Allen v. Tucker et al

Filing 10

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 8/2/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01316-BNB
RODNEY B. ALLEN,
Plaintiff,
v.
M. TUCKER (Pueblo Unit Manager),
BATULIS (Pueblo Unit Counselor),
McAVOY (Norwood Unit Manager)
UNITED STATES OF AMERICA,
G. SANTINI, M.D. (Staff Physician),
A. ALVERADO (Assistant Health Administrator),
ST. THOMAS MOORE HOSPITAL,
JACOB F. PATTERSON,1
TERESA RHODES (Warden),
K. COZZO (Assistant Warden),
M. GOODIN (FCC Chief Pharmacist),
A. VINYARD (Mid-Level Provider),
S. HENDRICKS (Registered Nurse),
ROGERS (Registered Nurse),
T. OVERY (Paramedic/Health Technician),
M. KELLER (FCC Health Service Administrator),
BALJEK (BOP Officer – Bureau of Prisons Officer),
KOCH (Bureau of Prisons Officer),
PRICE (Bureau of Prisons Officer),
BRAWL (Bureau of Prisons Officer),
VINCENT (Norwood Unit Counselor),
HUTCHINSON (Psychologist), and
NORMAN K. LAU (Office of Inspector General),
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Rodney B. Allen, is a prisoner in the custody of the United States

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Plaintiff spells Defendant Patterson’s last name as “Petterson” in the caption of the amended
Prisoner Complaint and as “Patterson” in the text of the amended Prisoner Complaint. Documents
attached to the amended Prisoner Complaint confirm that the correct spelling is “Patterson.” (See ECF
No. 9-4 at 4-5.)

Bureau of Prisons (BOP) at the Federal Correctional Institution in Florence, Colorado.
Mr. Allen initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) and
Plaintiff’s Original Complaint (ECF No. 3) claiming that his constitutional rights have
been violated. On May 22, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Allen to
file one amended complaint that complies with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure. Magistrate Judge Boland specifically determined
that Mr. Allen failed to provide a short and plain statement of his claims showing he is
entitled to relief because he failed to identify who he was suing with respect to each
asserted claim, failed to allege clearly and concisely what each Defendant did that
allegedly violated his rights, and failed to allege specific facts in support of each
asserted claim.
On July 23, 2013, Mr. Allen filed an amended Prisoner Complaint (ECF No. 9)
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Mr. Allen asserts three numbered claims for relief, each of which
includes a number of distinct subclaims, alleging that his rights under the United States
Constitution have been violated. He seeks damages as relief.
The Court must construe the amended Prisoner Complaint liberally because Mr.
Allen 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). If the amended Prisoner
Complaint reasonably can be read “to state a valid claim on which the plaintiff could
prevail, [the 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.
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However, the Court should not be an advocate for a pro se litigant. See id.
Pursuant to 28 U.S.C. § 1915A, the Court must review Mr. Allen’s claims in the
amended Prisoner Complaint because he 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 Prisoner Complaint, or any portion of the amended
Prisoner Complaint, 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 Court will dismiss the amended Prisoner Complaint in
part as legally frivolous.
The Court notes initially that Mr. Allen fails to assert any claims against the
United States of America, M. Keller, and St. Thomas Moore Hospital although they are
listed as Defendants in the amended Prisoner Complaint. With respect to St. Thomas
Moore Hospital, Mr. Allen does allege that two nurses on the medical staff at the
hospital violated his rights. However, Mr. Allen does not assert any claim against the
hospital itself. Therefore, the United States of America, M. Keller, and St. Thomas
Moore Hospital will be dismissed as parties to this action.
Claim 1
Mr. Allen first claims that prison officials have been deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment. Claim 1 includes three
distinct subclaims.
Claim 1(a)
Mr. Allen alleges in claim 1(a) that Defendant G. Santini intentionally changed his
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prescribed pain medication and interfered with his prescribed treatment plan, which
resulted in “[f]urther injuring the Plaintiff, torturing the Plaintiff, causing the Plaintiff more
‘PAIN,’ and ‘suffering’.” (ECF No. 9 at 15.) The Court will not address the merits of
claim 1(a) at this time.
Claim 1(b)
Mr. Allen alleges in claim 1(b) that Defendant Jacob F. Patterson conspired with
Defendants G. Santini, A. Alverado, M. Goodin, T. Overy, and A. Vinyard and filed a
false medical report in November 2012 to cover up injuries Mr. Allen suffered in October
2010. This claim will be dismissed as legally frivolous because making vague and
conclusory allegations that his federal constitutional rights have been violated does not
entitle a pro se pleader to a day in court, regardless of how liberally the court construes
such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d,
961 F.2d 916 (10th Cir. 1992). “[I]n analyzing the sufficiency of the plaintiff’s complaint,
the court need accept as true only the plaintiff’s well-pleaded factual contentions, not his
conclusory allegations.” Hall, 935 F.2d at 1110.
In the order directing him to file an amended complaint, Magistrate Judge Boland
specifically advised Mr. Allen that, for each claim he asserts, he must explain, clearly
and concisely, “what each defendant did to him or her; when the defendant did it; how
the defendant’s action harmed him or her; and, what specific legal right the plaintiff
believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1163 (10th Cir. 2007). Magistrate Judge Boland also advised Mr. Allen that,
although pro se pleadings must be construed liberally, this general rule has limits and
“the court cannot take on the responsibility of serving as the litigant’s attorney in
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constructing arguments and searching the record.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Despite these instructions, Mr. Allen fails to allege specific facts in support of
claim 1(b). Mr. Allen fails to explain why he believes the medical report is false or how
the filing of a false medical report regarding an injury suffered two years earlier resulted
in deliberate indifferent to his serious medical needs. He also fails to assert any facts
that would support the alleged conspiracy. As a result, claim 1(b) is legally frivolous and
must be dismissed. Because claim 1(b) is the only claim asserted against Defendants
Jacob F. Patterson, M. Goodin, T. Overy, and A. Vinyard , those Defendants will be
dismissed as parties to this action.
Claim 1(c)
Mr. Allen asserts in claim 1(c) that Defendant Baljek2 and two nurses at St.
Thomas Moore Hospital were deliberately indifferent to his serious medical needs on
December 26, 2012, because he was forced to wear plastic restraints during a closed
MRI consult and he had “to walk on a[n] injured lower back, injured left hip, injured right
hip, and a[n] injured left knee, while restr[ai]ned with plastic restraints, without the
support of crutches or a cane.” (ECF No. 9 at 17-18.) Although Mr. Allen provides
further factual allegations regarding the actions of the two nurses, who are not named
as Defendants, he provides no further factual allegations regarding Defendant Baljek.
As a result, the Court finds that Mr. Allen’s Eighth Amendment claim against Defendant
Baljek is vague and conclusory and must be dismissed as legally frivolous. See

