Nunn v. Miller et al

Filing 13

ORDER to Dismiss in Part and to Draw Case. Defendants CDOC [CDOC/PPMU], the Private Prison Monitoring Unit, CCA, CCCF, Miller, and Kastelic are DISMISSED from this action. Plaintiff's claims against Defendants Graham andLuna shall be drawn to a presiding judge and, if appropriate, to a magistrate judge. By Judge Lewis T. Babcock on 6/10/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00978-BNB
RAY NUNN,
Plaintiff,
v.
CORRECTION CORPORATION OF AMERICA [CCA],
CROWLEY COUNTY CORRECTIONAL FACILITY [CCCF/CCA],
MIKE MILLER, Warden,
KASTELIC, Captain, CCCF/CCA,
LUNA, Lt., CCCF/CCA,
MRS. GRAHAM, Medical, CCCF/CCA,
COLORADO DEPARTMENT OF CORRECTIONS [CDOC/PPMU], and
PRIVATE PRISON MONITOR UNIT,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff, Ray Nunn, is in the custody of the Colorado Department of Corrections
and is incarcerated presently at the Fremont Correctional Facility in Canón City,
Colorado. Mr. Nunn initiated this action by filing pro se a Prisoner Complaint pursuant
to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 asserting that he was deprived of his
constitutional rights while he was incarcerated at the Crowley County Correctional
Facility (CCCF). He has been granted leave to proceed in forma pauperis, pursuant to
28 U.S.C. § 1915.
On April 14, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and
determined that it was deficient because it failed to comply with Fed. R. Civ. P. 8 and
did not allege the personal participation of each named Defendant in an arguable

deprivation of the Plaintiff’s constitutional rights. The Court thus ordered Mr. Nunn to
file an amended complaint, on the court-approved Prisoner Complaint form, within thirty
(30) days of the April 14 Order. Plaintiff, unaware of the Court’s order, filed an
Amended Complaint the same day. (ECF No. 8). The Amended Complaint dismisses
several of the Defendants named in the original Complaint and names additional
Defendants. On April 30, 2014, Mr. Nunn filed a Motion to Amend Complaint (ECF No.
9), again changing the names of the Defendants.
On May 6, 2014, Magistrate Judge Boland directed Mr. Nunn to file a Second
Amended Complaint that included all of his allegations against all proposed
Defendants. Magistrate Judge Boland reminded Plaintiff that an amended complaint
supercedes and replaces the original and all other prior complaints. Mink v. Suthers,
482 F.3d 1244 (10th Cir. 2007) (citing In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067
(8th Cir.2000)); Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir.1990) (“[A]
pleading that has been amended under Rule 15(a) supersedes the pleading it modifies .
. . . ”) (internal quotation marks omitted). Mr. Nunn filed a Second Amended Complaint
on May 21, 2014. (ECF No. 11).
Mr. Nunn has been granted leave to proceed pursuant to the in forma pauperis
statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(I), the Court must dismiss the
action if Mr. Nunn’s claims are frivolous or malicious. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S.
319, 327-28 (1989). Subsection (e)(2)(B)(iii) of § 1915 requires a court to dismiss at
any time an action that seeks monetary relief against a defendant who is immune from
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such relief.
The Court must construe Mr. Nunn’s Second Amended Complaint liberally
because he 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.
For the reasons discussed below, the Second Amended Complaint will be dismissed, in
part.
Mr. Nunn alleges in the Second Amended Complaint that Defendant Graham, a
member of the medical staff at CCCF, denied Plaintiff his medically-required
restrictions. Specifically, Defendant Graham told hearing officer Luna that because
Plaintiff refused to take his medications as a result of his religious beliefs, he was no
longer on “bottom bunk, bottom tier” medical restriction. Mr. Nunn alleges that
Defendant Luna convicted him of an unspecified disciplinary charge, which resulted in
43 days of punitive segregation. Plaintiff further alleges that Defendant Luna refused to
allow him to present medical records evidence showing his history of medical
restrictions at the prison disciplinary proceeding. Following his time in punitive
segregation, Mr. Nunn was transferred to Fremont Correctional Facility where the
medical department confirmed that Plaintiff had been under medical restrictions from
April 2003 to February 2014. Mr. Nunn alleges that he grieved the removal of his
medical restrictions to Defendant Captain Kastelic, who failed to take appropriate
remedial action. Plaintiff asserts that Defendants Warden Miller, the CDOC/PPMU,
Private Prison Monitor Unit, Correction Corporation of America (CCA), and CCCF, were
notified of the alleged constitutional deprivations in letters, but they failed to correct
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them. Mr. Nunn seeks equitable and monetary relief.
Mr. Nunn’s § 1983 claims against the CDOC and the [CDOC] Private Prison
Monitor Unit are barred by the Eleventh Amendment. Eleventh Amendment immunity
extends to states and state agencies deemed “arms of the state” that have not waived
their immunity, regardless of the relief sought. Steadfast Ins. Co. v. Agricultural Ins. Co.,
507 F.3d 1250, 1252–53 (10th Cir. 2007). The CDOC is an agency of Colorado that is
entitled to Eleventh Amendment immunity. See Griess v. Colorado, 841 F.2d 1042,
1044–45 (10th Cir. 1988). Congress did not abrogate Eleventh Amendment immunity
through Section 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). The Eleventh
Amendment applies to all suits against the state and its agencies, regardless of the
relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th
Cir. 2003). Accordingly, the CDOC and the [CDOC] Private Prison Monitoring Unit are
improper parties to this action and will be dismissed.
Next, Mr. Nunn has failed to allege sufficient facts to show the personal
participation of Defendants Miller, Kastelic, CCA (a private corporation that contracts
with the State of Colorado), and CCCF,1 in a deprivation of his constitutional rights.
Magistrate Judge Boland warned Mr. Nunn in the April 14 and May 6 Orders that he
must allege specific facts to show the personal participation of each named Defendant
in a violation of his constitutional rights. 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

