Fresquez v. Webber et al

Filing 5

ORDER to Amend. ORDERED that within thirty days from the date of this Order, Plaintiff shall file an Amended Complaint that complies with this Order, by Magistrate Judge Gordon P. Gallagher on 10/30/2015. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02384-GPG
LEROY D. FRESQUEZ,
Plaintiff,
v.
JIM WEBBER,
PAUL HAULENBECK,
DAVID SHUBARTH,
JAMES FALK,
MICHELLE WINGERT,
KENNETH WILDERSTEIN,
J. ZWIRN,
MR. MISCHINRA,
MR. GREENSLADE,
RONALD GILES,
JESSICA DARCEY,
RAYMOND COLE,
STEVEN BADE,
ROBERT DICK,
TOMMY MERTENS,
MR. HOLLIS,
MR. CUSTER,
MR. CURRY,
CHRISTOPHER BARBER, and
KATHLEEN RHOADES,
Defendants.

ORDER TO AMEND

Plaintiff Leroy D. Fresquez currently is detained at the Jefferson County Detention
Facility in Golden, Colorado. On October 27, 2015, Plaintiff filed a Prisoner Complaint
and a Prisoner=s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915.
Plaintiff has been granted leave to proceed pursuant to ' 1915.
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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 (10th 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 (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. See Schupper v. Edie, 193
F. App=x 744, 745-46 (10th Cir. 2006) (upheld the dismissal of a thirty-eight page

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complaint, containing 292 paragraphs, plus 120 pages of exhibits as unnecessarily
prolix).
Plaintiff fails to provide a short and plain statement of his claims showing that he is
entitled to relief. In particular, the Complaint is forty pages long, which does not comply
with the Information and Instruction for Filing a Prisoner Complaint that requires the
complaint and all additional pages must not exceed thirty pages. See
www.cod.uscourts.gov/CourtOperations/RulesPocedures/Forms.aspx. Furthermore,
Plaintiff names twenty-one defendants, and refers to other individuals, not named as
defendants, as responsible parties in the body of the Complaint. The Complaint is
repetitive, prolix, and set forth in a chronological statement of events rather than in a short
and concise statement that sets forth the facts in support of the claims against named
Defendants.
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).

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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
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.

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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@).
Furthermore, pursuant to Rule 18(a) of the Federal Rules of Civil Procedure, A[a]
party asserting a claim . . . may join, as independent or alternative claims, as many claims
as it has against an opposing party.@ However, the issue of whether multiple defendants
may be joined in a single action is governed by Rule 20(a)(2) of the Federal Rules of Civil
Procedure, which provides:
(2) Defendants. Persons . . . may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a).
Plaintiff has identified multiple issues throughout the Complaint. The issues
involve the alleged actions of various defendants. To the extent that Plaintiff may intend
to join separate and unrelated issues against multiple defendants based on a conclusory
statement of retaliation he is precluded from doing so. See Gillon v. Fed. Bureau of
Prisons, et al., 424 F. App=x 722, 725-26 (10th Cir. 2011) (finding that plaintiff could not
join separate and unrelated claims arising out of different incidents based on an
Aoverarching@ allegation of retaliation).

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AMisjoinder of parties is not a ground for dismissing an action.@ Fed. R. Civ. P. 21.
Instead, A >[t]o remedy misjoinder, . . . the court has two remedial options: (1) misjoined
parties may be dropped on such terms as are just; or (2) any claims against misjoined
parties may be severed and proceeded with separately.= @ Nasious v. City and County of
Denver, 415 F. App=x 877, 881 (10th Cir. 2011) (quoting DirecTV, Inc., v. Leto, 467 F.3d
842, 845 (3d Cir. 2006)). The Court, nonetheless, will refrain from dropping or severing
parties at this time because Plaintiff must submit an Amended Complaint that complies
with the joinder requirements of the Federal Rules of Civil Procedure.
Also, Plaintiff must plead he actually was impeded in his ability to conduct a
particular case to state a violation of his right to access the courts. See Casey v. Lewis,
518 U.S. 343 (1996). The right of access to the courts extends only as far as protecting
an inmate=s ability to prepare initial pleadings in a civil rights action regarding his current
confinement or in an application for a writ of habeas corpus. See Wolff v. McDonnell,
418 U.S. 539, 576 (1974); Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995). An
inmate must satisfy the standing requirement of Aactual injury@ by showing that the denial
of legal resources hindered his efforts to pursue a nonfrivolous claim. Casey, 518 U.S.
at 349-353.
In Casey, the Supreme Court cites two examples of when an inmate=s efforts to
pursue a legal claim may be hindered. First, an inmate=s efforts may be hindered when a
complaint prepared by an inmate is dismissed for failure to satisfy a technical requirement
due to deficiencies in a prison=s legal assistance facilities. Casey, 518 U.S. at 351.
Another example of hindering an inmate=s efforts would be when an inmate is
so stymied by inadequacies of the law library that he is unable to file a complaint. Id.
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Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall file
an Amended Complaint 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 action will be dismissed without
further notice.
DATED October 30, 2015, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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