Ghailani v. Holder et al

Filing 4

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 01/08/14. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00041-BNB

AHMED KUALFAN GHAILANI,
Plaintiff,
v.
ERIC HOLDER, U.S. ATTORNEY GENERAL,
U.S. ATTORNEY’S OFFICE, SDNY,
FEDERAL BUREAU OF INVESTIGATION,
OFFICE OF ENFORCEMENT OPERATIONS,
FEDERAL BUREAU OF PRISONS, and
DAVID BERKEBILE, ADX Warden,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Ahmed Kualfan Ghailani, is a prisoner in the custody of the Federal
Bureau of Prisons incarcerated at ADX in Florence, Colorado. He initiated this action by
submitting pro se a Prisoner Complaint asserting a deprivation of his constitutional
rights pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unkown Named Agents, 403 U.S.
388 (1971). Plaintiff has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Prisoner Complaint liberally because Plaintiff 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. Plaintiff will be ordered to file an
Amended Complaint for the reasons stated below.
Plaintiff presents six constitutional violations that are a result of his Special
Administrative Measures (“SAMs”) restrictions. Plaintiff asserts he has been subject to
SAMs since 2009, and Defendants impose or renew the SAMs each year without
affording him procedural due process. Plaintiff further asserts that the SAMs violate his
First, Fifth, and Eighth Amendment rights because Defendants restrict his access to the
mail, media, telephone, and visitors and deny his right to free exercise of religion.
Plaintiff seeks injunctive and declaratory equitable relief and compensation for
expenses.
Plaintiff fails to allege specific facts that demonstrate Defendants David Berkebile
and Eric Holder personally participated in the asserted constitutional violations. If
Plaintiff intends to pursue any claims against these Defendants he must file an
Amended Complaint that clarifies what those claims are and, with respect to any
constitutional claims, how these Defendants personally participated in the asserted
constitutional violations. See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011)
(allegations of “personal participation in the specific constitutional violation complained
of [are] essential”).
Plaintiff may not assert a Bivens claim for damages against the BOP, the U.S.
Attorney’s Office, the Federal Bureau of Investigation, or the Office of Enforcement
Operations. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (an inmate may
bring a Bivens action against the offending individual officer but not against the officer’s
employer). Plaintiff’s claims for declaratory and injunctive relief against Defendants
2

Berkebile and Holder in their official capacity and the named agencies, however, may
be raised pursuant to 28 U.S.C. § 1331. See Simmat v. U.S. Bureau of Prisons, 413
F.3d 1225 (10th Cir. 2005) (BOP and other named agencies within the meaning of the
Administrative Procedures Act, see 5 U.S.C. § 551, are properly named defendants.)
Plaintiff will be given an opportunity to file an Amended Complaint. Plaintiff must
include in the Amended Complaint all of the claims he is asserting in this action because
“an amended complaint supercedes the original complaint and renders the original
complaint without legal effect.” Mink v. Suthers, 482 F.3d 1244, 1254 (10th Cir. 2007)
(citing 3 Moore’s Federal Practice, § 15.17[3] (Matthew Bender 3d ed.)). For each claim
he asserts in the Amended Complaint, Plaintiff “must explain what each defendant did
to him [ ]; when the defendant did it; how the defendant’s action harmed him [ ]; and,
what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Accordingly, it is
ORDERED that, within thirty days from the date of this Order, Plaintiff file 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 within the time allowed, the Court may dismiss the action
without further notice for the reasons discussed above.
DATED January 8, 2014, at Denver, Colorado.
BY THE COURT:
3

s/ Boyd N. Boland
United States Magistrate Judge

4