Nival v. Clements et al

Filing 28

ORDER to Dismiss in Part and to Draw Case to A District Judge and to a Magistrate Judge. Plaintiff Aurora Nival is dismissed as a party to this action for lack of standing. Defendants Tom Clements, Richard Smelser, Tiana Lucero, Lucy Hernandez, Antho ny DeCesaro and John Doe/Correctional Health Partners are dismissed as parties to this action for lack of personal participation. Claims One, Five, Six, Seven and Nine are dismissed for the reasons set forth above. This case shall be drawn to a district judge and to a magistrate judge. By Judge Lewis T. Babcock on 1/10/2012. (sah, ) (sah, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-01695-BNB
PEDRO NIVAL,
AURORA NIVAL, Ex Rel, Intervening Third Party with the Power of Attorney,
Plaintiffs,
v.
TOM CLEMENTS, Executive Director,
RICHARD SMELSER, Warden of CCCF,
JUDY BREZINDINE, CCCF Clinical Services Director,
DR. JERE SUTTON, CCCF HMO Provider,
LYNN THOMPSON, CCCF Nurse Practitioner,
TIANA LUCERO, Case Manager,
LUCY HERNANDEZ, Facility Grievance Officer,
ANTHONY DECESARO, Step III Grievance Officer,
JANE DOE # 1 (SANDY),
JANE # 2 (MARY),
JANE DOE # 3 (CHRISTIE), Nursing Staff,
All in their official and individual capacity, and
JOHN DOE/CORRECTIONAL HEALTH PARTNERS (CCA/DOC MEDICAL
PROVIDERS),
Defendants.

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

Plaintiff, Pedro Nival, is a prisoner in the custody of the Colorado Department of
Corrections (DOC) who is currently incarcerated at the Crowley County Correctional
Facility (CCCF) in Olney Springs, Colorado. Mr. Nival initiated this action by filing a pro
se prisoner complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. He has
been granted leave to proceed in forma pauperis with payment of an initial partial filing
fee.

On September 14, 2011, Magistrate Judge Craig B. Shaffer determined that the
prisoner complaint was deficient because it named improper parties and because it
failed to allege the personal participation of all named Defendants. Accordingly,
Magistrate Judge Shaffer directed Mr. Nival to file an amended prisoner complaint
within thirty days. After receiving several extensions of time, Mr. Nival submitted an
amended complaint on December 29, 2011.
The Court must construe the amended complaint liberally because Mr. Nival 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 amended complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
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.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the amended
complaint because Mr. Nival is a prisoner and some of the Defendants are officers or
employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is required to
dismiss the complaint, or any portion of the complaint, that is frivolous. 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).

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Mr. Nival asserts nine claims in the amended complaint. His claims stem from
allegations that he suffers from chronic pain in his feet, knees, hips, and lower back. He
asserts that the named Defendants have delayed or denied him access to necessary
medical care. Mr. Nival asserts that his rights have been violated under the Fourth,
Eighth, and Fourteenth Amendments. As a result, he seeks damages and injunctive
relief.
As a preliminary matter, the Court notes that the Amended Complaint seeks to
add Aurora Nival, a resident of Pueblo, Colorado, as a Plaintiff to this action. Mr. Nival
explains that “the Amended Complaint includes, if permitted, an amendment for another
Plaintiff who’s [sic] rights are not limited under the P.L.R.A., for which request is made
of the Court to recognize, and accept as the vehicle upon which damages shall be
sought.” Amended Complaint at 3. However, there is no indication in the Amended
Complaint that Aurora Nival has suffered an injury with respect to any claim asserted
therein because all of the claims relate to Mr. Nival’s conditions of confinement. The
United States Constitution requires that a party seeking to invoke the jurisdiction of the
federal courts must demonstrate that she has suffered some actual or threatened injury,
that the injury was caused by the defendants, and that a favorable judicial decision is
likely to redress the injury. Valley Forge Christian College v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 472 (1982); Hackford v. Babbitt,
14 F.3d 1457, 1464 (10th Cir. 1994). Because Plaintiff Aurora Nival fails to demonstrate
any actual or threatened injury as a result of the conditions of Mr. Nival’s confinement,
she lacks standing to assert claims concerning those conditions. See Citizens

