Kershaw v. Jones et al

Filing 18

ORDER DIRECTING PLAINTIFF TO FILE 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-2110-GPG
VITO JOSEPH KERSHAW, Inmate No. 7187921029,
Plaintiff,
v.
DOCTOR DAVID JONES;
CORRECT CARE SOLUTIONS LLC; and
ARAPAHOE COUNTY,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Vito Joseph Kershaw, is a prisoner in the custody of the Arapahoe
County Detention Facility in Centennial, Colorado. Mr. Kershaw initiated this action by
filing a complaint claiming that he has been denied adequate medical care. 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. 5).
Plaintiff filed an amended complaint on October 13, 2015 (ECF No. 6).
The court must construe the amended complaint liberally because Mr. Kershaw
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. Mr. Kershaw will be
ordered to file a second amended complaint if he wishes to pursue his claims in this
action.
As part of the court’s review pursuant to D.C.COLO.LCivR 8.1(b), the court has

determined that the complaint is deficient. 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).
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.” 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. Kershaw asserts jurisdiction pursuant to 42 U.S.C. § 1983, which “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).
Construing the complaint liberally, it appears that Mr. Kershaw is asserting a
constitutional claim pursuant to both the Eighth and Fourteenth Amendments alleging
he has been denied adequate medical treatment in that he has been denied his
prescribed pain medication and that he has been denied a hip replacement. In support
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of his claims, he has attached various documents and has further submitted a letter to
the court with various attachments (ECF No. 17). In these documents he asserts that
he has been approved to see an orthopedic specialist and has indeed received his
appointment. He claims the specialist recommended that he receive a hip replacement.
It is not the Court’s duty to sift through various attachments and documents to
determine whether a plaintiff has stated a claim. In order to state an arguable medical
treatment claim Mr. Kershaw must allege specific facts that demonstrate deliberate
indifference to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-06
(1976). Deliberate indifference 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 v. Brennan, 511 U.S. 825,
847 (1994).
In summary, Mr. Kershaw must identify the specific claims he is asserting,
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
defendant did it; how the defendant’s action harmed him or her; and, what
specific legal right the plaintiff believes the defendant violated”) (emphasis added).
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
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& Janer, 425 F.3d 836, 840 (10th Cir. 2005). Finally, “[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.” New Home Appliance Ctr., Inc., v. Thompson, 250
F.2d 881, 883 (10th Cir. 1957).
To the extent Mr. Kershaw asserts a constitutional claim against an individual, he
must allege specific facts that demonstrate how that individual personally participated in
the asserted constitutional violation. See Henry v. Storey, 658 F.3d 1235, 1241 (10th
Cir. 2011) (allegations of “personal participation in the specific constitutional violation
complained of [are] essential”). Furthermore, 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). Although a defendant can be liable in
a § 1983 action based on his or her 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).
To the extent Mr. Kershaw asserts a constitutional claim against Correct Care
Solutions and/or Arapahoe County, he must allege specific facts that demonstrate he
suffered an injury caused by an official policy or custom. See Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1216 (10th Cir. 2003) (holding that traditional municipal liability principles
apply to claims brought pursuant to 42 U.S.C. § 1983 against private corporations);
Smedley v. Corrections Corp. of America, 175 F. App’x 943, 946 (10th Cir. 2005) (“in
order to hold CCA liable for the alleged tortious acts of its agents, [Plaintiff] must show
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that CCA directly caused the constitutional violation by instituting an official policy of
some nature that was the direct cause or moving force behind the constitutional
violations”) (internal citation and quotation marks omitted).
Finally, because Mr. Kershaw must clarify the claims he is asserting, he will be
directed to file a second amended complaint on the complaint form approved for use by
prisoners in the District of Colorado. Mr. Kershaw must specifically identify all parties
he seeks to pursue relief against and include their addresses as directed on the form.
Pursuant to Rule 5.1(c) of the Local Rules of Practice of the United States District Court
for the District of Colorado – Civil, “[i]f not filed electronically, an unrepresented prisoner
or party shall use the procedures, forms, and instructions posted on the court’s
website.” Accordingly, it is
ORDERED that Mr. Kershaw 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. Kershaw 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. Kershaw fails to file a second amended
complaint that complies with this order within the time allowed, the claims that do not
comply with the pleading requirements of Rule 8 will be dismissed without further notice.
DATED December 1, 2015, at Denver, Colorado.
BY THE COURT:

/s Gordon P. Gallagher
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Gordon P. Gallagher
United States Magistrate Judge

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