Miller v. Kastelic et al

Filing 10

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 11/30/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02677-BNB
LARRY C. MILLER,
Plaintiff,
v.
CDOC EXECUTIVE DIRECTOR TOM CLEMENTS,
CORRECTIONS CORPORATION OF AMERICA (CCA),
WARDEN MILLER, Crowley County Corrections Facility (CCCF),
CAPTAIN KASTELIC, Shift Commander CCCF,
INMATE DANIEL REIMER #98949, CCCF/Denver Parole,
LT. RIDGWELL, CCCF-5 Hearings Officer, AND
INVESTIGATOR BROWNSTEIN, CCCF Security/Investigations,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Larry C. Miller, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) at the Fremont Correctional Facility in Cañon City, Colorado. Mr.
Miller has filed pro se a complaint (ECF No. 1) asserting claims that arose while he was
incarcerated at the Crowley County Correctional Facility (CCCF) in Olney Springs,
Colorado. The court must construe the complaint liberally because Mr. Miller 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. Miller will be ordered to file an amended complaint if he wishes to pursue
claims against all of the named Defendants in this action.

Mr. Miller alleges in the complaint that he was transferred to the CCCF on July
16, 2012, and that he was placed in a housing unit that is a management pod for gang
members. He further alleges that he immediately began to experience problems
because he is a sex offender and that other inmates in the housing unit, including
Defendant Daniel Reimer, his cellmate, threatened him. Mr. Miller asserts that he
sought help from prison officials including Defendant Captain Kastelic regarding the
danger he faced from other inmates, but that Captain Kastelic refused to move him to
another unit and threatened to place Mr. Miller in segregation if he refused his housing
assignment. According to Mr. Miller, he was beaten, kicked, and choked by Mr. Reimer
after he returned to his cell. Despite the fact that Mr. Miller alleges he acted in selfdefense, he alleges that he was charged with and convicted of the disciplinary offenses
of fighting and having a contraband weapon.
Mr. Miller asserts twelve claims for relief in the complaint. The first six claims are
state law tort claims asserted against Mr. Reimer. Mr. Miller’s seventh claim is an
Eighth Amendment failure to protect claim asserted against Captain Kastelic. In claims
eight, nine, and ten, Mr. Miller alleges that DOC Executive Director Tom Clements,
Corrections Corporation of America, and CCCF Warden Miller are liable for the alleged
Eighth Amendment violation committed by Captain Kastelic. Claims eleven and twelve
raise due process issues regarding the disciplinary convictions and are asserted against
Defendants Lieutenant Ridgwell and Investigator Brownstein.
The court has reviewed the complaint and finds that the complaint is deficient in
certain respects. For one thing, although Mr. Miller provides an address for Mr. Reimer,
the address he provides is at the CCCF even though Mr. Reimer apparently no longer is
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incarcerated and allegedly has been paroled to the Denver area. (See ECF No. 1 at 3.)
Mr. Miller is advised that he must provide a current address for each named Defendant
so that each Defendant can be properly served.
The complaint also is deficient because Mr. Miller fails to allege facts that
demonstrate each of the named Defendants personally participated in the asserted
constitutional violations. In particular, Mr. Miller may not hold DOC Executive Director
Tom Clements or CCCF Warden Miller liable based on a theory of respondeat superior.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Instead,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S.
at 677). Therefore, in order to succeed in a § 1983 suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege
and demonstrate that: “(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.” Id. at 1199.
Similarly, Mr. Miller also may not hold Corrections Corporation of America liable
on a theory of respondeat superior. See Smedley v. Corrections Corp. of America, 175
F. App’x 943, 946 (10th Cir. 2005). In order to state a cognizable claim against
Corrections Corporation of America for the actions of Captain Kastelic, Mr. Miller “must

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show that CCA directly caused the constitutional violation by instituting an official
municipal policy of some nature that was the direct cause or moving force behind the
constitutional violation.” Id. (internal citation and quotation marks omitted).
If Mr. Miller wishes to pursue a constitutional claim or claims against DOC
Executive Director Tom Clements, Corrections Corporation of America, and CCCF
Warden Miller, he must file an amended complaint that identifies what those Defendants
did that allegedly violated his constitutional rights. Mr. Miller is advised that § 1983
“provides a federal cause of action against any person who, acting under color of state
law, deprives another of his federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999).
Therefore, Mr. Miller should name as Defendants only those persons he contends
actually violated his federal constitutional rights.
To summarize, Mr. Miller must file an amended complaint that complies with this
order if he wishes to pursue a claim or claims against DOC Executive Director Tom
Clements, Corrections Corporation of America, or CCCF Warden Miller. Mr. Miller is
not required to file an amended complaint if he elects to pursue only his claims against
the other Defendants as set forth in the complaint filed in this action on October 9, 2012.
Accordingly, it is
ORDERED that Mr. Miller file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order if he wishes to pursue a claim or
claims against DOC Executive Director Tom Clements, Corrections Corporation of
America, or CCCF Warden Miller. It is
FURTHER ORDERED that Mr. Miller shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
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along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Miller fails to file an amended complaint that
complies with this order within the time allowed, DOC Executive Director Tom Clements,
Corrections Corporation of America, and CCCF Warden Miller will be dismissed as
parties to this action without further notice.
DATED November 30, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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