Barnett v. Fort Hays University

Filing 5

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 6/1/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01123-GPG
BRIAN DALE BARNETT,
Plaintiff,
v.
FORT HAYS UNIVERSITY,
Defendant.

ORDER TO AMEND

On May 29, 2015, Plaintiff Brian Dale Barnett filed a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintif f has been granted
leave to proceed pursuant to § 1915.
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. Plaintiff will be
directed to file an Amended Complaint for the reasons stated below.
First, 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.”
First, Plaintiff fails to name a defendant that is not immune from suit. The
Eleventh Amendment provides: “[t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. Though Kansas has generally authorized suits
against any state educational institution brought in state court, K.S.A. § 76–713,
Kansas has not expressly consented to suit in federal court and this Court cannot imply
a waiver of Eleventh Amendment immunity into the statute. Brennan v. University of
Kan., 451 F.2d 1287, 1289 (10th Cir. 1971).
In order to invoke his equal protection claims against the Fort Hays University
(the court assumes the Fort Hays University is a state university)and assert an
exception to the Eleventh Amendment's bar to federal court jurisdiction, Plaintiff must
show that Congress, in clear and unmistakable terms, intended to abrogate a State's
Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983. Seminole Tribe of
Florida v. Florida, et al., 517 U.S. 44, 55 (1996); ANR Pipeline Co. V. Lafaver, 150 F.3d
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1178, 1188 (10th Cir. 1998), overruled on other grounds by Hill v. Kemp, 478 F.3d
1236, 1259 (10th Cir. 2007). The Supreme Court has previously held that Congress did
not abrogate the States' Eleventh Amendment immunity when it enacted 42 U.S.C.
§ 1983. Quern v. Jordan, 440 U.S. 332, 345 (1979). Thus, because Kansas has not
unmistakably waived its Eleventh Amendment immunity, and Congress has not
abrogated that immunity, the Eleventh Amendment bars Plaintiff’s suit against Fort
Hays University because it appears it is the Fort Hays State University and is an arm of
the State of Kansas. K.S. 76–711; Brennan, 451 F.2d at 1287.
If, however, Fort Hays University is not an arm of the State of Kansas, claims
against the university suffer from other deficiencies. "Section 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). "The
purpose of § 1983 is to deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and to provide relief to victims if
such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161 (1992). "[T]he
under-color-of-state-law element of § 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted). Therefore, the only
proper defendants in a § 1983 action are those who " ‘represent [the State] in some
capacity, whether they act in accordance with their authority or misuse it.’ " NCAA v.
Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172
(1961)).

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Second, even though Plaintiff does not name “John Doe-Criminal Justice
Professor” or “President of University John Does(s)” as parties to this action, Plaintiff
appears to assert that these individuals are responsible for violating his civil rights. 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). Plaintif f 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). T o 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
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
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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, Plaintiff may use fictitious names, such as John or Jane Doe, if he does
not know the real names of the individuals who allegedly violated his rights. Plaintiff,
however, must provide sufficient information about each defendant so that they can be
identified for the purpose of service. Accordingly, 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 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 June 1, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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