Julien v. Raemisch et al

Filing 8

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 9/22/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01835-GPG
DYWAND DAYTRON JULIEN,
Plaintiff,
v.
RICK RAEMISCH,
BRANDON SCHAFFER,
MARY CARLSON,
ANGELA BRUBAKER,
JASON LENGERICK,
ALISON MORGAN,
RAUL MAZE,
DANIEL BARONI,
SIMON DENWALT, and
R.E. HAZEN,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

On August 24, 2015, Plaintiff Dywand Daytron Julien filed a Prisoner Complaint
and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915. On September 2, 2015, Plaintiff was 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 (10 th 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 (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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10 th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all
that is permissible, if the complaint concisely states facts upon which relief can be
granted upon any legally sustainable basis.” Id. It is Mr. Julien’s responsibility to
present his claims in a manageable and readable format that allows the Court and
Defendants to know what claims are being asserted and to be able to respond to those
claims. Mr. Julien must allege, simply and concisely, his specific claims for relief,
including the specific rights that allegedly have been violated and the specific acts of
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each defendant that allegedly violated his rights. The Court does not require a long,
chronological recitation of facts. Nor should the Court or Defendants be required to sift
through Mr. Julien’s vague and conclusory allegations to determine the heart of each
claim. 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 (10 th Cir. 2005).
In order to state a claim in federal court, Mr. Julien “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
violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 th Cir.
2007).
In addition, Mr. Julien appears to be suing the individual Defendants in their
official capacities. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that claims
asserted against government officials in their official capacities are construed against
the governmental entity). The State and its agencies are entitled to Eleventh
Amendment immunity, absent a waiver. See generally Meade v. Grubbs, 841 F.2d
1512, 1525 (10 th Cir. 1988) (the immunity conferred by the Eleventh Amendment
extends to the state and its instrumentalities); Steadfast Ins. Co. v. Agricultural Ins. Co.,
507 F.3d 1250, 1256 (10 th Cir. 2007) (recognizing that agency of the state is entitled to
Eleventh Amendment immunity). Congress did not abrogate Eleventh Amendment
immunity through § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor has the
Colorado Department of Corrections expressly waived its sovereign immunity. See
Griess v. Colorado, 841 F.2d 1042, 1044-45 (10 th Cir.1988). The Eleventh Amendment
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prohibits suit against a state entity, regardless of the relief sought. See Higganbotham
v. Okla. Transp. Com'n, 328 F.3d 638, 644 (10 th Cir. 2003); see also Hunt v. Colorado
Dep’t of Corrections, No. 07-1400, 271 F. App’x 778, 780-81 (10 th Cir. March 28, 2008)
(unpublished). Accordingly, Mr. Julien cannot obtain a judgment for damages against
the individual Defendants, sued in their official capacities.
The Complaint further is deficient because Mr. Julien fails to allege facts to show
that each named Defendant was personally involved in the alleged deprivation of his
constitutional rights. Personal participation is an essential element in a civil rights
action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10 th Cir. 1976); 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 Gallagher v. Shelton, 587 F.3d 1063, 1069 (10 th Cir.2009)
(citations and quotations omitted); Dodds v. Richardson, 614 F.3d 1185, 1200-1201
(10th Cir. 2010). A supervisor can only be held liable for his own deliberate intentional
acts. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep’t of
Corrections, 455 F.3d 1146, 1151 (10 th Cir. 2006) (“Supervisors are only liable under
§ 1983 for their own culpable involvement in the violation of a person's constitutional
rights.”); see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10 th Cir. 2008) (“[Section]
1983 does not recognize a concept of strict supervisor liability; the defendant’s role
must be more than one of abstract authority over individuals who actually committed a
constitutional violation.”). 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)
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caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Id. at 1199.
Plaintiff’s allegations are not sufficient to demonstrate that the Defendants were
personally involved in the alleged deprivation of his rights. Instead, Plaintiff seeks to
hold these individuals liable based on their supervisory status, which is improper under
§ 1983. Plaintiff’s conclusory allegations without supporting factual averments as to an
alleged “custom and policy” are insufficient. See Hall, 935 F.2d at 1110. Moreover, it is
well-established that parole board members are absolutely immune “from damages
liability for actions taken in performance of [their] official duties regarding the granting or
denying of parole.” Russ v. Uppah, 972 F.2d 300, 303 (10 th Cir. 1992) (quoting Knoll v.
Webster, 838 F.2d 450, 451 (10 th Cir. 1988)).
And, to state an arguable due process claim, Mr. Julien must allege facts to
show that he was deprived of a constitutionally-protected liberty interest. See
Chambers v. Colorado Dep't of Corr., 205 F.3d 1237, 1242 (10 th Cir. 2000); Gwinn v.
Awmiller, 354 F.3d 1211, 1217-24 (10 th Cir. 2004). The interests protected by the Due
Process Clause are those found within the United States Constitution, or those created
by federal or state law. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). There is no
legitimate claim unless the claim arises from one of those sources. Kentucky
Department of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates
of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Thus, as a matter
of pure constitutional law, Mr. Julien has no liberty interest in release on parole. Id.
Moreover, there is no constitutional right to parole created by Colorado law. Shirley v.
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Chestnut, 603 F.2d 805 (10 th Cir. 1979); Mahn v. Gunter, 978 F.2d 599, 602 (10 th Cir.
1992) (“[s]ubjecting [Colorado] petitioner to discretionary parole does not violate his
right to due process”). Moreover, Mr. Julien has no right to placement in a
community corrections facility under federal or state law. People v. Wilhite, 817 P.2d
1017, 1021(Colo. 1991), cert. denied, Wilhite v. Colorado, 502 U.S. 1103 (1991).
Finally, under Colorado statute, “earned time . . . may be deducted from the inmate's
sentence upon a demonstration . . . that he has made substantial and consistent
progress in [a number of categories].” § 17.22.5-302(1); see also § 17-22.5-405(1)
(stating that “earned time . . . may be deducted from the inmate’s sentence. . .”). For
inmates sentenced for crimes committed on or after July 1, 1985, the CDOC has
discretion to “withhold” or “withdraw” any “earned time deduction[s].” § 17.22.5-302(4),
C.R.S. Mr. Julien alleges that he was sentenced for crimes committed in 1995, 2010,
and 2014. (ECF No. 1, at 6). Accordingly, under state statute, the award of earnedtime credits to Mr. Julien is within the discretion of prison officials and, therefore, he
does not have a constitutionally protected liberty interest in earned-time credits. See
Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006).
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). The Court
finds that the Complaint does not meet the requirements of Fed. R. Civ. P. 8. Mr. Julien
will be given an opportunity to cure the deficiencies by submitting an amended
Complaint that states defendants and 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. The Court
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will not consider any claims raised in separate attachments, amendments,
supplements, motions, or other documents not included in the amended Complaint.
Accordingly, it is
ORDERED that Plaintiff file within thirty (30) days from the date of this order,
an Amended Complaint that complies with the directives in this order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Complaint
form along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to file an amended complaint within
the time allowed, the Court will dismiss all or part of this action without further notice.
DATED September 22, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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