Hall v. Shumard et al

Filing 5

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 9/14/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01949-GPG

CARL HALL,
Plaintiff,
v.
SHUMARD, FNU,
JOHN OLIVER, and
FEDERAL BUREAU OF PRISONS, (BOP),
Defendants.

ORDER TO AMEND

Plaintiff Carl Hall, a federal prisoner housed in the State of Colorado, submitted
to the Court pro se a Prisoner Complaint, ECF No. 1, and a Prisoner’s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915, ECF No. 2. T he Court
granted the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915.
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 personal
participation in the violation of his constitutional rights by Defendant John Oliver.
As Plaintiff acknowledges in his Complaint, 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, however,
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

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establish the alleged constitutional deprivation.” Id. at 1199.
Finally, Plaintiff cannot maintain claims against prison officials or 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) (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) (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 Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov to use in
filing the Amended Prisoner Complaint. The Amended Complaint must include all
claims that Plaintiff intends to proceed with in this action. 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 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
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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.
DATED September 14, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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