James v. Robb et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 12/17/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02700-GPG
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
RASHOD JAMES,
Plaintiff,
v.
J. ROBB;
FEDERAL BUREAU OF PRISONS;
N. HAMAKER;
ERIC EARWIN;
PAUL ZOHN;
M. ANTHONY;
K. MORRIS; and
J. ARMIJO,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

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 a 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.

He seeks damages and

injunctive relief.
The Court must construe the 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. As part of the court’s review pursuant to
D.C.COLO.LCivR 8.1(b), the court has determined that the operative complaint is deficient.
For the reasons stated below, Plaintiff will be directed to file an amended complaint.
In his Complaint, Plaintiff claims that Defendants have denied him medical care,
used excessive force and have retaliated against him.
Mr. James cites the First and Eighth Amendments as his bases for relief. To state
a claim upon which relief can be granted for First Amendment retaliation, Plaintiff must
plead facts indicating that he can plausibly prove three elements at trial: 1) that Plaintiff
was engaged in constitutionally protected activity; 2) Defendants' actions caused Plaintiff
to suffer an injury that would chill a person of ordinary firmness from continuing to engage
in that activity; and 3) that Defendants' adverse actions were substantially motivated by
Plaintiff's exercise of constitutionally protected conduct. Shero v. City of Grove, 510 F.3d
1196, 1203 (10th Cir. 2007). To prevail on the causation element of a claim for retaliation,
Plaintiff "must prove that ‘but for' the retaliatory motive, the incidents to which he refers ...
would not have taken place." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998).
That is, "it is imperative that [P]laintiff's pleading be factual and not conclusory. Mere
allegations of constitutional retaliation will not suffice; [P]laintiff[ ] must, rather, allege
specific facts showing retaliation because of the exercise of ... constitutional rights." Frazier
v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990); accord Jones v. Greninger, 188 F.3d 322,
325 (5th Cir. 1999) ("[T]he inmate must allege more than his personal belief that he is the
victim of retaliation."). It is not the role of the federal judiciary to scrutinize and interfere
with the daily operations of a state prison and the restriction on retaliation does not change
this role. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). Simply by engaging in
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protected activity an inmate does not become inoculated from the normal conditions of
confinement experienced by convicted felons serving time in prison. Id. Thus, a prisoner
alleging retaliation must prove that but for the retaliatory motive, the incidents he claims
were retaliatory, including disciplinary action, would not have taken place. Id. at 949–50.
In addition an inmate must allege specific facts showing retaliation because of the exercise
of the prisoner's constitutional rights. Peterson, 149 F.3d at 1145. Thus, to establish a
retaliation claim Plaintiff must demonstrate: 1) he was engaged in constitutionally protected
activity; 2) defendant's actions caused plaintiff to suffer an injury that would chill a person
of ordinary firmness from continuing to engage in that activity; and 3) defendant's adverse
action was substantially motivated as a response to plaintiff's exercise of constitutionally
protected conduct. Allen v. Corrections Corp. of America, 524 F. App’x 460, 463 (10th Cir.
2013).
The treatment a prisoner receives in prison and the conditions under which he is
confined are subject to scrutiny under the Eighth Amendment. Farmer v. Brennan, 511
U.S. 825, 832 (1994) (citation omitted). The Eighth Amendment prohibits the infliction of
“cruel and unusual punishments.” U.S. CONST. Amend. VIII. Certain conditions of
confinement, if they inflict pain unnecessarily and wantonly, may constitute cruel and
unusual punishment under the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319
(1986). “An inmate making a direct challenge to conditions of confinement under the 8th
Amendment, must show that, judged by contemporary standards of decency, the conditions
either involve the wanton and unnecessary infliction of pain, that they are grossly
disproportionate to the severity of the crime, or that they entail serious deprivation of basic
human needs.” Georgacarakos v. Wiley, 2010 WL 1291833 *11 (D. Colo. March 30, 2010)
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(internal quotation marks and citation omitted). “Prison officials must provide adequate
food, clothing, shelter, and medical care to inmates, and take reasonable measures to
guarantee those inmates' safety.” Id. (citation omitted).
An Eighth Amendment claim includes both an objective component, whether the
deprivation of a basic human need is sufficiently serious, and a subjective component,
whether the officials acted with a sufficiently culpable state of mind. Wilson v. Seiter, 501
U.S. 294, 298 (1991). As for the objective component, “extreme deprivations” are required
to make out a conditions-of-confinement claim. Hudson v. McMillian, 503 U.S. 1, 8–9
(1992). Thus, in a conditions-of-confinement case, a “sufficiently serious” deprivation is
shown when “a prison official's act or omission ... result[s] in the denial of ‘the minimal
civilized measure of life's necessities.’ ” Farmer, 511 U.S. at 834 (quoting Rhodes v.
Chapman, 452 U.S. 337, 347 (1981)). The subjective component follows from the principle
that “ ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’
” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297). The “deliberate indifference”
