Faircloth et al v. Colorado Department of Corrections et al

Filing 31

ORDER dismissing Plaintiffs Charles Campbell, Mark Bresqko, Felix Lujan, and Mark Atkerson by Judge Lewis T. Babcock on 4/11/16. Motions 3 , 9 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 20 , 25 , 27 , 28 , and 30 are denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00513-GPG

JAMES FAIRCLOTH, Individually and on behalf of Those Similarly Situated,
EDDIE HIMES, Individually and on behalf of Those Similarly Situated,
CHARLES CAMPBELL, Individually and on behalf of Those Similarly Situated,
MARK BRESQKO, Individually and on behalf of Those Similarly Situated,
FELIZ LUJAN, Individually and on behalf of Those Similarly Situated, and
MARK ATKERSON, Individually and on behalf of Those Similarly Situated,
Plaintiffs,
v.
COLORADO DEPT. OF CORRECTIONS,
RICK RAEMISCH, Official and Individual Capacities,
ROGER WERHOLTZ, Official and Individual Capacities,
TONY CAROCHI, Official and Individual Capacities,
ARISTEDES ZAVARAS, Official and Individual Capacities,
JOE ORTIZ, Official and Individual Capacities,
JOHN SUTHERS, Official and Individual Capacities,
STATE OF COLORADO,
GOVERNOR OF COLORADO, John Hickenlooper, Official and Individual Capacities,
CDOC DIRECTOR OF CLINICAL SERVICES, Official and Individual Capacities,
CDOC CLINICAL SERVICES MANAGEMENT, Official and Individual Capacities,
CDOC OFFICE OF LEGAL SERVICES, [AIC], J. RUSSELL, Official and Individual
Capacities,
CTCF H.S.A., Brian Hoffman, Official and Individual Capacities,
DR. M. WIENPAHL, Official and Individual Capacities, and
DR. BOYD, Official and Individual Capacities,

Defendants.

ORDER OF DISMISSAL

1

Magistrate Judge Gordon P. Gallagher entered an order, on March 2, 2016,
directing Plaintiffs Eddie Himes, Charles Campbell, Mark Bresqko, Felix Lujan, and Mark
Atkerson to each file their own Prisoner=s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. ' 1915 and certified trust fund account statements for the six
months immediately preceding the filing of the instant action. Magistrate Judge
Gallagher also directed Plaintiffs to submit their claims on a Court-approved form.
Plaintiffs were warned that the action would be dismissed without further notice if they
failed to cure the deficiencies within thirty days. For the reasons stated below, Plaintiffs
Mark Atkerson, Felix Lujan, Mark Bresqko, and Charles Campbell will be dismissed from
the action.
First, the Court notes that Plaintiff James Faircloth filed a Motion for Leave for
Permission to Communicate with the other Parties . . . to Accomplish Court=s Order,@ ECF
No. 11. Mr. Faircloth asks that the Court compel the Colorado Department of
Corrections and the Corrections Corporation of America to facilitate communication
between the named plaintiffs in this action so they can cure the deficiencies noted in the
March 2 Order. Mr. Faircloth specifically claims he attempted to have 28 U.S.C.
' 1915 forms, which he had Acustomized,@ either faxed or emailed to Plaintiffs Hines,
Campbell, and Bresqko at other prison facilities.
Mr. Faircloth=s Motion for Permission to Communicate will be denied for the
following reasons. Each named Plaintiff was sent a copy of the March 2, 2016 Order to
Cure Deficiencies. Each Plaintiff was instructed on how to obtain a Prisoner=s Motion

2

and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 form and told the date by
which they needed to provide the ' 1915 form to the Court.
The ' 1915 forms received by the Court on March 15, 2016, for Plaintiffs Himes,
Campbell, Lujan, Atkerson, and Bresqko are deficient. First, the forms have been s/ for
Plaintiffs Himes, Campbell, and Bresqko and do not contain an original signature as
required under Fed. R. Civ. P. 11(a) (pleading must be signed Apersonally@ if the party is
unrepresented). Second, the customized ' 1915 forms for Plaintiffs Himes, Campbell,
and Bresqko also are not dated and do not have a certified account statement attached to
the form. Furthermore, the customized form submitted for Plaintiff Lujan does not
contain a proper Authorization for disbursement of funds from his inmate account.
Finally, Plaintiffs Lujan and Atkerson have failed to submit certified account statements.
Mr. Faircloth concedes that he Acustomized@ the ' 1915 forms that were submitted
to the Court and it appears he has s/ the forms for Plaintiffs Himes, Campbell, and
Bresqko. Mr. Faircloth also has filed various other letters, motions, and even the
Amended Complaint, which he has either signed himself or has s/ other Plaintiff=s
signatures. Mr. Faircloth=s actions indicate he is attempting to litigate this action on other
Plaintiffs= behalf.

