Womack v. Berkebile et al

Filing 17

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 11/6/13. Federal Bureau of Prisons, Lisa Gregory, Shon Kuta, Patricia Rangel, Charles Samuels, Jr, Sean Snider, Tena Sudlow, David Berkebile and Blake Davis terminated. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01866-BNB
DAVID LEE WOMACK,
Plaintiff,
v.
DAVID BERKEBILE, ADX Florence Warden,
PATRICIA RANGEL, ADX Florence Unit Manager,
DARREN FOSTER, ADX Florence Counselor,
TENA SUDLOW, ADX Case Manager,
BLAKE DAVIS, BOP Assistant Director,
E. ALEXANDER, ADX Hearing Administrator,
ARKO, ADX Correctional Officer,
SEAN SNIDER, ADX Captain,
SHON KUTA, ADX Associate Warden,
ANTHONY OSAGIE, ADX Physician Assistant,
RONALD CAMACHO, ADX Physician Assistant,
LISA GREGORY, NCRO Health Svc. Administrator,
CHARLES SAMUELS JR., BOP Director,
JOHN DOE, ADX Staff Member,
FBOP [FEDERAL BUREAU OF PRISONS], a federal agency,
Defendants.

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

Plaintiff, David Lee Womack, is a prisoner in the custody of the Federal Bureau
of Prisons (BOP) who currently is incarcerated at the United States Penitentiary,
Administrative Maximum (ADX), in Florence, Colorado. He submitted pro se a Prisoner
Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
On July 16, 2013, Magistrate Judge Boyd N. Boland ordered Mr. Womack to file

an amended Prisoner Complaint because he was suing an improper party, the
complaint failed to comply with the pleading requirements of Rule 8 of the Federal Rules
of Civil Procedure, and he failed to allege the personal participation of each named
defendant. On August 19, 2013, Mr. Womack filed an amended Bivens Complaint for
money damages and injunctive relief. He also asserts jurisdiction pursuant to the
Americans With Disabilities Act (ADA), 42 U.S.C. § 12131, and section 504 of the
Rehabilitation Act, 29 U.S.C. § 794(a).
Mr. Womack has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. 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).
Mr. Womack is cautioned that his ability to file a civil action or appeal in federal
court in forma pauperis pursuant to § 1915 may be barred if he has three or more
actions or appeals in any federal court that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).
Under § 1915(g), the Court may count dismissals entered prior to the enactment of this
statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe liberally the amended Prisoner Complaint because Mr.
Womack 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
2

Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, the amended Prisoner Complaint will be dismissed in part
pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous.
Claim One
As part of his first claim, Mr. Womack alleges that on January 28, 2013, while in
the custody of Warden David Berkebile, he was diagnosed with H Pylori and suffered a
stomach tumor allegedly due to the lack of treatment for H Pylori. He complains that the
medication he was prescribed for treatment “was to no avail.” ECF No. 12 at 2. On the
basis of these allegations, he contends his Eighth Amendment rights were violated. Mr.
Womack fails to allege facts indicating that Warden Berkebile personally participated in
any Eighth Amendment violations. Warden Berkebile clearly is being sued in his
supervisory capacity as prison warden.
In the July 16 order for an amended complaint, Magistrate Judge Boland
emphasized that personal participation is an essential allegation in a civil rights action,
See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976), and that Mr. Womack
must show that each defendant caused the deprivation of a federal right. See Kentucky
v. Graham, 473 U.S. 159, 166 (1985). Further, Mr. Womack must show that there is 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). Therefore, the portion of
claim one asserting an Eighth Amendment violation against Warden Berkebile will be
3

