Adkins v. Schmidt et al
ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/29/14. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02454-BNB
CHET HARVEY ADKINS,
JOE SCHMIDT, Individually and as the Commissioner of the AK Department of
CHRISTOPHER PAGEL, Individually and as an Employee of the Hudson Correctional
Facility and the GEO Group, and
JOE D. DRIVER, Individually and as an employee of the Hudson Correctional Facility
and the GEO Group,
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff is in the custody of the Alaska Department of Correctional at the Palmer
Correctional Center in Palmer, Alaska. Originally, Plaintiff filed this action in the United
States District Court for the District of Alaska and paid the $400 filing fee. On
September 3, 2014, the District of Alaska ordered this action transferred to this Court
pursuant to 28 U.S.C. § 1404(a). Magistrate Judge Boyd N. Boland reviewed the
Complaint and directed Plaintiff to file his claims on a Court-approved form used in this
Court when pursuing a 42 U.S.C. § 1983 action. On September 26, 2014, Plaintiff
complied with Magistrate Judge Boland’s directive.
The Court must construe the Complaint liberally because Plaintiff 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. For the reasons stated
below, Plaintiff will be directed to file an Amended Complaint.
Plaintiff asserts that he has been in the custody of the Alaska Department of
Corrections since 1988. Plaintiff also asserts that from November 2009 until May 2013
he was held at the Hudson Correctional Facility in Hudson, Colorado, pursuant to a
contract between the Alaska Department of Corrections and the Hudson Correctional
Facility. Plaintiff further asserts that Defendant Schmidt entered into the contract with
Hudson and was responsible for not including in the contract an adequate process for
review and oversight of disciplinary grievances. Plaintiff further asserts that Defendant
Pagel found him guilty of an infraction and Defendant Driver denied Plaintiff’s appeal of
the conviction. Finally, Plaintiff asserts that he appealed the disciplinary decision to the
superior court for the State of Alaska, which reversed the disciplinary decision and
found Plaintiff’s due process rights were violated.
Plaintiff’s claims against Defendant Driver are contradictory. In Claim Two,
Plaintiff asserts that Defendant Pagel misrepresented his actions to Defendant Driver
regarding the disciplinary proceeding. In Claim Three, however, Plaintiff asserts that
Defendant Pagel told Defendant Driver that the findings in Plaintiff’s disciplinary
proceeding were improper. Plaintiff will be directed to file an Amended Complaint that
clarifies the discrepancy between Claims Two and Three.
The Amended Complaint must be completed and contain all claims and named
defendants. “An amended complaint ‘supersedes the pleading it modifies and remains
in effect throughout the action unless it subsequently is modified. ’ ” See Hooten v.
Ikard Servi Gas, No. 12-2179, 2013 WL 1846840 at *4 (10th Cir. May 3, 2013) (quoting
Giles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990)).
Furthermore, Defendant Driver 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).
[W]hen 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). 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 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. 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 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 Court will proceed to determine
the merits of the claims as stated in the September 26, 2014 Amended Complaint.
DATED September 29, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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