Gilbert-Mitchell v. Allred et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 08/07/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01997-BNB
WALLACE GILBERT-MITCHELL, JR.
Plaintiff.
V.
DAVID V. ALLRED, in his personal and professional capacities,
H. NEWCOMB, in his personal and professional capacities,
MS. INOUYE, in her personal and professional capacities,
CHARLIE A. DANIELS, in his personal and professional capacities,
J. RODRIGUES, in his personal and professional capacities,
ROBERT LEGGITT, in his personal and professional capacities,
THERESA MONTOYA, in her personal and professional capacities,
MS. MCDERMOTT, in her personal and professional capacities, and
THE UNITED STATES OF AMERICA, in tort,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Wallace Gilbert-Mitchell, Jr., is in the custody of the federal Bureau of
Prisons and currently is incarcerated at USP-Florence, Colorado. He initiated this
action by filing pro se a Prisoner Complaint and a Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff asserts claims against the
Defendants for violation of his constitutional rights pursuant to 28 U.S.C. § 1331 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
The Court construes the Complaint liberally because Mr. Gilbert-Mitchell 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. Gilbert-Mitchell therefore will
be directed to file an amended complaint for the reasons discussed below.
In the Complaint, Mr. Gilbert-Mitchell challenges actions by the Defendants that
affect primarily the conditions of his confinement. Plaintiff asserts that the Defendants’
objectionable actions were taken in part in retaliation for his filing of grievances against
the Defendants and his pursuit of the instant litigation. Mr. Gilbert-Mitchell asserts that
the Defendants deprived him of his constitutional rights when they: (1) denied him
adequate medical care for his serious medical needs; (2) fed him soy products and
exposed him to soy when they knew he was allergic to soy; (3) denied him three
adequate meals a day; (4) housed him in cells with inoperable toilets, thereby resulting
in his prolonged exposure to feces; (5) forced him to recreate in the presence of
inmates who Plaintiff has identified as enemies and denied him sufficient out-of-cell
recreation time; (6) violated his rights under the HIPAA1 by releasing his confidential
medical information; (7) falsified an incident report, which resulted in an increase in the
term of his prison sentence; (8) refused to provide him with grievance forms to exhaust
his administrative remedies, confiscated his legal documents, and denied him access to
the law library; (9) denied him the right to participate in Ramadan and attempted to
convert him to Christianity; and, (10) denied him access to his legal counsel by
confiscating his legal mail sent from his attorney. For claim eleven, Mr. Gilbert-Mitchell
asserts that Defendant United States is liable “in tort” for the constitutional deprivations

1

Health Insurance Portability and Accountability Act.

2

committed by the other Defendants. He seeks injunctive and monetary relief.
The Complaint is deficient because he United States has not waived its
sovereign immunity under the Federal Tort Claims Act, 28 U.S.C. §§2671-2680, for
constitutional tort claims. See F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994). Sovereign
immunity also bars a Bivens-type action against the United States. Id. at 484-85.
Accordingly, the United States should not be named as a party in the amended
complaint.
Further, HIPAA does not create a private cause of action for the alleged
disclosure of confidential medical information. See Wilkerson v. Shinseki, 606 F.3d
1256, 1267 n.4 (10th Cir. 2010). Plaintiff therefore should not include a claim for
violation of HIPAA in his amended complaint.
In addition, Plaintiff’s allegations that the Defendants retaliated against him for
filing grievances by falsifying an incident report, resulting in a prison disciplinary
conviction and a concomitant increase in the term of his prison sentence, must be
asserted in a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241.
Mcintosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997) (citing
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). Accordingly, this claim should not be
included in the amended complaint.
Finally, Mr. Gilbert-Mitchell’s factual allegations are not sufficiently specific to
show the personal participation of each Defendant in a violation of his constitutional
rights. For example, Plaintiff asserts almost every claim against Defendant Allred;
however, Defendant Allred is a physician at USP-Florence and is not in charge of the
daily operations at the facility. Plaintiff is advised that personal participation by the
3

named defendants is an essential allegation in a civil rights action. See Kite v. Kelley,
546 F.2d 334, 338 (10th Cir. 1976). Plaintiff therefore must show that each named
Defendant caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). Moreover, a supervisor, such as Warden Daniels, 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 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 Ҥ 1983 [or Bivens] 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).

Accordingly, it is

ORDERED that Plaintiff, Wallace Gilbert-Mitchell, Jr., file within thirty (30) days
from the date of this order, an amended complaint that complies with the directives in
this order. It is

4

FURTHER ORDERED that Plaintiff shall obtain the court-approved Complaint
form (with the assistance of his case manager or facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov. 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 review the allegations of
the original Complaint, which may result in the dismissal of one or more claims or
Defendants.
DATED August 7, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

5