James Jr. v. Lengerich et al

Filing 10

ORDER to Dismiss in Part and to Draw Case to a Presiding Judge. The claims asserted against Warden Lengerich and Case Manager Dewalt are dismissed. The case is drawn to a presiding judge and, if appropriate, to a magistrate judge. By Judge Lewis T. Babcock on 5/14/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00983-BNB
HENRY L. JAMES, JR.,
Plaintiff,
v.
MR. LENGERICH, Active Warden BVCF,
MR. DEWALT, Active Case Manager III at BVCF, and
MR. ARGEYS, Shift Commander over BVCF Inmates,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE TO A PRESIDING JUDGE

Plaintiff, Henry L. James, Jr., is a prisoner in the custody of the Colorado
Department of Corrections at the correctional facility in Buena Vista, Colorado. He
initiated the instant action by filing pro se on April 7, 2014, a Prisoner Complaint (ECF
No. 1) pursuant to 42 U.S.C. § 1983 and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). He has been granted leave to
proceed pursuant to § 1915.
On April 10, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No.
6) directing Mr. James to file within thirty days an amended Prisoner Complaint that
complied with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure and asserted the personal participation of each named Defendant. On May
6, 2014, he filed the amended Prisoner Complaint (ECF No. 9). He asks for money
damages and injunctive relief.

Mr. James has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. 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. Neitzke v. Williams,
490 U.S. 319, 324 (1989). Under § 1983, a plaintiff must allege that the defendants
have violated his or her rights under the Constitution and laws of the United States while
they acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150
(1970).
Mr. James is cautioned that his ability to file a civil action or appeal in federal
court in forma pauperis pursuant to § 1915 may be barred if he has three or more
actions or appeals in any federal court that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).
Under § 1915(g), the Court may count dismissals entered prior to the enactment of this
statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe the amended Prisoner Complaint liberally because Mr.
James 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). If the Prisoner Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
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should not be an advocate for a pro se litigant. See id. For the reasons stated below,
the Court will dismiss the amended Prisoner Complaint in part as legally frivolous.
Mr. James asserts that, in response to a conversation he had with Mr. Argeys,
his shift commander, on March 19, 2014, concerning problems he was having with coinmates, Mr. Argeys had him provide the names of the co-inmates, handcuffed him,
removed him from the general population, and placed him in punitive segregation,
where he currently resides. He complains that Mr. Argeys failed to document in writing
the circumstances surrounding his segregation placement. He also complains that in
segregation he has been denied such privileges as being able to contact by telephone
his family or his attorney concerning an appellate proceeding. On the basis of these
allegations, Mr. Brown alleges that his Eighth Amendment right to be free from cruel
and unusual punishment has been violated. He makes no allegations against Warden
Lengerich or Case Manager Dewalt.
Mr. James was informed in the order of April 10, 2014, that 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. James 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). A
supervisory official 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,
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when a plaintiff sues an official under Bivens 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). To succeed in a § 1983 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. James has failed to make any allegations demonstrating the personal
participation of Warden Lengerich or Case Manager Dewalt in the asserted
constitutional violation. Therefore, any claims against these Defendants will be
dismissed. Warden Lengerich and Case Manager Dewalt also will be dismissed as
parties to this action.
Accordingly, it is
ORDERED that the claims asserted against Warden Lengerich and Case
Manager Dewalt are dismissed as legally frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B). It is
FURTHER ORDERED that the clerk of the Court is directed to remove Warden
Lengerich and Case Manager Dewalt as parties to this action. It is

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FURTHER ORDERED that the case is drawn to a presiding judge and, if
appropriate, to a magistrate judge. It is
FURTHER ORDERED that the only remaining Defendant is Shift Commander
Argeys.
DATED at Denver, Colorado, this 14th

day of

May

, 2014.

BY THE COURT:

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

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