Wilder v. Federal Corrections Officers 1-10 et al

Filing 18

ORDER Directing Plaintiff to File Second and Final Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/03/2013. (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
SECOND AND FINAL 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.

On August 14, 2013, Magistrate Judge Boyd N. Boland reviewed the Prisoner
Complaint and determined that it was deficient because it failed to allege the personal
participation of each Defendant in a deprivation of his constitutional rights. Magistrate
Judge Boland thus ordered the Plaintiff to file an amended complaint within thirty days
of the August 14 Order. Mr. Wilder filed an Amended Complaint on August 26, 2013.
[Doc. # 17].
The Court must construe the Amended 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 a second and final amended
complaint.
Mr. Wilder alleges in the Amended Complaint that on June 23, 2013, while
incarcerated at UPS-Florence, Colorado, he suffered serious orthopedic injuries after he
slipped on a floor covered in several inches of human waste (feces and urine) and fell
face forward down a flight of stairs that were “dripping with human waste.” He asserts
that the Defendant SHU Lieutenant ordered Defendant Federal Corrections Officers 110 to ignore the unsanitary conditions. Mr. Wilder further alleges that the Defendant
Corrections Officers, Corrections Counselors, Assistant Wardens, and Warden Daniels,
all knew about the human waste on the floor and stairs because the unsanitary
condition existed for several weeks, but they all failed to clean it up. He claims that the

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Defendants’ failure to take remedial action constitutes deliberate indifference to a
serious risk of harm to his health and safety, in violation of his Eighth Amendment
rights. Mr. Wilder also asserts that Defendants Unknown Federal Employees 1-10 have
failed to provide him with adequate medical care for his injuries. He requests monetary
relief.
The Amended Complaint does not allege any specific facts to show the personal
participation of Defendants Unknown Federal Employees 1-10 in a violation 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
to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Supervisors 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.”).
Furthermore, although Mr. Wilder may use fictitious names if he does not know

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the real names of the individuals who allegedly violated his rights, such as Jane or John
Doe, he must provide sufficient information about each defendant so that the individual
can be identified for purposes of service. In the Amended Complaint, Mr. Wilder does
not allege any specific facts from which the Court or the Defendants can ascertain the
identity of the “Unknown Federal Employees 1-10" Defendants. Plaintiff makes a
conclusory assertion that he was denied adequate medical care for the injuries he
suffered on June 23, 2010, but he fails to describe the circumstances constituting the
denial(s), a general time frame, or provide any identification information as to who
denied the care (i.e., nurse, P.A., physician, etc.). These facts are necessary to state
an arguable claim under Bivens. See e.g. Whiteman v. El Paso Criminal Justice
Center, No. 10-02430-WYD-KLM, 2011 WL 2610202, at *7 (D. Colo. July 1, 2011)
(unpublished) (dismissing claims against John Doe defendants for plaintiff’s failure to
allege their personal participation in the alleged constitutional deprivation); see also
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (In
order to state a claim in federal court, the "complaint must explain what each defendant
did to [the plaintiff]; 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.").
Finally, Mr. Wilder asserts that medical providers at FCI-Tucson have failed to
treat his injuries and pain sustained as a result of the June 23, 2010 fall down the stairs.
It is not clear whether any of the “Unknown Federal Employees 1-10" Defendants are
medical providers at FCI-Tucson. Mr. Wilder must bring his Eighth Amendment claims
against any FCI-Tucson officials in the United States District Court for the District of

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Arizona, where venue is proper. See 28 U.S.C. § 1391(b). Accordingly, it is
ORDERED that Plaintiff, Christopher Wilder, file within thirty (30) days from
the date of this order, a Second Amended Complaint that includes Claims 1 and 2 of
the Amended Complaint and also addresses the deficiencies in his Eighth Amendment
claim against the “Unknown Federal Employees 1-10" Defendants (Claim Three of the
Amended Complaint). 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 a Second Amended Complaint
that complies with this order within the time allowed, the Court will dismiss Defendants
“Unknown Federal Employees 1-10" without further notice for the reasons discussed
above.
DATED September 3, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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