Sutton v. USA et al

Filing 7

ORDER DIRECTING PLAINTIFF TO SHOW CAUSE AND TO FILE SECOND AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 5/29/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00850-GPG
JOSHUA LAMONT SUTTON,
Plaintiff,
v.
DAVID HARRIS,
CHRISTIPHER ASHLEY,
ANDREA NICHOLS, and
SEVERAL UNKNOWN CDOC EMPLOYEES,
Defendants.

ORDER DIRECTING PLAINTIFF TO SHOW CAUSE
AND TO FILE SECOND 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 an Amended Complaint (ECF No. 6) pursuant to
42 U.S.C. § 1983 asserting violations of his constitutional rights from 1999 to the
present. Mr. Sutton seeks damages and declaratory relief.
The court must construe the 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 (10 th 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 ordered to show cause why claims one, two and three
asserted in the Amended Complaint should not be dismissed as untimely. Mr. Sutton

will also be directed to file a Second Amended Complaint.

I. Order to Show Cause
Mr. Sutton asserts four claims for relief in the Amended Complaint. Claims one
and two are based on assaults by other inmates that occurred in August 1999 and
January 2011, respectively. (ECF No. 6, at 5). In claim three, Mr. Sutton asserts an
Eighth Amendment claim based on the following facts: failing to protect him from
assaults by other inmates; repeatedly housing him in solitary confinement; and
releasing him from prison twice without helping him secure social security benefits for
his mental disorders. (Id. at 7). All of these events are alleged to have occurred on or
before October 2011. (See generally id. at 4-5, 7).
The statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c)(1).
However, 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 (10 th Cir.
1987); see also Fratus v. DeLand, 49 F.3d 673, 676 (10 th 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”).
The applicable statute of limitations for a § 1983 claim in Colorado is two years.
See Blake v. Dickason, 997 F.2d 749, 750-51 (10 th Cir. 1993). The statute of limitations
begins to run when a claim accrues. Under federal law, a § 1983 claim accrues “when

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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 (10 th Cir. 2006) (internal quotation marks omitted).
The events on which Mr. Sutton’s first, second and third claims are premised
occurred between August 1999 and October 2011. In addition, Mr. Sutton alleg es
facts that demonstrate he was aware of his injuries when they occurred. Therefore,
because the original Complaint in this action was not filed until April 22, 2015, the
running of the statute of limitations is obvious from the face of the Amended Complaint.
“[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.
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).
The State of Colorado recognizes the doctrine of equitable tolling to suspend a
statute of limitations period “when flexibility is required to accomplish the goals of
justice.” Morrison v. Goff, 91 P.3d 1050, 1053 (Colo. 2004) (internal quotation marks
omitted). For example, equitable tolling of a statute of limitations is appropriate when
“plaintiffs did not timely file their claims because of ‘extraordinary circumstances’ or
because defendants’ wrongful conduct prevented them from doing so.” Id. However,
“when the dates given in the complaint make clear that the right sued upon has been
extinguished, the plaintiff has the burden of establishing a factual basis for tolling the
statute.” Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.
1980).

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Mr. Sutton does not allege any facts to suggest that the applicable statute of
limitations should be tolled as a matter of equity or for any other reason. Therefore, Mr.
Sutton will be ordered to show cause why claims one, two and three of the Prisoner
Complaint should not be dismissed as untimely.
II. Order to Amend West
A. Claims One and Two
Even if claims one and two are not time-barred, they are asserted against private
individuals who are inmates at the Centennial Valley Correctional Facility, Defendants
Harris and Ashley. (ECF No. 6, at 3).
Under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a right secured
by the Constitution and laws of the United States” by a person acting under color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988). “The purpose of this requirement is
to assure that constitutional standards are invoked only when it can be said that the
State is responsible for the specific conduct of which the plaintiff complains.” Blum v.
Yaretsky, 457 U.S. 991 (1982). “The traditional definition of acting under color of state
law requires that the defendant in a § 1983 action have exercised power possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law.” West, 487 U.S. at 49 (internal quotation marks omitted).
Private persons may be said to act “‘under color of’ state law” if they are “jointly
engaged with state officials in the challenged action.” Dennis v. Sparks, 449 U.S. 24,
27-28 (1980). However, Ҥ 1983 excludes from its reach merely private conduct, no
matter how discriminatory or wrongful.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,

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50 (1999); see also Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009).
The Amended Complaint is deficient because Mr. Sutton does not allege any
facts to demonstrate that the assaults by Defendants Harris and Ashley were fairly
attributable to the state.
B. Claim Three
To the extent claim three is not time-barred, Applicant fails to allege the personal
participation of any CDOC employee in an alleged deprivation of his Eighth Amendment
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. 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.”).

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Mr. Sutton may sue unknown CDOC employees as John and Jane Doe
Defendants if he does not know the real names of the individuals who allegedly violated
his rights. However, if Plaintiff uses fictitious names he must nonetheless allege facts
to show each unknown defendant’s personal participation in the alleged constitutional
deprivations and provide sufficient information so that the defendant can be identified
for purposes of service.
C. Claim Four
In claim four, Mr. Sutton alleges that from November 2014 to the present,
Defendant Nichols, a CDOC employee, has “repeatedly refused to allow me to read any
part of the Social Security Act, and or do my treatment needs.” (ECF No. 6, at 7).
Claim four as pleaded is deficient because the assertions against Defendant
Nichols are conclusory and fail to show the Defendant’s personal participation in a
violation of Plaintiff’s constitutional rights. See Swoboda v. Dubach, 992 F.2d 286,
289-90 (10th Cir.1993) (vague, conclusory allegations are insufficient to form the basis
for a § 1983 cause of action); Hall, 935 F.2d at 1110 (same); Ketchum v. Cruz, 775
F.Supp. 1399, 1403 (D. Colo. 1991), aff’d 961 F.2d 916 (10th Cir. 1992) (same).
III. Orders
For the reasons discussed above, it is
ORDERED that Mr. Sutton show cause in writing within thirty (30) days from
the date of this order why claims one, two and three of the Amended Complaint
should not be dismissed as barred by the applicable statute of limitations. It is
FURTHER ORDERED that if Mr. Sutton fails to show good cause within the time

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allowed the action will be dismissed without further notice. It is
FURTHER ORDERED that within thirty (30) days from the date of this Order,
Mr. Sutton shall file a Second 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 Second Amended Complaint. It
is
FURTHER ORDERED that, if Plaintiff fails within the time allowed to file a
Second Amended Complaint that complies with this Order as directed, the action may
be dismissed without further notice.
DATED May 29, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

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