Walker v. No Named Defendant

Filing 9

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/5/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02856-BNB
THOMAS L. WALKER,
Plaintiff,
v.
LEUTENANT [sic] C. MAY, and
SERGENT [sic] BORDERS,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Thomas L. Walker, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Colorado State
Penitentiary in Cañon City, Colorado. He filed pro se a Prisoner Complaint (ECF No. 5)
pursuant to 42 U.S.C. § 1983 for unspecified money damages. He has been granted
leave to proceed pursuant to 28 U.S.C. § 1915.
On December 30, 2013, Magistrate Judge Boyd N. Boland entered an order
(ECF No. 8) directing Mr. Walker to file within thirty days an amended Prisoner
Complaint that complied with the pleading requirements of Rule 8 of the Federal Rules
of Civil Procedure and alleged the personal participation of each named Defendant.
Magistrate Judge Boland warned Mr. Walker that if he failed to file an amended
Prisoner Complaint that complied with December 30 order as directed within the time
allowed, some claims against some Defendants, or the entire action, may be dismissed
without further notice. Mr. Walker failed within the time allowed to file an amended

Prisoner Complaint as directed or otherwise communicate with the Court in any way.
In the December 30 order for an amended Prisoner Complaint, Magistrate Judge
Boland discussed Mr. Walker’s two claims. The claims were based on the alleged
denial of clothing and laundry service (except for a clothing exchange on July 16, 2013)
between March and November 2013 because of unspecified mental-health issues.
Plaintiff alleged he only had two pairs of boxer shorts to wear during this period of time.
He also alleged he was not allowed to wash the boxers in his cell or during a shower.
On the basis of these allegations, he contended he was treated unequally because of
his mental illness (claim one) and subjected to cruel and unusual punishment because
without proper clothing he was unable to participate in mental-health groups (claim two).

Magistrate Judge Boland explained that Mr. Walker’s first claim--that his
Fourteenth Amendment equal protection rights were violated on the basis of his mental
illness--was deficient because Plaintiff failed to allege any similarly situated individuals
who were treated differently. The Equal Protection Clause is violated when similarly
situated individuals are treated differently and the difference in treatment is not rationally
related to a legitimate government interest. See City of Cleburne v. Cleburne Living
Center, 473 U.S. 432, 439-40 (1985). In Templeman v. Gunter, 16 F.3d 367, 371 (10th
Cir. 1994), the United States Court of Appeals for the Tenth Circuit (Tenth Circuit)
rejected an equal protection claim challenging a prison classification decision, in part,
because “it is ‘clearly baseless’ to claim that there are other inmates who are similar [to
the plaintiff] in every relevant respect.” Pursuant to Milligan v. Archuletta, 659 F.3d
1294 (10th Cir. 2011), Mr. Walker was given the opportunity to file an amended
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complaint that provides sufficient facts to state a Fourteenth Amendment violation. He
failed to do so.
In addition, Mr. Walker failed to provide specifics as to what each Defendant did
or failed to do to violate his constitutional rights, relying instead on vague and
conclusory allegations. Mr. Walker has made serious general allegations in his
complaint, but without specific factual assertions of Defendants’ actions or inaction that
jeopardized his mental health, he fails to comply with Rule 8 and state Defendants’
personal participation in the asserted constitutional violations. The Prisoner Complaint
will be dismissed without prejudice for Mr. Walker’s failure to file an amended Prisoner
Complaint that complies with Fed. R. Civ. P. 8 as directed within the time allowed, and
for his failure to prosecute. Mr. Walker may, if he chooses, reassert his claims in a new
and separate action that complies with the December 30 order.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Walker files a notice of appeal he also must pay the full $505.00 appellate
filing fee or file a motion to proceed in forma pauperis in the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Prisoner Complaint (ECF No. 1) and the action are
dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of Civil
Procedure for the failure of Plaintiff, Thomas L. Walker, within the time allowed, to file
an amended Prisoner Complaint as directed in the order of December 30, 2013 (ECF
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No. 8), and for his failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

5th day of

February

, 2014.

BY THE COURT:

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

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