Washington v. Rhodes et al
Filing
9
ORDER Directing Plaintiff To File Amended Complaint, and denying as premature 4 Motion to Appoint Counsel, by Magistrate Judge Craig B. Shaffer on 02/26/13. (nmmsl, ) Modified on 2/26/2013 to correct the magistrate judge (skl).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00197-BNB
MARLON WASHINGTON,
Plaintiff,
v.
COZZA RHODES, Warden,
DERRICK JONES, Food Service Supervisor, and
M. CUNDIFF, FCI Food Service,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Marlon Washington, a prisoner in the custody of the Federal Bureau of
Prisons, is incarcerated at the Correctional Institution in Florence, Colorado. He
initiated this action by submitting pro se a Prisoner Complaint asserting a deprivation of
his constitutional rights pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). Mr. Washington has been granted leave to
proceed pursuant to 28 U.S.C. § 1915 with payment of an initial partial filing fee.
The Court must construe the Prisoner Complaint liberally because Mr.
Washington 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 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. For the
reasons discussed below, Mr. Washington will be ordered to file an amended complaint.
Mr. Washington alleges in the Prisoner Complaint that on November 3, 2012,
while he was working in food service, he was assaulted by another inmate who punched
him in the face. The inmate then threw a five-gallon bucket of “extreme hot liquid” on
Plaintiff, causing him to suffer second degree burns on his neck and upper chest. Mr.
Washington alleges that no corrections officers were present during the assault to
oversee the dining area or the hot liquid source. Plaintiff alleges that the Defendants
were responsible for the safety of the inmates and were aware that inmate injury was a
natural and foreseeable consequence of inmates having unsupervised access to hot
liquids. Mr. Washington asserts that Defendants failed to protect him from assault by
another inmate, in violation of the Eighth Amendment. He requests injunctive and
monetary relief.
The Prisoner Complaint is deficient because Mr. Washington fails to allege
specific facts to show the personal participation of the Defendants in a deprivation of his
constitutional rights. Personal participation is an essential element of a Bivens action.
See Kite v. Kelley, 546 F.2d 334, 338 (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). 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);
Supervisors can only be held liable for their own deliberate intentional acts. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep’t of Corrections, 455
F.3d 1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under § 1983 [or Bivens]
for their own culpable involvement in the violation of a person's constitutional rights.”);
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see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008)
(“[ 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.”).
Furthermore, negligent acts do not violate the Constitution. Daniels v. Williams,
474 U.S. 327, 330 (1986); Farmer v. Brennan, 511 U.S. 825, 835 (1994). Accordingly,
it is
ORDERED that Plaintiff, Tyrone Duante Small, file within thirty (30) days from
the date of this order, an amended complaint that complies with the directives in this
order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Prisoner
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 to the Court’s satisfaction within the time allowed, the Court will
dismiss some of the Defendants without further notice for the reasons discussed above.
It is
FURTHER ORDERED that the Motion to Appoint Counsel for Plaintiff’s Case
(ECF No. 4) is denied as premature.
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DATED at Denver, Colorado, this 26th day of February, 2013.
BY THE COURT:
s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge
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