Glaser v. City and County of Denver, Colorado, The et al

Filing 6

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT. ORDERED that Mr. Glaser 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 3/28/2016. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00233-GPG
DOUGLAS A. GLASER,
Plaintiff,
v.
THE CITY AND COUNTY OF DENVER, COLORADO,
SECOND JUDICIAL DISTRICT,
MITCH MORRISSEY,
JOE MORALES,
ANDY SHOPNECK,
DOUGLAS PRITCHARD, and
DENVER POLICE OFFICER YOUNG,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Douglas A. Glaser, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Glaser has filed pro se a Prisoner Complaint (ECF No.
1) asserting constitutional claims pursuant to 42 U.S.C. § 1983 and Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The court
must construe the Prisoner Complaint liberally because Mr. Glaser 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 be an advocate for a pro
se litigant. See Hall, 935 F.2d at 1110. Mr. Glaser will be ordered to file an amended
complaint if he wishes to pursue his claims in this action.
As part of the court’s review pursuant to D.C.COLO.LCivR 8.1(b), the court has

determined the Prisoner Complaint is deficient. Mr. Glaser asserts constitutional claims
for malicious prosecution (claim one); retaliation and vindictive prosecution (claim two);
slander, defamation of character, and harassment (claim three); conspiracy to violate civil
rights (claim four); and supervisory failure (claim five). His claims stem from his arrest
and prosecution for the offense of driving under the influence (“DUI”). Mr. Glaser alleges
he was arrested in April 2008 without probable cause or any rational basis for an arrest,
the charges against him were increased two years later in retaliation for exercising his
constitutional rights, he was convicted as the result of false testimony and sentenced to
the maximum term of 730 days in jail, he suffered severe reputational harm from
Defendants’ false statements and accusations and was unable to obtain a driver’s
license, the DUI arrest and conviction was used to increase his bond and at sentencing in
a separate felony case, the DUI conviction was vacated on direct appeal after he had
completed the entire sentence, and the DUI case finally was dismissed on January 27,
2014. Mr. Glaser currently is incarcerated as a result of a sentence imposed in his
separate felony case. As relief he seeks damages, an order removing the arrest and
prosecution from his record, and an order directing the Colorado Department of Motor
Vehicles to remove any and all restrictions placed on his driver’s license as a result of the
DUI prosecution. The court is aware that Mr. Glaser has filed a prior lawsuit against
many of the same Defendants and it appears that some of his claims in this action are
repetitive of claims he raised in the prior lawsuit. See Glaser v. City and Cty. of Denver,
No. 12-cv-00828-RBJ-KLM (D. Colo. Apr. 8, 2013), aff’d, 557 F. App’x 689 (10th Cir.
2014). Because Mr. Glaser will be directed to file an amended complaint that clarifies
the precise claims he is asserting in this action, the court will not address at this time

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whether any of those claims may be barred because they were raised and adjudicated in
the prior action.
Mr. Glaser fails to provide a clear statement of his constitutional claims that
identifies against which Defendant or Defendants he is asserting each claim and what
each Defendant did that allegedly violated his rights. 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
pleading 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.” 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.
Vague and conclusory allegations that his federal constitutional rights have been
violated do not entitle a pro se pleader to a day in court regardless of how liberally the
court construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D.
Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992). Furthermore, the general rule that pro

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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). Thus, “in analyzing the sufficiency of the plaintiff’s complaint, the court need
accept as true only the plaintiff’s well-pleaded factual contentions, not his conclusory
allegations.” Hall, 935 F.2d at 1110. Neither the court nor Defendants are required to
guess in order to determine the specific factual allegations that are being asserted in
support of each claim.
In order to state a cognizable claim in federal court Mr. Glaser must identify the
specific factual allegations that support each claim and what each Defendant did that
allegedly violated his rights. See 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”). “The elements necessary to establish a § 1983 or Bivens
violation will vary with the constitutional provision at issue.” Pahls v. Thomas, 718 F.3d
1210, 1225 (10th Cir. 2013) (internal quotation marks omitted). Furthermore,
[b]ecause § 1983 and Bivens are vehicles for imposing
personal liability on government officials, we have stressed
the need for careful attention to particulars, especially in
lawsuits involving multiple defendants. It is particularly
important that plaintiffs make clear exactly who is alleged to
have done what to whom, . . . as distinguished from collective
allegations. When various officials have taken different
actions with respect to a plaintiff, the plaintiff’s facile,
passive-voice showing that his rights “were violated” will not
suffice. Likewise insufficient is a plaintiff’s more active-voice
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yet undifferentiated contention that “defendants” infringed his
rights.
Id. at 1225-26 (internal citations and quotation marks omitted) (quoted in Glaser v. City
and Cty. of Denver, 557 F. App’x 689, 702 (10th Cir. 2014)).
Section 1983 “provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526
U.S. 286, 290 (1999). “Under Bivens, an individual has a cause of action against a
federal official in his individual capacity for damages arising out of the official’s violation of
the United States Constitution under color of federal law or authority.” See Dry v. United
States, 235 F.3d 1249, 1255 (10th Cir. 2000). Thus, allegations of “personal participation
in the specific constitutional violation complained of [are] essential.” Henry v. Storey,
658 F.3d 1235, 1241 (10th Cir. 2011); see also Foote v. Spiegel, 118 F.3d 1416, 1423
(10th Cir. 1997) (“[i]ndividual liability . . . must be based on personal involvement in the
alleged constitutional violation.”). 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).
In addition, Mr. Glaser cannot state a cognizable claim for relief against a
municipality like the City and County of Denver in the absence of specific factual
allegations that demonstrate the existence of 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).
For these reasons, Mr. Glaser must file an amended complaint if he wishes to
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pursue his claims in this action. Pursuant to Rule 5.1(c) of the Local Rules of Practice of
the United States District Court for the District of Colorado – Civil, “[i]f not filed
electronically, an unrepresented prisoner or party shall use the procedures, forms, and
instructions posted on the court’s website.” Therefore, Mr. Glaser will be directed to file
his amended pleading on the court-approved Prisoner Complaint form. Accordingly, it is
ORDERED that Mr. Glaser 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. Glaser 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. Glaser fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED March 28, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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