White v. Kautz et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 10/26/15. (dkals, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02338-GPG
GEORGE WHITE,
Plaintiff,
v.
TRISHA KAUTZ P.A. (19957),
JAMIE SOUCIE (12620),
JOHN CHAPDELAINE,
JOHN W. HICKENLOOPER,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, George White, is a prisoner in the custody of the Colorado Department
of Corrections, currently incarcerated at the Sterling Correctional Facility. Mr. White has
filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983. Mr. White
has been granted leave to proceed in forma pauperis. (ECF No. 4).
The Court must construe Mr. White’s Prisoner 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
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Mr. White will be ordered to file an amended Prisoner Complaint if he wishes to
pursue his claims in this action.

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Under § 1983, a plaintiff must allege that the defendants have violated his or her
rights under the Constitution and laws of the United States while they acted under color
of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970). Plaintiff asserts
three claims against the Defendants: (1) “Eight [sic] Amendment Right and U.S.
Constitutional Violations” ; (2) Deliberate Indifference; and (3) Medical Malpractice.
Plaintiff seeks injunctive relief and money damages.
Plaintiff alleges that Defendants deprived him of adequate medical care by
refusing to provide a necessary surgery for his severe spinal condition. As a result of
being denied the surgery, he alleges he suffered a stroke.
Initially, it appears that Plaintiff’s second claim, of “Deliberate Indifference,” is
actually part of his first claim of an Eighth Amendment violation based on Defendants
depriving him of adequate medical care. To state an Eighth Amendment violation in the
context of medical treatment, an inmate must demonstrate two elements: (1) he was
suffering from a “serious medical need,” and (2) prison officials were deliberately
indifferent to the serious medical need. Gamble v. Estelle, 439 U.S. 97 (1978).
Accordingly, the factual allegations included in Plaintiff’s “deliberate indifference” claim
should be included in Plaintiff’s first claim alleging an Eighth Amendment violation
based on a deprivation of adequate medical care.
Next, Plaintiff’s third claim of “medical malpractice” is a state law tort claim, not a
federal or constitutional right claim cognizable under § 1983. The Tenth Circuit
conclusively determined that "medical malpractice is not compensable under § 1983
because inadvertent failure to provide adequate medical care or negligence in
diagnosing or treating a medical condition does not violate the Eighth Amendment."

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Braxton v. Wyandotte County Sheriff's Dep't, 206 Fed. Appx. 791, 793 (10th Cir. 2006).
Additionally, "medical malpractice does not become a constitutional violation merely
because the victim is a prisoner." Estelle, 429 U.S. at 106. Any claim based on medical
malpractice should be brought in the appropriate state form.
Additionally, Plaintiff does not clearly identify the Defendants. There are four
Defendants listed on the caption page of the complaint, but in the “Parties” section of
the complaint, there are five Defendants listed. It is Mr. White’s responsibility, not the
Court’s or Defendants’, to make clear who is being sued. In the amended Prisoner
Complaint, Mr. White should list the same defendants on the caption page as those
listed in the section titled “Parties.” Mr. White is also reminded that claims based on
§ 1983 must be against a “person,” not a business or company.
Further, Plaintiff fails to allege specific facts in support of the Eighth Amendment
claim that demonstrate how each named Defendant personally participated in the
asserted constitutional violation. See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir.
2011) (allegations of “personal participation in the specific constitutional violation
complained of [are] essential”). To establish personal participation, 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).
Furthermore, to the extent Plaintiff is naming supervisory officials as defendants,
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). Rather,

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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 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 § 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.
Therefore, Plaintiff will be ordered to file an amended complaint. Plaintiff should
clearly identify the Defendants and the § 1983 claims asserted, and name as
Defendants only those persons he contends actually violated his federal constitutional
rights. Plaintiff “must explain what each defendant did to him or her; when the
defendant did it; how the defendant’s action harmed him or her; and, what specific legal
right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). 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),

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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 review the
merits of the original Complaint and some of the claims and defendants may be
dismissed without further notice.
DATED October 26, 2015, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge