Mwangi v. Norman et al
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 1/13/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-0002-GPG
CARNE MURURI MWANGI, No. 660883,
PERRY SPEELMAN; and
ALL ARRESTING OFFICERS,
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT
Plaintiff, Carne Mururi Mwangi, a pro se prisoner litigant, has submitted a
Complaint and a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915. The Motion for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) has
been granted (ECF No. 5).
The Court must construe the Complaint liberally because Plaintiff 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 pro se litigants. See Hall, 935 F.2d at 1110. The Court has reviewed
the complaint and has determined that it is deficient. For the reasons discussed below,
Plaintiff will be ordered to file an amended complaint.
First, the Complaint is deficient because it is not on the Court-approved form.
Second, the Complaint is deficient to the extent it seeks to impose liability against any
Defendant in his or her official capacity. Official capacity suits “generally represent only
another way of pleading an action against an entity of which an officer is an agent.”
Monell v. Department of Social Services, 436 U.S. 658, 690 n.55 (1978). Therefore,
Plaintiff’s claims against Defendants in their official capacities must be construed as
claims against the City and County of Denver. However, Plaintiff cannot state a
cognizable claim for relief against City and County of Denver unless he demonstrates
he suffered an injury caused by a municipal policy or custom. See Schneider v. City of
Grand Junction Police Dept., 717 F.3d 760, 769-71 (10th Cir. 2013) (discussing
Supreme Court standards for municipal liability); Dodds v. Richardson, 614 F.3d 1185,
1202 (10th Cir. 2010). Plaintiff cannot state a claim for relief under § 1983 merely by
pointing to isolated incidents. See Monell, 436 U.S. at 694.
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 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). 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.
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
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. It
is not the Court’s role to decipher Plaintiff’s claims.
A defendant also 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 “arising
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 against a government official for conduct that
arises out of his or her supervisory responsibilities, a plaintiff must allege and
demonstrate that: “(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. Therefore, Plaintiff should name as
Defendants only those persons he contends actually violated his federal rights while
acting under color of law.
Plaintiff will be ordered to file an amended complaint that clarifies what each
Defendant did that allegedly violated his rights. 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).
Accordingly, it is
ORDERED that Mr. Mwangi 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. Mwangi 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. Mwangi fails to file an amended complaint that
complies with this order within the time allowed, the action may be dismissed without
DATED January 13, 2016, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
United States Magistrate Judge
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