dismissed as legally frivolous.
Also as part of his first claim, Mr. Womack alleges that his Eighth Amendment
rights against cruel and unusual punishment, Fifth Amendment due process rights, and
rights under the ADA and Rehabilitation Act were violated by Defendant E. Alexander,
an ADX hearing administrator, and the BOP. In support of his claim, he asserts that he
is illiterate and unable to read or write. He complains that on September 21, 2012, Mr.
Alexander held a hearing at which Plaintiff spoke. He maintains that, following the
hearing, Mr. Alexander prepared a report showing that mental-health and illiteracy
information, although available, was not utilized. Mr. Womack complains that the BOP
and Mr. Alexander refused to record the hearing or provide disability accommodations.
Mr. Womack’s Eighth Amendment claim against Mr. Alexander is without merit.
The core areas entitled to protection by the Eighth Amendment include food, shelter,
sanitation, personal safety, medical care, and adequate clothing. See Clemmons v.
Bohannon, 956 F.2d 1523, 1527 (10th Cir. 1992). The Eighth Amendment is violated if
prison officials act with deliberate indifference to an inmate’s health or safety. See
Farmer v. Brennan, 511 U.S. 825 (1994). Deliberate indifference means that "a prison
official may be held liable . . . only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take reasonable measures to abate
it." Id. at 847. Mere negligence does not violate the Eighth Amendment. Whitley v.
Albers, 475 U.S. 312, 319 (1986); see also Berry v. City of Muskogee, 900 F.2d 1489,
1495 (10th Cir. 1990) (deliberate indifference requires a higher degree of fault than
negligence or even gross negligence). Mr. Womack fails to allege facts that support an
Eighth Amendment claim of cruel and unusual punishment against Mr. Alexander. The
4

Eighth Amendment claim will be dismissed as legally frivolous.
As Mr. Womack was informed in the order for an amended complaint, he may not
sue the BOP in a Bivens action. The United States, as sovereign, is immune from suit
unless it expressly consents to be sued. United States v. Testan, 424 U.S. 392, 399
(1976); Bivens, 403 U.S. at 410; Ascot Dinner Theatre, Ltd. v. Small Business Admin.,
887 F.2d 1024, 1027 (10th Cir. 1989). Therefore, the claim against the BOP will be
dismissed as legally frivolous.
The portion of claim one asserting ADA, Rehabilitation Act, and due process
violations against Mr. Alexander will be drawn to a district judge and a magistrate judge.
Claim Two
As his second claim, Mr. Womack also alleges a violation of his Eighth
Amendment rights based on his contention that Defendant John Doe, an ADX staff
member, infected Plaintiff with H Pylori by contaminating his food with fecal matter. He
further alleges that, after he experienced stomach pangs, weight loss, loss of appetite,
and nausea, Defendants Anthony Osagie and Ronald Camacho, ADX physician
assistants, failed to provide adequate medical treatment or order appropriate diagnostic
testing. He makes the vague allegation that ADX inmates routinely are denied
treatment or tests by Warden Berkebile and Lisa Gregory, a health service
administrator, as a result of poorly trained medical staff and budgetary and nonmedical
concerns.
Mr. Womack’s claims against the John Doe ADX staff member, who he alleges
infected with H Pylori, and against physician assistants Messrs. Osagie and Camacho,
who he alleges failed to provide him with medical care, will be drawn to a district judge
5

and magistrate judge.
Mr. Womack’s generalized and vague allegations against Warden Berkebile and
Ms. Gregory concerning the allegedly routine denial of treatment or tests for ADX
inmates are conclusory and must be dismissed. Merely 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. Moreover, Mr. Womack may not assert
the rights of other inmates. His conditions-of-confinement claims must focus solely on
how he has been injured. The United States Constitution requires that a party seeking
to invoke the jurisdiction of the federal courts must demonstrate that he has suffered
some actual or threatened injury, that the injury was caused by the defendants, and that
a favorable judicial decision is likely to redress the injury. Valley Forge Christian
College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472
(1982); Hackford v. Babbitt, 14 F.3d 1457, 1464 (10th Cir. 1994). Because Mr.
Womack, in his allegations concerning other prisoners, fails to demonstrate any actual
or threatened injury as a result of the conditions of his confinement, he lacks standing to
assert claims concerning those conditions. See Citizens Concerned for Separation of
Church & State v. City & County of Denver, 628 F.2d 1289, 1295-96 (10th Cir. 1980).
Mr. Womack’s claims asserted against Warden Berkebile and Ms. Gregory will be
dismissed as legally frivolous.
6

