Williams v. Firmin et al
ORDER denying without prejudice 84 Prisoners Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff may file a renewed motion with his Fourth Amended Prisoner Complaint; granting 85 Motion for More Definite Statement. On or before November 28, 2017, Plaintiff shall file a Fourth Amended Prisoner Complaint that separately sets out each cause of action (e.g., Claim One, Claim Two)with supporting factual allegationsand identifies against which Defendant(s) the cause of action is being asserted. Failure to do so may result in dismissal of this action, by Magistrate Judge Scott T. Varholak on 11/8/2017. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00598-WJM-STV
SIRRLOVE R. WILLIAMS,
FIRMAN, Sherriff [sic]
MS. OMAILY, Safty [sic] Director
DR. GAFORD, and
Magistrate Judge Scott T. Varholak
This matter comes before the Court on the Motion for More Definite Statement
(“Defendants’ Motion”) [#85], filed by Defendants Patrick Firmin and Stephanie
O’Malley, and on the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 (“Plaintiff’s Motion”) [#84], filed by Plaintiff. Defendants’ Motion and
Plaintiff’s Motion both were referred to this Court. [#86, 87] This Court has carefully
considered the motions and related briefing, the case file and the applicable case law,
and has determined that oral argument would not materially assist in the disposition of
the motions. For the following reasons, Defendants’ Motion is GRANTED and Plaintiff’s
Motion is DENIED WITHOUT PREJUDICE.
On March 6, 2017, Plaintiff submitted pro se handwritten filings to the Court. [#1]
Because Plaintiff did not utilize the Court-approved Prisoner Complaint form or address
the filing fee, Magistrate Judge Gordon P. Gallagher entered an Order Directing Plaintiff
to Cure Deficiencies. [#3] Plaintiff then filed an Amended Prisoner Complaint and
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. [#6, 7] On
March 28, 2017, Magistrate Judge Gallagher issued an Order to Show Cause why
Plaintiff should not be denied leave to proceed in forma pauperis, because he is subject
to the filing restriction contained in 28 U.S.C. § 1915(g). 1 On May 10, 2017, Plaintiff
filed a Second Amended Prisoner Complaint and a revised Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915. [#36, 37]
Plaintiff’s Second Amended Prisoner Complaint set forth claims for relief arising
from what he characterized as a campaign of retaliation and harassment resulting from
a settlement agreement he entered into after a 2008 lawsuit against Denver County Jail
defendants, Williams v. Diggins, No. 08-cv-00667-MSK-KLM (D. Colo. Mar. 24, 2008).
[#36] The Second Amended Prisoner Complaint asserted six claims:
1) supervisory liability against Defendant Sheriff Firman with regard to
allegedly ongoing mistreatment of Plaintiff by Jail officers beginning in
January 2016 (ECF No. 36 at 6-9); 2) supervisory liability against
Defendant Ms. OMaily with regard to allegedly ongoing mistreatment of
Plaintiff, including withholding medical treatment, in violation of the
settlement agreement, starting in 2016 (id. at 10-11); 3) supervisory
liability against Defendant Chief Mentz arising from an alleged attack
against Plaintiff by Aurora police officers in December 2015 (id. at 12); 4)
supervisory liability against Defendant Chief White arising from the arrest
of Plaintiff by Officer Manzanerez in December 2015 (id. at 13-14); 5)
supervisory liability against Defendant Dr. Gaford due to withholding
Section 1915(g) provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
medical treatment and prescribing incorrect medication in violation of the
settlement agreement, which allegedly has resulted in “stress related
seizures” (id. at 15); and 6) supervisory liability against Defendant Carole
Rodgers due to unidentified Jail staff withholding medical treatment and
prescribing incorrect medication as retaliation for the 2008 lawsuit (id. at
[#49 at 2-3] Each of the six claims were separately identified, with supporting facts for
each claim. [#36 at 6-16] On July 25, 2017, United States District Court Judge Lewis T.
Babcock issued an Order dismissing Plaintiff’s third, fourth, fifth and sixth claims for
relief without prejudice because they did not satisfy the imminent danger exception set
forth in 28 U.S.C. § 1915(g) and Plaintiff had not paid the filing fee to pursue those
claims. [#49 at 4] Plaintiff’s first and second claims for relief against Defendants Firmin
and O’Malley were permitted to proceed. [Id. at 5]
On September 20, 2017, Plaintiff filed a Motion to Amend and Add Claim of
Continual Criminal Enterprise. [#68] On October 2, 2017, at a status conference on
this matter, this Court granted that Motion to Amend. [#75] On October 18, 2017,
Plaintiff filed Plaintiff’s Motion and his Third Amended Prisoner Complaint. [#84, 88]
On October 20, 2017, Defendants Firmin and O’Malley filed Defendants’ Motion.
