Rubin v. Hilling, et al

Filing 8

ORDER Directing Plaintiff to File Second and Final Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/21/2012. (skssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01842-BNB
PHILIP J. RUBIN,
Plaintiff,
v.
COLORADO HIGHWAY PATROL,
BRETT HILLING, Colorado Highway Patrolman,
ROUTT COUNTY SHERIFF’S DEPARTMENT, and
JOHN DOES 1 and 2, Routt County Sheriffs,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AND FINAL AMENDED COMPLAINT

Plaintiff, Philip Rubin, initiated this action on July 13, 2012, by filing pro se a
Complaint (ECF No. 1) alleging a deprivation of his constitutional rights pursuant to 42
U.S.C. § 1983. He has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915.
On August 20, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Rubin to file
an amended complaint, on the court-approved form, that did not include the Colorado
Highway Patrol as a named Defendant and alleged facts sufficient to hold Routt County
liable under 42 U.S.C. § 1983. Plaintiff filed an amended complaint on September 18,
2012.
The Court must construe the amended complaint liberally because Mr. Rubin 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). However, the Court should not

be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
stated below, Mr. Rubin will be ordered to file a second and final amended complaint.
Mr. Rubin alleges in the amended complaint that he was arrested on July 15,
2011, for suspicion of DUI (Driving Under the Influence) while driving in Steamboat
Springs, Colorado. He further alleges that Defendant Hilling, a Colorado State
Patrolmen, ordered him to perform a roadside sobriety test. Plaintiff was then
handcuffed and transported to the Routt County Sheriff’s Department for a breathalyzer
test. Plaintiff alleges that the following occurred at the Sheriff’s Department:
9. While in the custody of Colorado Highway Patrolman Brett Hilling, at
the Routt County Sheriff’s Department, . . . , Mr. Rubin suffered a serious
and verifiable medical emergency requiring EMT assistance.
10. Despite Rubin’s desperate and constant pleas for help, obvious
unwell appearance and the obligations of the Routt County Sheriff’s
Department, Rubin was denied emergency medical treatment at great risk
to his life, long term wellness and mental wellbeing.
11. When Hilling and the Routt County Sheriff’s Deputies John Doe
Officers 1-2 denied Rubin desperately needed medical assistance, the[ir]
actions were reckless, dangerous, illegal and punitive.
Amended Compl., at 3. Mr. Rubin asserts that the Defendants have deprived him of his
constitutional rights and seeks monetary and injunctive relief.
Mr. Rubin was previously warned by Magistrate Judge Boland that to hold Routt
County liable under 42 U.S.C.§ 1983, Mr. Rubin must show that a policy or custom
exists and that there is a direct causal link between the policy or custom and the injury
alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Myers v.
Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir. 1998).
Local government entities such as Routt County are not liable under 42 U.S.C. § 1983
solely because their employees inflict injury on a plaintiff. Monell v. New York City

Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, Kan.,
997 F.2d 774, 782 (10th Cir. 1993). Plaintiff cannot state a claim for relief under
§ 1983 merely by pointing to isolated incidents. See Monell, 436 U.S. at 694. The
amended complaint does not state any specific facts to implicate Routt County in a
violation of Plaintiff’s constitutional rights.
Furthermore, Mr. Rubin does not allege sufficient facts in the amended complaint
to hold the individual defendants liable for a deprivation of his constitutional rights. See
Hall, 935 F.2d at 1110. Mr. Rubin must assert facts demonstrating the personal
participation by each named defendant. See Bennett v. Passic, 545 F.2d 1260, 126263 (10th Cir. 1976). To establish personal participation, Plaintiff must show how the
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); see also Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010)
(“[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).
While in police custody, Plaintiff was constitutionally protected from a denial of

medical care under the same legal standard applicable to prisoners under the Eighth
Amendment. See Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (internal
citation omitted). A prison official's deliberate indifference to an inmate's serious
medical needs violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97,
102 (1976). “Deliberate indifference” involves both an objective and a subjective
component. The objective component is met if the deprivation is “sufficiently serious.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994). A medical need is sufficiently serious “if
it is one that has been diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would easily recognize the necessity for a doctor's
attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999) (quoting Ramos v.
Lamm, 639 F.2d 559, 575 (10th Cir.1980) (further quotation omitted)). The subjective
component is met if a prison official “knows of and disregards an excessive risk to
inmate health or safety.” Farmer, 511 U.S. at 837.
Mr. Rubin’s conclusory allegations that he suffered a “serious and verifiable
medical emergency” while in Defendant Hilling’s custody at the Routt County Sheriff’s
Department are not supported by sufficient facts to show the nature and extent of the
medical emergency or how the denial of medical treatment placed Mr. Rubin at “great
risk to his life, long term wellness and mental wellbeing.” Accordingly, it is
ORDERED that Plaintiff, Philip J. Rubin, file, within thirty (30) days from the
date of this order, a second and final amended complaint, on the court-approved form,
that complies with the directives in this Order. It is
FURTHER ORDERED that Mr. Rubin shall obtain the Court-approved Complaint
form, along with the applicable instructions, at www.cod.uscourts.gov. Alternatively,

Plaintiff may obtain the Court-approved form from the Clerks Office of the United States
District Court, 901 19th Street, Denver, Colorado, 80294. It is
FURTHER ORDERED that, if Mr. Rubin fails to file a second and final amended
complaint within thirty (30) days from the date of this order, the amended complaint
will be dismissed for the reasons discussed in this Order.
DATED September 21, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge