Muhudin v. Wegener et al

Filing 7

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/10/15. The Clerk shall mail Plaintiff the Prisoner Complaint form (mailed as ordered). (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02441-GPG
AWEYS M. MUHUDIN,
Plaintiff,
v.
FRED WEGENER, Sheriff,
MONTE GORE, Undersheriff, and
DAN MULDOON, Capt., Jail Administrator,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Aweys M. Muhudin, is detained in the Park County Detention Facility in
Fairplay, Colorado. He has filed pro se a Prisoner Complaint on the court-approved form
(ECF No. 5) asserting a deprivation of his constitutional rights pursuant to 42 U.S.C.
§ 1983 and 28 U.S.C. § 1343. Mr. Muhudin has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe Mr. Muhudin’s filings 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 pro se litigants. See Hall, 935 F.2d at 1110. The Court has reviewed the
Prisoner Complaint and has determined that it is deficient. For the reasons discussed
below, Plaintiff will be directed to file an Amended Complaint.

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I. The Complaint
Plaintiff alleges that he is a Sunni Muslim. He states that his religion requires him
to consume only halal meat and that he is forbidden to eat meat from an animal where it is
unknown how the animal was killed. Plaintiff further alleges that the Park County
Detention Center, which is a “D.O.C. [Department of Corrections] hold facility” (ECF No. 5
at 4), does not offer a halal diet, but does offer other religious diets. Mr. Muhudin states,
in his IFP motion, that he request a halal diet when he arrived at the detention facility, but
it was denied on the following grounds: a kosher diet is not approved for Muslim inmates;
the detention facility does not use pork products in their meals; and, Plaintiff could choose
a vegetarian or vegan diet. (ECF No. 4 at 2). Plaintiff asserts that the special diets
available to him do not conform to his religious beliefs. (Id.). Mr. Muhudin claims that
the Defendants have violated the Fourteenth Amendment Equal Protection Clause and
the Eighth Amendment. He requests monetary and injunctive relief.
II. Analysis
The Complaint is deficient because Plaintiff fails to allege specific facts to show
each Defendant’s personal participation in the alleged constitutional violations.
Personal participation is an essential element in a civil rights action. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); 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); 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 exists between the unconstitutional acts
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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 is not subject to liability under § 1983
on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Mr. Muhudin does not state specific facts to show how any of the named
Defendants were personally involved in denying him a halal diet. Plaintiff’s allegation
that Defendant Captain Muldoon said, “You continue to argue with [staff] at every meal
service regarding your dissatisfaction with your religious diet,” does not tend to show that
Defendant Muldoon was personally responsible for the alleged constitutional
deprivations. Plaintiff will be afforded an opportunity to file an Amended Prisoner
Complaint to cure the defect in his pleading.
Furthermore, construing the Prisoner Complaint liberally, it appears that Mr.
Muhudin may be attempting to asserts a claim based on the deprivation of his First
Amendment free exercise rights, or the Religious Land Use and institutionalized Persons
Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5, instead of the Eighth Amendment.
If so, Plaintiff should expressly assert the claim (s) in the Amended Prisoner Complaint
and set forth all relevant facts to support a claim for relief. Accordingly, it is
ORDERED that Plaintiff, Aweys M. Muhudin, file within thirty (30) days from the
date of this order, an Amended Prisoner Complaint, on the Court-approved Prisoner
Complaint form, that complies with the directives in this order. It is
FURTHER ORDERED that the Clerk of the Court shall mail to Plaintiff, at the Park
County Detention Facility, a copy of the court-approved Prisoner Complaint form. It is

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FURTHER ORDERED that, if Mr. Muhudin fails to file an Amended Prisoner
Complaint on the Court-approved within the time allowed, some or all of this action may
be dismissed without further notice.
DATED December 14, 2015, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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