Claim Three
As his third claim, Mr. Womack alleges that certain Defendants violated his First
Amendment rights and retaliated against him. In support of these allegations, he
contends that beginning in October 2012 Defendants Darren Foster, Patricia Rangel,
and Tena Sudlow started interfering with his legal activities by repeatedly withholding
postage and administrative remedies to cause “submissions,” apparently to courts, to be
untimely. ECF No. 12 at 7. He argues that Ms. Rangel, Shon Kuta, Sean Snider, and
Warden Berkebile failed to address what he contends was a campaign of harassment
by unspecified correctional officers who repeatedly stole Plaintiff’s property, violated
BOP policy, wrote fake or improper incident reports, and tampered with mail, meals,
medical care, educational programming despite dozens of complaints by Plaintiff, which
actually caused the harassment to intensify over a nine-month period.
He further alleges that Mr. Foster violated BOP policy in a disciplinary hearing by
refusing to read disciplinary charges to Plaintiff, who Mr. Foster knew was illiterate. He
contends Ms. Rangel violated his rights by failing to appoint Jeremy Pinson, a coinmate, to assist him in filing a lawsuit and instead appointed an inmate without legal
knowledge. He complains that Mr. Arko violated his rights by spitting on his meal before
serving it.
Mr. Womack’s claims that Mr. Foster refused to read disciplinary charges to him
during a disciplinary hearing even though he is illiterate and that Mr. Arko spit on his
meal before serving it will be drawn to a district judge and a magistrate judge. The
remaining claims of First Amendment violations and retaliation will be dismissed for the
reasons stated below.
7

Prison officials may not retaliate against a prisoner because he exercises his
constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990) (addressing
claim for retaliation in a First Amendment context). To state a retaliation claim, Mr.
Womack “must plead facts indicating that he can plausibly prove three elements at trial:
(1) he engaged in constitutionally protected activity; (2) the defendants’ actions caused
him to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in the protected activity; and (3) the defendants’ actions were substantially
motivated by the plaintiff's protected activity.” Magluta v. U.S. Fed. Bureau of Prisons,
No. 08-cv-00404, 2009 WL 1504749, at *3 (D. Colo. May 27, 2009) (unpublished)
(addressing claim for retaliation in a First Amendment context) (citing Shero v. City of
Grove, 510 F.3d 1196, 1203 (10th Cir.2007)). “A plaintiff must allege facts to show that
retaliation was the animus behind the defendants’ actions, i.e., a plaintiff must show that
‘but for’ a desire to retaliate, the defendants would not have acted as they did.”
Magluta, No. 08-cv-00404, 2009 WL 1504749, at *3 (citations omitted). “An inmate
claiming retaliation must allege specific facts showing retaliation because of the
exercise of [his] constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th
Cir.1998) (internal quotation marks and citation omitted).
Mr. Womack does not allege any specific facts that implicate any of the
remaining Defendants in any retaliatory actions. He fails to “explain 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).
8

Mr. Womack’s claims against Ms. Rangel for failing to appoint the jailhouse
lawyer he wanted to assist him in filing a lawsuit is without merit. Prisoners do not have
a protected legal interest in acting as a jailhouse lawyer for other prisoners. See Smith
v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990). In addition, a prisoner must
demonstrate actual injury from interference with his access to the courts – that is, that
the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim
concerning his conviction or his conditions of confinement. See Lewis v. Casey, 518
U.S. 343, 351-55 (1996). Mr. Womack’s access-to-the-courts allegations against Ms.
Rangel fail this test because Plaintiff was not impeded in his ability to file his amended
Prisoner Complaint and pursue his claims in this action. In addition, Mr. Womack’s
remaining claim three claims are based on vague and conclusory allegations of
interference with his access to the courts.
By the same token, Mr. Womack’s claims against Ms. Rangel, Ms. Kuta, Mr.
Snider, and Warden Berkebile for allegedly failing to address a campaign of harassment
by unspecified correctional officers also are vague and conclusory. Mr. Womack fails to
allege specific facts demonstrating any violation of his constitutional rights. Although
this portion of three must be construed liberally, the Court will not construct legal
arguments for a pro se litigant. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005).
The claims of interference with Plaintiff’s legal activities or failure to address a
campaign of harassment by unspecified correctional officers asserted against the
following Defendants will be dismissed as legally frivolous: Ms. Rangel, Ms. Sudlow,
Mr. Kuta, Mr. Snider, and Warden Berkebile. As previously stated, Mr. Womack’s
9

