Phillips v. Institution of USP Florence et al

Filing 9

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 7/23/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01121-GPG
DARRELL PHILLIPS,
Plaintiff,
v.
INSTITUTION USP FLORENCE,
WARDEN COZZA-RHODES,
ASSISTANT WARDEN KLEIN,
CAPTAIN ERWIN, and
OFFICER WORKING EA,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Darrell Phillips, is a prisoner in the custody of the Federal Bureau of
Prisons at the United States Penitentiary Florence High in Florence, Colorado. Mr.
Phillips has filed pro se a Prisoner Complaint (ECF No. 7) pursuant to 28 U.S.C. § 1331
and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). He seeks monetary damages.
The court must construe the Prisoner Complaint liberally because Mr. Phillips 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
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
stated below, Mr. Phillips will be ordered to file an amended complaint.
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 (10th
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 (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 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. Phillips asserts three claims for relief in the Prisoner Complaint. He first
claims a violation of his Eighth Amendment rights because prison officials failed to
protect him from an assault by other inmates. In his second and third claims, Mr.
Phillips alleges that prison officials failed to prevent a crime and violated his
constitutional rights by failing to protect him from the assault. The court construes all
three claims as an Eighth Amendment deliberate indifference claim. Mr. Phillips,
however, fails to set forth a short and plain statement of his Eighth Amendment claim
showing he is entitled to relief because he does not specify against which Defendant or
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Defendants he is asserting his claim and he fails to allege specific facts that
demonstrate his constitutional rights have been violated. In order to state an arguable
Eighth Amendment claim, Mr. Phillips 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 (10th Cir. 2008). Deliberate indif ference
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.” Farmer, 511 U.S. at 847.
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 (10th 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. Phillips must identify 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 (10th 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
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defendant did it; how the defendant’s action harmed him or her; and, what specific legal
right the plaintiff believes the defendant violated”); see also Henry v. Storey, 658 F.3d
1235, 1241 (10th Cir. 2011) (allegations of “personal participation in the specific
constitutional violation complained of [are] essential”).
In addition, 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 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 (10th Cir. 2013) (discussing standards for supervisory liability).
Accordingly, it is
ORDERED that Mr. Phillips 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. Phillips 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. Phillips fails to file an amended complaint that
complies with this order within the time allowed, the action may be dismissed without
further notice.
DATED July 23, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
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United States Magistrate Judge

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