In re Banks

Decision Date04 March 2015
Docket NumberCivil Action No. 13-cv-02599-KLM
PartiesTORREY 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.
CourtU.S. District Court — District of Colorado


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.

I. Jurisdiction

The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

II. Background
A. Procedural Background

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:

Mr. Banks' original complaint and amended complaint do 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. 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 Commc'ns 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 acomplaint "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.
Mr. Banks' amended complaint fails to assert any claims. His original complaint is unnecessarily verbose and rambling. At times, his single-spaced handwriting makes reading and understanding the allegations in his original complaint difficult. In addition, Mr. Banks fails to leave adequate margins, and the words in his original complaint are often truncated. Rule 10.1 of the Local Rules of Practice for this Court requires that all papers filed in cases in this Court be double-spaced, legible, and have one-inch margins at the left, right, and bottom, and a one and a half inch margin at the top. See D.C.COLO.LCivR 10.1C., E. and G.
Generally, Mr. Banks fails to provide "a generalized statement of the facts from which the defendant may form a responsive pleading." 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 basis." Id.
It is Mr. Banks's responsibility to present his claims in a manageable and readable format that allows the Court and the defendants to know what claims are being asserted and to be able to respond to those claims. Mr. Banks must allege, simply and concisely, his specific claims for relief, including the specific rights that allegedly have been violated and the specific acts of each defendant that allegedly violated his rights. The Court does not require a long, chronological recitation of facts. Nor should the Court or defendants be required to sift through Mr. Banks's verbose allegations to determine the heart of each claim. . . .
In order to state a claim in federal court, Mr. Banks "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 v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). 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).

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:

If Plaintiff, who proceeds in this matter pro se, is seeking leave to file an amended complaint, he must file a motion which complies with the federal and local rules, namely,

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