Abdu v. Luke et al

Filing 24

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 7/16/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00452-GPG
AYMEN ABDU,
Plaintiff,
v.
STEVE PAULLUKE, Institute of Mental Health in Pueblo, and
RON HALE, Superintendent, Institute of Mental Health in Pueblo,
Defendants.

ORDER TO AMEND

On June 12, 2015, pursuant to Court order, Plaintif f Aymen Abdu filed a Prisoner
Complaint pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Subseq uently, on July
15, 2015, Plaintiff filed a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 that was granted on July 16, 2015.
The Court must construe Plaintiff’s 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 should not act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
The 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 (10th

Cir. 1989). The requirements of Rule 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.” Plaintiff has failed to comply with Rule 8 and will be directed to
file an Amended Complaint for the reasons stated below.
First, Plaintiff fails to assert the relief he seeks.
Second, Defendant Institute of Mental Health in Pueblo is immune from suit.
The State of Colorado and its agencies are protected by Eleventh Amendment
immunity. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Meade v.
Grubbs, 841 F.2d 1512, 1525-26 (10th Cir. 1988). “It is well established that absent an
unmistakable waiver by the state of its Eleventh Amendment immunity, or an
unmistakable abrogation of such immunity by Congress, the amendment provides
absolute immunity from suit in federal courts for states and their agencies.” Ramirez v.
Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994), overruled on other
grounds by Ellis v. University of Kan. Medical Center, 163 F.3d 1186, 1194-97 (10th Cir.
1998). The State of Colorado has not waived its Eleventh Amendment immunity, see
Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988), and cong ressional
enactment of 42 U.S.C. § 1983 did not abrogate Eleventh Amendment immunity, see
Quern v. Jordan, 440 U.S. 332, 340-345 (1979).

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The Eleventh Amendment, however, does not bar a federal court action so long
as the plaintiff seeks in substance only prospective relief and not retrospective relief for
alleged violations of federal law, but Plaintiff must assert a claim for prospective relief
against individual state officers. Verizon Maryland v. Public Service Commission of
Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). Defendant
Institute of Mental Health in Pueblo, therefore, is an improper party to this action.
Plaintiff also is required to assert personal participation by each named
defendant in the 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). Plaintiff fails to assert how Defendant Steve Paulluke violated his constitutional
rights.
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
own conduct and state of mind did so as well.

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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 § 1983 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.
Finally, 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). According ly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an 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 Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to file an Amended Complaint that
complies with this Order, within the time allowed, the Court will proceed to dismiss the
Complaint without further notice.
DATED July 16, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
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United States Magistrate Judge

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