Elder v. Smith et al

Filing 11

SECOND ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 3/17/16. The Clerk shall send Plaintiff the Prisoner Complaint form (mailed as ordered). (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00126-GPG
LYNDON A. ELDER,
Plaintiff,
v.
SHERIFF SHAUN SMITH,
DEPUTY EVERS
DEPUTY HEGARTY,
KIRSTEN SEARFUS, M.D.,
Defendants.

SECOND ORDER TO AMEND

Plaintiff, Lyndon A. Elder, is a prisoner currently incarcerated at the La Plata
County Jail in Durango, Colorado. On January 15, 2016, he filed pro se a Prisoner
Complaint (ECF No. 1). He has been granted leave to proceed in forma pauperis. (ECF
No. 6).
On February 4, 2016, the Court ordered Mr. Elder to file an amended complaint if
he wished to pursue his claims in this action. (ECF No. 8). Specifically, the Court
directed Mr. Elder to file an amended complaint that complied with Rule 8 of the Federal
Rules of Civil Procedure. Mr. Elder was also directed to assert personal participation for
all the named defendants. In response, on February 23, 2016, Mr. Elder filed an
Amended Complaint. (ECF No. 9).
The court must construe the Amended Complaint liberally because Mr. Elder is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
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Hall v. Bellmon, 935 F.2d 1106, 1110 (10 Cir. 1991). However, the court should not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the following reasons,
Mr. Elder will be directed to file a Second Amended Complaint if he wishes to pursue his
claims in this action.
In the Amended Complaint, Plaintiff alleges that on December 4th, he had blood
vessels on his scrotum burst and bleed profusely. He begged Defendants Hegarty and
Evers to provide a clean jail uniform, allow him to shower, and possibly provide
bandages, but instead he was forced into a condition of lock down for bleeding. Plaintiff
suffered “prolonged isolation with blood soaked clothing, bedding and body covered in
blood.” He states that he is a “chronic hypoglycemic” and positive for Hep-C and when
the 9:00 pm food arrived, Defendant Hegarty opened the cell door a few inches and slid
the food in “as if to an animal.” He alleges that the “sadistic police” “laughed at Plaintiff,
told [him] he had no rights, and that the police is [sic] always right.”
Initially, the Court notes that Mr. Elder has not alleged personal participation as
to each defendant. Defendants Smith and Searfus are never mentioned in the text of
the complaint other than being listed as parties. Mr. Elder was directed in the Court’s
February 4, 2016 Order that he “must assert personal participation by a named
defendant in the alleged constitutional violation.” (ECF No. 8 at 3 (citing Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)). To establish personal participation,
Plaintiff must show 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

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(10th Cir. 1993). In the Second Amended Complaint, Mr. Elder must assert personal
participation by each named defendant.
Mr. Elder’s first and only asserted claim is that “all Defendants treated Plaintiff
with deliberate indifference and was [sic] very cruel.” (Id. at 4). The factual allegations
appear to be an attempt to assert a claim for cruel and unusual punishment based on
the conditions of his confinement. In order to state an Eighth Amendment claim based
on the conditions of confinement, Plaintiff must demonstrate, in part, that the
infringement was sufficiently serious. See Farmer v. Brennan, 511 U.S. 825, 834, 114
S. Ct. 1970, 128 L. Ed. 2d 811 (1994). "[E]xtreme deprivations are required to make out
a conditions-of-confinement claim." Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995,
117 L. Ed. 2d 156 (1992). The Eighth Amendment is not violated unless the conditions
deprive a prisoner of the "'minimal civilized measure of life's necessities.'" Wilson v.
Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991) (quoting Rhodes
v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)). The core
areas entitled to protection pursuant to the Eighth Amendment include food, shelter,
sanitation, personal safety, medical care, and adequate clothing. See Clemmons v.
Bohannon, 956 F.2d 1523, 1527 (10th Cir. 1992).
Finally, an inmate asserting an Eighth Amendment claim must allege that the
defendants acted with deliberate indifference. Deliberate indifference means that "a
prison official may be held liable . . . only if he knows that inmates face a substantial risk
of serious harm and disregards that risk by failing to take reasonable measures to abate
it." Farmer, 511 U.S. at 847. Moreover, "[t]he Eighth Amendment 'does not mandate

