Danielson-Grodin, et al v. Raemisch, et al

Filing 50

ORDER to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 5/5/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02704-GPG
NATHAN YBANEZ,
SIMON SUE,
SAM LINCOLN,
ATORRUS RAINER,
GREG RIVAS, and
PATRICK SUCHAIYA,
Plaintiffs,
v.
RICH RAEMISCH, In his Official Capacity as Executive Director of the Colorado
Department of Corrections (CDOC),
LOU ARCHULETA, In his Official Capacity as Director of Prisons for CDOC,
THE SCF MAIL ROOM,
THE SCF PUBLICATION REVIEW COMMITTEE,
BERNADETTE SCOTT, In her Official Capacity as Lieutenant of the SCF Mail Room
and in her Individual Capacity,
SCF MAIL ROOM EMPLOYEE "DJ," In his/her Individual Capacity,
MICHELLE NYCZ-HALLIGAN, In her Official Capacity as a Major on the SCF
Publication Review Committee and in her Individual Capacity,
SCF MAIL ROOM EMPLOYEE "PDR," In his/her Individual Capacity,
IRIS CHRISTIANS, In her Individual Capacity,
SCF MAIL ROOM EMPLOYEE "Z SMITH," In his/her Individual Capacity,
UNKNOWN CDOC PUBLICATION REVIEW COMMITTEE,
UNKNOWN ADMINISTRATIVE HEAD,
RANDY OLGUIN, In his Individual Capacity,
PAMELA J. PLOUGHE, In her Individual Capacity,
BUENA VISTA CORRECTIONAL CENTER PUBLICATION REVIEW COMMITTEE,
WILLIAM BRUNELL, In his Individual Capacity,
ANGEL MEDINA, In his Individual Capacity,
SCF CORRECTIONAL OFFICER OCHOA, In her Individual Capacity,
SCF SERGEANT ROBERT HRADECKY, In his Individual Capacity,
ANDRIES PRINSLOO, In his Individual Capacity, and
JOHN CHAPDELAINE, In his Individual Capacity,
Defendants.

ORDER TO FILE AMENDED COMPLAINT

All Plaintiffs are in the custody of the Colorado Department of Corrections (DOC)
and except for Plaintiff Simon Sue are incarcerated at the Sterling Correctional Facility
in Sterling Colorado. Simon Sue according to the DOC website currently is
incarcerated at the Kit Carson Correction Center in Burlington, Colorado. Plaintiffs,
acting pro se, initiated this action by filing a Complaint that appears to assert violations
of Plaintiffs’ First and Fourteenth Amendment rights because Plaintiffs are being denied
copies of Penthouse, Playboy, Lowrider, Maxim, Juxtapoz, Show, and Skin and Ink
magazines. Plaintiffs seeks injunctive relief and money damages.
After several attempts of curing the noted deficiencies and dismissal of Plaintiffs
who failed to cure deficiencies, the Court found Plaintiffs had available to them
sufficient funds to pay the filing fee, which they did on May 1, 2015. The Court,
therefore, will proceed to review the Complaint.
The Court must construe the Complaint liberally because Plaintiffs are pro se
litigants. 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 a pro se litigant's
advocate. See Hall, 935 F.2d at 1110. Plaintiffs will be ordered to file an Amended
Complaint as follows.
First, because four defendants have been dismissed and their claims no longer
are at issue in this case, the Court will direct remaining Plaintiffs to file an Amended
Complaint that contains only the claims that pertain to the six remaining Plaintiffs.
Second, in the Complaint Plaintiffs submitted on October 30, 2014, they failed to
include all pages of the Court-approved form; all the information requested on Page
Three of the Prisoner Complaint form is not provided. Plaintiffs, therefore, will be
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directed to file the Amended Complaint on a Court-approved form that contains all
pages of the form. Finally, because the DOC website shows Plaintiff Simon Sue as
being incarcerated at the Kit Carson Correction Center in Burlington, Colorado, Plaintiff
Sue will be required to confirm his current address.
Plaintiffs also are directed to address the following in the Amended Complaint.
Defendant SCF Mail Room is not a person for the purpose of a 42 U.S.C. § 1983 and is
not a proper party to this action. Further, Plaintiffs must demonstrate how each named
Defendant personally participated in the asserted claims. Also, Plaintiffs may use
fictitious names, such as “Unknown Administrative Head,” and “Unknown CDOC
Publication Review Committee,” if they do not know the real names of the individuals
who allegedly violated their rights. Plaintiffs, however, must provide sufficient
information about these defendants so that they can be identified for the purpose of
service.
To establish personal participation, Plaintiffs must show how each 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). A def endant may not
be held liable on a theory of respondeat superior merely because of his or her
supervisory position. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986);
McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). A supervisor is only liable for
constitutional violations that they cause. See Dodds v. Richardson, et al., 614 F.3d
1185 (10th Cir. 2010) (Tymkovich, J., concurring).
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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 of ficial 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
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.
Plaintiffs also cannot maintain claims against prison officials or administrators on
the basis that they denied their 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)

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(sending “correspondence [to high-ranking prison official] outlining [a] complaint . . .
without more, does not sufficiently implicate the [supervisory official] under § 1983”).
Plaintiffs must explain in their Amended Complaint what each defendant did to
them, when the defendant did the action, how the action harmed them, and what
specific legal right they believe the defendant violated. Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). According ly, it is
ORDERED that within thirty days from the date of this Order Plaintiffs file an
Amended Complaint that is in keeping with the above directives. It is
FURTHER ORDERED that Plaintiffs shall obtain the Court-approved Prisoner
Complaint form (with the assistance of their case manager(s)or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov. The form is
to be used to submit the Amended Complaint and must contain all pages provided in
the form. It is
FURTHER ORDERED that if Plaintiffs fail within the time allowed to file an
Amended Complaint that complies with this Order, the Court will dismiss the action
without further notice. It is
FURTHER ORDERED that Plaintiff Simon Sue must confirm his current location
and address. It is
FURTHER ORDERED that process shall not issue until further order of
the Court.
DATED at Denver, Colorado, this 5th day of

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May , 2015.

BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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