Dudley v. Nestor

Filing 7

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 11/11/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03038-BNB

MARVIN DUDLEY,
Plaintiff,
v.
SHERIFF TOM NESTOR
Defendant.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Marvin Dudley, currently is detained at the Lincoln County Jail in Hugo,
Colorado. Plaintiff initiated this action by filing pro se, a Prisoner Complaint pursuant to
42 U.S.C. § 1983 and a Prisoner’s Motion and Af fidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915. On November 12, 2014, the Court granted Plaintiff’s § 1915
Motion.
The Court must construe Plaintiff’s Complaint liberally because he 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Plaintiff will be directed to file an Amended Complaint.
To state a claim in federal court Plaintiff must explain (1) what a defendant did
to him; (2) when the defendant did it; (3) how the defendant’s action harmed him; and
(4) what specific legal right the defendant violated. Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).

Plaintiff also is required to assert personal participation by a named defendant in
the alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir. 1976). To establish personal participation, Plaintiff must show in the Cause
of Action section of the complaint form how the named 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 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.
Finally, Plaintiff cannot maintain claims against prison officials or administrators
on the basis that they denied his grievances. The “denial of a grievance, by itself
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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) (sending “correspondence [to high-ranking prison official] outlining [a]
complaint . . . without more, does not sufficiently implicate the [supervisory official]
under § 1983”). Summarily ignoring Plaintiff’s grievances, as Plaintiff asserts jail staff
has done, does not indicate Defendant Nestor participated in the act or that Plaintif f’s
grievances were completely ignored but were only denied.
Plaintiff, therefore, is directed to amend the Complaint and state how Defendant
Nestor’s decision to place handles on the outside of cell doors and his failure to ensure
the integrity of the jail’s grievance process violated a federal constitutional right, which is
required in a 42 U.S.C. § 1983 action. Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Plaintiff 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, to be used
in filing the Amended Complaint. It is

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FURTHER ORDERED that if Plaintiff fails to file an Amended Complaint that
complies with this Order within the time allowed, and to the Court’s satisfaction, the
Complaint and action will be dismissed without further notice.
DATED November 11, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

Gordon P. Gallagher
United States Magistrate Judge

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