Mr. Faircloth may not legally represent another inmate. See Lyons v.

Zavaras, 308 F. App=x 252, 255 (10th Cir. 2009).
The Court mailed a copy of the March 2, 2016 Order to Cure Deficiencies to all
Plaintiffs and the orders sent to each plaintiff were not returned to the Court. The Court
notes that at least one Plaintiff, Mr. Hines, complied with the March 2, 2016, and filed a
proper 28 U.S.C. ' 1915 Motion and Affidavit. The other Plaintiffs Campbell, Bresqko,

3

Lujan, and Atkerson, however, have failed to cure the noted deficiencies, and therefore,
will be dismissed from the action for failure to comply with the Court=s March 2, 2016
Order.
Because only Mr. Faircloth and Mr. Himes remain as plaintiffs in this action, they
will be directed to submit a Second Amended Complaint that includes only claims that
pertain to them. The Court also will deny all motions for injunctive relief with leave to
refile for Mr. Faircloth and Mr. Himes to address only the issues that pertain to them.
It also has come to the attention of the Court that Mr. Faircloth=s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915, ECF No. 3, is deficient. Mr.
Faircloth=s ' 1915 Motion does not include an Authorization for disbursement of funds.
Mr. Faircloth will be directed to cure this deficiency. Accordingly, it is
ORDERED that Plaintiffs Charles Campbell, Mark Bresqko, Felix Lujan, and Mark
Atkerson are dismissed from the action without prejudice for failure to properly cure the
deficiencies within the time allowed. It is
FURTHER ORDERED that remaining Plaintiffs James Faircloth and Eddie Himes
are directed to file a Second Amended Complaint that addresses claims, which only
pertain to them. It is
FURTHER ORDERED that Plaintiffs James Faircloth and Eddie Himes shall
obtain a Prisoner Complaint form, (with the assistance of their case manager or the
facility=s legal assistant), along with the applicable instructions, at www.cod.uscourts.gov.
A Court-approved form must be used to file a Second Amended Complaint. It is

4

FURTHER ORDERED that Plaintiff James Faircloth is directed to cure the noted
deficiency in his Prisoner=s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. ' 1915. It is
FURTHER ORDERED that Plaintiff James Faircloth shall obtain a Prisoner=s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 form, (with the
assistance of his case manager or the facility=s legal assistant), along with the applicable
instructions, at www.cod.uscourts.gov. A Court-approved form must be used to cure this
deficiency. It is
FURTHER ORDERED that Plaintiff James Faircloth=s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. ' 1915, ECF No. 3, is denied as deficient. It is
FURTHER ORDERED that the Motion for Service, ECF No. 20, is denied as
premature. It is
FURTHER ORDERED that Plaintiff James Faircloth=s Motion for Permission to
Communicate, ECF No. 11, the Prisoner=s Motions and Affidavits for Leave to Proceed
Pursuant to 28 U.S.C. ' 1915, ECF Nos. 12-16, the Motion for Leave to Proceed In
Excess of Page and Word Limit, ECF No. 17,the Motion for Court=s Order to Mail
Signature Page, ECF No. 27, are denied as moot, and all motions for injunctive relief and
motions to supplement, ECF Nos. 9, 24, 25, 28, and 30, in part, are denied as moot. It is
FURTHER ORDERED that all motions for injunctive relief and motions to
supplement, ECF Nos. 9, 24, 25, 28, and 30, to the extent they are not moot, are denied
with leave to refile as one request, which pertains only to Plaintiffs Faircloth=s and Hime=s
claims. It is

5

FURTHER ORDERED that the only proper filings at this time are a Second
Amended Prisoner Complaint, a request for injunctive relief as appropriate, and Mr.
Faircloth=s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
' 1915. Any other pleadings will not be considered and will be subject to being stricken.
DATED at Denver, Colorado, this

11th

day of

April

, 2016.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

6