Pohlmann v. Larimer County Sheriff's Office

Filing 17

ORDER Directing Plaintiff To File Second Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 03/10/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03466-GPG
JUSTIN K. POHLMANN,
Plaintiff,
v.
DEP. EARL FAWCETT,
CPL. JACKI HURLEY,
S.W.A.T. MEMBERS,
ANY AND ALL INVESTIGATORS INVOLVED IN CASE No. 14CR114,
LARIMER COUNTY SHERIFF’S OFFICE,
DISTRICT ATTORNEY, Unknown Name,
HONORABLE JUDGE O’DELL,
CPL. BARRETT,
DEP. A HAWKS,
DEP. ROSENDALE, and
UNKNOWN OFFICERS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff Justin K. Pohlmann now is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Skyline Correctional Center in Cañon
City, Colorado. Plaintiff initiated this action on December 23, 2014, by filing a Letter
regarding a notice of intent to file an action. On December 26, 2015, Magistrate Judge
Gordon P. Gallagher entered an order that directed Plaintiff to file his claims on a Courtapproved Complaint form and to submit either a request to proceed pursuant to § 1915
on a proper Court-approved form, or in the alternative pay the $400 filing fee in full.
Plaintiff cured the deficiencies and was granted leave to proceed pursuant to § 1915 on
February 1, 2015.
On February 2, 2015, Magistrate Judge Gallagher directed Plaintiff to amend the

Complaint. Specifically, Plaintiff was told to comply with Fed. R. Civ. P. 8 and to state
his claims in a short and concise statement. Magistrate Judge Gallagher also told
Plaintiff to assert personal participation by each named defendant and to state what
each defendant did to him, when they committed the action, how the action harmed
him, and what specific right was violated. Finally, Plaintiff was told that the Larimer
County Sheriff’s Office is not a properly named defendant, municipalities and municipal
entities are not liable under § 1983 for individual employee actions, supervisors are not
liable for the conduct of their subordinates, and he was to use a Court-approved
Prisoner Complaint form in filing the Amended Complaint. On February 12, 2015,
Plaintiff filed an Amended Prisoner Complaint.
The Court must construe Plaintiff’s Amended 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 a Second Amended Complaint.
Plaintiff fails again to comply with Fed. R. Civ. P. 8. Plaintiff was instructed in the
February 1, 2015 Order that 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
2

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.
Plaintiff’s claims are not clearly and concisely stated in a manageable format.
Rather than provide a short and concise statement under the Cause of Action section of
the Complaint form that identifies a specific constitutional violation, the nature of the
violation, and how each responsible defendant participated in the violation, Plaintiff
presents his claims in a repetitive, chronological statement. Plaintiff’s claims for the
most part are conclusory and vague and do not state how named Defendants
participated in any alleged constitutional violation. Plaintiff further asserts claims
against named individuals in the body of the Amended Complaint who are not listed as
a defendant in the caption of the Complaint.
Plaintiff also again lists the Larmier County Sheriff’s Office even though he was
directed in the February 1, 2015 Order to Amend that the Sheriff’s Office is not a
properly named party to this action. Furthermore, Defendants District Attorney and

3

Judge O’Dell are immune from suit for the reasons stated below.
Defendant Judge O’Dell is absolutely immune from liability in civil rights suits
when he acts in his judicial capacity, unless he acts in the clear absence of all
jurisdiction. See Morales v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Scarman, 435
U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994).
Questions of competency are “ ‘intimately associated with the judicial phase of the
criminal process.’ ” See Wolf v. Scobie, 28 F. App’x 545, 548 (7th Cir. 2002) (citation
omitted)). Judge O’Dell was acting in his judicial capacity when he denied Plaintiff’s
request to lower bail; he was not acting in the clear absence of all jurisdiction.
Defendant District Attorney is entitled to absolute immunity in § 1983 suits for
activities within the scope of his/her prosecutorial duties. See Ambler v. Pachtman, 424
U.S. 409, 420-24 (1976); The Tenth Circuit has found that state prosecutors’ “decisions
to prosecute, their investigatory or evidence–gathering actions, their evaluation of
evidence, their determination of whether probable cause exists, and their determination
of what information to show the court” are activities intimately associated with the
judicial process. See Nielander v. Bd. of County Comm’rs., 582 F.3d 1155, 1164 (10th
Cir. 2009).
Also, Plaintiff may use fictitious names, such as “District Attorney,” “S.W.A.T.
Members,” “Investigators Involved in Case No.14CR114,” and “Unknown Officers,” if he
does not know the real names of the individuals who allegedly violated his rights.
Plaintiff, however, must provide sufficient information, including addresses, about each
defendant so that they can be identified for the purpose of service.
Plaintiff further has failed to submit all sections of the Court-approved Prisoner
Complaint form. Plaintiff was directed in the February 1, 2015 Order to file his claims

4

on a Court-approved form. Local Rules 1.2 and 5.1(c) of the Local Rules of Practice Civil for this Court require litigants to use the Court-approved forms found on the
Court’s website. Rule 83(a)(2) of the Federal Rules of Civil Procedure allows a district
court to enforce a local rule imposing a form requirement unless it “causes a party to
lose any right because of a nonwillful failure to comply.” Fed. R. Civ. P. 83(a)(2).
Plaintiff makes no mention of being unable to obtain the Court-approved forms for filing
a Prisoner Complaint. Generally, “dismissal is an appropriate disposition against a
party who disregards court orders and fails to proceed as required by court rules.”
United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005)
(citing Nat’l Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 642-43 (1976)).
The Amended Complaint also improperly combines a number of separate and
unrelated claims against different defendants. Pursuant to Rule 18(a) of 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).
Requiring adherence in prisoner suits to the federal rules regarding joinder of

5

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
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)).
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 one last opportunity to cure the deficiencies in the Complaint
by submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8
and complies with the directives of this Order. The Court also will refrain from dropping
or severing parties at this time before Plaintiff has the opportunity to submit a Second
Amended Complaint that complies with the Rule 8 and the joinder requirements of the
Federal Rules of Civil Procedure. Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file a Second Amended Complaint that complies with this Order. It is
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 Second Amended Complaint. It is

6

FURTHER ORDERED that if Plaintiff fails to file a Second Amended Complaint
that complies with this Order, within the time allowed, the Court will dismiss the action
without further notice.
DATED March 10, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

7