United States District Court, D. Colorado
LYNDON A. ELDER, Plaintiff,
SHERIFF SHAUN SMITH, DEPUTY EVERS DEPUTY HEGARTY, KIRSTEN SEARFUS, M.D., Defendants.
ORDER TO AMEND
P. GALLAGHER, Magistrate Judge.
Lyndon A. Elder, is a prisoner currently incarcerated at the
La Plata County Jail in Durango, Colorado. On January 15,
2016, he filed pro se a Prisoner Complaint (ECF No.
1). He has been granted leave to proceed in forma
pauperis. (ECF No. 6).
court must construe the Complaint liberally because Mr. Elder
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 following reasons, Mr. Elder will be directed to file an
Amended Complaint if he wishes to pursue his claims in this
Amended Complaint fails to 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. Elder's responsibility to present his claims in a
manageable and readable format that allows the Court and
defendants to know what claims are being asserted and to be
able to respond to those claims. Mr. Elder must allege,
simply and concisely, his specific claims for relief,
including the specific rights that allegedly have been
violated and the specific acts of each defendant that
allegedly violated her rights. Mr. Elder is directed to
present his claims in the space provided on the
court-approved Prisoner Complaint form and include relevant
supporting factual allegations for each claim in the space
provided. The Court and defendants are not required to sift
through Mr. Elder's attachments to locate the heart of
each claim. 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).
appears that Mr. Elder is attempting to pursue an Eighth
Amendment claim of deliberate indifference to a serious
medical need. The amended complaint should include specific
factual allegations to support his claims and specify what
each Defendant did that allegedly violated his rights.
See Nasious v. Two Unknown B.I.C.E. Agents,
492 F.3d 1158, 1163 (10th Cir. 2007) (noting that, to state a
claim in federal court, "a complaint 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"). Plaintiff must assert personal participation
by a named defendant in the alleged constitutional violation.
See Bennett v. Passic, 545 F.2d 1260,
1262-63 (10th Cir. 1976). To establish personal
participation, Plaintiff must show how each named individual
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).
in a Letter to the Court that is included with this
Complaint, Mr. Elder alleges that he is "caught between
a rock and a hard place." He alleges that he is having a
hard time pursuing claims in this Court because he is
"given 2 pieces of writing paper per week. No manilla
envelopes, carbon paper, or notary." He attaches
numerous "Inmate Request Forms" that he submitted
to prison officials requesting postage for legal mail,
writing paper, copies made of papers, and manilla envelopes
in order to file his claims with this court. If Plaintiff is
attempting to assert a First Amendment Claim for right of
access to the courts, he must plead facts to show that he was
impeded in his ability to file a civil rights action.
See Lewis v. Casey, 518 U.S. at 354-55
(plaintiff must allege that the state's interference led
to an "actual injury" by "frustrat[ing],
" "imped[ing], " or "hinder[ing] his
efforts to pursue a legal claim."); see also
Peterson v. Shanks, 149 F.3d 1140, 1145 (10th
Cir.1998) (" To present a viable claim for denial of
access to courts, however, an inmate must allege and prove
prejudice arising from Defendants' actions.").
Plaintiff was successful in filing the instant civil rights
action, so it appears he would not be able to adequately
assert a viable claim for denial of access to the courts.
However, in order to help the Plaintiff file an Amended
Complaint, the Court will direct the Clerk of Court to send
Plaintiff a blank copy of the court-approved Prisoner
that Mr. Elder file, within thirty (30) days from the date of
this order, an amended complaint as directed in this order.
ORDERED that the Clerk of Court send Plaintiff a copy of the
court-approved Prisoner Complaint form. Mr. Elder shall use
the court-approved Prisoner Complaint form to file his
Amended Complaint. It is
ORDERED that if Mr. Elder fails to file an amended complaint
that complies with this order within the time allowed, the