United States District Court, D. Colorado
RECOMMENDATION REGARDING DISMISSAL
Gordon
P. Gallagher, United States Magistrate Judge
This
matter comes before the Court on the Complaint (ECF No.
1)[1]
filed pro se by Plaintiff Shawn Allen on January 16,
2019. The matter has been referred to this Magistrate Judge
for recommendation[2]. See ECF No. 9. The Court has
reviewed the filings to date. The Court has considered the
entire case file, the applicable law, and is sufficiently
advised in the premises. This Magistrate Judge respectfully
recommends that the Complaint be dismissed without prejudice
for failure to comply with Rule 8 of the Federal Rules of
Civil Procedure.
I.
Factual and Procedural Background
Plaintiff
is a resident of Denver, Colorado. On January 16, 2019, he
submitted pro se a Complaint (ECF No. 1) asserting
federal question jurisdiction pursuant to 28 U.S.C. §
1331, and an Application to Proceed in District Court Without
Prepaying Fees or Costs (Long Form) (ECF No. 3). The Court
granted him leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. See ECF No. 6.
Due to
legal deficiencies in the Complaint, the Court entered on
January 16, 2019, an Order Directing Plaintiff to File
Amended Complaint (ECF No. 5). The Court provided Plaintiff
with thirty days to file an amended pleading and warned him
that failure to do so would result in the dismissal of this
action without further notice. To date, Plaintiff has not
filed an amended complaint or otherwise communicated with the
Court. See docket. Therefore, the Court will review
the original Complaint filed on January 16, 2019.
II.
The Complaint
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). If a complaint reasonably
can be read “to state a valid claim on which the
plaintiff could prevail, [a court] should do so despite the
plaintiff's failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110.
However, a court should not act as a pro se
litigant's advocate. See id.
In the
Complaint, Plaintiff alleges that on January 21, 2018,
Defendants violated his Eighth Amendment rights when “a
prisoner crashed through the ceilings ventilation system onto
my head.” ECF No. 1 at 4-5. He further alleges that
“Defendants knew of the unsecured vent system in the
prison and failed to have the vents properly secured.”
Id. Plaintiff also asserts that he was denied
adequate medical treatment after the injury occurred, and now
suffers from “major brain damage” and
“vision impairment.” Id. at 5. As
relief, he requests compensatory and punitive damages.
Id. at 6.
As set
forth in the Order Directing Plaintiff to File Amended
Complaint (ECF No. 5), the Court explained that
Plaintiff's pleading was deficient because he failed to
provide a clear statement of what each defendant did or
failed to do that allegedly violated his constitutional
rights in compliance with federal pleading standards under
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). 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.
Moreover,
vague and conclusory allegations that Plaintiff's rights
have been violated do 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). Furthermore, 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). Thus, “in 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. To state a cognizable claim in federal court, Plaintiff
must identify, clearly and concisely, the specific claims he
is asserting, the factual allegations that support each
claim, and what each of the named 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”).
The
Court also explained that municipal entities, such as
Defendants GEO Group and Cheyenne Mountain Re-Entry Center
are not liable under 42 U.S.C. § 1983 solely because
their employees inflict injury on a plaintiff. Monell v.
New York City Dep't of Social Servs., 436 U.S. 658,
694 (1978); Hinton v. City of Elwood, Kan., 997 F.2d
774, 782 (10th Cir. 1993). To assert a § 1983 claim
against these defendants, Plaintiff must allege specific
facts that demonstrate the existence of an injury caused by
official policy or custom. See City of Canton, Ohio v.
Harris, 489 U.S. 378, 385 (1989) (holding that plaintiff
must show that a municipal policy or custom exists and that
there is a direct causal link between the policy or custom
and the injury alleged); see also Dubbs v. Head Start,
Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (holding that
traditional municipal liability principles apply to claims
brought pursuant to 42 U.S.C. § 1983 against private
corporations); Smedley v. Corrections Corp. of
America, 175 Fed.Appx. 943, 946 (10th Cir. 2005)
(“in order to hold CCA liable for the alleged tortious
acts of its agents, [Plaintiff] must show that CCA directly
caused the constitutional violation by instituting an
official policy of some nature that was the direct cause or
moving force behind the constitutional violations”)
(internal citation and quotation marks omitted). As such,
Plaintiff cannot state a claim for relief under § 1983
against a municipality merely by pointing to isolated
incidents. See Monell, 436 U.S. at 694.
The
Court finally noted that Plaintiff may use fictitious names,
such as “John Doe” or “Jane Doe, ” if
he does not know the real names of the individuals who
allegedly violated his federal rights. However, he must
provide sufficient information about each John Doe or Jane
Doe defendant so that the defendant can be identified for
service. Sufficient information may include the date and time
of the alleged violation, the job description of the
defendant, and exactly what actions the defendant took.
Despite
the Court's direction to clarify his claims in an amended
pleading, Plaintiff has failed to correct the legal
deficiencies identified above and in the order to amend. The
Complaint does not provide fair notice of the basis for the
claims against Defendants and does not allow the Court to
conclude that the allegations, if proven, show that Plaintiff
is entitled to relief. Therefore, the Court recommends that
the Complaint be dismissed without prejudice for failure to
comply with Rule 8. See e.g., Nasious, 492 F.3d at
1162 (dismissal without prejudice on basis of failure to
comply with Rule 8 is within district court's
discretion).
III.
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