Bruce v. Federal Bureau of Prisons (BOP) et al

Filing 5

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02627-GPG
ANTOINE BRUCE,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, and
F. DAVIS,
Defendants.

ORDER DIRECTING PLAINTIFF TO AMEND THE COMPLAINT

Plaintiff Antoine Bruce is in the custody of the Federal Bureau of Prisons (BOP)
and currently is incarcerated at the United States Penitentiary in Florence, Colorado.
Plaintiff initiated this action by filing pro se a Prisoner Complaint.
The Court must construe the Complaint liberally because Plaintiff is a pro se
litigant. 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 a pro se litigant=s
advocate. See Hall, 935 F.2d at 1110.
Plaintiff, on three or more occasions, has brought an action that was dismissed on
the grounds that it failed to state a claim or was frivolous. See Bruce v. Coulter, et al.,
No. 14-cv-00210-LTB (D. Colo. Apr. 23, 2014) (dismissed as malicious under 28 U.S.C. '
1915(e)(2)(B)(i)) (unpublished); Bruce v. Denney, No. 14-cv-03026-SAC (D. Kan. Apr. 2,
2014) (dismissed for failure to state a claim and as legally frivolous) (unpublished); Bruce

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v. C. Wilson, et al., No. 13-cv-00491-WJM-CBS (D. Colo. Nov. 4,2013) (a Fed. R. Ci. P.
12(b)(6) dismissal). In relevant part, ' 1915 provides:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. ' 1915(g).
Nonetheless, based on the following, the Court will direct Plaintiff to amend the
Complaint in compliance with Fed. R. Civ. P. 8 so that the Court may determine if
Defendant Davis=s actions are the cause of any imminent danger of serious physical
injury and a waiver of his filing restrictions under ' 1915(g) is required.
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). 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

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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), 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.
The Court has reviewed Plaintiff=s Complaint finds that Plaintiff fails to provide a
short and plain statement of his claims in compliance with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure. The supporting facts in the Complaint
are repetitive, disjointed, and are not set forth in a short and concise statement.
In the Complaint, Plaintiff describes a chronological history of his life from when he
was born until 2011, when he was transferred to ADX Florence, that is unnecessary. His
claims against the Bureau of Prisons are improper, because he may not assert a Bivens
claim for damages against the BOP. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72
(2001) (an inmate may bring a Bivens action against the offending individual officer but
not against the officer=s employer).
The United States cannot be sued without its consent. Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992), and it has not waived
sovereign immunity for itself or its agencies under Bivens for constitutional tort claims.
See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483B86 (1994) (holding

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that a Bivens action may not be brought against the United States); see also Correctional
Services Corp. v. Malesko, 534 U.S. 61, 72 (2001) (recognizing that a Aprisoner may not
bring a Bivens claim against the officer=s employer, the United States, or the BOP@).
Plaintiff=s claims against Defendant Davis do not support that he currently is in
imminent danger of serious physical injury. Plaintiff is required to provide Aspecific fact
allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the
likelihood of imminent serious physical injury.@ Martin v. Shelton, 319 F.3d 1048, 1050
(8th Cir. 2003) (emphasis added). Vague or conclusory allegations of harm are
insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). Plaintiff=s
claims do not contain the specific factual descriptions that would support these claims as
violations of his constitutional rights that are likely to cause imminent serious physical
injury.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court=s sound
discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992);
Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). The Court, however,
will give Plaintiff an opportunity to cure the deficiencies in the Complaint by submitting an
Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
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

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(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 Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993).
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). 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,
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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 complies with this Order. It is
FURTHER ORDERED that Plaintiff 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, to be used in filing the
Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to comply with this Order within the time
allowed the Court may dismiss the action without further notice. It is
FURTHER ORDERED that the only proper filing at this time is an Amended
Complaint that complies with this Order.
DATED December 15, 2015, at Denver, Colorado.
BY THE COURT:

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Gordon P. Gallagher
United States Magistrate Judge

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