Inskeep v. Wingert et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 1/16/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00095-GPG
BRYAN INSKEEP,
Plaintiff,
v.
SGT. WINGERT (#UNK),
JASON ZWIRN (#1314),
MAJOR RAYMOND BILDERAYA (#3362), and
ANTHONY A. DeCESARO (Grievance Officer),
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Bryan Inskeep, is a prisoner in the custody of the Colorado Department
of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Inskeep
has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983
claiming his rights under the United States Constitution have been violated. He seeks
damages and declaratory relief.
The court must construe the Prisoner Complaint liberally because Mr. Inskeep 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. For the reasons stated
below, Mr. Inskeep will be ordered to file an amended complaint if he wishes to pursue
his claims in this action.
The Prisoner Complaint is deficient because it 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 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.
Mr. Inskeep asserts three claims for relief in the Prisoner Complaint. He first
claims he was subjected to excessive force on February 10, 2014, when he was
sprayed in the face with a chemical agent. Although Mr. Inskeep asserts the excessive
force claim as a violation of his Fourth Amendment rights, the claim properly is asserted
pursuant to the Eighth Amendment. See Whitley v. Albers, 475 U.S. 312, 327 (1986)
(holding that “the Eighth Amendment . . . serves as the primary source of substantive
protection to convicted prisoners”). Mr. Inskeep does not allege specific facts that
demonstrate how any of the named Defendants personally participated in the alleged
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use of excessive force.
Mr. Inskeep alleges in his second claim that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment when he was denied an
opportunity to decontaminate after being sprayed with a chemical agent on February
10, 2014. Mr. Inskeep does not allege specific facts that demonstrate how any of the
named Defendants personally participated in the alleged denial of an opportunity to
decontaminate.
Mr. Inskeep finally claims he was denied due process because he was denied
meaningful administrative review of his grievances regarding the incident on February
10, 2014. Although not entirely clear, it appears that the due process claim is being
asserted against Defendants DeCesaro, Bilderaya, and Zwirn.
Mr. Inskeep fails to provide a short and plain statement of his claims showing he
is entitled to relief because he fails to allege clearly and concisely how each Defendant
personally participated in the asserted constitutional violations. Allegations of “personal
participation in the specific constitutional violation complained of [are] essential.” Henry
v. Storey, 658 F.3d 1235, 1241 (10 th Cir. 2011). Mr. Inskeep’s vague and conclusory
allegations that Defendants somehow are responsible for the alleged Eighth
Amendment violations are not sufficient because he fails to specify what each
Defendant did that allegedly violated his Eighth Amendment rights. To the extent a
particular Defendant merely denied a grievance, that fact alone is not sufficient to
demonstrate personal participation in the asserted Eighth Amendment violations. See
Gallagher v. Shelton, 587 F.3d 1063, 1069 (10 th Cir. 2009) (stating “a denial of a
grievance, by itself without any connection to the violation of constitutional rights
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alleged by plaintiff, does not establish personal participation”).
For these reasons, Mr. Inskeep will be ordered to file an amended complaint.
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). Therefore, Mr. Inskeep should name as Defendants only those
persons he contends actually violated his federal constitutional rights. For each claim
he asserts in the amended complaint, Mr. Inskeep “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 (10 th 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). Accordingly, it is
ORDERED that Mr. Inskeep file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Inskeep 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. Inskeep fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED January 16, 2015, at Denver, Colorado.
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BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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