Carter v. Herold et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/25/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02633-BNB
JOSEPH SCOTT CARTER,
Plaintiff,
v.
KATHRYN ANN HEROLD, Attorney #40075, and
20TH JUDICIAL DISTRICT COURTS OF BOULDER, CO,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Joseph Scott Carter, is a prisoner in the custody of the Colorado
Department of Corrections at the San Carlos Correctional Facility in Pueblo, Colorado.
He submitted pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983
and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 (ECF No. 3). He was granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915.
The Court must construe the Prisoner Complaint liberally because Mr. Carter 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. Carter will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
Mr. Carter appears to be challenging his state court conviction by challenging his

state competency proceedings. He is suing his public defender and the state court in
which he was convicted. He asks for money damages, habeas corpus relief, and
injunctive relief.
Mr. Carter’s claims challenging the validity of his current incarceration are barred
by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court
held that if a judgment for damages favorable to a prisoner in a § 1983 action
necessarily would imply the invalidity of his or her criminal conviction or sentence, the §
1983 action does not arise until the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by an authorized state tribunal, or
called into question by the issuance of a federal habeas writ. See Heck, 512 U.S. at
486-87.
In addition, a civil rights action filed by a state prisoner “is barred (absent prior
invalidation) – no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings) – if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Mr.
Carter does not allege that he has invalidated any convictions or sentences that pertain
to his current confinement and its duration.
To the extent Mr. Carter may seek to challenge his criminal conviction or obtain
his release from incarceration, his sole federal remedy is a writ of habeas corpus, after
he has exhausted state court remedies. See Preiser v. Rodriguez, 411 U.S. 475, 504
(1973). The Court will not consider the merits of any habeas corpus claims in this civil
rights action.
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If no final judgment has been entered in the state-court action, this Court still
must abstain from exercising jurisdiction over claims asking the Court to intervene in
ongoing state proceedings pursuant to Younger v. Harris, 401 U.S. 37, 44 (1971).
Mr. Carter may not sue his public defender. Defense attorneys, whether
court-appointed or privately retained, performing in the traditional role of attorney for the
defendant in a criminal proceeding are not deemed to act under color of state law; such
attorneys represent their client only, not the state, and cannot be sued in a § 1983
action. See Polk County v. Dodson, 454 U.S. 312, 325 (1981); Hunt v. Bennett, 17 F.3d
1263, 1268 (10th Cir. 1994).
Mr. Carter also may not sue the 20th Judicial District Courts of Boulder,
Colorado, because it is protected by Eleventh Amendment immunity. See Steadfast
Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252-53 (10th Cir. 2007) (noting that the
Eleventh Amendment protects states and state entities regardless of whether a plaintiff
seeks declaratory or injunctive relief or monetary damages).
The amended Prisoner Complaint Mr. Carter 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,
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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. Carter “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. Carter should name as defendants in his amended
complaint only those persons that he contends actually violated his federal
constitutional rights.
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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. Carter 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 § 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. Carter 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.
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Carter uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Accordingly, it is
ORDERED that Plaintiff, Joseph Scott Carter, file an amended Prisoner
Complaint that sues the proper parties and complies with Rule 8 of the Federal Rules of
Civil Procedure within thirty (30) days from the date of 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 form for filing a Prisoner
Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use all pages of those forms in filing an 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, the Prisoner Complaint and
action may be dismissed without further notice.
DATED September 25, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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