Sanchez v. City and County of Denver et al

Filing 7

ORDER to Amend, by Magistrate Judge Gordon P. Gallagher on 11/11/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02804-BNB
ARTHUR SANCHEZ,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
DETECTIVE JOHN H. BAUER 97032,
DETECTIVE JOHN G. ROBLEDO 05122, and
DETECTIVE NICHOLAS E. ROGERS 86037,
Defendants.

ORDER TO AMEND

Plaintiff Arthur Sanchez, a pro se prisoner litigant, has filed a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. T he Court must construe
Plaintiff’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 should not act as an advocate for a pro se litigant. See
Hall, 935 F.2d at 1110. Plaintiff will be directed to file an Amended Complaint for the
reasons stated below.
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). T he 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 statem ent 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.
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 Plaintiff’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. Rather than provide a short and
concise statement under the Cause of Action section of the Complaint form that
identifies a specific constitutional violation, the nature of the violation, and how each
responsible defendant participated in the violation, Plaintiff has listed a seven-page
chronological narrative of events in the Nature of the Case section of the Complaint
form that he refers to under Claims One and Two of the Cause of Action section. The
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statement of events is repetitive and includes information that is unrelated to Plaintiff’s
alleged constitutional violations.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s
sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir.
1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). The Court,
however, will give Plaintiff an opportunity to cure the deficiencies in the Complaint by
submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
To state a claim in federal court Plaintiff 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).
Plaintiff also must 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, Plaintiff must show 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).
Furthermore, municipalities and municipal entities, such as the City and County
of Denver, are not liable under 42 U.S.C. § 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
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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 the City
and County of Denver under § 1983 merely by pointing to isolated incidents. See
Monell , 436 U.S. at 694. Accordingly, it is
ORDERED that Plaintiff shall have thirty days from the date of this Order to
file an Amended Complaint as directed above. It is
FURTHER ORDERED that Plaintiff 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 Plaintiff fails to comply within the time allowed the
Court will address the claims as stated in the November 6, 2014 Complaint and dismiss
improper and insufficient claims accordingly.
DATED November 11, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

Gordon P. Gallagher
United States Magistrate Judge

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