Magluta v. Federal Bureau of Prisons

Filing 3

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 10/7/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02203-GPG
SALVADOR MAGLUTA,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
CHARLES DANIELS,
TERESA NEHLS,
DAVID ALLRED,
LISA McDERMOTT,
F.N.U. SANTINI, and
JOHN DOES,
Defendants.
ORDER TO AMEND

On October 5, 2015, Plaintiff Salvador Magluta filed a Prisoner Complaint and paid
the $400 filing fee. Pursuant to 28 U.S.C. ' 1915A and to D.C.COLO.LCivR 8.1(b)(2)
and (3), this Court is required to review the pleadings of a prisoner, when he is
challenging prison conditions and seeking redress from a governmental entity, officer or
employee, to determine if the pleadings should be summarily dismissed. Plaintiff asserts
jurisdiction pursuant to 42 U.S.C. '' 1985 and 1986; 28 U.S.C. '' 1331 2201, and 2202;
and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 288
(1971). Pursuant to this Court=s initial review and the following findings, Plaintiff will be
directed to amend the Complaint.
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
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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 Amust 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
A[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 pleadings violate the requirements of Rule 8.
Plaintiff fails to provide a short and plain statement of his claims showing that he is
entitled to relief. Rather than provide a short and concise statement under the Cause of
Action section of the Complaint form that identifies a specific constitutional violation, the
nature of the violation, and how each responsible defendant participated in the violation,
Plaintiff has listed at least twelve pages of chronological events under Claim One. The
statement of events is repetitive and includes information that is unrelated to Plaintiff=s
alleged constitutional violations. Furthermore, in support of Claims Two through Four
Plaintiff refers to paragraph numbers that in part do not appear anywhere in the
Complaint; also, his assertions in these claims are conclusory and vague.
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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). Plaintiff 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). To 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 Aarising 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 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: A(1) the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the complained of

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constitutional harm, and (3) acted with the state of mind required to establish the alleged
constitutional deprivation.@ Id. at 1199.
Plaintiff also cannot maintain claims against prison officials or administrators on
the basis that they denied his grievances. The Adenial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by plaintiff, does not
establish personal participation under ' 1983.@ Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F. App=x. 179, 193
(10th Cir. Jan. 13, 2009) (unpublished) (stating that Athe denial of the grievances alone is
insufficient to establish personal participation in the alleged constitutional violations.@)
(internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, No.
02-1486, 99 F. App=x. 838, 843 (10th Cir. May 20, 2004) (unpublished) (sending
Acorrespondence [to high-ranking prison official] outlining [a] complaint . . . without more,
does not sufficiently implicate the [supervisory official] under ' 1983@).
Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall file
an Amended Complaint that is no more than thirty pages long and 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 dismiss the Complaint
without further notice.
DATED October 7, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
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United States Magistrate Judge

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