Schwartz v. Paddock, et al

Filing 19

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 10/28/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02678-BNB
ERIC SCHWARTZ,
Plaintiff,
v.
JENNY E. PADDOCK,
STANLEY L. GARNETT,
ELIZABETH KELLY, and
PATRICK BUTTLER,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Eric Schwartz, is an inmate at the Boulder County Jail in Boulder,
Colorado. Mr. Schwartz has filed pro se a Prisoner Complaint (ECF No. 13). The court
must construe the Prisoner Complaint liberally because Mr. Schwartz 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. Mr. Schwartz will be ordered to file an
amended complaint if he wishes to pursue his claims in this action.
The Prisoner Complaint is deficient because it does not 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 the requirements of Rule 8.
Mr. Schwartz indicates in the Prisoner Complaint that he is asserting claims for
damages pursuant to 42 U.S.C. § 1983, which “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.”). The named Defendants are a police officer,
the attorney representing Mr. Schwartz in a state court criminal case, the district
attorney prosecuting Mr. Schwartz in the state court case, and a state court judge.
Mr. Schwartz fails to provide a short and plain statement of his claims showing
he is entitled to relief because he fails to identify the federal claims he is asserting
against Defendants and he fails to provide factual allegations in support of his claims
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that specify how his federal rights have been violated. Mr. Schwartz’s conclusory
assertions that Defendants have violated state criminal statutes and rules of
professional conduct in connection with his state court criminal case do not demonstrate
his federal rights have been violated.
Merely making 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 court construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D.
Colo. 1991), 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.
Furthermore, 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. Schwartz will be ordered to file an amended complaint that provides fair
notice of the claims he is asserting if he wishes to pursue those claims in this action.
Mr. Schwartz must identify, clearly and concisely, the specific federal claims he is
asserting, the specific facts that support each asserted claim, against which Defendant
or Defendants he is asserting each claim, and what each Defendant did that allegedly
violated his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007) (noting that, to state a claim in federal court, “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
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defendant violated”); see also Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011)
(allegations of “personal participation in the specific constitutional violation complained
of [are] essential”).
Mr. Schwartz may not sue defense counsel in an action pursuant to § 1983
because 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). Of course, a defense
attorney engaged in a conspiracy with state officials to deprive his client of his
constitutional rights does act under color of state law. See Tower v. Glover, 467 U.S.
914, 920-23 (1984); Hunt, 17 F.3d at 1268. However, “[w]hen a plaintiff in a § 1983
action attempts to assert the necessary ‘state action’ by implicating state officials or
judges in a conspiracy with private defendants, mere conclusory allegations with no
supporting factual averments are insufficient; the pleadings must specifically present
facts tending to show agreement and concerted action.” Sooner Products Co. v.
McBride, 708 F.2d 510, 512 (10th Cir. 1983) (per curiam). Furthermore, to the extent
Mr. Schwartz may seek to demonstrate state action on the basis of an alleged
conspiracy with state officials who themselves are entitled to absolute immunity, the
pleading standard is even stricter. See id.
Mr. Schwartz also may not sue a state court judge or a prosecuting attorney in
the absence of specific factual allegations demonstrating they acted outside the scope
of their absolute immunity. Judges are absolutely immune from liability in civil rights
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suits for money damages for actions taken in their judicial capacity unless the judge was
acting in the clear absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12
(1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d
1263, 1266-67 (10th Cir. 1994). Similarly, “acts undertaken by a prosecutor in preparing
for the initiation of judicial proceedings or for trial, and which occur in the course of his
[or her] role as an advocate for the State, are entitled to the protections of absolute
immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
Finally, to the extent Mr. Schwartz may be asking the court to intervene in his
ongoing state court criminal case, the court must abstain from exercising jurisdiction
over those claims. See Younger v. Harris, 401 U.S. 37, 44 (1971). Accordingly, it is
ORDERED that Mr. Schwartz file, within thirty (30) days from the date of this
order, an amended complaint that as directed in this order. It is
FURTHER ORDERED that Mr. Schwartz 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. It is
FURTHER ORDERED that, if Mr. Schwartz fails within the time allowed to file an
amended complaint that complies with this order as directed, the action will be
dismissed without further notice.
DATED October 28, 2014, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher

Gordon P. Gallagher
United States Magistrate Judge
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