Carrillo Franco v. CDOC Executive Director et al

Filing 9

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 1/16/14. Defendants Griffith and DeCesaro are dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02851-BNB
CARRILLO FRANCO,
Plaintiff,
v.
STURGEON, Nurse Practitioner, Official and Individual Capacity,
CINDY NOLD, 16789, Official and Individual Capacity,
KERRY BARONI, 16025, Official and Individual Capacity,
GRIFFITH MARSHALL, 14298, Official and Individual Capacity, and
ANTHONY A. DECESARO, Official and Individual Capacity,
Defendants.

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

Plaintiff, Carrillo Franco, is in the custody of the Colorado Department of
Corrections at the Buena Vista Correctional Facility (BVCF). He initiated this action by
filing pro se a Prisoner Complaint alleging deprivations of his constitutional rights
pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.
On November 6, Magistrate Judge Boyd N. Boland reviewed the Complaint and
determined that it was deficient because Mr. Franco failed to allege specific facts to
show the personal participation of each named Defendant in a deprivation of his
constitutional rights. Accordingly, Magistrate Judge Boland ordered Plaintiff to file an
Amended Complaint within thirty (30) days of the November 6 Order. Mr. Franco filed
an Amended Complaint on December 3, 2013. On December 6, 2013, Magistrate
Judge Boland reviewed the Amended Complaint and determined that it was deficient

because Mr. Franco did not file an amended pleading that included all of his claims for
relief. Instead, he filed a document that added new allegations and asked the Court to
incorporate by reference into his Amended Complaint. Magistrate Judge Boland
therefore ordered Plaintiff to file a single Second Amended Complaint to include all of
his allegations and claims for relief, within thirty (30) days of the December 6 Order. Mr.
Franco filed a Second Amended Complaint on January 7, 2014 (ECF No. 8).
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the Second
Amended Complaint because Mr. Franco is a prisoner and he is seeking redress from
officers or employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is
required to dismiss the Second Amended Complaint, or any portion thereof, that is
frivolous. 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. See Neitzke v. Williams , 490 U.S. 319, 324 (1989).
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,
the Second Amended Complaint will be dismissed in part.
Mr. Franco alleges in the Second Amended Complaint that while performing 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
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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 request x-rays or to refer him to a specialist for proper treatment. Plaintiff
alleges that Defendant Nold, a nurse at BVCF, improperly denied his grievance at step I
and should have assisted him in obtaining the proper medical evaluations to determine
the extent of his injuries. Plaintiff states that he was finally seen by a physician who
took x-rays of his injuries on July 31, 2013. He claims that the Defendants intentionally
delayed and denied his access to adequate medical care, causing his physical condition
to deteriorate as well as continuing pain. He maintains that Defendant Baroni, the
acting Health Services Administrator and supervisor of all medical personnel at BVCF,
denied his grievance at Step II even though she had the authority to assure that he
received the proper medical care. Mr. Franco further asserts that Defendants Griffith
and DeCesaro, who work at the DOC central office in Colorado Springs, Colorado,
violated his Eighth Amendment rights when they denied his grievances. Finally, Plaintiff
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.
Mr. Franco cannot maintain his claim against Defendants Griffiths and DeCesaro
because he fails to allege specific facts to show their personal participation in a
deprivation of his constitutional rights. Plaintiff was warned by Magistrate Judge Boland
in the November 6 Order that 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
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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).
Mr. Franco’s claims against Defendants Griffith and DeCesaro must be
dismissed because he 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").
Plaintiff does not allege any facts to show that Defendants Griffith and DeCesaro,
who work in the DOC’s Colorado Springs office, were personally involved in his medical
care or had any control over medical decisions at BVCF. Accordingly, Defendants
Griffith and DeCesaro are improper parties to this action and will be dismissed. By
contrast, Mr. Franco’s allegations that Defendant Baroni, who denied his grievance at
Step II, was the acting Health Services Administrator at BVCF and had authority over
inmate medical care, is sufficient to show Defendant Baroni’s personal participation.
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Similarly, Plaintiff’s allegations that Defendant Nold played a role in depriving him of
alleged necessary medical care are sufficient to show the Defendant’s arguable
participation in a constitutional violation.
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that
Mr. Franco’s claims against Defendants Sturgeon, Nold, and Baroni do not appear to be
appropriate for summary dismissal and that the case should be drawn to a district judge
and to a magistrate judge. See D.C.COLO.LCivR 8.1(c). Accordingly, it is
ORDERED that Defendants Griffith and DeCesaro are DISMISSED as parties to
this action for Plaintiff’s failure to allege their personal participation. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge pursuant to D.C.COLO.LCivR 40.1(a).
DATED at Denver, Colorado, this 16th day of

January

, 2014.

BY THE COURT:

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

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