Phillips v. Institution of USP Florence et al

Filing 11

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 8/20/15. Defendants Institution USP Florence and Warden Cozza-Rhodes are dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01121-GPG
DARRELL PHILLIPS,
Plaintiff,
v.
INSTITUTION USP FLORENCE,
WARDEN COZZA-RHODES,
ASSISTANT WARDEN KLEIN,
CAPTAIN ERWIN, and
OFFICER WORKING EA,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff, Darrell Phillips, is in the custody of the Federal Bureau of Prisons and is
incarcerated at the United States Penitentiary, Florence High, in Florence, Colorado.
Mr. Phillips filed an original Prisoner Complaint (ECF No. 7) asserting a deprivation of
his constitutional rights pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
On July 23, 2015, Magistrate Judge Gordon P. Gallagher reviewed the Complaint
and determined that it was deficient because it did not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and the allegations failed
to allege the personal participation of the named Defendants in a deprivation of
Plaintiff’s constitutional rights. Magistrate Judge Gordon directed Plaintiff to file an
amended complaint within thirty days of the July 23 Order. On August 13, 2015, Mr.
Phillips filed an Amended Prisoner Complaint (ECF No. 10).

Mr. Phillips has been granted leave to proceed pursuant to the in forma pauperis
statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the
action if Mr. Phillips’ claims are frivolous or malicious. A legally frivolous claim is one in
which the plaintiff asserts the violation of a legal interest that clearly does not exist or
asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S.
319, 327-28 (1989). Subsection (e)(2)(B)(iii) of § 1915 requires a court to dismiss at
any time an action that seeks monetary relief against a defendant who is immune from
such relief.
The Court must construe the Amended Complaint liberally because Mr. Phillips 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 pro se litigants. See Hall, 935 F.2d at 1110. For the reasons
stated below, the Court will dismiss this action, in part, and draw the remainder to a
presiding judge and, if appropriate, to a magistrate judge.
Mr. Phillips alleges in the Amended Complaint that Defendants violated his
Eighth Amendment prisoner rights by failing to protect him from an assault by other
inmates. In support of his claims, Mr. Phillips alleges that on the morning of May 20,
2015, Defendant Officer Working EA permitted seven inmates from another housing unit
to enter housing unit EA without passing through the metal detector, enter Mr. Phillips’
cell, and “did nothing to stop” the inmates from assaulting Mr. Phillips and his cell mate.
(ECF No. 10 at 4). He further alleges that Defendants Assistant Warden Klein and
Captain Erwin as well as “several other staff” were watching the camera monitors and
did not take any action after they witnessed the seven inmates wrongfully enter Mr.
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Phillips’ cell. (Id. at 6, 8). Finally, Mr. Phillips asserts that Defendants “refused to
inforce [sic] the rules and procedures” and that “prison officials are expected to know
the constitutional rights of prisoners.” (Id. at 8-9).
“[P]rison officials have a duty [under the Eighth Amendment] to protect prisoners
from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994) (quotations omitted); see also Berry v. City of Muskogee, Okl., 900 F.2d 1489
(10th Cir. 1990) (prisoner entitled to reasonable protection against assault by another
inmate). Moreover, a prison official must know of and disregard an excessive risk to an
inmate’s health and safety. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).
Finally, the prison official must be deliberately indifferent to an inmate’s safety; negligent
failure to protect an inmate from assaults by other inmates is not actionable under the
Eighth Amendment. Farmer, 511 U.S. at 834-35. Plaintiff’s allegations are liberally
construed as attempting to state an Eighth Amendment deliberate indifference claim
against Defendants.
Mr. Phillips, however, does not allege specific facts to show that Defendants
Institution USP Florence and Warden Cozza-Rhodes personally participated in the
alleged Eighth Amendment violation. Mr. Phillips was warned in the July 23 Order that
personal participation is an essential allegation in a civil rights action. See Henry v.
Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). 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); see also Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir.
2010) (“[D]efendant-supervisors may be liable under § 1983 where an ‘affirmative’ link
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exists between the unconstitutional acts by their subordinates and their ‘adoption of any
plan or policy. . .–express or otherwise–showing their authorization or approval of such
‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A supervisor
defendant may not be held liable for the unconstitutional conduct of his subordinates on
a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Mr. Phillips cannot maintain his claims against Defendants Institution USP
Florence and Warden Cozza-Rhodes, solely on the basis that Defendants “refused to
inforce [sic] the rules and procedures” and that “prison officials are expected to know
the constitutional rights of prisoners.” Mr. Phillips does not allege facts to show that
Defendants Institution USP Florence and Warden Cozza-Rhodes were involved directly
in the alleged Eighth Amendment violation by acting with deliberate indifference to a
serious risk of harm to Plaintiff’s safety. See Farmer, 511 U.S. at 834. Moreover,
Plaintiff’s vague and conclusory assertions are insufficient to state an arguable claim for
relief. See Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (vague and
conclusory allegations are not actionable under § 1983); Hall, 935 F.2d at 1110 (vague
and conclusory allegations need not be accepted by the court). Because Plaintiff does
not allege specific factual allegations against Defendants Institution USP Florence and
Warden Cozza-Rhodes in any of his claims for relief, these two Defendants will be
dismissed.
After review pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that
Mr. Phillips’ Eighth Amendment claims against Defendants Assistant Warden Klein,
Captain Erwin, and Officer Working EA do not appear to be appropriate for summary
dismissal and that the case should be drawn to a presiding judge, and, if appropriate, to
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a magistrate judge. See D.C.COLO.LCivR 8.1(c). Accordingly, it is
ORDERED that Plaintiff’s claims against Defendants Institution USP Florence
and Warden Cozza-Rhodes are DISMISSED as legally frivolous and Defendants
Institution USP Florence and Warden Cozza-Rhodes are DISMISSED as parties from
this action. It is
FURTHER ORDERED that Plaintiff’s claims against Defendants Assistant
Warden Klein, Captain Erwin, and Officer Working EA shall be drawn to a presiding
judge and, if appropriate, to a magistrate judge, pursuant to D.C.COLO.LCivR 40.1(a).
DATED at Denver, Colorado, this

20th day of

August

, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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