Eckley v. State of Colorado, The et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 4/19/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00831-GPG
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
TODD WESLEY ECKLEY,
Plaintiff,
v.
THE STATE OF COLORADO,
JOHN HICKENLOOPER, GOVERNOR, and
CYNTHIA COFFMAN, ATTORNEY GENERAL,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Todd Wesley Eckley has filed pro se a Prisoner Complaint (ECF No. 1).
The Court must construe the Prisoner 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. Plaintiff is ordered to file an
amended prisoner complaint, compliant with the directions set forth herein, if he wishes to
pursue any claims in this action.
The Court construes the thirty-page Prisoner Complaint to assert a single claim
alleging a right to a grand jury in the State of Colorado pursuant to the Fifth Amendment to
the U.S. Constitution. (ECF No. 1). Plaintiff named as Defendants the State of
Colorado and the Governor and Attorney General of Colorado. (Id. at 2). He alleges
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“Colorado has violated the 5th Amendment” by use of a criminal information instead of a
grand jury for criminal indictments. (Id. at 4). He requests a declaratory judgment that
“[n]o person . . . shall be held to answer for a capital or otherwise infamous crime, unless
on a presentment or indictment of a grand jury.” (Id. at 9).
The Prisoner 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
Commc’ns 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 the
requirements of Rule 8.
In the Prisoner Complaint, Plaintiff makes lengthy and rambling assertions which
consist primarily of what appear to be excerpts from case law and other sources, without
clearly identifying which Defendant is responsible for what actions he is complaining
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about. He also provides minimal factual allegations underlying the claim. Neither the
Court nor Defendants are required to guess in order to determine the specific factual
allegations that support the Prisoner Complaint. The general rule that pro 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). Instead, it
is the Plaintiff’s responsibility to present his claims clearly and concisely in a manageable
format that allows the Court and Defendants to know what claims are being asserted and
to be able to respond to those claims.
Furthermore, any constitutional claims that Plaintiff might assert against the State
of Colorado pursuant to 42 U.S.C. § 1983 are barred by Eleventh Amendment immunity,
regardless of the relief sought. Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250,
1252–53 (10th Cir. 2007). "It 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. Okla. Dep’t of Mental Health, 41 F.3d
584, 588 (10th Cir. 1994), overrruled on other grounds by Ellis v. University of Kansas
Med. Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its
Eleventh Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th
Cir. 1988), and congressional enactment of § 1983 did not abrogate Eleventh
Amendment immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The
Eleventh Amendment may 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
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federal law, but a plaintiff must assert a claim for prospective relief against individual state
officers. Verizon Maryland v. Public Service Comm’n of Maryland, 535 U.S. 635, 645-46
(2002); Hill v. Kemp, 478 F.3d 1236, 1255-56 (10th Cir. 2007). Plaintiff in this case,
however, seeks retroactive applicability of the Fifth Amendment to require Colorado to
utilize a grand jury for criminal cases previously prosecuted without one. (ECF No. 1 at
9). Accordingly, the State of Colorado is an improper party to this action and should not
be named as a Defendant in an amended prisoner complaint.
The Prisoner Complaint is likewise deficient to the extent Plaintiff sues Governor
John Hickenlooper and Colorado Attorney General Cynthia Coffman, as he has failed to
assert any specific personal participation by such parties. 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). Although a defendant can be liable in a § 1983 action based on his or
her supervisory responsibilities, a claim of supervisory liability must be supported by
allegations that demonstrate personal involvement, a causal connection to the
constitutional violation, and a culpable state of mind. See Schneider v. City of Grand
Junction Police Dept., 717 F.3d 760, 767-69 (10th Cir. 2013) (discussing standards for
supervisory liability).

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Lastly, Plaintiff’s claim is insufficient to show he is entitled to relief from any of the
named Defendants. It is well-settled that “the Grand Jury Clause of the Fifth Amendment
does not apply to the states.” Williams v. Haviland, 467 F.3d 527, 532 (6th Cir. 2006)
(collecting cases). As explained by the U.S. Supreme Court:
Although the Due Process Clause guarantees petitioner a fair trial, it does
not require the States to observe the Fifth Amendment's provision for
presentment or indictment by a grand jury. In Duncan v. Louisiana, 391 U.S.
145 (1968), the Court held that because trial by jury in criminal cases under
the Sixth Amendment is ‘fundamental to the American scheme of justice,’
such a right was guaranteed to defendants in state courts by the Fourteenth
Amendment, but the Court has never held that federal concepts of a ‘grand
jury,’ binding on the federal courts under the Fifth Amendment, are
obligatory for the States.
Alexander v. Louisiana, 405 U.S. 625, 633 (1972) (citations omitted).
Accordingly, it is ORDERED that Plaintiff file, within thirty (30) days from the
date of this order, an amended prisoner 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) and utilize the court-approved Prisoner
Complaint form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails within the time allowed to file an
amended prisoner complaint that complies with this order, the action will be dismissed
without further notice. It is
FURTHER ORDERED that the “Motion for assistance of council” is DENIED
WITHOUT PREJUDICE at this time as premature; the Motion for a Jury Trial is DENIED
WITHOUT PREJUDICE in light of the direction herein to submit an amended prisoner
complaint; and the “Motion for Wavier [sic] of court cost / suspend” is DENIED AS MOOT
in light of the Order Granting Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 4).
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DATED April 19, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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