Sutton v. USA et al

Filing 10

ORDER DIRECTING PLAINTIFF TO FILE THIRD AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 7/22/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00850-GPG
JOSHUA LAMONT SUTTON,
Plaintiff,
v.
PROFECTO, Mr.,
JOHN DOE (1),
JOHN DOE (2),
MRS. MOORE,
RICHARD POUNDS,
MR. O’CONNOR,
JOHN DOE (3),
JOHN DOE (4), and
JANE DOE,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE THIRD AMENDED COMPLAINT

Plaintiff, Joshua Lamont Sutton, is a prisoner in the custody of the Colorado
Department of Corrections at the Centennial Correctional Facility in Canón City,
Colorado. Mr. Sutton has filed pro se a Second Amended Complaint (ECF No. 6)
pursuant to 42 U.S.C. § 1983 asserting violations of his constitutional rights from 1999
to 2011. Mr. Sutton seeks damages and declaratory relief.
The court must construe the Second Amended Complaint liberally because Mr.
Sutton 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. Sutton will be directed to file a Third Amended Complaint.

I. Allegations of the Second Amended Complaint.
Mr. Sutton alleges the following facts in the Second Amended Complaint. In
August 1999, he was incarcerated at the Arkansas Valley Correctional Facility (AVCF),
where Defendant Profecto, a case manager, intentionally placed him in a cell with
inmate Harris, who was a known to sexually assault his male cell mates. Harris
repeatedly punched and fondled Plaintiff and told Plaintiff that he would not cease his
behavior unless Plaintiff cooperated with his sexual proclivities. When Plaintiff
complained to Defendant John Doe 1, a shift commander, and asked to be separated
from Harris, Defendant told him to return to his cell. In April 2000, Mr. Sutton beat his
cell mate unconscious because of the stress and was placed in isolation by Defendant
John Doe 2, a case manager, for over a year before he was released on mandatory
parole. Plaintiff was denied access to mental health treatment during that time. After
Mr. Sutton violated parole and was reincarcerated, he repeatedly choked or punched
inmates and was diagnosed with psychosis caused by post-traumatic stress disorder.
In April 2002, while Plaintiff was incarcerated at Centennial Correctional Facility
(CCF) following his parole violation, he told Defendant Moore, a case manager, that he
had received threats from other inmates as a result of his reporting on Harris, but Moore
refused to separate him from those inmates and denied him access to mental health
treatment. Defendant Moore also placed Mr. Sutton in an isolation cell after he attacked
an inmate. Plaintiff remained in the isolation cell until 2008.
In March 2003, while Mr. Sutton was at the Colorado Mental Health Institute in
Pueblo, Colorado, Defendant Richard Pounds diagnosed him with psychosis caused by
post traumatic stress disorder and learned that Plaintiff had planned to commit suicide
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with some razor blades in his possession. However, Pounds returned Plaintiff to the
isolation cell at CCF without providing any mental health treatment.
In November 2010, while Mr. Sutton was incarcerated at Limon Correctional
Facility (LCF), Defendant O’Connor, an LCF case manager, assured Plaintiff that he
would be separated from Harris, who was incarcerated at the same facility, after Plaintiff
told him about his prior history with Harris. However, O’Connor never moved him.
Plaintiff alleges that he was forced to trade sexual acts for protection from Harris.
Defendant O’Connor also denied Plaintiff access to mental health treatment. Defendant
John Doe 3, another LCF case manager, shared an office with Defendant O’Connor and
knew that O’Connor had failed to separate Plaintiff from Harris, but John Doe 3 failed to
take any remedial action.
On March 1, 2011, Defendant John Doe 4, an LCF escort sergeant, escorted
Plaintiff to medical, told Plaintiff to remove his clothing, then “stared at [Plaintiff’s] naked
body and said if [Plaintiff] did not cooperate [his] face would meet the ground.” (ECF
No. 8, at 9).
On October 1, 2011, while Mr. Sutton was incarcerated at BVCF, Defendant
Jane Doe, a case manager, read his file, placed him next to an inmate that Plaintiff had
previously reported as sexually abusing him, moved Plaintiff to an isolation cell, refused
to help him apply for social security income benefits, and did not provide him access to
mental health care.
Plaintiff finally received mental health treatment beginning in October or
November 2014.
For relief, Mr. Sutton requests compensatory and punitive damages.

