Brown v. Doe et al

Filing 4

ORDER Directing Plaintiff To Cure Deficiencies and File Amended Complaint That Complies With Rule 8, by Magistrate Judge Gordon P. Gallagher on 11/25/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03186-GPG
(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.)
WESLEY R. “WOLF” BROWN,
also known as
WOLF, also known as
WESLEY R. BROWN, also known as
WESLEY BROWN,
Plaintiff,
v.
J. DOE, Chief Justice of the Colorado Supreme Court,
J. DOE, Sheriff or acting Sheriff, Arapahoe County Dentention [sic] Facility, and
J. DOE, Supervisor of the Law Library at the Arapahoe County Dentention [sic] Facility,
Defendants.

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

Plaintiff, Wesley R. “Wolf” Brown, also known as Wolf among other aliases listed
in the caption to this order, is a pretrial detainee who currently is incarcerated at the
Arapahoe County Detention Facility in Centennial, Colorado. Mr. Brown initiated this
action by filing pro se a Prisoner Complaint (ECF No. 1) for injunctive relief and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 2). 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:
(1)
is not submitted
(2)
is missing affidavit
(3)
X
is missing completed certificate of prison official or a written document
demonstrating that the authorized prison official refuses to sign and date
it, and 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)
X
is missing an original signature by the prisoner
(7)
is not on proper form
(8)
X
names in caption do not match names in caption of complaint, petition or
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.
(18)
names in caption do not match names in text
(19)
other:
The Court must construe the Prisoner Complaint liberally because Mr. Brown 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

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stated below, Mr. Brown will be ordered to file an amended Prisoner Complaint if he
wishes to pursue his claims in this action.
Mr. Brown is suing an improper party. Mr. Brown may not sue the Chief Justice
of the Colorado Supreme Court in the absence of specific factual allegations
demonstrating that he acted outside the scope of his absolute immunity. Judges are
absolutely immune from liability in civil rights suits for money damages for actions taken
in their judicial capacity unless the judge was acting in the clear absence of all
jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435
U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994).
The Prisoner Complaint is unnecessarily verbose, vague, and conclusory. Mr.
Brown’s first claim fails to allege a constitutional violation. His second and third claims
allege a violation of access to the courts. In order to support a claim for denial of
access to the courts, “a prisoner must demonstrate actual injury from interference with
his access to the courts–that is, that the prisoner was frustrated or impeded in his
efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of
confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010). Mr. Brown has
not shown an issue of fact as to whether he suffered any injury from limited law library
access and denial of postage for legal mail.
The amended Prisoner Complaint Mr. Brown will be directed to file 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
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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 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.
In order to state a claim in federal court, Mr. Brown “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

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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. Brown 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). T o establish personal
participation, Mr. Brown 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
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 supervisory official 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 [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,
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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. Brown 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.
Brown uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
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
finds that the Prisoner Complaint does not meet the requirements of Fed. R. Civ. P. 8.
Mr. Brown will be given an opportunity to cure the deficiencies by submitting an
amended Prisoner Complaint that states claims clearly and concisely in compliance
with Fed. R. Civ. P. 8, alleges specific facts that demonstrate how each named
defendant personally participated in the asserted constitutional violations, and complies
with the Local Rules of Practice for this Court. The Court will not consider any claims
raised in separate attachments, amendments, supplements, motions, or other
documents not included in the amended Prisoner Complaint.
Mr. Brown is warned that, even if the Court dismisses the instant action without
prejudice for failure to comply with this order, the dismissal may act as a dismissal with
prejudice if Mr. Brown seeks to refile in this Court because the two-year statute of
limitations may have run on his § 1983 claims. The limitation period for a § 1983 action
is set by the personal injury statute in the state where the cause of action accrues.
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Garcia v. Wilson, 731 F.2d 640, 650-51 (10th Cir. 1984). In Colorado, the lim itations
period for a personal injury action is two years. Colo. Rev. Stat. § 13-80-102.
Accordingly, it is
ORDERED that the clerk of the Court add to the docketing records for this action
the aliases for Plaintiff, Wesley R. “Wolf” Brown, listed in the caption to this order. It is
ORDERED that Mr. Brown cure the designated deficiencies and file 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 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 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

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this order, the Prisoner Complaint and action may be dismissed without further notice.
DATED November 25, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
GORDON P. GALLAGHER
United States Magistrate Judge

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