Selectman v. Hickenlooper

Filing 3

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND FILE AMENDED COMPLAINT THAT COMPLIES WITH RULE 8 by Magistrate Judge Gordon P. Gallagher on 6/18/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-1194-GPG
(The above civil action number must appear on all future papers
sent to the Court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
CHRISTOPHER SELECTMAN,
Plaintiff,
v.
JOHN HICKENLOOPER, in his Official Capacity as Governor of the State of Colorado,
RICK RAEMISCH, in his Official Capacity as Executive Director of Colorado
Department of Corrections,
ALISON MORGAN, in her Official Capacity as Deputy Director and Acting Chair of the
Colorado Parole Board, and
JOHN AND JANE DOES 1 TO 20, individually and in their Official Capacity as agents of
Colorado General Assembly
Defendants.

ORDER DIRECTING PLAINTIFF TO CURE DEFICIENCIES AND
FILE AMENDED COMPLAINT THAT COMPLIES WITH RULE 8

Plaintiff, Christopher Selectman, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Sterling
Correctional Facility in Sterling, Colorado. Mr. Selectman initiated this action by filing
pro se a Prisoner Complaint (ECF No. 1) asserting a deprivation of his constitutional
rights pursuant to 42 U.S.C. § 1983. He paid the f iling fee in full.
According to Plaintiff, he is serving a mandatory adult sentence of life
imprisonment without the possibility of parole for a crime he committed in 1994, when
he was sixteen years old. (Id. at 2, 5). He claims that the continued denial of allowing
him a meaningful opportunity for release violates his rights under the Eighth and
Fourteenth Amendments and Customary International Law. (Id. at 8-9). He asks for

declaratory and injunctive relief, as well as attorney fees and costs and any further relief
the court deems just and proper. (Id. at 9-10).
As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b)(3), the Court
has determined that the document is deficient as described in this order. Plaintiff will be
directed to cure the following if he wishes to pursue his claims. Any papers that Plaintiff
files in response to this order must include the civil action number noted above in the
caption of this order.
28 U.S.C. § 1915 Motion and Affidavit:
(1)
is not submitted
(2)
is missing affidavit
(3)
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
(4)
is missing certificate showing current balance in prison account
(5)
is missing required financial information
(6)
is missing an original signature by the prisoner
(7)
is not on proper form
(8)
names in caption do not match names in caption of complaint, petition or
habeas application
(9)
An original and a copy have not been received by the Court.
Only an original has been received.
(10)
other:
Complaint, Petition or Application:
(11)
is not submitted
(12)
X
is not on proper form (must use the Court’s current form)
(13)
is missing an original signature by the prisoner
(14)
is missing page no.
(15)
uses et al. instead of listing all parties in caption
(16)
An original and a copy have not been received by the Court. Only an
original has been received.
(17)
Sufficient copies to serve each defendant/respondent have not been
received by the Court.
(18)
names in caption do not match names in text
(19)
other:
The Prisoner Complaint is not on the Court-approved Prisoner Complaint form.
Local Civil Rules 1.2 and 5.1(c) for this Court require pro se litigants to use the Courtapproved forms found on the Court’s website. The United States Court of Appeals for
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the Tenth Circuit repeatedly has upheld the requirement that pro se litigants comply
with local court rules requiring use of proper Court-approved forms, and rejected
constitutional challenges to such rules. See Georgacarakos v. Watts, 368 F. App'x 917,
918-19 (10th Cir. 2010) (district court did not abuse its discretion in dism issing civil
rights action without prejudice for federal prisoner's noncompliance with local rules
requiring use of proper court-approved form to file complaint and district court's order to
comply), Durham v. Lappin, 346 F. App'x 330, 332-33 (10th Cir. 2009) (it was within
district court's discretion to dismiss prisoner's complaint for failure to comply with local
rules requiring pro se litigants to use court-approved forms, and local rule did not violate
prisoner's equal protection rights).
Mr. Selectman’s Prisoner Complaint also fails to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. He will, therefore, be
directed to file an amended Prisoner Complaint.
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). T he 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
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“[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.
In order 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). T he complaint must
clearly state what each individual defendant did to violate Plaintiff's civil rights. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating personal
participation of each named defendant is essential allegation in civil rights action).
Plaintiff cannot name an entity or individual as a defendant based solely on supervisory
position. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability under § 1983).
[W]hen 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
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.

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Furthermore, Mr. Selectman may use fictitious names, such as “John or Jane
Doe,” if he does know the real names of the individuals who allegedly violated his
rights. However, if Mr. Selectman uses fictitious names he must provide sufficient
information about each defendant so that he or can she be identif ied for purposes of
service.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s
sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir.
1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). Mr. Selectman
will be given an opportunity to cure the deficiencies in the Prisoner Complaint by
submitting an amended Prisoner Complaint, on the current court-approved form, that
states claims clearly and concisely in compliance with Fed. R. Civ. P. 8, and alleges
specific facts that demonstrate how each named defendant personally participated in
the asserted constitutional violations.
Accordingly, it is
ORDERED that Mr. Selectman cure the deficiencies designated above and file
an amended Prisoner Complaint on the current court-approved form, that complies with
Rule 8 of the Federal Rules of Civil Procedure, and alleges specific facts in support of
his claims and demonstrates how each named Defendant personally participated in the
asserted constitutional violation, within thirty (30) days from the date of this order.
Any papers that Plaintiff files in response to this order must include the civil action
number on this order. It is
FURTHER ORDERED that Plaintiff shall obtain (with the assistance of his case
manager or the facility’s legal assistant) the Court-approved form for filing a Prisoner

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Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use that form in curing the designated deficiencies and filing an amended Prisoner
Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies or
file an amended Prisoner Complaint as directed within thirty days from the date of
this order, the Prisoner Complaint and action may be dismissed without further notice.
DATED June 18, 2015, at Denver, Colorado.

BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge

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