Cary v. Hickenlooper et al

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 6/26/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00411-BNB
ARNOLD A. CARY,
Plaintiff,
v.
JOHN HICKENLOOPER, Governor, State of Colorado,
RICK RAEMISCH, Executive Director, CDOC,
JAMES FALK, Warden, SCT,
MAURICE FAUVEL, D.O., SCT, Physician,
KERI MCKAY, P.A., SCF, Physician Assistant,
KELSEY PRUSHA, R.N., SCF, Registered Nurse,
KEVIN VORWALD, Captain, SCF,
LT. PAGE, Lieutenant, SCF,
LT. MOON, Lieutenant, SCF,
LT. LUECK, Case Manager, SCF, and
LT. HERREA, Case Manager, SCF,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Arnold A. Cary, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) at the correctional facility in Sterling, Colorado. Mr. Cary, acting
pro se, filed a fifty-three-page Prisoner Complaint (ECF No. 1), including thirty-two
pages of exhibits, pursuant to 42 U.S.C. § 1983. He also has submitted a supplement
(ECF No. 5) to the complaint asserting additional claims. He has paid the $400.00 filing
fee.
On February 14, 2014, the Court ordered Mr. Cary to cure certain deficiencies in
the case, including to provide a copy of or a citation to the docket number for the order

in Cary v. Tessier, No. 12-cv-2072-RM-KLM (D. Colo. filed Aug. 6, 2012), in which he
allegedly was ordered to file a separate action. He has failed to do so.
The Court must construe the Prisoner Complaint liberally because Mr. Cary 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. The Court may take judicial
notice of its own records and files that are part of the Court’s public records. See St.
Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979). Repetitious litigation of virtually identical causes of action may be dismissed as
frivolous or malicious. See Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (per
curiam); Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir. 1975) (per curiam). The
Court may consult its own records to determine whether a pleading repeats pending or
previously litigated claims. See Duhart v. Carlson, 469 F.2d 471 (10th Cir. 1972). For
the reasons stated below, Mr. Cary will be ordered to file an amended Prisoner
Complaint.
Mr. Cary alleges that the conditions of his confinement at the Sterling
Correctional Facility violate his right to be free of cruel and unusual punishment under
the Eighth Amendment to the United States Constitution. He contends he “was ordered
by this Court to file a separate action describing the conditions of his confinement other
than he previous [sic] cited in the Civil Action No. 12-cv-02072-RM-KLM.” ECF No. 1 at
5. He also asks the Court’s “patience because there is a fine line between these two
cases.” Id.
Actually, the Court finds that Mr. Cary is asserting in the instant action claims he
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previously asserted in No. 12-cv-02072-RM-KLM. In the instant action, as well as in No.
12-cv-02072-RM-KLM, Mr. Cary generally asserts that while incarcerated in the DOC,
and under the direction and control of Defendants, he has been denied appropriate
medical care for health problems that have developed as a result of his exposure to
waterborne toxicological hazards. ECF No. 1 at 11; see also ECF No. 64 at 3 in No. 12cv-02072-RM-KLM. He alleges that he has sought medical care for his conditions for
the past 12 months at the Sterling Correctional Facility, and Defendants continue to be
indifferent to his serious medical needs. ECF No. 1 at 11; see also ECF No. 64 at 3 in
No. 12-cv-02072-RM-KLM, in which he alleges “he has sought care for his conditions
for the past eighteen months.”
His first Eighth Amendment claim in the instant action does not appear to be a
claim at all but rather background information on the alleged contamination of the
prison’s drinking water. His second Eighth Amendment claim reasserts claims
previously asserted in No. 12-cv-02072-RM-KLM and summarized in the pending
Recommendation of United States Magistrate Judge of February 4, 2014, filed nine
days before Mr. Cary initiated the instant action:
Plaintiff asserts that he is ill from low dose radiation,
carcinogenic chemical, and heavy metal exposure and that
he is demonstrating the following symptoms and ailments.
[ECF No. 21 (second and final amended complaint)] at 16.
First, he states that his blood tests demonstrate an iron and
vitamin B12 deficiency which causes a “complex
neurological syndrome” resulting in difficulty with balance.
Id. Plaintiff receives intramuscular injections of 100 mg of
vitamin B12 every other week for this issue and was
informed by medical personal that these injections will have
to be continued for the rest of his life. Id.
Second, Plaintiff states that he has developed lumbar spinal
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stenosis, a nervous disorder, and that he is showing signs of
cervical spondylosis, which stems from chronic cervical disk
degeneration. [ECF No. 21 (second and final amended
complaint) at 16]. He asserts that this causes tingling in his
hands and arms due to nerve root compression caused by
lateral herniation of the disk intruding on the nerve roots. Id.