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Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d
1289, 1295-96 (10th Cir. 1980). Therefore, Aurora Nival will be dismissed as a party to
this action.
In addition, in Claim One Mr. Nival is suing Defendants Executive Director Tom
Clements and Warden Richard Smelser because these Defendants allegedly are
responsible for the constitutional violations committed by other individuals or because
these Defendants hold supervisory positions. Mr. Nival asserts that he notified
Defendants Clements and Smelser of constitutional violations committed by defendants
under their supervision by sending letters to them. However, these allegations fail to
establish the personal participation of Defendants Clements and Smelser.
Mr. Nival was previously warned by Magistrate Judge Shaffer that personal
participation is an essential allegation in a civil rights 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). A Defendant may not be held liable on a theory of respondeat superior. See
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d
479, 483 (10th Cir. 1983). This is because Ҥ 1983 does not recognize a concept of
strict supervisor liability; the defendant’s role must be more than one of abstract
authority over individuals who actually committed a constitutional violation.” Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). Moreover, the Tenth Circuit has held
that receiving correspondence from an inmate does not demonstrate the personal

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participation required to trigger personal liability under
§ 1983. Davis v. Ark. Vally Corr. Facility, 99 Fed. Appx. 838, 843 (10th Cir. May 20,
2004) (unpublished opinion) (holding that copying the warden on correspondence does
not demonstrate the warden’s personal participation in an alleged constitutional
violation). Mr. Nival has failed to allege an affirmative link between the alleged
constitutional violations and these Defendants. Therefore, Defendants Tom Clements
and Richard Smelser are improper parties to this action, and they will be dismissed.
Because Claim One is only asserted against these Defendants, Claim One will also be
dismissed.
In Claims Five, Six, and Seven, Mr. Nival is suing Defendants Tiana Lucero, Lucy
Hernandez, and Anthony DeCesaro, respectively, because they allegedly denied
administrative grievances filed by Mr. Nival. See Amended Complaint at 9-11.
However, these allegations fail to establish the personal participation of Defendants
Lucero, Hernandez, and DeCesaro. The Tenth Circuit has repeatedly noted “that ‘the
denial of . . . grievances alone is insufficient to establish personal participation in the
alleged constitutional violations’” of other defendants. Whitington v. Ortiz, 307 Fed.
Appx. 179, 193 (10th Cir. Jan. 13, 2009) (unpublished decision) (quoting Larson v.
Meek, 240 Fed. Appx. 777, 780 (10th Cir. June 14, 2007) (unpublished decision)). Mr.
Nival has again failed to allege an affirmative link between the alleged constitutional
violations and these Defendants. Because Mr. Nival fails to assert that these
Defendants personally participated in violating his constitutional rights, Defendants
Tiana Lucero, Lucy Hernandez, and Anthony DeCesaro are improper parties to the

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action and will be dismissed. Claims Five, Six, and Seven will also be dismissed.
Finally, in Claim Nine, Mr. Nival is suing Defendant Correctional Health Partners,
a private contractor and medical services provider for the DOC. The established
principles of municipal liability have been found to apply to § 1983 claims brought
against private corporations like this 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. Nival fails to specifically identify an “official municipal policy of some

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nature” that was the “moving force” behind the constitutional violations he alleges.
Smedley, 175 Fed. Appx. at 944. Mr. Nival argues that “corporate policy and/or
administrative policy may not undermine the need for qualified medical personnel to
prescribe and order appropriate treatment.” Amended Complaint at 13. However, his
vague and conclusory allegations are insufficient to establish “a causal link between the
municipal action and the deprivation of federal rights.” Brown, 520 U.S. at 404.
Therefore, Defendant Correctional Health Partners is not a proper party to this action
and will be dismissed. Claim Nine will also be dismissed.
After review pursuant to D.C.COLO.LCivR 8.2C, the Court has determined that
Mr. Nival’s remaining claims (Claims Two, Three, Four, and Eight) 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
ORDERED that Plaintiff Aurora Nival is dismissed as a party to this action for
lack of standing. It is
FURTHER ORDERED that Defendants Tom Clements, Richard Smelser, Tiana
Lucero, Lucy Hernandez, Anthony DeCesaro and John Doe/Correctional Health
Partners are dismissed as parties to this action for lack of personal participation. It is
FURTHER ORDERED that Claims One, Five, Six, Seven and Nine are dismissed
for the reasons set forth above. It is

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FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
DATED at Denver, Colorado, this

10th

day of

January

, 2012.

BY THE COURT:

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

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