Burns v. Buford et al

Filing 63

ORDER to Dismiss in Part and to Draw Case to a District Judge and to a Magistrate Judge. Denying 61 Request to Rehear Previously Filed Motion for Referral to Mentor Program, Request for Counsel and Waiver of Service. Claim One is dismissed. Defe ndants Stacey Buford, the Colorado Attorney General, and Correctional Health Care Partners are dismissed as parties to this action. The CDOC is also dismissed to the extent Plaintiff brings a claim against that entity, by Judge Lewis T. Babcock on 6/19/12.(lswsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02691-BNB
DOUGLAS BURNS,
Plaintiff,
v.
STACEY BUFORD, Sgt.,
COLORADO ATTORNEY GENERAL (John or Jane Doe or Rob or Jennifer Huss),
ERIN WOLFF, R.N.,
M. MEEHAN, Lt.,
TED LAURENCE, P.A.,
ASSEN, Dr.,
VIHIL, Dr.,
TEJINDER SINGH, P.A.,
JOHN AND JANE DOES, Nurse and P.A.’s at DWCF Infirmary,
JEFF CLEMENS, Dr., St. Mary Corwin,
CORRECTIONAL HEALTH PARTNERS, Colorado Department of Corrections; John
and Jane Does for the Above;
FERNANDEZ A. HENRIQUE, J.M.D., St. Mary Corwin,
CLINICAL SERVICES FOR COLORADO DEPARTMENT OF CORRECTIONS,
KELLY WASKO,
PERSON ASSIGNED TO DOUGLAS BURNS HEALTH CARE, Jane Doe Nurse at La
Vista Correctional Facility and John or Jane Doe for the La Vista Correctional
Facility Clinical Services, and
NURSES AND P.A.’S ON THE SWING SHIFT, Denver Women’s Prison Jane Does at
Denver Women’s Correctional Facility,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Douglas Burns, resides in Lakewood, Colorado. At the time he initiated
this action, he was in the custody of the Colorado Department of Corrections (CDOC).
On February 7, 2011, Magistrate Judge Boyd N. Boland ordered Mr. Burns to file an
amended complaint to comply with Fed. R. Civ. P. Rule 8 and to assert the personal

