Ct. at 1949). 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.

Finally, Mr. Mahirka has filed on August 18, 2011, a letter to the court (Doc. #20),
which has been docketed as a motion, asking the court to obtain certain records of the
March 4 incident as well as his medical records and also requesting an order directing
prison officials to stop unspecified harassment and retaliation. The liberally construed
motion will be denied without prejudice because the records Mr. Mahirka seeks is a
matter properly addressed during discovery and his allegations of harassment and
retaliation are vague and conclusory. Accordingly, it is

ORDERED that Mr. Mahirka file, within thirty (30) days from the date of this
order, an amended Prisoner Complaint that complies with the pleading requirements of
Fed. R. Civ. P. 8(a) as discussed in this order. It is

FURTHER ORDERED that Mr. Mahirka 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. It is

FURTHER ORDERED that, if Mr. Mahirka fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, the action will be
dismissed without further notice. It is

FURTHER ORDERED that the motion (Doc. #20) filed on August 18, 2011, is

5


against any person who, acting under color of state law, deprives another of his federal
tights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S.
158, 161 (1992) (“[T]he purpose of § 1983 is to deter state actors from using the badge
of their authority to deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.”). Therefore, Mr. Mahirka should name as
Defendants in his amended complaint only those persons that he contends actually
violated his federal constitutional rights.

Because Mr. Mahirka has named a number of supervisory officials as
Defendants, the Court also emphasizes that personal participation is an essential
allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10"
Cir. 1976). To establish personal participation, Mr. Mahirka 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 (10" Cir. 1993).
With respect to the supervisory officials, a Defendant may not be held liable for the
unconstitutional conduct of his or her subordinates on a theory of respondeat superior.
See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (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.

See Dodds v. Richardson, 614 F.3d 1185, 1198 (10" Cir. 2010) (quoting Iqbal, 129 S.


denied without prejudice.
DATED at Denver, Colorado, this 14" day of September, 2011.
BY THE COURT:

s/Craig B. Shaffer

Craig B. Shaffer
United States Magistrate Judge


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

UNITED
oie
‘vil Acti . 1 -cve -BNB
Civil Action No. 11-cv-01977 SEP 1 4 201
JOHN NICHOLAS MAHIRKA, GREGORY CG. LANGHAM
Plaintiff, . —

Vv.

JOHN HICKENLOOPER, Governor,

TOM CLEMENTS, Head of Prisons CDOC,
DAVID ZUPAN, Warden,

LARRY REID, Deputy Director of Prisons,
NURSE CAMACHO, Head of Nurses Here,
CO LT. HASUI,

CO BOURNE, and

CO SERGEANT GONZALUS,

Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, John Nicholas Mahirka, is a prisoner in the custody of the Colorado
Department of Corrections at the Fort Lyon Correctional Facility in Fort Lyon, Colorado.
Mr. Mahirka initiated this action by filing pro se on the same date two different versions
of a Prisoner Complaint (Doc. ##1 and 2) asserting claims pursuant to 42 U.S.C. §
1983. The court must construe the complaints liberally because Mr. Mahirka 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 (10" 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. Mahirka will be ordered to file one amended pleading if he wishes to pursue

his claims in this action.


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

CERTIFICATE OF MAILING
Civil Action No. 11-cv-01977-BNB
John Nicholas Mahirka
Prisoner No. 52957
Fort Lyon Correctional Facility
PO Box 1000
Fort Lyon, CO 81038

| hereby certify that | have mailed a copy of the ORDER to the above-named
individuals on September 14, 2011.

GREGORY C. LANGHAM, CLERK

By:
eputy Clerk


The court has reviewed the Prisoner Complaints and finds that they are deficient
for several reasons. First, in order to avoid any confusion regarding which pleading is
the operative pleading, Mr. Mahirka must assert a single amended complaint that raises
all of the claims he wishes to pursue in this action.

The Prisoner Complaints also are deficient because Mr. Mahirka fails to provide
an address for each named Defendant. Instead, Mr. Mahirka provides addresses only
for Defendants Hickenlooper, Clements, and Zupan. The addresses are necessary to
serve the complaints properly.

Most importantly, the Prisoner Complaints are deficient because they 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. American Cemetery Ass'n of
Kansas, 891 F.2d 1473, 1480 (10" 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 (10" 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 “[eJach 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. Mahirka asserts essentially the same three claims for relief in each complaint
but he fails to set forth a short and plain statement of each claim showing that he is
entitled to relief. More specifically, Mr. Mahirka fails to identify the constitutional right
allegedly violated in connection with each asserted claim, he fails to provide a clear and
concise statement of the factual basis for each asserted claim, and he fails to identify
what claim or claims he is asserting against each named Defendant. Instead, Mr.
Mahirka makes vague and conclusory allegations regarding an incident on March 4,
2011, when he broke his arm after falling in a bathroom without explaining specifically
who has violated his rights, how his rights have been violated, and what each
Defendant did that allegedly violated his rights. Therefore, Mr. Mahirka will be ordered
to file an amended complaint that provides a short and plain statement of each claim he
is asserting if he wishes to pursue his claims in this action.

Mr. Mahirka is advised that, in order to state a claim in federal court, he “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.1.C.E. Agents, 492 F.3d 1158,
1163 (10" 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 (10" Cir. 2005).

Mr. Mahirka also is advised that § 1983 “provides a federal cause of action

3