Havens v. State of Colorado et al
ORDER Directing Plaintiff to File Amended Complaint, 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-03024-BNB
STATE OF COLORADO,
COLORADO DEPARTMENT OF CORRECTIONS,
ROSA FRAYER, and
DENVER RECEPTION AND DIAGNOSTIC CENTER,
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff Darrell Havens is a prisoner in the custody of the Colorado Department
of Corrections and currently is incarcerated at the Denver Reception and Diagnostic
Center in Denver, Colorado. Mr. Havens, acting pro se, initiated this action by filing a
Prisoner Complaint alleging that his constitutional rights were violated..
The Court must construe the Complaint liberally because Mr. Havens is a pro se
litigant. 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 act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below , Mr. Havens will
be ordered to file an Amended Complaint and assert how all named parties violated his
First, Plaintiff’s handwriting is not legible because he has failed to leave sufficient
space between each line, which makes understanding his handwritten allegations
difficult. Pursuant to Rule 10.1(e) of the Local Rules of Practice for this Court, Plaintiff
is required to double space all documents.
Second, 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 the 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’s claims are conclusory and
vague and fail to state how each named defendant violated his rights.
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.
Plaintiff 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).
Furthermore, 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).
A defendant also 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). Furthermore,
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 of ficial 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.
Also, Defendants State of Colorado, Colorado Department of Corrections, and
Denver Reception and Diagnostic Center are immune from suit. The State of Colorado
and its agencies are protected by Eleventh Amendment immunity. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 152526 (10th Cir. 1988). “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), overruled on other grounds by Ellis v. University of Kan.
Medical Center, 163 F.3d 1186, 1194-97 (10th Cir. 1998). T he State of Colorado has
not waived its Eleventh Amendment immunity, see Griess v. Colorado, 841 F.2d 1042,
1044-45 (10th Cir. 1988), and congressional enactment of 42 U.S.C. § 1983 did not
abrogate Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S. 332, 340-345
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). Defendants
State of Colorado and Colorado Department of Corrections, therefore, are improper
party to this action.
Plaintiff is directed to file a legible Amended Complaint. Accordingly, it is
ORDERED that Mr. Havens file within thirty days from the date of this Order an
Amended Complaint that is in keeping with the above directives. It is
FURTHER ORDERED that Mr. Havens 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. Havens fails within the time allowed to file an
Amended Complaint that complies with this Order, to the Court’s satisfaction, the Court
will dismiss the action without further notice. It is
FURTHER ORDERED that process shall not issue until further order of
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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