Stewart v. Rhodes et al

Filing 14

ORDER Directing Plaintiff to File Amended Complaint. Granting 10 Motion to Request to Add/Additional Claims; denying as premature 13 Motion to Appoint Counsel, by Magistrate Judge Boyd N. Boland on 1/31/12.(lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03080-BNB
MARSHAUN STEWART,
Plaintiff,
v.
COZZ RHODES, Warden,
BLOODWORTH, Assoc. Warden,
KLEIN, Captain,
LT. BURTON, and
WORKSON, Counsler [sic],
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Marshaun Stewart, is in the custody of the federal Bureau of Prisons.
He currently is incarcerated at the Federal Correctional Institution (FCI) in Florence,
Colorado. Mr. Stewart filed pro se a Complaint asserting a deprivation of his
constitutional rights pursuant to 28 U.S.C. § 1343 and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Also pending is “Plaintiff’s
Motion to Request to Add/Additional Claims and Defendant Helickerson Psychological
Employee” (Doc. #10), filed on January 3, 2012. Mr. Stewart has been granted leave to
proceed informa pauperis pursuant to 28 U.S.C. § 1915 without payment of an initial
partial filing fee.
The Court will construe the Complaint liberally because Mr. Stewart 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 Complaint and has determined that it is deficient. Mr. Stewart therefore will be
directed to file an amended complaint for the reasons discussed below.
Mr. Stewart alleges in his Complaint that he suffers from depression and a
borderline intelligence disorder. Mr. Stewart states that he asked Defendant Workson,
his counselor, some questions about his medical condition on August 17, 2011. At
some point, Defendant Workson told Plaintiff, “we are going to get rid of you.” Compl.,
Ex. 4. Mr. Stewart alleges that he received a false disciplinary write-up from Defendant
Burton on August 19, 2011, for stalking a female medical staff member and was placed
in solitary confinement pending a criminal proceeding. He further asserts that
Defendants Burton, Workson, and Klein conspired to file the false criminal charge
against him. Plaintiff seeks monetary relief from the Defendants for violation of his
constitutional rights.
Additional factual allegations to support Mr. Stewart’s claims are found in his
“Motion for Preliminary Injunction & Restraining Order” (Doc. #12), filed on January 18,
2012. Mr. Stewart alleges that after he was transferred to FCI-Florence on June 1,
2011, he requested permission to see a psychiatric staff member about his medications
and was directed to Ms. Helickerson. Mr. Stewart explained to Ms. Helickerson that he
needed to consult with her about a medical condition. Ms. Helickerson responded that
Plaintiff would be placed on the “call-out” to see a staff member. On August 2, 2011,
Mr. Stewart was directed to report to Lt. Young’s office. In the presence of Ms.
Helickerson, Lt. Young threatened to place Plaintiff in lock-down if he again requested
medical attention from any female staff member because he is a convicted sex offender.
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Mr. Stewart further alleges that he filed an administrative remedy request with Warden
Wands on August 9, 2011, to obtain an exemption from prison work assignments so
that he would not be around any female staff members. Plaintiff asserts that after he
submitted the administrative remedy request, Defendant Workson retaliated by filing a
false disciplinary charge/criminal charge against him for harassment of a female staff
member.
In his motion to amend his Complaint, Mr. Stewart alleges that Ms. Helickerson
reported him to Lt. Young and urged Young to threaten him not to seek medical
attention from female staff members simply because he is a convicted sex offender.
Construing Mr. Stewart’s filings liberally and together, he fails to allege the
personal participation of Defendants Warden Rhodes and Associate Warden
Bloodworth in a violation of his constitutional rights. Personal participation by the
named defendants is an essential allegation in a civil rights action. See Kite v. Kelley,
546 F.2d 334, 338 (1976). Mr. Stewart 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
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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
“§ 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). Mr.
Stewart must therefore file an amended complaint alleging each Defendant’s personal
participation.
Mr. Stewart may amend his complaint to assert a claim against Ms. Helickerson,
but the claim must assert her personal participation in a deprivation of his constitutional
rights.
In addition, the amended complaint that Mr. Stewart will be directed to file should
include all of the factual allegations to support his claims so that they are contained
within a single pleading. The Court is not required to construe a pro se litigant’s
piecemeal filings together in order to construct a claim for relief. Accordingly, it is
ORDERED that “Plaintiff’s Motion to Request to Add/Additional Claims and
Defendant Helickerson Psychological Employee” (Doc. #10), filed on January 3, 2012, is
granted. It is
FURTHER ORDERED that Plaintiff, Marshaun Stewart, file within thirty (30)
days from the date of this order, an amended complaint that complies with the
directives in this order. It is

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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 the Motion for Appointment of Counsel (Doc. #13),
filed on January 20, 2012, is denied as premature. It is
FURTHER ORDERED that, if Plaintiff fails to file an amended complaint that
complies with this order within the time allowed, the Court will dismiss Plaintiffs’ claims
against Defendants Rhodes and Bloodworth for the reasons discussed in this Order.
DATED January 31, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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