Gillings v. Banvelos et al

Filing 9

ORDER Directing Plaintiff to File an Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 3/04/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00172-GPG

NIGEL GILLINGS,
Plaintiff,
v.
LT. BANVELOS,
LT. YAGAR,
H. WALKER, and
LT. HART,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
AN AMENDED COMPLAINT

Plaintiff Nigel Gillings, is in the custody of the Federal Bureau of Prisons and
currently is incarcerated at the United States Penitentiary in Jonesville, Virginia.
Plaintiff initiated this action by filing pro se a Complaint pursuant to the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671, and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). As part of the
Court’s review pursuant to D.C.COLO.LCivR 8.1(b), the Court determined that the
submitted documents are deficient and directed Plaintiff to provide addresses for
named defendants and a certified inmate account statement. Plaintiff complied on
February 12, 2015, and the Court granted the § 1915 Motion.
The Court must construe the Prisoner 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). T he Court, however, should not act
as a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. The Court will direct
Plaintiff to file an Amended Prisoner Complaint for the following reasons.
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
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).
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 fails to set forth a short and plain statement of his claims showing that he
is entitled to relief. Plaintiff asserts three claims that set forth only constitutional
deprivations and are mostly repetitive statements of chronological events. Also, Plaintiff
asserts jurisdiction pursuant to the FTCA but fails to name the only proper defendant in
an FTCA claim, the United States, and to assert specific facts that support an FTCA
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claim.
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 an opportunity to cure the deficiencies in the Complaint by
submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
If Plaintiff, as he states under the Jurisdiction section of the Complaint form,
intends to file his claims pursuant to the FTCA, the United States is the sole defendant
to an FTCA action. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir. 2001)
(noting that the United States is the only proper defendant to an FTCA suit). See also
28 U.S.C. §§ 2674, 2679. The FTCA allows the United States to be sued for claims
arising out of negligent or wrongful acts or omissions of its employees, when such
employees are acting within the scope of their duties. 28 U.S.C. § 1346(b)(1).
"[T]he FTCA and a Bivens claim are alternative remedies." Robbins v. Wilkie,
300 F.3d 1208, 1213 (10th Cir. 2002). "When a federal law enforcement officer
commits an intentional tort, the victim has two avenues of redress: 1) he may bring a
Bivens claim against the individual officer based on the constitutional violation, or 2) he
may bring a common law tort action against the United States pursuant to the FTCA."
Engle v. Mecke, 24 F.3d 133, 135 (10th Cir.1994) (citations omitted). Accordingly, a
plaintiff can pursue a Bivens action against a federal official in his individual capacity
and an FTCA claim against the United States arising out of the same subject matter,
but a judgment against the United States under the FTCA precludes recovery against
the federal employee under Bivens. Engle, 24 F.3d at 135 ("Although the plaintiff may
elect initially to bring his action against either defendant, a judgment against the United
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States under the FTCA constitutes ‘a complete bar to any action by the claimant, by
reason of the same subject matter, against the employee . . . whose act or omission
gave rise to the claim.’ ") (quoting § 2676); see also Trentadue v. United States, 397
F.3d 840, 858-59 (10th Cir. 2005) (concluding that district court was required to vacate
Bivens judgment where court later entered judgment on FTCA claims arising out of the
same subject matter, pursuant to § 2676).
As for Plaintiff’s constitutional deprivation claims, to state a claim in federal court
Plaintiff must explain (1) what a defendant did to him; (2) when the defendant did it; (3)
how the defendant’s action harmed him; and (4) what specific legal right the defendant
violated. Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007).
Plaintiff also must assert personal participation by each named defendant if he
intends to assert an alleged constitutional violation. See Bennett v. Passic, 545 F.2d
1260, 1262-63 (10th Cir. 1976). To establish personal participation, Plaintiff must show
how each named individual 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 defendant 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 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 of ficial by virtue of his
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own conduct and state of mind did so as well.
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 Bivens 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, 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. Accordingly, it is
ORDERED that Plaintiff file an Amended Complaint that complies with the
directions above, within thirty days from the date of 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 Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to comply with this Order within the
time allowed the Court shall proceed to review the merits of the claims as stated in the
Complaint filed on January 26, 2015.
DATED March 4, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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