Williams v. City and County of Denver et al

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 3/05/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00547-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
DAVON Q. WILLIAMS,
Plaintiff,
v.
THE CITY AND COUNTY OF DENVER,
GARY WILSON, Director, in His Individual Capacity, Denver Sheriff,
DEPUTY SHARP, in His Individual Capacity, Denver Sheriff,
DENVER HEALTH, and
ALEX MARTINEZ, in His Individual Capacity, Manager of Public Safety, City and
County of Denver,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

The Defendants filed a timely Notice of Removal on March 1, 2013, removing this
action from the Denver District Court because the pro se Complaint contains a claim for
violation of the Plaintiff’s constitutional rights pursuant to 42 U.S.C. § 1983. See 28
U.S.C. §§1441 and 1446. The Plaintiff is incarcerated at the Simonet Detention Center
in Denver, Colorado.
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. The Court has
reviewed the complaint and has determined that it is deficient. For the reasons

discussed below, Mr. Williams will be ordered to file an amended complaint.
Mr. Williams alleges in the Complaint (ECF No. 1-4) that he suffered a slip and
fall in his jail pod on December 9, 2012, while he was cleaning the floor because he was
not supplied with a pair of non-slip boots. Plaintiff asserts that Defendant Wilson failed
to ensure that the pod had floor drains built into the bathrooms and shower-room for
overflowing water. Mr. Williams alleges that he was placed on pain medication by
Denver Health nursing staff after his slip and fall, but the medication was ineffective.
Furthermore, he was not seen by a Denver Health doctor for nine days. The doctor
denied Plaintiff further pain medication.
Mr. Williams further alleges that he pinched a nerve in his back on December 15,
2012, but Defendant Deputy Sharp refused to call the nurse because Plaintiff’s
condition was “not life-threatening.” (ECF No. 1-4, at 2). When Mr. Williams saw a
doctor on December 17, 2012, he was prescribed pain medication for a pinched nerve
and back strain. However, nursing staff denied Plaintiff his medication that evening.
Plaintiff further alleges that he was denied a medical mattress that he needed to
alleviate his back pain.
Mr. Williams asserts that the Defendants were negligent and that they were
deliberately indifferent to his injuries and pain, in violation of the Eighth Amendment.
The Prisoner Complaint is deficient because Mr. Williams fails to allege specific
facts to show the personal participation of the Defendants in a violation of his
constitutional rights. Personal participation is an essential element of a civil rights
action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v.

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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). A supervisor, such as Defendant Wilson or Defendant Martinez, 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 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) (“[Section] 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.”).
Furthermore, a local government entity such as the City and County of Denver is
not liable under 42 U.S.C. § 1983 solely because its 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). A plaintiff seeking
to hold a municipality or county liable for his injuries under § 1983 must show that a
policy or custom exists and that there is a direct causal link between the policy or
custom and the injury alleged. 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 cannot state a claim for relief under § 1983 merely by pointing
to isolated incidents. See Monell, 436 U.S. at 694.
Mr. Williams’ Eighth Amendment claim against Denver Health is also governed

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by the Monell standard. Pursuant to COLO. REV. STAT. § 25-29-103(1), Denver
Health and Hospital Authority, is a political subdivision of the state that operates the
health system. Denver Health may therefore be sued for alleged civil rights violations
by its employees pursuant to 42 U.S.C. § 1983 if those actions were taken pursuant to
an official policy or custom. See Villalpando v. Denver Health & Hosp. Auth., No. 011450, 65 F. App'x 683, 686-87 (10th Cir. April 14, 2003) (generally observing that
Denver Health and Hospital Authority is a “person” subject to municipal liability under
§ 1983).
Finally, Mr. Williams may use fictitious names, such as Jane or John Doe, if he
does not know the real names of the individuals who allegedly violated his rights.
However, if Mr. Williams uses fictitious names he must provide sufficient information
about each defendant so that each defendant can be identified for purposes of service.
Plaintiff must also allege specific facts to show that the defendant was personally
involved in a deprivation of his constitutional rights. Accordingly, it is
ORDERED that Plaintiff, Davon Q. Williams, 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 within the time allowed, the Court may dismiss this action
without further notice for the reasons discussed above.

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DATED March 5, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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