Small v. Trani, et al
Filing
8
ORDER to Dismiss in Part and to Assign Case. ORDERED that Defendant Warden Trani is dismissed as a party to this action. FURTHER ORDERED that this case shall be assigned to District Judge Robert E. Blackburn and to Magistrate Judge Michael J. Watanabe, by Judge Lewis T. Babcock on 3/1/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00292-BNB
TYRON DUANTE SMALL,
Plaintiff,
v.
TRAVIS TRANI, Warden,
CANDACE CROSLEY, Sgt.,
KEVIN CRUTCHER, Sgt., and
BRAN ROBERTS, Lt.,
Defendants.
ORDER TO DISMISS IN PART AND TO ASSIGN CASE
Plaintiff, Tyron Duante Small, is a prisoner in the custody of the Colorado
Department of Corrections and currently is incarcerated at the Colorado State
Penitentiary in Canón City, 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. § 1343 and 42 U.S.C. § 1983. Mr. Small has been granted leave to proceed
pursuant to 28 U.S.C. § 1915 with payment of an initial partial filing fee.
On February 5, 2013, Magistrate Judge Boyd N. Boland reviewed the Prisoner
Complaint and found it to be deficient because it failed to allege facts to show the
personal participation of Defendants Trani and Roberts in a deprivation of Mr. Small’s
constitutional rights. Accordingly, Magistrate Judge Boland ordered the Plaintiff to file
an amended complaint within thirty days of the February 5 Order. Mr. Small filed an
Amended Complaint on February 15, 2013.
The Court must construe the Amended Complaint liberally because Mr. Small 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 Amended
Complaint because Mr. Small 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 Amended 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
Amended Complaint and the action will be dismissed, in part.
Mr. Small alleges in the Amended Complaint that he was physically assaulted by
Defendants Crutcher and Crosley on October 10, 2012, while he was in full restraints
and was complying with their orders. Plaintiff alleges that the officers “thr[e]w him to the
ground” and that Defendant Crutcher placed his full body weight and hands against
Plaintiff’s head, “smashing [his] head into the ground.” (ECF No. 7, at 2). Mr. Small
states that Defendant Crutcher also “smashed the handcuffs back on [his] wrists and
ben[t] them . . . causing abrasions.” (Id.). Mr. Small alleges that Defendant Roberts
witnessed the assault by Defendants Crutcher and Crosley but failed to stop the
unlawful use of force. In the original Complaint, Mr. Small states that he suffered
severe pain, head trauma, and emotional injuries as a result of the assault. He asserts
that the Defendants have violated his Eighth Amendment rights and requests monetary
2
relief.
Mr. Small cannot proceed with his constitutional claim against Defendant Warden
Trani. Plaintiff alleges that Warden Trani is liable because he is the supervisor of
Defendants Crosley and Crutcher; he failed to train and supervise Defendants Crosley
and Crutcher regarding how to restrain inmates properly; and because Defendants
Crosley and Crutcher failed to follow an institutional policy that required them to call for
back up assistance if an inmate showed “traits of aggression or anger.”
Plaintiff was warned by Magistrate Judge Boland in the February 5 Order that
personal participation 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). Supervisors can
only be held liable for their own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009); 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 v. Goode, 423 U.S. 362, 371 (1976)).
Mr. Small has failed to allege an affirmative link between the alleged
constitutional violation and Defendant Warden Trani. Mr. Small does not state any
specific facts to show that Defendant Trani authorized, acquiesced, or personally
participated in the alleged use of excessive force against him. Furthermore, Plaintiff
3
does not allege that the other Defendants’ use of force was pursuant to an
unconstitutional policy promulgated by Defendant Trani. See Serna v. Colorado Dep’t
of Corrections, 455 F.3d 1146 (10th Cir. 2006) (a plaintiff must establish that the
supervisor acted knowingly or with “deliberate indifference” that a constitutional violation
would occur). Finally, a prison warden is not liable merely because subordinate
corrections officers fail to follow lawful prison regulations. Id.; Iqbal, 556 U.S. at 676.
The Court finds that Defendant Trani is an improper party to this action. Defendant
Trani therefore will be dismissed.
After review pursuant to D.C.COLO.LCivR 8.2C, the Court has determined that
Mr. Small’s claims against Defendants Crosley, Crutcher, and Roberts do not appear to
be appropriate for summary dismissal and that the case should be assigned to District
Judge Robert E. Blackburn and to Magistrate Judge Michael J. Watanabe, pursuant to
D.C.COLO.LCivR 40.1C. Accordingly, it is
ORDERED that Defendant Warden Trani is dismissed as a party to this action for
Plaintiff’s failure to allege his personal participation. It is
4
FURTHER ORDERED that this case shall be assigned to District Judge Robert
E. Blackburn and to Magistrate Judge Michael J. Watanabe, pursuant to
D.C.COLO.LCivR 40.1C.
DATED at Denver, Colorado, this 1st
day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?