Gilbert v. Fox et al

Filing 4

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 2/18/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00354-GPG
WALTER LEE GILBERT, aka LAMARCUS L. HILLARD,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
UNITED STATES DEPT. JUSTICE,
MISSISSIPPI DEPT. CORRECTIONS, and
U.S.P. FLORENCE ADMAX/AGENT,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Walter Lee Gilbert, aka Lamarcus Lee Hillard, a federal inmate at
Florence ADMAX, has filed pro se a Prisoner Complaint (ECF No. 1) requesting that the
Court order the Federal Bureau of Prisons and “interactive parties” to “correct all proper
identification in the FBOP system, my door tag, and central file.” (ECF No. 1, at 8). He
has paid the $400.00 filing fee.
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 be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed
below, Plaintiff will be ordered to file an amended complaint if he wishes to pursue his
claims in this action.

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The Complaint 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). 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.
Plaintiff fails to provide a short and plain statement of the grounds for the court’s
jurisdiction.
Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree. It is
to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
In order to comply with Rule 8 Plaintiff must identify the specific statutory authority that
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allows the court to consider the claims he is asserting in this action.
In the Complaint, Plaintiff names four defendants: Federal Bureau of Prisons
(BOP), U.S.P. Florence ADMAX, United States Department of Justice (DOJ), and
Mississippi Department of Corrections and asserts jurisdiction pursuant to 28 U.S.C. §
1343 and 42 U.S.C. § 1983 as well as 28 U.S.C. § 1028. Plaintiff asserts that he is
“currently housed at the Federal Bureau of Prisons ADX Supermax under a misnomer,
Lamarcus Lee Hillard, false date of birth 5-19-80, and incorrect Social Security number [
] in violation of Federal Law 28 U.S.C.S. 1028 and related activity in connection with
identification documents.” (ECF No. 1, at 3). He seeks an order requiring the BOP and
“interactive parties” to “correct all proper identification” in the BOP system and central
file. (Id., at 8).
First, Plaintiff cannot assert a claim under § 1983 against the named defendants
because none of the United States agencies named in the caption “act under color of
state law,” a requirement to state a § 1983 claim. See West v. Atkins, 487 U.S. 42, 4849 (1988). Because Plaintiff’s Complaint charges federal actors, not state actors, with
maintaining inaccurate records, Plaintiff’s claims are more properly construed as
asserting a Bivens action. See Ashcroft v. Iqbal, 556 U.S. 662 (2009) (a Bivens action
is “the federal analog to suits brought against state actors under . . . § 1983”); see also
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397 (1971) (permitting
suits against federal actors for constitutional violations). However, the United States
and its agencies may not be sued in a Bivens action. See e.g., Smith v. United States,
561 F.3d 1090, 1099 (10th Cir. 2009) (affirming that a Bivens action can be brought

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“only against federal officials in their individual capacities . . . Bivens claims cannot be
asserted directly against the United States, federal officials in their official capacities, or
federal agencies.”). Cf. Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th
Cir. 2005); accord Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (federal
inmate may seek injunctive relief against federal prison officials in their official
capacities from alleged constitutional violations).
In addition, Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1028. This
statute does not exist, but the Court believes Plaintiff intended to cite to 18 U.S.C. §
1028, which is the federal criminal statute that punishes fraud and related activity in
connection with identification documents, authentication features, and information. 18
U.S.C.A § 1028. This statute, however, does not provide Plaintiff with a private cause
of action. See e.g., Newcomb v. Ingle, 827 F.2d 675, 676 n.1 (10th Cir. 1987)
(recognizing that 18 U.S.C. § 241 is a criminal statute which does not provide for a
private civil cause of action); see also Winslow v. Romer, 759 F. Supp. 670, 673 (D.
Colo. 1991) (“Private citizens generally have no standing to institute federal criminal
proceedings.”). In the amended complaint, Plaintiff must identify an applicable statutory
authority that allows the court to consider the claims he is asserting in this action.

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Plaintiff also fails to provide a short and plain statement of his claims showing he
is entitled to relief. Prisoners are not entitled to a correction of documents kept by the
BOP. See Taylor v. Sniezek, 2005 WL 1593671, at *2 (N.D. Ohio 2005) (prisoners
have sued to correct social security numbers in BOP records under the Privacy Act, but
that Act permits suits only for damages for violations, not injunctive relief). Nor is the
injunctive relief which Plaintiff seeks available to him under any other federal statute or
the Constitution. Id., at *3; Locklear v. Holland, 194 F.3d 1313 (6th Cir. 1999) (Pursuant
to 5 U.S.C. § 552a(j) the BOP’s inmate records systems are exempt from the access
and amendment provisions of the Privacy Act).
In order to comply with the pleading requirements of Rule 8 in the amended
complaint, Plaintiff must identify the specific claims he is asserting and the statutory
authority that allows the court to consider those claims, the specific facts that support
each asserted claim, and what each Defendant did that allegedly violated her 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”). Accordingly, it is
ORDERED that Plaintiff file, within thirty (30) days from the date of this order,
an amended complaint that complies with this order. It is
FURTHER ORDERED that Plaintiff shall obtain (with the assistance of his case
manager or the facility’s legal assistant) the appropriate court-approved Prisoner
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov and

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shall use that form in filing an amended prisoner complaint. It is
FURTHER ORDERED that, if Plaintiff fails within the time allowed to file an
amended complaint that complies with this order, the action will be dismissed without
further notice.
DATED February 18, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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