Anthony v. Dubrava et al
ORDER Directing Plaintiff to File an Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 2/10/2015. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00251-GPG
SHERIFF’S DEPUTY DUBRAVA, and
SHERIFF DAVID C. WALCHER,
ORDER DIRECTING PLAINTIFF TO FILE
AN AMENDED COMPLAINT
Plaintiff Dion Anthony is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Limon Correctional Facility in Limon,
Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
The Court has granted the § 1915 Motion. The Court must construe the Complaint
liberally because Plaintiff 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). T he
Court, however, should not act as a pro se litigant’s advocate. See Hall, 935 F.2d at
1110. The Court will direct Plaintiff to file an Amended Prisoner Complaint for the
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 must assert personal participation by each 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 how each 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 def endant 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.
Plaintiff does not state viable claims against Defendant David C. Walcher
because he is the “executive of the institution in which Deputy Dubrava is employed.”
Compl., ECF No. 1, at 2. Plaintiff must assert personal participation by Defendant
Walcher in the violation of Plaintiff’s rights for Defendant Walcher to be named a proper
party to this action. Accordingly, it is
ORDERED that Plaintiff file an Amended Complaint that complies with the
directions above, within thirty days from the date of 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 comply with this Order within the
time allowed the Court shall proceed to review the merits of only the claims that are
asserted against properly named defendants in the Complaint filed on February 5,
DATED February 10, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge
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