Heddings v. Denham et al
ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 12/08/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03160-GPG
DEBORAH DENHAM, Warden,
MICHAEL CONNELL, Associate Warden, and
MS. SEGURA, Records/Mail Room Manager,
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Scott Heddings, is a prisoner in the custody of the Federal Bureau of
Prisons at the Federal Correctional Institution at Englewood, Colorado. Mr. Heddings
has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), claiming his rights
under the United States Constitution have been violated. The court must construe the
Prisoner Complaint liberally because Mr. Heddings 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 be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110. For the reasons stated below , Mr. Heddings will
be ordered to file an amended complaint.
Mr. Heddings asserts one claim for relief in the Prisoner Complaint contending
his First Amendment rights have been violated. However, he fails to allege specific
facts in support of the First Amendment claim that demonstrate each named Defendant
personally participated in the asserted constitutional violation. 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”). In fact, Mr. Heddings
mentions only two of the three Defendants in connection with his First Amendment
claim. Furthermore, to the extent a particular Defendant merely denied 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. Heddings 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).
Therefore, Mr. Heddings will be ordered to file an amended complaint. Mr.
Heddings should name as Defendants only those persons he contends actually violated
his federal constitutional rights. Mr. Heddings “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
ORDERED that Mr. Heddings file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Heddings 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. Heddings fails to file an amended complaint
within the time allowed, any Defendant against whom he fails to allege specific facts of
personal participation will be dismissed as a party to this action.
DATED December 8, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge
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