Lomax v. Trani et al
Filing
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ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 03/20/13. (nmmsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00707-BNB
ARTHUR JAMES LOMAX,
Plaintiff,
v.
WARDEN TRAVIS TRANI (CCF),
WARDEN ANGEL MEDINA (FCCF),
WARDEN STEVE HARTLEY (AVCF),
DIRECTOR EVETTE RUIZ (of SOMTP),
DIRECTOR PENNY SPEARING (of MH),
COORDINATOR JAMES LANDER (SOMTP),
THERAPIST NATHAN WIGGIN (of MH), and
THERAPIST M. SCHNELL (of MH),
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Arthur James Lomax, is a prisoner in the custody of the Colorado
Department of Corrections and he currently is incarcerated at the Centennial
Correctional Facility in Cañon City, Colorado. Mr. Lomax initiated this action by filing
pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 alleging that his
rights under the United States Constitution have been violated. He seeks damages and
injunctive relief.
The court must construe the Prisoner Complaint liberally because Mr. Lomax 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 stated
below, Mr. Lomax will be ordered to file an amended complaint if he wishes to pursue
his claims in this action.
The court has reviewed the Prisoner Complaint and finds that 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 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. Prolix, vague, or unintelligible pleadings violate Rule 8.
Mr. Lomax fails to provide a short and plain statement of his claims showing that
he is entitled to relief. In particular, he fails to identify the Defendant or Defendants he
is suing with respect to each asserted claim, fails to allege clearly and concisely what
each Defendant did that allegedly violated his rights, and fails to identify the specific
legal right allegedly violated with respect to each claim. For example, Mr. Lomax
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identifies his first claim as a Fifth Amendment claim, but it is not clear which Defendant
or Defendants he is asserting the claim against or what each Defendant did that
allegedly violated his Fifth Amendment rights. Similarly, Mr. Lomax fails to identify what
each Defendant did with respect to his second and third claims for relief, and he also
fails to identify the specific constitutional rights allegedly violated with respect to his
second and third claims for relief.
For these reasons, Mr. Lomax will be ordered to file an amended complaint. For
each claim he asserts in the amended complaint, Mr. Lomax “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.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). 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).
Personal participation is an essential allegation in a § 1983 action. See Bennett
v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation,
Mr. Lomax must show that each Defendant 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). A defendant may not be held liable for the unconstitutional conduct of
his or her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556
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U.S. 662, 676 (2009). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order to succeed in a § 1983 suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege
and demonstrate that: “(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.” Id. at 1199. Accordingly, it is
ORDERED that Mr. Lomax file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Lomax 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. Lomax fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
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DATED March 20, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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