Harvey v. Werholtz et al

Filing 31

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 10/25/13. Lou Archuleta and Roger Werholtz are dismissed, and 25 Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and 26 Motion for Appointment of Counsel are denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01574-BNB
NATHANIEL JAMES HARVEY,
Plaintiff,
v.
ROGER WERHOLTZ, Deputy Director of DOC, official capacity,
LOU ARCHULETA, Warden, official capacity,
OFFICER CATHERINE SEGURA, Official and Individual Capacity, and
LT. BRET LANG, (Unit 4), Official Capacity,
Defendants.

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

Plaintiff, Nathaniel James Harvey III, is in the custody of the Colorado
Department of Corrections and currently is incarcerated at the Fremont Correctional
Facility in Cañon City, Colorado. On June 14, 2013, he filed pro se a Prisoner
Complaint. [Doc. # 1]. He filed an amended Prisoner Complaint on June 17, 2013.
[Doc. # 7].
On June 25, 2013, Magistrate Judge Boyd N. Boland reviewed the amended
complaint and determined that it was deficient because it failed to comply with Fed. R.
Civ. P. 8 and did not allege the personal participation of each named Defendant in a
deprivation of Plaintiff’s constitutional rights. Magistrate Judge Boland directed Mr.
Harvey to file a second amended complaint within thirty days of the June 25 Order.
After obtaining an extension of time, Mr. Harvey filed a second amended complaint on
August 15, 2013.

Mr. Harvey has been granted leave to proceed without payment of an initial
partial filing fee pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915
(2011). Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action
at any time if the action 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. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe liberally the second amended complaint because Mr.
Harvey 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the
reasons stated below, the second amended complaint will be dismissed, in part.
Mr. Harvey, who describes himself as a practicing Shi’ite Muslim, alleges in the
second amended complaint that on January 16, 2013, Defendant Segura, a female
prison guard, subjected him to a strip search in the hallway of the unit #4 office area, in
the presence of Lt. Lang and another male officer. Plaintiff further alleges that
defendant Segura “grabbed” his genitals during the search. Mr. Harvey asserts that it
was sexually degrading and humiliating for him to be strip-searched by a female officer
in an open hallway. He further alleges that Defendant Lt. Lang failed to intervene when
Defendant Segura engaged in inappropriate behavior during the strip search. Mr.
Harvey claims that Defendant Segura’s actions during the strip search were in
retaliation for his complaints about staff harassment. He further asserts that the strip
search violated his religious tenets, as set forth in the Holy Qur’an.
Mr. Harvey also alleges in the second amended complaint that on February 13,
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2013, Defendant Segura confiscated his kufi (religious head wear) from his property, in
violation of DOC regulations, his First Amendment free exercise rights, and the
Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1,
et seq. Mr. Harvey states that wearing a kufi during prayer times is part of his religious
beliefs. He further asserts that other religious groups are allowed to possess and wear
religious head wear. Mr. Harvey requests damages and injunctive relief.
Mr. Harvey cannot maintain his claims against Defendants Werholtz and
Archuleta because he fails to allege specific facts to demonstrate each Defendant’s
personal participation in a deprivation of his constitutional rights. Plaintiff was warned
by Magistrate Judge Boland in the June 25 Order that personal participation is an
essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 126263 (10th Cir. 1976); 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 supervisory official 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). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556
U.S. at 677). Therefore, in order to succeed in a § 1983 suit against a government
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official for conduct that arises out of his or her supervisory responsibilities, a plaintiff
must allege and demonstrate that “(1) the defendant 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.” Id. at 1199.
Mr. Harvey alleges in the second amended complaint that Defendant DOC
Interim Director Werholtz and Warden Archuleta failed to respond to his written
complaints about Defendant Segura’s alleged misconduct and failed to adequately
supervise Defendant Segura to ensure that she followed DOC regulations pertaining to
strip search procedures and inmates’ possession of religious head wear. Essentially,
Plaintiff seeks to hold Defendants Werholtz and Archuleta liable on the basis of
respondeat superior. This he may not do. See Iqbal, 556 U.S. at 676. Furthermore,
the mere fact that Defendants were made aware of Plaintiff’s claims in written
correspondence is an insufficient basis to impose § 1983 liability. See Davis v. Ark.
Valley Corr. Facility, No. 02-1486, 99 F. App’x. 838, 843 (10th Cir. May 20, 2004)
(unpublished) (sending “correspondence [to high-ranking prison official] outlining [a]
complaint . . . without more, does not sufficiently implicate the [supervisory official]
under § 1983”). Accordingly, Defendants Werholtz and Archuleta are improper parties
to this action and will be dismissed.
The Court will not address at this time the merits of Mr. Harvey’s constitutional
claims against Defendants Segura and Lt. Lang. Instead, the action 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
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is
ORDERED that Defendants Werholtz and Archuleta are DISMISSED for
Plaintiff’s failure to allege those Defendants’ personal participation in an alleged
deprivation of Mr. Harvey’s constitutional rights. It is
FURTHER ORDERED that the claims against Defendants Segura and Lang shall
be drawn to a district judge and to a magistrate judge. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed on Appeal Pursuant to 28 U.S.C. § 1915 [Doc. # 25] and Motion for
Appointment of Counsel [on Appeal] [Doc. # 26] are DENIED as moot. On October 23,
2013, the Circuit Court of Appeals for the Tenth Circuit dismissed Plaintiff’s Notice of
Appeal [Doc. # 27] for lack of jurisdiction. [See Doc. # 30].
DATED at Denver, Colorado, this 25th day of

October

, 2013.

BY THE COURT:

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

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