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Plaintiff refers to Defendant “Baljek” in the caption of the amended Prisoner Complaint and to
Defendant “Bialek” in his allegations in support of claim 1(c). It is not clear which spelling is correct.

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Ketchum, 775 F. Supp. at 1403. Because claim 1(c) is the only claim asserted against
Defendant Baljek, Defendant Baljek will be dismissed as a party to this action.
Claim 2
Mr. Allen’s second claim in the amended Prisoner Complaint is asserted as both
a retaliation claim and an Eighth Amendment claim. However, Mr. Allen fails to allege
facts that demonstrate the alleged retaliatory actions were taken because he exercised
his constitutional rights. See Allen v. Avance, 491 F. App’x 1, 6 (10th Cir. 2012) (noting
that, in order to state a retaliation claim, a plaintiff must demonstrate (1) that he was
engaged in constitutionally protected activity, (2) that the defendant’s actions caused
him to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity, and (3) that the defendant’s adverse action was substantially
motivated as a response to the plaintiff’s constitutionally protected activity). Therefore,
the Court will consider Mr. Allen’s allegations in claim 2 only in the context of the Eighth
Amendment.
Claim 2(a)
Mr. Allen alleges in claim 2(a) that Defendants M. Tucker, Batulis, and McAvoy
subjected him to torture by ignoring his medical restrictions and assigning him to a cell
on the second floor and housing him with other inmates. The Court will not address the
merits of Mr. Allen’s claim 2(a) against Defendants Tucker, Batulis, and McAvoy at this
time.
Claims 2(b) and 2(c)
Mr. Allen alleges in claim 2(b) that Defendant Rogers intentionally contaminated
his prescribed pain medication with drops of blood, insulin, and other liquid waste. He
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similarly alleges in claim 2(c) that Defendant S. Hendricks dispensed medication to Mr.
Allen while wearing gloves contaminated with blood. The Court will not address the
merits of Mr. Allen’s claims 2(b) and 2(c) against Defendants Rogers and S. Hendricks
at this time.
Claim 2(d)
Mr. Allen alleges in claim 2(d) that he was subjected to cruel and unusual
punishment when Defendant Koch denied him his evening meal on January 12, 2013,
and again on January 24, 2013. This claim lacks merit.
“The Eighth Amendment’s prohibition of cruel and unusual punishment imposes a
duty on prison officials to provide humane conditions of confinement, including
adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from
bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). In order to assert a
cognizable claim under the Eighth Amendment, Mr. Allen must allege that prison
officials were deliberately indifferent to a substantial risk of serious harm. See Farmer
v. Brennan, 511 U.S. 825, 834 (1994). Stated another way, Mr. Allen must demonstrate
both that the injury he suffered was sufficiently serious and that prison officials acted
with deliberate indifference. See Tafoya, 516 F.3d at 916.
Although adequate food clearly is protected by the Eighth Amendment, Mr.
Allen’s claim that he was subjected to cruel and unusual punishment when he was
denied an evening meal on two occasions does not rise to the level of a constitutional
violation because “extreme deprivations are required to make out a conditions-ofconfinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). The Eighth
Amendment is not violated unless the conditions deprive a prisoner of “‘the minimal
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civilized measure of life’s necessities.’” Wilson v. Seiter, 501 U.S. 294, 298 (1991)
(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). Therefore, claim 2(d) is
legally frivolous and must be dismissed. Because claim 2(d) is the only claim asserted
against Defendant Koch, Defendant Koch will be dismissed as a party to this action.
Claim 2(e)
Mr. Allen alleges in claim 2(e) that Defendant Brawl denied him access to the pill
line on March 19, 2013, in order to deny Mr. Allen medical care. He further alleges that
Defendant Brawl denied his request to speak to the operations lieutenant and access to
the hospital. The Court finds that Mr. Allen’s claim against Defendant Brawl is legally
frivolous and must be dismissed. For one thing, the claim is vague and conclusory
because Mr. Brawl fails to allege that he suffered any injury as a result of Defendant
Brawl’s actions. See Ketchum, 775 F. Supp. at 1403. In addition, the alleged denial of
access to the pill line on one occasion, without any injury, is not the sort of extreme
deprivation required to support an Eighth Amendment claim. See Hudson, 503 U.S. at
9. Because claim 2(e) is the only claim asserted against Defendant Brawl, Defendant
Brawl will be dismissed as a party to this action.
Claim 2(f)
Mr. Allen alleges in claim 2(f) that Defendants A. Alverado and G. Santini altered
Mr. Allen’s treatment plan with respect to his documented claustrophobic disorder by
scheduling a closed MRI in order to torture him. The Court will not address the merits of
claim 2(f) at this time.
Claim 2(g)
