Cox, tamper with Plaintiff’s food
(inside) the tray’s, with deliberate indifference, violated
Plaintiff’s rights against retaliation under the First Amend.
See Exh. (B).
7. Facts: Ms. Hall and Berkebile, wardens, censor
and obstructed, Remedy No. 743895-R2, filed 10/8/13,
condoning misconduct and disregard copout’s, violated
Plaintiff’s rights of due process under the Fifth Amendment,
and access to the Court under the First Amendment. See
Exh. (A).
ECF No. 13 at 8.
Claim three also is deficient. Mr. Toney refers only to exhibits A and B without
explaining to which of the twenty exhibits comprising exhibit A or seven exhibits
comprising exhibit B he is referring. He fails to provide any facts that demonstrate
either tampering with his food tray or how tampering with his food tray somehow
constitutes an act of retaliation. Nor does he explain what, if anything, Ms. Hall and Mr.
Berkebile did or did not do that censored or disregarded his administrative remedy,
condoned misconduct, or violated his constitutional rights. Mr. Toney’s allegations
simply are unfounded because he fails to support them with factual assertions, and may
be disregarded as conclusory allegations not entitled to a presumption of truthfulness.
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Ashcroft, 556 U.S. at 681; Meek, 534 F. App’x at 764.
Because he fails to allege facts to support his conclusory allegations, Mr. Toney
also fails to show how the named Defendants personally participated in the alleged
constitutional violations. In short, the Prisoner Complaint fails to comply with the
pleading requirements of Rule 8, as discussed in detail in the August 28 order, and will
be dismissed for that reason.
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,
and must be dismissed.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Toney files a notice of appeal he also must pay the full $505.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the amended Prisoner Complaint (ECF No. 13) and the action
are dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of
Civil Procedure for the failure of Plaintiff, Joe M. Toney, Jr., to file within the time
allowed an amended Prisoner Complaint that complied with the order of August 28,
2014. It is
6

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 11th

day of

December

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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