Johnson Jr. v. Silver et al

Filing 18

ORDER Directing Plaintiff To File Second Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 01/14/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02826-GPG
CHARLES JOHNSON, JR.,
Plaintiff,
v.
LELAND SILVER, Aurora Police,
JOHN DOE 1, Aurora Police,
JOHN DOE 2, Aurora Police,
KIM HURT, Aurora Medical Supervisor,
TERRY JONES, Aurora Police Chief,
JANE DOE 1, Aurora Intake Nurse,
JOHN DOE 3, Intake Sheriff Aurora,
ESTHER, Division Chief ACDF,
CONNIE WIKOUSION, Medical ACDF,
JANE DOE 3, Intake Nurse ACDF,
JANE DOE 4, Nurse ACDF,
JOHN DOE LPN, ACDF, and
UNIT DEPUTY, ACDF
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Charles Johnson, Jr., is an inmate at the Denver County Jail in Denver,
Colorado. Mr. Johnson initiated this action by filing pro se an incomplete Prisoner
Complaint (ECF No. 1). On October 24, 2014, Mr. Johnson was ordered to cure certain
deficiencies and to file an amended complaint that complies with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. On November 12,
2014, Mr. Johnson filed an amended Prisoner Complaint (ECF No. 9). Mr. Johnson
asserts claims pursuant to 42 U.S.C. § 1983 claiming his constitutional rights have been

violated.
The court must construe the amended Prisoner Complaint liberally because Mr.
Johnson 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 (10 th 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. Johnson will be ordered to file a second amended
complaint.
Mr. Johnson asserts three claims for relief in the amended Prisoner Complaint.
He first claims he was subjected to excessive force and denied medical assistance
when he was arrested on July 24, 2014. According to Mr. Johnson, he suffered a
broken collar bone, nerve issues in his back, and muscle damage in his left knee when
he was arrested. Mr. Johnson asserts claim one against Defendants Leland Silver,
John Doe 1, and John Doe 2, all of whom are Aurora police officers, and he alleges
specific facts in support of claim one that demonstrate how each of these three
Defendants personally participated in the asserted constitutional violation.
Mr. Johnson contends in his second claim that he was denied adequate medical
care at the Aurora City Jail for the injuries he suffered when he was arrested on July 24,
2014. Although not entirely clear, Mr. Johnson apparently was housed at the Aurora
City Jail for two days. Mr. Johnson alleges in support of claim two that he was
examined by an intake nurse, who may be Defendant Jane Doe 1, and that he was
given Tylenol for his pain. Mr. Johnson further alleges that Defendant Terry Jones and
a medical supervisor, who may be Defendant Kim Hurt, have not responded to a
grievance he filed but he does not allege facts that demonstrate either of these
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Defendants or anyone else personally participated in the alleged denial of medical care
while he was housed at the Aurora City Jail.
Mr. Johnson contends in his third claim that he was denied adequate medical
care at the Adams County Detention Facility for the injuries he suffered when he was
arrested on July 24, 2014, and possibly for other medical conditions. Mr. Johnson
states that he was housed at the Adams County Detention Facility for thirty-one days
until August 26, 2014. He alleges in support of claim three that he was seen by an
intake nurse, who may be Defendant Jane Doe 3, that he was given Tylenol for his
pain, and that his name was placed on a list to be seen by a doctor. Mr. Johnson
further alleges he was seen by multiple nurses at different times while housed at the
Adams County Detention Facility but that he never was seen by a doctor. Mr. Johnson
does not allege specific facts regarding what each nurse did or failed to do that
allegedly violated his constitutional rights. Mr. Johnson maintains that Defendant
Esther and a medical supervisor, who may be Defendant Connie Wikousion, have not
responded to a grievance he filed but he does not allege facts that demonstrate either
of these Defendants personally participated in the alleged denial of medical care while
he was housed at the Adams County Detention Facility.
Mr. Johnson’s second and third claims in the amended Prisoner Complaint are
deficient. For one thing, Mr. Johnson fails to link his factual allegations in support of
those claims to the specific individuals he has named as Defendants in the caption of
the amended Prisoner Complaint. For example, Mr. Johnson refers to an intake nurse
at the Aurora City Jail in his allegations in support of claim two but he does not
specifically identify the intake nurse as Defendant Jane Doe 1. If Mr. Johnson’s factual
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allegations in support of claim two regarding the intake nurse at the Aurora City Jail do
in fact refer to Defendant Jane Doe 1, he should refer to that individual as Jane Doe 1
throughout the amended Prisoner Complaint.
Mr. Johnson also fails to allege specific facts that demonstrate each of the
Defendants personally participated in the asserted constitutional violations. See Henry
v. Storey, 658 F.3d 1235, 1241 (10 th Cir. 2011) (allegations of “personal participation in
the specific constitutional violation complained of [are] essential”). To the extent a
particular Defendant merely denied or failed to respond to a grievance, that fact alone is
not sufficient to demonstrate personal participation. See Gallagher v. Shelton, 587
F.3d 1063, 1069 (10 th 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”). To the extent Mr. Johnson is naming supervisory officials as
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). Although a defendant can be liable in a § 1983 action based on his or
her supervisory responsibilities, a claim of supervisory liability must be supported by
allegations that demonstrate personal involvement, a causal connection to the
constitutional violation, and a culpable state of mind. See Schneider v. City of Grand
Junction Police Dept., 717 F.3d 760, 767-69 (10 th Cir. 2013) (discussing standards for
supervisory liability).
Claims two and three in the amended Prisoner Complaint also are deficient
because Mr. Johnson fails to allege specific facts in support of those claims that
demonstrate his constitutional rights have been violated. As noted above, Mr. Johnson
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fails to allege specific facts that demonstrate what each named Defendant did or failed
to do that constitutes deliberate indifference to a serious medical need.
If Mr. Johnson was being detained as a pretrial detainee, his medical treatment
claims arise under the Due Process Clause of the Fourteenth Amendment rather than
the Eighth Amendment even though the same standards apply. See Barrie v. Grand
County, 119 F.3d 862, 867-69 (10 th Cir. 1997). Thus, jail officials may not be
deliberately indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S.
97, 104-06 (1976). Deliberate indifference means that “a prison official may be held
liable . . . only if he knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 847 (1994).
Because Mr. Johnson appears to have made a good-faith effort to comply with
the court’s prior order to file an amended complaint, he will be given one more
opportunity to clarify the claims he is asserting in this action. Mr. Johnson should name
as Defendants only those persons he contends actually violated his federal
constitutional rights. Mr. Johnson “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 (10 th 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
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ORDERED that Mr. Johnson file, within thirty (30) days from the date of this
order, a second amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Johnson 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. Johnson fails to file a second amended
complaint that complies with this order within the time allowed, the second and third
claims in the amended Prisoner Complaint will be dismissed.
DATED January 14, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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