United States District Court, D. Colorado
UNITED STATES OF AMERICA, KIMBERLY SHIELDS, BRUCE A. DOUCETTE, STEVEN DEAN BYFIELD, STEPHEN NALTY, and HARLAN SMITH, Plaintiffs,
UNITED STATES incorporation, DONALD J. TRUMP, FEDERAL BUREAU OF INVESTIGATIONS, STATE OF COLORADO, CYNTHIA COFFMAN, CLORADO BAR ASSOCIATION, MICHAEL A. MARTINEZ, PATRICIA M. JARZOBSKI, MARTIN F. EGELHOFF, ROBERT S. SHAPIRO, CHRIS BYRNE, FBI AGENTS DOE 1-50, KIM DOE, STANLEY L. GARNETT, INTERNAL REVENUE SERVICE, and ANY OTHER YET NAMED PARTICIPANTS, Defendants.
ORDER DIRECTING PLAINTIFFS TO FILE AMENDED
Kathleen M Tafoya United States Magistrate Judge.
initiated this action by filing a pro se Complaint.
(Doc. No. 1.) They seek damages and various forms of
court must construe the complaint liberally because
Plaintiffs are 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 cannot act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the
reasons stated below, Plaintiffs will be directed to file an
Complaint 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 they may respond and to allow the court to
conclude that the allegations, if proven, show that the
plaintiffs are entitled to relief. See Monument Builders
of Greater Kansas City, Inc. v. Am. 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 Communic'ns Network, Inc. v. ESPN,
Inc., 767 F.Supp. 1062, 1069 (D. Colo. 1991). 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,
“Each 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.
must be presented clearly and concisely in a manageable
format that allows a court and a defendant to know what
claims are being asserted and to be able to respond to those
claims. 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
court has reviewed the Complaint and finds Plaintiffs fail to
provide a short and plain statement of their claims in
compliance with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure. Plaintiffs fail to provide
a short and plain statement of their claims showing they are
entitled to relief because they fail to provide specific and
clear factual allegations in support of their claims.
decision to dismiss a Complaint pursuant to Rule 8 is within
the trial court's sound discretion. See Atkins v. Nw.
Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992);
Gillibeau v. City of Richmond, 417 F.2d 426, 431
(9th Cir. 1969). The court, however, will give Plaintiffs an
opportunity to cure the deficiencies in the Complaint by
submitting an Amended Complaint that meets the requirements
of Fed.R.Civ.P. 8.
are required to assert personal participation by properly
named defendants in the alleged constitutional violations.
See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). To establish personal participation, Plaintiffs
must show in the Cause of Action section of the Complaint 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).
to state a claim in federal court, a 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 as to each
and every claim. 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.”). Accordingly, in the Amended
Complaint, Plaintiffs must allege specific facts to show how
each named Defendant personally participated in an alleged
deprivation of their constitutional rights.
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). 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.
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
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.” Dodds,
614 F.3d at 1199. Therefore, Plaintiffs should name as
Defendants only those persons they contend actually violated
their federal rights while acting under color of law.
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). Therefore, ...