Stevenson v. Cordova et al

Filing 10

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Boyd N. Boland on 04/08/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00649-BNB
WILLIAM R. STEVENSON,
Plaintiff,
v.
R. CORDOVA, Captain at Colorado Territorial Correctional Facility, in his official and
individual capacities,
D. NUNEZ, Captain at Colorado Territorial Correctional Facility, in his official and
individual capacities,
M. HOLLOWAY, Lieutenant at Colorado Territorial Correctional Facility, in his official
and individual capacities,
K. TOPLISS, Lieutenant at Colorado Territorial Correctional Facility, in his official and
individual capacities,
C. WILLIAMS, Lieutenant at Colorado Territorial Correctional Facility, in his official and
individual capacities,
H. WILLIAMS, Lieutenant at Colorado Territorial Correctional Facility, in his official and
individual capacities,
K. CLINKENBEARD, Sergeant at Colorado Territorial Correctional Facility, in her official
and individual capacities,
J. ESPINOZA, Sergeant at Colorado Territorial Correctional Facility, in his official and
individual capacities,
G. SULLIVAN, Sergeant at Colorado Territorial Correctional Facility, in his official and
individual capacities,
J. HANSON, Corrections Officer at Colorado Territorial Correctional Facility, in his
official and individual capacities,
J. SOTO, Corrections Officer at Colorado Territorial Correctional Facility, in his official
and individual capacities,
J. BUFMACK, Nurse at Colorado Territorial Correctional Facility, in her official and
individual capacities,
M. BENOVEDEZ, Sergeant at Colorado Territorial Correctional Facility, in his official
and individual capacities,
V. WOLFE, Grievance Coordinator at Colorado Territorial Correctional Facility, in her
official and individual capacities, and
A. BELL, Case Manager at Colorado Territorial Correctional Facility, in his official and
individual capacities,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, William R. Stevenson, is in the custody of the Colorado Department of
Corrections at the Colorado Territorial Correctional Facility in Canón City, Colorado. Mr.
Stevenson 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. He has been granted leave
to proceed pursuant to the in forma pauperis statute, 28 U.S.C. § 1915, with payment of
an initial partial filing fee.
The Court must construe the Complaint liberally because Mr. Stevenson 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. Stevenson will be directed to file an amended complaint.
Mr. Stevenson alleges in the Complaint that on February 29, 2012, Defendants
Espinoza, Clinkenbeard, Hanson, and Sullivan subjected him to excessive force by:
excessively tasing him five times in rapid succession; by applying
handcuffs more tightly than necessary; by dropping him on his face from
approximately 2-3 feet in the air after he was handcuffed, shackled and
otherwise subdued; by then pressing his face hard into the floor grinding
his teeth on the concrete; by intentionally bending his wrist and pulling his
arms while handcuffed and strapped to a back board; and by ignoring his
repeated and reasonable complaints about the cuffs being too tight and
refusing his requests to loosen the same.
(ECF No. 1, at 10). Plaintiff further alleges that as a result of the Defendants’ use of
force, he has suffered scarring on his back from the taser; gashes and swelling to his
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wrists; lasting injury to his hands and fingers due to nerve damage; two chipped teeth,
lacerations to his lower lip; and pain. Mr. Stevenson asserts that the use of force was
unjustified because there was not an emergency situation or threat to anyone’s safety,
and that Defendants Holloway, C. Williams, H. Williams, and Cordova were present
during the use of excessive force but failed to intervene. Plaintiff further states that after
the incident, Defendants Soto and Benovedez intentionally pulled on his arm hard at the
elbow, putting additional pressure on his wrists and causing severe pain. Plaintiff
complained repeatedly to Defendant Cordova that the handcuffs were too tight, but he
refused to remove the cuffs.
Mr. Stevenson further claims in the Complaint that Defendants Cordova,
Holloway, and Clinkenbeard conspired to cover up the violation of his Eighth
Amendment right to be free from excessive force by falsely initiating a prison
disciplinary action against Plaintiff for assault. Plaintiff alleges that Defendants Nunez,
Bufmack, and Holloway refused to accurately document the extent of his injuries. On
March 15, 2012, Defendant Cordova issued Plaintiff an incident report for assault and
for advocating and creating a facility disruption, which contained several false
