Imboden v. Colorado Department of Corrections et al

Filing 8

ORDER of Dismissal. Complant and action are dismissed for lack of subject matter jurisdiction. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 5/29/12. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00955-BNB
DONALD VINCENT IMBODEN, JR.,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
MAJOR BUCHOLTZ - CDOC,
SGT. MONTOYA - CDOC, and
OFC. RANDY WATTERS - CDOC,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Donald Vincent Imboden, Jr., is a prisoner in the custody of the
Colorado Department of Corrections and is currently incarcerated at the Crowley
County Correctional Facility in Olney Springs, Colorado. He initiated the instant action
by filing pro se a civil rights complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C.
§ 1983. Mr. Imboden has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Imboden’s filings liberally because he is
representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the
pro se litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, the
complaint will be dismissed for lack of subject matter jurisdiction.
Mr. Imboden asserts one claim for a violation of his Eighth Amendment right to
be free from cruel and unusual punishment. He alleges that on December 10, 2009, the

supervisor of his inmate job ordered him to “dig a hole to repair a steamline” in Lyons,
Colorado. Complaint at 5. He further asserts that “during this ‘dig’ Plaintiff was
exposed to asbestos without the benefit of safety equipment normally used in
procedures such as these.” Id. at 4. Mr. Imboden alleges that after his exposure to
asbestos, he has “worried about his future health problems constantly. He has suffered
from insomnia as well as loss of weight and depression.” Id. at 5. As relief, Mr.
Imboden seeks compensatory and punitive damages.
“The Eighth Amendment’s prohibition of cruel and unusual punishment imposes
a duty on prison officials to provide humane conditions of confinement, including
adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from
bodily harm.” See Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). However, not
every injury suffered by a prison inmate gives rise to liability for a constitutional violation.
Id. In order to assert a cognizable claim under the Eighth Amendment, Mr. Imboden
must allege that Defendants were deliberately indifferent to a substantial risk of serious
harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Stated another way, Mr.
Imboden must demonstrate both that the injury he suffered was sufficiently serious and
that Defendants acted with deliberate indifference. See Tafoya, 516 F.3d at 916.
However, Mr. Imboden has not alleged facts indicating he has suffered any
injury. Although he asserts that he is worried about “future health problems” there is no
indication that he is currently suffering from any health problems caused by his alleged
exposure to asbestos. The United States Constitution requires that a party seeking to
invoke the jurisdiction of the federal courts must demonstrate that he has suffered some
actual or threatened injury, that the injury was caused by the defendants, and that a
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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 Mr. Imboden fails to
demonstrate any actual or threatened injury as a result of his alleged exposure to
asbestos, he lacks standing to assert claims concerning this incident. See Citizens
Concerned for Separation of Church & State v. City & County of Denver, 628 F.2d 1289,
1295-96 (10th Cir. 1980). The complaint will be dismissed for lack of subject matter
jurisdiction.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $455 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the complaint and the action are dismissed for lack of subject
matter jurisdiction. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied with leave to re-file in the Tenth Circuit.
DATED at Denver, Colorado, this

29th

day of

May

BY THE COURT:

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

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, 2012.