Houck v. No Named Defendants

Filing 30

ORDER TO FILE SECOND AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 7/9/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00894-GPG
KENNETH HOUCK,
Plaintiff,
v.
DEBORAH DENHAM,
DR. THOMAS KRAUS,
EVA MALANOWSKI, and
KRISTEN KRUEGER (Formerly Long),
Defendants.

ORDER TO FILE SECOND AMENDED COMPLAINT

Plaintiff Kenneth Houck is in the custody of the Federal Bureau of Prisons and
currently is incarcerated at FCI Englewood in Littleton, Colorado. Plaintiff submitted a
Letter to the Court and stated that he intends to f ile a claim in this Court but needs
assistance of counsel. Based on the Letter, the Court initiated this action and directed
Plaintiff to cure certain deficiencies if he intended to proceed with an action at this time.
Specifically, Plaintiff was directed to submit his claims on a Court-approved form used
in filing prisoner complaints and to submit a request to proceed pursuant to 28 U.S.C.
§ 1915, or in the alternative to pay the $400 filing fee in full.
After filing multiple letters that include requests and additional claims, Plaintiff
submitted a request to proceed pursuant to 42 U.S.C. § 1915 and a Prisoner Com plaint
on proper Court-approved forms. The Court granted Plaintiff leave to proceed pursuant
to § 1915 on June 2, 2015. The Court also on June 2 directed Plaintiff to file an
Amended Complaint that states personal participation by each named defendant in
violating his constitutional rights. Plaintiff also was instructed that a defendant may not

be held liable for unconstitutional conduct of his or her subordinates on a theory or
respondeat superior or on the basis that a prison of ficial or administrator denied
Plaintiff’s grievances. In the Order to Amend, Plaintiff was directed that the only proper
filing at this time is an Amended Complaint. See June 2, 2015 Ord., ECF NO. 19, at 3.
Plaintiff has disregarded the Court’s directive in the June 2, 2015 Order to file
only an Amended Complaint. He has filed eight letters both before and after he
submitted the Amended Complaint. See ECF Nos. 21, 22, 23, 24, 26, 27, 28, and 29.
The letters assert additional claims, provide unnecessary statements about his filings
with the Court, and state requests for various actions by the Court that either are
premature or unneeded.
To the extent Plaintiff is attempting to amend his Complaint by filing letters, "[a]n
amended complaint ‘supersedes the pleading it modifies and remains in effect
throughout the action unless it subsequently is modified.’ " See Hooten v. Ikard Servi
Gas, No. 12-2179, 2013 WL 1846840 at *4 (10th Cir. May 3, 2013) (quoting Giles v.
United States, 906 F.2d 1386, 1389 (10th Cir. 1990)). If Plaintiff desires to include
additional claims he must file an amended complaint on a Court-approved form that
includes all the claims he intends to raise. The Court, therefore, will afford Plaintiff one
final opportunity to submit a Second Amended Complaint on a Court-approved form
that states all the claims he intends to raise.
Plaintiff is reminded that to state a claim in federal court he 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). Plaintif f also is
required to assert personal participation by each named defendant in the alleged
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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).
Also, 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 official by virtue of his 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 § 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.
Furthermore, Plaintiff cannot maintain claims against prison officials or
administrators on the basis that they denied his grievances. The "denial of a grievance,
by itself without any connection to the violation of constitutional rights alleged by
plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton,
587 F.3d 1063, 1069 (10th Cir. 2009); see also Whitington v. Ortiz, 307 F. App'x 179,
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193 (10th Cir. Jan. 13, 2009) (stating that "the denial of the grievances alone is
insufficient to establish personal participation in the alleged constitutional violations.")
(internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, 99 F.
App'x 838, 843 (10th Cir. 2004) (sending "correspondence [to high-ranking prison
official] outlining [a] complaint . . . without more, does not sufficiently implicate the
[supervisory official] under § 1983").
Also, Rule 8(a) of the Federal Rules of Civil Procedure 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. The Court has reviewed Plaintiff’s
Amended Complaint and finds that his claims are not stated in a short and concise
manner.
Finally, any request for appointment of counsel that Plaintiff has referred to in
any of the eight letters he has submitted to the Court is premature. Plaintiff has
demonstrated his ability to assert viable claims. Accordingly, it is
ORDERED that Plaintiff shall have thirty days from the date of this Order to
file a Second Amended Complaint as directed above. 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 Second Amended Complaint. It is

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FURTHER ORDERED that if Plaintiff fails to comply within the time allowed the
Court will address only the claims presented to the Court in the Amended Complaint
filed on June 22, 2015. It is
FURTHER ORDERED that the only proper filing at this time is a Second
Amended Complaint. Any other filings submitted by Plaintiff may be stricken by the
Court.
DATED July 9, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
_________________________
United States Magistrate Judge

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