Turner v. Falk et al

Filing 8

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 12/2/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02957-BNB
GARY WAYNE TURNER,
Plaintiff,
v.
FRANCES FALK, Warden,
ROBERT BUTCHER, Major,
MS. SHARP, Teacher,
MS. DUMMIT, Teacher I,
JACKSON, Lieutenant, and
STEVEN GOSSETT, CM,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Gary Wayne Turner, is in the custody of the Colorado Department of
Corrections and is incarcerated at the Correctional Facility in Limon, Colorado (LCF).
He has filed a Prisoner Complaint asserting a deprivation of his constitutional rights
pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Mr. Turner has been granted
leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Mr. Turner 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. Turner will be ordered to file an amended complaint.

Mr. Turner alleges in the Complaint that in June 2013, Defendant Butcher, the
LCF programs director, issued him a COPD charge for sexual harassment based on
Plaintiff’s references to anal sex in a class essay that was reviewed by Defendants
Sharp and Dummit. Defendant Butcher also terminated Plaintiff’s participation in the
college course. Plaintiff alleges that Defendant Warden Falk approved Plaintiff’s
removal from the class. Mr. Turner further alleges that Defendant Steven Gossett,
Plaintiff’s case manager, changed Plaintiff’s prison classification concerning his prior
criminal history, without affording him a hearing, in order to keep Plaintiff housed at a
closed facility. Plaintiff asserts that Defendants have violated his First Amendment right
to freedom of speech, his Fourteenth Amendment due process rights, and have
retaliated against him for filing grievances concerning racism. Mr. Turner requests
injunctive and monetary relief.
The Prisoner Complaint is deficient because Mr. Turner fails to allege specific
facts to show the personal participation of the Defendants in a violation of his
constitutional rights. Indeed, he does not make any allegations against Defendant Lt.
Jackson in the body of the Complaint. 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). A supervisor, such as Defendant Warden Falk, 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.”).
Furthermore, the Constitution does not entitle an inmate to any particular security
classification in prison. Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994); see
also Meachum v. Fano, 427 U.S. 215, 228-29 (1976) (recognizing that custodial
classification decisions are best left to the discretion of prison officials). Instead, a due
process claim arises only if the change in classification imposed an atypical or
significant hardship upon the inmate in relation to the ordinary incidents of prison life,
see Sandin v. Conner, 515 U.S. 472, 480 (1995), or threatened to lengthen his term of
confinement, id. at 487.
To state an arguable retaliation claim, Mr. Turner must allege specific facts to
show that the “alleged retaliatory motives were the ‘but for’ cause of the defendants’
actions.” See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). “Mere
allegations of constitutional retaliation will not suffice; plaintiffs must rather allege
specific facts showing retaliation because of the exercise of the prisoner’s constitutional
rights.” Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1991). See also Gee v.
Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (plaintiff must state facts to show that
defendants were aware of the plaintiff’s protected activity, that the protected activity
complained of defendants' actions, and that the adverse action was in close temporal
proximity to the protected activity). Accordingly, it is

ORDERED that Plaintiff, Gary Wayne Turner, file within thirty (30) days from
the date of this order, an amended complaint that complies with the directives in this
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 an amended complaint that
complies with this order to the Court’s satisfaction within the time allowed, the Court
may dismiss this action without further notice for the reasons discussed above. It is
DATED December 2, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge