Freeman v. Walgreens et al

Filing 10

ORDER Directing Plaintiff To File An Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 02/04/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03316-GPG
JACQUES FREEMAN,
Plaintiff,
v.
WALGREENS,
MARIEL RODRIQUEZ, Walgreens Employee,
TY CHURCH, Walgreens Employee, and
DEE GILLET, District 5 Police Department,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
AN AMENDED COMPLAINT

Plaintiff Jacques Freeman currently resides in Denver, Colorado. Plaintiff, acting
pro se, initiated this action by filing a Complaint. The Court must construe the
Complaint liberally because Plaintiff 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). The Court, however, should not act as a pro se litigant’s advocate. See Hall,
935 F.2d at 1110. For the reasons stated below, Plaintiff will be ordered to file an
Amended Complaint.
The Court finds that the Complaint 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 (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, 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 pleadings violate the requirements of Rule 8.
Plaintiff’s Complaint is rambling, repetitive, and in part unintelligible. Plaintiff fails
to set forth a short and plain statement of his claims showing that he is entitled to relief
and to identify how all named defendants are responsible for violating his constitutional
rights. The Court, therefore, will direct Plaintiff to file an Amended Complaint that
complies with the pleading requirements of Rule 8. Plaintiff is reminded that it is his
responsibility to present his claims in a manageable format that allows the Court and
Defendants to know what claims are being asserted and to be able to respond to those
claims.
Plaintiff also is reminded that he must name the proper parties who are
responsible for violating rights and assert each defendant’s personal participation in the
alleged violations. 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
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personal participation, Plaintiff 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 nam ed defendant may not be held liable
merely because of his or her supervisory position. See Pembaur v. City of Cincinnati,
475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983).
Plaintiff also fails to allege facts that might state a cognizable claim under 42
U.S.C. § 1983 with respect to Defendants Walgreens, Mariel Rodriquez, and Ty
Church. “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). “The 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.” Wyatt v. Cole, 504 U.S. 158,
161 (1992). “[T]he under-color-of-state-law element of § 1983 excludes from its reach
merely private conduct, no matter how discriminatory or wrongful.” American Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted).
Therefore, the only proper defendants in a § 1983 action are those who “ ‘represent [the
State] in some capacity, whether they act in accordance with their authority or misuse
it.’ ” NCAA v. Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S.
167, 172 (1961)).
Plaintiff further is instructed that to state a claim in federal court he must explain
what each defendant did to him; when the defendant did it; how the defendant’s action
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harmed him; and, what specific legal right he believes the defendant violated. Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Finally, Plaintiff must provide addresses for each named defendant for purposes
of service. Accordingly, it is
ORDERED that Plaintiff file an Amended Complaint as instructed above, within
thirty days from the date of this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the proper Court-approved form,
along with the applicable instructions, at www.cod.uscourts.gov for use in filing the
Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to properly amend the Complaint,
within thirty days from the date of this Order, the Complaint and action the Court will
proceed to address the merits of the original Complaint.
DATED February 4, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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