James v. Robb et al

Filing 11

ORDER TO DISMISS IN PART AND DRAW by Judge Lewis T. Babcock on 3/17/16. Defendants BOP, Anthony, Morris, and Earwin are dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02700-GPG
RASHOD JAMES,
Plaintiff,
v.
J. ROBB;
N. HAMAKER;
M. ANTHONY;
J. ARMIJO,
K. MORRIS;
PAUL ZOHN,
ERIC EARWIN;
FEDERAL BUREAU OF PRISONS,
Defendants.

ORDER TO DISMISS IN PART AND DRAW

Plaintiff, Rashod James, is a federal prisoner in the custody of the Federal
Bureau of Prisons (BOP). He currently is confined at the Florence High Penitentiary in
Florence, Colorado.

Mr. James has filed pro se an Amended Prisoner Complaint

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971) claiming his rights under the United States Constitution were violated.
(ECF No. 10).
Mr. James has been granted leave to proceed in forma pauperis. (ECF No. 4).
Therefore, the Court must dismiss the action if Mr. James’ claims are frivolous. See 28
U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one in which the plaintiff asserts
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the violation of a legal interest that clearly does not exist or asserts facts that do not
support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). The
Court will dismiss the action in part as legally frivolous.
The Court must construe the Amended Complaint liberally because Plaintiff 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
I.

Amended Complaint
In his Amended Complaint, Plaintiff alleges three claims based on Eighth

Amendment violations: (1) excessive force; (2) deliberate indifference to medical needs;
and (3) being labeled a “snitch.” He seeks damages and injunctive relief.
A. Claim One: Excessive Force
Plaintiff alleges that on or about October 21, 2015, he cut his wrists and asked to
see Defendant Zohn, the prison psychologist, due to suicidal urges.

On or about

October 22, 2015, Plaintiff’s cellmate set a fire in the cell, which caused Plaintiff to
inhale a lot of smoke.

After 30 minutes, Defendants Hamaker and Armijo placed

Plaintiff in the SHU recreation yard, where Plaintiff climbed 15 feet in the air with a
noose around his neck and asked to see Zohn for an assessment. Hamaker and Armijo
returned 2 hours later and told Plaintiff that “Zohn really doesn’t care.”

Armijo

summoned a use of force team to extract Plaintiff from the recreation yard and return
him to his cell.

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Later, Plaintiff alleges “they” returned to supply a mattress and upon entering the
cell they began striking Plaintiff with closed fists in the head and body causing a mild
concussion and bruises all over his body. Plaintiff remained in pain for 10 days.
Approximately a week later, on or about October 29, 2015, Plaintiff knelt in his
food port and asked Defendant Robb to see Internal Affairs to report the assault by
prison officials on October 22nd and, in response, Defendant Robb sprayed the Plaintiff
in the eyes with OC (pepper) spray and walked away. Plaintiff suffered severe pain.
Mr. James was warned in the Court’s previous Order that in order to state a claim
in federal court, he "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." (ECF No. 9 (citing Nasious v. Two
Unknown B.I.C.E. Agents, 492

F.3d 1158, 1163 (10th Cir. 2007)).

