Vigil v. Meek

Filing 9

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/25/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02042-BNB
JOSEPH VIGIL,
Plaintiff,
v.
KEITH MEEK, Lieutenant, # 12101, Employee of C.D.O.C., and
JOHN DOE, Faith and Citizens Programs, Employee of C.D.O.C.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Joseph Vigil, is incarcerated in the Colorado Department of Corrections
(DOC) at the Fremont Correctional Facility (FCF). At the time he initiated this action, he
was incarcerated at the Sterling Correctional Facility (SCF). Mr. Vigil has been granted
leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Mr. Vigil filed a Prisoner Complaint [Doc. # 1] pursuant to 42 U.S.C. § 1983,
alleging a deprivation of his constitutional rights by Defendants James Falk, the Warden
of SCF; Roger Werholtz, Executive Director of the Colorado Department of Corrections;
and Keith Meek[s], a Lieutenant at SCF. Plaintiff requested monetary and injunctive
relief. On August 5, 2013, the Court reviewed the Prisoner Complaint and determined
that it was deficient because Mr. Vigil failed to allege the personal participation of each
named Defendant in a deprivation of his constitutional rights. The Court thus directed
Mr. Vigil to file an Amended Complaint within thirty days. Plaintiff filed an Amended
Complaint [Doc. # 8] on September 16, 2013.

The Court must construe Mr. Vigil’s filings liberally because he is representing
himself. 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 the pro se
litigant’s advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Vigil will
be directed to file a second amended complaint.
Mr. Vigil, a Native American, alleges in the Amended Complaint that Defendants
prohibited him from getting his hair cut in a mohawk style because of a DOC regulation
that requires inmate hairstyles to be neat and clean and not associated with any
disruptive group association. Plaintiff alleges that Jewish persons and Rastafarians are
allowed to wear their hair in accordance with their cultural and religious preferences and
that a staff member at SCF wore a mohawk haircut for a period of time. Mr. Vigil
maintains that Defendant Lieutenant Meek, a volunteer programs coordinator at SCF,
denied his request to wear a mohawk haircut. Plaintiff further alleges that Defendant
John Doe faith and citizens programs employee of DOC denied his request for a
change in the DOC regulation as it applied to mohawk haircuts based on Plaintiff’s
representation that the mohawk haircut was a cultural “way of life” rather than a faith
group practice. [Doc. # 18, at 12]. Mr. Vigil requests only injunctive relief and asks the
Court to order the DOC to change its regulations to allow Native Americans to wear
The Amended Complaint raises new issues. First, since this action was
instituted, Mr. Vigil has been transferred from SCF to FCF. To the extent Mr. Vigil
challenges an institutional policy at SCF, or a DOC system-wide policy, his claims for
injunctive relief against Defendant Meek, who is a lieutenant and volunteer programs

2

coordinator at SCF, have been mooted by his transfer to FCF. See Jordan v. Sosa,
654 F.3d 1012, 1028 (10th Cir. 2011) (a transferred prisoner's challenge to system-wide
prison policies is moot where he seeks equitable relief and only sues prison officials at
the transferor institution—that is, the institution where he was formerly incarcerated).
Similarly, “[w]here the prisoner's claims for declaratory or injunctive relief relate solely to
the conditions of confinement at the penal institution at which the prisoner is no longer
incarcerated,” his transfer to another facility renders the court unable to provide the
prisoner with any effectual relief. Id. at 1028. Accordingly, because Defendant Meek
no longer appears to be a proper party to this action, the second amended complaint
that Mr. Vigil will be directed to file should not include a claim against Lt. Meek.
By contrast, where a prisoner brings a lawsuit challenging policies that apply in a
generally uniform fashion throughout a prison system, and the prisoner sues defendants
who are actually situated to effectuate any prospective relief that the courts might see fit
to grant— i.e., , the director of the prison system or the prison system itself– the case
will not be dismissed on mootness grounds. See Abdulhaseeb v. Calbone, 600 F.3d
1301, 1312 (10th Cir. 2010) (“Even if Mr. Abdulhaseeb cannot recover money damages
against any defendant or injunctive relief against the prison-specific defendants, the
courts may still fashion some effective relief. The [Oklahoma Department of Corrections
(“ODOC”) ] [d]efendants, particularly the director of ODOC, remain parties to the
litigation.”); Randolph v. Rodgers, 170 F.3d 850, 857 (8th Cir. 1999) (concluding that a
transferred prisoner's claims were not moot where he “assert[ed] claims directly against
the Missouri Department of Corrections[ ] . . . which controls both prisons and the

3

funding necessary to provide the” relief that the plaintiff requested). Mr. Vigil named the
Director of the Colorado Department of Corrections in his original complaint, but did not
set forth adequate allegations to implicate the Director in a deprivation of his
constitutional rights. To the extent Plaintiff alleges that he is being denied a mohawk
haircut on an ongoing basis, pursuant to a system-wide DOC regulation, he may add
the Director of the Colorado Department of Corrections as a Defendant in the second
amended complaint and allege sufficient factual allegations to support an arguable claim
for injunctive relief against the Director.
Second, Mr. Vigil has added Defendant John Doe, Faith and Programs,
Employee of C.D.O.C., to the Amended Complaint. Mr. Vigil may use fictitious names,
such as John Doe, if he does not know the real names of the individual who allegedly
violated his rights. However, if Mr. Vigil uses a fictitious name he must provide sufficient
information about the defendant so that the defendant can be identified for purposes of
service. Plaintiff must also allege specific facts to show that the defendant was
personally involved in a deprivation of his constitutional rights. See Bennett v. Passic,
545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v. Graham, 473 U.S. 159, 166
(1985); Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010). If the John
Doe defendant is Daryl Proffit, the individual who denied Plaintiff’s AR Form 800-01J on
May 21, 2013, Plaintiff should identify that individual in the second amended complaint.
Accordingly, it is
ORDERED that Plaintiff, Joseph Vigil, file within thirty (30) days from the date
of this order, an second amended complaint that complies with the directives in this

4

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 a second amended complaint
that complies with this order within the time allowed, the Court may dismiss some or all
of this action without further notice for the reasons discussed above. It is
DATED September 25, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

5