Hall v. Shumard et al

Filing 6

ORDER TO DRAW IN PART AND TO DISMISS IN PART by Judge Christine M. Arguello on 11/4/15. Defendants Federal Bureau of Prisons and John Oliver are dismissed. (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,
Defendants.

ORDER TO DRAW IN PART AND TO DISMISS IN PART

Plaintiff Carl Hall is in the custody of the Federal Bureau of Prisons (Bureau) and
currently is incarcerated at ADMAX in Florence, Colorado. Plaintiff initiated this action
by filing pro se a Prisoner Complaint alleging deprivations of his constitutional rights
pursuant to28 U.S.C. ' 1331 and Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971). Plaintiff also has filed a Prisoner=s Motion and
Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 that has been granted.
On September 14, 2015, Magistrate Judge Gordon P. Gallagher directed Plaintiff
to amend the Complaint and state how each responsible defendant participated in any
alleged constitutional violations. Plaintiff was instructed that a defendant may not be
held liable for the unconstitutional conduct of his or her subordinates on a theory of
respondeat superior and that, to state a claim against a government official for conduct
that arises out of supervisory responsibilities, Plaintiff must assert that the official is

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responsible for creating, implementing, or the continued operation of a policy and that the
official caused a harm and acted with the state of mind required to establish the alleged
deprivation. Furthermore, Plaintiff was instructed that he cannot maintain a claim
against prison officials or administrators on the basis that they denied his grievances.
Plaintiff also was told that if he failed to amend within the time allowed the Court would
dismiss the Complaint in part and proceed with only the properly asserted claims in the
original Complaint. Plaintiff now has not amended within the time allowed. Accordingly,
the Court has proceeded to review the merits of the original Prisoner Complaint filed on
September 8, 2015.
Plaintiff asserts this action pursuant to 28 U.S.C. '1331 and Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the
Bureau and two Bureau employees. Plaintiff asserts that Defendant Shumard used
excessive force against him on August 28, 2014, which resulted in serious physical injury.
Plaintiff seeks compensatory damages against Defendant John Oliver, punitive damages
against Defendant Shumard, and preliminary and permanent injunctive relief against
Defendant Federal Bureau of Prisons. Specifically, Plaintiff seeks an investigation,
placement in protective custody, and a directive for Defendant Shumard to stop using
excessive force against him.
Because Plaintiff has been granted leave to proceed pursuant to the in forma
pauperis statute, 28 U.S.C. ' 1915, under ' 1915(e)(2)(B)(i), the Court must dismiss the
action or any claims if the 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.
See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).

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For the reasons stated below, the Complaint and action will be dismissed in part as
legally frivolous.
ABivens claims allow plaintiffs to recover from individual federal agents for
constitutional violations these agents commit against plaintiffs.@ Robbins v. Wilkie, 300
F.3d 1208, 1211 (10th Cir. 2002); see also Correctional Services Corporation v. Malesko,
534 U.S. 61, 66 (2001) (in Bivens, the Supreme Court recognized Aan implied private right
of action for damages against federal officers alleged to have violated a citizen=s
constitutional rights@). Bivens actions may only be brought against federal employees in
their individual capacities, not against the United States or its employees sued in their
official capacities. See Malesko, 534 U.S. at 72 (AIf a federal prisoner in a BOP facility
alleges a constitutional deprivation, he may bring a Bivens claim against the offending
individual officer, subject to the defense of qualified immunity. . . . The prisoner may not
bring a Bivens claim against the officer=s employer, the United States, or the BOP.@);
Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005) (Aa Bivens claim
lies against the federal official in his individual capacity C not . . . against officials in their
official capacity@). The claims asserted against Defendant Shumard, therefore, will be
drawn to a presiding judge and when applicable to a magistrate judge.
The remaining Defendants, Oliver and Federal Bureau of Prisons, will be
dismissed for the following reasons.
A Bivens remedy has never been considered a proper vehicle for altering an
entity=s policy, unlike injunctive relief, which Ahas long been recognized as the proper
means for preventing entities from acting unconstitutionally.@ Correctional Services
Corp. v. Malesko, 534 U.S. 61, 74 (2001). Nonetheless, a request for injunctive relief
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against Bureau subordinate officials is not construed as a suit against the Bureau
because an injunction against the named individuals would not be granted against the
BOP. See Jordan v. Sosa, 654 F.3d 1012, 1031 (10th Cir. 2011). The Bureau,
therefore, will be dismissed.
Finally, Plaintiff fails to state specific facts that demonstrate Defendant Oliver
personally participated in the asserted constitutional violations. Plaintiff was told in the
September 14, 2015 Order to Amend that the denial of a grievance without any
connection to the violation of a constitutional right alleged by a plaintiff does not establish
personal participation, ECF No. 5 at 3, and a supervisor may not be held liable for the
unconstitutional conduct of his or her subordinates, id. at 2. Therefore, Plaintiff=s claims
for damages against Defendant Oliver pursuant to Bivens will be dismissed.
Accordingly, it is
ORDERED that Defendants Federal Bureau of Prisons and John Oliver will be
dismissed from the action because the claims for relief asserted against them are legally
frivolous pursuant to 28 U.S.C. ' 1915(e)(2)(B)(i). It is
FURTHER ORDERED that the claims asserted against Defendant Shumard shall
be drawn to a presiding judge and when applicable to a magistrate judge.
DATED at Denver, Colorado, this 4th day of November, 2015.
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge, for
LEWIS T. BABCOCK, Senior Judge
United States District Court

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