Williams v. Denver Sheriff Department et al

Filing 5

ORDER of Dismissal. ORDERED that the Complaint and this action are DISMISSED. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 3/8/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00240-BNB
DAVON Q. WILLIAMS,
Plaintiff,
v.
DENVER SHERIFF DEPARTMENT,
GARY WILSON, Director, Individual Capacity,
ALEX MARTINEZ, Individual Capacity, and
CITY AND COUNTY OF DENVER,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Davon Q. Williams, who is detained in the Denver County Jail, initiated
this action by submitting pro se a Prisoner Complaint (ECF No. 1). He has been
granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On January 31, 2013, Magistrate Judge Boyd N. Boland reviewed the Complaint
and determined that it was deficient because it failed to allege the personal participation
of the individual Defendants in a deprivation of the Plaintiff’s constitutional rights and
failed to show that a City and County of Denver policy was the cause of the asserted
constitutional violations. Accordingly, Magistrate Judge Boland ordered Mr. Williams to
file an amended complaint within thirty days of the January 31 Order. Magistrate Judge
Boland warned Plaintiff that failure to comply with the January 31 Order would result in
dismissal of the action without further notice.
The Court must construe the complaint liberally because Mr. Williams 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.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the Complaint
because Mr. Williams is a prisoner and he is seeking redress from officers or employees
of a governmental entity. Pursuant to § 1915A(b)(1), the Court is required to dismiss
the Complaint, or any portion thereof, that is frivolous. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S.
319, 324 (1989). For the reasons stated below, the Complaint and the action will be
dismissed.
Mr. Williams alleges in the Complaint that on January 23, 2013, he was told by
Denver Sheriff’s Deputy Jones that he was not allowed to send mail to multiple
attorneys. He further alleges that on two other occasions, his legal mail was opened
and returned to him on the basis that the mail was not legal mail. Plaintiff asserts that
each of the letters was legal mail. Plaintiff claims that his constitutional right of access
to the courts and to legal counsel have been violated. Mr. Williams requests monetary
relief.
Mr. Williams may not maintain claims against the Denver Sheriff’s Department.
The Sheriff’s Department is not an entity separate from the City and County of Denver
and, therefore is not a person subject to suit under § 1983. See Stump v. Gates, 777 F.
Supp. 808, 814-16 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993).

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Furthermore, Mr. Williams cannot maintain a claim against the City and County of
Denver under 42 U.S.C. § 1983 because he does not allege facts to show that an
unconstitutional policy or custom was the direct cause of his alleged injury. 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). Plaintiff was warned by
Magistrate Judge Boland in the January 31 Order that municipalities 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). Mr. Williams cannot state a claim for
relief under § 1983 merely by pointing to isolated incidents. See Monell, 436 U.S. at
694.
Furthermore, Mr. Williams fails to allege the personal participation of any of the
named individual Defendants in a violation of his constitutional rights. Plaintiff was
warned by Magistrate Judge Boland in the January 31 Order that personal participation
by the defendants is an essential allegation in a civil rights action. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); 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 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
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v. Goode, 423 U.S. 362, 371 (1976)). A defendant may not be held liable for the
unconstitutional conduct of his or her subordinates on a theory of respondeat superior.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This is because Ҥ 1983 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).
Finally, Mr. Williams makes allegations against a Deputy Jones in the body of his
Complaint but does not name Jones as a defendant in the caption. Accordingly, the
Court does not construe the Complaint as asserting any claims against Deputy Jones.
Plaintiff was warned by Magistrate Judge Boland in the January 31 Order that if he
intends to sue Deputy Jones under 42 U.S.C. § 1983, he must add Jones to the caption
and state specific facts in the body of the Complaint to show that Deputy Jones was
personally involved in a deprivation of Plaintiff’s constitutional rights.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $455 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is

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ORDERED that the Complaint and this action are DISMISSED for the reasons
discussed above. It is
FURTHER ORDERED that no certificate of appealability will issue because Mr.
Williams has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. Mr. Williams may file a motion in the Tenth Circuit Court of Appeals.
DATED at Denver, Colorado, this 8th

day of

March

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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