Perotti v. USA et al

Filing 10

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 5/28/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00534-GPG
JOHN W. PEROTTI,
Plaintiff,
v.
UNITED STATES OF AMERICA,
WARDEN CHARLIE DANIELS,
RN M. ANDREIS,
PA BRAD R. CINK,
DR. GARY ALLRED,
AW JOHNSON,
HSA COLLINS, and
RN SERBY,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, John W. Perotti, is a prisoner in the custody of the Federal Bureau of
Prisons. He currently is incarcerated at the Federal Correctional Institution at
Greenville, Illinois. Mr. Perotti has filed pro se an amended complaint (ECF No. 8) on
the court-approved Prisoner Complaint form asserting claims pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the
Federal Tort Claims Act (“FTCA”). He seeks damages and declaratory relief.
The court must construe the Prisoner Complaint liberally because Mr. Perotti 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 (10 th Cir. 1991). However, the court should not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Mr. Perotti will be

ordered to file a second amended complaint.
Mr. Perotti asserts three constitutional claims in the Prisoner Complaint that stem
from alleged denials of medical care while he was incarcerated at a federal prison in
Florence, Colorado. Mr. Perotti also asserts two of the three claims against the United
States pursuant to the FTCA. He specifically alleges in claim one that his prescribed
seizure medications were discontinued while he was housed in the special housing unit.
Claim one is asserted against five of the seven individual Defendants and the United
States. He alleges in claim two, which is asserted against all seven individual
Defendants, that prescribed pain medications were discontinued when he was
transferred to the Florence prison. Mr. Perotti alleges in claim three that he was denied
adequate medical treatment for a broken arm. He asserts claim three against six of the
seven individual Defendants and the United States.
The Prisoner Complaint is deficient because, with respect to his constitutional
claims against the individual Defendants, Mr. Perotti fails to allege specific facts that
demonstrate each named Defendant personally participated in the asserted
constitutional violations. 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”). Merely making vague and conclusory allegations that his rights
have been violated does not entitle a pro se pleader to a day in court, regardless of how
liberally the court construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399,
1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10 th Cir. 1992). Thus, “in analyzing the
sufficiency of the plaintiff’s complaint, the court need accept as true only the plaintiff’s
well-pleaded factual contentions, not his conclusory allegations.” Hall, 935 F.2d at
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1110. Furthermore, neither the court nor the Defendants are required to guess in order
to determine what specific claims are being asserted and what specific factual
allegations support each claim. 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 (10 th Cir. 2005); see also United
States v. Dunkel, 927 F.2d 955, 956 (7 th Cir. 1991) (“Judges are not like pigs, hunting
for truffles buried in briefs.”).
For these reasons, Mr. Perotti will be directed to file a second amended
complaint. Mr. Perotti must identify the specific claims he is asserting, the specific
factual allegations that support each claim, against which Defendant or Defendants he
is asserting each claim, and what each Defendant did that allegedly violated his rights.
See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 th Cir. 2007)
(noting that, to state a claim in federal court, “a complaint 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”). “Under Bivens, an individual has a cause of action against a federal official
in his individual capacity for damages arising out of the official’s violation of the United
States Constitution under color of federal law or authority.” See Dry v. United States,
235 F.3d 1249, 1255 (10 th Cir. 2000). To the extent Mr. Perotti 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). Although a defendant can be liable in a Bivens action
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based on his or her supervisory responsibilities, a claim of supervisory liability must be
supported by allegations that demonstrate personal involvement, a causal connection
to the constitutional violation, and a culpable state of mind. See Schneider v. City of
Grand Junction Police Dept., 717 F.3d 760, 767-69 (10 th Cir. 2013) (discussing
standards for supervisory liability). Accordingly, it is
ORDERED that Mr. Perotti file, within thirty (30) days from the date of this
order, a second amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Perotti 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. Perotti fails to file a second amended
complaint that complies with this order within the time allowed, the action will be
dismissed without further notice.
DATED May 28, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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