Merrill v. Mink et al

Filing 11

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 5/08/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00790-BNB
RANDY ALAN MERRILL,
Plaintiff,
v.
THEADORE MINK, JCSO,
CINDY KERRIGAN,
ARAMARK CORP., and
JEFFERSON COUNTY SHERIFF’S OFFICE,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Randy Alan Merrill, currently is detained at the Jefferson County
Detention Center in Golden, Colorado. Plaintiff, acting pro se, initiated this action by
filing a Prisoner Complaint. The Complaint was not filed on a proper Court-approved
form. The Court directed Plaintiff to cure the deficiency, which he did on March 28,
2013. Plaintiff asserts his constitutional rights have been violated. He seeks injunctive
relief and money damages.
The Court must construe the 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). However, the Court should not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be
ordered to file an Amended Complaint and assert how all named parties personally
participated in violating his constitutional rights.

To establish personal participation, Plaintiff must show how each individual
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). A defendant may not
be held liable on a theory of respondeat superior merely because of his or her
supervisory position. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986);
McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). A supervisor is only liable for
constitutional violations that they cause. See Dodds v. Richardson, et al., 614 F.3d
1185 (10th Cir. 2010) (Tymkovich, J., concurring). Also, a private actor, such as
Defendant Aramark, cannot be held liable under § 1983 on a respondeat superior
theory. See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (collecting
circuit court cases).
To state a claim in federal court, Plaintiff must explain in his Amended Complaint
what each defendant did to him, when the defendant did the action, how the action
harmed him, and what specific legal right he believes the defendant violated. Nasious
v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Accordingly, it is
ORDERED that Plaintiff file within thirty days from the date of this Order an
Amended Complaint that is in keeping with the above directives. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
2

FURTHER ORDERED that if Plaintiff fails within the time allowed to file an
Amended Complaint that complies with this Order, the Court will dismiss the action
without further notice. It is
FURTHER ORDERED that process shall not issue until further order of
the Court.
DATED May 8, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

3