IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02712-BNB

LEROY DAMASIO FRESQUEZ,

Plaintiff,

v.

SHERIFF TED MINKS,

MICHAEL FISH, Detention Service Manager,

JOHN DOE (CAPTAIN), March 5, 2010,

LT. MARTINALLI,

LT. G. GITTIN,

LT. J. LUCAS,

ADMINISTRATIVE SGT. RENFRO,

SGT. TROY BETKA,

SGT. SCOTT HAPP,

SGT. STEVEN WYGANT,

OFFICER KATHRINE FEROE,

DEPUTY SHERIFF CRUMBAKER,

DEPUTY SHERIFF RYAN VIERS,

DEPUTY SHERIFF DUSTIN DYELING,

DEPUTY SHERIFF ANTHONY KOTRIS,

DEPUTY SHERIFF DONALD SPRINGFIELD,

DEPUTY SHERIFF HOLLEY,

DEPUTY SHERIFF JAMES GELEUDE,

DEPUTY SHERIFF JASON RICHARDSON,

DEPUTY SHERIFF REID PERRY,

DEPUTY SHERIFF WILLIAM BOHM,

DEPUTY SHERIFF ERIK BOUGHAM,

DEPUTY SHERIFF HERBERT LONGSHORE,

DEPUTY SHERIFF #1958 (Name Unknown),

COUNSELOR MIKE COLLINS,

COUNSELOR SUPERVISOR DEBRA ELUDO,

CHANTEL CORKLE, Atty,

DOUGLAS K. WILSON, Atty,

DENNIS HALL, Jefferson County Judge,

WRITER MOTT, Atty,

LAURA WASSMUTH, Atty,

CORRECTIONAL HEALTHCARE MANAGEMENT,

CLAUDIA VAN BUREN/HSA,

RAYMOND HERR, Responsible Physician,

TRACY HAINES, LPN, and

KATHERINE BECERRA, RN,

Defendants.

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ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Leroy Damasio Fresquez, is in the custody of the Colorado Department

of Corrections and currently is incarcerated at the Centennial Correctional Facility in

Cañon City, Colorado. On November 16, 2011, the Court entered an order directing Mr.

Fresquez to file an Amended Complaint that stated how each named defendant 

personally participated in violating his constitutional rights. Mr. Fresquez also was

instructed to state what each defendant did to him, when the defendant engaged in the

action, how the action harmed him, and what specific legal right he believes the

defendant violated. Mr. Fresquez filed an Amended Complaint on December 12, 2011. 

The Amended Complaint is twenty-one pages long and is written in small lettering,

single-spaced. Mr. Fresquez names thirty-six defendants. 

The Court must construe the Amended Complaint liberally because Mr. Fresquez

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). However, the Court should not act as a pro se

litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Fresquez

will be ordered to file a Second Amended Complaint.

The Court has reviewed the Amended Complaint filed by Mr. Fresquez and finds

that the Complaint does 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.

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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

"shall 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.

Mr. Fresquez fails to set forth a short and plain statement of his claims showing

that he is entitled to relief and has presented his claims in a narrative chronological

format that is repetitive rather than asserting the claims in a short and concise format. 

Furthermore, although Mr. Fresquez specifically states what certain named defendants

did to violate his constitutional rights, for the most part his claims are conclusory and

vague and rely on supervisory responsibility. Therefore, Mr. Fresquez will be directed

to file a Second Amended Complaint that complies with the pleading requirements of

Rule 8. It is Mr. Fresquez’ responsibility to present his claims in a short and concise

format.

Mr. Fresquez must allege specific facts in his Second Amended Complaint that

demonstrate how each named defendant personally participated in the asserted

constitutional violations. 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. Fresquez must show that each defendant caused the

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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 defendant may not be held liable

on a theory of respondeat superior merely because of his or her supervisory position. 

See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703

F.2d 479, 483 (10th Cir. 1983). 

 To state a claim in federal court, the Second Amended “[C]omplaint must

explain what each defendant did to [the plaintiff] . . .; when the defendant did it; how

the defendant’s action harmed him . . . ; and, what specific legal right [he] believes the

defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163

(10thCir. 2007) (emphasis added). Accordingly, it is

ORDERED that Mr. Fresquez file, within thirty days from the date of this

Order, a Second Amended Complaint that complies with the particulars of this

Order. It is

FURTHER ORDERED that Mr. Fresquez 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. Fresquez fails to comply with this Order within

the time allowed the action will be dismissed without further notice.

DATED January 6, 2012, at Denver, Colorado.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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