Opinion
Civil Action No. 07-cv-01575-REB-KLM.
February 14, 2008
ORDER
This matter is before the Court on Plaintiff's attempt to file a Final Amended Consolidated Complaint. On February 6, 2008, the Court struck Plaintiff's previous attempts to file Amended Complaints in this matter [Docket Nos. 57, 60, 61, and 66], and ordered Plaintiff to file a Final Amended Consolidated Complaint on or before February 13, 2008 [Docket No. 70]. On February 11, 2008, Plaintiff filed several documents [docketed together at Docket No. 72] which, although not labeled as his Final Amended Consolidated Complaint, appear to be his attempt to comply with the Court's Order. Because the Plaintiff is proceeding pro se, the Court construes his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The documents most recently filed by the Plaintiff list twenty (20) individuals, groups of individuals or entities as defendants in the multi-page caption. The same documents identify eighteen (18) of the twenty (20) who are listed in the caption in the section of the document titled "Parties." In addition, Plaintiff's most recent filing identifies eighteen (18) additional individuals as "Parties" who are not listed in the caption, and Plaintiff's statement of claims includes references to two (2) other individuals and three (3) groups of individuals who are neither listed in the caption nor identified in the "Parties" section of the pleading.
They are: "CSP Staff et al., Lt Chaves, CO Latimer, CO Simms, Greenwood, DOC/CSP/CTCF, Aristtedes [sic] W. Zavaras, Bill Ritter, Jr., CO Geridono, Captain Williams, Shift Commander Glideway, Shift Commander DeRosa, CO Clifton, CO Kirk, CO Mertz, CO Colt McVey, CO Sparks, CO Vaalpando, CO West and Five Unknown Kitchen Staff."
All of the above, except "CSP Staff et al." and "DOC/CSP/CTCF."
They are: "CO McDowell, CO Simpson, CO Achen, CO Hidenthal, Major Mayfield, Doctor Morgan, CO Ricky Watkins, Mrs. C. Smith, John Doe Mexican, CO Gillman, Jane Doe Woman Filming, CO Defransisco, CO Ken Topliss, CO Fazzino, Lt Duzenack, CO Ortega, Captain Vendetta, and CO Zamparelli."
They are "Holdich," "Jane Doe 2," "Bent County Staff," "CTCF Mail Room Staff," and "CSP Mail Room Staff."
Plaintiff's attempted Final Amended Consolidated Complaint suffers from several deficiencies on its face. First, Plaintiff has failed to provide an adequate description of the John Doe and Jane Doe defendants such that they may be served with the Final Amended Consolidated Complaint. Roper v. Grayson, 81 F.3d 124, 126 (10th Cir. 1996). Accordingly, IT IS HEREBY ORDERED that defendants "John Doe Mexican," "Jane Doe Woman Filming" and "Jane Doe 2" are stricken.
Second, Plaintiff has attempted to name groups of individuals as defendants without properly identifying individual wrongdoers or specifying the nature of his claims against them. See Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir. 1996); Monroe v. Owens, 38 Fed. Appx. 510, 515 (10th Cir. 2002) (unpublished decision). In addition, as Plaintiff has been informed by Magistrate Judge Boyd N. Boland in an Orderdated September 28, 2007 [Docket No. 14], he may not sue a state agency for money damages. Ramirez v. Okla. Dep't of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). Accordingly, IT IS FURTHER ORDERED that defendants "CSP Staff et al.," "DOC/CSP/CTCF," "Five Unknown Kitchen Staff," "Bent County Staff," "CTCF Mail Room Staff" and "CSP Mail Room Staff" are stricken.
Third, Plaintiff has named individuals in the caption and/or identified them as parties but failed to include them in his statement of claims or failed to allege personal participation by them, and therefore has stated no claim against them. See Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Accordingly, IT IS FURTHER ORDERED that defendants "Greenwood," "Bill Ritter, Jr. Governor of Colorado," and "Aristtedes [sic] W. Zavaras" are stricken.
IT IS FURTHER ORDERED that the following parties shall be included in the caption and named as defendants in Plaintiff's Final Amended Consolidated Complaint in this matter: Lt Chaves, CO Latimer, CO Simms, CO Geridono, CO Henry Williams, Shift Commander Glideway, Shift Commander DeRosa, CO Clifton, CO Kirk, CO Mertz, CO Colt McVey, CO Sparks, CO Vaalpando, CO West, CO McDowell, Co Simpson, Co Achen, Co Hidenthal, Major Mayfield, Doctor Morgan, CO Ricky Watkins, Mrs. C. Smith, CO Gillman, Co Defransisco, Co Ken Topliss, Co Fazzino, Lt Duzenack, Co Ortega, Captain Vendetta, Co Zamparelli and [FNU] Holdich.
IT IS FURTHER ORDERED that the Clerk shall serve copies of the Final Amended Complaint by United States mail upon the previously named defendants, as follows: CO McDowell, CO Simpson, CO Achen, CO Hidenthal, Major Mayfield, Doctor Morgan, CO Ricky Watkins, CO Henry Williams, Mrs. C. Smith, CO Gillman, CO Defransisco, CO Ken Topliss, CO Fazzino, Lt. Duzenack, CO Ortega, and Captain Vendetta.
IT IS FURTHER ORDERED that, if appropriate, the Clerk shall attempt to obtain a waiverof service from Defendants Lt. Chaves, CO Latimer, CO Simms, CO Geridono, Shift Commander Glideway, Shift Commander De Rosa, CO Clifton, CO Kirk, CO Mertz, CO Colt McVey, CO Sparks, CO Vaalpando, CO West, CO Zamparelli, and [FNU] Holdich ("New Defendants") who were added as defendants in the Final Amended Consolidated Complaint [Docket No. 72]. Plaintiff was given leave to amend his Complaint and add New Defendants by this Order and the Court's Order dated February 6, 2008 [Docket No. 70]. If the Clerk is unable to obtain a waiver of service from New Defendants, the United States Marshal shall serve a copy of the First Amended Consolidated Complaint, summons, order granting leave to proceed pursuant to 28 U.S.C. § 1915, and all other orders upon New Defendants. If appropriate, the Marshal shall first attempt to obtain a waiver of service of these documents pursuant to Fed.R.Civ.P. 4(d). All costs of service shall be advanced by the United States.
An Order Granting Service [Docket No. 22] was previously issued, and waivers of service executed for previously-named defendants [Docket No. 23].
IT IS FURTHER ORDERED that all named defendants or their counsel shall file their answers or other responses to the Final Amended Consolidated Complaint [Docket No. 72 as modified by this Order] no later than thirty (30) days from the date of service by United States mail or United States Marshal.