Stults v. Mesa County Detention Facility

Filing 23

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/29/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02981-GPG
EARL LYNN STULTS,
Plaintiff,
v.
MESA COUNTY DETENTION MEDICAL STAFF, and
MESA COUNTY CUSTODY OFFICERS,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Earl Lynn Stults, was detained at the Mesa County Detention Facility in
Grand Junction, Colorado, at the time of filing. Mr. Stults initiated this action by filing
pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983. He has paid the $400.00
filing fee. The Court construes Plaintiff’s filings liberally, but does not act as an
advocate for a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. Procedural History
On November 4, 2014, Magistrate Judge Boyd N. Boland reviewed the
Complaint (ECF No. 1) and determined that it was deficient because the named
Defendant, Mesa County Detention Facility, is not a suable entity and the Complaint did
not allege facts sufficient to hold Mesa County liable under § 1983. (ECF No. 3).
Magistrate Judge Boland thus ordered Mr. Stults to file an amended complaint, within
thirty days, that complied with the pleading requirements of Fed. R. Civ. P. 8, and stated

facts and allegations to show that either Mesa County, or individual County officers
and/or employees, had violated his constitutional rights so as to be actionable under §
1983. (Id.).
After obtaining an extension of time, Mr. Stults filed his “revised claims” on
December 24, 2014. (ECF No. 14). The Court construed the document liberally as
Plaintiff’s Amended Complaint.
In a January 21, 2015 Order (ECF No. 16), Magistrate Judge Gordon P.
Gallagher reviewed the Amended Complaint and determined that it was deficient
because Mr. Stults failed to allege facts to show that any individual County officers
and/or employees were personally involved in a deprivation of Plaintiff’s constitutional
rights. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (the Eighth Amendment is
violated when prison officials or medical personnel act with deliberate indifference to a
serious risk of harm to an inmate’s health or safety); Craig v. Eberly, 164 F.3d 490, 495
(10th Cir.1998) (citation omitted) (“Although the Due Process Clause governs a pretrial
detainee's claim of unconstitutional conditions of confinement, the Eighth Amendment
standard provides the benchmark for such claims.”). See also Gallagher v. Shelton, 587
F.3d 1063, 1069 (10th Cir. 2009) (a § 1983 claim requires allegations of “personal
involvement in the alleged constitutional violation”). Magistrate Judge Gallagher also
observed in the January 21 Order that to the extent Plaintiff was asserting a Title II ADA
claim, he must name Mesa County as a Defendant and assert facts to support the
claim. (ECF No. 16). Accordingly, Magistrate Judge Gallagher directed Mr. Stults to file
a Second Amended Complaint within thirty (30) days of the January 21 Order. (Id.).
Magistrate Judge Gallagher warned Plaintiff that failure to comply with the January 21
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Order may result in dismissal of the action without further notice. (Id.).
Sometime in January 2016, Mr. Stults was transferred to the infirmary at the
Denver Reception and Diagnostic Center (see ECF Nos. 18, 20). Plaintiff requested
and was granted, an extension of time up to an including April 12, 2015, to comply with
the Order directing him to file a Second Amended Complaint. (ECF No. 21). On April
16, 2015, Mr. Stults filed a letter with the Court in which he stated that he had submitted
his documentation in support of this action to attorney David Lane, but had not received
a response. (ECF No. 22). Mr. Stults has not file a Second Amended Complaint to
date.
II. Analysis
The factual allegations and claims set forth in the Amended Complaint (ECF No.
14) are set forth in detail in the January 21, 2015 Order (ECF No. 16) and will not be
repeated here. Although Mr. Stults did not file a second amended complaint, it is not
clear that his claims are legally frivolous, if he were to sue the proper parties and
provide more detailed factual allegations. See 28 U.S.C. § 1915A (directing court to
review prisoner complaints asserting claims against a government officer or entity to
determine whether the claims are frivolous or malicious). As such, the Court will
dismiss this action without prejudice pursuant to Fed. R. Civ. P. 41(b). See e.g. Bowens
v. Sterling Correctional Facility, No. 13-1160, 533 F. App’x 863 (10th Cir. Oct. 9, 2013)
(affirming district court’s dismissal of pro se prisoner complaint without prejudice where
plaintiff failed to comply with a court order directing him to file an amended complaint
that sued the proper parties, complied with pleading requirements, and alleged the
personal participation of the defendants in a deprivation of his constitutional rights).
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Accordingly, it is
ORDERED that this action is DISMISSED WITHOUT PREJUDICE, pursuant to
Fed. R. Civ. P. 41(b), for Plaintiff’s failure to comply with the January 21, 2015 Order
directing him to file a second amended complaint.
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Stults files a notice of appeal he must also pay the
full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United
States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24.
DATED April 29, 2015, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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