Elder v. Smith et al

Filing 8

ORDER TO AMEND. ORDERED that Mr. Elder file, within thirty (30) days from the date of this order, an amended complaint as directed in this order, by Magistrate Judge Gordon P. Gallagher on 2/4/2016. (copy of the court-approved Prisoner Complaint form mailed to plaintiff) (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00126-GPG
LYNDON A. ELDER,
Plaintiff,
v.
SHERIFF SHAUN SMITH,
DEPUTY EVERS
DEPUTY HEGARTY,
KIRSTEN SEARFUS, M.D.,
Defendants.

ORDER TO AMEND

Plaintiff, Lyndon A. Elder, is a prisoner currently incarcerated at the La Plata
County Jail in Durango, Colorado. On January 15, 2016, he filed pro se a Prisoner
Complaint (ECF No. 1). He has been granted leave to proceed in forma pauperis. (ECF
No. 6).
The court must construe the Complaint liberally because Mr. Elder is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
th

Bellmon, 935 F.2d 1106, 1110 (10 Cir. 1991). However, the court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the following reasons,
Mr. Elder will be directed to file an Amended Complaint if he wishes to pursue his claims
in this action.
The Amended Complaint fails to comply with the pleading requirements of Rule 8
of the Federal Rules of Civil Procedure. The twin purposes of a complaint are to give
1

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). 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.
It is Mr. Elder’s responsibility to present his claims in a manageable and readable
format that allows the Court and defendants to know what claims are being asserted
and to be able to respond to those claims. Mr. Elder must allege, simply and concisely,
his specific claims for relief, including the specific rights that allegedly have been
violated and the specific acts of each defendant that allegedly violated her rights. Mr.
Elder is directed to present his claims in the space provided on the court-approved
Prisoner Complaint form and include relevant supporting factual allegations for each
claim in the space provided. The Court and defendants are not required to sift through
Mr. Elder’s attachments to locate the heart of each claim. The general rule that pro se

2

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).
It appears that Mr. Elder is attempting to pursue an Eighth Amendment claim of
deliberate indifference to a serious medical need. The amended complaint should
include specific factual allegations to support his claims and specify what each
Defendant did that allegedly violated his rights. See Nasious v. Two Unknown B.I.C.E.
th

Agents, 492 F.3d 1158, 1163 (10 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”). Plaintiff must 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 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).
Additionally, in a Letter to the Court that is included with this Complaint, Mr. Elder
alleges that he is “caught between a rock and a hard place.” He alleges that he is
having a hard time pursuing claims in this Court because he is “given 2 pieces of writing
paper per week. No manilla envelopes, carbon paper, or notary.”

3

He attaches

numerous “Inmate Request Forms” that he submitted to prison officials requesting
postage for legal mail, writing paper, copies made of papers, and manilla envelopes in
order to file his claims with this court.

If Plaintiff is attempting to assert a First

Amendment Claim for right of access to the courts, he must plead facts to show that he
was impeded in his ability to file a civil rights action. See Lewis v. Casey, 518 U.S. at
354– 55 (plaintiff must allege that the state's interference led to an “actual injury” by
“frustrat[ing],” “imped[ing],” or “hinder[ing] his efforts to pursue a legal claim.”); see also
Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir.1998) (“ To present a viable claim
for denial of access to courts, however, an inmate must allege and prove prejudice
arising from Defendants' actions.” ). Plaintiff was successful in filing the instant civil
rights action, so it appears he would not be able to adequately assert a viable claim for
denial of access to the courts. However, in order to help the Plaintiff file an Amended
Complaint, the Court will direct the Clerk of Court to send Plaintiff a blank copy of the
court-approved Prisoner Complaint form.
Accordingly, it is
ORDERED that Mr. Elder file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that the Clerk of Court send Plaintiff a copy of the courtapproved Prisoner Complaint form. Mr. Elder shall use the court-approved Prisoner
Complaint form to file his Amended Complaint. It is
FURTHER ORDERED that if Mr. Elder fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.

4

DATED February 4, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

5