Mr. Allen alleges in claim 2(g) that Defendant Price subjected him to cruel and
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unusual punishment by vandalizing Mr. Allen’s cell and stealing his commissary, legal
material, and gym bag on May 21, 2013. This Eighth Amendment claim lacks merit and
must be dismissed as legally frivolous because Mr. Allen fails to allege facts that
demonstrate he was denied “‘the minimal civilized measure of life’s necessities.’”
Wilson, 501 U.S. at 298 (quoting Rhodes, 452 U.S. at 347). Because claim 2(g) is the
only claim asserted against Defendant Price, Defendant Price will be dismissed as a
party to this action.
Claim 3
Mr. Allen’s third claim in the amended Prisoner Complaint is asserted as a
procedural due process claim. Claim 3 includes four distinct subclaims.
Claim 3(a)
Mr. Allen alleges in claim 3(a) that Defendants Warden Teresa Rhodes and
Assistant Warden K. Cozzo failed to conduct an adequate investigation of his
complaints on December 12, 2013, and that, as a result, they “acquiesced to their
subordinates[’] wrong doing, and tacitly approved of such conduct.” (ECF No. 9 at 24.)
Mr. Allen also alleges that on April 9, 2013, Defendant Assistant Warden K. Cozzo
interrupted him when he was making a verbal complaint about the denial of medical
treatment and screamed at him.
The Court finds that claim 3(a) is legally frivolous and must be dismissed
because Mr. Allen fails to allege that he was deprived of a constitutionally protected
interest in life, liberty, or property when Defendants Warden Teresa Rhodes and
Assistant Warden K. Cozzo failed to conduct an adequate investigation or when
Assistant Warden K. Cozzo interrupted and screamed at him. See Templeman v.
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Gunter, 16 F.3d 367, 369 (10th Cir. 1994) (noting that the Constitution guarantees due
process only when a person is to be deprived of life, liberty, or property).
In addition, Mr. Allen’s allegation that these supervisory officials acquiesced in
and tacitly approved of the underlying constitutional violations is not sufficient to
demonstrate personal participation in the underlying constitutional violations. “Individual
liability under [Bivens] must be based on personal involvement in the alleged
constitutional violation.” Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997); see
also Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 767-69 (10th Cir.
2013) (discussing standards for supervisory liability). As a result, 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). Because claim
3(a) is the only claim asserted against Defendants Warden Teresa Rhodes and
Assistant Warden K. Cozzo, they will be dismissed as parties to this action.
Claim 3(b)
Mr. Allen alleges in claim 3(b) that Defendant Vincent denied him his right to file
a grievance on December 14, 2012. This claim lacks merit and must be dismissed
because Mr. Allen does not have a constitutional right to file a grievance. See Bingham
v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011) (noting that various circuits have held
“an inmate has no constitutionally-protected liberty interest in access to [a prison
grievance] procedure”); see also Boyd v. Werholtz, 443 F. App’x 331 (10th Cir. 2011)
(affirming dismissal under § 1915A of inmate’s claim based on alleged denial of access
to prison grievance procedure). Because claim 3(b) is the only claim asserted against
Defendant Vincent, Defendant Vincent will be dismissed as a party to this action.
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Claim 3(c)
Mr. Allen alleges in claim 3(c) that Defendants A. Alverado and Hutchinson
denied him his right to see a psychiatrist. Because Mr. Allen alleges no facts in support
of this vague and conclusory assertion, claim 3(c) will be dismissed as legally frivolous.
See Ketchum, 775 F. Supp. at 1403. Because claim 3(c) is the only claim asserted
against Defendant Hutchinson, Defendant Hutchinson will be dismissed as a party to
this action.
Claim 3(d)
Mr. Allen finally alleges in claim 3(d) that Defendant Norman K. Lau violated his
“right to Due Process by refusing to take any action against the Bureau of Prisons for
the criminal misconduct of its medical staff, and Administrative Departments.” (ECF No.
9 at 27.) Defendant Lau is a Special Agent in Charge in the Office of the Inspector
General of the United States Department of Justice. (See ECF No. 9-4 at 36.) Mr.
Allen apparently sent a letter to the Office of the Inspector General complaining about
misconduct by BOP personnel. (See id.) According to Mr. Allen, Defendant Lau’s
failure to take action in response to Mr. Allen’s letter has resulted in the following:
[t]he defendants have been allowed to torture the Plaintiff.
As of today the Plaintiff is not rec[ei]ving any pain medication
or treatment for his injuries. The Plaintiff can not go to the
hospital at FCI Florence, because the medical staff have
been allowed to deny the Plaintiff medical treatment, by the
Office of the Inspector General.
(ECF No. 9 at 27.)
The Court finds that claim 3(d) lacks merit because Mr. Allen fails to allege facts
that demonstrate his constitutional rights have been violated by Defendant Lau in any

