IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02656-BNB

BRIAN M. GROSS,

Plaintiff,

v.

TOM CLEMENTS,

JOHN DAVIS,

ELLEN BLACKMORE,

MARY CARTER,

THOMAS FISHER,

MARY BETH KALYMER,

KERRY BARONI,

MARCIA MORTIN,

ARISTEDES ZARVARES,

SM VICALVI,

P. LASTRELL,

JOHN DOE,

JANE DOE, and

ANTHONY DeCESARO,

Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Brian M. Gross, is a prisoner in the custody of the Colorado Department

of Corrections who currently is incarcerated at the Buena Vista Correctional Complex in

Buena Vista, Colorado. Mr. Gross initiated this action by filing pro se a Prisoner

Complaint pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. He asks for money

damages and injunctive relief. He has been granted leave to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915 with payment of an initial partial filing fee.

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The Court must construe the complaint liberally because Mr. Gross 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. Gross

will be ordered to file an amended complaint.

The Court has reviewed the complaint filed by Mr. Gross and finds it 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. 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.

In general, Mr. Gross alleges that the Defendants have denied him access to

medical and dental care necessary to manage his chronic medical conditions. On the

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basis of these allegations of deliberate indifference and delays in obtaining medical

treatment, allegations which easily could have been consolidated into three or four

claims, he asserts ten claims with disjointed and repetitive assertions. 

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

he is entitled to relief. Therefore, Mr. Gross will be directed to file an amended

complaint that complies with the pleading requirements of Rule 8. Mr. Gross must

present his claims in a short, concise, and manageable format that allows the Court and

the defendants to know what claims are being asserted and to be able to respond to

those claims. 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). To state a claim in federal court,

the amended “complaint must explain what each defendant did to him . . .; 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).

Mr. Gross must allege specific facts in his 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. Gross must name and show how the named defendants caused a

deprivation of his federal rights. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). 

There must be an affirmative link between the alleged constitutional violation and each

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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). A supervisor is only liable for constitutional violations

that he or she causes. See Dodds v. Richardson, 614 F.3d 1185, 1211 (10th Cir.

2010) (Tymkovich, J., concurring), cert. denied, 2011 WL 1529753 (U.S. Apr. 25,

2011).

Mr. Gross 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.

Gross uses fictitious names he must provide sufficient information about each

defendant so that he or she can be identified for purposes of service. 

Accordingly, it is

ORDERED that Plaintiff, Brian M. Gross, file within thirty days from the date of

this order, an amended complaint that complies with the pleading requirements of Rule

8 of the Federal Rules of Civil Procedure and with this order. It is

FURTHER ORDERED that Mr. Gross 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. Gross fails to comply with this order within the

time allowed, the complaint and the action will be dismissed without further notice.

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DATED December 28, 2011, at Denver, Colorado.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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