Gonzales v. Physician Health Partners et al

Filing 6

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 11/19/14. Defendant Anthony A. DeCesaro is dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03084-GPG
TIMOTHY GONZALES,
Plaintiff,
v.
PHYSICIAN HEALTH PARTNERS,
UNKNOWN LICENSED MEDICAL DOCTOR, Physician Health Partners, and
ANTHONY A. DECESARO,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff, Timothy Gonzales, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Bent County Correctional Facility in Las
Animas, Colorado. Mr. Gonzales has filed pro se a Prisoner Complaint (ECF No. 1)
pursuant to 42 U.S.C. § 1983 claiming his Eighth Amendment right to be free from cruel
and unusual punishment has been violated. The Court must construe the Prisoner
Complaint liberally because Mr. Gonzales 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). If the Prisoner Complaint reasonably can be read “to state a valid claim
on which the plaintiff could prevail, [the Court] should do so despite the plaintiff’s failure
to cite proper legal authority, his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d
at 1110. However, the Court should not be an advocate for a pro se litigant. See id.

Pursuant to 28 U.S.C. § 1915A, the Court must review the Prisoner Complaint
because Mr. Gonzales is a prisoner and he is seeking redress from officers or
employees of a governmental entity. Section 1915A(b) requires dismissal of the
Prisoner Complaint, or any portion of the Prisoner Complaint, that is frivolous. A legally
frivolous claim is one in which the plaintiff asserts the violation of a legal interest that
clearly does not exist or asserts facts that do not support an arguable claim. See
Neitzke v. Williams, 490 U.S. 319, 324 (1989). For the reasons stated below, the Court
will dismiss the Prisoner Complaint in part as legally frivolous pursuant to § 1915A(b).
Mr. Gonzales claims he was subjected to cruel and unusual punishment because
he was denied timely surgery for a knee injury he suffered in 2011. The named
Defendants are Physician Health Partners, an unidentified doctor employed by
Physician Health Partners, and Anthony A. DeCesaro, the DOC step 3 grievance
officer.
The Eighth Amendment claim against Mr. DeCesaro must be dismissed for lack
of personal participation. “Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416,
1423 (10th Cir. 1997). Thus, 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).
Mr. Gonzales alleges with respect to Mr. DeCesaro only that he denied two
grievances. Although the grievances allegedly related to the medical treatment Mr.
Gonzales contends he was denied, he does not allege any facts that demonstrate Mr.
DeCesaro is responsible for the medical decisions he contends violate the Eighth
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Amendment. Therefore, because Mr. DeCesaro’s sole involvement stems from his
denial of administrative grievances, he will be dismissed as a party to this action for lack
of personal participation.
The Court will not address at this time the merits of the Eighth Amendment claim
against the other Defendants. Instead, the action will be drawn to a presiding judge
and, if applicable, to a magistrate judge. See D.C.COLO.LCivR 8.1(c). Accordingly, it
is
ORDERED that Plaintiff’s Eighth Amendment claim against Defendant Anthony
A. DeCesaro is dismissed as legally frivolous pursuant to 28 U.S.C. § 1915A(b). It is
FURTHER ORDERED that Defendant Anthony A. DeCesaro is dismissed as a
party to this action. It is
FURTHER ORDERED that this case shall be drawn to a presiding judge and, if
applicable, to a magistrate judge.
DATED at Denver, Colorado, this 19th

day of

November

, 2014.

BY THE COURT:

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

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