Houck v. No Named Defendants

Filing 19

ORDER to Amend by Magistrate Judge Gordon P. Gallagher on 6/2/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00894-GPG
KENNETH HOUCK,
Plaintiff,
v.
WARDEN DEBORAH DENHAM,
DR. THOMAS KRAUS, Clinical Director,
KRISTEN KRUEGER (FORMERLY LONG), Sex Offender Treatment Specialist, and
EVA MAKANOWSKI,
Defendants.
ORDER TO AMEND

Pursuant to the Court’s April 28, 2015 Order to Cure Def iciencies, Plaintiff, a
federal prisoner housed in the State of Colorado, has now submitted to the Court pro se
a Prisoner Complaint, ECF No. 18, and a Prisoner’s Motion and Af fidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915, ECF No. 10. T he Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 has been g ranted.
The Court must construe Plaintiff’s Complaint liberally because he 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 act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Plaintiff will be
directed to file an Amended Complaint for the reasons stated below.
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). Plaintif f also is required to 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). T o 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). Plaintif f has failed to assert claims against
Defendants Eva Makanowski and Kristen Krueger.
Also, 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). 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.
Furthermore, Plaintiff cannot maintain claims against prison officials or
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administrators on the basis that they denied his grievances. The “denial of a grievance,
by itself without any connection to the violation of constitutional rights alleged by
plaintiff, does not establish personal participation under § 1983.” Gallagher v. Shelton,
587 F.3d 1063, 1069 (10th Cir. 2009); 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”). Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall
file an Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Complaint
form, 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 file an Amended Complaint that
complies with this Order, within the time allowed, the Court will proceed to dismiss the
Complaint in part based on the above findings and proceed with addressing the merits
of only the properly asserted claims that remain. It is
FURTHER ORDERED that the only proper filing at this time is an Amended
Complaint that complies with this Order and is submitted on a properly completed
Prisoner Complaint form.
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DATED June 2, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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