Bertolo v. Colorado Department of Corrections et al

Filing 16

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 1/24/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02822-BNB
JAMES M. BERTOLO,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
TONY CAROCHI, Director of Prisons,
PAMELA J. PLOUGHE, Warden CTCF, and
MR. BENEZEE, Lieutenant CTCF,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, James Bertolo, is in the custody of the Colorado Department of
Corrections (DOC). He is incarcerated currently at the Colorado Territorial Correctional
Facility (“CTCF”) in Canón City, Colorado. Mr. Bertolo filed pro se a Complaint
asserting a deprivation of his constitutional rights pursuant to 28 U.S.C. § 1343 and 42
U.S.C. § 1983. He filed an amended complaint on December 2, 2011. Mr. Bertolo has
paid the filing fee in this action.
The Court will construe the amended complaint liberally because Mr. Bertolo is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not
act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has
reviewed the amended complaint and has determined that it is deficient. Plaintiff
therefore will be directed to file a second amended complaint for the reasons

discussed below.
Mr. Bertolo alleges in his amended complaint that he suffers from Huntington’s
disease. He further alleges that after he was transferred to CTCF on August 8, 2011,
he did not receive his medications for several days and suffered cognitive defects as a
result. On August 11, 2011, Mr. Bertolo was involved in a verbal altercation with
Defendant CTCF Lieutenant Benezee, during which “something went wrong.” Compl.,
at 4. Mr. Bertolo received a disciplinary infraction for “false reporting.” He further
asserts that Defendant Benezee went to his cell and confiscated all of his personal
property, including magazines and photo albums. Plaintiff alleges that the personal
property in his cell at CTCF had been approved at Fort Lyons Correctional Facility and
should have been allowed at CTCF pursuant to the “Montez v. Owens Remedial Plan.”1
Id. at 5. He asserts claims under § 1983 for deprivation of his Eighth Amendment right
to adequate medical care and his First Amendment rights. Mr. Bertolo requests
injunctive and monetary relief.
Mr. Bertolo’s claims against the DOC are barred by the Eleventh Amendment.
Eleventh Amendment immunity extends to states and state agencies deemed “arms of
the state” that have not waived their immunity, regardless of the relief sought. Steadfast
Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252–53 (10th Cir. 2007). The DOC is
an agency of Colorado that is entitled to Eleventh Amendment immunity. See Griess v.
Colorado, 841 F.2d 1042, 1044–45 (10th Cir. 1988). Congress did not abrogate
1

Montez v. Romer, Case No. 92-N-870(OES) [Montez I], a class action lawsuit filed pursuant to
the Americans With Disabilities Act, 42 U.S.C. § 12101, and the Rehabilitation Act, 29 U.S.C. § 794, on
behalf of Colorado inmates suffering from particular disabilities. The case settled in 2003 and the district
court imposed a Remedial Plan under which class members could present claims of discrimination to a
Special Master for processing. See Montez v. Owens, Case No. 92-N-870(OES), 2007 WL 4226365, at
**1-2 (D. Colo. 2007) [Montez II].

Eleventh Amendment immunity through Section 1983. See Quern v. Jordan, 440 U.S.
332, 345 (1979). Mr. Bertolo’s second amended complaint should not include a claim
against the DOC.
Furthermore, Mr. Bertolo fails to allege facts in his amended complaint to show
the personal participation of Defendants Carochi, the DOC Director of Prisons, and
CTCF Warden Ploughe, in a violation of his constitutional rights. Mr. Bertolo is advised
that personal participation by the named defendants is an essential allegation in a civil
rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Mr.
Bertolo therefore must show that each named Defendant caused the deprivation of a
federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). A supervisor is only
liable for a constitutional violation that he or she has caused. See Dodds v. Richardson,
614 F.3d 1185, 1199 (10th Cir. 2010). Accordingly, 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); see also Richardson, 614 F.3d at 1200-1201 (“[D]efendant-supervisors
may be liable under § 1983 [or Bivens] where an ‘affirmative’ link exists between the
unconstitutional acts by their subordinates and their ‘adoption of any plan or policy
. . .–express or otherwise–showing their authorization or approval of such
‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). Supervisors cannot
be held liable merely because of their supervisory positions. 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). Accordingly, it is
ORDERED that Plaintiff, James Bertolo, file within thirty (30) days from the
date of this order, a second amended complaint that complies with the directives in
this order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Complaint
form, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to file a second amended complaint
that complies with this order to the Court’s satisfaction within the time allowed, the Court
will dismiss Plaintiffs’ claims against Defendants Colorado Department of Corrections,
Tony Carochi and Pamela Ploughe, for the reasons discussed in this Order.
DATED January 24, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge