McClain v. Sammual, Jr et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/30/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02415-BNB
CLAUDE GRAYWOLF McCLAIN,
DIRECTOR CHARLES SAMMUAL, JR.,
WARDEN MS. D. DENHAM,
ASST. WARDEN MS. NANNCY McKINNEY,
MEDICAL DOCTOR MR. KRAUSS, M.D.,
MEDICAL EYE DOCTOR UNKNOWN, D.O.D.,
UNIT MANAGER MRS. R. HUFAGLE,
CASE MANAGER MS. L. ASAY, and
UNIT COUNSELOR MR. P. CAMPANELLI,
ORDER OF DISMISSAL
Plaintiff, Claude Graywolf McClain, is a prisoner in the custody of the Federal
Bureau of Prisons at the Federal Correctional Institution at Englewood, Colorado. Mr.
McClain initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) claiming
that his rights under the United States Constitution have been violated. On September
23, 2014, Magistrate Judge Boyd N. Boland ordered Mr. McClain to file an amended
complaint that clarifies the claims he is asserting. Magistrate Judge Boland specifically
determined that the complaint did not comply with the pleading requirements of the
Federal Rules of Civil Procedure because Mr. McClain failed to provide a short and
plain statement of his claims showing he is entitled to relief. Magistrate Judge Boland
warned Mr. McClain that, if he failed to file an amended complaint that complies with the
pleading requirements of the Federal Rules of Civil Procedure, the action would be
dismissed without further notice. On September 30, 2014, Mr. McClain filed an
amended Prisoner Complaint (ECF No. 14).
The Court must construe the amended Prisoner Complaint liberally because Mr.
McClain 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 discussed below, the action will be dismissed.
The Court has reviewed the amended Prisoner Complaint and finds that Mr.
McClain still fails to comply with the pleading requirements of the Federal Rules of Civil
Procedure. The twin purposes of a pleading 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); see also Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (stating that 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.”).
The requirements of Rule 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. As a result, prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8.
Construing the amended Prisoner Complaint liberally, Mr. McClain contends that
he has been denied adequate medical treatment in violation of his constitutional rights.
However, Mr. McClain fails to provide a short and plain statement of his claims showing
he is entitled to relief because he fails to link the claims he is asserting with any
particular Defendant and he fails to allege what any Defendant did that allegedly
violated his rights. For example, Mr. McClain’s entire first claim for relief in the
amended Prisoner Complaint, which the Court will quote verbatim without correcting or
acknowledging errors in grammar or spelling, is the following:
Voilation of the (8th/14th) constitutional and amendments
protecting Inmates Civil Rights to Receive proper medical
Health care & treatment while they are Legally Incarated or
Detain or In prisonment In any state or federal facility.
Were as when an federal medical Staff risk or place an
Inmates life In Dangerment By Deniding (him/her) proper
medical show criminal misconduct and raceness were it
could cause Body Harm or wrose and person Death!
(ECF No. 14 at 4.) Mr. McClain’s other claims similarly lack specific factual allegations
linking any particular Defendant to the asserted constitutional violations. As a result,
Mr. McClain fails to give Defendants fair notice of the specific claims being asserted
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); see also United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”);
Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory
allegations that his rights have been violated does not entitle a pro se pleader to a day
in court regardless of how liberally the pleadings are construed), 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. Because Mr. McClain fails to provide a clear and
concise statement of the claims he is asserting, the Court finds that the amended
Prisoner Complaint must be dismissed for failure to file an amended pleading that
complies with Rule 8 as directed.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 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 Plaintiff files a notice of appeal he also must pay the full $505
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 Prisoner Complaint (ECF No. 1), the amended Prisoner
Complaint (ECF No. 14), and the action are dismissed without prejudice pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure because Mr. McClain has failed to
file a pleading that complies with the pleading requirements of the Federal Rules of Civil
Procedure. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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