claims against Mr. Foster for refusing to read disciplinary charges to him, despite
knowing he is illiterate, and against Mr. Arko for allegedly spitting on his meal before
serving it will be drawn to a district judge and a magistrate judge.
Finally, Mr. Womack fails to make any allegations against Blake Davis, a BOP
Assistant Director, or Charles Samuels, Jr., the BOP director. Therefore, he has failed
to establish their personal participation in any of his asserted claims. See Bennett, 545
F.2d at 1262-63. Any claims Mr. Womack intended to assert against Mr. Davis and Mr.
Samuels will be dismissed as legally frivolous, and these Defendants will be dismissed
as parties to this action.
Accordingly, it is
ORDERED that the amended Prisoner Complaint (ECF No. 12) that Plaintiff,
David Lee Womack, filed on August 19, 2013, is dismissed in part pursuant to 28 U.S.C.
§ 1915(e)(2)(B) as legally frivolous. It is

FURTHER ORDERED that the claim one claim of Eighth Amendment violations
asserted against Warden Berkebile, the Federal Bureau of Prisons (BOP), and E.
Alexander are dismissed pursuant to § 1915(e)(2)(B) as legally frivolous. It is
FURTHER ORDERED that the claim one claim of violations of the Americans
With Disabilities Act, section 504 of the Rehabilitation Act, and Fifth Amendment Due
Process Clause asserted against E. Alexander are drawn to a district judge and a
magistrate judge. It is
FURTHER ORDERED that the claim two Eighth Amendment claims against
Warden Berkebile and Lisa Gregory are dismissed pursuant to § 1915(e)(2)(B) as
legally frivolous. It is
10

FURTHER ORDERED that the claim two Eighth Amendment claims against the
John Doe ADX staff member, Anthony Osagie, and Ronald Camacho are drawn to a
district judge and magistrate judge. It is
FURTHER ORDERED that the claim three claims of interference with Plaintiff’s
legal activities asserted or failure to address a campaign of harassment by unspecified
correctional officers asserted against the following Defendants are dismissed pursuant
to § 1915(e)(2)(B) as legally frivolous: the Federal Bureau of Prisons (BOP), Darren
Foster, Patricia Rangel, Tena Sudlow, Shon Kuta, Sean Snider, and Warden Berkebile.
It is
FURTHER ORDERED that the claim three claim that Ms. Rangel violated
Plaintiff’s rights by failing to appoint a co-inmate with legal knowledge to assist him in
filing a lawsuit is dismissed pursuant to § 1915(e)(2)(b) as legally frivolous. It is
FURTHER ORDERED that the claim three claims against Mr. Foster for refusing
to read disciplinary charges to Plaintiff despite knowing he is illiterate and against Mr.
Arko for allegedly spitting on Plaintiff’s meal before serving it are drawn to a district
judge and a magistrate judge. It is
FURTHER ORDERED that any claims Plaintiff intended to assert against Blake
Davis, a BOP Assistant Director, and Charles Samuels, Jr., the BOP director, are
dismissed pursuant to § 1915(e)(2)(B) as legally frivolous. It is
FURTHER ORDERED that Mr. Berkebile, Ms. Rangel, Ms. Sudlow, Mr. Davis,
Mr. Snider, Mr. Kuta, Ms. Gregory, Mr. Samuels, and the Federal Bureau of Prisons
(BOP) are dismissed as parties to this action. The only remaining Defendants are Mr.
Alexander, the John Doe ADX staff member, Mr. Osagie, Mr. Camacho, Mr. Foster, and
11

Mr. Arko. It is
FURTHER ORDERED that the clerk of the Court is directed to strike the letter
(ECF No. 15) submitted to the Court on September 26, 2013, by Michael Orr, who is not
a party to this lawsuit.
DATED November 6, 2013, at Denver, Colorado.
BY THE COURT:

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

12