Aziz-Alah v. Colorado Department of Correction et al

Filing 10

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 02/11/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03187-GPG
ALA A. AZIZ-ALLAH, a/k/a KIMANI W ASHINGTON,
Plaintiff,
vs.
COLORADO DEPARTMENT OF CORRECTIONS,
RICK RAEMISCH, Executive Director,
JOHN FALK, Warden,
MR. CHAPDELAINE, Associate Warden, and
JOHN DOE, Officer of Offender Services,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Ala A. Aziz-Allah, a/k/a Kimani Washington, is in the custody of the
Colorado Department of Corrections (CDOC) at the correctional facility in Sterling,
Colorado. Plaintiff has filed a Prisoner Complaint asserting a deprivation of his
constitutional rights pursuant to 42 U.S.C. § 1983. He has been g ranted leave to
proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Mr. Aziz-Allah 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 act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has reviewed
the complaint and has determined that it is deficient. For the reasons discussed below,
Plaintiff will be directed to file an Amended Complaint.

I. The Complaint
Mr. Aziz-Allah alleges in the Complaint that while he was incarcerated in the
Massachusetts Department of Corrections, he filed a petition to formally change his
name in the Plymouth County, Massachusetts, probate court, which was granted.
Subsequently, Plaintiff was transferred to the CDOC. He submitted a letter to the
CDOC asking the agency to officially acknowledge his name change, but the CDOC
refused, pursuant to Administrative Regulation 950-06, which states: “Whereas any
legal name change of an inmate, religious or otherwise will be only registered as an
A.K.A. Alias in the Inmate’s File and Computer.” (ECF No. 8, at 4). Plaintiff states that
he has complained to Defendants Raemisch and Chapdelaine about the refusal of the
CDOC to acknowledge his name change, but the Defendants failed to take any
remedial action. Plaintiff alleges that his incoming mail, addressed “in his rightful
religious court-ordered name” has been “returned to sender”; that prison of ficials refuse
to process his outgoing mail that contains his religious name on the envelope as the
“sender”; and that prison officials refuse to recognize and address him by his proper
name. He claims that these actions violate his First Amendment free exercise rights.
Plaintiff further claims that the CDOC’s refusal to recognize his official name change
violates due process, because he complied with the necessary state procedures in
Massachusetts to effectuate a legal name change. Plaintiff seeks monetary relief and
an injunction to prevent prison officials from taking any retaliatory actions against him
as a result of his filing this legal action.

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II. Analysis
Plaintiff’s claims against the CDOC are barred by the Eleventh Amendment.
Eleventh Amendment immunity extends to states and state agencies deemed “arms of
the state” that have not waived their immunity, regardless of the relief sought. Steadfast
Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252–53 (10th Cir. 2007). T he CDOC
is an agency of Colorado that is entitled to Eleventh Amendment immunity. See Griess
v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). Cong ress did not abrogate
Eleventh Amendment immunity through Section 1983. See Quern v. Jordan, 440 U.S.
332, 345 (1979). Accordingly, the CDOC is an improper party to this § 1983 action and
should not be named as a Defendant in the Amended Complaint.
Furthermore, the Complaint is deficient because Plaintiff fails to allege the
personal participation of each named Defendant in the alleged First Amendment
violations. Personal participation is an essential allegation in a civil rights action. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); 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 Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (citations
and quotations omitted); Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir.
2010) (“[D]efendant-supervisors may be liable under § 1983 where an ‘affirmative’ link
exists between the unconstitutional acts by their subordinates and their ‘adoption of any
plan or policy. . .–express or otherwise–showing their authorization or approval of such
‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A supervisor

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defendant may not be held liable for the unconstitutional conduct of his subordinates on
a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This
is because Ҥ 1983 does not recognize a concept of strict supervisor liability; the
defendant’s role must be more than one of abstract authority over individuals who
actually committed a constitutional violation.” Fogarty v. Gallegos, 523 F.3d 1147, 1162
(10th Cir. 2008).
Plaintiff does not identify the correctional officers who are refusing to process his
incoming and outgoing mail. Moreover, Plaintiff does not explain how Defendants
Raemisch, Falk, and Chapdelaine, who are supervisory officials, were personally
involved in the alleged constitutional deprivations.
In addition, Plaintiff does not make any factual allegations against John Doe in
the body of the Complaint that would tend to show the Defendant’s personal
involvement in the alleged constitutional deprivations. Plaintiff may use a fictitious
name, such as John or Jane John Doe, if he does not know the real name of the
individual who allegedly violated his rights. However, if Plaintiff uses a fictitious name
he must provide sufficient information about the defendant so that the defendant can be
identified for purposes of service.
And, finally, Plaintiff must allege sufficient facts to show an arguable deprivation
of his First Amendment rights. Inmates are entitled to the reasonable opportunity to
pursue their sincerely-held religious beliefs. See Makin v. Colo. Dep't. of Corr., 183 F.3d
1205, 1209 (10th Cir.1999); Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). W hat
constitutes a “reasonable opportunity” is determined in reference to legitimate

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penological objectives. Id.; see also Turner v. Safley, 482 U.S. 78, 89 (1987) ( “[W ]hen
a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests.”). Plaintiff therefore must
allege facts in the Amended Complaint to show that the CDOC’s policy concerning
recognition of inmate name changes is unreasonable. See Gee v. Pacheco, 627 F.3d
1178, 1190 (10th Cir. 2010). The CDOC can lawfully require an inmate to use both his
original name and his changed name on official documents, including inmate mail.
See, e.g., Abdulhaseeb v. Saffle, No. 01-7103, 65 F. App’x 667, 672 (10th Cir. 2003)
(unpublished) (rejecting prisoner’s contention that his constitutional rights were violated
by the prison's requirement that, on official forms, he use the name under which he was
first incarcerated); see also Ali v. Wingert, No. 12-02027-REB-CBS, 2014 W L 26102, at
*7 (D. Colo. Jan. 2, 2014) (collecting cases). Accordingly, it is
ORDERED that Plaintiff, Ala A. Aziz-Allah, a/k/a Kimani Washington, file within
thirty (30) days from the date of this order, an amended complaint on the courtapproved Prisoner Complaint form that complies with the directives of this order. It is
FURTHER ORDERED that Plaintiff shall obtain a copy of the court-approved
Prisoner Complaint form (with the assistance of his case manager of the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that if Plaintiff fails to file an amended complaint as
directed within the time allowed, some or all of this action may be dismissed without
further notice.
DATED February 11, 2015, at Denver, Colorado.

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BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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