subjective standard applies to claims of inhumane conditions of confinement. Wilson, 501
U.S. at 303–04. A finding of deliberate indifference requires a showing that the defendant
“knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S.
at 837. Under this standard, “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also
draw the inference.” Farmer, 511 U.S. at 837.
It is not clear against which Defendant or Defendants Mr. James is asserting the
medical treatment claims or what any particular Defendant did with respect to medical
treatment that violated Mr. Herrera’s constitutional rights. The Eighth Amendment, through
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its prohibition of cruel and unusual punishment, imposes a duty on prison officials to
provide humane conditions of confinement, including adequate medical treatment. Estelle
v. Gamble, 429 U.S. 97, 104 (1976). A violation occurs when: 1) a medical need is
serious; and (2) the acts or omissions by prison officials demonstrate “deliberate
indifference” to the inmate's health or safety. Id. at 106. Thus, first, a complaint must
allege facts showing a sufficiently serious medical need. A “medical need is sufficiently
serious if it is one that has been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). “Delay in medical
care only constitutes an Eighth Amendment violation where the plaintiff can show the delay
resulted in substantial harm.” Id. at 1210. 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). Under Estelle, deliberate indifference is present when
prison officials intentionally deny or delay access to necessary medical treatment for
non-medical reasons, or when they interfere with a course of treatment once prescribed.
Id. at 104-05. Under the subjective component, Plaintiff“must show that the defendants
knew he faced a substantial risk of harm and disregarded that risk, by failing to take
reasonable measures to abate it.” Martinez, 563 F.3d at 1089.
In the context of a medical treatment claim, he must state exactly what objectively
serious medical need he was suffering from and what each specific Defendant did that
amounted to deliberate indifference to that need. He must provide specific dates and
provide a short statement as to each claim against each defendant. Plaintiff’s complaint
provides a statement of facts that does not specify what constitutional claims he is
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asserting against each defendant. He merely identifies a defendant and makes rambling
statements.
With respect to an excessive force claim, the Cruel and Unusual Punishments
Clause of the Eighth Amendment protects inmates against the application of excessive
force by correctional officers. Whitley v. Albers, 475 U.S. 312, 318-19 (1986). Every
Eighth Amendment claim embodies both an objective and a subjective component. The
objective component relates to the "seriousness of the injury" and focuses on whether there
has been a deprivation or infliction of pain serious enough to implicate constitutional
concerns. Hudson v. McMillan, 503 U.S. 1, 9 (1993). An inmate must show some injury
in order to make out a constitutional violation under the Eighth Amendment. The Eighth
Amendment "excludes from constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort repugnant to the conscience of mankind." Id.
at 9-10 (quotations omitted).
Mr. James' allegations are too vague and conclusory to state a claim upon which
relief can be granted. Other than general conclusory allegations, Mr. James has not
sufficiently alleged specific dates, circumstances, or conduct by the named Defendants.
Nor has he identified an objective harm which he has suffered. In sum, Mr. James'
allegations are not adequate to state an Eighth Amendment violation.
The complaint is deficient because it does not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. The twin purposes of a
complaint are to give the opposing parties fair notice of the basis for the claims against
them so that they may respond and to allow the Court to conclude that the allegations, if
proven, show that the plaintiff is entitled to relief. See Monument Builders of Greater
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Kansas City, Inc. v. American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir.
1989). The requirements of Fed. R. Civ. P. 8 are designed to meet these purposes. See
TV Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991),
aff’d, 964 F.2d 1022 (10th Cir. 1992). Rule 8(a) provides that a complaint “must contain (1)
a short and plain statement of the grounds for the court’s jurisdiction, . . . (2) a short and
plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand
for the relief sought.” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which
provides that “[e]ach allegation must be simple, concise, and direct.” Taken together,
Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal
pleading rules. Prolix, vague, or unintelligible pleadings violate Rule 8.
Claims must be presented clearly and concisely in a manageable format that allows
a court and a defendant to know what claims are being asserted and to be able to respond
to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir.
1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all that is permissible,
if the complaint concisely states facts upon which relief can be granted upon any legally
sustainable basis.” Id.
The Court has reviewed the Complaint and finds that Plaintiff fails to provide a short
and plain statement of his claims in compliance with the pleading requirements of Rule 8
of the Federal Rules of Civil Procedure. Plaintiff fails to provide a short and plain statement
of his claim showing he is entitled to relief because he fails to provide specific factual
allegations with respect to each constitutional violation in support of his individual claims.

