Johnson v. Santini et al
Filing
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ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/16/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02664-BNB
JOSHUA CLAY JOHNSON,
Plaintiff,
v.
GEORGE SANTINI,
ALICIA VINEYARD,
ALLYSON ALVARADO,
GILBERTA TRUJILLO,
T. K. COZZA-RHODES, and
PETER BLUDWORTH,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Joshua Clay Johnson, is a prisoner in the custody of the Federal Bureau
of Prisons who currently is incarcerated at the Federal Correctional Institution in
Florence, Colorado. He submitted pro se a Prisoner Complaint (ECF No. 1) for money
damages and injunctive relief pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) (ECF No. 1), and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). He has been
granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe liberally the Prisoner Complaint because Mr. Johnson 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, Mr. Johnson will be ordered to file an amended Prisoner Complaint if he wishes
to pursue his claims in this action.
Mr. Johnson’s complaint fails to assert clearly the personal participation of each
named defendant, particularly Alyson Alvarado and Gilberta Trujillo. Personal
participation is an essential allegation in a civil rights action. See Bennett v. Passic, 545
F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation, Mr. Johnson
must show that each 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). 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
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
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required to establish the alleged constitutional deprivation.” Id. at 1199.
Mr. Johnson may use fictitious names, such as “John or Jane Doe,” if he does
not know the real names of the individuals who allegedly violated his rights. However, if
Mr. Johnson uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
Mr. Johnson will be given an opportunity to cure the deficiencies in his complaint
by submitting an amended complaint that alleges specific facts demonstrating how each
named defendant personally participated in the asserted constitutional violations.
Accordingly, it is
ORDERED that Plaintiff, Joshua Clay Johnson, file, within thirty (30) days from
the date of this order, an amended Prisoner Complaint that complies with the
directives of this order. It is
FURTHER ORDERED that Mr. Johnson shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov, and must use that form
in submitting the amended complaint. It is
FURTHER ORDERED that, if Mr. Johnson fails to file an amended Prisoner
Complaint that complies with this order within the time allowed, some claims against
some defendants, or the entire complaint and action, may be dismissed without further
notice.
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DATED October 16, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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