Dawkins v. Colorado Department of Corrections Inmate Banking

Filing 8

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/10/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02526-GPG
ALLEN M. DAWKINS,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS INMATE BANKING,
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Allen M. Dawkins, is a prisoner in the custody of the Colorado Department
of Corrections (“DOC”). Mr. Dawkins has filed pro se a Prisoner Complaint (ECF No. 5)
pursuant to 42 U.S.C. § 1983. The court must construe the Prisoner Complaint liberally
because Mr. Dawkins 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.
Dawkins will be ordered to file an amended complaint if he wishes to pursue his claim in
this action.
As part of the court’s review pursuant to D.C.COLO.LCivR 8.1(b), the court has
determined the Prisoner Complaint 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
pleading 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
“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. Dawkins complains that prison officials have been deducting funds from his
inmate account to pay restitution stemming from a 2010 prison disciplinary conviction
rather than using the funds to make child support payments on his behalf. Thus,
according to Mr. Dawkins, “[t]he Colorado Department of Corrections has been
embezzling 20% from [his] Inmate banking account each month for their own personal
gain.” (ECF No. 5 at 3.) As relief Mr. Dawkins asks that Defendant be ordered “to back
pay Mr. Allen M. Dawkins[’] child support case #031799279920 from November 2007 to
the present day” and to pay court costs and he asks to be “placed in compliance with the
Division of Child Support Services and the Colorado Department of Revenue Division of
Motor [V]ehicle.” (Id. at 4.)

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Mr. Dawkins fails to provide a short and plain statement of his claim showing he is
entitled to relief because he fails to identify the federal right allegedly violated. As noted
above, Mr. Dawkins asserts his claim pursuant to 42 U.S.C. § 1983. Section 1983
“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).
Therefore, Mr. Dawkins must identify the specific federal right allegedly violated and he
also must allege specific facts in support of his claim that demonstrate a federal right has
been violated. 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”).
The court will not speculate about the precise claim Mr. Dawkins is asserting
because it is his responsibility to present his claim clearly and concisely in a manner that
allows the court and Defendant to know what claim is being asserted and to be able to
respond to that claim. 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 & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Thus, “in analyzing
the sufficiency of the plaintiff’s complaint, the court need accept as true only the plaintiff’s
well-pleaded factual contentions, not his conclusory allegations.” Hall, 935 F.2d at 1110.
Accordingly, it is

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ORDERED that Mr. Dawkins 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. Dawkins 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. Dawkins fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED December 10, 2015, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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