Plumman v. Cozza-Rhodes, et al
Filing
13
ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 3/06/2013. (skl)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00042-BNB
CYRIL S. PLUMMAN,
Plaintiff,
v.
WARDEN T. K. COZZA-RHODES,
CAPTAIN P. KLEIN,
UNIT MANAGER M. TUCKER,
UNIT COUNSELOR BARBARA BATULIUS,
ASSOCIATE WARDEN BLUDWORTH,
ASSOCIATE WARDEN RANGEL,
S.I.S. M. CLARK, and
S.I.S. ELLIOT,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Cyril S. Plumman, is in the custody of the United States Bureau of
Prisons and currently is incarcerated at the Federal Correctional Institution at Florence,
Colorado. Mr. Plumman, acting pro se, filed a Prisoner Complaint pursuant to Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
challenging the conditions of his confinement and seeking injunctive relief. The Court
must construe Mr. Plumman’s filings liberally because he 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 cannot act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Plumman will be
directed to file an Amended Complaint.
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).
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.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all
that is permissible, if the complaint concisely states facts upon which relief can be
granted upon any legally sustainable basis.” Id.
The Court has reviewed Mr. Plumman’s Complaint and finds that he fails to
provide a short and plain statement of his claims in compliance with the pleading
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requirements of Rule 8 of the Federal Rules of Civil Procedure. Mr. Plumman’s claims
generally are conclusory and vague.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s
sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir.
1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). The Court,
however, will give Mr. Plumman an opportunity to cure the deficiencies in the Complaint
by submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
To state a claim in federal court Mr. Plumman must explain (1) what a defendant
did to him; (2) when the defendant did it; (3) how the defendant’s action harmed him;
and (4) what specific legal right the defendant violated. Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Mr. Plumman also must assert personal participation by each named defendant
in the alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir. 1976). To establish personal participation, Mr. Plumman must show how
each named individual caused the deprivation of a federal right. See Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (emphasis added). 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). A defendant may not be held liable on a theory of
respondeat superior merely because of his or her supervisory position. See Pembaur v.
City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10th
Cir. 1983). A supervisor is only liable for constitutional violations that they cause. See
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Dodds v. Richardson, et al. ,614 F.3d 1185 (10th Cir. 2010) (Tymkovich, J., concurring).
Accordingly, it is
ORDERED that within thirty days from the date of this Order, Mr. Plumman
shall file an Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Mr. Plumman 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. Plumman fails to file an Amended Complaint
that complies with this Order within the time allowed the Court will dismiss the
Complaint and the action without further notice.
DATED March 6, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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