Staszak v. Bolton et al

Filing 5

ORDER Directing Plaintiff To File Amended Complaint, by Magistrate Judge Gordon P. Gallagher on 04/09/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00597-GPG
JOHN R. STASZAK,
Plaintiff,
v.
ROBBIE BOLTON,
DONNA L. GONZALES,
DANA KRAKOW,
LEONARD WOODSON III,
ASTRIA LOMBARD,
ANTHONY DECESARO, and
RICK RAEMISCH,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, John R. Staszak, is in the custody of the Colorado Department of
Corrections (CDOC) at the Colorado Territorial Correctional Facility in Canón City,
Colorado. Mr. Staszak has filed pro se a Prisoner Complaint asserting a violation of his
constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. He has been
granted leave to proceed in forma pauperis.
The Court must construe the Complaint liberally because Mr. Staszak 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. Staszak will be ordered to file an amended complaint.
In the Prisoner Complaint, Mr. Staszak alleges that he was sentenced to a 12-

year prison term in the CDOC in May 2010, after he violated the terms of his probation.
He alleges that he was sentenced pursuant to the Colorado Sex Offender Lifetime
Supervision Act of 1998, COLO. REV. STAT. §§18-1.3-1001, et seq., and is not eligible
for parole unless he completes a sex offender treatment program. Plaintiff states that
he has been on a waiting list for sex offender treatment for four years. He alleges that
because he has not been placed in sex offender treatment, he has been denied
eligibility for parole and community corrections placement, in violation of his federal due
process rights. For relief, Mr. Staszak ask the Court order the Defendants to: (1)
provide him with a psycho-sexual evaluation so the Colorado Parole Board and the
Colorado Community Corrections Board can make an informed decision regarding his
transition back into the community; and, (2) place him in SOTMP treatment so that his
progress can be assessed before his next parole hearing. It is not clear whether
Plaintiff seeks monetary damages from the Defendants.
Mr. Staszak further alleges in the Complaint that the denial of sex offender
treatment violates his Eighth Amendment rights because he needs sex offender
treatment before he can be released back into the community, but is not receiving it.
He further alleges that unspecified individuals have denied him adequate medical care
for various conditions and ailments. Finally, he alleges that he is being given a diet that
is not “entirely consistent with [his] religious beliefs.” (ECF No. 1, at 9).
The Complaint is deficient because Mr. Staszak fails to allege facts to show that
each named Defendant was personally involved in the alleged deprivation of his
constitutional rights. Personal participation is an essential element in a civil rights
action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v.
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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). A supervisor can only be held liable for his own deliberate intentional
acts. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep’t of
Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under
§ 1983 for their own culpable involvement in the violation of a person's constitutional
rights.”); see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (“[Section]
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.”).
In the Complaint, Mr. Staszak alleges that Defendant Gonzales denied his
request for a polygraph test three weeks before Plaintiff appeared before the Parole
Board, and that the other Defendants, except for Defendant Raemisch, denied his
grievances concerning the lack of sex offender treatment. Plaintiff alleges that
Defendant Raemisch is responsible for the alleged constitutional deprivation because of
his position as Executive Director of the CDOC.
Plaintiff seeks to hold Defendant Raemisch liable based on his supervisory
status, which is improper under § 1983. Furthermore, the other Defendants cannot be
held liable under § 1983 on the basis that they denied Plaintiff’s grievances. The
"denial of a grievance, by itself without any connection to the violation of constitutional

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rights alleged by plaintiff, does not establish personal participation under § 1983."
Gallagher, 587 F.3d at 1069; see also Whitington v. Ortiz, No. 07-1425, 307 F. App’x.
179, 193 (10th Cir. Jan. 13, 2009) (unpublished) (stating that "the denial of the
grievances alone is insufficient to establish personal participation in the alleged
constitutional violations.") (internal quotation marks and citation omitted); Davis v. Ark.
Valley Corr. Facility, No. 02-1486, 99 F. App’x. 838, 843 (10th Cir. May 20, 2004)
(unpublished) (sending "correspondence [to high-ranking prison official] outlining [a]
complaint . . . without more, does not sufficiently implicate the [supervisory official]
under § 1983"). Plaintiff does not allege facts to show that any of the named
Defendants were responsible for determining his placement in a sex offender treatment
program.
And, finally, to the extent Mr. Staszak is asserting a deprivation of his Eighth
Amendment right to adequate medical care and his First Amendment right to a religious
diet, he fails to state arguable claims for relief. As an initial matter, none of the named
Defendants are implicated in the alleged constitutional violations. Further, the Eighth
Amendment is violated when prison officials act with deliberate indifference to an
inmate’s serious medical needs. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.
2000). Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quotations omitted) (“[A] prison
official violates the Eighth Amendment only when two requirements are met. First, the
deprivation alleged must be, objectively, sufficiently serious . . . [Second,] a prison
official must have a sufficiently culpable state of mind.”). To state a free-exercise claim
under the First Amendment, Plaintiff must allege a substantial burden on his or her

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sincerely held religious beliefs. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007)
(addressing sufficiency of allegations under Free Exercise Clause). The allegations in
the Complaint are insufficient to show an arguable deprivation of Mr. Staszak’s First or
Eighth Amendment rights. Accordingly, it is
ORDERED that Plaintiff, John R. Staszak, file within thirty (30) days from the
date of this order, an Amended Complaint that complies with the directives in this
order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or 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 within
the time allowed, the Court will review the allegations of the original Complaint, which
may result in the dismissal of all or part of this action without further notice.
DATED April 9, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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