Farrell, III v. State of Colorado et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/27/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02903-BNB
TERRANCE M. FARRELL,
Plaintiff,
v.
STATE OF COLORADO,
RICK RAEMISCH,
DAVE BOOTH,
BARRY GOODRICH,
C/O GRESHENKO,
DAVID HERNANDEZ,
MARCUS WARD,
CELIA SCHWARTZ,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Terrance Farrell III, is in the custody of the Colorado Department of
Corrections at the Buena Vista Correctional Complex-Main and Boot Camp in Buena
Vista, Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint
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. The Court has granted Plaintiff’s
§ 1915 Motion.
The 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Plaintiff will be directed to file an Amended Complaint.

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).
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.
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 Plaintiff 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. Plaintiff identifies four

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claims, but each claim includes a rambling chronology of events. The claims are
conclusory and vague and in part refer to actions by individuals other than named
Defendants.
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 is required to 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 in the
Cause of Action section of the complaint form 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).
A defendant 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,

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when a plaintiff sues an official under Bivens 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.
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.
Plaintiff also cannot maintain claims against prison officials or administrators on
the basis that they denied his grievances. The “denial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by plaintiff, does not
establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F. App’x. 179, 193
(10th Cir. Jan. 13, 2009) (unpublished) (stating that “the denial of the grievances alone
is insufficient to establish personal participation in the alleged constitutional violations.”)
(internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, No.
02-1486, 99 F. App’x. 838, 843 (10th Cir. May 20, 2004) (unpublished) (sending
“correspondence [to high-ranking prison official] outlining [a] complaint . . . without more,
does not sufficiently implicate the [supervisory official] under § 1983”).
The Court further finds that the Complaint improperly combines a number of
separate and unrelated claims against different defendants. Pursuant to Rule 18(a) of
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the Federal Rules of Civil Procedure, “[a] party asserting a claim . . . may join, as
independent or alternative claims, as many claims as it has against an opposing party.”
However, the issue of whether multiple defendants may be joined in a single action is
governed by Rule 20(a)(2) of the Federal Rules of Civil Procedure, which provides:
(2) Defendants. Persons . . . may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same
transaction, occurrence, or series of
transactions or occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a).
Plaintiff has identified multiple incidents throughout the Complaint. The incidents
involve the alleged actions of various defendants and other individuals. Plaintiff may not
join separate and unrelated incidents against multiple defendants based on a
conclusory statement of retaliation. See Gillon v. Fed. Bureau of Prisons, et al., 424 F.
App’x 722, 725-26 (10th Cir. 2011) (finding that plaintiff could not join separate and
unrelated claims arising out of different incidents based on an “overarching” allegation
of retaliation).
Requiring adherence in prisoner suits to the federal rules regarding joinder of
parties and claims prevents “the sort of morass [a multiple claim, multiple defendant]
suit produce[s].” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). “Misjoinder of
parties is not a ground for dismissing an action.” Fed. R. Civ. P. 21. Instead, “ ‘[t]o
remedy misjoinder, . . . the court has two remedial options: (1) misjoined parties may
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be dropped on such terms as are just; or (2) any claims against misjoined parties may
be severed and proceeded with separately.’ ” Nasious v. City and County of Denver,
415 F. App’x 877, 881 (10th Cir. 2011) (quoting DirecTV, Inc., v. Leto, 467 F.3d 842,
845 (3d Cir. 2006)). Nonetheless, the Court will refrain from dropping or severing
parties at this time because Plaintiff must submit an Amended Complaint that complies
with Rule 8 and the joinder requirements of the Federal Rules of Civil Procedure.
Finally, a claim against the State of Colorado is barred by the Eleventh
Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). “It is
well established that absent an unmistakable waiver by the state of its Eleventh
Amendment immunity, or an unmistakable abrogation of such immunity by Congress,
the amendment provides absolute immunity from suit in federal courts for states and
their agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th
Cir. 1994).
The Eleventh Amendment, however, does not bar a federal court action so long
as the plaintiff seeks in substance only prospective relief and not retrospective relief for
alleged violations of federal law, but Plaintiff must assert a claim for prospective relief
against individual state officers. Verizon Maryland v. Public Service Commission of
Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). Defendant
State of Colorado, therefore, is an improper party to this action. Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an Amended Complaint that complies with this Order. It is

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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 file an Amended Complaint that
complies with this Order, within the time allowed, the Court may dismiss the Complaint
and action 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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