Handy Jr. v. Douglas et al

Filing 8

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 8/28/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01930-BNB
WYATT T. HANDY JR.,
Plaintiff,
v.
TRACY DOUGLAS, Individual and Official Capacity,
BARBARA REYMAN, Individual and Official Capacity,
TAMERA COOPER, Individual and Official Capacity,
BOBBY BONNER, Individual and Official Capacity,
GREG WILKINSON, Individual and Official Capacity,
JOAN THOMPSON, Individual and Official Capacity,
SHIFT COMMANDER/DUTY OFFICER, Individual and Official Capacity,
RICK RAEMISCH, Individual and Official Capacity,
ANTHONY DeCESARO, Individual and Official Capacity,
GRIFFITH MARSHALL, Individual and Official Capacity,
DAMON HININGER, Individual and Official Capacity,
CORRECTIONS CORPORATION OF AMERICA, and
COLORADO DEPARTMENT OF CORRECTIONS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Wyatt T. Handy Jr., is in the custody of the Colorado Department of
Corrections at the Cheyenne Mountain Re-Entry Center in Colorado Springs, Colorado.
Plaintiff initiated this action by filing pro se a Prisoner Complaint pursuant to 42 U.S.C. §
1983. Subsequently, Plaintiff filed a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915. On July 18, 2014, the Court directed Plaintiff to
show cause why the § 1915 Motion should not be denied because he is subject to filing
restrictions under § 1915(g). On August 14, 2014, Plaintiff submitted the $400 filing fee.
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 cannot act as an

advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Plaintiff will be directed to file an Amended Complaint.
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 is required to 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 in the
Cause of Action section of the complaint form 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). Plaintiff asserts participation by
certain defendants but not by all named defendants.
A defendant 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,
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.
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. 2004) (unpublished) (sending
“correspondence [to high-ranking prison official] outlining [a] complaint . . . without more,
does not sufficiently implicate the [supervisory official] under § 1983”).
A claim against the State of Colorado and its entities is barred by the Eleventh
Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989). “It is
well established that absent an unmistakable waiver by the state of its Eleventh
Amendment immunity, or an unmistakable abrogation of such immunity by Congress,
the amendment provides absolute immunity from suit in federal courts for states and
their agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th
Cir. 1994).
The Eleventh Amendment does not bar a federal court action so long as the
plaintiff seeks in substance only prospective relief and not retrospective relief for alleged
violations of federal law, but Plaintiff must assert a claim for prospective relief against
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individual state officers. Verizon Maryland v. Public Service Commission of Maryland,
535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). Defendant
Colorado Department of Corrections, therefore, is an improper party to this action.
Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an Amended Complaint that complies with this Order. 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 file an Amended Complaint that
complies with this Order within the time allowed, the Complaint and action may be
dismissed without further notice.
DATED August 28, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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