In re Banks
Decision Date | 04 March 2015 |
Docket Number | Civil Action No. 13-cv-02599-KLM |
Parties | TORREY V. BANKS, Plaintiff, v. CAPTAIN KATZENMEYER, STEPHANIE ENGLAR, FCF Mental Health Counselor, JERRI SCOLLARD, Acting FCF Mental Health Supervisor, C. SOARES, Assistant Warden at CSP, CAPTAIN ARGUELLO, CSP Mail Room Supervisor, SGT. CROSLEY, C/O MALEBRANCHE, and CAPTAIN QUATTLEBAUM, Defendants. |
Court | U.S. District Court — District of Colorado |
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants' Motion to Dismiss [#37]1 (the "Motion") and Defendants' Response to Plaintiff's Motion to Amend His Third and Final Amended Complaint (Docs. 51-52) [#57] (the "Amendment Response"). Plaintiff filed a Response [##51, 52] to the Motion, Defendants did not file a reply and their deadline to do so has elapsed.2 The Motion is ripe for resolution. The Court has reviewed the Motion, the Response, the Amendment Response, the entire case file, and the applicablelaw, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#37] is GRANTED.
The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiff, an inmate at Sterling Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983. See Third and Final Am. Complaint [#22] at 6. Plaintiff initiated this case on September 20, 2013 by filing his original Complaint On October 9, 2013, the Court ordered Plaintiff to file a First Amended Complaint to cure various deficiencies in the original Complaint. See generally Order Directing Plaintiff to Cure Deficiencies [#4]. As a result, on October 18, 2013, Plaintiff filed his First Amended Complaint [#5].
On October 23, 2013, the Court ordered Plaintiff to file a Second Amended Complaint because of various deficiencies in his First Amended Complaint. See generally Order Directing Plaintiff to File Second Amended Complaint [#8]. Specifically, the Court explained that the First Amended Complaint failed to meet the pleading requirements of Fed. R. Civ. P. 8:
Id. at 3-5. The Court also explained to Plaintiff that he "should name as defendants in his second amended complaint only those persons that he contends actually violated his federal constitutional rights." Id. at 5. In addition, the Court made clear that personal participation must be alleged as to each Defendant:
Personal participation is an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation, Mr. Banks must show that each defendant 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 supervisory official[ ] 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). . . . 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.
Id. at 5-6. As a result, Plaintiff filed his Second Amended Complaint [#13] on November 8, 2013.
On January 30, 2014, the Court directed Plaintiff to file a Third and Final Amended Complaint. See generally Order Directing Plaintiff to File Third and Final Amended Complaint [#19]. In that Order, the Court again informed Plaintiff of the pleading requirements of Fed. R. Civ. P. 8 and informed him that his Second Amended Complaint failed to meet this standard. Id. at 3-5. The Court also reminded Plaintiff that personal participation by each Defendant must be alleged. Id. at 6. The Court noted that:
This is not the first case in which the Court has warned Mr. Banks to file a complaint that complies with the Rule 8 pleading requirements. He previously initiated a civil right[s] action which was dismissed without prejudice for failure to comply with the pleading requirements of Fed. R. Civ.P. 8. See Banks v. City of Lakewood, No. 12-cv-02014-LTB (D. Colo. Feb. 22, 2013). On July 25, 2013, the United States Court of Appeals for the Tenth Circuit affirmed that dismissal. See Banks v. Officer Doe, No. 13-1091, 523 F.App'x 503 (10th Cir. 2013). On December 2, 2013, the United States Supreme Court denied certiorari review. See Banks v. Doe, No. 13-6623, 134 S. Ct. 698 (2013).
Id. at 7-8. At that time, the Court considered dismissing this action pursuant to Fed. R. Civ. P. 8, but found that "dismissal may bar recovery if Mr. Banks seeks to refile because the two-year statute of limitations may have expired on his § 1983 claims." Id. at 8. As a result, the Court granted Plaintiff leave to amend and ordered him to file a third amended complaint. The Court informed Plaintiff that it would "not consider any claims raised in separate attachments, amendments, supplements, motions, or other documents not included in the third and final amended Prisoner Complaint." Id. at 8. On March 5, 2013, Plaintiff filed his Third and Final Amended Complaint [#22] (the "Third Amended Complaint"), the operative pleading in this case.
On May 7, 2014, the Court entered its Order to Dismiss in Part and to Draw Case to a Presiding Judge [#23] (the "May 7 Order"), which disposed of certain claims pursuant to 29 U.S.C. § 1915(e)(2)(B). On June 13, 2014, Plaintiff filed his Motion to Amend/Alter Under Fed. R. Civ. P. 59(e)[,] 60(b)[,] & 54 and/or Notice of Appeal [#31]. On August 21, 2014, the Court denied that motion without prejudice because it was "unclear to the Court" what relief Plaintiff sought in the Motion. See Minute Order [#40] at 1. The Court explained to Plaintiff that:
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