A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s sound
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discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992);
Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). The Court, however, will
give Plaintiff an opportunity to cure the deficiencies in the Complaint by submitting an
Amended Complaint that meets the requirements of Fed. R. Civ. P. 8.
Plaintiff is required to assert personal participation by properly named defendants
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 in the Cause of
Action section of the complaint form how each named individual 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).
Thus, in order to comply with Rule 8, Mr. James must identify the specific
constitutional claims he is asserting, the specific factual allegations that support each claim,
against which Defendant or Defendants he is asserting each claim, and what each
Defendant did that allegedly violated his rights under the particular constitutional provision.
See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (noting
that, to state a claim in federal court, “a complaint 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”)
(emphasis added). Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th
Cir. 2007) (noting that, to state a claim in federal court, "a complaint must explain what

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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"). Accordingly, in the Amended Complaint, Plaintiff must allege specific facts to
show how each named Defendant personally participated in an alleged deprivation of his
constitutional rights. Plaintiff has failed to sufficiently comply with this requirement, i.e., no
dates, no specific instances alleged by specific defendants, etc.
A defendant also 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 “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 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 should name as Defendants only those persons he contends
actually violated his federal rights while acting under color of law.
In addition, Plaintiff has named the BOP as a party to this action. Plaintiff's claims
for money damages against BOP under Bivens are barred by sovereign immunity. “The
concept of sovereign immunity means that the United States cannot be sued without its
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consent.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir.
1992) (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). Federal courts lack
subject matter jurisdiction over claims for damages against the United States where the
United States has not waived its sovereign immunity. Iowa Tribe of Kan. and Neb. v.
Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010); Harrell v. United States, 443 F.3d 1231,
1234 (10th Cir. 2006). Only Congress can waive the sovereign immunity of the United
States. Merril Lynch, Pierce, Fenner & Smith, Inc., 960 F.2d at 913. Congress has not
extended the Bivens remedy to federal agencies. See Correctional Servs. Corp. v.
Malesko, 534 U.S. 61, 71–72 (2001); FDIC v. Meyer, 510 U.S. 471, 486 (1994). Thus,
Plaintiff cannot bring a Bivens action for damages against BOP. Plaintiff has not alleged
that the United States has waived its sovereign immunity by consenting to being sued.
Moreover, under the PLRA, Mr. James was required to exhaust completely his
available administrative remedies prior to bringing his claims in federal court. "Since the
PLRA makes exhaustion a precondition to filing a suit, an action brought before
administrative remedies are exhausted must be dismissed...." Ruppert v. Aragon, 448 F.
App'x 862, 863 (10th Cir. 2012); Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002)
(an "inmate who begins the grievance process but does not complete it is barred from
pursuing a ... claim under the PLRA for failure to exhaust his administrative remedies.").
Exhaustion in cases covered by § 1997e(a) is not within the court's discretion, but
is mandatory. "[E]xhaustion requirements are designed to . . . give the agency a fair and
full opportunity to adjudicate their claims." Woodford v. Ngo, 548 U.S. 81, 90 (2006). Full
and proper exhaustion of administrative remedies is required, and entails utilizing "all steps
that the agency makes available, and doing so properly (so that the agency addresses the
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issues on the merits)." Id. at 90.
The administrative remedy process available to inmates in federal custody is the
BOP's Administrative Remedy Program. The BOP employs a four-step process to address
inmate claims. First, inmates must attempt to informally resolve the issue before filing a
request for administrative remedy. 28 C.F.R. § 542.13(a). Second, if an inmate is unable
to informally resolve his complaint, he may file a formal written complaint (form B-9), within
20 calendar days of the date on which the basis of the complaint occurred. 28 C.F.R. §
542.14(a). The inmate must date and sign the request and submit it to the institutional staff
member designated to receive such requests (ordinarily a correctional counselor). 28
C.F.R. § 542.14(c)(4). The warden has 20 calendar days in which to respond. 28 C.F.R.
§ 542.18. If an inmate is not satisfied with the warden's response, he may submit an
appeal on form B-10 to the Regional Director within 20 calendar days from the date of the
warden's response. 28 C.F.R. § 542.15(a). The Regional Director has 30 calendar days
in which to respond. 28 C.F.R. § 542.18. Finally, if the inmate is dissatisfied with the
Regional Director's response, that decision may be appealed to the General Counsel within
30 calendar days from the date of the Regional Director's response. 28 C.F.R. § 542.15(a).
The General Counsel has 40 calendar days to respond. 28 C.F.R. § 542.18. If the inmate
does not receive a response within the time allotted for reply, including extension, the
inmate may consider the absence of a response to be a denial at that level. Id.
Where an inmate reasonably believes a matter is sensitive and would endanger his
safety or well-being if its substance were widely known, the inmate may submit his initial
complaint directly to the Regional Manager instead of the Warden. 28 C.F.R § 542.14(d).
The inmate must clearly mark "Sensitive" upon the request and explain, in writing, the
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reason for not submitting it at the institution. If the Regional Administrative Remedy
Coordinator agrees that the request is sensitive, the request is accepted; otherwise, the
request is not accepted and the inmate is advised in writing of that determination. The
inmate may pursue the matter by submitting an Administrative Remedy Request locally to
the Warden, who shall allow a reasonable extension of time for such a resubmission. Id.
The Court notes that Plaintiff’s claims span the time period from October 19, 2015
through November 15, 2015. Thus, it appears from the face of his Complaint that he has
not exhausted his claims. This alone is a basis for dismissal of his claims.
The general rule that pro se pleadings must be construed liberally has limits and “the
court cannot take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005). Therefore, Plaintiff must file an amended complaint if he wishes
to pursue his claims in this action. 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 Complaint form,
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 comply with this Order within the time
allowed the Court will dismiss the action without further notice.
DATED December 17, 2015, at Denver, Colorado.
BY THE COURT:
/s Gordon P. Gallagher
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Gordon P. Gallagher
United States Magistrate Judge

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