Van Fleet v. Delander et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 1/14/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00074-GPG
DERIC VAN FLEET,
Plaintiff,
v.
SGT. DELANDER, Maintenance,
CAPTAIN FRY, and
SGT. TUPPER,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Deric Van Fleet, is a prisoner in the custody of the Colorado Department
of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Van Fleet
has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983. He
seeks damages as relief.
The court must construe the Prisoner Complaint liberally because Mr. Van Fleet
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. Van Fleet will be
ordered to file an amended complaint if he wishes to pursue his claims in this action.
The Prisoner 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 (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 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.
Mr. Van Fleet alleges that he was tortured while in segregation because he was
placed in a cell near loud and squeaky staircases and a loud air pressure release valve
that goes off every thirty to forty minutes. However, he does not identify the specific
constitutional claim or claims he is asserting based on the conditions in segregation.
Construing the complaint liberally, it appears that Mr. Van Fleet may be asserting an
Eighth Amendment claim. However, it is not clear whether he also intends to assert
any other constitutional claims or what those claims may be.
Furthermore, Mr. Van Fleet fails to allege facts that demonstrate each of the
named Defendants personally participated in the asserted constitutional violation. With
respect to the conditions in segregation, Mr. Van Fleet alleges that Defendant Tupper
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actually placed him in a particular cell in order to punish and torture him. Mr. Van Fleet
does not allege facts that demonstrate either of the other Defendants subjected him to
inhumane conditions of confinement or acted with deliberate indifference to a
substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825 (1994); Tafoya
v. Salazar, 516 F.3d 912, 916 (10 th Cir. 2008). As a result, Mr. Van Fleet fails to provide
a short and plain statement of his claim or claims showing he is entitled to relief.
For these reasons, Mr. Van Fleet will be ordered to file an amended complaint.
He must identify the specific federal claims he is asserting, the specific factual
allegations that support each claim, against which Defendant or 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 (10 th 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”). 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). Accordingly, it is
ORDERED that Mr. Van Fleet 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. Van Fleet 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
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FURTHER ORDERED that, if Mr. Van Fleet fails within the time allowed to file an
amended complaint that complies with this order, the action will be dismissed without
further notice.
DATED January 14, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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