Gatlin v. Holdridge et al

Filing 14

ORDER to Dismiss in Part and to Draw Case to A District Judge and to a Magistrate Judge. Defendants Anthony DeCesaro, Barry Sloan, and John Doe Inspector General are dismissed as parties to this action. This case shall be drawn to a district judge and to a magistrate judge. By Judge Lewis T. Babcock on 2/15/2012. (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03004-BNB
ANTWAN OCIE GATLIN,
Plaintiff,
v.
MARY HOLDRIDGE, Correctional Officer,
STEVE BROWN (Senior), Investigator,
JESSICA JARAMILLO, Correctional Officer,
STEVE BROWN (Junior), Warden,
CHAD PENNER, Case Manager,
CHRIS DURGA, Correctional Officer,
PAUL DOSE, Shift Supervisor,
LARRY COX, Chief of Security,
JACK CHAPMAN, Hearings Disciplinary Officer,
ELLEN HAARMANN, Correctional Counselor,
ANTHONY A. DeCESARO, Grievance Officer,
BARRY SLOAN, Head Warden #773126, and
JOHN DOE INSPECTOR GENERAL,
Defendants.

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

Plaintiff, Antwan Ocie Gatlin, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who is currently incarcerated at the Colorado
Territorial Correctional Facility (CTCF) in Canon City, Colorado. Mr. Gatlin initiated this
action by filing a pro se prisoner complaint. He has been granted leave to proceed in
forma pauperis with payment of an initial partial filing fee.
On January 4, 2012, Magistrate Judge Boyd N. Boland 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 Boland directed Mr. Gatlin to file an amended prisoner complaint
within thirty days. After receiving two extensions of time, Mr. Gatlin submitted an
amended complaint on February 10, 2012.
The Court must construe the amended complaint liberally because Mr. Gatlin 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. Gatlin 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).
Mr. Gatlin asserts two claims in the amended complaint. First, Mr. Gatlin alleges
that Defendants Paul Dose, Ellen Haarmann, Steve Brown Sr., and Jack Chapman
retaliated against him because Mr. Gatlin is a practicing Christian. Mr. Gatlin asserts
that the named Defendants placed him in punitive segregation, issued false disciplinary
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reports, and violated his constitutional rights during disciplinary hearings in retaliation for
exercise of his religion. Mr. Gatlin asserts that this treatment violated his First and
Fourteenth Amendment rights. Second, Mr. Gatlin asserts that the named Defendants
deliberately housed him with an unstable inmate. Mr. Gatlin asserts that the inmate
attacked him on December 16, 2009, and the named Defendants failed to respond to
his requests for help within a reasonable time. He further asserts that once correctional
officers responded to his cell, Defendants Steve Brown Jr. and Chad Penner used
excessive force to restrain Mr. Gatlin, even though he provided no resistance. Mr.
Gatlin asserts that his Eighth Amendment right to be free from cruel and unusual
punishment was violated. As relief, he seeks damages in addition to injunctive and
declaratory relief.
However, the Court notes that Mr. Gatlin is suing Defendants Barry Sloan and
John Doe Inspector General because these Defendants allegedly are responsible for
the constitutional violations committed by other individuals or because these
Defendants hold supervisory positions. These allegations fail to establish the personal
participation of Defendants Barry Sloan and John Doe Inspector General. Mr. Gatlin
was previously warned by Magistrate Judge Boland that personal participation is an
essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 126263 (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
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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).
The Court also notes that Mr. Gatlin is suing Defendants Barry Sloan and
Anthony DeCesaro because they allegedly denied, or failed to act on, administrative
grievances filed by Mr. Gatlin. See Amended Complaint at 9-10. However, these
allegations again fail to establish the personal participation of Defendants Barry Sloan
and Anthony 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. Gatlin has failed
to allege an affirmative link between the alleged constitutional violations and these
Defendants. Because Mr. Gatlin fails to assert that these Defendants personally
participated in violating his constitutional rights, Defendants Anthony DeCesaro, Barry
Sloan and John Doe Inspector General are improper parties to the action and will be
dismissed.
After review pursuant to D.C.COLO.LCivR 8.2C, the Court has determined that
Mr. Gatlin’s claims 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 Anthony DeCesaro, Barry Sloan and John Doe
Inspector General are dismissed as parties to this action. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
DATED at Denver, Colorado, this 15th

day of

February

, 2012.

BY THE COURT:

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

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