Brooks v. Colorado Department of Corrections et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02894-BNB
JASON BROOKS,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
DAVID OBA,
PATRICK BLAKE,
ANGIE TURNER,
CORRECTIONS CORPORATION OF AMERICA,
DOLORES MONTOYA,
DEBRA FOSTER,
JULIE RUSSELL,
SUSAN JONES,
KATHY HOWELL,
TIM CREANY,
ANTHONY DECESARO,
PAUL CLINE,
LOU ARCHULETTA,
YVETTE BROWN,
DAVID TESSIERE,
RICK RAEMISCH, and
KELLIE WASKO,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Jason Brooks, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) at the Fremont Correctional Facility in Cañon City, Colorado. Mr.
Brooks has filed pro se an eighty-five-page Prisoner Complaint (ECF No. 1) including
fifty-eight pages of attachments asserting claims under 42 U.S.C. § 1983 and the
Americans With Disabilities Act (ADA), 42 U.S.C. § 12133.
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The Court must construe the Prisoner Complaint liberally because Mr. Brooks 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 reasons stated
below, Mr. Brooks will be ordered to file an amended Prisoner Complaint if he wishes to
pursue claims against all of the named Defendants in this action.
The Court finds that the complaint is deficient in various respects. First, the
Prisoner 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.
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Mr. Brooks’ complaint is unnecessarily prolix. Plaintiff asserts four claims of cruel
and unusual punishment, denial of due process, discrimination under the ADA, and
denial of access to the courts. He bases each of his four claims on the same
allegations contained in sixteen pages in the section designated “C. Nature of the
Case.” ECF No. 1 at 7-22. Those assertions stem from his allegedly inadequate dental
treatment for a tooth and inadequate medical treatment for chronic ulcerative colitis that
arose while he was incarcerated at the Bent County Correctional Facility and continues
during his current incarceration at the Fremont Correctional Facility. In addition, it is not
clear how Mr. Brooks rights under the ADA have been violated by the Defendants he
names.
As a result, Mr. Brooks fails to assert his claims in a manner that is clear and
concise and allows the Court and Respondents to understand and respond to each
asserted 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).
The complaint also is deficient because Mr. Brooks fails to allege facts that
demonstrate that each of the named Defendants personally participated in the asserted
constitutional violations. For example, Mr. Brooks is suing a grievance officer, Anthony
A. DeCesaro, whose only apparent involvement in the alleged constitutional violations
was to deny his grievances. Such allegations are not sufficient to hold this Defendant
liable under § 1983. “[A] denial of a grievance, by itself without any connection to the
violation of constitutional rights alleged by plaintiff, does not establish personal
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participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
In addition, Mr. Brooks may not hold Defendants such as Susan Jones, warden
at the Fremont Correctional Facility, or Angie Turner, health service administrator at the
Bent County Correctional Facility, liable based on a theory of respondeat superior. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Instead,
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.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556
U.S. at 677). Therefore, in order to succeed in a § 1983 suit 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.” Id. at 1199.
Similarly, Mr. Brooks may not hold Corrections Corporation of America (CCA)
liable on a theory of respondeat superior. See Smedley v. Corrections Corp. of
America, 175 F. App’x 943, 946 (10th Cir. 2005). In order to state a cognizable claim
against CCA, Mr. Brooks “must show that CCA directly caused the constitutional
violation by instituting an official municipal policy of some nature that was the direct
cause or moving force behind the constitutional violation.” Id. (internal citation and
quotation marks omitted).
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Mr. Brooks also may not sue the DOC for money damages. The State of
Colorado and its entities are protected by Eleventh Amendment immunity. See Will v.
Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d
1512, 1525-26 (10th Cir. 1988). “It is well established that absent an unmistakable
waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation
of such immunity by Congress, the amendment provides absolute immunity from suit in
federal courts for states and their agencies.” Ramirez v. Oklahoma Dep't of Mental
Health, 41 F.3d 584, 588 (10th Cir. 1994), overrruled on other grounds by Ellis v.
University of Kansas Med. Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado
has not waived its Eleventh Amendment immunity, see Griess v. Colorado, 841 F.2d
1042, 1044-45 (10th Cir. 1988), and congressional enactment of § 1983 did not
abrogate Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S. 332, 340-345
(1979). The Eleventh Amendment applies to all suits against the state and its agencies,
regardless of the relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d
638, 644 (10th Cir. 2003).
If Mr. Brooks wishes to pursue a constitutional claim or claims against the named
Defendants, he must file an amended complaint that identifies what those Defendants
did that allegedly violated his constitutional rights. In addition, § 1983 “provides a
federal cause of action against any person who, acting under color of state law,
deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). In
order to state a claim in federal court, Mr. Brooks “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.” Nasious
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v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Therefore, Mr.
Brooks should name as Defendants only those persons he contends actually violated
his federal constitutional rights.
Mr. Brooks may use fictitious names, such as “John or Jane Doe,” if he does not
know the real names of the individuals who allegedly violated his rights. However, if Mr.
Brooks uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Lastly, Mr. Brooks fails to provide an address for each named Defendant. Mr.
Brooks must provide a current address for each named Defendant so that each
Defendant can be properly served.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s
sound discretion. See Atkins v. Northwest 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
finds that the Prisoner Complaint does not meet the requirements of Fed. R. Civ. P. 8.
Mr. Brooks will be given an opportunity to cure the deficiencies in his complaint by
submitting an amended complaint that states claims clearly and concisely in compliance
with Fed. R. Civ. P. 8, and alleges specific facts that demonstrate how each named
defendant personally participated in the asserted constitutional violations. The Court
will not consider any claims raised in separate attachments, amendments, supplements,
motions, or other documents not included in the amended complaint.
Accordingly, it is
ORDERED that Plaintiff, Jason Brooks, file within thirty (30) days from the
date of this order an amended complaint as directed in this order. It is
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FURTHER ORDERED that Mr. Brooks shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov, and use that form in
submitting the amended Prisoner Complaint. It is
FURTHER ORDERED that, if Mr. Brooks fails to file an amended complaint that
complies with this order within the time allowed, some or all claims and Defendants may
be dismissed.
DATED October 24, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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