Despite this

instruction, the Amended Complaint fails to identify the prison official Plaintiff
complained to on or about October 21, 2015 after he cut his wrists and asked for
medical care. Likewise, when Mr. James alleges that “they” returned to his cell and
began striking him with closed fists, he never specifies who “they” are. As a result of
the failure to allege personal participation by any Defendants in those allegations, those
claims of alleged excessive force will be dismissed.
Mr. James’ also alleges that when he knelt into his food port and asked
Defendant Robb to see Internal Affairs to report an instance of alleged excessive force,
Defendant Robb sprayed him in the eyes with OC (pepper) spray and walked away. Mr.
James’ claim based on these factual allegations will be drawn to a presiding judge and,
if applicable, a magistrate judge.
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B. Claim Two: Deliberate Indifference to Medical Needs
Plaintiff alleges in claim two that following the events on October 22, 2015 and
October 29, 2015, Plaintiff asked Defendants Hamaker, Armijo, Robb, Anthony, Morris,
and Earwin for medical treatment. Plaintiff asked for medical treatment for seven
straight days. Each defendant refused to call or notify medical staff. As a result,
Plaintiff did not receive any medical aid.
An inmate's claim of inadequate or delayed medical care amounts to an Eighth
Amendment violation if the inmate shows "acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 106. An
Eighth Amendment claim involves "a two-pronged inquiry, comprised of an objective
component and a subjective component." Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.
2006). "Under the objective inquiry, the alleged deprivation must be sufficiently serious
to constitute a deprivation of constitutional dimension." Self, 439 F.3d at 1230 (internal
quotation marks and citation omitted). The substantial harm requirement “may be
satisfied by lifelong handicap, permanent loss, or considerable pain.” Garrett v.
Stratman, 254 F.3d 946, 950 (10th Cir.2001).
To meet the subjective component of an Eighth Amendment claim, a plaintiff
must establish the defendant "knew he faced a substantial risk of harm and disregarded
that risk, 'by failing to take reasonable measures to abate it.'" Hunt v. Uphoff, 199 F.3d
1220, 1224 (10th Cir. 1999) (quoting Farmer, 511 U.S. at 847).
To the extent a correctional officer is serving as a "gatekeeper" for medical
personnel capable of treating an inmate's condition, he or she may be liable under the
Eighth Amendment to the extent that they delayed or refused to fulfill that gatekeeper
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role. See Mata, 427 F.3d at 751 (quoting Sealock, 218 F.3d at 1211); Edmisten v.
Werholtz, 287 F. App'x 728, 733 (10th Cir. Aug. 1, 2008) (failure to fulfill a gatekeeper
role, if proven, satisfies the test for deliberate indifference under the Eighth
Amendment). The Eighth Amendment may be violated if the professional "knows that
his [or her] role in a particular medical emergency is solely to serve as a gatekeeper for
other medical personnel capable of treating the condition, and if he [or she] delays or
refuses to fulfill that . . . role due to deliberate indifference." Sealock, 218 F.3d at 1211.
In this case, Plaintiff’s allegations in claim two fail to adequately allege a claim of
deliberate indifference to a medical need. Plaintiff’s allegations fail to demonstrate that
the Defendants actually knew he faced a substantial risk of serious harm and
disregarded that risk. Although Plaintiff alleges he was “in pain for 10 days” as a result
of the October 22, 2015 assault, which caused “a mild concussion and bruises all over
his body,” there are no allegations that Defendants knew about these injuries or that
they knew these injuries required medical attention. Likewise, regarding the alleged
assault with pepper spray, Plaintiff alleges that he was in “severe pain.” However, there
are no allegations that the Defendants knew about the severe pain or knew that Plaintiff
faced a substantial risk of serious harm if he was not provided medical care. The
Amended Complaint simply states, “[P]laintiff asked [Defendants] for medical treatment
on each of the 7 days that passed to see a medical staff for assessment and treatment
for the injuries he sustained in the 2 uses of force.” (ECF No. 10 at 5). Thus, Plaintiff’s
second claim for deliberate indifference to a serious medical need against Defendants
Hamaker, Armijo, Robb, Anthony, Morris, and Earwin will be dismissed as legally
frivolous.
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Liberally construing Plaintiff’s Amended Complaint, however, his factual
allegations in claim one that he climbed 15 feet on a fence in the SHU recreation yard
with a noose around his neck and asked Defendants Hamaker and Armijo to see Zohn
for an assessment, but instead Defendants Hamaker and Armijo returned 2 hours later
and told Plaintiff “Zohn didn’t care,” may be an attempt to assert a deliberate
indifference to medical needs claim. This claim against Defendants Hamaker, Armijo,
and Zohn will be drawn to a presiding judge and, if applicable, a magistrate judge.
C. Being Labeled a “Snitch” Claim
Plaintiff alleges that between October and November 2015, Defendants Hamaker
and Robb told inmates that Plaintiff was a “snitch.” (ECF No. 10 at 6). As a result, each
time Plaintiff tried to attend recreation, inmates in adjacent recreation cages spit on or
threw urine on Plaintiff and called him names, such as “rat,” “snitch,” and “cheeser.”
This claim against Defendants Hamaker and Robb will be drawn to a presiding judge
and, if applicable, a magistrate judge.
D. Defendant BOP
In the Amended Complaint, Plaintiff fails to make any specific allegations against
the BOP, besides identifying it as a party and stating it “operates USP Florence and
employs defendants.” (ECF No. 10 at 9). Otherwise, Plaintiff does not refer to the BOP
in any manner. Furthermore, 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). Defendant BOP, therefore, will be dismissed as a party to this
action.
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Accordingly, it is
ORDERED that all claims asserted against Defendants BOP, Anthony, Morris,
and Earwin shall be dismissed and these Defendants shall be dismissed as parties to
this action as legally frivolous pursuant to 28 U.S.C. ' 1915(e)(2(B)(i). It is
FURTHER ORDERED that the claims as set forth above against Defendants
Robb, Hamaker, Zohn, and Armijo shall be drawn to a presiding judge and, if applicable,
a magistrate judge pursuant to D.C.COLO.LCivR 40.1.
DATED at Denver, Colorado, this

17th

day of

March

, 2016.

BY THE COURT:
s/Lewis T. Babcock_________________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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