Tillery v. Raemisch et al

Filing 5

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 3/1/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00282-GPG
THOMAS DEAN TILLERY,
Plaintiff,
v.
RICK RAEMISCH, in His Official Capacity as Executive Director of the Colorado
Department of Corrections and in His Individual Capacity,
JOHN CHAPDELAINE, in His Official Capacity as Warden of the Sterling Correctional
Facility and in His Individual Capacity,
JAMES FALK, in His Official Capacity as Warden of the Limon Correctional Facility and
in His Individual Capacity,
ROBERT DICK, in His Official Capacity as Case Manager II of the Sterling Correctional
Facility and in His Individual Capacity,
JAMIE SOUCIE, in Her Official Capacity as Health Services Administrator and former
SOTMP Administrator of the Sterling Correctional Facility and in Her Individual
Capacity,
LEONARD WOODSON III, in His Official Capacity as Director of SOTMP and in His
Individual Capacity,
BARRY JOHSNON, in His Official Capacity as Director of Mental Health/SOTMP at the
Sterling Correctional Facility and in His Individual Capacity,
Defendants.

ORDER TO AMEND

Plaintiff, Thomas Dean Tillery, is a prisoner currently incarcerated at the Sterling
Correctional Facility in Sterling, Colorado. On February 5, 2016, he filed pro se a
Prisoner Complaint (ECF No. 1). He has been granted leave to proceed in forma
pauperis. (ECF No. 4).
The court must construe the Complaint liberally because Mr. Tillery is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.

1

th

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. Tillery will be directed to file an Amended Complaint if he wishes to pursue his
claims in this action.
In the Prisoner Complaint, Mr. Tillery alleges due process violations because he
is suffering conditions of confinement which impose an “atypical and significant
hardship” on him “in relation to the ordinary incidents of prison life.” Specifically, Mr.
Tillery alleges that as a sex offender he must progress in a treatment program before he
will be released on parole, but that the Colorado Department of Corrections (CDOC)
has him incarcerated in a facility that does not offer the treatment program, known as
SOTMP. He alleges that CDOC will not transfer prisoners to other facilities for the
purpose of treatment. Therefore, he and other prisoners who are in need of SOTMP but
are housed in SCF will never be eligible for parole.
Mr. Tillery asserts that Defendant Raemisch has violated his due process rights
because he is responsible for the promulgation and approval of CDOC Administrative
Regulations. Those Administrative Regulations arbitrarily impose significant and
atypical hardship on him by denying him parole eligibility.
As to Defendant Warden John Chapdelaine, who is currently responsible for the
custody and control of the prisoners in SCF, and Defendant Warden James Falk, who
was responsible for the custody and control of the prisoners in SCF from 2012 until
2015, Plaintiff alleges they violated his due process rights by not transferring him to a
facility that offers SOTMP, as well as not implementing SOTMP in his facility.

2

Additionally, Plaintiff alleges that the following people violated his due process
rights by not transferring him to a facility that offers SOTMP.
•

Case Manager Robert Dick, who is responsible for managing the program needs
of prisoners in SCF.

•

Jamie Soucie, who is the Health Services Administrator for SCF, and the former
SOTMP Administrator of SCF. She was responsible for the administrator of
SOTMP until mid-2015 and was responsible for admitting prisoners to SOTMP.

•

Leonard Woodson III, who is the Director of SOTMP for CDOC. He is
responsible for the administration of SOTMP in the CDOC, including admitting
prisoners to SOTMP.

•

Barry Johnson, who is the Director of Mental Health at Sterling Correctional
Facility. He is responsible for managing the mental health needs of prisoners in
SCF.
Plaintiff requests transfer to a facility that offers SOTMP, as well as additional

declaratory and monetary relief.
A. Eleventh Amendment
Mr. Tillery does not indicate whether he is suing the Defendants in their official
capacities, their individual capacities, or both. (ECF No. 1 at 19). The Court construes
the complaint as filed against the Defendants in both their official and their individual
capacities. Claims against state officials in their official capacities for monetary
damages are construed as claims asserted against the State of Colorado, see Hafer v.
Melo, 502 U.S. 21, 25 (1991), and are barred by the Eleventh Amendment. See
Kentucky v. Graham, 473 U.S. 159, 169-70 (1985). However, to the extent the
Complaint asserts a cognizable claim for relief under § 1983, Plaintiff is not precluded
from seeking prospective injunctive relief against the individual Defendants in their
official capacities. See Ex Parte Young, 209 U.S. 123 (1908); see also Branson Sch.
Dist. RE–82 v. Romer, 161 F.3d 619, 631 (10th Cir.1998) (“[A] suit against a state
3

official in his or her official capacity seeking prospective injunctive relief is not . . .
against the state for Eleventh Amendment purposes.”).
B. Personal Participation
Plaintiff must submit an amended complaint that asserts personal participation by
each named defendant 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 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).
For Defendants Dick, Soucie, Woodson, and Johnson, Plaintiff alleges that they
violated his due process rights by not transferring him to a facility that offers SOTMP.
However, he has not alleged that those individuals had the ability, in their positions at
the CDOC, to transfer him to another facility. If they were without authority to transfer
him to another facility, they did not personally participate in any constitutional violation
that was caused by him not being transferred.
Further, supervisors can only be held liable for their own misconduct. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A supervisor cannot incur liability under
§ 1983 for his mere knowledge of a subordinate’s wrongdoing. Id.; see also Fogarty v.
Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) ("[Section] 1983 does not recognize a
concept of strict supervisor liability; the defendant ’s role must be more than one of

4

abstract authority over individuals who actually committed a constitutional violation.").
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 in a § 1983 suit 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.
For Defendants Raemisch, Chapdelaine, and Falk, Plaintiff must demonstrate
that they violated his constitutional rights through their own conduct and state of mind.
In conclusion, Plaintiff “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.” Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). 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 Prisoner
Complaint form (with the assistance of his case manager or the facility’ s legal

5

assistant), 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 file an Amended Complaint that
complies with this Order within the time allowed, the Court will proceed to review the
merits of the original Complaint and some of the claims and defendants may be
dismissed without further notice.
DATED March 1, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

6