Rabidue v. Sicotte et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/9/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02403-BNB
AARON S. RABIDUE,
Plaintiff,
v.
TRUDY SICOTTE, in her official capacity as Medical Provider for the Colorado
Department of Corrections - Limon Corr. Facility, and in her individual capacity,
NICOLE BLATNICK, in her official capacity as Health Service Admin. for the Colorado
Department of Corrections - Limon Corr. Facility, and in her individual capacity,
TINA ROSLER, in her official capacity as a Medical Nurse for the Colorado
Department of Corrections - Limon Corr. Facility, and in her individual capacity,
ALVIN MASSENBURG, in his official capacity as Medical Provider for the Colorado
Department of Corrections - Limon Corr. Facility, and in his individual capacity,
MARTÍNEZ, in his official capacity as Chief Medical Officer for the Colorado
Department of Corrections - Limon Corr. Facility, and in his individual capacity,
JENNIFER NOVATNY, in her official capacity as in a Supervisory Position with
pharmacy for the Colorado Department of Corrections - Limon Corr. Facility,
and in her individual capacity,
JOHN DOE, in his official capacity as Deputy Director of Prisons, Clinical Services
for the Colorado Department of Corrections - Limon Corr. Facility, and in her
individual capacity,
MR. LONG, in his official capacity as a Major for the Colorado Department of
Corrections - Limon Corr. Facility, and in his individual capacity,
MS. FALK, in her official capacity as Warden for the Limon Correctional Facility Colorado Department of Corrections, and in her individual capacity,
HONG DANG, in her official capacity as a Medical Nurse for the Limon Correctional
Facility - Colorado Department of Corrections, and in her individual capacity,
and
RICK RAEMISCH, in his official capacity as Executive Director for the Colorado
Department of Corrections, and in his individual capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Aaron S. Rabidue, is a prisoner in the custody of the Colorado

Department of Corrections at the correctional facility in Limon, Colorado. Mr. Rabidue,
acting pro se, filed a thirty-page, single-spaced Prisoner Complaint (ECF No. 1)
pursuant to 42 U.S.C. § 1983 for money damages and injunctive relief, together with
thirty-nine pages of attachments. He has been granted leave to proceed pursuant to 28
U.S.C. § 1915. He was assessed a $9.00 initial partial filing fee, and has paid $5.00 of
that amount.
The Court must construe the Prisoner Complaint liberally because Mr. Rabidue 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). 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. For the reasons stated below, Mr. Rabidue will be ordered to file an amended
Prisoner Complaint.
Mr. Rabidue asserts one claim, i.e., that the medical care and delay in providing
that care for the multiple fractures in his left foot violates his Eighth Amendment right to
be free from cruel and unusual punishment. In support of that claim, he provides
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twenty-one pages of single-spaced background information, much of which is provided
as a chronological recitation of facts.
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.
Mr. Rabidue 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. Rabidue 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
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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. Rabidue 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. Rabidue 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. Rabidue’s allegations to determine the heart of each claim.
In the amended Prisoner Complaint he will be directed to file, Mr. Rabidue must
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.
Rabidue “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).
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
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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. Rabidue 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. Rabidue 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). Supervisory officials 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). Instead,
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
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,
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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. Rabidue 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. Rabidue uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Finally, the Local Rules of Practice for this Court, specifically D.C.COLOLCivR
10.1(e), provide that all documents must be double spaced. Therefore, the amended
Prisoner Complaint Mr. Rabidue files must comply with D.C.COLOLCivR 10.1(e). Mr.
Rabidue is directed to limit his amended Prisoner Complaint to thirty, double-spaced
pages.
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. Rabidue 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, alleges specific facts that demonstrate how each named defendant
personally participated in the asserted constitutional violations, and complies with the
Local Rules of Practice for this Court. The Court will not consider any claims raised in
separate attachments, amendments, supplements, motions, or other documents not
included in the amended Prisoner Complaint.
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Mr. Rabidue is warned that, even if the Court dismisses the instant action without
prejudice for failure to comply with this order, the dismissal may bar recovery if Mr.
Rabidue 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.
Accordingly, it is
ORDERED that within thirty (30) days from the date of this order Plaintiff,
Aaron S. Rabidue, 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, some claims against some
defendants, or the entire the Prisoner Complaint and the action, may be dismissed
without further notice.
DATED October 9, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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