United States District Court, D. Colorado
PHILIP E. STETZEL, Plaintiff,
RANDY LIND, RON WAGER, YVETTE BROWN, TIFFANY HOLUBEK, RICK LAWSON, WILLIAM GOMEZ STEPHANIE GONZALES, and HARRISON WELTON, Defendants.
ORDER DIRECTING PLAINTIFF TO FILE SECOND AND FINAL AMENDED COMPLAINT
BOYD N. BOLAND, Magistrate Judge.
Plaintiff, Philip E. Stetzel, is a prisoner in the custody of the Colorado Department of Corrections at the correctional facility in Buena Vista, Colorado. Mr. Stetzel, acting pro se, filed a twenty-two-page Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 and other statutes for money damages and declaratory and injunctive relief. He was granted leave to proceed pursuant to 28 U.S.C. § 1915.
On July 29, 2014, the Magistrate Judge Craig B. Shaffer ordered Mr. Stetzel to file an amended Prisoner Complaint that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and alleged the personal participation of each named defendant. The July 29 order discussed in detail each of Mr. Stetzel's four asserted claims and their pleading deficiencies, including allegations that were vague, conclusory, disorganized, confusing, and unnecessarily verbose. See ECF No. 5 at 2-4. The July 29 order provided Mr. Stetzel with thirty days in which to file an amended Prisoner Complaint that cured these deficiencies. On September 2, 2014, Mr. Stetzel filed an eighty-page document consisting of a twenty-eight-page amended Prisoner Complaint (ECF No. 7) pursuant to § 1983 and other statutes, and fifty-two pages of attachments, some of which are only partially visible. See, e.g., ECF No. 7 at 31-35. Mr. Stetzel asks for money damages and declaratory and injunctive relief.
The Court must construe the amended Prisoner Complaint liberally because Mr. Stetzel 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. The Court may take judicial notice of its own records and files that are part of the Court's public records. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979). Merely making vague and conclusory allegations that his federal constitutional rights have been violated does not entitle a pro se pleader to a day in court, regardless of how liberally the court construes such pleadings. See Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo. 1991), aff'd, 961 F.2d 916 (10th Cir. 1992). "[I]n analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations." Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Stetzel will be ordered to file a second and final amended Prisoner Complaint.
Once again, Mr. Stetzel asserts four claims concerning his disciplinary convictions that are vague, conclusory, disorganized, confusing, and unnecessarily verbose. He again persists in incorporating the allegations of each claim into the subsequent claims, a technique he was told in the July 29 order confuses rather than clarifies each claim. His claims allege retaliation (claim one); abuse of discretion (claim two), which is not a constitutional claim; deliberate indifference (claim three); and an equal protection violation (claim four).
Mr. Stetzel's first claim of retaliation appears to stem from a verbal confrontation with Tiffany Holubek, a law librarian at the Arkansas Valley Correctional Facility, who he contends verbally abused him on November 12, 2013. In the retaliation claim, Mr. Stetzel provides seven pages of allegations, see ECF No. 7 at 8-14, without making clear the act or acts of retaliation he is challenging. As Mr. Stetzel was informed in the July 29 order, 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." 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.
Claim one not a short and plain statement of Mr. Stetzel's retaliation claim. He also makes allegations against three individuals, two of whom he refers to as defendants, who are not named as defendants in the caption to the amended Prisoner Complaint. Neither "Defendant Bucholtz" nor "Defendant Kirby, " ECF No. 7 at 9, is a named defendant. Mr. Malden, a case manager, also is not a named defendant. ECF No. 7 at 9.
In claim two, Mr. Stetzel fails to make clear whether the abuse of discretion he attacks is the denial by Defendant Yvette Brown of a request he fails to describe, his transfer from the Fremont Correctional Facility to the Arkansas Valley Correctional Facility by a defendant he fails to name, his allegedly wrongful conviction by Ms. Brown under the Code of Penal Discipline, or something else. He unnecessarily reiterates in claim two allegations against Ms. Holubek asserted in claim one.
In claim three, Mr. Stetzel makes allegations of deliberate indifference against Ms. Brown and Ms. Holubek without supporting factual allegations. He also sues Rick Lawson and William Gomez, against whom he makes the vague and conclusory allegation that they convicted him on disciplinary charges without "adequate evidence." ECF No. 7 at 24. In addition, he sues Ron Wager and Stephanie Gonzales for upholding the convictions on appeal without "adequate investigation." ECF No. 7 at 24. He fails to provide an explanation of what constitutes adequate evidence or an adequate investigation.
As to the claims against Mr. Wager and Ms. Gonzales, the July 29 order specifically informed Mr. Stetzel that the "denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F.Appx. 179, 193 (10th Cir. Jan. 13, 2009) (unpublished) (stating that "the denial of the grievances alone is insufficient to establish personal participation in the alleged constitutional violations.") (internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, No. 02-1486, 99 F.Appx. 838, 843 (10th Cir. May 20, 2004) (unpublished) (sending "correspondence [to high-ranking prison official] outlining [a] complaint... without more, does not sufficiently implicate the [supervisory official] under § 1983").
In claim four, Mr. Stetzel contends he lacks adequate space to present his equal protection argument adequately and presents it simply to preserve the claim, hoping to submit additional supporting allegations in the future. As a result, claim four is vague, conclusory, and unacceptable in its present form.
The second and final amended Prisoner Complaint Mr. Stetzel will be directed to file must contain a short and plain statement of each claim he intends to assert. Specifically, the second and final amended Prisoner Complaint must comply with the pleading requirements of Fed.R.Civ.P. 8. 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).
Mr. Stetzel must assert his claims in a manner that is clear and concise and allows the Court and each defendant to understand and respond to each asserted claim. Generally, Mr. Stetzel fails to provide "a generalized statement of the facts from which the defendant may form a responsive pleading." 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 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).
Mr. Stetzel must present his claims in a manageable and readable format that allows the Court and the defendants to know what claims are being asserted and to be able to respond to those claims. Mr. Stetzel must allege, simply and concisely, his specific claims for relief, including the specific constitutional rights that allegedly have been violated and the specific acts of each defendant that allegedly violated his rights. A long, chronological recitation of facts is not required. Nor should the Court or ...