Hodson v. Fisher et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT. ORDERED that within thirty days from the date of this Order, Plaintiff shall file an Amended Complaint that complies with this Order, by Magistrate Judge Gordon P. Gallagher on 3/27/2016. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00446-GPG
TRAVIS HODSON,
Plaintiff,
v.
BIRGIT FISHER,
THOMAS QUAMMEN,
STEVE TEAMS,
DR. JANICE ORT, and
STEVE DOOLITTLE,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Travis Hodson currently is being held at the Colorado Mental Health
Institute in Pueblo, Colorado. Plaintiff, acting pro se, initiated this action by filing a
Prisoner Complaint alleging that his constitutional rights were violated pursuant to 28
U.S.C. ' 1343 and 42 U.S.C. ' 1983. Plaintiff has been granted leave to proceed
pursuant to 42 U.S.C. ' 1915.
The Court must construe the Complaint liberally because Plaintiff is a pro se
litigant. 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 should not act as a pro se litigant=s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be
ordered to file an Amended Complaint.

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Plaintiff asserts three claims that challenge (1) his competency evaluation order in
his pending criminal case; (2) the release of information from the Weld County Detention
Center to Defendant D. Ort, who performed Plaintiff’s competency evaluation; (3) his
irreconcilable differences with his public defender, Defendant Steve Doolittle, who
represents him in his pending state criminal case; (4) use of excessive force to remove
him from his cell when he was transported from the Weld County Detention Center to the
Colorado Mental Health Institute; (5) denial of medical treatment for the injuries incurred
when excessive force was used against him; (6) ineffective assistance of counsel by
Defendant Doolittle in Plaintiff=s pending criminal case; and (7) a delay in being
transferred to the Colorado Mental Health Institute. As relief, Plaintiff asks the Court to
solve all his problems that relate to his Acompetency and representation.@ ECF No. 1 at
12. Plaintiff also asks that the Court Astraighten out the Sheriff=s office and correct the
derelict acts being performed.@ Id.
First, to the extent that Plaintiff is challenging the competency evaluations being
conducted, and the effectiveness of the attorney representing him, in his pending state
criminal proceeding, Plaintiff recently raised these claims in Hodson v. Reams, No.
15-cv-02341-LTB (D. Colo. Mar. 22, 2016). The Court, in Case No. 15-cv-02341-LTB,
determined that the Court lacked jurisdiction to review the claims, because federal courts
are prohibited from interfering with ongoing state criminal proceedings, see Younger v.
Harris, 401 U.S. 37, 45 (1971); Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir.
1995), absent extraordinary or special circumstances, which Plaintiff had failed to show.
Even if Plaintiff was able to assert the competency and ineffective assistance
claims in this action, Defendants Thomas Quammen and Steve Doolittle are improperly
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named parties to this action. Whether a private attorney or public defender represents
Plaintiff, he or she is not a state actor under 42 U.S.C. ' 1983, (assuming, as stated
above, that Plaintiff is asserting his claims pursuant to ' 1983), and is not a proper party to
this action. Polk County v. Dodson, 454 U.S. 312, 318 and 325 (1981). Also, Judge
Thomas Quammen is absolutely immune from liability in civil rights suits when he acts in
his judicial capacity, unless he acts in the clear absence of all jurisdiction. See Mireles v.
Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Hunt
v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994). Judge Quammen was acting in his
judicial capacity when he determined Plaintiff=s competency; he was not acting in the
clear absence of all jurisdiction. Therefore, the claims Plaintiff asserts against Judge
Quammen are barred by absolute judicial immunity.
To the extent, however, that Plaintiff is challenging the conditions of his
confinement, such as the excessive force and denial of medical treatment claims he
asserts on Page 6 of the Complaint, he may raise these claims, or other condition claims,
pursuant to 42 U.S.C. ' 1983. Nonetheless, Plaintiff must comply with the following
directives to assert a ' 1983 claim.
Plaintiff is directed that to state a claim in federal court he 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 a named defendant in
the alleged constitutional violation. See Bennett v. Passic , 545 F.2d 1260, 1262-63

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(10th Cir. 1976). To establish personal participation, Plaintiff must show in the Cause of
Action section of the complaint form how the 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).
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 42 U.S.C. ' 1983 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.
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 Prisoner
Complaint form (with the assistance of his case manager or the facility=s legal 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 dismiss the Complaint and
action without further notice.
DATED March 27, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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