Terrell-Bey v. Colon et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 4/25/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01042-BNB
BROOKS TERRELL-BEY,
Plaintiff,
v.
JUAN COLON,
G. HALL,
RICHARD SCHOTT,
U.S. DEPARTMENT OF JUSTICE, and
FED. B. PRISON,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Brooks Terrell-Bey, is in the custody of the Federal Bureau of Prisons at
ADX-Florence, Colorado. He has filed, pro se, a Prisoner Complaint alleging
deprivations of his constitutional rights pursuant to 28 U.S.C. § 1331 and Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Mr. TerrellBey has been granted leave to proceed without prepayment of the filing fee pursuant to
28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Mr. Terrell-Bey 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,
Plaintiff will be ordered to file an amended complaint.

Mr. Terrell-Bey alleges in the Complaint that on February 1, 2013, he received
dental work performed by Defendant Colon, a dentist. The dental work consisted of
placing a filling in one of Plaintiff’s teeth, but the filling fell out shortly thereafter. A
different dentist corrected the problem. Plaintiff alleges that he suffers from severe
nerve damage and constant bleeding from his mouth as a result of the dental work
performed on February 1, 2013. Mr. Terrell-Bey further asserts that Defendants Schott
and Hall failed to adequately supervise Defendant Colon. Plaintiff requests monetary
relief.
Mr. Terrell-Bey’s Bivens claims against Defendants Federal Bureau of Prisons
and the United States Department of Justice are barred by the doctrine of sovereign
immunity. The United States, as a sovereign, cannot be sued without its prior consent,
and the terms of its consent define this court's subject matter jurisdiction. See
McGinness v. United States, 90 F.3d 143, 145 (6th Cir.1996). The United States has
not waived sovereign immunity for itself or its agencies under Bivens for constitutional
tort claims and therefore cannot be sued in a Bivens action. See Federal Deposit
Insurance Corp. v. Meyer, 510 U.S. 471, 483-86 (1994) (holding that a Bivens action
may not be brought against the United States).
The Complaint is also deficient because Mr. Terrell-Bey fails to allege the
personal participation of each named Defendant in a violation 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.
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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, such as Defendant Hall,
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
“§ 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).
Furthermore, Mr. Tererll-Bey cannot maintain claims against prison officials or
administrators, such as Defendant Schott, 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").
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Finally, medical negligence does not implicate the Constitution. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976). “[P]rison officials violate the Eighth Amendment's
ban on cruel and unusual punishment if their deliberate indifference to serious medical
needs of prisoners constitutes the unnecessary and wanton infliction of pain.” Self v.
Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (internal quotation marks omitted). See
also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotations omitted); Estelle, 429
U.S. at 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. Accordingly, it is
ORDERED that Plaintiff, Brooks Terrell-Bey, 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. Terrell-Bey 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 Plaintiff fails to file an amended complaint that
complies with this order within the time allowed, the Court may dismiss some of the
claims and defendants without further notice for the reasons discussed above.

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DATED April 25, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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