A physician at Saint Thomas More Hospital ordered an MRI
for this issue on March 3, 2012, but the MRI was later denied
by “CDOC Colorado Springs,” which decision was sustained
by the CTCF Health Services Administrator, Defendant
Tessier. Id.
Third, on September 25, 2012, Plaintiff became ill, “gushing
massive amounts of blood from his rectum,” which
manifested into an acute lower gastrointestinal blood loss
from his colon. Id. As a result, Plaintiff was hospitalized in
the intensive care unit at Saint Thomas More Hospital. Id. A
diagnostic colonoscopy imaging test was performed, and
Plaintiff received a blood transfusion. Id.
Fourth, on November 20, 2012, Plaintiff experienced
additional gastrointestinal problems. Id. He was admitted to
the emergency room at Saint Thomas More Hospital with
acute abdominal pain in his epigastrium. Id. at 16-17. A CT
scan and ultrasound indicated the presence of gallstones.
Id. at 17. Plaintiff’s gallbladder was removed, but unexpected
complications arose, resulting in Plaintiff’s transfer to Saint
Mary Corwin Hospital in Pueblo, where additional gallstones
were removed from his bile duct. Id.
Fifth, Plaintiff states that he has developed a kidney cyst and
recently began discharging blood in his urine. Id. He states
that this causes “extreme, daily abdominal pain.” Id. He
alleges that the cyst is documented in a CT scan. Id. Plaintiff
blames “[e]nvironmental exposure to heavy metals” for his
symptoms and kidney dysfunction. Id.
Sixth, Plaintiff suffers from a chronic fungal infection of the
skin secondary to a primary infection in his lungs. Id. He
states that he must medicate the area with anti-inflammatory
steroidal preparation. Id.
Seventh, Plaintiff asserts that he has developed numerous
hemangiomas secondary to liver damage. Id. He states that
this became apparent when “several blood veins ruptured.”
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Id. He also alleges that “[p]rotuberant blood veins have
developed on Plaintiff’s scrotum, stomach, and inside the
outer ear canal of both ears.” Id.
Eighth, Plaintiff avers that a recent blood test revealed that
his Thyroid-Stimulant-Hormone (TSM) level is abnormal,
thus resulting in an increase of his hyperthyroidism. Id.
Ninth, Plaintiff asserts that a cyst has developed on the back
of his neck, directly over the area of his herniated cervical
disk. Id.
Tenth, Plaintiff states that he is experiencing muscular
degeneration (atrophy) of his forearm muscles. Id. This
“degeneration, decline, or wasting away of the muscles and
organs results from nerve damage” and is allegedly a direct
result of radiation exposure according to Jacqueline A.
Nemer, M.D., whom Plaintiff states is an expert in
environmental hazards. Id. at 17-18.
Eleventh, Plaintiff was previously incarcerated at Buena
Vista Correctional Facility where he was forced to work for
two weeks on an extensive remodeling project that the State
of Colorado undertook at the facility. Id. at 18. While
engaged in this work, he was allegedly exposed to airborne
friable asbestos. Id. Plaintiff developed pneumonia, which
damaged his lungs, resulting in a diagnosis of pulmonary
fibrosis. His acute and chronic condition is aggravated by
the inhalation of toxic substances such as radon gas,
asbestos, fiberglass fibers, concrete dust, and black mold.
Id. Plaintiff asserts that all of these toxic substances were
encountered in Plaintiff’s living situation in Cell House One of
[Colorado Territorial Correctional Facility (CTCF)]. Id.
These symptoms resulted in his obtaining round-the-clock
oxygen therapy. Id. He also receives daily nebulizer
treatments. Id. He states that both of these treatments will
have to be continued for the rest of his life. Id.
Finally, Plaintiff asserts that he is also experiencing
symptoms such as nausea, vomiting, weakness, exhaustion,
and lassitude. Id. These symptoms occur in combination
with “dehydration, anemia, and opportunistic injections.” Id.
Plaintiff states that his “prognosis is grim.” Id. “His
[underlying] condition, further potentiated by environmental
radiation exposure, asbestos exposure, and other assaults
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on his respiratory system, are leading to a general collapse
of his respiratory system.” Id.
ECF No. 64 in No. 12-cv-02072-RM-KLM. These are all allegations he re-raises in the
instant action. See ECF No. 1 at 13-16. Claims in the Prisoner Complaint that do not
appear to be repetitive include Mr. Cary’s allegations that Defendant, Kelsey Prusha,
R.N., denied him oxygen when his bottled were extremely low, a claim he raises in No.
