Plummer v. McDermott et al
Filing
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ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 3/01/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00440-BNB
RONALD PLUMMER,
Plaintiff,
v.
DANIELS, Warden,
MCDERMOTT, Hospital Administrator,
ALLRED, Clinical Director,
MCROY, Mid-Level Provider,
CINK, Mid-Level Provider,
JANE DOE, and
JOHN DOE,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Ronald Plummer, is a prisoner in the custody of the Federal Bureau of
Prisons and currently is incarcerated at the United States Penitentiary 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
Unkown Named Agents, 403 U.S. 388 (1971). Mr. Plummer has been granted leave
to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Prisoner Complaint liberally because Mr. Plummer
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. Plummer will be ordered to file an amended complaint.
Mr. Plummer alleges in the Prisoner Complaint that he turned in a “sick call”
request to the USP-Florence medical department on October 16, 2012, but Defendant
McRoy failed to respond for thirty-one days. Plaintiff further alleges that he made
eleven requests for medical attention over a three-month period for pain he was
suffering due to a hernia, but Defendant Cink repeatedly ignored his requests for pain
medication. Mr. Plummer states that he was seen by the “MLP’s” one time, and only to
take his blood pressure. Plaintiff alleges that the medical policies and procedures at
USP-Florence “did not meet ‘adequate medical care standards,’” and that continued
adherence to the policies by Defendants Daniels, McDermott, and Allred constituted
deliberate indifference to his serious medical needs in violation of the Eighth
Amendment. (ECF No. 1, at 6). He seeks compensatory damages.
The Prisoner Complaint is deficient because Mr. Plummer fails to allege specific
facts to show the personal participation of Defendants Daniels, McDermott, Allred, Jane
Doe, and John Doe in a violation 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.
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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.”); 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.”).
Accordingly, it is
ORDERED that Plaintiff, Ronald Plummer, 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
DATED February 28, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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