United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND TO DRAW IN PART
LEWIS T. BABCOCK, Senior District Judge.
On August 27, 2014, Plaintiff Joshua Lamont Sutton initiated this action by filing pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983. Magistrate Judge Boyd N. Boland granted Plaintiff leave to proceed pursuant to 28 U.S.C. § 1915 and then, on October 24, 2014, directed Plaintiff to amend the Complaint in compliance with Fed.R.Civ.P. 8. Specifically, Magistrate Judge Boland found Plaintiff's claims include a rambling chronology of events, were conclusory and vague, and failed to state how each named defendant violated his rights. Plaintiff was directed to assert personal participation by each named defendant in the alleged constitutional violation and that a defendant may not be held liable for the unconstitutional conduct of his or her subordinates on a theory of respondeat superior. Finally, Magistrate Judge Boland noted that Plaintiff had filed two other prisoner complaints, Sutton v. Roberts, et al., No. 14-cv-02586-BNB (D. Colo. Filed Sept. 17, 2014), and Sutton v. Thiebout, et al., No. 14-cv-2579-BNB (D. Colo. Filed Sept. 17, 2014), that address the same incident Plaintiff has identified in this case. Magistrate Judge Boland told Plaintiff that the Amended Complaint he is directed to file in this case must not be repetitious of the cause of action he states in Case No. 14-cv-02586-LTB or in Case No. 14-cv-02579-LTB.
Plaintiff filed an Amended Complaint on November 26, 2014. This Court reviewed the Amended Complaint and found as follows. In the Nature of the Case section of the Amended Complaint, Plaintiff identified fourteen incidents that have taken place since 1985. The incidents alleged involved actions by various named defendants and raised a variety of issues. The Court told Plaintiff that the Amended Complaint, like the original Complaint failed to comply with Rule 8. Plaintiff's claims are conclusory and vague and not presented in a simple and concise statement.
The Court dismissed the Amended Complaint in part and directed Plaintiff to file a Second Amended Complaint. The Court found several named defendants are immune from suit and dismissed the claims against them as legally frivolous. The Court also found that Plaintiff failed to state a claim against the City of Pueblo, that certain claims were barred by Heck V. Humphrey, 512 U.S. 477 (1994), and that the challenges to the execution are properly raised in a 28 U.S.C. § 2241 and not in a civil complaint. Finally, the Court found that Plaintiff had improperly combined a number of separate and unrelated claims against different defendants.
Regardless of the numerous deficiencies in the Amended Complaint, the Court, on December 18, 2014, afforded Plaintiff one last opportunity to cure the deficiencies by submitting a Second Amended Complaint that complies with Rule 8 and the joinder requirements of the Federal Rules of Civil Procedure.
Plaintiff filed a Second Amended Complaint on January 20, 2015. Plaintiff also filed motions to dismiss in each of the three other complaints that he either filed simultaneous with this action or shortly thereafter, which had been dismissed for failure to prosecute prior to the filing of the motions to dismiss. See Sutton v. Roberts, et al., No.14-cv-02586-LTB (D. Colo. Dec. 8, 2014); Sutton v. Thiebout, et al., No. 14-cv-02579-LTB (D. Colo. Dec. 8, 2014); Sutton v. LaPage, et al., No. 14-cv-02387-LTB (D. Colo. Dec. 5, 2014).
Before the Court had the opportunity to complete a review of the seventeen claims raised in the Second Amended Complaint, asserted against twenty-four defendants, and enter an order, Plaintiff filed a Third Amended Complaint pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 1988, 18 U.S.C. §§ 1621 and 3571, and Colo. Rev. Stat. §§ 18-8-502 and -707. Plaintiff pursuant to Fed.R.Civ.P. 15(a), may amend his Complaint once as a matter of course without seeking leave of court. Nonetheless, the Third Amended Complaint "supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified.'" See Hooten v. Ikard Servi Gas, No. 12-2179, 2013 WL 1846840 at *4 (10th Cir. May 3, 2013) (quoting Giles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990)). The Court, therefore, will address only the merits of the Third Amended Complaint.
In the third Amended Complaint, Plaintiff asserts the following twelve claims.
Claim One-All named defendants violated his equal rights under 42 U.S.C. § 1981;
Claim Two-All named defendants violated his rights under 42 U.S.C. § 1983;
Claim Three-All named defendants conspired to interfere with his civil rights in violation of 42 U.S.C. § 1985;
Claim Four-All named defendants deprived him of his right to free exercise of religion under the First Amendment by forcing him to eat meat;
Claim Five-Defendants Matthew VanLeeuwen, Brian Gowin, and Anthony Roderick violated his Fourth Amendment rights by "describing [Plaintiff] as the person to be seized";
Claim Six-Defendants Matthew VanLeeuwen, Brian Gowin, and Anthony Roderick violated his Fifth Amendment rights by holding him in solitary ...