[#85] In it, Defendants maintain that they “cannot possibly respond to [the Third
Amended Complaint’s] expansive, ill-defined allegations.” [Id. at 4] On November 3,
2017, Plaintiff filed his Objection to Request for More Definite Statement. [#91]
Plaintiff is proceeding pro se, and as such his pleadings must “be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, at 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404
U.S. 519, 520-21 (1972)). The court, however, cannot be a pro se litigant’s advocate.
See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
Pursuant to Federal Rule of Civil Procedure 12(e), “[a] party may move for a
more definite statement of a pleading to which a responsive pleading is allowed but
which is so vague or ambiguous that the party cannot reasonably prepare a response.”
“A motion pursuant to Fed. R. Civ. P. 12(e) is generally disfavored by the Court.”
Shankar v. Wells Fargo Bank NA, No. 14-cv-02000-CMA-KLM, 2015 WL 870797, at *1
(D. Colo. Feb. 26, 2015). As such, Rule 12(e) motions are “rarely granted unless the
complaint is ‘so excessively vague and ambiguous as to be unintelligible’ or defendant
would be prejudiced in its attempt to answer it.” Id. (quoting Greater N.Y. Auto. Dealers
Ass’n v. Env’t Sys. Testing, Inc., 211 F.R.D. 71, 76 (E.D.N.Y. 2002)).
Nonetheless, Rule 12(e) motions may be granted where a complaint’s structure
and form make it difficult or impossible for a defendant to “ascertain the exact claims
pleaded and their nature and scope.” Green v. Potter, No. 10-cv-02201-LTB-KMT,
2011 WL 2693523, at *5 (D. Colo. July 12, 2011). This is just such a case. The Third
Amended Prisoner Complaint is 39 pages long, with an additional 45 pages of exhibits.
[#88] It references possible causes of action for harassment, retaliation, assault and
battery, cruel and unusual punishment, breach of contract, torture, continuing criminal
enterprise, due process violations, violation of the Americans with Disabilities Act,
violation of the Health Insurance Portability and Accountability Act, equal protection
violations, discrimination, negligence, deliberate indifference, intentional infliction of
emotional distress, violation of Plaintiff’s freedom of religion, conspiracy, RICO
violations, double jeopardy violations, mail tampering, racial profiling, slander, and
violations of the attorney-client privilege.
[#88 at 8] Rather than assert each cause of
action separately—with supporting factual allegations—as required, the Third Amended
Prisoner Complaint appears to assert four “claims”—one against each named
Defendant—with each claim consisting of a laundry list of potential causes of action
without factual allegations specific to each cause of action identified.
It is nearly
impossible to determine which causes of action are asserted against which Defendants.
The Court, and presumably Defendants, cannot discern which specific causes of action
are being brought against which Defendants.
Accordingly, the Court GRANTS
With respect to Plaintiff’s Motion, the confusing nature of the Third Amended
Prisoner Complaint makes it impossible for the Court to conduct the imminent danger
analysis needed to decide the Motion. Moreover, since the filing of Plaintiff’s Motion,
Plaintiff has been transferred to a different facility, which may impact the imminent
Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s
Motion, with leave to re-file with the Fourth Amended Prisoner Complaint. Any renewed
motion to proceed pursuant to 28 U.S.C. § 1915 shall address the imminent danger
analysis in light of Plaintiff’s recent transfer.
Accordingly, the Court Orders as follows:
Defendants’ Motion [#85] is GRANTED. On or before November 28,
2017, Plaintiff shall file a Fourth Amended Prisoner Complaint that
separately sets out each cause of action (e.g., Claim One, Claim
Two)—with supporting factual allegations—and identifies against which
Defendant(s) the cause of action is being asserted. Failure to do so
may result in dismissal of this action.
Plaintiff’s Motion [#84] is DENIED WITHOUT PREJUDICE. Plaintiff
may file a renewed motion with his Fourth Amended Prisoner
DATED: November 8, 2017
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
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