Walker v. Hickenlooper et al

Filing 5

ORDER to Amend, by Magistrate Judge Boyd N. Boland on 4/17/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01062-BNB
TYRONE WALKER,
Plaintiff,
v.
JOHN W. HICKENLOOPER, In Individual and Official Capacity,
BILL RITTER Jr., In Individual and Official Capacity,
TOM CLEMENTS, In Individual and Official Capacity,
ARISTEDES W. ZAVARAS, In Individual and Official Capacity,
TONY CORACHI, In Individual and Official Capacity,
RICK RAEMISCH, In Individual and Official Capacity,
KEVIN MILYARD, In Individual and Official Capacity,
JAMES FALK, In Individual and Official Capacity,
JOHN CHAPDELAINE #10277, In Individual and Official Capacity,
JAMIE SOUCIE #12620, In Individual and Official Capacity,
MARSHALL GRIFFITH #14298, In Individual and Official Capacity,
JULIE FULLER #10068, In Individual and Official Capacity,
ASTRIA LOMBARD #14539, In Individual and Official Capacity, and
JANE DOE (NAME UNKNOWN), In Individual and Official Capacity,
Defendants.

ORDER TO AMEND

Plaintiff, Tyrone Walker, a pro se prisoner litigant, filed a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. The Court must construe
Plaintiff’s 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 a pro se litigant. See Hall,
935 F.2d at 1110. Plaintiff will be directed to file an Amended Complaint for the reasons
stated below.

To state a claim in federal court Plaintiff must explain (1) what a defendant did to
him; (2) when the defendant did it; (3) how the defendant’s action harmed him;
and (4) what specific legal right the defendant violated. Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff also must assert personal participation by each named defendant in the
alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). To establish personal participation, Plaintiff must show how each named
individual 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).
Supervisors can only be held liable for their own misconduct. See Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). A supervisor cannot incur liability under § 1983 for his
mere knowledge of a subordinate’s wrongdoing. Id.; see also Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008) (“[Section] 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.”). Furthermore,
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.
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order 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
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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.
Furthermore, Plaintiff 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”). Accordingly, it is
ORDERED that Plaintiff shall have thirty days from the date of this Order to
file an Amended Complaint as directed above. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant)
along with the applicable instructions at www.cod.uscourts.gov, to be used in filing the
Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to comply within the time allowed, the
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Court will address the claims pursuant to the federal rules of civil procedure and dismiss
improper and insufficient claims accordingly.
DATED April 17, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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