Siracusa v. State of Colorado, et al
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 3/15/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00172-GPG
ANTHONY RAY SIRACUSA,
STATE OF COLORADO,
COLORADO DEPT. OF CORRECTIONS,
FREMONT COUNTY SHERIFF, COLORADO,
STATE OF FLORIDA,
PINELLAS COUNTY CLERK, FLORIDA, and
UNITED STATES POSTAL SERVICE,
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff Anthony Ray Siracusa is detained at the Fremont County Detention
Center in Cañon City, Colorado. Plaintiff initiated this action by filing pro se a Prisoner
Complaint pursuant to 42 U.S.C. ' 1983 and a Prisoner=s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. ' 1915. The Court has granted Plaintiff=s ' 1915 Motion.
The Court must construe Plaintiff=s Complaint liberally because he 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Plaintiff will be directed to file an Amended Complaint.
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
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.
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 properly 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 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).
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,
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@).
To the extent Plaintiff is asserting claims against Defendant State of Florida and
Defendant Pinellas County Clerk, who is located in Clearwater, Florida, this Court lacks
proper venue to review the claims. Under 28 U.S.C. ' 1391, the statute that provides for
venue, paragraph (b) states that:
A civil action wherein jurisdiction is not founded solely on diversity of
citizenship may, except as otherwise provided by law, be brought only in (1)
a judicial district where any defendant resides, if all defendants reside in the
same State, (2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (3) a judicial district in which
any defendant is subject to personal jurisdiction at the time the action is
commenced, if there is no district in which the action may otherwise be
Therefore, such claims are not properly before this Court and are subject to sua
sponte dismissal. See Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006).
Next, a claim against the State of Colorado and the Colorado Department of
Corrections is barred by the Eleventh Amendment. See Will v. Michigan Dep=t of State
Police, 491 U.S. 58, 66 (1989). AIt is well established that absent an unmistakable
waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation
of such immunity by Congress, the amendment provides absolute immunity from suit in
federal courts for states and their agencies.@ Ramirez v. Oklahoma Dep=t of Mental
Health, 41 F.3d 584, 588 (10th Cir. 1994).
The Eleventh Amendment, however, does not bar a federal court action so long as
the plaintiff seeks in substance only prospective relief and not retrospective relief for
alleged violations of federal law, but Plaintiff must assert a claim for prospective relief
against individual state officers. Verizon Maryland v. Public Service Commission of
Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d=Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). Defendants
State of Colorado and Colorado Department of Corrections, therefore, are improper
parties to this action.
Further, with respect to Defendant United States Postal Service (USPS), Plaintiff
fails to state a claim against the USPS. Even if the Court construed Plaintiff=s statements
about the USPS as a claim, Plaintiff fails to assert proper jurisdiction for a claim against
Finally, the Court finds that the Complaint improperly combines a number of
separate and unrelated claims against different individuals. Pursuant to Rule 18(a) of
the Federal Rules of Civil Procedure, A[a] party asserting a claim . . . may join, as
independent or alternative claims, as many claims as it has against an opposing party.@
However, the issue of whether multiple defendants may be joined in a single action
is governed by Rule 20(a)(2) of the Federal Rules of Civil Procedure, which provides:
(2) Defendants. Persons . . . may be joined in one action as
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same transaction,
occurrence, or series of transactions or
(B) any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a).
Plaintiff has identified multiple incidents throughout the Complaint. The incidents
involve the alleged actions of different individuals. Plaintiff may not join separate and
unrelated incidents against multiple defendants based on a conclusory statement of
retaliation. See Gillon v. Fed. Bureau of Prisons, et al., 424 F. App=x 722, 725-26 (10th
Cir. 2011) (finding that plaintiff could not join separate and unrelated claims arising out of
different incidents based on an Aoverarching@ allegation of retaliation).
Requiring adherence in prisoner suits to the federal rules regarding joinder of
parties and claims prevents Athe sort of morass [a multiple claim, multiple defendant] suit
produce[s].@ George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). AMisjoinder of parties
is not a ground for dismissing an action.@ Fed. R. Civ. P. 21. Instead, A >[t]o remedy
misjoinder, . . . the court has two remedial options: (1) misjoined parties may be dropped
on such terms as are just; or (2) any claims against misjoined parties may be severed and
proceeded with separately.= @ Nasious v. City and County of Denver, 415 F. App=x 877,
881 (10th Cir. 2011) (quoting DirecTV, Inc., v. Leto, 467 F.3d 842, 845 (3d Cir. 2006)).
Nonetheless, the Court will refrain from dropping or severing parties at this time because
Plaintiff must first submit an Amended Complaint that complies with the directives in this
Order. 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 file an Amended Complaint that
complies with this Order, within the time allowed, the Court may dismiss the Complaint
and action without further notice.
DATED March 15, 2016, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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