Wilder v. Federal Corrections Officers 1-10 et al

Filing 16

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 8/14/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01701-BNB
CHRISTOPHER JAMES WILDER,
Plaintiff,
v.
FEDERAL CORRECTIONS OFFICERS 1-10,
FEDERAL CORRECTIONS COUNSELORS 1-3,
FEDERAL CORRECTIONAL LIEUTENANT,
FEDERAL CORRECTIONAL ASSISTANT WARDENS 1-3,
FEDERAL CORRECTIONAL WARDEN,
C.E. SAMUELS, JR., Director, Federal Bureau of Prisons, and
UNKNOWN FEDERAL EMPLOYEES 1-10,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Christopher James Wilder, is a prisoner in the custody of the Federal
Bureau of Prisons (BOP) and is incarcerated at the Federal Correctional Institution in
Tucson, Arizona. He initiated this action by submitting pro se a “Civil Rights Complaint”
asserting a deprivation of his constitutional rights pursuant to 28 U.S.C. § 1331 and
Bivens v. Six Unkown Named Agents, 403 U.S. 388 (1971). On July 2, 2013, the
Court ordered Mr. Wilder to submit his Complaint and § 1915 Motion and Affidavit on
the court-approved forms. Mr. Wilder filed a Prisoner Complaint [Doc. # 12] and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on
the court-approved forms on August 12, 2013. He has been granted leave to proceed
pursuant to 28 U.S.C. § 1915 with payment of an initial partial filing fee.
The Court must construe the Prisoner Complaint liberally because Mr. Wilder 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 Prisoner Complaint and has determined that it is deficient. For the
reasons discussed below, Mr. Wilder will be ordered to file an amended complaint.
Mr. Wilder alleges in the Prisoner Complaint that on June 23, 2013, he was
seriously injured when he fell face forward down a flight of stairs that was covered in
human waste (feces and urine). He asserts that the Defendant SHU Lieutenant ordered
Defendant Federal Correctional Officers 1-10 to ignore the unsanitary conditions. Mr.
Wilder asserts that all of the Defendants knew or should have known about the human
waste on the stairs because the condition existed for several weeks, but they all failed
to clean it up. He claims that the Defendants’ failure to take remedial action constitutes
deliberate indifference to a serious risk of harm to his health and safety. Plaintiff further
asserts that he did not receive adequate medical care for his injuries resulting from the
fall on the stairs. He requests monetary relief.
The Prisoner Complaint is deficient because Mr. Plummer fails to allege specific
facts to show the personal participation of each Defendant in a deprivation of his
constitutional rights. Personal participation is an essential element of a Bivens action.
See Kite v. Kelley, 546 F.2d 334, 338 (1976). Plaintiff therefore must show that each
named Defendant 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

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to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Supervisors, such as the assistant wardens, warden and Director of the BOP, 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 [or Bivens] 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) (“[ Bivens] 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.”).
Accordingly, it is
ORDERED that Plaintiff, Christopher Wilder, 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 will dismiss some of the
Defendants without further notice for the reasons discussed above.
DATED August 14, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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