allegations concerning Plaintiff’s behavior during the use of force incident. Defendant
Topliss, acting as a disciplinary hearing officer, found Plaintiff guilty of the
unsubstantiated charges.
Plaintiff subsequently wrote a letter to Defendant Warden Timme asking her to
reverse the disciplinary conviction. Correctional Officer Aldrich advised Mr. Stevenson
that she would reverse the disciplinary conviction and expunge it from his prison record.
On May 4, 2012, Plaintiff received notice that his COPD conviction had been reversed.
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Finally, Plaintiff alleges that Defendant Bell, Plaintiff’s case manager, and
Defendant Wolfe, the facility’s grievance coordinator, interfered with his efforts to
exhaust his administrative remedies. He further contends that Defendant Bell engaged
in actions that caused Plaintiff to be classified as a high risk offender. Mr. Stevenson
seeks injunctive and monetary relief.
The Complaint is deficient because Plaintiff fails to allege the personal
participation of Defendants Nunez, Bufmack, Wolfe, and Bell in a deprivation of his
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
defendant 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 Ҥ 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).
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The gravamen if Plaintiff’s Complaint is an excessive force claim. Plaintiff does
not allege that Defendants Nunez and Bufmack were involved in the use of force
against him, however. Instead, he alleges only that these Defendants failed to properly
document his injuries. These allegations fail to state an arguable claim for relief.
Further, Mr. Stevenson cannot maintain claims against prison officials or
administrators on the basis that they denied his grievances. The "denial of a grievance,
by itself without any connection to the violation of constitutional rights alleged by
plaintiff, does not establish 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 allegations that Defendants Wolfe and Bell interfered with his efforts to
grieve the alleged use of excessive force fail to state an arguable constitutional
deprivation. “[T]here is no independent constitutional right to state administrative
grievance procedures.” Boyd v. Werholtz, No. 10-3284, 443 F. App’x 331, 332 (10th
Cir. Oct. 3, 2011) (unpublished); see also Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994).
Moreover, the state's voluntary provision of an administrative grievance process does
not create a liberty interest in that process. See Bingham v. Thomas, 654 F.3d 1171,
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1177-78 (11th Cir. 2011) (observing that inmates have no constitutionally-protected
liberty interest in access to prison grievance procedure); Buckley v. Barlow, 997 F.2d
494, 495 (8th Cir.1993) (per curiam) (“A prison grievance procedure is a procedural
right only, it does not confer any substantive right upon the inmates. Hence, it does not
give rise to a protected liberty interest . . . . ” (quotation and brackets omitted)). Instead,
“[w]hen the claim underlying the administrative grievance involves a constitutional right,
the prisoner's right to petition the government for redress is the right of access to the
courts, which is not compromised by the prison's refusal to entertain his grievance.”
Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991) (per curiam).
Finally, Mr. Stevenson’s allegations that Defendant Bell caused him to be
classified as a high risk offender do not implicate the Constitution because an inmate
does not have a constitutionally-protected liberty interest in his prison classification.
See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir.1994) (finding that an inmate
does not have a protected liberty interest in his prison classification under Federal or
Colorado law) (citing Meachum v. Fano, 427 U.S. 215, 225, (1976)). Accordingly, it is
ORDERED that Plaintiff, William R. Stevenson, 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 Mr. Stevenson 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. Plaintiff is
reminded that his Prisoner Complaint may not exceed 30 pages. See Information and

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Instructions for Filing a Prisoner Complaint. It is
FURTHER ORDERED that, if Mr. Stevenson fails to file an amended complaint
that complies with this order to the Court’s satisfaction within the time allowed, some of
the claims and defendants may be dismissed without further notice for the reasons
discussed above. It is
DATED April 8, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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