Dodds v. Trinity Group et al

Filing 16

ORDER Directing Plaintiff to File Second Amended Complaint, by Magistrate Judge Boyd N. Boland on 4/23/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00125-BNB
FLOYD E. DODDS,
Plaintiff,
v.
TRINITY GROUP,
JEFF (Last Name Unknown), Director of Food Service at Pueblo County Jail Trinity
Group,
FERNANDEZ, Food Service Supervisor, Trinity Group,
KIRK TAYLOR, Sheriff, Pueblo County, in His Official and Individual Capacities,
TOLTH, Captain of Pueblo County Sheriff Department, in His Official and Individual
Capacities,
UNKNOWN LIEUTENANT, in His/Her Official and Individual Capacities,
UNKNOWN SHIFT SUPERVISOR, in His/Her Official and Individual Capacities, and
HOWE, Grievance Sergeant for Pueblo County Sheriff Department, in His Official and
Individual Capacities,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Floyd E. Dodds, is in the custody of the Colorado Department of
Corrections at the Crowley County Correctional Facility in Olney Springs, Colorado. At
the time Plaintiff initiated this action, he was detained in the Pueblo County Jail. Mr.
Dodds filed pro se a Prisoner Complaint asserting a violation of his constitutional rights
pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. He has been granted leave to
proceed in forma pauperis.
On March 13, 2014, the Court reviewed the Complaint and determined that it was
deficient because the Pueblo County Sheriff’s Department was not a suable entity and
Pueblo County was not liable absent factual allegations to show that the alleged

constitutional violations were caused by a County policy or custom. Mr. Dodds filed an
Amended Complaint on April 16, 2014, that adds several new Defendants.
The Court must construe the Amended Complaint liberally because Mr. Dodds 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
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Mr. Dodds will be ordered to file a second amended complaint.
In the original Complaint, Mr. Dodds alleges that he was placed on a kosher diet
in November 2013 to accommodate his religious beliefs. In the Amended Complaint, he
alleges that individuals employed by Trinity Group, the entity that contracts with Pueblo
County to provide food services to the inmates, violated his First Amendment free
exercise rights by interfering with his kosher diet. Specifically, Mr. Dodds states that
non kosher food was served with kosher food and that kosher items were missing from
his food trays. Plaintiff reported a missing kosher item from his food tray in December
2013 to Defendant Fernandez, the food services supervisor for Defendant Trinity Group,
who refused to provide Plaintiff with the missing item. Mr. Dodds alleges that he
submitted kites to the Pueblo County Sheriffs’ Department Defendants (Grievance
Sergeant Howe, Captain Tolth, Defendant Unknown Lieutenant, Defendant Unknown
Shift Supervisor) which were redirected to the Defendant food services director for
Trinity Group. The Defendant food services director told Plaintiff that he would “take
care of it,” but failed to correct the problem. (ECF No. 15, at 6). Instead, the food
services director sent Plaintiff a copy of the kosher menu that Trinity Group was obliged
to follow. Plaintiff requests monetary, declaratory, and injunctive relief.
2

The

Amended Complaint is deficient because it fails to allege facts to show that Defendants
Sergeant Howe, Captain Tolth, Unknown Lieutenant, Unknown Shift Supervisor, and
Sheriff Taylor, sued in their individual capacities, personally participated in a deprivation
of Plaintiff’s constitutional rights. Personal participation is an essential allegation in 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); see also Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir.
2010) (“[D]efendant-supervisors may be liable under § 1983 where an ‘affirmative’ link
exists between the unconstitutional acts by their subordinates and their ‘adoption of any
plan or policy. . .–express or otherwise–showing their authorization or approval of such
‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A supervisor may
not be held liable for the unconstitutional conduct of his subordinates on a theory of
respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This is because
“§ 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.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
Mr. Dodds cannot maintain claims against Defendants Sergeant Howe, Captain
Tolth, Unknown Lieutenant, Unknown Shift Supervisor, and Sheriff Taylor on the basis
that they denied his grievances or redirected Plaintiff’s kites to the Defendant food
services director for Trinity Group. The "denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged by plaintiff, does not establish
3

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’s claims against the individual Pueblo County Defendants, sued in their
official capacities, are construed as claims against Pueblo County. See Hafer v. Melo,
502 U.S. 21, 25 (1991). Plaintiff was warned in the March 13 Order that to hold the
County of Pueblo liable under 42 U.S.C. § 1983, he must show that an unconstitutional
policy or custom exists and that there is a direct causal link between the policy or
custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989);
Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir.
1998). Local government entities are not liable under 42 U.S.C.
§ 1983 solely because their employees inflict injury on a plaintiff. Monell v. New York
City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, Kan.,
997 F.2d 774, 782 (10th Cir. 1993). Plaintiff cannot state a claim for relief under § 1983
merely by pointing to isolated incidents. See Monell, 436 U.S. at 694.
Finally, Mr. Dodds’ requests for declaratory and injunctive relief appear to be
moot because he has been transferred to a Colorado Department of Corrections prison
facility. See Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir.1997) (holding that
4

release from prison moots claims for declaratory and injunctive relief); Love v. Summit
County, 776 F.2d 908, 910 n. 4, 912 (10th Cir.1985) (indicating that the general rule
applies to a transfer between prisons). Accordingly,
ORDERED that Plaintiff, Floyd E. Dodds, file within thirty (30) days from the
date of this order, a second 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 a second amended complaint
that complies with this order within the time allowed, the Court will review the allegations
of the Amended Complaint, which may result in the dismissal of all or part of this action.

DATED April 23, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

5