James v. Robb et al

Filing 9

AMENDED ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 2/3/16. (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;
FEDERAL BUREAU OF PRISONS;
N. HAMAKER;
ERIC EARWIN;
PAUL ZOHN;
M. ANTHONY;
K. MORRIS;
JOHN DOE 1-6,
J. ARMIJO, AND
JOHN DOE 7-11,
Defendants.

AMENDED ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

In an effort to clarify the Court’s requirements for Mr. James’ Amended Complaint
in this action, the Court is issuing this Amended Order to File an Amended Complaint,
which supersedes the Court’s previous Order to Amend dated December 8, 2015 (ECF
No. 8).
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
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(1971) claiming his rights under the United States Constitution were violated. (ECF No.
1). He has been granted leave to proceed in forma pauperis. (ECF No. 4).
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 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 violated his First and
Eighth Amendment rights by denying him medical care, using excessive force and
retaliating against him. He seeks damages and injunctive relief.
I.

Parties Sued
A. BOP and Official Capacity
First, the Court notes that Mr. James is suing the Bureau of Prisons and multiple

prison officials. He does not specify if he is suing the prison officials in their official or
individual capacity. Bivens creates a cause of action only against federal officials in
their individual capacities for money damages; it does not create a cause of action
against the United States (or the Bureau of Prisons). Simmat v. United States Bureau of
Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005); Farmer v. Perrill, 275 F.3d 958, 963
(10th Cir. 2001). In addition, claims against the prison officials in their official capacity
cannot proceed because "[t]here is no such animal as a Bivens suit against a public
official tortfeasor in his or her official capacity." Id.
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However, Plaintiff may pursue claims for injunctive relief against the BOP or the
prison officials in their official capacity. The Administrative Procedures Act, 5 U.S.C. §
702, waives sovereign immunity in most suits for claims “other than money damages.”
Id. at 1238-39 (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. John Does
Mr. James may use fictitious names, such as "John or Jane Doe," if he does not
know the real names of the individuals who allegedly violated his rights. However, if Mr.
James uses fictitious names he must provide sufficient information about each
defendant so that he or she can be identified for purposes of service.
C. Rattan and Kiaug
Finally, the Court notes that Plaintiff refers to Defendants Rattan and Kiaug in the
text of the Complaint and in the “Parties” section. However, these Defendants are not
included in the caption of the Prisoner Complaint. Plaintiff should include all Defendants
in the caption of his Amended Complaint.
II.

Rule 8
Plaintiff’s Complaint is deficient because it fails to 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
Kansas City, Inc. v. American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th
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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). Specifically, 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.
In his Complaint, instead of stating each claim and its supporting allegations
clearly and concisely in the spaces provided on the Court-approved form, Mr. James
simply refers to supporting facts found in the Addendum that he attached to the Prisoner
Complaint. This approach is unacceptable. Neither the Court nor defendants are
required to sift through or piece together Mr. James’ allegations to determine the basis
for his claims. It is Mr. James’ responsibility to present his claims in a manageable and
readable format that allows the Court and defendants to be able to respond to those
claims. In short, Mr. James must allege, simply and concisely, his specific claims for
relief, including the specific rights that allegedly have been violated and the specific acts
of each defendant that allegedly violated his rights, and when the violations occurred.
Mr. James is advised 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
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the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007). 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).
III.

Being Labeled a “Snitch”
Plaintiff alleges that Defendant Hamaker revealed to other inmates that Plaintiff

had made allegations of an attempted rape at USP Pollock. (ECF No. 1 at 13).
According to Plaintiff, Defendant Hamaker told the other inmates this information in
order to label Plaintiff a “snitch.” Although Plaintiff asserts this claim as a First
Amendment retaliation claim, the facts appear to assert an Eighth Amendment claim.
Under the Eighth Amendment, "prison officials have a duty to protect prisoners
from violence at the hands of other prisoners." Farmer v. Brennan, 511 U.S. 825, 833
(1994) (quotations omitted). The Tenth Circuit Court of Appeals has held that labeling
an inmate a "snitch" or otherwise inciting other inmates to harm an inmate states an
Eighth Amendment violation, regardless of whether the inmate is ever actually
physically harmed. See, e.g., Benefield v. McDowall, 241 F.3d 1267, 1271–72 (10th Cir.
2001) (holding it is clearly established law that labeling an inmate a snitch and informing
other inmates of that label with knowledge of the obvious risk of danger associated with
that label violates the Eighth Amendment even though the inmate is never actually
harmed; "a violation of the Eighth Amendment does not turn on the type [of] relief
sought" and "may be implicated not only to physical injury, but also by the infliction of
psychological harm"). In his amended complaint, Plaintiff should provide dates (or
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approximate dates) of the events alleged. The Court is also aware that Mr. James is
pursuing a similar, if not identical, claim in another action in this court, see James v.
Hamaker, 15-cv-02425-GPG. Mr. James is instructed that he cannot pursue the same
claim in two separate actions.
IV. Deliberate Indifference to Serious Medical Need
Plaintiff alleges that Defendants were deliberately indifferent to his serious
medical needs. According to Plaintiff, he is mentally ill and suffers from severe bouts of
anxiety, depression, and suicidal thoughts.
An inmate's claim of inadequate 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). 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
role. See Mata, 427 F.3d at 751 (quoting Sealock, 218 F.3d at 1211); Edmisten v.
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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.
Plaintiff’s Complaint does not state a claim of deliberate indifference to medical
needs against all of the Defendants.

For example, as to “Defendant Rattan” and

“Defendant Kiang,” Plaintiff alleges that Defendant Rattan, the SHU Physician Assistant,
refused to examine or treat plaintiff after the attack on November 5, 2015 and that
Defendant Kiang refused to provide Plaintiff with over-the-counter Tylenol even though
he was in severe pain. These allegations fail to establish deliberate indifference to a
serious medical need.

There are no allegations that Defendant Rattan knew and

disregarded an excessive risk to inmate health and safety. Further, although Defendant
Kiang allegedly knew that Plaintiff wanted Tylenol for pain, the denial of over-thecounter Tylenol is not of constitutional magnitude and does demonstrate that Defendant
was deliberately indifferent to Plaintiff’s health and safety. Plaintiff’s amended complaint
should adequately allege deliberate indifference to medical needs.
Therefore, Plaintiff is directed to 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

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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 may dismiss the action without further notice.

DATED February 3, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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