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comfortable prisons,' and conditions imposed may be 'restrictive and even harsh.'"
Barney v. Pulsipher, 143 F.3d 1299, 1311 (10th Cir. 1998) (citation omitted).
Mr. Elder's allegations in the Amended Complaint do not demonstrate a
deprivation "of the minimal measure of life's necessities," as required to state a claim
based on an Eighth Amendment violation. In assessing whether an environment is safe
and humane for prisoners, the Court should take into account the circumstances of the
challenged conditions, including the duration of the alleged deprivations. Despain v.
Uphoff, 264 F.3d 965, 974 (10th Cir. 2001); see Powell v. Wilner, 06-cv-00545, 2009
U.S. Dist. LEXIS 131795 (D. Colo. Mar. 4, 2009) (citing e.g., Williams v. Delo, 49 F.3d
442, 444-46 (8th Cir. 1995) (finding no Eighth Amendment violation when a prison
refused to give a prisoner running water, "tooth brush, tooth paste, deodorant, soap,
sheets, blankets, pillow cases, pillows, mattresses, his legal mailing, and clothing" for
four consecutive days)); Harris v. Fleming, 839 F.2d 1232, 1235-36 (7th Cir. 1988)
(holding that five-day confinement in roach-infested cell did not implicate a constitutional
injury); Ladd v. Stotts, No. 92-3205-DES, 1995 U.S. Dist. LEXIS 14638, 1995 WL
584700, at *3 (D. Kan. Sept. 28, 1995) (unpublished decision) (finding no Eighth
Amendment violation when prison denied prisoner clean water for thirty hours)); see
also Estrada v. Kruse, 38 Fed. Appx. 498, 499 (10th Cir. 2002) (unpublished) (affirming
dismissal of plaintiff's claim that he was subjected to cruel and unusual punishment
when he was held for four nights and five days in a stripped basement intake cell in
September 1998 with minimal clothing and bedding, no personal hygiene items, and no
cleaning supplies for the cell). In his Second Amended Complaint, Mr. Elder should
allege the duration of the deprivations, i.e., how long was he forced to wear a blood

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soaked uniform and how long he went without a shower, bandages, or clean bedding.
Additionally, if Mr. Elder is attempting to assert an Eighth Amendment violation in
the context of medical treatment, he must demonstrate two elements: (1) he was
suffering from a “serious medical need,” and (2) prison officials were deliberately
indifferent to the serious medical need. Gamble v. Estelle, 439 U.S. 97 (1978).
Furthermore, in the Amended Complaint, Mr. Elder references an “Affidavit and
Letter to Magistrate Judge” (ECF No. 9 at 4) and a “statement given with original
Complaint” (Id. at 3). Mr. Elder was already directed in the Court’s February 4, 2014
Order to present his claims in the space provided on the court-approved Prisoner
Complaint form and to include relevant supporting factual allegations for each claim in
the space provided. As Mr. Elder was previously warned, the Court and defendants are
not required to sift through Mr. Elder’s attachments to locate the heart of each claim.
Therefore, in his amended complaint, his claims and supporting factual allegations
should be included in the space provided on the court-approved Prisoner Complaint
form. If Mr. Elder has supporting exhibits, he may attach them to the complaint but the
relevant factual allegations must be included on the complaint form itself or an attached
page if more space is needed.
Finally, numerous times in the Amended Complaint, Mr. Elder makes statements
such as, “I don’t have extra paper” (Id. at 2) and “I have no paper” (Id. at 3). However,
the court notes that the entire page 6 of the complaint form was blank and on page 5,
the text written by Mr. Elder was unnecessary. Therefore, if Mr. Elder had additional
relevant information to provide, there was room to do so on the complaint form. In order
to help the Plaintiff file a Second Amended Complaint, the Court will again direct the

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Clerk of Court to send Plaintiff a blank copy of the court-approved Prisoner Complaint
form.
Accordingly, it is
ORDERED that Mr. Elder file, within thirty (30) days from the date of this
order, a Second Amended Complaint as directed in this order. It is
FURTHER ORDERED that the Clerk of Court send Plaintiff a copy of the courtapproved Prisoner Complaint form. Mr. Elder shall use the court-approved Prisoner
Complaint form to file his Second Amended Complaint. It is
FURTHER ORDERED that if Mr. Elder fails to file a Second Amended Complaint
that complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED March 17, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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