Sutton v. Thiebout et al

Filing 7

ORDER Directing Plaintiff Sutton to File Amended Complaint and Dismissing Plaintiffs Roberts and Mckee by Judge Lewis T. Babcock on 10/27/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-002579-BNB

JOSHUA SUTTON,
ISHA ROBERTS, and
KALEN McKEE,
Plaintiffs,
v.
BILL THIEBOUT,
STEPHEN TALBOT,
HONORABLE THOMAS FLESHER,
GARY ROYBAL,
KATHY MORA,
AMIEL MARKENSON, and
ROBERT HOUTON,
Defendants.

ORDER DIRECTING PLAINTIFF SUTTON TO FILE AMENDED COMPLAINT
AND DISMISSING PLAINTIFFS ROBERTS AND McKEE

Plaintiff Joshua Sutton is in the custody of the Colorado Department of
Corrections at the Kit Carson Correctional Center in Burlington, Colorado. Mr. Sutton,
along with Plaintiffs Isha Roberts and Kalen McKee, initiated this action by filing pro se
a Prisoner Complaint that challenges an incident that happened on August 25, 2012, in
which they allegedly were abused by the City of Pueblo police and falsely charged will
assaulting a police officer. Only Mr. Sutton submitted a Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and signed the Complaint form.
The Court reviewed the Complaint and the § 1915 Motion, determined the filings were

deficient, and directed Plaintiffs to cure the deficiencies. Specifically, the Court directed
Mr. Sutton to submit a certified account statement that covers the six-month period
immediately preceding the filing of this action. The Court also directed Ms. Roberts and
Mr. McKee to sign the Complaint and to submit their own § 1915 motion.
On October 15, 2014, Mr. Sutton submitted a certified account statement that
covers the six months immediately preceding the filing of this action and has been
granted leave to proceed pursuant to 28 U.S.C. § 1915. Ms. Roberts and Mr. McKee,
however, have failed to comply with the September 18, 2014 Order within the time
allowed. They, therefore, will be dismissed from this action.
The Court must construe Mr. Sutton’s 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Mr. Sutton will be directed to file an Amended Complaint.
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).
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

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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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. 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 Court has reviewed Mr. Sutton’s Complaint and finds that he fails to provide
a short and plain statement of his claims in compliance with the pleading requirements
of Rule 8 of the Federal Rules of Civil Procedure. Mr. Sutton’s claims are conclusory
and vague and fail to state how each named defendant violated his rights.
Mr. Sutton fails to 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, Mr. Sutton must show in the Cause of
Action section of the complaint form 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).

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To state a claim in federal court Mr. Sutton must explain (1) what a 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).
A defendant 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 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.
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. Sutton also has filed two other prisoner complaints, Sutton v. Roberts, et al.,
No. 14-cv-02586-BNB (D. Colo. Filed Sept. 17, 2014), and Sutton v. Van Leeuwen, et
al., No. 14-cv-2379-BNB (D. Colo. Filed Aug. 27, 2014). The other complaints and this
action address the same incident that happened on August 25, 2012, when Mr. Sutton
allegedly was abused by the Pueblo Police and charged with a false allegation of
assaulting a police officer. “Repetitious litigation of virtually identical causes of action
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may be dismissed under § 1915 as frivolous or malicious." McWilliams v. Colorado,
121 F.3d 573, 574 (10th Cir. 1997) (quotation marks and alteration omitted). To
determine whether a pleading repeats pending or previously litigated claims, the Court
may consult its own records. See Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir.
1972). The Amended Complaint Mr. Sutton is directed to file in this case must not be
repetitious of the cause of action he states in Case No. 14-cv-02586-BNB or in Case
No. 14-cv-02379-BNB. Accordingly, it is
ORDERED that Ms. Isha Roberts and Mr. Kalen McKee are dismissed from this
action for failure to cure deficiencies and to prosecute. It is
FURTHER ORDERED that within thirty days from the date of this Order, Mr.
Sutton shall file an Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Mr. Sutton shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov, to be used in filing the
Amended Complaint. It is
FURTHER ORDERED that if Mr. Sutton fails to comply with this Order within the
time allowed the Court will dismiss the action without further notice.
DATED October 27, 2014, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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