McNeal v. Elder et al

Filing 8

ORDER DIRECTING PLANTIFF TO FILE A SECOND AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/1/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02073-GPG
PHINEHAS MCNEAL,
Plaintiff,
v.
BILL ELDER, Sheriff;
W. FELDER, Deputy Sheriff;
EL PASO COUNTY COLORADO;
EL PASO BOARD OF COUNTY COMMISSIONERS;
TERRY MAKETA, Sheriff; and any and all deputy sheriffs (names unknown) described
herein, both officially and individually; medical staff (names unknown);
EL PASON COUNTY JAIL COMMANDERS, officially and individually; and any and all
county therapy staff and operational supervisors (names unknown) personally/
individually,
Defendants.

ORDER DIRECTING PLANTIFF TO FILE A SECOND AMENDED COMPLAINT

Plaintiff Phinehas McNeal is a federal prisoner currently in custody in the
Englewood Federal Correctional Institution in Littleton, Colorado. On September 21,
2015, he filed a prisoner complaint (ECF No. 1) against several entities and individuals
at the El Paso County Jail. The Court has granted leave to proceed pursuant to 28
U.S.C. § 1915. As part of the court’s review pursuant to D.C.COLO.LCivR 8.1(b), the
court determined that the complaint was deficient and ordered Plaintiff to file an
amended complaint (ECF No. 6). Plaintiff filed an amended complaint on October 20,
2015 (ECF No. 7).

The Court must construe the complaint liberally because Plaintiff 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. As part of the court’s review
pursuant to D.C.COLO.LCivR 8.1(b), the court has determined that the operative
complaint is deficient. For the reasons stated below, Plaintiff will be directed to file an
amended complaint.
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 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). 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.” 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.
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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 (10th 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.
The Court has reviewed the Complaint and finds that Plaintiff fails to provide a
short and plain statement of his claims in compliance with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure. Plaintiff fails to provide a short and plain
statement of his claims showing he is entitled to relief because he fails to provide
specific factual allegations in support of each his claims. Plaintiff alleges that
Defendants used excessive force but he does not allege when these incidents occurred
and he fails to provide any factual allegations describing the events that led to these
incidents or what injuries he suffered as a result of the incidents.
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,
however, will give Plaintiff an opportunity to cure the deficiencies in the Complaint by
submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
Plaintiff is required to assert personal participation by properly named defendants
in the alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir. 1976). To establish personal participation, Plaintiff must show in the Cause of
Action section of the complaint form how each named individual caused the deprivation
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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).
Furthermore, 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 AS TO EACH AND EVERY CLAIM.
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 defendant did it; how the defendant’s action harmed him or her;
and, what specific legal right the plaintiff believes the defendant violated"). Accordingly,
in the Amended Complaint, Plaintiff must allege specific facts to show how each named
Defendant personally participated in an alleged deprivation of his constitutional rights.
A defendant also 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 against a government official for conduct that
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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. Therefore, Mr. McNeal should name as
Defendants only those persons he contends actually violated his federal rights while
acting under color of law.
Mr. McNeal also fails to allege facts that would support an arguable Eighth
Amendment claim against Defendants in their official capacities. Official capacity suits
“generally represent only another way of pleading an action against an entity of which
an officer is an agent.” Monell v. Department of Social Services, 436 U.S. 658, 690
n.55 (1978). Therefore, Mr. McNeal’s claim against Defendants in their official
capacities must be construed as a claim against El Paso County. However, Plaintiff
cannot state a cognizable claim for relief against the County unless he demonstrates he
suffered an injury caused by a municipal policy or custom. See Schneider v. City of
Grand Junction Police Dept., 717 F.3d 760, 769-71 (10th Cir. 2013) (discussing
Supreme Court standards for municipal liability); Dodds v. Richardson, 614 F.3d 1185,
1202 (10th Cir. 2010).
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). Therefore, Plaintiff must file an amended
complaint if he wishes to pursue his claim in this action. Accordingly, it is
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ORDERED that within thirty days from the date of this Order, Plaintiff shall
file a second amended complaint that complies with 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, to be used in
filing the amended complaint. As part of the Second Amended Complaint, Plaintiff is
ORDERED to attach copies of all prison grievances and responses thereto that he has
filed and received regarding the matters complained of in the Second Amended
Complaint. It is
FURTHER ORDERED that if Plaintiff fails to comply with this Order within the
time allowed the Court will dismiss the action without further notice.
DATED December 1, 2015, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge

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