Herrera v. Herr et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/29/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02636-BNB
LLOYD HERRERA,
Plaintiff,
v.
MEDICAL DEPARTMENT at the Criminal Justice Center in Colorado Springs,
DR. HERR at the Criminal Justice Center in Colorado Springs,
SHARFF [sic] STAFF at the Criminal Justice Center in Colorado Springs, and
M. KIMBERLIN at the Criminal Justice Center in Colorado Springs,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Lloyd Herrera, currently is incarcerated at the El Paso County Criminal
Justice Center in Colorado Springs, Colorado. Mr. Herrera filed pro se a Prisoner
Complaint (ECF No. 1) on September 23, 2014, for money damages pursuant to 42
U.S.C. § 1983. Mr. Herrera has been granted leave to proceed pursuant to 28 U.S.C. §
1915.
The Court must construe Mr. Herrera’s Prisoner 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 should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Mr. Herrera will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
Mr. Herrera may not sue the medical department at the El Paso County Criminal

Justice Center. The El Paso County Criminal Justice Center and its medical
department are not separate entities from El Paso County, and, therefore, are not
persons under § 1983. See Stump v. Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991),
aff'd, 986 F.2d 1429 (10th Cir. 1993). Any claims asserted against the El Paso County
Criminal Justice Center medical department must be considered as asserted against El
Paso County.
In addition, municipalities, such as El Paso County, and municipal entities are not
liable under § 1983 solely because their employees inflict injury on a plaintiff. Monell v.
New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of
Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). To establish liability, a plaintiff must
show that a policy or custom exists and that there is a direct causal link between the
policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378,
385 (1989). Plaintiff cannot state a claim for relief against El Paso County under § 1983
merely by pointing to isolated incidents. See Monell, 436 U.S. at 694.
The Prisoner Complaint also is deficient because Mr. Herrera fails to allege facts
that demonstrate any of the named defendants personally participated in the asserted
constitutional violations. In order to state a claim in federal court, Mr. Herrera “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). Mr. Herrera should name as defendants in the amended
Prisoner 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. Herrera 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,
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. Herrera 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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Herrera uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
The amended Prisoner Complaint Mr. Herrera 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.
The allegations in the Prisoner Complaint are vague. Mr. Herrera alleges that
the medical department of the El Paso County Criminal Justice Center has been
changing his medications and is not giving him the medications he needs, including
medication to help him sleep and reduce anxiety. He asserts that he has a blood clot in
his left leg, and his leg apparently has an infection. He complains he also needs help
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with his insulin. He contends he is being “messed with all the time,” ECF No. 1 at 5,
and the guards have told him there is nothing they can do. On the basis of these
allegations, he appears to be asserting deliberate indifference to his serious medical
needs under the Eighth Amendment.
In the amended Prisoner Complaint, Mr. Herrera must 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. Herrera must 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 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. Herrera 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. Herrera 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. However, neither the Court nor
defendants should be required to sift through Mr. Herrera’s vague allegations to
determine the heart of each claim. The Court will not consider any claims raised in
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separate attachments, amendments, supplements, motions, or other documents not
included in the amended Prisoner Complaint.
In addition, Mr. Herrera must provide the address for each named defendant.
Finally, Plaintiff’s handwriting is difficult to read because much of appears to be
handwritten with a pen that was running out of ink. Pursuant to Rule 10.1 of the Local
Rules of Practice for this Court, Plaintiff is required to file legible documents. See
D.C.COLO.LCivR 10.1(g). Mr. Herrera 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. Herrera seeks to refile in this Court because the two-year statute of
limitations may have run on his § 1983 claims.
Accordingly, it is
ORDERED that Plaintiff, Lloyd Herrera, 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. 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, certain claims against
certain defendants, or the entire Prisoner Complaint and action, may be dismissed
without further notice.

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DATED September 29, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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