Magluta v. Federal Bureau of Prisons

Filing 11

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 12/9/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02203-GPG
SALVADOR MAGLUTA,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
CHARLES DANIELS, Warden at U.S.P. Florence,
TERESA NEHLS, Nurse Practitioner, F.C.C. Florence
DAVID ALLRED, Clinical Director, F.C.C. Florence,
LISA McDERMOTT, A.H.S.A., F.C.C. Florence,
F.N.U. SANTINI, F.N.U. ROBERTS,
F.N.U. WISE, and
JOHN DOE, BOP Staff Florence,
Defendants.

ORDER TO AMEND
On October 5, 2015, Plaintiff Salvador Magluta filed a Prisoner Complaint and paid
the $400 filing fee. The Court reviewed the Complaint. On October 7, 2015, the Court
entered an order that determined the Complaint was deficient and directed Plaintiff to
amend the Complaint pursuant to Fed. R. Civ. P. 8. See ECF No. 3. Specifically,
Plaintiff was directed to assert personal participation by each named defendant in the
alleged constitutional violation. Id. at 3. Plaintiff was further 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 he cannot maintain claims against prison officials
or administrators on the basis that they denied his grievances. Id. at 3-4. Plaintiff was
directed to file an amended complaint within thirty days.
On November 4, 2015, counsel entered an appearance on behalf of Plaintiff and
requested an extension of time to amend the Complaint, which was granted.
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Nonetheless, Plaintiff filed an Amended Complaint on November 10, 2015, which he
asked to be stricken if counsel had made an appearance. ECF Nos. 7 and 8. The Court
ordered the November 10 Amended Complaint stricken. Counsel then, on behalf of
Plaintiff, filed an Amended Complaint on December 7, 2015.
Pursuant to 28 U.S.C. ' 1915A and to D.C.COLO.LCivR 8.1(b)(2) and (3), this
Court is required to review the pleadings of a prisoner, when he is challenging prison
conditions and seeking redress from a governmental entity, officer or employee, to
determine if the pleadings should be summarily dismissed. This Complaint suffers from
multiple deficiencies, based upon which the Court will direct Plaintiff to file an Amended
Complaint.
Plaintiff asserts jurisdiction pursuant to Bivens v. Six Unknown Named Agents of
the Fed. Bureau of Narcotics, 403 U.S. 288 (1971), and 28 U.S.C. '' 2201 and 2202.
Plaintiff further states that this action arises under the First and Eighth Amendments and
42 U.S.C. '' 1985 and 1986.
To the extent Plaintiff relies on 42 U.S.C. ' 1985, only subsection (c) of
' 1985 may be applicable. Plaintiff, however, has not alleged how Defendants have

violated the elements of a conspiracy claim pursuant to ' 1985(3). See Tilton v.
Richardson, 6 F.3d 683, 686 (10th Cir. 1993). Section 1985(3) only applies to
conspiracies motivated by some class-based invidiously discriminatory animus. Griffen
v. Breckenridge, 403 U.S. 88, 102 (1971); see also Tilton, 6 F.3d at 686. Plaintiff does
not allege facts showing that he is a member of a statutorily protected class. In as much
as Plaintiff=s allegations asserted pursuant to '1985 are deficient, a reliance on 42 U.S.C.
' 1986 also fails. A claim under ' 1986 is derivative of liability under ' 1985(3). Wright
v. No Skiter Inc., 774 F.2d 422, 426 (10th Cir. 1985).

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The Court also notes that Plaintiff has named the Federal Bureau of Prisons as a
defendant. Plaintiff may not assert a Bivens claim for damages against the BOP. See
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001) (an inmate may bring a Bivens
action against the offending individual officer but not against the officer=s employer).
Furthermore, to the extent Plaintiff is asserting a claim against named defendants in their
official capacity, he is actually asserting a claim against the United States. See Farmer
v. Perrill, 275 F.3d 958, 963 (10th Cir.2001) (A[A]ny action that charges [a federal] official
with wrongdoing while operating in his or her official capacity as a United States agent
operates as a claim against the United States.@); accord Simmat v. U.S. Bureau of
Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005).
The United States cannot be sued without its consent. Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992), and it has not waived
sovereign immunity for itself or its agencies under Bivens for constitutional tort claims.
See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483B86 (1994) (holding
that a Bivens action may not be brought against the United States); see also Correctional
Services Corp. v. Malesko, 534 U.S. 61, 72 (2001) (recognizing that a Aprisoner may not
bring a Bivens claim against the officer=s employer, the United States, or the BOP@).
Furthermore, to the extent Plaintiff is asserting that Defendants conspired to deny
him adequate medical and dental treatment, mere conclusory allegations of conspiracy
with no supporting factual assertions are insufficient. Scott v. Hern , 216 F.3d 897, 907
(10th Cir. 2000) (citations omitted). Pleadings must present specific facts that show
agreement and concerted action by the defendants. Id. Plaintiff fails to present any
specific facts that show agreement and a concerted action.

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Plaintiff is further reminded that 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).
Plaintiff 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). To establish personal participation, Plaintiff must show how each named
defendant 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).
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 Aarising 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 official 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 Bivens suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege and
demonstrate that: A(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.
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Plaintiff also cannot maintain claims against prison officials or administrators on
the basis that they denied his grievances. The Adenial 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 Athe 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
Acorrespondence [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, counsel, on
behalf of Plaintiff, shall file an Amended Complaint that complies with this Order. It is
FURTHER ORDERED that if counsel 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.
DATED December 9, 2015, at Denver, Colorado.
BY THE COURT:

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Gordon P. Gallagher
United States Magistrate Judge

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