Garewal v. U.S. Marshall et al

Filing 14

ORDER Directing Plaintiff to File a Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/15/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02348-BNB

MILTON BRADLEY GAREWAL,
Plaintiff,
v.
UNKNOWN U.S. MARSHAL, Individually and in his Official Capacity Acting Under Color
of Law,
UNKNOWN U.S. MARSHAL, Individually and in her Official Capacity Acting Under
Color of Law,
DR. CRUM, Individually and in his Official Capacity Acting Under Color of Law,
NURSE JOHNSON, Individually and in her Official Capacity Acting Under Color of Law,
DENVER COUNTY JAIL, and
DENVER HEALTH,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE
SECOND AMENDED COMPLAINT

Plaintiff, Milton Bradley Garewal, currently is detained at the Denver County Jail
in Denver, Colorado. Mr. Garewal, acting pro se, initiated this action on September 4,
2012, by filing a Prisoner Complaint pursuant to 42 U.S.C. § 1983 and a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. On October 2,
2012, Mr. Garewal filed an Amended Complaint.
The Court must construe the Complaint and Amended Complaint liberally
because Mr. Garewal is a pro se litigant. 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 act as a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the

reasons stated below, Mr. Garewal will be ordered to file a Second Amended
Complaint.
Mr. Garewal asserts that his constitutional rights were violated on May 11, 2012,
when two Unknown U.S. Marshals shackled his feet during transport to a court
appearance, even though he suffers from “Dropped Foot” and, as a result, he fell and
broke his foot. Mr. Garewal further contends that jail staff violated his constitutional
rights when they delayed proper treatment of the broken foot for ten days. Mr. Garewal
seeks declaratory and injunctive relief and compensatory and punitive damages.
Personal participation is an essential allegation in a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Garewal must show that each defendant caused the deprivation of a
federal right. 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 named defendant may not be held liable
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).
For Mr. Garewal to state a claim in federal court, “a complaint must explain what
each defendant did to him [ ]; when the defendant did it; how the defendant’ s action
harmed him [ ]; and, what specific legal right [Mr. Garewal] believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). Mr. Garewal does not state specifically what Defendants Dr. Crum and Nurse
Johnson did to violate his rights. On Page Three of the Complaint form Mr. Garewal
2

states specifically what a “doctor” and a “nurse” did regarding the treatment of his
broken foot, but he does not identify Defendants Crum and Johnson as the individuals
who violated his rights. Although on Page Five Mr. Garewal states that Defendants
Crum and Johnson “were callous to [his] medical needs” and “failed to provide proper
medical attention in a timely manner,” he does not state specifically what they did to
violate his constitutional rights.
Mr. Garewal may use fictitious names such as “Unknown U.S. Marshal” if he
does not know the real names of the individuals who allegedly violated his rights. If,
however, Mr. Garewal uses fictitious names he must provide sufficient information about
each defendant so that they can be identified for purposes of service.
In addition, Defendant Denver Health is not a person for the purpose of a § 1983
action. Mr. Garewal must name the specific employees in the health department who
are responsible for the alleged constitutional deprivations and demonstrate in the text of
the Complaint, under “Section D. Cause of Action,” how each one personally
participated in the asserted claims. See Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir. 1976).
Mr. Garewal also may not sue Defendant Denver County Jail. The jail is not a
separate entity from the County of Denver and, therefore, is not a person under 42
U.S.C. § 1983. See Stump v. Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991), aff'd,
986 F.2d 1429 (10th Cir. 1993). Any claims asserted against the jail must be
considered as asserted against the County of Denver.
A local government entity such as the County of Denver, however, is not liable
under 42 U.S.C. § 1983 solely because its employees inflict injury on a plaintiff. Monell
3

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). A plaintiff seeking to hold a
municipality or county liable for his injuries under 42 U.S.C. § 1983 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). Mr. Garewal cannot state a claim for relief under § 1983 merely by pointing to
isolated incidents. See Monell, 436 U.S. at 694. Accordingly, it is
ORDERED that Mr. Garewal file within thirty days from the date of this Order
a Second Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Mr. Garewal 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. It is
FURTHER ORDERED that if Mr. Garewal fails to comply with this Order within
the time allowed the Complaint and the action will be dismissed without further notice.
DATED October 15, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

4