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way. Defendant Lau did not prevent Mr. Allen from petitioning the government for relief
and his response to Mr. Allen’s complaint about prison misconduct does not
demonstrate he personally participated in the alleged misconduct. See Foote, 118 F.3d
at 1423. Because claim 3(d) is the only claim asserted against Defendant Lau, he will
be dismissed as a party to this action.
For the reasons discussed in this order, the Court will dismiss claims 1(b), 1(c),
2(d), 2(e), 2(g), 3(a), 3(b), 3(c), and 3(d) in the amended Prisoner Complaint as legally
frivolous. The Court also will dismiss as parties to this action Defendants United States
of America, M. Keller, St. Thomas Moore Hospital, Jacob F. Patterson, M. Goodin, T.
Overy, A. Vinyard, Baljek, Koch, Brawl, Price, Teresa Rhodes, K. Cozzo, Vincent,
Hutchinson, and Norman K. Lau. Mr. Allen’s remaining claims against the remaining
Defendants will be drawn to a district judge and to a magistrate judge as provided in
D.C.COLO.LCivR 8.2D because the Court has completed its review pursuant to
D.C.COLO.LCivR 8.2C. Accordingly, it is
ORDERED that claims 1(b), 1(c), 2(d), 2(e), 2(g), 3(a), 3(b), 3(c), and 3(d) in the
amended Prisoner Complaint (ECF No. 9) are dismissed as legally frivolous pursuant to
28 U.S.C. § 1915A(b)(1). It is
FURTHER ORDERED that Defendants United States of America, M. Keller, and
St. Thomas Moore Hospital are dismissed as parties to this action because Plaintiff
does not assert any claim against them and Defendants Jacob F. Patterson, M. Goodin,
T. Overy, A. Vinyard, Baljek, Koch, Brawl, Price, Teresa Rhodes, K. Cozzo, Vincent,
Hutchinson, and Norman K. Lau are dismissed as parties to this action because the
claims against them are legally frivolous. It is
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FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
DATED at Denver, Colorado, this 2nd day of

August , 2013.

BY THE COURT:

s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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