Harper v. City of Cortez et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 11/5/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02984-BNB
MARION ORNESTUS HARPER, III,
Plaintiff,
v.
MONTEZUMA COUNTY SHERIFFS DEPT.,
SHERIFF DENNIS SPRUELL,
CORPORAL STEPHANOPOLIS,
CITY OF CORTEZ,
CORTEZ POLICE DEPT.,
SGT. ANGELO MARTINEZ,
OFFICER KOBEL, and
SGT. TALLEY,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Marion Ornestus Harper, III, has filed pro se a Complaint (ECF No. 1).
The court must construe the 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 (10 th Cir. 1991). However, the court should not be an advocate for
a pro se litigant. See Hall, 935 F.2d at 1110. Mr. Harper will be ordered to file an
amended complaint if he wishes to pursue his claims in this action.
The Complaint is deficient because it is not clear who Mr. Harper is suing. Mr.
Harper lists various individuals and entities as Defendants in the caption of the
Complaint that are not listed as Defendants in the body of the Complaint. In order to
clarify who he is suing, Mr. Harper should list each Defendant on a separate line in the

caption of the amended complaint he will be ordered to file. Furthermore, Mr. Harper
must provide a complete address for each named Defendant in the body of the
amended complaint so that they may be served properly.
The Complaint also 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 (10 th
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 (10 th 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 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 the requirements of Rule 8.
Mr. Harper indicates he is asserting claims pursuant to 42 U.S.C. § 1983.
However, he fails to provide a short and plain statement of any claims showing he is
entitled to relief because he fails to identify the specific federal claims he is asserting,
the specific factual allegations that support each claim, against which Defendant or
2

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
defendant violated”); see also Henry v. Storey, 658 F.3d 1235, 1241 (10 th Cir. 2011)
(allegations of “personal participation in the specific constitutional violation complained
of [are] essential”). In short, Mr. Harper’s vague and conclusory allegations that his
rights have been violated are not sufficient to comply with the pleading requirements of
Rule 8.
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 (10 th Cir. 2005). Finally, “[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.” New Home Appliance Ctr., Inc., v. Thompson, 250
F.2d 881, 883 (10 th Cir. 1957).
For these reasons, Mr. Harper must file an amended complaint if he wishes to
pursue his claims in this action. 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). Therefore, Mr. Harper should
name as Defendants only those persons he contends actually violated his federal rights
while acting under color of state law. Mr. Harper may not include claims in his
3

amended complaint against a county or other municipality unless he demonstrates he
suffered an injury caused by a municipal policy or custom. See Schneider v. City of
Grand Junction Police Dept., 717 F.3d 760, 769-71 (10 th Cir. 2013) (discussing
Supreme Court standards for municipal liability); Dodds v. Richardson, 614 F.3d 1185,
1202 (10th Cir. 2010). Accordingly, it is
ORDERED that Mr. Harper file, within thirty (30) days from the date of this
order, an amended complaint that complies with this order. It is
FURTHER ORDERED that Mr. Harper shall obtain the appropriate courtapproved Complaint form, along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Harper 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 November 5, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge

4