Nunn v. Miller et al

Filing 6

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00978-BNB
RAY NUNN,
Plaintiff,
v.
MILLER, Warden of Crowley County Corr & Fac,
RICK RAEMISCH, Executive Director of Colo Dept of Corrs [CDOC],
TOM CLEMENTS,
CORRECTIONS CORPORATION OF AMERICA,
PAUL FLORES, Unit Manager, Medical Services,
JENNIFER GRAHAM, Hearings Officer,
STEVEN LUNA, JR., Lt.,
PATRICK MEYERS, C/O,
PPMU MEDICAL MONITOR (CDOC), and
JOHN DOES,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Mr. Nunn is in the custody of the Colorado Department of Corrections at the
Fremont Correctional Facility in Canón City, Colorado. He has filed pro se a Prisoner
Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 asserting a deprivation
of his constitutional rights. He has been granted leave to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Mr. Nunn 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. Nunn will be ordered to file an amended complaint.
Mr. Nunn complains of alleged misconduct by the Defendants that occurred while
he was incarcerated at the Crowley County Correctional Facility. His allegations are
disjointed and vague. The Court discerns from the pleading that Plaintiff was housed in
segregation between May 28 and July 10, 2013, “without a valid reason.” (ECF No. 1,
at 4). Mr. Nunn alleges that he suffers from seizures and has been under medical
restrictions of “bottom bunk” and “bottom tier” since April 2003. (Id. at 4). However,
Defendants Flores and Graham refused to comply with Plaintiff’s medical restrictions
after Plaintiff declined to take prescribed medications because of his religious beliefs.
Mr. Nunn appears to allege that he was placed in segregation as punishment. Mr. Nunn
claims that Defendants have violated his rights under the First, Eighth, and Fourteenth
Amendments. He seeks injunctive and monetary relief.
A. Rule 8 of the Federal Rules of Civil Procedure
The amended complaint that Mr. Nunn will be directed to file must comply with
the pleading requirements of Fed. R. Civ. P. 8. 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). Rule 8(a) provides that a complaint “must contain
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(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.” Prolix,
vague, or unintelligible pleadings violate Rule 8.
Plaintiff must allege the specific acts of each Defendant that allegedly violated his
rights. For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all that is permissible,
if the complaint concisely states facts upon which relief can be granted upon any legally
sustainable basis.” Id. In order for Mr. Nunn to state a claim in federal court, his
"complaint 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).
Mr. Nunn must present his claim or claims in a manageable and readable format
that allows the Court and the defendants to know what claims are being asserted and to
be able to respond to those claims. The general rule that pro se pleadings must be
construed liberally has limits and “the Court cannot take on the responsibility of serving
as the litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
B. Personal Participation
The Complaint is deficient because Mr. Nunn fails to allege the personal
participation of each named Defendant in a violation of his constitutional rights. Plaintiff

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does not allege any facts in the text of the Complaint to show how Defendants
Corrections Corporation of America, Miller, Raemisch, Clements, Luna, Meyers, and
PPMU Medical Monitor were involved in the alleged constitutional deprivations.
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)). Supervisory defendants such as Rick Raemisch,
Tom Clements, and Michael Miller 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).
In addition, Plaintiff identifies Defendants Kastelic and Reyes as Defendants on
p. 3 of his Complaint but does not name these Defendants in the caption or allege facts
in the text of the Complaint to show their personal involvement in the alleged
constitutional deprivations.
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C. Plaintiff’s Claims
Mr. Nunn asserts claims based on alleged deprivations of his First, Eighth, and
Fourteenth Amendment due process rights. Under the First Amendment, an inmate
enjoys the right to free exercise of his sincerely held religious beliefs without
governmental interference that is not justified by a legitimate governmental interest.
See Pell v. Procunier, 417 U.S. 817, 822 (1974); Turner v. Safley, 482 U.S. 78 (1987);
O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).
The Eighth Amendment is violated by a prison official’s deliberate indifference to
an inmate’s serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);
see also Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). Deliberate indifference means
that "a prison official may be held liable . . . only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it." Farmer, 511 U.S. at 847.
The Fourteenth Amendment Due Process Clause protects against governmental
deprivations of life, liberty, or property. See Wilkinson v. Austin, 545 U.S. 209, 221
(2005) (“The Fourteenth Amendment’s Due Process Clause protects persons against
deprivations of life, liberty, or property; and those who seek to invoke its procedural
protection must establish that one of these interests is at stake.”). “[T]he Constitution
itself does not give rise to a liberty interest in avoiding transfer to more adverse
conditions of confinement.” Wilkinson, 545 U.S. at 221. State policies or regulations,
however, may create a liberty interest in avoiding particular conditions of confinement
when they “‘impose[] atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.’” Id. at 221-23 (quoting Sandin v. Conner, 515 U.S. 472,
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484 (1995)); see also Estate of DiMarco v. Wyo. Dep’t of Corrs., Div. of Prisons, 473
F.3d 1334, 1342 (10th Cir. 2007).
In sum, Mr. Nunn must allege specific facts in the amended complaint to show
how each named Defendant violated one or more of his constitutional rights.
Accordingly, it is
ORDERED that Plaintiff, Ray Nunn, 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. Nunn 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 Mr. Nunn fails to file an amended complaint that
complies with this order within the time allowed, the Court may dismiss all or part of this
action without further notice for the reasons discussed above.
DATED April 14, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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