Cantrell v. Cozza Rhodes et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Boyd N. Boland on 10/15/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02754-BNB
NEWTON J. CANTRELL,
Plaintiff,
v.
T.K. COZZA RHODES, Warden,
D. MCELVOY, N-A Unit Manager,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Newton J. Cantrell, is in the custody of the federal Bureau of Prisons at
the Correctional Institution in Florence, Colorado. He has filed pro se a Complaint
pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) asserting a deprivation of his federal statutory
rights. Mr. Cantrell as been granted leave to proceed in forma pauperis, pursuant to 28
U.S.C. § 1915.
The Court must construe the Complaint liberally because Mr. Cantrell 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. The Court has reviewed
the complaint and has determined that it is deficient. For the reasons discussed below,
Mr. Cantrell will be ordered to file an amended complaint.
Plaintiff alleges that in late 2013 Defendant McElvoy, his unit manager, informed

Plaintiff that he would not be allowed to correspond with his “wife” because there was
no marriage certificate on file and BOP policy does not recognize a traditional Native
American marriage. Plaintiff states that he informed Defendant McElvoy and Defendant
Warden Cozza Rhodes that Native American marriages do not require a certificate of
marriage. Mr. Cantrell alleges that his “wife” died from cancer in March 2014, without
any contact from the Plaintiff for several months. He claims that the Defendants’ refusal
to recognize his Native American traditional marriage violated the 1868 Fort Laramie
Treaty, 15 Stat. 635, and the American Indian Religious Freedom Act (“AIRFA”), 42
U.S.C. § 1996.
Mr. Cantrell further alleges that for approximately seven years, eye doctors at the
prison informed him that his loss of vision was due to cataracts, but an August 2014
examination outside the prison revealed that the vision impairment was due to a broken
blood vessel. Plaintiff alleges that he may have suffered permanent vision loss because
of the negligence of unidentified prison eye doctors.
The Complaint is deficient because Congress did not create judicially enforceable
individual rights in the AIRFA. See Lyng v. Northwest Indian Cemetery Protective
Ass’n, 485 U.S. 439, 455 (1988); see also Henderson v. Terhune, 379 F.3d 709, 711
(9th Cir. 2004) (“AIRFA is simply a policy statement and does not create a cause of
action or any judicially enforceable individual rights.”).
Further, Plaintiff cannot recover damages from the Defendants based on an
alleged violation of the 1868 Fort Laramie Treaty because Defendants are not
contracting parties to the Treaty, and there is no language in the Treaty that would
support a claim for damages against a non-contracting party. See Skokomish Indian
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Tribe v. United States, 410 F.3d 506, 513 (2005).
The Complaint is also deficient because Mr. Cantrell fails to allege facts to show
that the named Defendants personally participated in the alleged deprivation of
adequate eye care. Personal participation is an essential allegation in a civil rights
action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); 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); see also Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010)
(“[D]efendant-supervisors may be liable under § 1983 where an ‘affirmative’ link exists
between the unconstitutional acts by their subordinates and their ‘adoption of any plan
or policy. . .–express or otherwise–showing their authorization or approval of such
‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A supervisor
defendant, such as Warden Cozza Rhodes, may not be held liable for the
unconstitutional conduct of her subordinates on a theory of respondeat superior. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This is because Ҥ 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.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008).
Moreover, negligent conduct does not violate the Constitution. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); see also Farmer v. Brennan, 511 U.S. 825, 828
(stating that the Eighth Amendment is violated when a prison official acts with deliberate
indifference to a substantial risk of serious harm to an inmate). Accordingly, it is
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ORDERED that Plaintiff, Newton J. Cantrell, file within thirty (30) days from the
date of this order, an Amended Complaint that complies with the directives in this
order. It is
FURTHER ORDERED that Mr. Cantrell shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Cantrell fails to file an Amended Complaint
within the time allowed, some or all of this action may be dismissed without further
notice.
DATED October 15, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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