Weathington v. United States of America, et al

Filing 7

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 9/24/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02601-BNB
JEROME WEATHINGTON,
Plaintiff,
v.
OFFICER GAFFNEY,
HARRELL WATTS, Administrator National Inmate Appeals,
PAUL M. LAIRD, Regional Director,
C. DANIELS, Warden I,
J. ONEAL, Counselor,
J. McPEEK, RN,
SCHWARTZ, AW
CAPTAIN SNYDER,
OLIVER, Warden
MARTIN, Lt.,
GOMEZ, Unit Manager,
LEGGIT, Counselor,
SANDAVOL, Counselor,
JOHNSON, AW,
MIERS, Trust Fund Supervisor,
JOHN DOE, Special Housing Lt.,
P. KLEIN, Captain, and
JOHN DOE, Special Management Unit Lt.,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Jerome Weathington, is a prisoner in the custody of the Federal Bureau
of Prisons at the United States Penitentiary in Florence, Colorado. Mr. Weathington has
filed pro se a Prisoner Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging that his
constitutional rights have been violated. Mr. Weathington specifically claims he has

been denied due process and subjected to cruel and unusual punishment because he
has been denied a pillow since December 2012. He seeks damages and injunctive
relief.
The court must construe the Prisoner Complaint liberally because Mr.
Weathington 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, Mr. Weathington will be ordered to file an amended
complaint.
The Prisoner Complaint is deficient. First, although Mr. Weathington is suing
Defendants in their individual and official capacities, Mr. Weathington cannot assert a
Bivens claim against a federal official in his or her official capacity. See Simmat v. U.S.
Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005). “Under Bivens, an individual
has a cause of action against a federal official in his individual capacity for damages
arising out of the official’s violation of the United States Constitution under color of
federal law or authority.” See Dry v. United States, 235 F.3d 1249, 1255 (10th Cir. 2000)
(emphasis removed). Mr. Weathington may not assert a Bivens claim against either the
United States or the Bureau of Prisons. See Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 72 (2001).
The Prisoner Complaint also is deficient because Mr. Weathington fails to allege
specific facts that demonstrate how each of the eighteen named Defendants personally
participated in the asserted constitutional violations. See Henry v. Storey, 658 F.3d
1235, 1241 (10th Cir. 2011) (allegations of “personal participation in the specific
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constitutional violation complained of [are] essential”). Mr. Weathington’s vague
allegations that he submitted numerous cop-outs and grievances and that Defendants
were aware of his need for a pillow do not demonstrate personal participation by each
Defendant in the asserted constitutional violations. The fact that a particular Defendant
merely denied a cop-out or grievance alone is not sufficient to demonstrate personal
participation. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (stating “a
denial of a grievance, by itself without any connection to the violation of constitutional
rights alleged by plaintiff, does not establish personal participation”). In addition,
supervisory officials 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).
For these reasons, Mr. Weathington will be ordered to file an amended
complaint. Mr. Weathington should name as Defendants only those persons he
contends actually violated his federal constitutional rights. Mr. Weathington “must
explain what each defendant did to him or her; when the defendant did it; how the
defendant’s action harmed him or her; and, what specific legal right the plaintiff believes
the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007). The general rule that pro se pleadings must be construed liberally
has limits and “the court cannot take on the responsibility of serving as the litigant’s
attorney in constructing arguments and searching the record.” Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Accordingly, it is
ORDERED that Mr. Weathington file, within thirty (30) days from the date of
this order, an amended complaint as directed in this order. It is
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FURTHER ORDERED that Mr. Weathington 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. It is
FURTHER ORDERED that, if Mr. Weathington fails to file an amended complaint
that complies with this order within the time allowed, the action will be dismissed.
DATED September 24, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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