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II. Statute of Limitations
The events on which Mr. Sutton’s claims are premised occurred between August
1999 and October 2011. Plaintiff initiated this action on April 22, 2015.
The applicable statute of limitations for a § 1983 claim in Colorado is two years.
See Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993). The statute of limitations
begins to run when a claim accrues. Under federal law, a § 1983 claim accrues “when
the plaintiff knows or has reason to know of the injury which is the basis of his action.”
Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006) (internal quotation marks omitted).
Mr. Sutton’s factual allegations demonstrate that he was aware of his injuries when they
occurred.
Although the statute of limitations is an affirmative defense, see Fed. R. Civ. P.
8(c)(1), the court may dismiss a claim sua sponte on the basis of an affirmative defense
if the defense is “obvious from the face of the complaint” and “[n]o further factual record
[is] required to be developed in order for the court to assess the [plaintiff’s] chances of
success.” Yellen v. Cooper, 828 F.2d 1471, 1476 (10th Cir. 1987); see also Fratus v.
DeLand, 49 F.3d 673, 676 (10th Cir. 1995) (stating that dismissal under § 1915 on the
basis of an affirmative defense is permitted “when the claim’s factual backdrop clearly
beckons the defense”).
On May 29, 2015, Magistrate Judge Gordon P. Gallagher entered an Order (ECF
No. 7) directing Plaintiff to show cause why his claims should not be dismissed as
barred by the applicable two-year limitation period.
“[W]hen a federal statute [like § 1983] is deemed to borrow a State’s limitations
period, the State’s tolling rules are ordinarily borrowed as well . . . .” Heimeshoff v.
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Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 616 (2013). Thus, in most § 1983
actions, “a state statute of limitations and the coordinate tolling rules” are “binding rules
of law.” Board of Regents v. Tomanio, 446 U.S. 478, 484 (1980).
In his Response to the Order to Show Cause (ECF No. 9), Mr. Sutton asserts
that the two-year limitation period did not commence until he began to receive treatment
for his serious mental disorder in October/November 2014. Plaintiff relies on
COLO.REV.STAT. (C.R.S.) § 13-81-103 (2014), which provides for the tolling of any
limitations period for the commencement of an action by any person suffering from a
disability, and provides that unrepresented persons with a disability may bring an action
up to two years after the disability terminates. See id. at § 13-81-103(1)(c), C.R.S.
Whether Plaintiff is entitled to invoke the tolling provision in § 13-81-103(1)(c), C.R.S.
cannot be resolved on the face of the Complaint. Accordingly, this action is not subject
to sua sponte dismissal as untimely.
III. Deficiencies in Second Amended Complaint
Mr. Sutton has been directed to amend his original pleading twice. In each
pleading, he has named different Defendants and substantially amended his factual
allegations. However, several deficiencies remain in the Second Amended Complaint.
Because each pleading has improved upon the prior pleading, the Court will allow
Plaintiff one final opportunity to amend in order to state an arguable claim for relief
against the named Defendants.
Plaintiff alleges that Defendants John Doe 2, Moore, O’Connor and Jane Doe
failed to provide him mental health treatment. However, he fails to allege specific facts
to show that the Defendants, who are case managers at different CDCO facilities, were
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responsible for ensuring that he received mental health care, or that the Defendants
actively interfered with his access to mental health care. Mr. Sutton was warned in the
May 29, 2015 Order Directing Plaintiff to File Second Amended Complaint that personal
participation was an essential element 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).
Accordingly, in the Third Amended Complaint, Mr. Sutton must allege specific facts to
show how the case manager Defendants denied him access to health care, in violation
of his Eighth Amendment right to adequate medical care.
Next, Plaintiff alleges that Defendants John Doe 2, Moore, and Jane Doe
placed him in an isolation cell for periods exceeding one year. However, his bare
factual allegations fail to state an arguable claim for deprivation of his Fourteenth
Amendment due process rights.
“[T]he Constitution itself does not give rise to a liberty interest in avoiding transfer
to more adverse conditions of confinement.” Wilkinson v. Austin, 545 U.S. 209, 221,
(2005). State policies or regulations, however, may create a liberty interest in avoiding
particular conditions of confinement when they “‘impose[ ] atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. at 221-23,
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
The court must consider several nondispositive factors in determining whether a

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certain confinement imposes “atypical and significant hardship” (and thus a liberty
interest in avoiding such confinement). Estate of DiMarco v. Wyo. Dep't of Corrs., Div.
of Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007); see also Rezaq v. Nalley, 677 F.3d
1001, 1012 n.5 (10th Cir. 2012). The factors include “whether (1) the segregation
relates to and furthers a legitimate penological interest, such as safety or rehabilitation;
(2) the conditions of placement are extreme; (3) the placement increases the duration of
confinement . . . ; and (4) the placement is indeterminate.” Estate of DiMarco, 473 F.3d
at 1342. “[A]ny assessment [of these factors] must be mindful of the primary
management role of prison officials who should be free from second-guessing or
micro-management from the federal courts.” Id.
In the Third Amended Complaint, Mr. Sutton must allege facts to show that the
conditions of his placement in an isolation cell were more onerous or extreme than the
conditions in general population.
Mr. Sutton’s allegations against Defendant John Doe 4 are vague. Verbal threats
without more, do not violate the Eighth Amendment. See Northington v. Jackson, 973
F.2d 1518, 1524 (10th Cir.1992); see also Alvarez v. Gonzales, No. 05-6129, 155 F.
App'x 393, 396 (10th Cir. Nov. 10, 2005) (unpublished) (“Mere verbal threats or
harassment do not rise to the level of a constitutional violation unless they create ‘terror
of instant and unexpected death.’”) (quoting Northington, 973 F.2d at 1524).
Finally, Mr. Sutton’s remaining allegations against Defendant Jane Doe, a BVCF
case manager, are insufficient to state an arguable deprivation of his constitutional
rights. Plaintiff states that the Defendant “placed him next to one of inmates [he] had
reported sexually abused [him] (ECF No. 8, at 9) before moving him to an isolation cell,

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and denied his requests for assistance in applying for Social Security benefits. Mr.
Sutton’s allegations fail to show that Defendant acted with deliberate indifference to a
serious risk of harm to his safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Moreover, the Constitution is not implicated by a prison official’s refusal to assist an
inmate in applying for Social Security benefits.
IV. Orders
For the reasons discussed above, it is
ORDERED that the May 29, 2015 Order to Show Cause is DISCHARGED. It is
FURTHER ORDERED that within thirty (30) days from the date of this Order,
Mr. Sutton shall file a Third Amended Complaint that complies with the directives in this
Order. It is
FURTHER ORDERED that Mr. Sutton shall obtain a copy of the court-approved
Prisoner Complaint form, along with the applicable instructions, at
www.cod.uscourts.gov and shall use the form in filing a Third Amended Complaint. It is
FURTHER ORDERED that, if Plaintiff fails within the time allowed to file a
Third Amended Complaint that complies with this Order as directed, some or all of this
action may be dismissed without further notice.
DATED July 22, 2015, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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