12-cv-02072-RM-KLM against different defendants. See ECF No. 64 in No. 12-cv02072-RM-KLM at 6-7. Another claim that does not appear to have been asserted in
No. 12-cv-02072-RM-KLM is that on January 2, 2014, his lower extremities filled with
fluid, swelling to twice their size, and he awaits a scheduled appointment with a
cardiologist, which Defendant, Keri McKay, P.A., has informed him she is not sure will
be approved by the DOC. ECF No. 1 at 16. He also appears to assert new claims in
the supplement (ECF No. 5) he filed.
Mr. Cary may not re-assert in the instant action claims previously raised in No.
No. 12-cv-02072-RM-KLM, and which are being addressed in that case. He may only
assert in this action claims not previously raised.
In addition, he must allege the personal participation of each named Defendant in
the asserted claims. Mr. Cary “must explain what each defendant did to him or her;
when the defendant did it; how the defendant’s action harmed him or her; 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). Mr. Cary should name
as defendants in the amended Prisoner Complaint only those persons that he contends
actually violated his federal constitutional rights.
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Personal participation is an essential allegation in a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Cary must show that each defendant caused the deprivation of a
federal right. See 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). With respect to supervisory officials, a defendant
may not be held liable for the unconstitutional conduct of his or her subordinates on a
theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Furthermore,
when a plaintiff sues an official under Bivens [v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971),] or § 1983 for conduct “arising from his or
her superintendent responsibilities,” the plaintiff must
plausibly plead and eventually prove not only that the
official’s subordinates violated the Constitution, but that the
official by virtue of his own conduct and state of mind did so
as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556
U.S. at 677). Therefore, in order to succeed in a civil rights suit against a government
official for conduct that arises out of his or her supervisory responsibilities, a plaintiff
must allege and demonstrate that: “(1) the defendant promulgated, created,
implemented or possessed responsibility for the continued operation of a policy that (2)
caused the complained of constitutional harm, and (3) acted with the state of mind
required to establish the alleged constitutional deprivation.” Id. at 1199.
Mr. Cary may use fictitious names, such as “John or Jane Doe,” if he does not
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know the real names of the individuals who allegedly violated his rights. However, if Mr.
Cary uses fictitious names he must provide sufficient information about each defendant
so that he or she can be identified for purposes of service.
The amended Prisoner Complaint Mr. Cary will be directed to file must comply
with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The
twin purposes of a complaint are to give the opposing parties fair notice of the basis for
the claims against them so that they may respond and to allow the court to conclude
that the allegations, if proven, show that the plaintiff is entitled to relief. See Monument
Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of Kansas, 891 F.2d
1473, 1480 (10th Cir. 1989). The requirements of Fed. R. Civ. P. 8 are designed to
meet these purposes. See TV Communications Network, Inc. v. ESPN, Inc., 767 F.
Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992). Specifically,
Rule 8(a) provides that a complaint “must contain (1) a short and plain statement of the
grounds for the court’s jurisdiction, . . . (2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a demand for the relief sought.”
The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that “[e]ach
allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and (d)(1)
underscore the emphasis placed on clarity and brevity by the federal pleading rules.
Prolix, vague, or unintelligible pleadings violate Rule 8. The Court will not consider any
claims raised in separate attachments, amendments, supplements, motions, or other
documents not included in the amended Prisoner Complaint.
Mr. Cary is warned that if the amended Prisoner Complaint he files fails to
comply with the directives of this order and raises claims previously asserted in this
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Court, the Court will dismiss the entire amended Prisoner Complaint. Mr. Cary is further
warned that, even if the Court dismisses the instant action without prejudice for failure to
comply with this order, the dismissal may act as a dismissal with prejudice if Mr. Cary
seeks to refile in this Court because the two-year statute of limitations may have run on
his § 1983 claims.
Accordingly, it is
ORDERED that Plaintiff, Arnold A. Cary, provide a copy of or a citation to the
docket number for the order in Cary v. Tessier, No. 12-cv-2072-RM-KLM (D. Colo. filed
Aug. 6, 2012), in which he allegedly was ordered to file a separate action. It is
FURTHER ORDERED that within thirty (30) days from the date of this order
Plaintiff file an amended Prisoner Complaint that complies with the directives of this
order. It is
FURTHER ORDERED that Plaintiff shall obtain (with the assistance of his case
manager or the facility’s legal assistant) the Court-approved form for filing a Prisoner
Complaint, along with the applicable instructions, at www.cod.uscourts.gov, and shall
use the form in filing the amended Prisoner Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to file an amended Prisoner Complaint
as directed within thirty days from the date of this order, the Prisoner Complaint and
the action will be dismissed without further notice.

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DATED June 26, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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