Carrillo Franco v. CDOC Executive Director et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 11/06/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02851-BNB
CARRILLO FRANCO,
Plaintiff,
v.
CDOC EXECUTIVE DIRECTOR, Defendant, Official and Individual Capacity,
STURGEON, Nurse Practitioner, Defendant, Official and Individual Capacity,
SHARON HAMILTON, RN, III, Official and Individual Capacity, (unfortunately, now
deceased),
CINDY NOLD, 16789, Defendant, Official and Individual Capacity,
KERRY BARONI, 16025, Defendant, Official and Individual Capacity,
GRIFFITH MARSHALL, 14298, Defendant, Official and Individual Capacity,
ANTHONY A. DECESARO, Defendant, Official and Individual Capacity, and
LT. SOLBA, Food Service Department, Official and Individual Capacity,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Carrillo Franco, is in the custody of the Colorado Department of
Corrections at the Buena Vista Correctional Facility. He has filed, pro se, a Prisoner
Complaint alleging deprivations of his constitutional rights pursuant to 28 U.S.C. § 1343
and 42 U.S.C. § 1983. Mr. Franco has paid the applicable $400.00 filing fee.
The Court must construe the Complaint liberally because Mr. Franco 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 complaint and has determined that it is deficient. For the reasons discussed below,
Mr. Franco will be ordered to file an amended complaint.

Mr. Franco alleges that during his prison work assignment on June 6, 2013, he
fell on the facility’s kitchen floor injuring both shoulders, his right knee, his left wrist, and
his neck. On June 10, 2013, Plaintiff was examined by Defendant Sturgeon, a nurse
practitioner, who opined that his shoulder injuries were not related the slip and fall. Mr.
Franco alleges that Defendant Sturgeon prescribed Motrin for his pain and placed him
on a light duty work restriction but refused to refer him to a specialist for proper
treatment. Mr. Franco further alleges that Defendant Hamilton, R.N., denied his informal
grievance and failed to rectify a computer error that showed he was prescribed one
Motrin per day instead of two. Plaintiff states that he was finally seen by a physician
who took x-rays of his injuries on July 31, 2013. Mr. Franco alleges that he continues to
suffer serious pain. He claims that the Defendants intentionally delayed and denied his
access to adequate medical care causing his physical condition to deteriorate. He
further complains that he has been treated disparately from other inmates who were
injured at the facility but were taken to the local hospitals for x-rays and a physician’s
examination. Mr. Franco requests damages and injunctive relief.
The Prisoner Complaint is deficient because Mr. Franco fails to allege specific
facts to show the personal participation of each named Defendant in a violation of his
constitutional rights. Personal participation is an essential element of a civil rights
action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); 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). The allegations against Lt. Solba do not implicate that Defendant in a
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deprivation of the Plaintiff’s constitutional rights.
Furthermore, a supervisor such as the Director of the CDOC can only be held
liable for his 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 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) (“[Section] 1983 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.”).
Mr. Franco’s § 1983 claims against Defendants Hamilton, Nold, Baroni, Griffith,
and DeCesaro are deficient because Plaintiff seeks to hold those Defendants liable on
the basis that they denied his grievances at different levels of administrative review.
However, the "denial of a grievance, by itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not establish personal participation under §
1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); see also Whitington
v. Ortiz, No. 07-1425, 307 F. App’x. 179, 193 (10th Cir. Jan. 13, 2009) (unpublished)
(stating that "the denial of the grievances alone is insufficient to establish personal
participation in the alleged constitutional violations.") (internal quotation marks and
citation omitted); Davis v. Ark. Valley Corr. Facility, No. 02-1486, 99 F. App’x. 838, 843
(10th Cir. May 20, 2004) (unpublished) (sending "correspondence [to high-ranking
prison official] outlining [a] complaint . . . without more, does not sufficiently implicate the
[supervisory official] under § 1983"). Accordingly, it is
ORDERED that Plaintiff, Carillo Franco, file within thirty (30) days from the
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date of this order, an amended complaint that complies with the directives in this
order. It is
FURTHER ORDERED that Mr. Franco, 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 Mr. Franco fails to file an amended complaint that
complies with this order within the time allowed, the Court may dismiss some of the
claims and defendants without further notice for the reasons discussed above. It is
DATED November 6, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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