Adams v. Jonsgaard et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/21/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-2469-GPG
STEPHEN H. ADAMS, Inmate No. 86319,
Plaintiff,
v.
GERALD JONSGAARD, Aurora Police Sgt., in his official and personal capacities;
BENJAMIN PETERING, Aurora Police Officer, in his official and personal
capacities;
JONATHAN MCCANTS, Aurora Police Officer, in his official and personal
capacities;
WILLIAM STRICKLAND, Aurora Police Officer, in his official and personal
capacities;
STEVE GARCIA, Aurora Police Officer, in his official and personal capacities; and
CITY OF AURORA;
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Stephen H. Adams, a pro se prisoner litigant, has submitted a Prisoner
Complaint and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915, which was granted by the Court on November 12, 2015 (ECF No. 4).
The Court must construe Plaintiff’s Complaint liberally because he is representing
himself. 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 the pro se litigant’s
advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be
directed to file an Amended Complaint.
The Complaint is deficient to the extent Plaintiff sues Defendants in their official
capacities. Suits against Defendants in their official capacities are suits against the City

of Aurora. Municipalities are not persons subject to suit under § 1983. See Stump v.
Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991) (citing Monell v. Dept. of Social
Services, 436 U.S. 658, 690 (1978)), aff'd, 986 F.2d 1429 (10th Cir. 1993).
Moreover, a local government entity such as the City of Aurora is not liable under
42 U.S.C. § 1983 solely because its employees inflict injury on a plaintiff. Monell v. New
York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood,
Kan., 997 F.2d 774, 782 (10th Cir. 1993). A plaintiff seeking to hold a city or county
government liable for injuries under § 1983 must show that a policy or custom exists
and that there is a direct causal link between the policy or custom and the injury alleged.
City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Myers v. Oklahoma County
Bd. of County Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir. 1998). Plaintiff cannot state
a claim for relief under § 1983 merely by pointing to isolated incidents. See Monell, 436
U.S. at 694.
In his second claim, Plaintiff alleges a violation of the Fourteenth Amendment,
which provides as follows.
Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of
the laws.
U.S. Const. Amend. XIV, § 1 (emphasis added).
The Due Process Clause was promulgated to secure the individual from the
arbitrary exercise of the powers of government. The standard of review for a
substantive due process challenge to executive branch action requires that the
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aggrieved person establish that the executive action shocks the court's conscience.
See, e.g., Benson v. Martin, 8 F. App’x 927, 930 (10th Cir. 2001) (explaining it is a
habeas petitioner's burden to establish that the challenged action shocks the
conscience). The Supreme Court has explained that conduct that is most likely to rise
to the conscience-shocking level is conduct intended to injure in some way unjustifiable
by any government interest. Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Plaintiff’s
allegations do not appear to rise to this level.
With respect to his first claim, a law enforcement officer can violate the Fourth
Amendment by using excessive force to carry out an arrest. Cavanaugh v. Woods
Cross City, 718 F.3d 1244, 1248 (10th Cir. 2013). When an arrestee alleges excessive
force, the court applies the objective reasonableness test announced in Graham v.
Conner, 490 U.S. 386, 388 (1989). Under this test, the court considers the totality of the
circumstances. Plumhoff v. Rickard, 143 S.Ct. 2013, 2020 (2014). To determine
whether the use of force was objectively reasonable under the circumstances, the court
weighs three factors: 1) the severity of the crime at issue; 2) the immediate threat that
the suspect posed to officers and others; and 3) any active resistance or attempt to flee
by the suspect. Graham, 490 U.S. at 396.
Finally, Plaintiff’s allegations fail to state a claim under the Eighth Amendment as
that Amendment applies only to convicted prisoners.
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
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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.
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.
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 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
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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.
In addition, the Court requests Plaintiff to write in a larger more legible manner so
that it may decipher his pleadings.
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 claims in this action. 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 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. It is
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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 21, 2015, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge

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