Gosselin v. Kaufman et al

Filing 9

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 03/17/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00539-GPG
KEITH V. GOSSELIN,
Plaintiff,
v.
SERGEANT KAUFMAN,
OFFICER GONZALEZ,
JOHN DOE,
SHARON PHILIPS,
JAMES LARIMORE,
INVESTIGATOR MONTOYA,
INVESTIGATOR RICHARDSON, and
MAJOR ALLEN,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Keith V. Gosselin, is a prisoner in the custody of the Colorado
Department of Corrections at the Centennial Correctional Facility in Cañon City,
Colorado. Mr. Gosselin has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to
42 U.S.C. § 1983. He seeks damages and other relief.
The court must construe the Prisoner Complaint liberally because Mr. Gosselin 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. Gosselin 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. Gosselin asserts three claims for relief in the Prisoner Complaint based on
events that occurred while he was incarcerated at the San Carlos Correctional Facility.
He first claims that Defendants Kaufman and Gonzalez subjected him to cruel and
unusual punishment in violation of the United States Constitution and committed the tort
of assault and battery when he was kicked in the groin by Defendant Kaufman on
October 22, 2012, and Defendant Gonzalez failed to intervene and prevent the assault.
Mr. Gosselin also contends in claim one that Defendants Doe, Allen, Larimore,
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Montoya, and Richardson subjected him to cruel and unusual punishment and
committed assault and battery because they failed to investigate, discipline, charge, or
take other action against Defendants Kaufman and Gonzalez. Mr. Gosselin does not
assert specific facts in support of claim one that demonstrate any Defendant other than
Defendants Kaufman and Gonzalez personally participated in the alleged assault or
otherwise violated his Eighth Amendment rights. In order to state an arguable Eighth
Amendment claim Mr. Gosselin must allege facts that demonstrate 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). Deliberate indifference
means that “a prison official may be held liable . . . only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Id. at 847.
Mr. Gosselin contends in claim two that he was denied due process when he
was placed in segregation for reporting the assault and he specifically alleges that
Defendant Larimore ordered the move to segregation. Mr. Gosselin also asserts this
due process claim against Defendant Allen, but he does not allege any facts that
demonstrate Defendant Allen personally participated in the decision to place him in
segregation.
Mr. Gosselin also contends in claim two that Defendants Doe and Allen violated
his right to due process and committed the tort of witness tampering because two
inmate witnesses who were willing to provide information favorable to Mr. Gosselin
regarding the assault were transferred to another prison. Mr. Gosselin does not allege
specific facts that link Defendants Doe and Allen to the transfers of the inmate
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witnesses and he fails to allege facts that demonstrate his constitutional rights were
violated by the transfer of the inmate witnesses.
Mr. Gosselin finally contends in claim three that he was denied adequate medical
treatment by Defendant Philips for the injuries he suffered when he was assaulted. Mr.
Gosselin does not provide specific factual allegations regarding when he was denied
medical treatment by Defendant Philips.
Vague and conclusory allegations that his federal constitutional rights have been
violated do not entitle a pro se pleader to a day in court regardless of how liberally the
court construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D.
Colo. 1991), aff’d, 961 F.2d 916 (10 th Cir. 1992). Furthermore, 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). Thus, “in analyzing the sufficiency of the plaintiff’s complaint, the court
need accept as true only the plaintiff’s well-pleaded factual contentions, not his
conclusory allegations.” Hall, 935 F.2d at 1110.
Mr. Gosselin must identify the specific 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
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violated”); see also Henry v. Storey, 658 F.3d 1235, 1241 (10 th Cir. 2011) (allegations of
“personal participation in the specific constitutional violation complained of [are]
essential”). Mr. Gosselin is advised that § 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). A defendant may not be held
liable for the unconstitutional conduct of his subordinates on a theory of respondeat
superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Although a defendant can
be liable in a § 1983 action based on his supervisory responsibilities, a claim of
supervisory liability must be supported by allegations that demonstrate personal
involvement, a causal connection to the constitutional violation, and a culpable state of
mind. See Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767-69 (10 th
Cir. 2013) (discussing standards for supervisory liability).
Finally, it is apparent on the face of the Prisoner Complaint, as Mr. Gosselin
recognizes (see ECF No. 1 at 6 & 13), that most of his claims accrued more than two
years before this action was filed. The one possible exception is the medical treatment
claim against Defendant Philips to the extent the claim may involve a denial of
adequate medical treatment within the last two years. The court will not address the
obvious statute of limitations issue at this time because Mr. Gosselin has not yet
provided a clear and concise statement of the claims he is asserting. However, the
court may raise the affirmative defense of the statute of limitations sua sponte in a
future order. Accordingly, it is
ORDERED that Mr. Gosselin file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
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FURTHER ORDERED that Mr. Gosselin 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. Gosselin fails to file an amended complaint
that complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED March 17, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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