Harper v. Hodge et al

Filing 5

ORDER Directing Plaintiff to Cure Deficiencies and File Amended Complaint that Complies with Rule 8, by Magistrate Judge Boyd N. Boland on 10/27/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02810-BNB
(The above civil action number must appear on all future papers
sent to the Court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
SHAUN HARPER,
Plaintiff,
v.
SHARON PHILLIPS,
DR. HODGE,
MEDICAL STAFF OF SAN CARLOS,
CENTENNIAL CORRECTIONAL FACILITY, and
MISTY ZADE,
Defendants.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND
FILE AMENDED COMPLAINT THAT COMPLIES WITH RULE 8

Plaintiff, Shaun Harper, is a prisoner in the custody of the Colorado Department
of Corrections at the San Carlos Correctional Facility in Pueblo, Colorado. Mr. Harper
initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) pursuant to 42
U.S.C. § 1983, among other statutes, and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). As part of the Court’s review
pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that the documents are
deficient as described in this order. Plaintiff will be directed to cure the following if he
wishes to pursue his claims. Any papers that Plaintiff files in response to this order
must include the civil action number noted above in the caption of this order.

28 U.S.C. § 1915 Motion and Affidavit:
is incomplete (must complete all pages of the Court’s current Prisoner’s
(1)
X
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
form revised 10/01/12 with Authorization and Certificate of Prison Official)
(2)
is missing affidavit
(3)
X
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
(4)
is missing certificate showing current balance in prison account
(5)
is missing required financial information
(6)
is missing an original signature by the prisoner
(7)
is not on proper form
names in caption do not match names in caption of complaint, petition or
(8)
X
habeas application
(9)
An original and a copy have not been received by the Court.
Only an original has been received.
(10)
X
other: Plaintiff may pay $400.00 (the $350.00 filing fee plus a $50.00
administrative fee) in lieu of filing a § 1915 Motion and Affidavit and a
certified copy of his six months’ trust fund statement.
Complaint, Petition or Application:
(11)
is not submitted
(12)
is not on proper form
(13)
is missing an original signature by the prisoner
(14)
is missing page no.
(15)
uses et al. instead of listing all parties in caption
(16)
An original and a copy have not been received by the Court. Only an
original has been received.
(17)
Sufficient copies to serve each defendant/respondent have not been
received by the Court.
names in caption do not match names in text
(18)
other: Prisoner Complaint is nearly illegible
(19)
X
The Court must construe the Prisoner Complaint liberally because Mr. Harper 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. Harper will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.
Mr. Harper complains of back pain from nerve damage, migraine headaches, and
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a “problem with my bowels” (ECF No. 1 at 3), apparently as a result of having a portion
of his large intestine removed. On the basis of these allegations, he contends
Defendants are being deliberately indifferent to his serious medical needs. However,
his handwriting is largely illegible, making it difficult to determine the supporting factual
allegations for each of his claims. Rule 10.1 of the Local Rules of Practice for this Court
requires that all papers filed in cases in this Court be in a 12-point font, double-spaced,
and legible. See D.C.COLO.LCivR 10.1. The amended Prisoner Complaint Mr. Harper
will be directed to file, whether handwritten or typed, shall be in a size equal or
exceeding a 12-point font, double-spaced and legible, in capital and lower-case letters,
all as required by D.C.COLO.LCivR 10.1.
The amended Prisoner Complaint also 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,
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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. Harper “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. Harper should name as defendants in the amended
Prisoner Complaint only those persons that he contends actually violated his federal
constitutional rights.
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. Harper 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
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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. Harper 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.
Harper 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, Shaun Harper, cure the designated deficiencies and file
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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 and Rule 10.1 of the Local Rules of Practice for this Court as discussed in
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 forms for filing a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 and Prisoner
Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use all pages of those forms in curing the designated deficiencies and filing an
amended Prisoner Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies or
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 October 27, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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