Velasco v. Hernandez et al

Filing 5

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 12/21/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02756-GPG

ISMAEL LEE VELASCO,
Plaintiff,
v.
INMATE HERNANDEZ, #47575-180,
MR. MALDONALDO, Officer,
Mr. M. A. STANCIL, Warden,
MR. ARMIJO, Officer, Lt.,
MR. JOHNS, Psychology,
MS. AVALOS, Officer, SIS,
FEDERAL BUREAU OF PRISONS, and
UNKNOWN FCI FLORENCE OFFICERS IN SHU,
Defendants.

ORDER TO AMEND

On December 18, 2015, Plaintiff Ismael Lee Velsaco filed a Prisoner Complaint
and a Prisoner=s Motion and Affidavit to Proceed Pursuant to 28 U.S.C. ' 1915. The
Court granted leave to proceed pursuant to ' 1915. Plaintiff asserts jurisdiction pursuant
to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 288
(1971), and 42 U.S.C. ' 15602(1). Nothing in ' 15602(1) provides for a private cause of
action. As for Plaintiff=s claims asserted pursuant to Bivens, Plaintiff will be directed to
amend the Complaint as follows.
Plaintiff has named the Federal Bureau of Prisons as a defendant. 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

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offending individual officer but not against the officer=s employer). Furthermore, to the
extent Plaintiff is asserting a claim against named defendants in their official capacity, he
is actually asserting a claim against the United States. See Farmer v. Perrill, 275 F.3d
958, 963 (10th Cir.2001) (A[A]ny action that charges [a federal] official with wrongdoing
while operating in his or her official capacity as a United States agent operates as a claim
against the United States.@); accord Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225,
1231 (10th Cir. 2005).
The United States cannot be sued without its consent. Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992), and it has not waived
sovereign immunity for itself or its agencies under Bivens for constitutional tort claims.
See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483B86 (1994) (holding
that a Bivens action may not be brought against the United States); see also Correctional
Services Corp. v. Malesko, 534 U.S. 61, 72 (2001) (recognizing that a Aprisoner may not
bring a Bivens claim against the officer=s employer, the United States, or the BOP@).
Also, a Bivens action may lie only against individuals acting under color of federal
law. See Dry v. United States, 235 F.3d 1249, 1255 (10th Cir. 2000). Plaintiff does not
allege any facts indicating that Defendant Hernandez, an inmate, was acting Aunder color
of federal law or authority.@ Id. Therefore, this Court lacks subject matter jurisdiction to
review a claim against Defendant Hernandez under Bivens.
Furthermore, to state a claim in federal court Plaintiff must explain (1) what a
defendant did to him; (2) when the defendant did it; (3) how the defendant=s action
harmed him; and (4) what specific legal right the defendant violated. Nasious v. Two
Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Plaintiff also is
required to assert personal participation by each named defendant in the alleged
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constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976).
To establish personal participation, Plaintiff must show how each named defendant
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).
A defendant 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 Aarising 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 in a Bivens suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege and
demonstrate that: A(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.
Plaintiff also cannot maintain claims against prison officials or administrators on
the basis that they denied his grievances. The Adenial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by plaintiff, does not
establish personal participation under ' 1983.@ Gallagher v. Shelton, 587 F.3d 1063,

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1069 (10th Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F. App=x. 179, 193
(10th Cir. Jan. 13, 2009) (unpublished) (stating that Athe denial of the grievances alone is
insufficient to establish personal participation in the alleged constitutional violations.@)
(internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, No.
02-1486, 99 F. App=x. 838, 843 (10th Cir. May 20, 2004) (unpublished) (sending
Acorrespondence [to high-ranking prison official] outlining [a] complaint . . . without more,
does not sufficiently implicate the [supervisory official] under ' 1983@).
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 if Plaintiff fails to file an Amended Complaint that
complies with this Order, within the time allowed, the Court will dismiss the Complaint in
part based on the above findings and proceed with addressing the merits of only the
properly asserted claims that remain.
DATED December 21, 2015, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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