participation of all named defendants. This action was thereafter dismissed without
prejudice on March 15, 2011 because, inter alia, Mr. Burns failed to file an amended
complaint. The Court thereafter denied Plaintiff’s motion to reconsider, and he
appealed that order to the United States Circuit Court for the Tenth Circuit Court of
Appeals. The Tenth Circuit vacated the order denying Mr. Burns’ Rule 60(b) motion and
remanded the case for this Court to consider the motion after he had been allowed to
submit evidence supporting his claim that he never received the order of February 7,
2011, directing him to file an amended complaint. On May 11, 2012, this Court ordered
Plaintiff to file an amended complaint within thirty days that complied with the directives
in the February 7, 2011, Order. Mr. Burns filed his amended Prisoner Complaint on
June 11, 2012. Mr. Burns claims in the amended Prisoner Complaint that he was
deprived of his constitutional rights while he was in the custody of the CDOC, pursuant
to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.
Mr. Burns has been granted leave to proceed in forma pauperis, pursuant to 28
U.S.C. § 1915. The Court must dismiss the amended complaint, or any portion of the
amended complaint, that is frivolous. See 28 U.S.C. § 1915A(b)(1). A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. See Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Complaint liberally because Mr. Burns 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 (10th Cir. 1991). If the Complaint reasonably can be
read “to state a valid claim on which the plaintiff could prevail, [the Court] should do so
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despite the plaintiff’s failure to cite proper legal authority, [her] confusion of various legal
theories, his poor syntax and sentence construction, or [her] unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court should not be an advocate
for a pro se litigant. See id.
Mr. Burns alleges in claim one of the amended Prisoner Complaint that
defendants Colorado Attorney General and Stacey Burford, the property sergeant at
Arkansas Valley Correctional Facility, confiscated a petition for writ of habeas corpus
that he intended to file with the Colorado Supreme Court. Plaintiff alleges in claim two
that Defendants Wolff and Meehan retaliated against him for complaining about the
denial of medical care when they filed a false disciplinary report that resulted in the loss
of good/earned time credits in December 2009. Mr. Burns states that he prevailed in his
appeal of the disciplinary conviction to the state district court. For claims three through
seven, Plaintiff asserts that he was denied adequate medical care for his ulcerative
colitis by Defendants Vihil; Singh; Laurance; Assen; John and Jane Doe nurses and
P.A.’s at Denver Women’s Correctional Facility infirmary; Wasko; Dr. Fernandez;
Correctional Health Partners; Clinical Services for CDOC; Dr. Clemens; and the John
and Jane Doe La Vista medical personnel.
The claims asserted by Mr. Burns against the CDOC are barred by sovereign
immunity. See Griess v. State of Colorado, 841 F.2d 1042, 1044 (10th Cir. 1988) (the
CDOC is an agency of the State of Colorado that has not expressly waived its sovereign
immunity). Accordingly, the CDOC is an improper party to this action and will be
dismissed.
Mr. Burns’ Eighth Amendment claim against Defendant Correctional Health
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Partners, a private contractor and medical services provider for the CDOC, must also be
dismissed. The established principles of municipal liability have been found to apply to §
1983 claims brought against private corporations such as the Defendant. See, e.g.,
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir.2003) (finding that “[a]lthough
the Supreme Court's interpretation of § 1983 in Monell applied to municipal
governments and not to private entities acting under color of state law, case law from
this and other circuits has extended the Monell doctrine to private § 1983 defendants.”).
According to the principles of municipal liability, a private actor such as Correctional
Health Partners “cannot be held liable solely because it employs a tortfeasor-or, in other
words . . . cannot be held liable under § 1983 on a respondeat superior theory.” Monell
v. Dep't of Social Servs., 436 U.S. 658, 691 (1978). In order to hold a private actor
liable for the alleged constitutional violations of its agents, a plaintiff must show that the
private actor directly caused the constitutional violation by instituting an “official
municipal policy of some nature” that was the “direct cause” or “moving force” behind
the constitutional violation. Smedley v. Corr. Corp. of Am., 175 Fed. Appx. 943, 944
(10th Cir. Dec. 20, 2005) (unpublished opinion). “That is, a plaintiff must show that the
municipal action was taken with the requisite degree of culpability and must
demonstrate a causal link between the municipal action and the deprivation of federal
rights.” Bd. of County Com'rs. v. Brown, 520 U.S. 397, 404 (1997).
Here, Mr. Burns does not identify an “official municipal policy of some nature”
that was the “moving force” behind the constitutional violations he alleges. Smedley,
175 Fed. Appx. at 944. Therefore, Correctional Health Partners is not a proper party to
this action and will be dismissed.
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In addition, Mr. Burns first claim must be dismissed as legally frivolous. He
asserts that he was denied his constitutional right of access to the courts when
Defendants Buford, the mail room sergeant, and the Colorado Attorney General
confiscated the state habeas petition that he intended to file with the Colorado Supreme
Court. However, Mr. Burns cannot prevail on this claim because he does not allege an
actual injury. Specifically, he has not alleged facts to show that he tried to pursue a
non-frivolous claim in court but was unable to do so. See Lewis v. Casey, 518 U.S.
343, 348-50 (1996); see also Williams v. Mestas, No. 09-1236, 355 F. App’x. 222, 22425 (10th Cir. Dec. 8, 2009) (dismissing claim as legally frivolous).
Further, Mr. Burns does not state specific facts to show that Defendant Colorado
Attorney General personally participated in the confiscation of the habeas corpus
petition. Mr. Burns was warned by Magistrate Judge Boland in the Order of February 7,
2011, that personal participation is an essential element of a § 1983 action. See
Bennett v. Passic, 545 F.2d 1260, 1262–63 (10th Cir .1976). 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).
Accordingly, Defendants Buford and the Colorado Attorney General are improper
parties to this action and will be dismissed.
After review pursuant to D.C.COLO.LCivR 8.2C, the Court has determined that
Mr. Burns’ remaining claims (Claims Two, Three, Four, Five, Six and Seven) do not
appear to be appropriate for summary dismissal and that the case should be drawn to a
district judge and to a magistrate judge. See D.C.COLO.LCivR 8.2D. Accordingly, it is
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ORDERED that Defendants Stacey Buford, the Colorado Attorney General, and
Correctional Health Care Partners are dismissed as parties to this action. The CDOC is
also dismissed to the extent Plaintiff brings a claim against that entity. It is
FURTHER ORDERED that Claim One is dismissed for the reasons set forth
above. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
FURTHER ORDERED that Plaintiff’s “Request to Rehear Previously Filed Motion
for Referral to Mentor Program, Request for Counsel and Waiver of Service” (ECF No.
61) is denied as premature. Plaintiff may refile his motion after the Defendants file an
Answer or other responsive pleading to the amended complaint.
DATED at Denver, Colorado, this 19th

day of

June

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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