1

CCCF is a private facility owned by CCA. See www.doc.state.co.us/facility/cccf-crowley-countycorrectional-facility. The Court assumes, for purposes of this Order, that Defendants CCA and CCCF are
state actors. See Craft v. Middleton, No. 12-6245, 524 F. App’x 395, 397 n. 3 (10th Cir. April 12, 2013)
(unpublished) (citing Marsh v. Newton, 1998 WL 39235, at *4 (10th Cir. Jan. 30, 1998) (unpublished)).

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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)). Supervisory defendants 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).
Mr. Nunn cannot maintain claims against Defendants Miller, Kastelic, CCA, and
CCCF on the basis that they denied his grievances or ignored his letters advising them
of a perceived constitutional deprivation. 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"). Because Mr.
Nunn fails to allege specific facts to show that Defendants Miller, Kastelic, CCA, and
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CCCF were personally involved in a deprivation of his constitutional rights, those
Defendants are improper parties to this action and will be dismissed.
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that
Mr. Nunn’s claims against Defendants Graham and Luna do not appear to be
appropriate for summary dismissal and that the case should be drawn to a presiding
judge, and, if appropriate, to a magistrate judge. See D.C.COLO.LCivR 8.1(c).
Accordingly, it is
ORDERED that Defendants CDOC [CDOC/PPMU] and the Private Prison
Monitoring Unit are DISMISSED from this action based on Eleventh Amendment
immunity. It is
FURTHER ORDERED that Defendants CCA , CCCF, Miller, and Kastelic are
DISMISSED from this action for Plaintiff’s failure to allege their personal participation in
the alleged constitutional deprivations. It is
FURTHER ORDERED that Plaintiff’s claims against Defendants Graham and
Luna shall be drawn to a presiding judge and, if appropriate, to a magistrate judge,
pursuant to D.C.COLO.LCivR 40.1(a).
DATED at Denver, Colorado, this 10th

day of

June

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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