Adams v. United States

Filing 6

ORDER Directing Plaintiff to File Amended Prisoner Complaint, by Magistrate Judge Boyd N. Boland on 05/16/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01076-BNB
ERIC ADAMS,
Plaintiff,
v.
UNITED STATES,
Defendant.

ORDER DIRECTING PLAINTIFF TO
FILE AMENDED PRISONER COMPLAINT

At issue is Plaintiff’s Response to the Court’s Order to Show Cause entered April
26, 2012. Plaintiff is subject to 28 U.S.C. § 1915(g) filing restrictions. The Court
instructed Plaintiff to show cause why he should not be denied leave to proceed
pursuant to § 1915 because his FTCA claim does not indicate he is under imminent
danger of serious physical injury. Plaintiff filed a Response on May 14, 2012.
In the Response, Plaintiff asserts that his FTCA claim clearly shows ongoing acts
of misconduct that has caused physical injury. The Court explained to Plaintiff in the
April 26 Order to Show Cause, the events involved in the FTCA claim took place prior to
January 11, 2012, and do not meet the requirement of imminent danger of serious
physical injury.
The events, however, that took place on April 6, 2012, and according to Plaintiff
continue to take place, although not part of the FTCA claim, do assert possible

imminent danger of serious physical injury. Nonetheless, Plaintiff has failed to name as
defendants the individuals responsible for the alleged actions.
Plaintiff will be directed to amend his Complaint and name as defendants the
individuals responsible for placing him in imminent danger of serious physical injury.
Plaintiff further must assert personal participation by each named defendant. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Plaintiff must name and show how named defendants caused a
deprivation of his federal rights. See Kentucky v. Graham, 473 U.S. 159, 166 (1985).
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 merely because of his or her supervisory position.
See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703
F.2d 479, 483 (10th Cir. 1983).
To state a claim in federal court, Plaintiff must explain in the Amended Complaint
what each defendant did to him, when the defendant did the action, how the defendant’s
action harmed him, and what specific legal right he believes the defendant violated.
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff also is required to provide “specific facts of ongoing serious physical
injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical
injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (emphasis added).
Accordingly, it is
ORDERED that within thirty days from the date of this Order Plaintiff file an
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Amended Prisoner Complaint that is in keeping with the instant Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov for use in
filing an Amended Prisoner Complaint. It is
FURTHER ORDERED that if Plaintiff fails to file an Amended Prisoner Complaint
within the time allowed Plaintiff’s request to proceed pursuant to 28 U.S.C. § 1915 will
be subject to denial.
DATED May 16, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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