Moore v. Zimmer et al

Filing 6

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 1/13/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00034-GPG
GEORGE MOORE,
Plaintiff,
v.
DENVER HEALTH DIRECTOR, CARMEN KASSETY,
RN ZIMMER, and
DENVER COUNTY JAIL DIRECTOR, ELIAS DIGGINS,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, George Moore, is an inmate currently incarcerated at the Denver County
Jail. Plaintiff, acting pro se, initiated this action by filing a Prisoner Complaint alleging
that his constitutional rights were violated. Plaintiff has been granted leave to proceed
pursuant to 42 U.S.C. § 1915.
The Court must construe the Complaint liberally because Plaintiff is 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). However, the Court should not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below , Plaintiff will be
ordered to file an Amended Complaint.
Plaintiff asserts three claims regarding Defendants’ alleged deliberate
indifference to his medical needs. Plaintiff seeks money damages. Plaintiff fails to
allege specific facts in support of the Eighth Amendment claims that demonstrate how
each named Defendant personally participated in the asserted constitutional violation.

See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (allegations of “personal
participation in the specific constitutional violation complained of [are] essential”). To
establish personal participation, 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).
Furthermore, to the extent Defendant Kassety merely denied a grievance, that
fact alone is not sufficient to demonstrate personal participation. See Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th 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”). And to the extent Plaintiff is naming supervisory
officials as defendants, such as Defendants Kassety and Diggins, 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). Rather,
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
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establish the alleged constitutional deprivation.” Id. at 1199.
Therefore, Plaintiff will be ordered to file an amended complaint. Plaintiff should
name as Defendants only those persons he contends actually violated his federal
constitutional rights. Plaintiff “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 (10th Cir. 2007). 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
FURTHER ORDERED that if Plaintiff fails to file an Amended Complaint that
complies with this Order within the time allowed, the Court will proceed to review the
merits of the original Complaint and some of the claims and defendants may be
dismissed without further notice.
DATED January 13, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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