Collins v. Reams et al

Filing 6

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 1/8/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00040-GPG
RAYMOND E. COLLINS JR.,
Plaintiff,
v.
WELD COUNTY SHERIFF STEVEN REAMS,
WELD COUNTY UNDER SHERIFF STERLING GEESAMAN,
WELD COUNTY DA OFFICE, and
WELD COUNTY PUBLIC DEFENDER OFFICE,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff Raymond E. Collins, Jr., currently is detained at the Weld County Jail in
Greeley, Colorado. Plaintiff, acting pro se, initiated this action by filing a Prisoner
Complaint alleging that his constitutional rights were violated. Plaintiff has been granted
leave to proceed pursuant to 42 U.S.C. ' 1915.
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. For the reasons stated below, Plaintiff will be
ordered to file an Amended Complaint.
Plaintiff asserts four claims regarding his arrest, conditions of his confinement, and
his subsequent court hearings. Plaintiff requests that his name be cleared and that
Awhat [he] lost@ returned. ECF No. 1 at 11.
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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 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. Plaintiff fails to assert the jurisdiction for his claims. In the B. Jurisdiction
section of the complaint form, Plaintiff only states that he asserts jurisdiction pursuant to
the AUS Constitution.@ ECF No. 1 at 4. Plaintiff must complete this section and properly
assert the basis for jurisdiction in this Court. To state proper jurisdiction Plaintiff must
indicate the specific federal legal basis for his claims.
Next, it appears that Plaintiff has not been convicted and is pending a state court
criminal trial.

Absent extraordinary or special circumstances, federal courts are

prohibited from interfering with ongoing state criminal proceedings. See Younger v.
Harris, 401 U.S. 37, 45 (1971); Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir.
1995).

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If, however, Plaintiff has been convicted and sentenced a request challenging the
conviction and sentence more properly is addressed in a writ of habeas corpus pursuant
to 28 U.S.C. ' 2254. See Preiser v. Rodriguez, 411 U.S. 475, 504 (1973). Habeas
corpus claims may not be raised in a 42 U.S.C. ' 1983 action. The Supreme Court has
explained the role of habeas and civil rights actions as follows:
Federal law opens two main avenues to relief on complaints related to
imprisonment: a petition for habeas corpus, 28 U.S.C. ' 2254, and a
complaint under the Civil Rights Act of 1871, Rev. Stat. ' 1979, as
amended, 42 U.S.C. ' 1983. Challenges to the validity of any confinement
or to particulars affecting its duration are the province of habeas corpus,
Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S. Ct. 1827, 36 L. Ed.2d 439
(1973); requests for relief turning on circumstances of confinement may be
presented in a ' 1983 action.
Muhammad v. Close, 540 U.S. 749, 750 (2004); see also Hill v. McDonough, 547 U.S.
573, 579 (2006). If Plaintiff wishes to pursue any habeas corpus claims, once he has
been conviction and sentenced, he must file a separate habeas corpus action. Before
seeking habeas corpus relief in federal court, Plaintiff must exhaust state court remedies.
See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (noting that state court
remedies must be exhausted prior to seeking habeas corpus relief).
Second, to the extent that Plaintiff is challenging actions by the public and the
district attorney, these individuals are immune from suit.
A district attorney is entitled to absolute immunity in 42 U.S.C. ' 1983 1 suits for
activities within the scope of his prosecutorial duties. See Ambler v. Pachtman, 424 U.S.

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Since Plaintiff has stated generically in the B. Jurisdiction section of the complaint form
that he is asserting jurisdiction under the U.S. Constitution, the Court will construe for purposes of
this Order that Plaintiff intends to assert his claims pursuant to 42 U.S.C. ' 1983.

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409, 420-24 (1976). The Tenth Circuit has found that state prosecutors= Adecisions to
prosecute, their investigatory or evidenceBgathering actions, their evaluation of evidence,
their determination of whether probable cause exists, and their determination of what
information to show the court@ are activities intimately associated with the judicial
process. See Nielander v. Bd. of County Comm=rs., 582 F.3d 1155, 1164 (10th Cir.
2009). Any part a district attorney has in deciding to charge an individual with an offense
is within the scope of his prosecutorial duties.
Whether a private attorney or public defender represents Plaintiff, he or she is not
a state actor under 42 U.S.C. ' 1983, (assuming, as stated above, that Plaintiff is
asserting his claims pursuant to ' 1983), and is not a proper party to this action. Polk
County v. Dodson, 454 U.S. 312, 318 and 325 (1981).
Plaintiff is directed that to state a claim in federal court he 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 a 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 in the Cause of
Action section of the complaint form how the 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

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participation, control or direction, or failure to supervise. See Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993).
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 42 U.S.C. ' 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.
Finally, Plaintiff may use fictitious names, such as John or Jane Doe, if he does not
know the real names of the individuals who allegedly violated his rights. Plaintiff,
however, must provide sufficient information about each defendant so that they can be
identified for the purpose of service. 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

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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 file an Amended Complaint that
complies with this Order, within the time allowed, the Court will dismiss the Complaint and
action without further notice.
DATED January 8, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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