Maddox v. Maketa et al
ORDER Directing Plaintiff to Cure Deficiencies and File Amended Complaint that Complies with Rule 8, by Magistrate Judge Boyd N. Boland on 09/11/14. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02499-BNB
(The above civil action number must appear on all future papers
sent to the Court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
HAROLD T. MADDOX,
TERRY MAKETA, Sheriff, and
CORRECTIONAL HEALTH CARE COMPANIES,
ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND
FILE AMENDED COMPLAINT THAT COMPLIES WITH RULE 8
Plaintiff, Harold T. Maddox, is incarcerated at the El Paso County Criminal
Justice Center in Colorado Springs, Colorado. Mr. Maddox initiated this action by filing
pro se a Complaint (ECF No. 1) for injunctive relief and money damages and an
Application to Proceed in District Court Without Prepaying Fees or Costs (ECF No. 3).
As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b), the Court has
determined that the documents are deficient as described in this order. Plaintiff will be
directed to cure the following if he wishes to pursue his claims. Any papers that Plaintiff
files in response to this order must include the civil action number noted above in the
caption of this order.
28 U.S.C. § 1915 Motion and Affidavit:
is not submitted
is missing affidavit
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
is missing certificate showing current balance in prison account
is missing required financial information
is missing an original signature by the prisoner
is not on proper form (must use the Court’s current Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 form revised
10/01/12 with Authorization and Certificate of Prison Official)
names in caption do not match names in caption of complaint, petition or
An original and a copy have not been received by the Court.
Only an original has been received.
other: Plaintiff may pay $400.00 (the $350.00 filing fee plus a $50.00
administrative fee) in lieu of filing a § 1915 Motion and Affidavit and a
certified copy of his six months’ trust fund statement.
Complaint, Petition or Application:
is not submitted
is not on proper form (must use the Court’s current Prisoner Complaint
is missing an original signature by the prisoner
is missing page no.
uses et al. instead of listing all parties in caption
An original and a copy have not been received by the Court. Only an
original has been received.
Sufficient copies to serve each defendant/respondent have not been
received by the Court.
names in caption do not match names in text
The Court must construe the Complaint liberally because Mr. Maddox 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. Maddox will be ordered to file an amended Prisoner Complaint if he wishes
to pursue his claims in this action.
Mr. Maddox complains about the conditions of his confinement, and specifically
his medical care. He fails to assert the basis for this Court’s jurisdiction, although he
appears to assert civil rights claims pursuant to 42 U.S.C. § 1983, or make factual
allegations against Defendants in the body of the asserted claims. As a result, the
Prisoner Complaint is vague and conclusory.
The amended Prisoner Complaint Mr. Maddox 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). 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.
In order to state a claim in federal court, Mr. Maddox “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).
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
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. Maddox should name as defendants in the amended
Prisoner Complaint only those persons that he contends actually violated his federal
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. Maddox 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). With respect to supervisory officials, a
defendant, such as Sheriff Terry Maketa, 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 [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
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 § 1983 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.
Mr. Maddox 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.
Maddox uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Finally, Correctional Health Care Companies, like a county or a municipality,
cannot be held liable on the basis of the doctrine of respondeat superior. See Monell v.
Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691 (1978); Nelson v. Prison
Health Services, Inc., 991 F. Supp. 1452, 1465 (M.D. Fla. 1997); Powell v. Shopco
Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982) (vicarious liability does not apply in § 1983
claims, even where the defendant is a private corporation, rather than a municipality or
other public agency). Plaintiff must prove “either that the company was directly involved
in the alleged violation or that a policy or custom of the corporation led to the violation.”
Id.; see also Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (“the Monell policy or
custom requirement applies in suits against private entities performing functions
traditionally within the exclusive prerogative of the state, such as the provision of
medical care to inmates.”); Thomas v. Zinkel, 155 F. Supp.2d 408, 412 (E.D. Pa. 2001)
(liability of private corporation may not rest on respondeat superior, but rather must be
based on a policy, practice, or custom that caused the injury); Taylor v. Plousis, 101 F.
Supp.2d 255, 263 (D. N.J. 2000) (private corporation performing a municipal function is
subject to the holding in Monell ).
Plaintiff must allege the same elements relevant to municipal liability, that is “(1)
the existence of a municipal custom or policy and (2) a direct and causal link between
the custom or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993 (10th
Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)).
Accordingly, it is
ORDERED that Plaintiff, Harold T. Maddox, cure the designated deficiencies and
file within thirty (30) days from the date of this order an amended Prisoner
Complaint that complies with the pleading requirements of Rule 8 of the Federal Rules
of Civil Procedure as discussed in this order. Any papers that Plaintiff files in response
to this order must include the civil action number on 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 forms for filing a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner
Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use those forms in curing the designated deficiencies and filing an amended Prisoner
Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies or
file an amended Prisoner Complaint as directed within thirty days from the date of
this order, the Complaint and action may be dismissed without further notice.
DATED September 11, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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