Coppage v. Hagens et al
Filing
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ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/8/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02527-GPG
DAVON COPPAGE,
Plaintiff,
v.
C.HAGENS, Officer,
FNU YENTER, Officer,
T.K. COZZA-RHODES, and
FEDERAL BUREAU OF PRISONS,
Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT
Plaintiff, Davon Coppage, is in the custody of the Federal Bureau of Prisons at the
United States Penitentiary, in Florence, Colorado. He has filed, pro se, a Prisoner
Complaint alleging deprivations of his constitutional rights pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and 28 U.S.C.
§ 1331. Mr. Coppage has been granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Mr. Coppage 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
complaint and has determined that it is deficient. For the reasons discussed below,
Plaintiff will be directed to file an amended complaint.
I. The Complaint
Mr. Coppage asserts in the Complaint that on October 31, 2015, staff responded to
a fire in his cell, placing Plaintiff and his cell mate in hand restraints. The cell mate was
removed immediately, while Plaintiff was left in the smoke-infused cell for approximately
thirty minutes. Plaintiff told Defendant Yenter that he was having trouble breathing, but
Yenter did not respond. Mr. Coppage was eventually escorted to medical. Plaintiff
alleges that during the escort to medical, Defendant Hagens approached him and
threatened him verbally with physical injury. After Plaintiff was seen by medical,
Defendant Yenter escorted him back to his cell. On the way, Defendant Hagens
continued to make verbal taunts to Plaintiff and Defendant Yenter pushed Plaintiff into
Defendant Hagens. According to Mr. Coppage, Defendant Yenter then “slam[med]”
Plaintiff on the ground and Defendant Hagans “slam[med]” Plaintiff’s head into the
ground, causing a “nasty bruise” on the left side of his face, as well as a bruised shoulder.
(ECF No. 1 at 9). Plaintiff states that following the incident, his head hurt for several
days, he suffered pain in his jaw and neck, and a broken tooth. He further alleges that
during the assault, the Defendants called him a “fu—ing nigger,” (id.), and that after the
assault Defendant Hagens said: “If you file on me for this I will kill you nigger.” (Id. at 7).
Mr. Coppage alleges in the Complaint that Defendant T.K. Cozza-Rhodes, the
USP-Florence Warden, supervises prison guards on the use of force against inmates and
that she “directed staff to use force more frequently on black inmates than white and to
specifically target inmates who filed grievances or lawsuits which I was [ ] a[ ] black
prisoner in the process of doing with Jeremy Pinson who the Warden called the ‘jailhouse
lawyer from hell.’” (Id. at 4). Plaintiff alleges that the assault occurred after he “filed on
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[the Warden].”
Mr. Coppage asserts that the Defendants violated his Eighth Amendment right to
be free excessive force, violated his Fourteenth Amendment equal protection rights
because the assault was racially-motivated, and that Defendants retaliated against him
for exercising his First Amendment right of access to the courts. He seeks damages and
an injunction prohibiting BOP employees from using excessive force against
USP-Florence inmates.
II. Analysis
A. Sovereign Immunity
Mr. Coppage’s claim for damages against the Federal Bureau of Prisons is barred
by the doctrine of sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. 471, 475, 485-86
(1994) (AAbsent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit@ and the federal government has not waived its immunity for Bivens
actions). However, Plaintiff may pursue a claim for injunctive relief against the Bureau.
When a plaintiff alleges a claim under 5 U.S.C. § 702, sovereign immunity no longer bars
suit because § 702 provides a limited waiver of immunity for claims “other than money
damages.” See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1238-39 (10th
Cir.2005) (finding that the Bureau of Prisons is an agency subject to the waiver of
sovereign immunity in § 702, and therefore sovereign immunity did not bar prisoner's
Eighth Amendment claim for denying dental care).
B. Unlawful Retaliation
Plaintiff claims that the assault was in retaliation for exercising his First
Amendment right of access to the courts (filing a grievance or a lawsuit).
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“It is well-settled that prison officials may not retaliate against or harass an inmate
because of the inmate's exercise of his right of access to the courts.” Gee v. Pacheco,
627 F.3d 1178, 1189 (10th Cir. 2010) (internal quotation marks and brackets omitted).
Filing a prison grievance qualifies as “constitutionally protected activity” under the First
Amendment. Id. To state an arguable claim of unlawful retaliation for exercising his
First Amendment rights, Plaintiff must allege facts to satisfy the following elements: (1) he
was engaged in constitutionally protected activity; (2) the government's actions caused
him injury that would chill a person of ordinary firmness from continuing to engage in that
activity; and (3) the government's actions were substantially motivated as a response to
his constitutionally protected conduct. Nielander v. Bd. of Cnty. Comm'rs of Cnty. of
Republic, 582 F.3d 1155, 1165 (10th Cir. 2009); see also Allen v. Corrections Corp. of
America, No. 12-1241, 524 F. App’x 460, 463 (10th Cir. 2013) (unpublished).
Mr. Coppage’s retaliation claim falters on the third element. Although Plaintiff
makes a conclusory allegation that he was assaulted because he filed a grievance or
lawsuit, he does not allege specific facts about the nature of the grievance or lawsuit and
when it was filed, nor does he allege facts to show that the alleged assault was motivated
by his protected conduct. Plaintiff will be afforded an opportunity to file an amended
complaint to state an arguable claim of unconstitutional retaliation.
C. Personal Participation of the Warden
The Complaint is also deficient because Mr. Coppage does not allege facts to
show that Defendant Cozza-Rhodes, the USP-Florence Warden, personally participated
in the alleged constitutional violations. Personal participation is an essential allegation in
a civil rights action. See Kite v. Kelly, 546 F.2d 334, 338 (1976); Kentucky v. Graham, 473
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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 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, such as Warden Cozza Rhodes, may not be held liable for the unconstitutional
conduct of her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009). This is because Ҥ 1983 does not recognize a concept of strict
supervisor liability; the defendant’s role must be more than one of abstract authority over
individuals who actually committed a constitutional violation.” Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008). Conclusory allegations that unconstitutional conduct
occurred because of a policy implemented by a supervisor are insufficient. See Iqbal,
556 U.S. at 680-81.
Mr. Coppage’s allegations that the Warden executed a policy directing staff to sue
force more frequently on African-American inmates and to target inmates who file
grievances or lawsuits, are factually insufficient to demonstrate Defendant
Cozza-Rhodes’ personal participation in the alleged violations of Plaintiff’s Eighth and
Fourteenth Amendment rights, or in unconstitutional retaliation. Mr. Coppage will be
afforded an opportunity to file an amended complaint to state an arguable claim for relief
against Defendant Cozza-Rhodes. Accordingly, it is
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ORDERED that Plaintiff, Davon Coppage, file within thirty (30) days from the
date of this order, an Amended Complaint that addresses the deficiencies in the original
Complaint, as discussed in this order. It is
FURTHER ORDERED that Mr. Coppage shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov, and shall use that form
in filing the Amended Complaint. It is
FURTHER ORDERED that if Mr. Coppage fails to file an Amended Complaint that
complies with this order within the time allowed, the Court will review the allegations of the
original Complaint and some or all of this action may be dismissed without further notice,
for the reasons discussed above.
DATED December 8, 2015, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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