Donaldson v. Daniels

Filing 17

ORDER DISMISSING CASE that the Complaint and action are dismissed pursuant to 28 U.S.C. § 1915A(b)(1) as legally frivolous. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is FURTHER ORDERED that all pending motions are denied as moot, by Judge Lewis T. Babcock on 6/20/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00757-BNB
DAQUAN LAMEL DONALDSON,
Plaintiff,
v.
WARDEN C. DANIELS,
Defendant.

ORDER TO DISMISS

Plaintiff, Daquan Lamel Donaldson, is in the custody of the United States Bureau
of Prisons and currently is incarcerated at the Federal Correctional Institution in Terre
Haute, Indiana. On March 22, 2013, Plaintiff, acting pro se, initiated this action by filing
a Prisoner Complaint pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971), and 28 U.S.C. § 1331.
On May 20, 2013, Magistrate Judge Boyd N. Boland ordered Plaintiff to file an
Amended Complaint that asserted personal participation by Defendant Daniels in the
alleged constitutional violation. Magistrate Judge Boland instructed Plaintiff that a
defendant may not be held liable on a theory of respondeat superior merely because of
his supervisory position. On June 14, 2013, Plaintiff filed an Amended Complaint.
The Court must construe the Amended Complaint liberally because Plaintiff is a
pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read “to state a
valid claim on which the plaintiff could prevail, [a court] should do so despite the

plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”
Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant’s advocate.
See id.
Although Plaintiff’s Amended Complaint does not include all of the pages of the
prisoner complaint form, Plaintiff has stated the substance of his claim against
Defendant Daniels in the pages that he has provided. The Court has reviewed these
claims and determined that dismissal of the Complaint and action as legally frivolous is
proper for the following reasons.
Plaintiff asserts that Defendant Daniels failed to provide a healthy environment
because an unknown official in the medical department failed to properly screen for the
prevention of tuberculosis. Plaintiff contends that he did not have tuberculosis before
he was placed at the United States Penitentiary (USP) in Florence, Colorado, and that
he contracted the disease through another inmate while he was housed there. Plaintiff
concludes that because Defendant Daniels is responsible for a healthy environment,
and the overall safety of the prisoners at the Florence USP, he also is responsible for
the acts of the unknown official who failed to follow proper medical procedures when
screening for tuberculosis. Plaintiff concedes that he has “inactive” tuberculosis, and
has received all “preventive and effective treatment” for the “neutralization of the
disease,” but he seeks money damages because at any time the tuberculosis may
become active. Compl., ECF No. 1, at 10; Am. Compl., ECF No. 16, at 2 and 4.
A defendant may not be held liable on a theory of respondeat superior merely
because of his supervisory position. See Pembaur v. City of Cincinnati, 475 U.S. 469,
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479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). A supervisor is only
liable for constitutional violations that he causes. See Dodds v. Richardson, et al., 614
F.3d 1185, 1208-13 (10th Cir. 2010) (Tymkovich, J., concurring); Pahls v. Thomas, --F.3d ---, 2013 WL 2398559, *9 (10th Cir. 2013) (applying Dodds in a Bivens action). 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); Pahls, 2013 WL 2398559, at *9 (applying Iqbal in a Bivens action).
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, 614 F.3d at
1200-1201 (“[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)). To show an
affirmative link by an adoption of a plan or policy, a plaintiff must demonstrate that a
defendant “(1) . . . promulgated, created, implemented or possessed responsibility for
the continued operation of a policy that (2) caused the complained of constitutional
harm, and (3) acted with the state of mind required to establish the alleged
constitutional deprivation.” Pahls, 2013 WL 2398559, at *10 (quoting Dodds, 614 F.3d
at 1199).
Plaintiff does not assert that Defendant Daniels personally screened inmates or
that he promulgated, created, or implemented a policy that was the cause of the
improper screening of inmates for tuberculosis. Therefore, the Court will dismiss the
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Complaint as legally frivolous.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not 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 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
ORDERED that the Complaint and action are dismissed pursuant to 28 U.S.C.
§ 1915A(b)(1) as legally frivolous. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 20th day of June , 2013.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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