United States District Court, D. Colorado
CLINTON T. ELDRIDGE, Plaintiff,
A. OSAGIE, P.A., G. SANTINI, M.D., F. CORDOVA, P.A., P. LAIRD, R.D., and S. JULIAN, A.W., Defendants.
DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT
Gordon P. Gallagher United States Magistrate Judge
Plaintiff Clinton T. Eldridge is in the custody of the Federal Bureau of Prisons (BOP) currently incarcerated at the United States Penitentiary, ADX, in Florence, Colorado. Plaintiff initiated this action on December 17, 2015 by filing pro se a Prisoner Complaint (ECF No. 1). He has been granted leave to proceed in forma pauperis under the imminent danger of serious physical injury exception to 28 U.S.C. § 1915(g). (See ECF No. 8).
The Court must construe the Complaint liberally because Plaintiff is a pro se litigant. 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 act as the pro se litigant’s advocate. See Id. For the reasons set forth below, Plaintiff will be directed to file an amended complaint.
In his forty-four page Complaint, Plaintiff alleges that while incarcerated he has developed a number of medical problems, including “(1) Deep Vein Thrombosis, Protein C & S Deficiency and Post Phlebitis; (2) Musculoskeletal Disorder; (3) Chronic Lower Back Pain; (4) Left Lower Lumber Pain (bulging discs L 3-4, L 4-5, and L5 - S1); and (5) Chronic Hepatitis ‘C’ (HCV).” (ECF No. 1, at 4-5). He alleges that for the past ten years Defendants have denied him “proper medical treatment for a number of the illnesses plaintiff suffers from, and denied plaintiff proper housing due to his disabilities.” (Id., at 6). He specifically alleges that he has been denied handicap accessible facilities at ADX, physical therapy and a back brace for his back pain, an appointment with a skin doctor, and medication and treatment for his HCV. (Id., at 7-8). He contends that he will suffer life-threatening problems for the duration of his life without these treatments. (Id., at 8).
In claim one, Plaintiff asserts a deliberate indifference claim against Defendants Osagie, Santini, and Cordova because they have denied him proper medical treatment and antiviral medication for his HCV. He alleges that Defendants Osagie and Santini have denied the HCV medication “when test results warrant treatment.” (ECF No. 9-12). He further alleges that Defendants Osagie, Santini, and Cordova have failed to approve Plaintiff for the HCV medication because he is assigned to level four, which is the lowest priority for HCV treatment based on BOP’s policy for management of HCV. (Id., at 13-16). He also alleges that Defendant Laird rejected a medical transfer request submitted on Plaintiff’s behalf. (Id., at 17). Plaintiff asserts that Defendants have allowed “medical staff to give the wrong medication that have [sic] caused intentional consequences to plaintiff’s skin.” (Id., at 18-19). Plaintiff further contends that he has been denied outside recreation for the past ten years because he cannot stand without causing pain in his back and leg. (Id., at 20-21).
In claim two, Plaintiff asserts a claim under Section 504 of the Rehabilitation Act. (ECF No. 1, at 23). He contends that he is disabled due to a combination of his medical problems, and that he depends on a walker and plastic chair. (Id., at 24). He alleges that Defendants Osagie, Santini, and Julian have not provided him with physical therapy, have repeatedly denied his requests for a back brace, and have refused to provide him a cell, outside recreation, or work detail that accommodates his disabilities. (Id., at 25-28). Plaintiff seeks injunctive and declaratory relief as well as money damages. (Id., at 42-43).
I. Imminent danger
Plaintiff has been granted leave to proceed pursuant to § 1915 because he alleged sufficient facts that he was in imminent danger of serious physical injury based on the alleged denial of HCV medication and treatment. Plaintiff’s allegations in claim two, however, do not satisfy the imminent danger exception. Moreover, a claim brought pursuant to the Rehabilitation Act premised on allegedly inadequate medical care lacks merit. See Fitzgerald v. Corr. Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005). Therefore, in the amended complaint, Plaintiff may not assert a claim for violation of Section 504 of the Rehabilitation Act based on the allegations in his original Complaint.
II. Rule 8
The Complaint also is deficient because it 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 Rule 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 pleadings violate the requirements of Rule 8. See e.g., Schupper v. Edie, 193 F.App'x 744, 745-46 (10th Cir. 2006) (upholding the dismissal of a thirty-eight page complaint, containing 292 paragraphs, plus 120 pages of exhibits as unnecessarily prolix).
Moreover, 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); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”); Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory allegations that his rights have been violated does not entitle a pro se pleader to a day in court regardless of how liberally the pleadings are construed), 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 The Complaint fails to provide a short and plain statement of Plaintiff’s claim showing that he is entitled to relief. In particular, the Complaint is forty-four pages, plus ninety-four pages of exhibits, which does not comply with the Court’s Information and Instruction for Filing a Prisoner Complaint. See www.cod.uscourts.gov/CourtOperations/RulesPocedures/Forms.aspx (explaining that the complaint and all additional pages must not exceed thirty pages). The Complaint is repetitive and prolix and does not set forth a short and concise statement of facts that support the claims for relief.
To state a claim in federal court, Plaintiff 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). Plaintiff 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, 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).
A defendant also 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 U.S. 662, 676 (2009). “[W]hen a plaintiff sues an official under . . . § 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 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 ...